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    Long v. Newhouse et al.

      BUI of exceptions — On overruling of motion for new trial — Must be presented to opposite counsel — Trial judge loses jurisdiction over subject-matter, when — Rule as to voluntary submission to jurisdiction.

    1. A bill of exceptions taken on the overruling of a motion for a new trial, must be presented to opposite counsel for examination and to the trial judge for his signature, in the time prescribed by statute. If this is not done, the trial judge loses his jurisdiction over the subject-matter, and his approval and signature thereafter against the objection of the opposite counsel is of no avail. And this is not varied by the fact that prior thereto, but after the time for its presentation to opposite counsel and to the trial judge, had elapsed, a stipulation had been signed by the former, authorizing the judge to sign the bill, but was withdrawn before-its presentation to the judge.
    2. In order to enable a defendant to object to the jurisdiction of the court over his person, the objection must be made at the earliest opportunity of the party. If before making such objection, the party appears and makes a motion that the plaintiff be required to attach an account of the items of his claim to his petition, or, that he be required to separately state and number his causes of action, or, that he be required to strike certain matter from his petition, in either of these cases, the party voluntarily submits himself to the jurisdiction of the court, and he cannot afterwards be heard to object thereto.
    (Decided December 17, 1897.)
    Error to the Circuit Court of Clark county.

      Keifer & Keifer, for plaintiff in error.
    The circuit court erred in not dismissing the petition in error.
    I. A reversal of the judgment would subject Warbington to a new trial with his answering co-defendants.
    Warbington was a necessary party to give the court jurisdiction over the subject-matter and to reverse or modify the judgment. Burke v. Taylor, 45 Ohio St., 444; Abair v. Bank, 3 Ct. Ct., 230.
    In the case at bar, Warbington was liable-to have a judgment in his favor set aside. Jones v. Marsh, 30 Ohio St., 20; Tod v. Stambaugh, 37 Ohio St., 469.
    The Smetters-Rainey case, 14 Ohio St., 287, has been scolded at in Bradford v. Andrews, 20 Ohio St., 208; Bank v. Greene, 40 Ohio St., 431, and attempted to be limited or distinguished in Secor v. Whitter, 39 Ohio St., 218; King v. Bell, 36 Ohio St., 460; Wangerine v. Aspell, 47 Ohio St., 250. And cited and followed in Bever v. Beadmore, 40 Ohio St., 70; Hempy v. Ransom, 33 Ohio St., 312; Hammond v. Hammond, 21 Ohio St., 620; Robinson v. Orr, 16 Ohio St., 284.
    Cases are numerous holding all parties below must be parties to a petition in error. Veach v. Kean, 41 Ohio St., 179; Railway Co. v. Thurston, 44 Ohio St., 525; Buckingham v. Bank, 21 Ohio St., 131; Creed v. Bank, 1 Ohio St., 1; Page v. McConville, 10 Ct. Ct., 316.
    But did Warbington enter his appearance after it was too late to serve him with a summons, and thereby give the circuit court jurisdiction in the error case? King v. Penn, 43 Ohio St., 57.
    All the cases hold that the proceeding in error must be commenced by a service of summons or a waiver within the time limited by law. McGuire v. Ramsey, 49 Ohio St., 372; Bowen v. Bowen, 36 Ohio St., 312; Miranda v. Dowling, 4 Ohio St., 500; Ry. Co. v. Hopkins, 19 Ohio St., 279; Ry. Co. v. Wicks, 35 Ohio St., 247; Piatt v. Sinton, 35 Ohio St., 282; Cisna v. Beach, 15 Ohio St., 300.
    This action is deemed commenced as to each defendant at the date the summons is served on him. Revised Statutes, section 4987; Sidener v. Hawes, 37 Ohio St., 544.
    II. The circuit erred in not striking the bill of exceptions from the flies.
    The plaintiff, Long’, moved the court to strike the bill of exceptions from the files for the reasons:
    First — That it was not presented to his counsel, or to him, for examination until the expiration of more than forty days after the overruling of the motion for a new trial.
    Second — That it was not presented to the trial judge, etc., until after the expiration of forty-five days from the overruling- of such motion. Revised Statutes, section 5302.
    The judge should have refused to allow and sign the bill, and his allowance and signing was illegal, without jurisdiction, and conferred no right on the circuit court to consider it. Pugh v. State, 51 Ohio St., 116; Gibb v. Townsend, 9 Ct. Ct., 409; Shillito v. Thacker, 43 Ohio St., 63; State ex rel. v. The Judges, 53 Ohio St., 430.
    The bill not having been presented to opposite counsel or the trial judge within the time fixed by law, the latter had no jurisdiction to sign or allow it. Newman v. Becker, 54 Ohio St., 323; Josse v. Decker, 54 Ohio St., 656; Palmer v. Olcutt, 9 Ct. Ct., 227-9; City v. Preston, 50 Ohio St., 361; King v. Penn, 43 Ohio St., 57; Hemgartem v. McLean, 38 Bull., 182; Wagner v. Ziegler, 44 Ohio St., 59; Bowen v. Gazley, 8 Ct. Ct., 256; Randin v. Sanderson, 35 Ohio St., 482.
    The paper did not undertake to waive the lost jurisdiction, nor to authorize the court to allow the bill at any time. The allowance of a bill is quite as essential as the signing. Railroad v. Kirchner, 6 Ct. Ct., 211; Hill v. Bassett, 27 Ohio St., 507;
      Heffner v. Moyst, 40 Ohio St., 112; Meyer v. Schraeder, 6 Bull., 698.
    But the parties cannot, even by consent, waive the requirement of the law as to time for the signing of the bill of exceptions. Palmer v. Olcutt, 9 Ct. Ct., 269; Young v. Shallenberger, 53 Ohio St., 291.
    Parties to a suit cannot, by contract, require the court to try their cause contrary to law and established rules. All such contracts are void. Gittings v. Baker, 2 Ohio St., 21.
    But there was no bill of exceptions presented to Garroute or his counsel at any time, and there is no pretense that he or his counsel made any attempt to waive anything in relation to it.
    The common pleas court may find facts on its journal, and if a party makes no objection to the Endings, he is bound by them. Revised Statutes, sections 5205, 5300, 5301; Carpenter v. Warner, 38 Ohio St., 416. Britton v. Bundy, 14 Ct. Ct., 532-5.
    The finding need not be at the request of either party. Harner v. Batdorf 35 Ohio St., 113; Ry. Co. v. Karnochan, 55 Ohio St., 321.
    The right to examine a bill of exceptions to see whether it was presented in due time is recognized in Heddleson v. Hendricks, 49 Ohio St., 297.
    There was no authority to file the copy or any stipulation. There was no pending action wherein to file it., We submit that the circuit court had nothing before itrelating to an agreement. Without proper identification the paper is no part of the bill. Busby v. Finn, 1 Ohio St., 409; Hickson v. Person, 19 Ohio, 426; Railroad Co. v. Mackey, 53 Ohio St., 370.
    The counsel for Long did not attempt to consent to the use of any part of the last ten days of the fifty for the examination of the hill as is absolutely necessary, if consent is good in any case. Gibbs v. Townsend, 9 Ct. Ct., 409.
    The paper thus inadvertently signed was almost immediately withdrawn, and no rights were acquired or lost by any party by reason of its being signed. Taylor v. Hunt, 9 Ct. Ct., 426.
    All stipulations between counsel as to the conduct of a case rest on the doctrine of estoppel in pais, that is, on their leading’ a party to do something to his injury which he would not have done. 1 Thompson on Trials, sections 193, 200, 361; Bingman v. Supervisors, 6 Minn., 136; Seely v. Cole, Wright’s Rep., 681.
    Agreements made out of court, not entered of record, are not enforceable. Bank v. Clark, 28 Vt., 325.
    The circuit court had no right to look at the press copy as a paper in the case, and it is as we have seen, no part of the bill of exceptions. Challen v. Cin., 40 Ohio St., 113; Young v. State, 23 Ohio St., 578; Ins. Co. v. Breeheisen, 50 Ohio St., 546.
    Stipulations of counsel which can only be withdrawn on application to the court are such as belong to the files and relate to the conduct of a pending action or proceeding’. Ish v. Crane, 13 Ohio St., 580; Garrett v. Hanshaw, 53 Ohio St., 482.
    ÍII. The circuit court erred m holding the common pleas court erred in sustaining plaintiff’s motion to strike out part of the first defense of the answer. No separate issue, -such as could be tried to a jury, was tendered, as to plaintiff’s right to sue the answering defendants with Taylor, the defendant, served in Clark county.
    The first defense is not a good plea to the jurisdiction. It does not state the residence of the answering defendants, and it is otherwise defective. 1 Ency. Pl. and Pr., p. 6.
    A plea in abatement, involving the jurisdiction of the court over the person of the defendant, must precede a plea to the merits, and such plea will not be allowed after or with a plea to the merits.
    1 Ency. Pl. and Pr., p. 32.
    The members of an unincorporated company are liable for a debt contracted by them, even though the creditor agreed it should be paid from a particular fund, provided they so act as to prevent the fund from being made good. Warner v. New Orleans, 167 U. S., 467.
    All the members of an unincorporated association are proper .parties. Higdon v. Gardner, 2 C. C., 340; DeVoss v. Gray, 22 Ohio St., 159; Sheehy v. Blake, 72 Wis., 159, 169; Ray v. Power, 34 Mass. 22; Becker v. B.B. Sy., 22 Alt., 699.
    When an action is rightly brought in any county a summons may issue to any other county for one or more defendants. Revised Statutes, section 5038.
    Taylor was, as the pleadings show, a necessary party; this being true, the suit was properly brought in Clark county. Revised Statutes, sections 5074, 5076, 5013. The' law is different from what it was before the Code. Swan’s Old Statutes, p. 652; Section 7 — Practice of the Courts.
    Clearly, before the answer was filed, the defendants in error had, in many ways, entered their appearance to the petition by invoking the action of the court in relation to the merits of the case. Revised Statutes, 5043.
    A motion to vacate a judgment enters a party’s appearance. Watson v. Pain, 25 Ohio St., 340.
    Obtaining leave to answer affects an appearance of a defendant. Brundage v. Biggs, 25 Ohio St., 652.

      So a motion to strike papers from the files. Maholm v. Marshall, 29 Ohio St., 611.
    So a demurrer to a petition. Evans v. Ilges, 7 Ohio St., 238; Abernathy v. Jenkins, 19 Ohio St., 286.
    So a motion to dismiss for want of security for costs. Schaeffer v. Waldo, 7 Ohio St., 309.
    A motion to dismiss for want of jurisdiction, of the court over the subject matter of the action enters a party’s appearance. Handy v. Ins. Co., 37 Ohio St., 366; Smith v. Hoover, 39 Ohio St., 249.
    A defendant enters his appearance by requiring the petition to be amended. O'Neal v. Blessing, 34 Ohio St., 34.
    A motion to strike from a petition certain averments enters the defendant’s appearance. Rd. Co. v. Morey, 47 Ohio St., 207.
    A mere notice of an intention to appeal a case enters a party’s appearance. Mason v. Alexander, 44 Ohio St., 318.
    Filing a bill of particulars enters appearance. Godfred v. Godfred, 30 Ohio St., 53.
    The motion to quash the service of the summons and the summons had the effect to give the court jurisdiction of the defendants making them. Elliott v. Lawhead, 43 Ohio St., 171; Ry. Co. v. McLean, 1 Ct. Ct., 112.
    The defendants, Harrod and Long, entered their appearance first, November 2, 1893, by uniting with the other defendants in error in filing a motion to strike out parts of the petition. And all the defendants in error effectively entered their appearance by thereafter obtaining leave to file and by filing motions to the petition; and by obtaining leave, March 5, 1894, to answer generally.
    When a defendant obtains leave generally to answer, he will be held to have leave to plead only to the merits of the case, and to have waived all objection to the court’s jurisdiction over his person.

      Ice Co. v. Wiggins, 32 S. W., 58; Schaeffer v. Smith, 7 Ohio St., 309; Wells v. Patton, 50 Kansas, 732; 35 Federal Rep., 469.
    A defendant must, in all cases, embrace the first opportunity to object to the jurisdiction of the court. Fee v. Iron Co., 13 Ohio St., 563; Allen v. Miller, 11 Ohio St., 379; Rd. Co. v. Belle Centre, 48 Ohio St., 292; 1 Ld., Raymond. 21.
    "Where the objection is as to the court’s jurisdiction over the subject-matter of the cause, the rule is different and may not be waived. Steamboat Buell v. Long, 18 Ohio St., 521.
    There are also many cases where the Record showed the court had no jurisdiction over the persons of the defendants when judgments were entered, yet on their subsequently making a motion or giving a notice in the case, they are held to have waived the question of jurisdiction of the court to render the judgments. Marsden v. Soper, 11 Ohio St., 503; Shafer v. Hochheimer, 36 Ohio St., 215.
    The defendants must be conclusively held to have taken leave to plead to the merits of the case alone. Volume 2, Ency. Pl. and Pr., 597.
    If defendants had interposed their objection on the first opportunity the plaintiff might have found and availed himself of an opportunity to have served some one or more of the answering defendants in error in Clark county. Belknap v. Charlton, 25 Oregon, 41; Gans v. Beasley, 59 N. W., 714; Sicote v. Buck, 1515 So. Rep., 531; 2 Ency. Pl. and Pr., p. 626.
    There are, however, many authorities which hold that if an objection is made and overruled to the jurisdiction of the court over the person of the defendant, he must stand on the objection, or he will be held to have waived it by thereafter pleading to the merits. Volume 2, Ency. PI. and Pr., pp. 633-43.
    But this is not the rule in the United States courts and in New York and some other states. Harkness v. Hyde, 98 U. S., 476; Pac. Co. v. Denton, 146 U. S., 202; volume 2, Ency. Pl. and Pr., 630.
    All these cases, however, agree that the party must appear in the first instance solely to attack the jurisdiction over his person, otherwise his appearance will be entered and all objections to jurisdiction over him will be waived. Callender v. Gates, 45 Ills., App. 374.
    A motion by a non-resident defendant to dismiss a bill for want of jurisdiction over him and for want of equity, amounts to a voluntary appearance for all purposes. Jones v. Andrews, 10 Wall., (U. S.) 327.
    Where the record shows there was an appearance in the absence of any qualification, it must be held to be a general appearance. 2d volume, Ency. Pl. and Pr., pp. 597-8. Also same, page 612.
    And see also specially as to the necessity of a non-resident objecting in the first instance to the court’s jurisdiction over him. Post v. Brownell, 36 Iowa, 630; Volume 2, Ency. Pl. and Pr., p. 620; Ry. Co. v. Ry. Co., 64 N. Y., 176; Lowe v. Stingham, 14 Wis., 222; Reed v. Chilson, 146 N. Y., 152; New Jersey v. N. Y., 6 Pet., 283; Renand v. Abbott, 116 U. S., 277.
    If a party wishes to insist upon the objection that he is not in court, he must keep out for all purposes except to make that objection. Lowe v. Stingham, 14 Wis., 222; 2 Ency. Pl. and Pr., p. 625.

      The burden of counsel’s talk rests on the claim of hardship that a party would be subjected to if he were not permitted to attack the summons and pleadings before raising the question of jurisdiction over his person. This does not, in the light of reason and the authorities, amount to an argument against the settled rule of law that a party must, at the first opportunity (or never), object to the court’s jurisdiction over him.
    It is, however, quite questionable whether, as claimed by counsel, section 5064 of the statute, as it now reads, permits an answer, denying a joint liability of the defendants. That section authorizes a defendant to allege by answer only “defects enumerated in section 5062.”
    Section 5064 materially differs from the old practice act, section 7. 4 Ohio St., 437; Swan’s Old Statutes, 652. The sections of the statute relating to venue, which take the place of sections 53 and 58 of the Code are 5031 and 5038.
    Some sort of argument is sought to be deduced by reference to section 5311. That section did not change the liability of parties on obligations. Roby v. Rainsberger, 27 Ohio St., 674.
    The defendants in error being found liable in this action there was no reason why judgment should not go against them, though none was entered against other defendants, who (like Taylor, the resident one) by failure to answer, admitted their liability. Revised Statutes, sections 5311 and 5081.
    The common pleas may have erroneously submitted to the jury the question of Taylor and other non-answering defendants’ liability. If so, plaintiff might have taken a judgment against such defendants non obstante veredicto. Revised Statutes, section 5328; Tootle v. Clifton, 22 Ohio St., 247; Buckingham v. McCracken, 2 Ohio St., 287.
    It is not a defense to the merits of an action to deny the right of the court to render a judgment against a party for want of jurisdiction over his person; and such jurisdiction must be tried and disposed of on a plea in abatement before the general merits of the case can be gone into. Mexiell v. Kirkpatrick, 29 Kas., 485, 487-9; Wells v. Patton, 50 Kas., 732; Daniels v. Patterson, 3 N. Y., 47.
    That which defeats the suit and does not conclude the plaintiff from maintaining an action on the cause stated must be first disposed of on plea in abatement. Waterman v. Tuttle, 18 Ills., 92-3; Cuthbert v. Galloway, 35 F. S., 469; Scott v. Sanford, 19 How., 393, 400; 1 Chitty’s Pl., 444, 446.
    Pleas in abatement, in form and name, are now abolished in Ohio, 42 Ohio St., 299, yet when, by answer, a like defense is allowed, it must be disposed of the same as a plea in abatement under the former practice. Such plea could not be coupled with any other and was always disposed of first. Myers v. Erwin, 20 Ohio, 381.
    And defendants having' once required the court to adjudicate questions not involving its jurisdiction over them cannot afterwards ask it to go back and inquire as to such jurisdiction. Floyd v. Gibbs, 34 S. W., 154.
    A non-resident of the county where the suit is brought waives all objection to the court’s jurisdiction over him by pleading to the merits or the general issue before raising the question of jurisdiction. Webb v. Goddard, 46 Me., 505; Muth v. Cutter, 50 Me., 298; Fields v. Ry. Co., 30 S. W., 255; Meade v. Warring, 35 S. W., 308; Tignor v. Toney,
      35 S. W., 881; Anderson v. Irvine, 50 Ky., 341; Hewitt v. Story, 39 Fed., 158; Farmington v. Pittsburgh 114 U. S., 138; Hertog v. Memory, 116 U. S., 588. The rule that a plea based on residence must disclose the party’s place of residence does not rest alone on the necessity of showing that some other court in the state had jurisdiction. 1 Ency. Pl. and Pr., p. 6; Heyman v. Covell, 36 Mich., 157; 1 Chitty’s Pl., 444; State v. Miller, 7 Dec., 552-5.

      Chas. Darlington and Bowman & Bowman, for defendants in error.
    The common pleas court erred in sustaining Long’s motion to strike out part of the first defense of defendant’s answer.
    The defendants cannot now wait until after verdict to set up the fact of their non-residence, since that fact is one which, if denied, the parties are entitled to have tried by the jury, and the same must be submitted to the jury on the trial of the merits of the action. Drea v. Carrington, 32 Ohio St., 595.
    If not taken by answer the objection is deemed to have been waived. Revised Statutes, section 5064.
    As was said by this court in Smetters v. Rainey, 14 Ohio St., 287, section 371 of the Code, now Revised Statutes 5311, relates solely to the termination of the action, and its object was only to regulate the method of procedure. It was not intended to change the venue of joint causes of action nor to affect the jurisdiction of the court therein. ,
    The Code provides, Revised Statutes, 5064, for the taking of such objection by answer, and specifies when the same shall be deemed waived — “and if no objection be taken either by-demurrer or answer, the defendant shall be deemed to have waived the same. ’ ’

      Allen v. Miller, 11 Ohio St., 374, is a strong-authority supporting the express provisions of the Code as to when such objection shall be deemed waived.
    In Vanderburg v. Clark, 22 Vt., 185, the statute provided that if the party did not reside in the state, he could be sued in any county where found and a plea by a defendant served in the county where the action was brought that he did not reside in that county was held defective for not showing that he did reside in some other county in the state. Lester v. Stevens, 29 Ill., 155.
    The suggestion of plaintiff in error that Taylor, the only defendant residing or found in Clark county, was a necessary party, because he was a member of the Christian Educational Society, is equally unsound. DeVoss v. Cray, 22 Ohio St., 159.
    Taylor was not even a proper nominal party in an action on a joint promise in which he did not join, and the resident defendant in cases such as the one at bar must have a real, substantial interest adverse to the plaintiff and be one against whom judgment can be rendered. Thompson v. Massie, 41 Ohio St., 307.
    The common pleas erred in overruling the motions of defendants to strike out parts of plaintiff’s petition.
    That a majority of such a church committee or society would have no power to dissolve, it is clear.
    If these twelve retired from the society, it was the right of those remaining-, under the power the petition alleges they possessed, to fill the vacancies and proceed, which was done in this ease by the plaintiff in error and his associates, as the bill of exceptions shows.
    It is not averred, and could not be truthfully, that the society, or these defendants, had obtained any donations or subscriptions, or that they had any means whatever with which to pay plaintiff. The charge simply is that they had solicited subscriptions and donations and that they fail and' neglect to collect and apply the same to the plaintiff’s claim.
    The plaintiff himself is, and always was, a member of the society, and as such was and is, just as much obliged to solicit and collect donations and pay himself, as are the defendants to perform that service for him.
    If, as charg-ecl in the former parts of the petition, the defendants induced him to incur the alleged expenses on the faith of their promise to repay him, they would be liable on that promise; but, if they did not do so, they would be under no liability to him; and the portion of the petition asked to be struck out throws no light whatever on the question, and has no proper connection with the other allegations of the petition.
    The date of their alleged attempt to dissolve is about a year after plaintiff’s last payment of college expenses. How long should they serve the plaintiff without reward and at their own expense in endeavoring to collect money to repay him for expenses of his college which he had contracted and paid without their authority or approval?
    That the members óf such a committee or society are not individually liable for its obligations unless they participate in creating them is abundantly settled. Cheeney v. Clark, 3 Vt., 431; McCabe v.
      Goodfellow, 133 N. Y., 89; Higdon v. Gardner et al., 2 C. C. Rep., 343.
    In each of the above cases the ground on which an individual liability was claimed is much stronger than in the case at bar; for in each of those cases the society or committee was the principal in the undertaking in question, while the Christian Educational Society was a mere auxiliary or “aid” to Antioch College.
    The action of the common pleas in holding defendants in error personally liable to plaintiff simply on the ground that they, about a year after his last payment of expenses was made, attempted to dissolve the society and fail and neglect to collect money to pay him, is clearly erroneous, and such error is the only explanation of the verdict which was rendered.
    The circuit court did not err in refusing to strike from the files the bill of exceptions.
    An attorney may do anything relating to the mode of procedure, or pertaining to the remedy. Gaillard v. Smart, 6 Cowen, 383.
    He can waive the right of appeal. Pike v. Emerson, 5 N. H., 393.
    A stipulation by a party extending the time to file a statement was disregarded by the court, because he had an attorney of record, and he alone had power to make such a stipulation. Mott v. Foster, 45 Cal., 72.
    An attorney may waive any technical advantage. Gorham v. Gale, 7 Cowen 739.
    Even oral stipulations when acted upon, are binding notwithstanding rule of Court requiring' stipulations of counsel to be in writing. 1 Thompson, Trials, S., 200; People v. Stevens 58 N. Y., 306.

      When the stipulation has been reduced to writing, signed and delivered, it is from that moment binding and neither party can retract. Haskell v. Whitney, 12 Mass., 49.
    The court will not set aside such a stipulation because such a party has inadvertently waived an advantage. McCann v. McLemmon, 3 Neb., 25; Bingham v. Supervisors, 6 Minn., 82; 1 Thompson, Trials, S., 194.
    When counsel put on an entry reciting that bill of exceptions was signed and allowed during term, they are estopped to show the contrary. Potter v. Meyers, 31 Ohio St., 103.
    No objection or exception was taken on the claim that the bill was not presented to the judge for examination in forty five days; but, if such had been the case, the judge may waive the presenting of the bill to him within forty-five days. Cincinnati v. Steadman, 8 C. C. Rep., 407.
    The objection that the bill of exceptions was not presented to opposite counsel in time is not properly presented- by the record in the case.
    Now, it seems clear the bill cannot be regarded as part of the record for one purpose and not for another. The facts showing the bill is not properly made part of the record must be disclosed in some proper way outside of the very bill sought to be struck from the files..
    There is no authority for a finding of facts in such an entry, and therefore on an error, such finding must be disregarded. Railway v. Thurstin, 44 Ohio St., 525.
    The plaintiff should have embodied his exception with the evidence on which he claimed it arose in a bill of exceptions taken by him under the statutory provisions.
   Minshall, J.

This proceeding in error arises out of a suit that was brought by Daniel A. Long, iu the common pleas of Clark county, against S. S. Newhouse and others, who, with the plaintiff, were members of an association called the Christian Educational Society of the Christian church, organized to raise funds and aid in carrying on the cause of education at Antioch College.

The plaintiff sought to recover against the defendants the sum of $1,554, for money paid out and expended by him, for the use and purposes of the society, at the request of the defendants, and which they had agreed to pay him. An answer was filed and a reply thereto, on which issues were made up and tried to a jury. A verdict was rendered for the plaintiff. A motion for a new trial was made and overruled, March 18, 1895, and fifty days were then given the defendants in which to prepare and file a bill of exceptions.

It appears from the entry allowing the bill, that it was not presented to opposing counsel until May 3d, following, that counsel objected to its being allowed and signed for the reason that it had not been presented to him for examination in time, but the court allowed and signed it, and ordered it made a part of the record, on May 4, 1895, forty-seven days after the overruling of the motion. On error, the judgment was reversed by the circuit court, for the reason, among other things, that the verdict was against the evidence. The plaintiff in error here, claims that the bill of exceptions is not part of the record of the common pleas, for the reason that it was not presented to opposite counsel for examination, nor to the trial judge for his signature, in the time required by the statute, sec. 5302, Revised Statutes. It is necessary that this question should be disposed of in limine; for, if the bill is a part of the record, then under the established rule of this court, the judgment of the circuit court must be affirmed without passing on the other errors assigned. If it is not a part of the record, then the judgment should be reversed, as the court did not have before it the evidence to pass on, unless there are other errors for which the judgment should have been reversed by the circuit court, and assigned by it as a ground of reversal.

That the bill of exceptions is no part of the record of the common pleas subject to review, is clearly settled by the recent decision in Neuman v. Becker, 54 Ohio St., 323. It was not submitted to opposite counsel for examination, nor to the trial judge for his signature, in the time required by the statute. In the case just referred to, it is held? that these requirements are mandatory, and if not observed, the judge loses his jurisdiction over the subject-matter. Hence, the paper, purporting to be a bill of exceptions, is of no validity whatever as a part of the record. But it is claimed, that this was remedied by a stipulation in writing, signed by the attorney of the plaintiff, on May 3, 1895, and filed with the papers in the case. That stipulation is as follows: “It is agreed that defendant’s bill of exceptions may.be at once signed by the court, and any controversy in regard to correctness thereof, shall be determined by the said judge within the nexttwentjr days, the same as though, the same had not been sigmed May 3, 1895.” Signed by the attorneys of both parties. This, however, is no part of the record in the case; and, if we look to the bill of exceptions for its history, it in no way aids the defendant in error. It in no way estops the plaintiff below from insisting- that the bill of exceptions is no part of the record.' It was not entered into before the time for presenting- the bill to opposite counsel or to the court, had expired, hence it can in no way be claimed to have influenced counsel in not attending to the matter sooner than he did. It cannot then be relied on as an estoppel. The time had passed for the preparation and allowance of a bill of exceptions, before any steps had been taken by counsel; and, by the defendant’s delay, uninfluenced by any action of the other side, the court had lost jurisdiction over the subject-matter of a bill of exceptions. There was, then, nothing- to prevent the opposite counsel from recalling his assent to the stipulation, which was done in a few minutes after, on its being shown to the senior member of the plaintiff’s counsel, and before it was presented to the court. But whether this assent had been withdrawn or not, the result would be the same. The trial judge had lost his jurisdiction over the subject-matter, and he could not be again clothed with this by the consent of parties. Reason requires that the contents of a bill of exceptions should be determined in a reasonable time after the motion for a new trial had been overruled; and it is therefore contrary to the policy of the law to permit parties to extend the time for preparing and settling it beyond the time fixed by the statute.

The question then remains, whether there is any error in any of the other assignments on which the circuit court reversed the judgment of the common pleas. It is claimed, that the common pleas erred in overruling a motion of the defendant to Strike out a portion of the petition, and, also, erred in sustaining a motion of the plaintiff’s to strike out a portion of the answer. These assignments are both sustained by the circuit court and stated as grounds for reversing the judgment.

1. We fail to perceive that there was any error prejudicial to the defendant in the court refusing • to sustain the motion to strike out portions of the plaintiff’s petition. The petition may contain some irrelevant matters, but they could not have prejudiced the defendant in making a defense to the plaintiff’s claim, that the defendants were indebted to him for money paid out and expended at their request, and which they had promised to pay him. So far as the motion went beyond immaterial matter, it was in the nature of a demurrer, and should not therefore have been sustained as a motion. It is not competent by motion to ■ strike out averments in a petition, material to the cause of action, and in this way defeat a right of recovery. Such matters must be met by answer.

2. Did the court err in sustaining the motion to strike out a portion of the first defense of the answer ? This is the more important question, as it raises the question of the court’s jurisdiction over the persons of the defendants. The matter asked to be stricken out-is as follows: “That they, and each of them, and all of the defendants herein, excepting Alexander E. Taylor, are non-residents of Clark county, Ohio, and were such non-residents at the time of, and ever since the filing of plaintiff’s petition, and that none of said defendants, excepting said defendant, Alexander E. Taylor, were served with summons in this action in said Clark county.” And also the following: “Wherefore, these answering defendants, say this court is without jurisdiction to render a judgment against them or any of them in this action.” The defense as an entirety, reads as follows:

“That they, and each of them, and all of the defendants herein, excepting Alex. E. Taylor, are non-residents of Clark county, Ohio, and were such non-residents at the time of, and ever since the filing- of the plaintiff’s said petition, and that none of said defendants, excepting said defendant, Alex. E. Taylor, were served with summons in this action in said Clark county, and said defendants further answering, deny that said Alex. E. Taylor, jointly with these defendants, or with any of them, or otherwise, ever authoiized the plaintiff to contract, assume, or pay any debts or obligations on his behalf, or promised or agreed to pay such debts or obligations, or to reimburse the plaintiff any money paid out by him on account thereof, or ratified, approved or promised, to pay the alleged claims of the plaintiff set up in his petition or any part thereof. Wherefore, these answering defendants say, this court is without jurisdiction to render a judgment against them, or any of them, in this action.”

The gist then of this defense is, that the court has no jurisdiction of the persons of the defendants, not residing in Clark county, on the ground that Taylor, the party served with process in Clark county, the venue of the action, is in no way liable with the defendants on the plaintiff’s cause of action. It is well settled, that while such a defense may be made by answer, as appears from Allen v. Miller, 11 Ohio St., 376, and Drea v. Carrington, 32 Ohio St., 595, yet, if made, it must be at the very threshold of the defendant’s appearance to the action. The reason is a plain one. If a party may at the same time invoke the jurisdiction of a court on the merits of an action, and deny its jurisdiction over his person it would work great injustice. He could, under such practice, if the judgment on the merits is in his favor, avail himself of it as a bar to another action, but if it should be against him, he could set it aside for want of jurisdiction of his person. Hence it is said, that, “If a party wishes to insist upon the objection that he is not in court, he must keep out for all purposes except to make that objection.” In Allen v. Miller, the court is careful to observe that Miller embraced the first occasion which offered, to-wit, in his answer, to assert his objection to the jurisdiction of the court; and distinguished the case from that of Evans v. lies, 7 Ohio St., 234, where the defendant had previously filed a demurrer, and, although withdrawn, had, as the court held, subjected the defendant to its jurisdiction. And, commenting on the withdrawal of the demurrer,1 the court said: “It ceased to be of any consequence in the case; but as a fact, the evidence of which was indelibly fixed on the journal of the court, and constituting of itself an appearance in the case, it was as significant and as operative after the demurrer was withdrawn as it was before.”

It appears from the record in this ease, that before the defendants filed their answer, in which they for the first time, by the first defense, challenged the court’s jurisdiction of their'persons, they had taken various objections to the plaintiff’s petition. On November 2, 1893, by leave of the court first obtained some days before, they filed a motion to compel the plaintiff to attach to his peti tion on account of the items of his claim; this having been overruled, they afterward, on leave, filed a motion to require the plaintiff to separately state and number his causes of action; and this having been overruled, on February 5, 1894, the}7 filed a motion to require the plaintiff to strike out various averments in his petition, being the motion heretofore noticed. This having been overruled, they sought leave to answer, and the leave having- been given, filed an answer, in the first defense of which they now challenge the court’s jurisdiction over their persons. Manifestly they could, not do this after the numerous instances in which they had submitted themselves to its jurisdiction by invoking its judgment on the legal completeness as well as the sufficiency of the plaintiff’s petition. The decisions of this court on the subject, are all to the effect, that any step taken in a case by a defendant, other than to object to the court’s jurisdiction over his person, enters his general appearance to the action, and he cannot afterwards claim that the court’s jurisdiction of his person has not been properly obtained. Thus a motion for leave to answer, Brundage v. Biggs, 25 Ohio St., 652; a motion, to strike papers from the files, Maholm v. Marshall, 29 Ohio St., 611; a demurrer to a petition, 1 Ohio St., 286; and, though subsequently withdrawn, Evans v. Iles, 7 Ohio St., 238; a motion to dismiss for want of security for costs, Schaeffer v. Waldo, 7 Ohio St., 309; a motion to dismiss for want of jurisdiction of the subject-matter of the action, Handy v. Ins. Co., 37 Ohio St., 366; Smith v. Hoover, 39 Ohio St., 249; and a motion to strike from the petition certain averments, Railroad Co. v. Morey, 47 Ohio St., 207, 210, have all been held to enter the party’s appearance to the action, as completely as if he had been properly served with process.

Judgment of the ovrcuit court reversed, and that of the common pleas affirmed.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    Harding v. Eichinger.

      injunction against claimant to public office— Will not lie, when.

    Injunction will not lie at the suit of a claimant to a public office who is out of possession, against an adverse claimant who is in possession.
    (Decided January 18, 1898.)
    Error to the Circuit Court of Richland county.
    The defendant in error commenced his action against the plaintiff in error, by filing in the court of common pleas of Richland county, a petition of which the following is a copy, viz.:
    aThe plaintiff says: That on the first Monday of April, 1895, he was, and still continues to be, an elector and resident of the seventh ward of the city of Mansfield, Richland county, Ohio, and on that day at said city election, he was duly elected by the voters of said ward, one of its members of said city’s board of education, and was duly qualified as said officer, and on the third Monday of said month, in the evening thereof, he met with said board in session, and attempted to exercise his rights, privileges and franchises, on behalf of said ward and city, by voting to organize said board, in the election of president, clerk and treasurer of said board, and by participating-in the other necessary business of said body, but was unlawfully and forcibly prevented in the performance of said officials duties by the defendant, who was then and there neither a resident elector of said ward, or member of said board, but defendant did then and there, unlawfully, and with force, usurp the office place and membership of plaintiff, and against plaintiff’s will and protest, by voting for the election of said board officers, and participating in other business of said board.
    ‘ ‘ Said Harding voted for candidates to the offices aforesaid other than those for whom plaintiff would have voted, and defendant voted and acted as to the other business of the board differently to what plaintiff would have done, and with different results. Defendant’s votes and actions aforesaid were all accepted and recorded by a pretended president and clerk. All this to the detriment and irreparable injury of said seventh ward and city of Mansfield, and the electors and residents thereof, and of plaintiff, by defendant’s forcible usurpation of the rights, honors, privileges, franchises, and emoluments of the membership aforesaid.

      '‘Said board adjourned its session to meet again on the evening of the 16th day of April, 1895, and defendant is threatening that he will then and there, and thereafter continue his said usurpation and unlawful votes and action to the exclusion of plaintiff as aforesaid; and this complainant has good reason to believe, and does believe, that he will do so, and succeed in his attempt to deprive plaintiff of his membership, and prevent him from performing his official duties.
    “Wherefore, plaintiff prays that this court will grant a temporary injunction against defendant restraining’ him from participating in any way in the proceedings and business of said board, or interfering in anywise with the official business or membership of plaintiff until the final hearing of this case, when plaintiff asks that said injunction be decreed perpetual. ’ ’
    Upon the filing of this petition a temporary injunction was allowed, restraining the defendant from participating in the proceedings of the board
    Afterward, a demurrer to the petition was filed. Upon hearing, this was overruled, and judgment for plaintiff rendered. Appeal was taken by defendant to the circuit court, where the same holding was had and judgment rendered. Plaintiff in error asks reversal of that judgment.-

      D. Dirlam, for plaintiff in error.

      M. May, for defendant in error.
   By the Court:

The plaintiff below mistook his remedy. The petition' shows that Harding, and not Eichinger, was in possession of the office when the action was commenced. . Injunction may be resorted to by the incumbent of a public office to protect his possession against interference by an adverse claimant until the latter establishes his title, but is not the appropriate remedy to try the title. Reemelin v. Mosby, 47 Ohio St., 570.

Quo wa/rranto, is the proper form of remedy.

Judgment reversed, demurrer sustained, and petition dismissed-.

Reversed.


author: Williams, J.

text:
    The Elyria Gas and Water Co. v. The City of Elyria.

      Municipal corporation — Proceedings to authorize issue and sale of bonds — Nature of resolution for that purpose — Sections 2835 and 1694, Revised Statutes — Purchase of water works and erection .of new ones, distinct measures — Sections 2835, 2837a— Suit by taxpayer — Sections 1777 and 1778, Revised Statutes.

    1. The proceedings of the council of a municipal corporation must, in order to be valid, be within the powers conferred on it, and in substantial conformity with the statutes regulating them.
    2. The proper adoption, by the council, of the resolution declaring it to be necessary to issue and sell the bonds of the corporation for a specified purpose authorized by section 2835, of ' the Revised Statutes, and providing therein for the submission of the question of their issue to the electors at an election to be held for that purpose, is essential to the validity of all subsequent proceedings, and without which there can be no lawful issue or sale of the bonds.
    3. Such a resolution is of a general and permanent nature, within the meaning of section 1694, of the Revised Statutes, and must, before it can be legally adopted by the council, be read on three different days, or the rule requiring such reading be dispensed with by three-fourths of the members elected to' the council.
    4. The purchase of waterworks, and the erection of new ones, are distinct measures, requiring different proceedings ; and a resolution of council which combines both as one, and provides for the submission, in that form, of the question of the issue and sale of the bonds of the municipality for both purposes combined, is unauthorized, and ineffectual for either purpose ; nor can it be made effectual for either, by the elimination of the .other in the proceedings subsequent to the resolution. It is the policy of the statute that each measure for which it is proposed to issue and sell the bonds of the corporation shall stand on its own merits, unaided by combination with others, and that it be voted upon as an independent measure, by the council and electors, uninfluenced by such combination.
    5. Section 2837». of the Revised Statutes, requires that bonds issued in pursuance of the preceding section shall be sold, “ in not more than four different series, at not more than four different times, as money may be needed ’ ’ for the contemplated use. The power of determining when, and in what series and amounts, the bonds shall be so sold, belongs to the council, and cannot be delegated to the mayor, or other person. An ordinance which purports to give the mayor authority to sell the bonds, “either all at once, or from time totime, in such amounts as he may deem necessary,” is in conflict with the statute and void.
    6. Where the proceedings of a municipal corporation are unauthorized and void, either for want of power or its unlawful exercise, and are designed to raise a fund by the sale of its bonds or by taxation to be applied to the object contemplated by the proceedings, a suit to enjoin them may be brought by a tax-payer, under sections 1777, 1778, of the Revised Statutes, without waiting until the fund is raised ready for expenditure. The abuse of corporate powers, within the purview of section 1777, includes the unlawful exercise of powers possessed by the corporation, as well as the assumption of power not conferred.
    (Decided January 26, 1898.)
    Error to the Circuit Court of Lorain county.
    The Elyria Gas and Water Company, the plaintiff in error, a corporation, and resident tax-payer of the city of Elyria, brought suit- against the city and its mayor and clerk, to enjoin the issue and sale of bonds of the city for the purpose of raising a fund with which to build water-works.
    The plaintiff, before commencing the suit, requested the city solicitor to bring an action for the same purpose, which he refused to do ; and the action below was brought by the plaintiff in behalf of the city.
    The injunction is sought on the grounds that the proceedings of the council are illegal in several particulars set out in the petition, and are therefore insufficient to warrant the issue and sale of the city’s bonds. After trial in the common pleas, the cause was appealed to the circuit court, where a finding of the facts was made, and judgment rendered for the defendants. That judgment, it is contended here, is not supported by the facts found. These will be noticed in the consideration of the questions raised.

      W. H. Wells, E. G. Johnson, for plaintiff in error.

      Lee Stroup, and Boynton & Horr, for defendant in error.
   Williams, J.

Proceedings of a municipal council, to be valid, must be within the powers conferred on that body, and in substantial conformity with the provisions of the statutes regulating them.

The objections made to the proceedings here involved are, (1) that the resolution declaring the necessity for the issue and sale of the bonds, and directing the submission of the question of their issue and sale to the electors of the city, was not read on three different days before its adoption, nor was the rule requiring such reading dispensed with; (2) .that the resolution fails to conform to the statute, in that it embraces both the purchase and erection of water-works, and the proceedings subsequent to the resolution are not in accordance with its declared purpose; and, (3) the ordinance providing for the sale of the bonds attempts to delegate to the major the discretionary power to make the sales at such times, and in such amounts as he may deem necessary.

1. By section 2835, of the Revised Statutes, authority is given to the council of any municipal corporation to issue and sell its bonds in such amount as it may deem necessary for the purpose of erecting or purchasing water-works and supplying water to the corporation and its inhabitants, when it is desired by the voters of the corporation to make such improvement. It is pror vided by section 2837, that before any bonds can be issued or tax levied for such purpose, the question of issuing the bonds shall be submitted to the voters of the corporation at a general or special election; and whenever the council of anjr municipal corporation shall, by resolution, declare it necessary to issue and sell the bonds of such corporation for any or either of the purposes mentioned in section 2835, in any amount specified in such resolution, and shall by such resolution fix the date upon which the question of issuing and selling such bonds shall be submitted to the electors of such municipality, and shall cause a copy of such resolution to be certified to the deputy state supervisors of the county in which the municipal corporation is situated, the deputy state supervisors shall within ten days thereafter, proceed to prepare the ballots and make all other necessary arrangements for the submission of such quéstion to the electors of the municipal corporation at the time fixed in the resolution. The section further provides that 15 days’ notice shall be given of the election, stating the amount of bonds to be issued, the purpose for which they are to be issued, and the time and place of holding the election ; and that the ballots of those voting for the bonds shall have written thereon the words “for the issue of bonds,” and those voting’ against, the words “against the issue of bonds.” And section 2837a, contains the provision that: “Whenever two-thirds of the voters of any municipal corporation vote in favor of the issue of bonds as provided in the preceding section, the council of such municipal corporation may provide by ordinance for the sale of such bonds.”'

It is obvious, from these provisions, that before there can be any authorized issue of municipal bonds for the purpose mentioned in the resolution, there must be an election held at which the votes of the requisite majority of the electors shall be cast in favor of their issue; and there can be no election held until a resolution shall have been duly passed by the council declaring the necessity for the issue of the bonds, specifying the amount in the resolution, and fixing therein the time for holding the election. The proper adoption of this resolution, therefore, lies at the foundation of the proceeding, and is a condition precedent to the validity of all subsequent steps. Section 1694, of the Revised Statutes, requires that: “By-laws, resolutions and ordinances of a general or permanent nature shall be fully and distinctly read on three different days unless three-fourths of the members elected dispense with the rule.” The record shows that the council of the defendant failed to observe the foregoing provision, in its action on the resolution declaring it necessary to issue the bonds of the city, for the designated purpose; it was not read on three different days, nor was the rule dispensed with; but it was put on its passage immediately upon its introduction, • and was voted for by but two-thirds of a bare quorum then present. The resolution is as follows: “A resolution declaring it necessary to issue bonds for the purchase and erection of water-works for the supplying of water to the inhabitants of the city of Elyria, Ohio.

“Be it resolved by the council of the city of Elyria, Ohio, that it is necessary to issue and sell bonds of said city in a sum not to exceed $250,000, for the purpose of the purchase and erection of water-works for the supplying of water to the inhabitants of the city of Elyria, Ohio, and that the question of issuing’ and selling the bonds of said city in the amount aforesaid, be submitted to the electors of said city at a general election to be held on the 6th day of April, 1896, and that the mayor be directed to give notice of the holding of such election in the manner provided by law, and the clerk is hereby authorized to transmit a certi-. fied copy of this resolution to the board of deputy state supervisors of election, of Lorain county, Ohio.”

The question is thus presented, whether this resolution is of a general or permanent nature, within the meaning of section 1694.

A resolution which, when carried into effect, must result in laying a general tax on all the taxable property in a municipality, is of a general nature; and one which involves, in its execution, the construction of a permanent public improvement for the benefit of all the inhabitants of the corporation, is a resolution of- a general and permanent nature. The resolution in question is something more than a mere declaration of an existing fact, —the necessity for the issue of bonds for the contemplated purpose, — it sets on foot a proceeding whoseobject is to create a general debt of the corporation in order to raise a fund for the construction of a permanent improvement intended to subserve the interests of the general public, and which requires the taxation of all property within the municipal corporation, to meet the indebtedness thus created, and makes provision for taking1 the necessary steps for the accomplishment of those purposes ; and is, therefore, of both a general and permanent nature.

2. There is, we think, another fatal objection to this resolution. It declares the necessity for the issue and sale of the city’s bonds “for the purpose of the purchase and erection of water-works, ” and provides for the submission of the question of so issuing and selling the bonds, at the election to be held under the resolution, for the purposes thus declared. The power conferred by the statute on the council, is to issue and sell the bonds of the municipality “for the erection or purchase of waterworks.” The two purposes are entirely distinct. The purchase of waterworks necessarily implies that they have already been erected, and are a present existing property, the subject of sale and purchase; while the erection of water-works can only have reference to their future construction. That a municipal corporation may own two plants, one acquired by purchase, and another erected by it, or, after having acquired one in the former mode, may proceed to erect a new plant, is not questioned. But their acquisition by these two different methods require different proceedings. And, it is the policy of the statute that the proposition for each separate improvement shall stand on its own merits, unaided by combination with any other measure, and be so acted upon by the council in the first instance, and then, if adopted, be so submitted for approval by the electors that each may be voted upon as a separate measure, uninfluenced by combination with others. The reason is, that the requisite majority of the council, and of the electors, may be in favor of one measure, and against the other, or against each; while by uniting them as one, and submitting them to be acted upon in that form, the members of council, and the electors, are required to vote for or against both propositions combined, or abstain from voting at all, and thus denied the right to express their will with respect to each. A resolution. declaring the necessity for the issue and sale of municipal bonds for the purchase and erection of water-works, is not a resolution for either purpose separately, but for both purposes combined; nor is a vote in favor of issuing bonds for both purposes, a vote in favor of either separately. And the attempt, in the proceedings subsequent to the resolution, to eliminate the declared purpose to issue bonds for the purchase of water-works, and thereafter carry the measure to completion as one for the erection of water-works only, does not obviate the objection. The subsequent proceedings must cpnform to the resolution; it cannot be altered or amended by them. A substantial departure from the resolution leaves the proceeding without foundation to support them. A resolution declaring a necessity for one purpose does not authorize proceedings for the accomplishment of another; nor, does a resolution declaring a necessity for two or more purposes combined, authorize proceedings for the accomplishment of any one of them separately.

3. By the ordinance which provides for the issue and sale of The bonds, authority is given the mayor to offer the bonds for sale, “either all at once, or from time to time, in such amounts as he may deem necessary,” to the highest responsible bidder or bidders; and he is further “authorized to require each bid to be accompanied by a certified check on some national bank, for five per cent, of the amount of the bid.” It is thus left to the discretion of the mayor to determine when there shall be a sale or sales of any or all of the bonds, and in what amounts they shall be offered for sale; and also who is, or are, the' highest responsible bidder or bidders ; and whether any security shall be required to accompany the bid. This discretionary power belongs to the council, and cannot be delegated by ordinance or otherwise, to any person or body. Beside, the provisions of the ordinance referred to are in conflict with section 2837a, of the Revised Statutes, which requires the bond s to be sold ‘ ‘ in not more than four different series, at not more than four different times, as the money may be needed,” for the proposed use.

4. It is claimed, however, that the plaintiff cannot maintain the action ; that a taxpayer is not authorized to bring an action to enjoin the corporation except in those cases where it is made the duty of the solicitor to commence it, and he refuses, on demand, to do so; and, that this is not an action of that kind. The cases in which that duty is imposed upon, the solicitor, are those mentioned in section 1777, of the Revised Statutes, which provides that : “He shall apply in the name of the corporation to a court of competent jurisdiction for an order or injunction to restrain the misapplication of funds of the corporation or the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the corporation in contravention of the laws or ordinance governing the same, which was procured by fraud or corruption.” The authority conferred on the solicitor by this clause of the section, it is contended, is limited to the prosecution of injunction suits against the corporation to prevent the application of funds raised for one purpose to another and illegal purpose, and to restrain action by the corporation which is in excess, of its corporate powers ; and the section has no application, it is claimed, to the irregular exercise of corporate powers, nor to proceedings to raise necessary funds with which to make public improvements. But where the proceedings of a municipal corporation are unauthorized and void, either from the want of power, or from its unlawful exercise, and are designed to raise a fund by taxation to be applied to the object contemplated by such proceedings, a suit to enjoin them may, we apprehend, be properly brought under the statute. It is not necessary to wait until the fund is actually raised ready for expenditure, before instituting the suit; it might then be too late. If the proceedings will result, in the end, in a misapplication of the public money, they may be arrested by injunction at any stage before consummation. Promptness of intervention at the earliest period is to be commended, rather than delay until expenses have been incurred, the rights of third parties become involved, or other complications arise. The statute is remedial, and should receive a construction that will make the remedy a useful one.

The proceeding's of the council of the city of Elyria, for the issue and sale of its bonds as a means of raising- a fund to be applied to the contemplated use, being' unauthorized by reason of the failure of the council to act within its powers, and in compliance with the statute reg'ulating such proceeding’s, the proposed use of the fund so to be raised would be illegal, and, therefore, a misapplication of it, as well as an abuse of corporate powers, within the meaning of section 1777, of the Revised Statutes. To constitute such an abuse, it is not necessary that there be an intentional or willful disregard by the council of its duties; an omission to properly perform them, may be sufficient. And the abuse of corporate powers within the purview of the statute, includes an unauthorized or unlawful exercise of the powers possessed by the corporation, as well as the assumption of powers not conferred. We have not considered the question whether the plaintiff, as a taxpayer, independent of the statute, might not maintain the action, for we think it was authorized by the statute to bring the suit, and is entitled to the injunction prayed for.

Judgment reversed, and judgment for plaintiff in error.