author: Gorman, J. Jones (E. H.), J.,

text:
    AS TO WHETHER. OPTION OF RENEWAL WAS EXERCISED BY LESSEE.
    Court of Appeals for Butler County.
    Harlan v. Veidt.
    Decided, April 12, 1915.

      Landlord and Tenant — Notice of Election to Have Term of Lease Extended Not Necessary, Unless — Tenant at Sufferance Has no Term— . Only One in Possession May Maintain an Action to Quiet Tifie— Such an Issue Can he Determined Only in a Court of Law — Jurisdiction of Courts of Equity.

    1. When a lease contains an option to the lessee to have the term of the lease extended, no notice of an election to have the term continued is necessary, unless it is required hy the terms of the lease.
    2. The jurisdiction of a court of equity can not be invoked when the plaintiff has a plain, adequate remedy at law.
    3. A tenant at sufferance has no term, but is in merely by the forbearance of the landlord to act.
    4. Only one who is in possession of real estate may maintain an ac- ' tion to quiet title, unless the plaintiff claims as remainderman or reversioner.
    5. The question of title can not be raised in an injunction case, and is one to be determined in a court of law.

      B. F. Harwitz and Allen Andrews, for plaintiff.

      Edgar S. Belden and W. K. Rhonemus, contra.
   Gorman, J.

This cause comes into this court on appeal from a judgment of the common pleas court.

The plaintiff, Mary A. Harlan, avers in her petition that she is the owner in fee simple of a certain described farm in Madison township; that defendant, Edward Veidt, entered upon said premises as the tenant of plaintiff’s grantor; that said defendant’s term of rental expired March 1, 1914, but by sufferance of the parties he was permitted to remain in possession until March 1, 1915; that without plaintiff’s knowledge or consent defendant has plowed certain fields in said farm and is about to aud threatens to sow the same in rye, and claims to be entitled to retain possession of said premises after March 1, 1915; and that defendant claims to be entitled to other interests in said lands and to the possession thereof, all of which claims of possession and of right to enter upon and plow the fields of said lands after March 1, 1915, are a cloud on plaintiff’s title. The prayer of the petition is that defendant be enjoined from plowing any of the fields and from sowing the same in crops; that defendant be required to show his title to said real estate; that the court adjudge his claims to be null and void and a cloud on plaintiff’s title; that plaintiff’s title be quieted as against the defendant’s claims; that he be perpetually enjoined from entering upon any portion of said premises and perpetually enjoined from setting up any claim or title adverse to plaintiff’s title to said premises; and for all other relief.

In his answer defendant admits plaintiff’s title in fee simple; admits that he is about to plow and threatens to plow and sow as alleged in the petition; admits that he claims to be entitled to retain possession of the premises after March 1, 1915; and denies each and every other allegation of the petition. Defendant further sets up that he entered into the possession of said premises on March 1, 1911, under a lease for three years from S'. Jennie Sorg, who is plaintiff’s grantor and was the owner in fee simple of said premises, and attaches to and makes a part of his answer a copy of said lease; that the term of said lease expired March 1, 1914; that it contained a privilege or option on his part of two additional years on the expiration of the lease; and avers that he is in possession under said lease and entitled to hold, keep and control the same until March 1, 1916, by virtue of the terms of said lease. He denies that his possession during 1914 was by sufferance, and avers that he has kept and observed all the covenants and stipulations of said lease on his part to be performed; and he prays that plaintiff’s petition be dismissed. •

The reply denies that defendant exercised his option or privilege of two additional years, avers that he failed to exercise his privilege for two additional years, and pleads that defendant is estopped to claim his right of occupancy and possession for said additional term of two years.

The copy of the lease, and the original lease, which were offered in evidence, contain these provisions as to the term of the lease:

“For and during the full term of three years next ensuing, commencing on the first day of March, 1911, and to be fully completed and ended on the 28th day of February, 1914; with the privilege of two additional years at the expiration of this lease. ’ ’

And it contains the following covenant as to the rent for the additional term of two years:

“It is further agreed by and between the parties that said lessee shall have the right, privilege and option of an additional term of two years from and after the expiration of the term hereby created; upon the condition, however, that the rent for any additional term after the expiration of the three years herein granted, shall be the sum of $S00 for each and every year; the rent to be payable in advance as hereinbefore stated.”

It appeared in evidence that defendant entered into possession under said lease and has remained in continuous and uninter-, rupted possession ever since; that on March 2, 1914, S. Jennie Sorg conveyed by warranty deed to plaintiff said premises, which deed was recorded March 3, 1914. In said deed was the following stipulation with reference to defendant’s lease: “And further subject to a lease on said premises granted by S. Jennie Sorg to Edward Veidt, to which lease reference is hereby made.” Plaintiff therefore bought said premises with full knowledge of and subject to said lease, which was in writing and duly witnessed and acknowledged.

The transcript of the evidence on which the case is here submitted discloses that the lease and deed were offered in evidence; that plaintiff had a contract to purchase the premises, made in October, 1913, but not closed up until March 2d or 3d, 1914; and that some time in the early part of December, 1913, Dr. Harlan, the husband and agent of plaintiff, met Veidt, the defendant, in Middletown and had a conversation with him about the farm. He told Veidt that he had bought the farm. Veidt complained of the high rent and the need of repairs, and said that he did not intend to pay that $800 “until .a h-of a lot of fixing was done.” Veidt said nothing about leaving the farm or surrendering it at the expiration of the term, March 1, 1914. That was the only conversation between Veidt and Dr. Harlan until March 5th or 6th, 1914, on which date Mr. Walburg, the agent for Mrs. Sorg, and Dr. Harlan called on Veidt, who was still in possession of the farm, and talked to him about the payment of the $800 rent for 1914. Veidt did not pay them the rent, but complained a great deal about the need of repairs and the high rent. Walburg asked Veidt if he intended to avail himself of his option under the lease, and Walburg said: “If you do, I am here to collect the rent, which is now past due.” Veidt, according to Dr. Harlan, made no positive answer as to whether he would exercise his option or not. Mr. Walburg testified that, when .asked if he wanted to exercise his option under the lease (for two years), Veidt said he did not know whether he would or not; and then complained of the high rent and the lack of repairs. Veidt did not then pay the $800 rent although several times asked to do so by Walburg. Veidt continued to remain on the farm, and on June 12, 1914, he paid Walburg, agent for Mrs. Sorg, $800, the rent for 1914, and stated in a note left for Walburg that he would be ready with the $800 rent on March 1, 1915, for the second year. Walburg saw plaintiff and her husband, Dr. Harlan, and they kept the $800, and Walburg then wrote a note to Veidt on June 15 (Exhibit 4), in which he states that he has gotten Dr. Harlan’s consent to accept the check for $800, and that Dr. Harlan has consented not to disturb Veidt during the growing season of .1914. Up to the time of paying the $800| rent, June 12, 1914, Veidt did not inform Walburg or Dr. Harlan that he intended to remain the two years longer provided for in the lease; but he remained on the farm after March 1, 1914, and it is in evidence that he denied ever intimating that he intended to surrender the farm before March 1, 1916.

Without undertaking to review the evidence fully, it appears to be sufficiently disclosed that Veidt did not vacate or surrender before March 1, 1914; that he never said he would do so; and that he continued in possession after March 1,1914, in pursuance of his right or privilege for two additional years, according to his statement. He was in under the lease, and in our opinion the mere holding over after March 1, 1914, was an exercise of his option, or privilege to remain for the two additional years. It was not necessary for him to indicate, otherwise than by continuing in possession, after March 1, 1914, that he made his election to remain for the additional term of two years. The holding over without any new agreement was an election on his part, and he was bound for the two years and liable to plaintiff for the two years’ rent at $800 per year as stipulated in the lease. We consider this provision in the lease as an agreement for an extension of the lease and not for a renewal. If it had been a provision for a renewal, then notice on Veidt’s part would be necessary in order to entitle him to remain longer. (Jones on Landlord and Tenant, Section 339.) But there is a distinction made in the eases between a renewal of a lease and an extension, and in the case of the lease before us, no notice is required to entitle the tenant to the additional term. Merely holding over under the lease constitutes an election to exercise the privilege or option. Jones on Landlord and Tenant, Section 337; Fleischner v. Citizens’ Inv. Co., 25 Or., 119, and Harding v. Seeley, 148 Pa. St., 20.

When there is an option to the lessee to have the same term extended, no notice of an election to have the term continue is necessary, unless it is required by a clause in a lease. Jones on Landlord and Tenant, Section 340; Terstegge v. First German, etc., Society, 92 Ind., 82; Montgomery v. Board of Commissioners, 76 Ind., 362; Mershon v. Williams, 62 N. J. L., 779; Chandler v. McGinning, 8 Kans. App., 421, and 18 Am. & Eng. Ency. of Law (2d Ed.), 693.

The case cited by counsel for plaintiff, Keppler Bros. v. Heinrichsdorf, 5 C.C.(N.S.), 112, which holds that notice was necessary, was a case in which the lease stipulated for a notice to be given by the tenant of his intention to accept or decline, six months before the termination of the lease.

We are therefore of the opinion that the defendant, being liable for the two years additional rent under the extension of the lease, was entitled to remain on the farm and plow .and sow, and the petition of plaintiff should be dismissed.

But whether this conclusion be sound or otherwise, we are further of the opinion that the plaintiff is not entitled to invoke the jurisdiction of a court of equity, as she has done in this case, when she has a plain, adequate remedy at law. Possession of this farm after March 1, 1915, is what the plaintiff sought. The plowing of the fields was not in the nature bf waste, nor is it claimed that any substantial injury was being done to the freehold so as to entitle plaintiff to an injunction to prevent the commission of waste. Plaintiff could have brought an action in forcible entry and detainer, if, as she averred, the defendant was a tenant at sufferance, because if this claim were true then defendant was holding over his term and not a tenant at all, and forcible entry would lie. There would be no question of title involved, as a tenant holding over would not be permitted to question his landlord’s title. A tenant at sufferance has no term, but is in merely by the forbearance of the landlord to act, his omission to take action to evict the tenant. A tenancy by sufferance is not a tenancy at all. It is a mere holding by laches of the owner. Jones on Landlord and Tenant, Sections 220-221.

But it is averred that the defendant claims some title adverse to plaintiff’s title .and is in possession. The evidence does not disclose this to be true; but, if it were true, then the plaintiff’s remedy would be an action at law in ejectment to recover the lands, under Section 11903, General Code, in which action all questions of plaintiff’s and defendant’s titles, legal or equitable, could be raised.

Nor can it be claimed that plaintiff can maintain this action as one in equity to quiet title, because she is not in possession of the lands, and it is only those who are in possession of the real estate who may maintain an .action to quiet title, unless the plaintiff claims as remainder-man or reversioner, which plaintiff in this action does not aver. See .Section 11901, General Code; Ellithorpe v. Buck et al, 17 Ohio St., 72, 75, and Bailey v. Hughes, 35 Ohio St., 597.

Nor can the question of title be raised in .an injunction proceeding. The question of title is one to be determined exclusively in a court of law.

“A bill to establish a legal title and to restrain proceedings at law will not be entertained, no equitable circumstances appearing in the ease and nothing that prevents a full defense at law.” 1 High on Injunctions (4th Ed.), Section 101, and De Groot et al v. Receivers, 2 Green Ch., 198.

Injunctions in cases affecting the possession of real estate would not be countenanced by the court of equity; and this has been the rule from the earliest times. 1 High on Injunctions (4th Ed.), Section 344, and Lady Poines’s Case, 1 Vern., 156.

If one is in possession without legal title, the remedy is at law and not by injunction. 1 High .on Injunctions (4th Ed.), Sections 359, 360; Pfeltz et al v. Pfeltz et al, 14 Md., 376, and Toledo Exposition Co. v. Kerr et al, 8 C.C.(N.S.), 369.

The averments of the petition in the case at bar, as in the case we next cite, disclose an action for the recovery of real property, ejectment, and the facts set out in the case cited are so similar to the averments of the petition in the case at bar that we might well decide this case on that authority. Raymond v. T., St. L. & K. C. Ry. Co., 57 Ohio St., 271, proposition 4 of the syllabus.

On the ground that plaintiff is not entitled to a decree under the facts of the case, and because this court as a court of equity has no jurisdiction, this being a case at law, the plaintiff’s petition must be dismissed at her costs.

Petition dismissed.

Jones (Oliver B.), J., concurs.

Jones (E. H.), J.,

dissenting.

I can not agree with my associates as to the nature of this action as disclosed by the pleadings, nor upon the conclusions to be drawn from the evidence as to the right of possession since March 1st, last.

Plaintiff alleges that defendant is plowing the fields and sowing rye, and her first prayer is that he be enjoined from sov doing, for the reason that his right of possession will terminate on March 1, 1915, and that he is planting a crop that will not mature by that time. This prayer is further predicated upon allegations the substance of which is that such conduct on-the part of defendant is equivalent to a threat to interfere with or totally deprive plaintiff of her possession after March 1, 1915, when, she avers, such right will accrue to her.

At the time plaintiff began this action below, she had no right of possession and claimed none. So that the fourth paragraph of the syllabus in Raymond v. T., St. L. & K. C. Ry. Co., 57 Ohio St., 271, so strongly relied upon in the foregoing opinion, has no application to this case. There the plaintiff had the right to possession, as stated in the syllabus. Basing its judgment on that fact, the court there held that plaintiff had a remedy at law. "What remedy at law had this plaintiff when her action was commenced? None whatever.

If defendant had the right to plow one or two fields in November and plant rye, he had an equal right' to continue plowing throughout the winter, until the whole farm was plowed. He had received written notice in July to vacate on March 1st and apparently acquiesced. Now plowing was done, nor fall planting done, until long after the usual time, and it seems clear to me that his purpose in acting at such late date was to challenge plaintiff to interfere and to advise her of his determination to remain on the farm after March 1st when she claimed the right of entry.

As to the respective rights of the parties at . this time I am also at variance with my colleagues. The law upon the subject of the extension and renewal of leases is fairly well settled, but we differ in our application of the law to the facts in this case. I can not enter into a discussion of the evidence. • Suffice it to say that the testimony of Dr. Harlan, detailing the conversation 'in December, 1914, with Veidt, is not disputed and stands as an uncontradicted fact on this record. Veidt’s positive statement can not be taken but as a notice that he would leave the farm on March 1st. This, in view of his failure to retract what he said, and the failure of plaintiff to make any repairs prior to March 1st, terminated Veidt’s tenancy on that date^ Therj. he refused, upon demand, to pay the rent and only paid it immediately after a quarrel with Dr. ITarlan in the following June. It makes no difference what the law may be as to mere holding over in the absence of declarations. Such is not this case. It was the proper and natural thing for the new owner to inquire of Veidt what his future intention was with respect to the farm, and Veidt is bound by his unretracted, deliberate answer, followed on March 5th by a similar declaration and his refusal to pay the rent then due under the terms of the lease upon which he now relies.

In discussing the subject, Jones, in his work on Landlord and Tenant, Section 341, says:

"Yet the tenant’s announcement of his intention not to accept the extension would override the presumption arising from his continuance in possession.” See, also, Barnett v. Ferry, 101 Ind., 95.

The reference in the lease to the deed to Mrs. Harlan certainly gave Veidt no greater rights than he then had. Nor did the payment of the rent in June, 1914, for that year to Mr. Walburg, or anything written or said by Veidt at the time to Wálburg, have any effect upon the status of Mrs. Harlan. Witness the letter by Walburg to Veidt, of June 15th.

I am of opinion that plaintiff was. entitled to an injunction when the action (was brought and that right is not impaired by reason of the fact that she asked other relief to which she was not entitled.

This question is so coupled with the other that it is unnecessary'to say that I am also of the opinion that defendant’s right to occupy the farm ended on March 1, 1915.


source: Caselaw Access Project

author: Sayre, J.

license: Public Domain

text:
    INTENT TO STEALIFORMED AFTER£THE TAKING.
    Court of Appeals for Scioto County.
    John Porter v. State of Ohio.
    Decided, December 26, 1917.

      Criminal Law — Formation After the Trespass of an Intent to Steal— Constitutes a Felonious Taking — Automobile Taken for a Joy Ride ■ and Afterwards Sold — Conflicting Propositions of Law Embodied in Charge to Jv/ry.

    If the original act of taking was a trespass and subsequently while the defendant is in possession of the property he forms the intent to steal, the crime of larceny is committed.

      Theodore K. Funk, for plaintiff in error.

      Joseph T. Micklethwaite, Prosecuting Attorney, contra.
   Sayre, J.

The defendant and two associates were indicted for grand larceny, charged with stealing an automobile owned by Lawrence Fitch and taken out of his garage in New Boston, Scioto county, Ohio, at night without his knowledge or consent. The machine was driven to Portsmouth .and back through New Boston out of Scioto county and through Lawrence county to Huntington, West Virginia, where the same was sold and the proceeds divided between the defendants. Ther'e was evidence tending to show that, when the automobile was taken out of the owner’s garage, there was no intent on the part of the defendants to steal it but simply to take a “joy-ride.” The trial court charged the jury at defendant’s request before argument that to constitute larceny the intent to steal must be present in the mind of the defendant at the time of the taking of the property. This instruction’was repeated in the general charge, but later therein the jury was instructed that if the intent to steal was formed by the defendant after the taking of the automobile and while he was in Scioto county with it, then the crime of larceny was committed in that county.

Unquestionably here are two conflicting propositions of law. If tbe first proposition is correct then there could be no larceny, if the intent to steal arose after the automobile was removed from the garage of the prosecuting witness. If, however, the second proposition is correct then the first proposition, although erroneous, was not prejudicial to the defendant, for the effect of it was only to make it more difficult for the state to prevail and was thus favorable to the defendant. If the first proposition is correct then the giving of the second was highly prejudicial to the defendant because of the evidence tending to show that the original taking was without intent to steal.

The rule announced in Cyc., Vol. 25, p. 46, and in R. C. L., Vol. 17, Section 28, is that the intent to steal must exist at the time of the taking, and very many cases are therein cited as supporting this rule. But a careful reading of the reports will show that the rule is announced in a large number of cases where the original taking was entirely lawful, and it is admitted on all hands that if such was the character of the taking, then there can be no larceny. Two essential elements of larceny are trespass, or asportation by trespass, and the intent to steal, and these must be simultaneous. If the possession was secured without trespass — that is, if the act of acquiring possession was lawful — then the possession remains lawful, and no subsequent act of the defendant in connection with the property can constitute larceny. So if the original securing possession was a trespass, it remains a trespass as long as the possession of the property continues in the defendant, and if to that is added the intent to steal the crime is complete, because both essential elements of larceny are present. (State v. Coombs, 55 Me., 477, 92 Am. Dec., 610; Com. v. White [Mass.], 11 Cushing, 483; State v. Davenport, 38 S. C., 348, 17 S. E., 37; King v. State [Ala.], 72 So., 552; Regina v. Riley, 14 Eng. Law & Eq. Reports, 554; Eng. & Am. Encyc. of Law [2d. Ed.], Vol. 19, p. 507.)

The thought which influences us to adopt the rule, announced in the authorities last above referred to, is that we can see no difference in the character of the act, whether the intent to steal is formed at the time of the taking or thereafter during the time the defendant has possession, provided the possession was unlawfully secured. Suppose the defendants in this case did not have the intent to steal when they drove the ear out of .the garage of the prosecuting witness, but did form such intent a half hour later as they were driving along the highway, what difference was there in the character of the act after the intent to steal was formed, than there would have been had the intent to steal been present when possession of the automobile was secured? Certainly there would be none. When there is an unlawful possession secured and kept, followed by the intent to steal, there is a felonious “taking” within the meaning of the technical form of indictment for larceny. To take in this connection means to appropriate for use, to get possession of and hold. The first act of laying hands on the property does not exhaust the meaning of the word “take,” but there is included the act of holding for use. So if the defendant unlawfully gets possession of property and keeps the same until he forms the intent to steal, he feloniously “takes” the same when to such unlawful holding there comes the intent to steal. In the case under consideration the “taking” began with the first act of the defendants in moving the• automobile. The “felonious taking” began when the intent to steal was formed.

The judgment of the court of common pleas will be affirmed.

Middleton, J., and Walters, J., concur.


author: Jones (E. H.), P. J. Gorman, J.,

text:
    AUTHORITY OF COMMISSIONER. TO COMMIT FOR CONTEMPT IN REFUSING TO ANSWER.
    Court of Appeals for Hamilton County.
    Schott, Sheriff, v. Benckenstein et al.

    Decided, March 18, 1915.

      Depositions — Commissioner Appointed by a Court of Another State— Witness Refusing to Answer Guilty of Contempt.

    A'commissioner, bearing a commission from a court of another state authorizing him to take depositions in this state, can compel the giving of testimony by committing to jail for contempt a witness who refuses to be sworn.

      Maxwell & Ramsey, for plaintiff in error.

      Bruce & Bruce and S. A. Headley, contra.

       Affirmed, Benckenstein v. Schott, Sheriff, 92 Ohio State, 29.

   Jones (E. H.), P. J.

The sole question presented to this court in this case is whether or not a commissioner bearing a commission from a court in the state of New York, authorizing him to take depositions in this state, can compel the giving of testimony by committing to jail for contempt a witness who refuses to be sworn.

It is well settled by the case of DeCamp v. Archibald, 50 Ohio St., 618, that a notary public of Ohio before whom depositions are being taken for use in Ohio can commit to jail a contumacious witness. This authority is unquestionably conferred upon such notary by Section 11510, General Code, which reads as follows:

“Section 11510. Disobedience of a subpoena, a refusal to be sworn, except upon failure to pay fees duly demanded, and an unlawful refusal to answer as a witness or to subscribe a deposition, may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required. ’ ’

And Sections 11529 and 11530, General Code, provide:

“Section 11529. Depositions may be taken in this state before a judge or the clerk of the Supreme Court, a judge or' clerk of the court of appeals, a judge or clerk of the court of common pleas, a probate judge, justice of the peace, notary public, mayor, master commissioner, official stenographer of any court in this state, or any person empowered by a special commission.
“Section 11530. Depositions taken in .and to be used in this state, must be taken by an officer or person whose authority is derived within the state; but, if for use elsewhere, they may he taken before a commissioner or officer who derives his authority from the state, district or tei’ritory in which they are to be used.”

The answer to the question propounded to us depends wholly upon the construction of these and other sections contained in Part Third, Title 4, Division 3, Chapter 3 of the General Code, and particularly upon the meaning to be ascribed to the word “officer” as used in Sections 11510, 11530, 11543 and others of said chapter. In the latter section the word “officer” certainly includes one appointed under a special commission to take testimony in another state for use in a court in this state. It follows that the word ‘ ‘ officer, ’ ’ used in Section 11510 of the same chapter, in like manner includes the commissioner who may be appointed under Section 11530 to take depositions to be used elsewhere. The word “officer,” as used in this chapter, can not be limited to magistrates and others who have taken an oath, given bond, etc., as argued by counsel. In order to make the statutes on the subject consistent and effective, it is obvious, we think, that the word “officer” must be held to include all persons authorized to take depositions.

"We are,.therefore, of the opinion that the word “officer” as used in Section 11510 was intended to and does embrace a commissioner'appointed by a court of another state to take testimony in Ohio. Such being our construction of this section, it follows that the commissioner so appointed has power to punish as a contempt an unlawful refusal to answer as a witness or to subscribe to a deposition.

It is argued that, adopting the above construction, the Law is unconstitutional for the reason that the power to punish for contempt is a judicial power which under our Constitution can be conferred only upon a court. This point has been passed upon by our Supreme Court in the case of DeCamp v. Archibald, supra. We quote from the syllabus, as follows:

'“The power conferred by 'Sections 5252 and 5254, Revised Statutes, on a notary, or other officer, in taking depositions, to commit a witness to the jail of the county for refusing to answer a question, is not judicial in the sense of the Constitution, conferring all judicial power upon the courts of the state. ’ ’

The judgment of the lower court will therefore be reversed and the defendants in error remanded to the custody of the sheriff.

Judgment reversed.

Jones (Oliver B.), J., concurs.

Gorman, J.,

dissenting.

I find myself unable to concur in the conclusions of my associates as to the right of the commissioner in this case to commit for contempt.

Section 11510, General Code, provides that a refusal to answer may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required. This section provides, therefore, only for the punishment by the court or an officer. An officer within the meaning of this section means an officer of the state of Ohio; and under Section 2, General Code, a commissioner who .derives his authority from a state other than this state is not an officer of the state of Ohio.

While a commissioner appointed by authority of another state may take depositions in this state, under favor of Section 11530, General Code, I am of the opinion that the Legislature has simply recognized his right to take depositions in this state when the witnesses appear voluntarily and consent to give their testimony. I do not think that any person can have the power and authority to deprive a citizen of this state of his liberty, unless he be an officer of this state duly authorized so to do or a- court of this state.

The appellate division of the Supreme Court of New York, in the ease of People, ex rel MacDonald, v. Leubuscher, 34 App. Div., 577 (54 N. Y. Supp., 869), held: That under the Constitution of the United States (Amendment 14, Section 1), providing that no state shall deprive any person of life, liberty, or property without due process of law, Section 920, Code Civ. Pro., providing that a person .who refuses to testify before a commissioner appointed .to take depositions “is liable to the penalties which would be incurred in a like case if he was subpoenaed to attend the trial of an action in a justice court; and for that purpose, the officer, before whom he is required to appear, possesses all the powers of a justice of the peace-upon the trial, ’ ’• — who, under Section 30)01, has power to imprison a witness for refusal to testify before him — is unconstitutional- as applied to a commissioner appointed by a cqurt of another state take depositions in that state, and who seeks thereunder to imprison for contempt.

It is also true that Judge Sayler, while on the common pleas bench, in the ease of In re Goodman, 7 N. P., 201, tookthe same view of the ease pending before him as I take in this case;' In' the Goodman case he discharged on habeas corpus a witness who was committed by the commissioner appointed by the surrogate court of New York to take testimony in this city. He was of the opinion that the commissioner was not an officer of Ohio, and therefore not authorized to commit for contempt.

The Supreme Court of Kansas, in In re Huron, 58 Kans., 152, laid down tlie same rule as the New York appellate division of the Supreme Court in the case above cited.

Our Supreme Court in the case of DeCamp v. Archibald, 50 Ohio St., 618, held that a witness before a notary public, where depositions were being taken to be used in an action pending in this state and in this county, could be committed by the notary, and that the notary had power to commit for contempt of court. But we think that case is distinguishable from the one at bar because a notary public is an officer of this state. He is duly appointed and commissioned by the Governor, is obliged to give bond and take an oath of office, as all officers are required to do under Section 2, General Code.

For the reasons stated I am of the opinion that the judgment of the court of common pleas in discharging defendants in error should be affirmed.


author: Gorman, J.

text:
    DETERMINATION OF THE AMOUNT DUE UNDER. THE BOND OF A DEPOSITARY.
    Court of Appeals for Hamilton County.
    The Village of Wyoming v. The Citizens Trust & Guaranty Company of West Virginia.

    Decided, November 5, 1917.

      Sureties — Failure of Depositary of Public Funds — Liability of Surety Equal to the Full Face of Its Bond, When — Responsibility for Increase of Bond Where Deposits Are Increased Beyond Amount of Existing Bond — Statutory Provisions Relating to Bonds Given by Depositaries Will be Read Into Such Bonds — Section 4295 as Amended.

    1. A bond securing deposits made by a city or village in a designated depositary is a statutory bond into which the provisions of the statute relating thereto must be read, and the surety will be held to have contracted with reference to such statutory provisions.
    2. -The responsibility for providing for an increase in the amount of the indemnity bond, where deposits are made by the municipality in excess of the sum named in the existing bond, is in the first instance upon the depositary, and where such a situation arises the surety becomes liable for the full face of its bond, and not ninety per cent, thereof.
    3. The amount for which the surety is liable, up to the face of its bond, is the amount with interest shown to remain due the municipality after liquidation of the depositary.

      S. C. Roettinger and James E. Robinson for plaintiff in error. Pogue, Hoffheimer & Pogue, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, April 11, 1918.

   Gorman, J.

This case is here on error to the judgment of the common pleas court, wherein the judgment below was adverse to the plaintiff in' error.

The ease was submitted to this court upon an agreed statement of facts to take the place of a bill of exceptions.

From the agreed statement of facts, omitting the immaterial parts, it appears that the village of Wyoming, ,a munieipal corporation in Hamilton county duly organized under the laws of Ohio, designated the Metropolitan Bank & Trust Company of Cincinnati as its depository, and that after competitive bidding it awarded to this hank the contract to receive on deposit in its bank moneys of the village, said bank being the highest and best bidder for said 'deposits.

A resolution providing for deposit in this bank was duly passed by the council of the village on or about June 1, 1909. The resolution provided that the treasurer of the village was authorized and instructed to deposit the funds of the village in said bank in the manner provided by law and in accordance with the terms of said bid.

Pursuant to the award the bank, as required by law, executed and delivered to the village of Wyoming its bond with the defendant company as surety thereon. Said bond was renewed on the 5th of July, 1910, for a period of one year upon the same terms and conditions as the original bond; and again said bond was renewed on or about the 1st day of July, 1911, for a further term of one year and to continue in force until the close of the banking hours on July 6, 1912.

After the execution of the bond the treasurer of the village in consideration thereof deposited the village funds in said bank commencing on or about July 19, 1909, and from time to time made deposits; and withdrawals were made from time to time to meet the payments ordered by the village council out of the funds.

The amount of this bond was $10,000; and the renewals were for the same amount in each of the two succeeding years. On the 18th of September, after the second renewal of said bond said bank closed its doors and .went into the hands of a receiver under the direction of the state bank examiner of the state of Ohio, this being a state bank, and the payment to its depositors including the. plaintiff in error was then and there suspended. 1

At the time of its suspension the plaintiff in error had on deposit as principal the sum of $18,879.11; and there was due on this principal by way of interest the sum of $427.08; making a total amount of principal and interest belonging to the plaintiff in error, in the bank, the sum of $19,306.19. The receiver of said bank from time to time paid dividends to the depositors, including plaintiff in error, and finally upon the winding up of the bank’s affairs there had been paid to the plaintiff in error on account of its claim, by the receiver, dividends aggregating $10,618.40, leaving a balance unpaid on its claim of $9,305.59, with interest.

After the receiver of the bank had paid all the dividends that could be paid out of the assets of the bank the defendant in error, the Citizens Trust & Guaranty Company, paid to the village the sum of $4,756.50, claiming that this was tbe entire, amount which it should pay on its obligation under said bond. This money was paid by the defendant in error and received by the plaintiff in error without prejudice to the rights of plaintiff in error to assert this claim against defendant in error for the full amount unpaid by the bank or its receiver; and without prejudice to the rights of the defendant in error to resist the claim of the village of Wyoming.

The condition of this bond is as follows :

"The condition of the above obligation is such, that whereas, under and by virtue of a certain proposal of the said The Metropolitan Bank & Trust Company, the said bank has been designated as a depository of the money belonging to the incorporated. village of Wyoming, and in consideration thereof, the said bank has agreed to pay to said incorporated village of Wyoming upon such deposits the rate of interest agreed upon.
"Now, therefore, if, during the period beginning on the date of this bond, the said The Metropolitan B,ank & Trust Company shall receive, safely keep and pay over all moneys which may come under its custody under and by virtue of the laws of the state of Ohio relating to such depositories, and under and by virtue of the said bank’s contract with the said incorporated village of Wyoming, and shall properly account for and pay over, as required, the interest on such deposits at the rate agreed upon, and shall faithfully perform all the duties imposed by the laws of the state of Ohio upon it as a depository of the moneys of said incorporated village of Wyoming, then this obligation shall be null and void; otherwise to remain in full force and virtue.”

There are other provisions in the bond by way of provisoes which need not be quoted, as they do not in the opinion of the court affect the question involved in this case.

The limit of the liability of the defendant in error was $10),000, and this it obligated itself to pay to the village of Wyoming-provided the Metropolitan Bank & Trust Company defaulted in its payment of the village moneys. In other words, the defendant in error bound itself to the extent of $10,000 to indemnify and hold harmless the village of Wyoming from any loss which it might sustain by reason of having designated said bank as its depository.

If the loss were less than $10,000 then the defendant in error did not obligate itself to pay more than the amount of the loss. If the loss exceeded $10,000, it was obligated to pay only $10,0010.

In the court of common pleas, upon the submission of this cause to the court without the intervention of the jury — a jury having been specially waived — a judgment was rendered in favor of the defendant holding in substance that it had paid all that it was required to pay under the bond and in fact had paid in excess of the amount for which it was liable in the sum of $311.47, which sum was claimed by defendant in error in the court below on its cross-petition upon which it sought to recover.

It is argued by defendant in error that this being a statutory • bond the provisions of the statutes relating to depositories must be impliedly read into the bond or contract — there being no other contract between the village and the Metropolitan Bank & Trust Company except the bond involved in this proceeding. We concur most heartily in the claim of counsel for defendant in error that the provisions of the statute relating to bonds required to be given by the depositories, are impliedly read into the contract or bond.

At the time of the last renewal of said bond the Legislature had made some amendment to the provisions relating to the depositories of municipal corporations, found in 102 O. L., 122, being an amendment of Section 4295, General Code.

In substance that section provides that—

“Council may provide by ordinance for the deposit of all public moneys coming into the hands of the treasurer in such bank or banks, situated within the county, as offer at competitive bidding the highest rate of interest and give a good and sufficient bond issued by a surety company authorized to do business in the state, or furnish good and sufficient surety, or secure said moneys by a deposit of bonds or other interest bearing obligations of the United States,” etc.

A description is given in the section of the kinds of securities that may be given to secure the deposit of funds. And the section further provides that—

“there shall not be deposited in any one bank an amount in excess of the paid in capital stock and surplus of such banks, and not in any event to exceed one million dollars.”

And it further provides—

“that whenever any of the funds of any of the political subdivisions of the state shall be deposited under any of the depository laws of the state, the securities herein mentioned, in addition to such other securities as are prescribed by law, may be accepted to secure such deposits.”

The section further provides—

“said security to be subject to the approval of the proper municipal officers, in a sum not less than ten per cent, in excess of the maximum amount at any time to be deposited.”

Now it is claimed by counsel for defendant in error that this language of the statute being impliedly read into the bond, means that the village of "Wyoming would not be permitted under the law to deposit in the Metropolitan Bank & Trust Company at any time more than $9,091, which would be in round numbers 90 per cent, of the face of this bond; and that if the village deposited more than 10 per cent, less than the amount of the bond it, the village, did so at its own risk, or it was obliged to provide for an additional security or bond to be given.

But this statute puts the duty upon the bank which is designated ,as the depositary of the municipal corporation to give good and sufficient bond. It does not impose the drity upon the council of the municipality or upon the treasurer of the municipality to see that the bond is given. No doubt it would be the duty of the officers of the municipality to see that a sufficient bond was given in order to protect the village from ¡any loss which might occur; but it does not lie in the mouth of the surety company to say that because the village failed to secure additional sureties or an additional bond, that it is therefore not liable for more than ninety per cent, of the face of its bond. The surety contracted to be liable to the village to the extent of $10,000, ¡and if the loss of the village reached $10,000 it would be liable for the full amount of the bond.

In the case under consideration the loss of the village was less than $10,000. It suffered no loss except that which the bank failed to pay. The fact that it had on deposit more than $19,000 when the bank closed its doors does not establish a loss of $19,000. After the bank had closed its doors the village received on its claim more than $10),000 paid to it by the receiver of the bank, and, manifestly, to the extent that it received payment on its deposit in this bank there was no loss. Its only loss was the amount which the bank failed to pay upon the winding up of its affairs.

"We do not think it necessary that any authorities be cited in order to establish this plain proposition. The plaintiff in error (plaintiff below), was entitled to recover from the defendant in error, upon the agreed statement of facts the amount which the Metropolitan Bank & Trust Company failed to pay on account of the sum of moneys on deposit in said bank. This, amount, $9,305.59 with interest, less the amount voluntarily paid by defendant in error, $4,756.50, leaves a balance of $4,-642.10 with interest — this being the total amount claimed by plaintiff in error in the action at law.

The court of common pleas having erred in rendering judgment in favor of the defendant in the amount rendered, when it should have rendered judgment for plaintiff 'in the sum of $4,642.10 with interest, and there being no question of fact involved in the ease but only a question of -law, we hold that the judgment of the common pleas court should be reversed and judgment entered in this court in favor of the plaintiff in error for the amount of $4,642.10 with interest, .as claimed -in the petition.

Judgment accordingly.

Jones, P. J., and Hamilton, J., concur.


author: Middleton, J.

text:
    WHEN A DECREE FOR ALIMONY MAY NOT BE REOPENED.
    Court of Appeals for Ross County.
    George Clough v. Isabella Long et al.
    Decided, January 21, 1918.

      Alimony■ — Continuing Jurisdiction of the Court Awarding a Decree —May Not he Asserted, ~When — Payment of a Cross Bum Usually Ends Jurisdiction — An Award of Real Estate is Final and May Not he Modified at a Buhsequent Term.

    1. While as a general rule the jurisdiction of a court in alimony proceedings is a continuing jurisdiction, it does not necessarily follow that every decree in alimony may be open to change or modification and that the court may not by its -decree, or the parties by their agreement when the same has been judicially sanctioned by a decree of the court, completely foreclose any right to a future revision or change thereof.
    2. When a gross sum is allowed as and for alimony and full payment thereof has been made, such allowance is generally recognized as a final adjudication of the rights of the parties and the court’s jurisdiction is at an end.
    3. Real estate, decreed in fee simple as an allowance in gross for alimony, is final in so far as it relates to such property, and the court has no jurisdiction to modify or change such, a decree at a subsequent term. ' ¡

      Elijah Outright, Jr., George B. Okey and C. A. Radcliffe, for plaintiff in error.

      John P. Phillips and Lyle S. Evans, contra.
   Middleton, J.

Plaintiff in error was the plaintiff below in ,an action which he instituted on April 6, 1916, to recover possession of and title to certain real estate. In his-original petition he alleges, in substance, that by the consideration of the court of common pleas of this county on the 12th day of December, 1897, Virginia Clough, then the wife of the plaintiff, obtained a decree of divorce and award of alimony against him; that said allowance in alimony was one in gross for the sum of $2,500 in money and the undivided one-third of a certain farm, situate in said county and known as the Crookham Farm, containing 775 acres more or less, and that the terms of the decree provided that the said Virginia Clough should “have, own, possess and enjoy in fee simple, as and for alimony,” the equal undivided one-third part of said real estate. The petition further states that subsequent to this decree, and on or about the 23d day of March, 1898, the plaintiff, never voluntarily consenting to said decree and award .and never agreeing for a division of his property, but solely for the purpose-of carrying said decree and award into effect, and for no other purpose and upon no other consideration, whatsoever, executed a deed to said Virginia Clough for certain real estate then and theretofore the property of plaintiff. A full description of the lands so conveyed by said deed is set out in the petition, and it appears therefrom that they amounted to about 369 acres. It further .appears from this deed, which is set forth in the petition in full, that in addition to the alimony awarded Virginia Clough the plaintiff received a further consideration of .approximately $5,000 by Virginia Clough agreeing to discharge certain indebtedness of plaintiff amounting to that sum. While the petition does not state that the land so conveyed was the land awarded in the decree, it is to be assumed from certain references in the deed that it included the land so .awarded and in addition certain other lands which were conveyed presumably for the additional consideration.

The plaintiff further recited in his petition that this property so conveyed was ancestral property and that the said Virginia Clough went into the possession of the same and had enjoyed the rents and profits thereof until her death on the 27th day of November, 1910J, and that on the 30th day of December, 1910, her last will and testament was filed for probate in this county, wherein the said Virginia Clough attempted to devise to the defendants in error the real estate described in said deed.

He further alleges in his petition that • the purpose of said conveyance, in compliance with said order, decree and award, was for the support and maintenance of Virginia Clough during her lifetime, and that said real estate having been so used by her during her life, at her death her rights thereto terminated and said real estate reverted, and was intended by the plaintiff and the order, decree and award of the court to revert to him.

The prayer of the petition is that the title to said real estate be re-invested in the plaintiff and that said award of alimony be modified so as to limit the title of said Virginia Clough to and in said real estate to a life estate.

A demurrer to this petition was filed in the court below, which was sustained, and the plaintiff not desiring to plead further judgment on said demurrer was rendered, and he now prosecutes these proceedings to reverse that judgment.

It seems to be conceded by counsel for both parties that the plaintiff in error’s right of action and the sufficiency of his petition depends upon the question as to whether or not the court of common pleas of this county has a continuing jurisdiction in the matter of the alimony awarded Virginia Clough, and that the original action for said alimony continued to be and is now pending in said court. While we do not consider this question may be wholly determinative of the issues presented by the petition, in view of other questions that might arise in respect to the deed subsequently executed by George Clough to Virginia Clough, it.'may be assumed for present purposes,-that the right now to modify this decree is decisive of the whole case.

It is contended in support of. plaintiff’s right of action that ■the allowance:of alimony rests wholly upon the marital obligation of maintenance and support and to a great extent is limited to that purpose only, and that the jurisdiction of the court in an alimony matter is a continuing jurisdiction and that the court has full authority at any time subsequent to any allowance of alimony to revise, change or modify the same.

, We are .not disposed to question seriously any of the propositions so urged, and especially the proposition that the jurisdiction of the court in alimony proceedings is ordinarily a continuing jurisdiction. That question seems to be definitely settled, in this jurisdiction, at least, by the case of Olney v. Watts, 43 O. S., 499, and the very recent case of Smedley v. State, 95 O. S., 141, in which latter case is is said that — ■

“It is well settled that th'e jurisdiction of a court in an alimony case is continuing.”

■ We are. not, however, inclined to accept the rule so announced in this latter case as exclusive, especially in view of the character of the alimony involved in that case and of the award made therein. While, as we have observed, we admit as a genéral proposition that such jurisdiction is continuing it does not necessarily follow that every decree in alimony may be open to change or modification and that the court may not by its decree, or the parties by their acts and agreement when the same have been judicially sanctioned by a decree of the court, completely foreclose any right to a future revision or change thereof. Petersine v. Thomas, 28 O. S., 596; Law v. Law, 64 O. S., 369; Hribal v. Hribal, 11 C.C.(N.S.), 414.

In the case of Pet'ersine v. Thomas, supra, the court, speaking through Judge Ashburn, say in respect to this question:

“Once this discretionary, power of the court, in allowing alimony, has been fully exercised in a case, it is ordinarily at -an end — exhausted. So that, when once the court has allowed .to the wife what it considers just and equitable alimony in gross, and a divorce is at the same time granted, she will-be deemed to have been allowed her jnst and equitable portion of her husband’s estate. The court may, however, in the exercise of a sound discretion, grant the divorce, and make the alimony allowed payable in installments, and by continuing the alimony branch of the case, hold the parties and subject-matter, by proper orders, so under its control as to increase or diminish the allowance as equitable circumstances and justice shall require.”

In Law v. Law, supra, it is held unequivocally that—

“Where the terms of a decree as to the alimony are fixed by the court, pursuant to an agreement of the parties, they .are not subject to modification.”

When a gross' sum is allowed the courts generally recognize it as in full satisfaction of all claims and regard the award so made as final and the awarding court’s jurisdiction at an encj. unless there is some statutory authority continuing its jurisdiction. Plaster v. Plaster, 47 Ill. App., 290; Stratton v. Stratton, 73 Me., -; Mitchell v. Mitchell, 20 Kan., 665; Sammis v. Medbury, 14 R. I., 214; Kamp v. Kamp, 57 N. Y., 212; Johnson v. Johnson, 65 Ho. Prac., 517.

In the case of Shaw v. Shaw, 59 Ill. App., -, the court say:

“Where in a decree for divorce the wife is given a gross sum ,as her alimony, it is held to be in full discharge and satisfaction of all claims for future support. 'So far as the decree relates to that subject it is at an end and the court has no jurisdiction to modify it at a subsequent term.”

In a case where a gross sum has been allowed and paid, and the decree of the court fully executed, we have found no case, nor has any been cited to us, which would authorize the court to deny such a decree the same finality with which other judgments are regarded. We think it may be deduced from the authorities on this question that whether the jurisdiction is continuing or not depends wholly on the character of the decree itself and whether it has been executed and full payment made thereunder or not.

Referring now to our statutory provisions on this subject. It is provided in Section 11998, General Code, that—

“Upon satisfactory proof of the charges in the petition the court shall * * * give judgment in favor of the wife for such alimony out of her husband’s property as is equitable, which may be allowed to her in real or personal property, or both, or in money, payable either in gross or by installments. ’ ’

It is settled in Gallagher v. Fleury, 36 O. S., 590, and Herron v. Herron, 47 O. S., 544, that real estate may be decreed in fee simple ,as an allowance in gross for alimony. The decree in the instant case is one of this character. It is one wholly unconditional. There is no reservation, either express or implied, in "any of the conditions of the court’s order and decree which would suggest that the court intended it to be subject to any future revision or modification. It was in every respect, therefore, a finality so far as the court could make it such. It was expressed in terms which left no doubt whatever that the court intended it to be a final adjudication of the rights and obligations of both parties.

There is nothing disclosed in the petition to justify the claim therein that this real estate was intended by “said order, decree and award to revert to the source from which it came,” and this allegation must be regarded as a mere conclusion of the pleader without any support thereof to be found in any other statement in the petition.

In Herron v. Herron, supra, the court say:

“This transfer of title was not by any act of the husband, but by the fiat of the court. Hence it is to the purpose of the court we must look, and not the purpose of the husband. The decree is not difficult of construction. It explains itself.”

While the title in the instant case was conveyed by an act of the husband, yet the consideration for that act is the title conveyed by the decree of the court, and that title as so conveyed is the title which must control the jurisdiction of the court in respect to a modification thereof. It is not, therefore, to the purpose of the husband that we must look in this case, but the purpose of the court in its original award, and if the husband misconceived the latter’s purpose and the scope and effect of its decree he did so at his peril.

The court continuing in Herron v. Herron say:

‘ ‘ The title received by the wife was as full and ample as though a conveyance from the husband had been made, and she took a title in fee simple. She took as a purchaser.”

So in the instant case Virginia Clough, by virtue of this decree, took a title in fee simple to the lands included in said decree as a purchaser, and a subsequent conveyance of said lands by her husband could not in any manner affect her title thereto theretofore conveyed to her by the decree of the court.

"We conclude that the decree for alimony involved in this controversy is one not subject to any change or modification, and that any subsequent change in the conditions or circumstances of either party to the original action may not be considered by the court of common pleas as affecting in ,any manner the finality of its former decree.

The judgment of the court of common pleas is affirmed.

Walters, J., and Sayre, J.„ concur.


author: Jones (Oliver B.), J,

text:
    CONSENTING TO A CONTINUANCE CONFERS JURISDICTION ON A MAGISTRATE.
    Court of Appeals for Clinton. County.
    Cluxton v. Smithson.
    Decided, June 9, 1915.

      Justice of the Peace — Where Action is Within Jurisdiction of — Appewrance and Consent to Continuance — Bars a Motion to Dismiss for Want of Jurisdiction.

    When the subject of an action is within jurisdiction of a justice of the peace, and the defendant, without objecting to the jurisdiction of the justice of the peace over his person, appears and consents to a continuance, before the filing of a motion to dismiss for want of jurisdiction, such defendant thereby confers jurisdiction of his person upon the magistrate.

      Hayes & Hayes, for plaintiff in error.

      H. S. Pulse, contra.
   Jones (Oliver B.), J,

This action below was one brought in the court of common pleas seeking to enjoin defendant in error, C. E. Smithson, from causing an execution to issue upon a certain judgment taken against plaintiff in error before J. A. Saunier, a justice of the peace in and for Jefferson township, Clinton county, Ohio.

The petition states that Clayton Cluxton was on the 19th of March, 1913, and for many years prior thereto, a resident and freeholder of Clark township, Clinton county; that there were then two justices of the peace duly elected, qualified and acting as such in said Clark township, neither of whom was interested in the controversy or' disqualified under the_ terms of Clause 3 of Section 10225, General Code, and therefore not competent to try the cause; and -that notwithstanding said fact the defendant filed with J. A. Saunier, justice of the peace of Jefferson township, a certain bill of particulars against plaintiff claiming a money judgment for violation of a contract and upon an account for work and labor. It appears further from th^ petition that -the justice of the peace made an entry in said case upon his docket, stating that it appeared to his satisfaction that the defendant (Cluxton) was a resident of Clark township of said county, which is an adjoining township to Jefferson township, and that there was no justice of the peace in said Clark township competent to try said cause, and that he therefore took jurisdiction of said cause.

A summons was duly issued and served upon the defendant in'that action, and although the entire proceedings are not set out in the petition in this action enough is stated to make it appear that certain continuances were had from time to time in said cause, some of which were by the act of the defendant, Clúxton; and that afterwards defendant there filed a motion seeking to dismiss the action because of the want of jurisdiction of said justice of the. peace for the reason that defendant was then a freeholder and not a resident of Jefferson township^ and did not, come within any of the exceptions contained in Sections 10224 and 10225, General Code.

This motion was. overruled by the magistrate and further proceedings were had which resulted in .a judgment against the defendant, who then brought this suit seeking to ienjoin 'execution under said judgment, and to have such judgment set aside and"held for naught: • ; •

A demurrer to the petition was sustained iff the court below, a.nd judgment was entered in favor of the defendant. Error is prosecuted here to reverse that judgment. . .

. The facts set out in the petition as above stated satisfy thp court that' Cluxton - entered a general appearance consenting to continuance before the filing of his motion in the justice’s court to dismiss for- .want of . jurisdiction, and therefore conferred jurisdiction of his person upon the magistrate. The subject-matter of the action was one over which the court had jurisdiction, and the appearance without objection to that jurisdiction at the time the continuance was arranged for -gave the justice jurisdiction of - the person: In P., C. & St. L. Ry. Co. v. Fleming, 30 Ohio St., 480, the second clause of the syllabus is as follows:

“Where the subject of the action is within the jurisdiction of a justice of the peace, and the parties appear before such nearest justice, agree upon a day of trial, which is assented to by the justice and thereupon the defendant demands a jury, which is awarded him, he thereby waives all objection to the jurisdiction of such justice to try the case.”

The finding made by the magistrate upon which he took jurisdiction, which is set out in full in the petition, should have stated the reasons why neither of the two magistrates in Clark township was then competent to try said cause. But under the liberal construction that is allowed to the record of an inferior court, in reviewing its proceedings, this clause might itself be considered sufficient, so long as reasons contrary to the finding of the justice do not appear upon the record. Beebe v. Scheidt, 13 Ohio St., 406, 416, and McCurdy v. Baughman, 43 Ohio St., 78.

The defendant before the magistrate, to preserve his rights, could have introduced evidence showing the competency of one of said magistrates of Clark township, to support his motion, and could have brought error proceedings from the court of the justice of the peace to the common pleas court and have thus procured a reversal of any judgment entered ag.ainst him; having failed to pursue this right under the law equity will refuse him a remedy.

“The authority of a magistrate can not be collaterally attacked. A resident householder of one township being sued before a magistrate in another township, going to trial on the merits of the case without objection to the jurisdiction of the magistrate over him, will be taken to have waived his right to so object.” Caldwell v. High, 6 W. L. B., 201.

The demurrer to the petition was properly sustained, and the judgment is affirmed.

Judgment affirmed.

Jones (E. H.), J., and Gorman, J., concur.


author: Jones, P. J. .

text:
    FEES TO COUNSEL FOR. WIVES IN ALIMONY CASES.
    Court of Appeals for Hamilton County.
    L. C. Black and James B. Swing, Attorneys of Record of Madge May Stewart, etc., v. Woodford T. Stewart.

    Decided, June 17, 1918.

      Divorce and Alimony — Proper Procedure Where no Remuneration Has Been Provided for Counsel — Application for an Allowance Covering Fees Should he Made hy the Wife — Not hy Counsel for Their Own Benefit — Error or Appeal May Not he Prosecuted hy One Not a Party to the Proceedings Below.

    1, Where in a divorce or alimony proceeding the wife dismisses her action without the knowledge of counsel and without compensating them for their services, the said counsel, not having been parties to the action, are without authority to file a petition in error for the purpose of reversing the order of dismissal and interposing a motion for an allowance for counsel fees and expenses, to be paid to them by the defendant and to be made a charge against his property.
    2. While it is proper and the court has full power to make, on the motion of the wife, an allowance for her sustenance and necessary expenses, including reasonable counsel fees, such a motion does not lie where made, not by the wife but by counsel acting in their own behalf, and without leave of court.

      George B. Goodhart, Samuel L. Hagans, John W. Peck, for plaintiffs in error.
    Harmon, Colston, Goldsmith & Hoadly, contra.

       Affirming Stewart v. Stewart, 20 N.P. (N.S.), 273.

   Jones, P. J. .

In this proceeding- in error it is sought to review and set aside tbe action of the court of common pleas, division of domestic relations, in an action for alimony brought by Madge May Stewart, a wife, against Woodford T. Stewart, her husband, wherein it denied a motion filed by the attorneys of plaintiff on their own behalf for an allowance of counsel fees and. expenses to be paid them by defendant and to be made .a charge against his property, and granted a motion made by the defendant to dismiss said ease upon the payment by him of costs and enter a judgment of dismissal of said cause.

The facts of the case are stated in the opinion of the trial court which is reported under the name of Stewart v. Stewart, 20 N.P.(N.S.), 273, where the language of the motions upon which the court acted is given in full.

A motion to dismiss the petition in error was interposed here by defendant in error on the ground that plaintiffs in error were not parties to the case in the court of common pleas, and have therefore no right to file a petition in error to reverse any judgment or order made in said case in that court.

As the same questions are involved, the motion to dismiss was argued and submitted .along with the error proceeding itself.

According to the established practice no one can appeal from a judgment or decree, or bring a writ of error to review it, unless he was a party to the action below, or was made so either by an express order of the court to that effect or by being treated as such, or unless he is a legal representative of a party, or his privity of estate, title or interest appears from the record. (2 Cyc., 626.)

In Hanover v. Sperry, 35 O. S., 244, in the opinion of the court McIlvaine, J., said (p. 245):

“In general, a petition in error must be prosecuted by a party to the record.”

Section 5226, Revised Statutes, now Section 12224, General Code, which has been held unconstitutional in Wagner v. Armstrong, 93 O. S., 443, allowed appeals to be taken “by a party or other person directly affected, from a judgment or final order,” but there is no such provision as to error cases, and the rule is that error can ordinarily be prosecuted only by parties to the original action or their privies.

An exhaustive note with the citation of many cases on the right to prosecute error or appeal is found in the report of In re Switzer, 119 Am. St. Rep., 729. In it appears the following language:

“Both by the common law practice and that obtaining in chancery, a writ of error could be prosecuted or an appeal taken only by a party, and this is the rule both in the courts of the United States and in those of all the states purporting to give a right to appeal or to prosecute a writ of error to any party aggrieved. -Under these statutes third persons no matter how much they may be prejudiced by the judgment, decree or order, can not obtain its review by .appeal or writ of error. ’ ’

Among the many eases cited to sustain this position is Reid v. Quigley, 16 Ohio, 445.

The general rule is that an attorney can not, in his own name and on his own motion, appeal from a judgment or decree affecting the interest of his client. 2 R. C. L., 735; 2 Cyc., 639; 119 Am. St. Rep., 758; Nat’l Bk. v. Lanahan, 60 Md., 477; Besancon v. Brownson, 39 Mich., 388; Pereyra’s App., 126, Pa. St., 220; Stager v. Stager, 165 Ill., 579; Anderson v. Stager, 173 Ill., 112.

“A proceeding for alimony does not invoke the equity powers of the court, but is controlled by statute. The court s is only authorized to exercise such power as the statute expressly gives, and such as is necessary to make its orders and. decrees effective.” Marleau v. Marleau, 95 O. S., 162.

While the court is controlled by statutes and does not exercise general' equity jurisdiction in alimony cases (Dewitt v. DeWitt, 67 O. S., 340), it has full power under G. C. 11994 to provide for the wife’s sustenance and her expenses during the suit, but the allowance should be made to the wife. It is proper to include reasonable counsel fees — which may be fixed by the court for her attorneys — in the expenses allowed to her for their benefit. A motion for such .allowance, however, should bo made by the wife as a part of her necessary expenses, and in such event it is the province of the court and a duty owing by it to its own officers to see that their interests are protected.

A motion for the allowance of counsel fees and expenses was filed in this ease without any leave of court, not on behalf of the plaintiff but, as its terms clearly set out, it asked an order from the court to allow a reasonable sum to be paid by said defendant direct to them as compensation for their necessary and proper legal services, to be made a charge upon his real and personal property, .and also for certain necessary expenditures made by them as attorneys for plaintiff. The motion first stated that the plaintiff and defendant had agreed upon a settlement of the case — such statement being made possibly as a reason for filing the motion in their own names, although no leave was asked or given by the court — and the motion finally asked that the cause be not dismissed until such attorney fees and expenditures had been so determined .and paid. No claim was made that counsel were at that time acting on behalf of plaintiff but, although there is nothing in the record to show any direct communication to them from their client to such effect, they seemed to regard the notice of plaintiff’s desire to dismiss the cause, received by them from counsel for defendant, as .an effective withdrawal by her of their power to further act in plaintiff’s behalf.

The motion to dismiss the case was filed not by the plaintiff but by the defendant, but the record show's that an order or request was addressed to the clerk of the court of common pleas by plaintiff directing the dismissal of the cause upon the payment of court costs by the defendants or either of them, and directing further that the property attached by virtue of said suit be released without any charter of claim or lien against it. - -Plaintiff !s order was dated November 12, 1917, but was not .filed-in , the case until November 30, 1917, the motion to dis•miss having been filed November 15, and the motion for allowance-, of .counsel fees was filed November 14, 1917. Under the provisions of G-. C. 11586 plaintiff had power to dismiss her ■case at any time before its final submission.

. An exhaustive and able brief, has been filed by plaintiffs in error, citing 2 Nelson on Divorce and Separation, Sections 875 et seq., and many cases from other jurisdictions, to sustain their .position, that an attorney who appears for the wife and does •not look to her for compensation for his services has a right to proceed with an action for alimony with the assurance that a suitable fee will be awarded him by the court, unless his case is without merit or probable cause. This position is sustained by the text and by numerous cases from other states, notably Indiana and New York, but these cases are dependent upon the statutes of those states, which differ from the statutes of Ohio.

It is not deemed necessary to review the cases cited or to further discuss the question involved, inasmuch as the trial court has rendered a complete and admirable opinion which has been reported as above stated, and which fully meets the approval of this court. '

In a case brought by a wife against her husband where the attitude of the parties is dependent upon the varying moods of persons of opposite sex in the intimate relations brought about by marriage, and conditions make it impractical for counsel to secure themselves reasonable compensation, it would be the part of wisdom to protect their interests by an early application for an allowance of alimony pendente lite sufficient to afford them some remuneration for professional services, always more or less unpleasant for lawyers, but which while of great benefit and necessity to the client are often too lightly appreciated after results have been obtained.

It appears unfortunate that in this case the motion for such allowance was not duly presented on behalf of the wife before her determination to dismiss the ease had been concluded, but under the circumstances of the case as presented it would appear that the plaintiffs in error have a clear right as against the wife herself, and that the court below was without power to grant the order prayed for. -

This court is forced to the conclusion that plaintiffs have no standing here to review the judgment of the court below by their error proceeding in this ease, and the motion to dismiss must therefore be granted.

Wilson, J., and Hamilton, J., concur.


author: Farr, J.

text:
    DUTY OF LANDLORD WITH REFERENCE TO PREMISES ABANDONED BY TENANT.
    Court of Appeals for Mahoning County.
    Kate E. White v. George M. Smith.
    Decided, October 11, 1917.

      Landlord and Tenant — Abandonment of Premises by Tenant — Landlord Not Legally Bound to Relet.

    Where a tenant abandons the leased premises, the landlord is under no legal obligation to relet such premises, and in an action to recover the rentals accruing after such abandonment the tenant can not interpose as a defense want of reasonable diligence to re-rent the same.

      McKain & Ohl, for plaintiff in error.

      William, Zimmerman, contra.
   Farr, J.

This is a proceeding in error prosecuted in this court from the judgment of the Court of Common Pleas of Mahoning County. The parties sustain the same relation here as in the court below.

On tue 28th day of January, 1916, plaintiff in error began an action in the municipal court of the city of Youngstown against defendant in error to recover the sum of $168 and costs; the principal part of said sum for which recovery was sought was for certain installments of rentals falling due by the terms of a certain agreement in writing made and entered into between said parties for the period of one year, beginning on the 1st day of May, 1915, for the use and occupancy of certain premises belonging to plaintiff in error and situated at 360 Crescent avenue, Buffalo, N. Y.

To the statement of claim of plaintiff below, the defendant filed a statement of defense claiming that on or before the 31st day of October, 1915, he surrendered his lease to plaintiff, and delivered possession of said premises to her, and that such surrender was duly accepted and that thereupon plaintiff rented or could have rented said premises to another tenant at a rental equal to that specified in the lease. Trial was had and a judgment entered for plaintiff in the sum of $158.50. An appeal was taken to the court of common pleas of this county, where said cause was tried to a jury and a verdict rendered for the defendant upon which judgment was entered and from which error is prosecuted here.

There are two principal assignments for error: First, that the court erred in its charge to the jury; second, that the verdict is against the weight of the evidence. That part of the charge of the trial court for which error is assigned reads as follows:

“If he left the premises, then there was an obligation resting upon the plaintiff, and that obligation was in law that she should, in good faith, exercise due diligence in attempting to find a tenant; but, if she in good faith, exercised due diligence to obtain a tenant and failed to obtain one, then she can recover for this amount if she could not obtain a tenant until the first day of April, 1916. But if, on the other hand, she did not exercise good faith, and exercise reasonable diligence to obtain a tenant, then I say to you from the time she could have obtained a tenant, then she is not entitled to recover.”

The record discloses and it is conceded that the defendant, Smith, vacated said premises on or about the 22d day of October, 1915, but paid the rent to the 1st day of-November following. On October 25, 1915, James R. White, who in the rental of said premises, had acted as the agent of his sister, Kate E. White, wrote Mr. Smith inquiring as to what he purposed to do in regard to said lease, stating that as the same did not expire until the first of the next May, that he had- no other alternative than to hold him to the terms of the lease. The record discloses that an effort was made by Kate E. White or h'er agent to secure a suitable tenant but none was obtained and said premises were not relet until April 1, 1916, after which no rentals are claimed. Testimony was offered by the defendant for the purpose of showing that plaintiff consented to the surrender of said premises by defendant and that plaintiff failed to use reasonable diligence to relet the saíne, and it is also urged in argument, and in fact it is the principal issue raised, that when the defendant vacated said premises, it was the duty of plaintiff to use reasonable diligence to re-rent the same; or, in other words, it is claimed that if a lessee abandon the leased premises before the expiration of his term, it is the duty of the lessor to use reasonable diligence to relet said premises and if he fails to do so he can not recover the installments of rental accruing after such abandonment.

In 3 Sutherland on Damages, Section 844, p. 3111, it is provided that:

• “The landlord is under no obligation to rent premises which have been abandoned by a tenant.”

Numerous cases are cited in the note to and in support of the foregoing text. Likewise it was held in Gray v. Kaufman Dairy & Ice Cream Company, 41 N. Y. Supp., 73, as follows:

“Where a tenant abandons the demised premises, it is not the duty of the landlord to relet, in order to reduce his claim for damages against the tenant.”

To the same effect it is held in Merrill v. Willis, 51 Nebr, 162, 70 N. W., 914; Becar v. Flues, 64 N. Y., 518; Mfg. Co. v. Dinwiddie, 116 N. Y. Supp., 716; Milling v. Becker, 96 Pa. St., 182; Underhill v. Collins, 15 N. Y. Supp., 495; 132 N. Y., 269; 30 N. E., 576; likewise in 24 Cyc., 923, note 18, and Goldman v. Boyles, 141 S. W., 283, 6th paragraph of the syllabus.

And in Ran v. Baker et al, 118 Ill. App., 150, it was held that:

“Where a tenant wrongfully abandons demised premises, he can not interpose the want of diligence of his landlord in failing to re-rent the premises as a defense to an action for the rent accruing after such abandonment.”

The foregoing is well in point, with the instant case, in which the want of diligence on the part of the landlord to relet is sought to be interposed as a defense.

In the well considered case of Higgins v. Street, 13 L. R. A. (N. S.), 398, it is held that:

“If a tenant wrongfully abandons leased premises before the expiration of the term,' the landlord may, at his election, at once enter and terminate the contract and recover the rent due up to the time of abandonment, or he may suffer the premises to remain vacant and sue on the contract for the entire rent, or he may give notice to the tenant of his refusal to accept a surrender, when such notice can be given, and sublet the premises for the unexpired term for the benefit of the lessee to reduce his damages.”

The foregoing is clear and explicit and is supported by many cases of favorably recognized jurisdictions. And why not? A lessor and lessee enter into a valid contract for a fixed and definite period, during all of which the lessee is for some purpose the owner of the demised premises and may exercise dominion and control over the same, even to the exclusion of the lessor; therefor it is but fair that the lessor should rely upon him to do so. The lessee may rely and rest upon the letter of his contract, and occupy without let or hindrance to the end of his term; the lessor has equal rights and may depend upon the lessee to do so or pay his rentals just the same. The lessor may elect to do otherwise, and if able to secure a suitable tenant may relet such premises and under such circumstances it might be said would be morally bound to do so, as observed in Shipman v. Stone, 16 C.C.(N.S.), 468, as follows:

“It is the landlord’s moral duty, if not his legal duty, to ease the tenant by reletting for the best rent he can get, and his so doing does not of itself work ,a surrender of the lease. ’ ’

However, the landlord is in nowise legally obligated so to do. He may rest upon the terms of his rental agreement and leave the disposal of the demised premises for the remainder of the term at the option of the lessee. Said instruction might be further criticised for the reason that the jury might well have understood from it that the lessor was bound to relet said premises to any one willing to rent the same, whether such prospective lessee be desirable as a tenant or not, and in any event such is not the rule of law to be .applied.

Therefore, the above instruction by the trial court was prejudicial error. Application of the foregoing principles would necessarily work a reversal on the weight of the evidence, and tbe judgment is therefore reversed.'

Pollock, J., and Metcalfe, J., concur.


text:
    DETERMINATION AS TO OWNERSHIP OF RETAINED PERCENTAGES.
    Court of Appeals for Hamilton County. .
    Bolan v. The Mitchell Brick Co.
    Decided, July 6, 1915.

      Proceedings Against a Contractor in Aid of Execution — Retained Percentages Found to Belong to Contractor’s Wife — Homestead Claimed and Allowed — Concealment of Property by Debtor Which is Not in Custody of the Court.

    Thurber & Browning, partners, entered into a contract with the state of Ohio to build a road known as the New Richmond turnpike for the sum of $12,000, and thereafter assigned this contract to Mary B. .Bolán. The assignment was not made a matter of record, and $1,183.40 was paid to Thurber & Browning on account of work done on the road by Mary B. Bolán. Under the contract the state was to retain 15 per cent, of the estimates until the work was finally completed, and under this provision $208.85 was retained by the state.

      Held: In a proceeding in aid of execution to reach the property of John M. Bolán, husband of Mary B. Bolán, the $208.85 retained by the state was the property of Mary B. Bolán. Under the above-stated facts, the doctrine has no application that, where a debtor entitled to exemption in lieu of a homestead conceals money and property which he has a right to have at the time of the examination and has other property in the custody of the court, his concealment of property not in the custody of the court should be deemed to be an election on his part to take that property as a part of his claim in lieu of a homestead.

      Frank E. Wood and Charles Sawyer, for plaintiff in error.

      Froome Morris, contra.
   Gorman, J.

The defendant in error at the April term, 1913, of the common pleas court recovered a judgment against the plaintiff in error, John M. Bolán, for $755.49. Execution was issued and returned nulla tona. The judgment remained unpaid and unsatisfied. Thereafter, in the October term, 1914, defendant in error instituted proceedings in aid of execution against the plaintiff in error, making the German National Bank, the Gordon Engineering Company and Mjary B. Bolán, wife of the plaintiff in error, parties as garnishees, and the court enjoined the parties from disposing of any property in théir hands belonging to plaintiff in error.

A referee was appointed to take the testimony and report to the court, all of which was done, and the report filed. Among other things the report of the referee found that there w.as a credit due to John M. Bolán from the German National Bank of Cincinnati, of $283.05; and from the Gordon Engineering Company, $250.80. The referee further found that John M. Bolán had been carrying on a contracting business all his life, and during the last four years had been .apparently carrying on his business in his wife’s name. The referee further found that the defendant, John M. Bolán, and Mary B. Bolán, his wife, sought to make it appear that there was either no money due from the Gordon Engineering Company or that such as was due was due on account of work done by. the wife under her individual contract; and he found that both these contentions were utterly false.

After the report of the referee was filed there was a further hearing of evidence in the common pleas court, and it then developed that Thurber & Browning, partners, had entered into a contract with the state of Ohio to build a road known as the New Richmond Turnpike for the sum of $12,000; that Thurber & Browning had assigned their contract to Mary B. Bolán for the consideration of $800 and that she'had given her note to them for $800, payable when the work should be completed; that $1,183.40 had been paid by the state on account of this contract; and that Thurber & Browning had paid this money to Mary B. Bolán. The .assignment of the contract was not made a matter of record by tlie state, and the money was therefore paid to the original contractors, Thurber & Browning, and by them turned over to Mary B. Bolán. Under the contract the state was to reserve 15 per cent, of the estimates until the work was finally completed, and on account of the work finished there was retained by the state the sum of $208.85, which sum was not due at the time of the hearing, and would never be due unless the work was completed — or until the work should be finally completed and accepted by the state.

The common pleas court held that this $208.85 not yet due was the money of John M. Bolán, and the court further found that there was a credit due Bolán in the German National Bank, $283.05, and from the Gordan Engineering Company, $250.80. Bolán made demand during the progress of the trial to have the money on deposit in the German National Bank and the money due from the Gordon Engineering Company set off to him as exempt from levy and execution — he being a married man, the head of a family, and not the owner of a homestead. The court of common pleas held that the $208.85, the retained percentage of the state, belonged to Bolán, and that he had concealed this asset and by that act had elected to select that $208.85 as a part of his exemption in lieu of his homestead. The court allowed Bolán his exemption of $50)0 under the statute, but made the allowance as follows

Retained percentages ........................... $208.85
Due from Gordon Engineering Co................. 250.80
Making ........................................ $459.65

In addition thereto the court allowed from the amount of money on deposit in the German National Bank the sum of $40.35, to make up amount of the exemption in lieu of a homestead, $500.

We are of the opinion that the $208.85 was not the money of John M. Bolán, but that under the contract between his wife Mary B. Bolán and Thurber & Browning these retained percentages under the contract with the state of Ohio belonged to Mary B. Bolán, if they ever became due, which they were not at the time of the hearing. Mary B. Bolán may never realize anything out of these retained percentages; she can secure the retained percentages only if she completes the work on the New Richmond turnpike, and there remains more than $10,000 worth of work yet to be done on that job. Complications may arise which would prevent her from recovering these retained percentages even if the work were finished. We are of the opinion that even if this contract were John M. Bolan’s the retained percentages, not being yet due, would not be available for him as part of his exemption in lieu of a homestead.

There is no question but that Bolán is entitled to his $500 exemption in lieu of a homestead, and that amount should have been set off to him, as he selected, out of the funds in the German National Bank .and the money due from the Gordon Engineering Company. As to the retained percentages, if when they become due it should be found that the money belongs to John M. Bolán, the defendant in error is not precluded by the judgment ,and finding in this ease from subjecting that fund to the payment of its claim.

For the present it is sufficient to say that there should be allowed to Bolán, out of the moneys due from the Gordon Engineering Company and the German National Bank, $50|0. There will remain $33.85, which can be applied by the defendant in error upon its indebtedness.

The case cited by counsel for both plaintiff in error and defendant in error, Haslage v. Hoover et al, 16 C. C., 570, we think holds that where the debtor entitled to exemption in lieu of a homestead conceals money and property which he has a right to have at the time of the examination, and has other property in the custody of the court, that his concealment of property not in the custody of the court should be deemed to be an election on his part to take that property as a part of his claim in lieu of a homestead; but we do not think that case has any application to the facts developed in the case at bar.

There being no dispute as to the facts in this case we are of the opinion that a judgment should be entered in this court such ■as should have been entered in the court below, allowing Bolán $500 exemption, in lieu of his homestead, out of the moneys in the German National Bank and due from the Gordon Engineering Company, the excess over and above $500 to be allowed to the creditor, the defendant in error.

As to the retained percentages, under the contract for' the construction of the New Richmond turnpike, the court is of the opinion that the judgment of the court below should be reversed.

Judgment accordingly.

Jones (E. H.), J., and Jones (Oliver B.), J., concur.


author: Jones (Oliver B.), J.

text:
    EXPLANATION BY PAROL EVIDENCE OF AN AMBIGUOUS ENTRY.
    Court of Appeals for Hamilton County.
    James v. The Hotel Honing Co.
    Decided, February 28, 1916.

      .Evidence — Equivocal or Ambiguous Entry — May be Explained by Parol Evidence — Malicious Prosecution Upon the Charge of Defrauding an Innkeeper.

    1. In an action for malicious prosecution resulting from the arrest of plaintiff, caused by defendant, in the Municipal Court of Cincinnati, on the charge of defrauding an innkeeper, evidence was introduced by the testimony of the deputy clerk of the municipal court, who produced and identified the judge’s and clerk’s dockets of the municipal court, each of which showed the notation as to said case: “Dismissed for want of prosecution. Costs of ■warrant.” The trial court refused to permit the plaintiff to answer the question: “Were .you actually dismissed from that court?” Held: That it was error in the trial court to refuse to permit the plaintiff to testify as to the fact of his dismissal, considering the equivocal or ambiguous entry found in the journal.
    2. An equivocal or ambiguous entry appearing upon the docket or journal of a court may be explained by parol evidence.

      Philip & S. C. Roettinger and Harry B. Street, for plaintiff in error.
    Cogan, Williams & Ragland and Horace A. Reeve, for defendant in error.
   Jones (Oliver B.), J.

The parties stand in this court in the same position they held in the court below. The action is one by David J. James for malicious prosecution, resulting from the arrest of plaintiff in April, 1914, caused by defendant, in the municipal court of Cincinnati, on the charge of defrauding an innkeeper.

At the close of plaintiff’s testimony, the court, on motion of defendant, directed a verdict in its favor. These error proceedings are brought to secure a reversal of that judgment.

While it was said in Fortman v. Rottier et al, 8 Ohio St., 548, 550, that it was essential in an action for malicious prosecution that it must be shown not only that the prosecution complained of was at an end, but that “it must also appear that the plaintiff was acquitted of the charge,” the later cases of Douglas v. Allen, 56 Ohio St., 156, and Gaiser v. Hurleman, 74 Ohio St., 271, 275, hold that it is sufficient to show that the prosecution was legally terminated before the commencement of the action.

The final journal entry in the case in the municipal court, which was produced in evidence, is as follows:

“This cause coming on for hearing upon the affidavit and warrant filed herein, defendant being in open court and arraigned, and after examination the court do order said defendant to pay the costs of warrant. Cost paid.”

The court refused to permit the plaintiff to answer this question: “Were you actually dismissed from that court?” To this ruling plaintiff excepted and made tender of proof that plaintiff, if permitted to answer, would have stated that he was dismissed. Evidence was introduced, however, by the testimony of the deputy clerk of the municipal court, who produced and identified the judge’s and clerk’s dockets of the municipal court, each of which showed the notation as to said ease to be: “Dismissed for want of prosecution. Costs of warrant.”

Defendant below and the trial court evidently relied upon the case of Grosse v. Oppenheimer et al, 11 C.C.(N.S.), 374. That ease was decided upon demurrer, the petition alleging “that the said cause was terminated * * * by said plaintiff being obliged to pay the costs of said prosecution,” and the court there held that such an entry must be construed to mean “that she was found guilty of the charge and fined the costs.”

That ease however is not identical with the instant case. Here, while the journal entry is indefinite and ambiguous as to whether the court found that the defendant was guilty or not guilty of the charge made, the explanation given by the evidence offered, especially the entries in both the judge’s and clerk’s dockets, shows that the defendant was dismissed. This evidence was admitted without objection or exception from the defendant, and it was competent.

“Although the usual method of proving the proceedings of a court is by record as completed and extended, it has frequently been held that the minutes or memoranda upon the docket of the clerk of the court or the magistrate are competent evidence of an order or proceeding in court, in case the extended record has not been made. The docket is the record, until the record is fully extended; and the same rules of verity apply to it as to the record. Every statement therein is deemed to have been made by the direction of the court.” 3 Jones Commentaries on Evidence, Section 621.

See also W., A. & G. Steam-Packet Co. v. Sickles et al, 24 How. (65 U. S.), 333.

In the opinion of this court it was' error in the trial court to refuse to permit the plaintiff to testify as to the fact of his dismissal, considering the equivocal or ambiguous entry found in the journal. It seems well settled that such an entry may be explained by parol evidence. 1 Freeman on Judgments (4th Ed.), Sections 273, 274 and 275; Russell v. Place, 94 U. S., 606, 608; Leopold v. City of Chicago, 150 Ill., 569, 574; Lyman v. Becannon, 29 Mich., 466; Walker v. Chase, 53 Me., 258, and Foye v. Patch, 132 Mass., 105.

As to the right to explain a judgment by parol evidence, see also Parsons v. Ohio Pail Co. et al, 6 C.C.(N.S.), 116.

The court erred in directing a verdict for the defendant, and the judgment is therefore reversed ,and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

Jones (E. H.), J., and Gorman, J., concur.