author: Spear, J.

text:
    The Missionary Society of the M. E. Church v. Ely et al.

      Will — Application to probate alleged will — Special proceeding — Section 6707 — Final order may be modified or reversed — Appeal to common pleas — Error to circuit court — Section 6709.

      1. An application to the probate court to admit an alleged will to probate is a special proceeding within the meaning of that clause of section 6707, which provides that an order affecting a substantial right mado in a special proceeding is a final order which may be vacated, modified or reversed as provided in Title IY of the Revised Statutes.
    2. Where, upon appeal to the court of common pleas from an order refusing to admit such will to probate, that court makes a like order of refusal, the proponent cannot again propound the alleged will for probate.
    3. There is authority in the court of common pleas in such case to allow and sign a bill of exceptions setting out all the evidence.
    4. The order of the common pleas refusing to admit to probate is a final order affecting a substantial right, from which error may be prosecuted to the circuit court, and that court has, by virtue of section 6709, Revised Statutes, jurisdiction to reverse, vacate or modify such order for error appearing on the record.
    5. An assignment of error which alleges that the court erred in finding and deciding that the paper writing was not made and executed, attested and acknowledged in accordance with the law of Ohio, raises a question of law, which if well taken, shows error appearing on the record, and authorizes a reversal of the judgment.
    6. It is error for the circuit court, in such case, to sustain a motion to dismiss the petition in error on the ground that the court was without jurisdiction to hear the same.
    (Decided May 11, 1897.)
    Error to the Circuit Court of Lorain county.
    The plaintiff in error made a written application to the probate court of Lorain county, to admit to probate the will of- Albert Ely, deceased. On hearing, the court found that the purported will is not a will in law, and refused to admit the same to probate. On appeal to the common pleas, that court found and adjudged that the paper purporting to be the will of Albert Ely, was not duly attested and executed as the last will and testament of said deceased, and entered an order that the application for probate of said instrument be denied. A motion for new trial was interposed by the proponent of the will, one ground of which was, that “said court erred in finding and deciding that the paper writing named in said proceeding and proposed and offered for probate in the probate court of said Lorain county, was not made and executed in accordance with the statutes and laws of Ohio.” Another allegation was, that the findings and judgment are against the law. The motion was overruled. To the overruling of the motion for new trial, and the order of the court denying probate of the will, exception was entered, and a bill of exceptions embodying all the evidence taken, .and error prosecuted to the circuit court. One ground of error was that “said court erred in finding and deciding that the paper writing named in said proceedings and proposed and offered for probate, in said probate court of, said county, as the last will and testament of Albert Ely, was not made and executed, attested and acknowledged, in accordance with the statute and law of this state, relating to last wills and testaments.”, That court, on motion of defendants, dismissed the petition in error, on the ground that the court was without jurisdiction to hear the same.

      G. E. Pennewell, and Webber <& Stroup, for plaintiff in error.

      K O. Johnson, and Boynton c& Ilorr, for defendants in error.
   Spear, J.

The contention being whether or not the circuit court had jurisdiction to review the order of the common pleas, the first inquiry naturally is as to the character of the proceeding in that court, and the character of its order refusing to admit the alleged will to probate. Was it a special proceeding, and was the order a final order?

As to the first inquiry, it seems to us there can be but little difficulty. Our code does not, as does the code of New York, specify that every remedy which is not an action is .a special proceeding, nor does our statutes give any definition of an action or a special. proceeding. But we suppose that any ordinary proceedings in a court of justice, by which a party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, involving the process and pleadings, and ending in a - judgment, is an action, while every proceeding other than an action, where a remedy is sought by an original application to a court for a judgment or an order, is a special proceeding. As given by Bouvier, a remedy is “the means employed to enforce a right, or redress an injury.” Section 5921, Revised Statutes,’ and cognate sections, give a right to any person to whom any estate has been devised or bequeathed by any last will or to any person interested therein to propound such will for probate and, the proper proof being made that the will was duly attested and executed, and that the testator, at the time of executing the same, was of sound mind and memory, of full age, and not under any restraint, the rig’ht exists in the proponent that the court 'shall admit the will to probate. In no other way can he enforce his right to have the benefit of the provisions of the will. The court, by the mandatory requirement of the statute, is called upon to determine as to the existence of the right, and it being ascertained that the paper presented is the last will of the deceased, its admission to probate follows as a legal necessity. The law having conferred the right, and authorized an application to a court of justice to enforce it, the proceeding upon such application is of a judicial nature, and, not being an action within the sense of the code, it follows that it belongs to that class known as special proceedings.

As to the second inquiry. Section 6707,. Revised Statutes, provides: * * An order affecting a substantial right made in a special proceeding * * * is a final order. ” If the party who propounded this paper writing for probate is bound by the order as conclusive of his right, and may not, as of right,' propound it a second time, then beyond question it is a final order. Can the proponent again propound the will for probate? The eases of Chapman’s Will, 6 Ohio, 149, and Hunter’s will, same vol. 499, are authority to the affirmative of this proposition as tested by the wills acts as they stood at the time of those decisions, 1833-4. The statute at that time did not require notice to any person of th.e application to admit to probate, nor was there provision for either appeal or error where the court refused to admit the will to probate, although there was as now, where the will was admitted to probate, a right to contest the will by litigated suit within two years after such probate. It was concluded in the above cases, that the proceedings were ex parte, not adversary; no judgment was to be given, and the order of probate, where the will was admitted, while binding upon everybody if not set aside, was not finally conclusive, on the sub- ■ ject of it, for a way was provided to contest and vacate it. And, upon these considerations, it was held that “if rejected, another application may be made, and probate established on new and better proof.” But the statute, as to two important particulars, is essentially different now. Notice to the executor, the widow or husband, and next of kin of the testator, resident in the state, is to be given; and, in case of refusal to admit to probate, any person aggrieved may appeal to the common pleas by filing notice of intention within ten days. These changes do not transform the proceeding into a strictly adversary one, for no testimony can be given against the will, but they do provide for bringing in interested parties who are permitted to cross-examine the witnesses, and afford an opportunity to appeal, if any are aggrieved by an order refusing to admit the will to probate, and try the question again in the court of common pleas. When the appeal has been perfected (section 5935,) “the court of common pleas, on the hearing, shall take testimony touching the execution of such will, and have the same reduced to writing; and the .final order of the court of common pleas, shall, together with the will and testimony so taken, be certified by the clerk to the probate court; and if by such order the will is admitted to probate, the will, order and testimony shall be recorded in the probate court.”

The case of Feuchter v. Keyl, 48 Ohio St., 357, is authority for the proposition, that where admission to probate has been refused by the probate court, persons having notice of the proceedings and refusal until too late to appeal, are not concluded but may repropound the will, and probably this rule would apply to persons so situated even where on appeal the common pleas had refused probate. But what reason is there for saying that the defeated proponent may again propound? Can it reasonably be said that' he may see-saw between the two courts and never exhaust his right to litigate? We think not. The right of the heir to enjoy the estate of his ancestor should not be subjected to unconscionable delays, nor be kept in uncertainty and unreasonable length of time. And we think it a fair construction of the amendment to the statute to hold that they were intended to avoid these delays and uncertainties, and to establish that, as the action of the probate court is final and binding as to all persons where' .the will is admitted to probate, so it is equally final and binding as to all persons having due notice where probate is denied; and that in the one ease, the remedy is by contest before a jury, and in the other an appeal to and hearing in the court of common pleas, and that, save as to such rights as may be by other statutes given to prosecute error, these modes of relief are final and conclusive. This results in the conclusion that' the order of 'the common pleas refusing probate of the will, was a-final order; and it is equally clear, that if we are right in our conclusion as to the first inquiry, it affected a substantial right.

Being a final order within the meaning of the section cited, it could, by virtue of the clause following the one quoted, “he vacated, modified, or reversed, as provided in this title.” The provision in the title applicable to this case, is section 6709, to the effect that: ‘ A judgment rendered, or final order made' by the common pleas court may be reversed, vacated, or modified by the circuit- court for error appearing on the record.” And that the provision for a review, applies as well to orders made in special proceedings as to orders made in civil actions, appears not only by the language of the statute, but is emphasized by the holding in Myres v. Myres, 6 Ohio St., 221, viz: “In all proceedings after the taking effect of the code to vacate, modify, or reverse final orders, judgments, or decrees in civil cases, the code of civil procedure applies, in special statutory proceedings and in cases in chancery, as well as at law saving only the old remedy by bill of review. ” Nor is it of importance that the statute which directs the proceedings on the application is. silent as to a right to a review on error. It is sufficient if such right be given by any statute. Davis v. Coffman, 55 Ohio St., 556.

It follows from the foregoing that the order of the common pleas court refusing to admit the alleged will to probate, might be reviewed by the circuit court and reversed, vacated or modified for errors appearing on the record.

But what errors may appear on the record, and what may be reviewed? May the evidence be brought to the attention of the reviewing court, and if so, how? It is insisted by counsel for defendants in error, that it cannot be done by bill of exceptions, because no authority is found in the statute for the 'taking of such bill, and Baer v. Otto, 34 Ohio St., 11, is cited to show that in the absence of statutory authority such bill is unauthorized. The order sought to be reviewed in that case was an order made by a justice of the peace on a motion to discharge an attachment, and the holding is, that such order cannot be reviewed on error where the alleged error is that the order is against the weight of the evidence. In the opinion it is stated as on ground for the decision that no provision has been made by legislation for preserving- the evidence offered on such motion. One difference between the case cited and the one at bar is, that that holding was with reference to a decision of a court of limited, inferior jurisdiction; our case relates to the ruling of a court of general jurisdiction, having- general power to sign and allow bills of exceptions. Another difference will appear later on.

It would seem idle to provide for review upon error of final order unless there is also authority for entering and preserving exceptions to the decision complained of. We think such authority is afforded by sections 5297 to 5302, Revised Statutes. The exception, which is an objection to a decision on a matter of law, must be made at the time the decision is made. It must be stated in writing “with the facts, or so much of the evidence, as is necessary to explain it.” If the decision is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by noting at the end that the party excepts. But when the decision is not entered on the record of grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exceptions to writing and present the same' to' the trial judge for allowance. Practice in the common pleas is regulated by these provisions. Why is not the ease at bar one where the grounds of objection do not sufficiently appear in the entry? And why do not these provisions sufficiently provide for the taking of a bill of exceptions in this case?

But it is insisted that the effort here is to review the decision upon the weight of the evidence, and clearly there is no authority for that. The review referred to is, we suppose, one which involves a finding as to the preponderance. It is true that one ground of error assigned in the motion for new trial is, that the findings and judgments are against the weight of the evidence, and the same point is involved in the petition in error under the assignment of error in overruling the motion. But we do not think we are called upon to discuss this proposition, because another assignment is, that the findings and judgment are contrary to law, and this objection, if well taken, would dispose of the case. Perhaps it is impossible to consider evidence with respect to its legal effect without at the same time in a certain sense weighing it; but this is a different process from that of the weighing- of conflicting evidence for the purpose of determining upon which side the evidence preponderates. Under the objection that the court erred in finding and deciding that the proposed will was not made and executed in accordance with the laws of Ohio, which is another form for saying that the findings and judgment were against the law, the matter of mere preponderance is not presented. As to this inquiry, the trial court was not asked to pass upon contradictory evidence. There was none. The question was, what, upon the whole evidence, adduced is the law of the case? To this the court, by its decision, responded: Taking all the evidence offered in favor of the application — and there was none against, because no such evidence was competent — just as it is given, and awarding to it all the force that can possibly be claimed for it in favor of the will, and the inevitable conclusion is, that the will was not executed in accordance with the' laws of Ohio. This was, practically, a demurrer to the evidence. As put by White, J., in Turner v. Turner, 17 Ohio St., at page 452: “What the evidence tends to prove, is a question of law, and when all the facts are admitted which the evidence tends to prove, the effect of such facts raises a question of law only. Such is the nature of a motion to rule out the testimony, and to order a non-suit; and such was the nature under the old practice, of a demurrer to the evidence. ’ ’ Clearly there is presented by this record simply a. question of law, a question which the party had a right to raise, and inasmuch as the bill of exceptions containing the evidence was necessary to explain the exception, it was at least a proper method of accomplishing that result, if not the only method, and must be held to have been authorized.

It is finally insisted that the jurisdiction of the probate court, and of the common pleas, being exclusive, their final judgment is necessarily conclusive, and attention is called to the ease of Gregory’s Adm’r., 19 Ohio, 357, where it is held that exclusive jurisdiction in probate matters being given to the court of common pleas by the constitution, the orders of those courts are not reviewable in the supreme court. This ease would be authority, but for changes in the law. The present constitution gives to the probate court like juris•diction probate matters with that given to the common pleas by the old constitution, but, while the appellate jurisdiction given the supreme court by that instrument was confined to ‘common law and chancery, in such cases as shall be directed bylaw,” the appellate jurisdiction given the circuit court by the present constitution is, “such appellate jurisdiction as may be provided by law,” and by law it is provided, as we have seen, that the power of that court to reverse, vacate or modify, is not limited to cases in chancery or at law, but extends to and includes any judgment or final order made by the court of common pleas. Further comment on this branch of the ease seems unnecessary. We deem it sufficient answer to the proposition to say that the statute giving a right to review on error provides otherwise. Nor is the jurisdiction, when all the statutes bearing upon the question are considered, any more exclusive in either court to permit or refuse probate to a will than is the jurisdiction of the common pleas exclusive, in case of a contest of a will, or a proceeding-to obtain a construction of it, and no one would now question the right to review on error a final judgment in such cases.

The case of Mosier v. Harmon, 29 Ohio St., 220, is cited as of controlling force here. The will of the testator had been admitted to probate bv the probate court. Many years after, an heir who at the time the will was probated was an infant, having reached majority, commenced an error proceeding to reverse the holding admitting the will. It was held that the statute having provided a method of testing the validity of a probated will by a direct proceeding in the court of common pleas, and having equitably preserved the rights of persons under disability, public policy required that that method should be pursued, or the right barred. The case determines what remedy may be resorted to by one feeling aggrieved because of the order admitting the will to probate; it does not determine, nor attempt to determine, what remedy is open to one who is aggrieved by an order refusing to admit to probate. The decision seems a wise one, but we do not think it rules the case at bar.

It would seem that the spirit of our statutes authorizing review of the decisions of the common pleas by the circuit court, would make it appear reasonable that a review should. be permitted in this class of cases. If the controversy were over a horse-trade, involving say, fifty dollars or less, the party aggrieved could go through all the reviewing courts to this court upon the law of his case. Why should not there be, in the case of a will, where the property to the amount of thousands of dollars may be involved, equal facilities for settling the legal questions involved? Why should the defeated party in the case first mentioned, be permitted to invoke the judgment of every court from the justice to the supreme court, and the defeated proponent of a will be confined to the judgment of two persons, and two only, the probate judge and the judge of the court of common pleas?

That such review is authorized has been, we think, the general belief of the bench and the bar of the state. A number of cases have been prosecuted to this court involving the right of review and that right has not before been questioned. See Feuchter v. Keyl, supra.

Our conclusion is that the circuit court had jurisdiction to hear the case and its refusal on the ground that it was without jurisdiction, was error.

Judgment reversed.

Minshall, J., dissents.


source: Caselaw Access Project

author: BüRKET, C. J.

license: Public Domain

text:
    Arnold v. Yanders.

      Regulation of Trade — Inter state commerce — Convict-made goods— Invalidity of act of May 19, 1894 — Constitutional law.

    The act of May 19, 1894, 91 O. L. 346, entitled: “An act to regulate the sale of convict-made goods, wares and merchandise, manufactured by convicts in other states,” is in conflict with section eight of article one oí the constitution of the United States, and is therefore void.
    (Decided May 11, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    The defendant in error, Frank P. Yanders, was arrested upon a warrant issued by a justice of the peace of Cuyahoga county, based upon an affidavit charging said Yanders with unlawfully exposing for sale in said county, certain convict-made goods, made and manufactured by convicts confined in the penitentiary of the State of New York, without having first obtained from the Ohio secretary of state a license to sell such goods.
    Thereupon Mr. Yanders applied by petition to the court’ of common pleas for a writ of habeas corpus on the ground that the statute of this state under which he had been arrested, was in conflict with the constitution of the United States.
    The writ of habeas corpus was issued, and upon a hearing of the case, the statute was held unconstitutional, and he was discharged. The circuit court affirmed the judgment. Thereupon a petition in error was filed in this court seeking to reverse the judgments of the courts below.

      P, H. Kaiser, for plaintiff in error.
    Goulder, Wing té Holding, for defendant in error.
   BüRKET, C. J.

The arrest was based upon the act of May 19, 1894, 91 Ohio Laws 346, the first section of which is as follows:

Section 1 — “Be it enacted by the general assembly of the state of Ohio, that it shall be unlawful for any person, persons or corporations to expose for sale within the state of Ohio, without first obtaining from the secretary of state, a license to sell any convict-made goods, merchandise or wares, as hereinafter provided.”

By the subsequent sections of the act, a party desiring to deal in convict-made goods is required to obtain a license from the secretary of the state, at a cost of five hundred dollars ($500), per annum, which must be posted up in his place of business, to give bond with two good sureties in the sum of five thousand dollars, ($5,000), to make an annual report of his purchases and sales, stating prices of purchase and giving names, residences and street numbers of all purchasers. But the act provides that it shall not affect products of' the prisons of this state. The penalty for a violation of the act is a fine not exceeding one thousand dollars, ($1,000,) nor less than five dollars or imprisonment not exceeding one year, nor less than ten days, or both fine and imprisonment at the discretion of the court; one-half of the fine to go to the commissioner of labor statistics to aid in such pi'osecutions.

It is urged by counsel for defendant in error, that the act is in conflict with that part of section 8, of article 1 of the constitution of the United States, which provides as follows:

Section 8 — “The congress shall have power * * to regulate commerce * * * among the several states * * *.”

Counsel for plaintiff in error claims that convict-made goods do not come within the meaning of “commerce,” as that word is used in the above section, and that the state has the right to protect its own citizens, laborers and markets against an invasion of convict-made goods.

This leads to an inquiry as to the meaning of the word “commerce,” as used in the constitution of the United States. The proper construction to be placed upon the word as applied to different transactions, has often been before the supreme court of the United States, which court alone has power to declare, finally, its legal meaning.

In the case of Kidd v. Pearson, 128, U. S., 1, it is said that the buying and selling, and the transportation incidental thereto, constitutes commerce. And in County of Mobile v. Kimball, 102 U. S., 691, 702, commerce is defined as follows:

“Commerce with foreign countries and among the states, strictly considered, consists in intercourse and traffic, including in these terms navigation, and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities.”

It is not competent for a state legislature to declare that convict made goods are not articles of traffic and commerce, and then to act upon such declaration, and discriminate against such goods, or exclude them from the state by unfriendly legislation. Whatever congress, either by silence or by statute, recognizes as an article of traffic and commerce, must be so received and treated by the several states.

There is no act of congress declaring that convict-made goods are not fit for traffic and • commerce, and it therefore follows that such goods are the subject of commerce, and when transported from one state to another for sale or exchange, become articles of inter-state commerce, and entitled to be protected as such ; and any discrimination against such goods in the state where offered for sale is unconstitutional.

That convict-made goods are articles of traffic and commerce, is not only shown by the failure of congress to legislate on the subject, but is conceded by the act in question; because after taking out and paying for his license, no restraint is laid upon the dealer, but he is left free to buy and sell as he pleases, only so that he reports his purchases and sales annually, to the end that the public may know who purchase and use such goods, and if need be boycott them for so doing. The act therefore, by its terms, concedes that such goods are articles of traffic and commerce.

It is well settled that in legal effect the money paid for a license to sell goods, is a tax upon such goods. Brown v. Maryland, 12 Wheat. 419; Welton v. Missouri, 91 U. S., 275; Leloup v. Mobile, 127 U. S., 640.

As the act in question provides that it shall not affect products of the prisons of this state, the license fee of five hundred dollars, ($500,) is a tax or duty imposed by this act upon such goods when imported from another state, and is clearly a regulation of commerce among- the states, and an attempt to exercise a power which belongs to congress alone. The act is therefore clearly unconstitutional.;

The mere silence of congress is not sufficient to authorize a state legislature to legislate upon a subject vested by the constitution in congress, but such silence is to be regarded as evincing the in. tention of congress that the power shall remain where the constitution has placed it.

To give a state legislature power to legislate in such eases, requires an act of congress to that effect. Leisy v. Hardin, 135 U. S., 100; Welton v. Missouri, 91 U. S., 275.

The police power is reserved to the states, and they have the right to regulate internal trade, so as to protect the health and public welfare of the people, but this power cannot be so extended as to encroach upon inter-state commerce; and whether any particular act does so encroach or not, is a question for the courts, and in the determination of that question, the supreme court of the United States refuses to be bound by the opinion of the state legislatures, or the state courts. If the act is in its effect an encroachment upon interstate commerce, though expressed to be a regulation under the state police power, the federal courts hold it unconstitutional. Leisy v. Hardin, supra, Minnesota v. Barber, 136 U. S., 313.

The act in question is not a police regulation, but an attempt to prevent, or at least discourage, the importation of convict-made goods from other states, and thereby protect our citizens, laborers and markets against such goods. But if we are in a condition to require such protection, the appeal for relief must be made to congress, which body-alone has the power to legally grant such relief.

In re Rahrer, Petitioner, 140 U. S., 545.

In holding the act in question to be in conflict with the constitution, we obey that instrument and follow a long line of decisions of the supreme court of the United States. Brennan v. Titusville, 153 U. S., 289, and cases there cited.

Judgment affirmed.


author: By the Court.

text:
    Richardson v. Jenks et al.

      Motion to discharge attachment — Removal of issue to federal court — Cause for overruling motion.

    To a petition in error seeking a review of an order of the court of common pleas overruling a motion to discharge an attachment it is a sufficient answer that the cause in which the attachment was issued has been removed to a federal court.
    (Decided May 11, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      Johnson x& Hackney, for plaintiff in error.

      Boynton <J¿ Ilorr and Sheldon Parks, for defendants in error.
   By the Court.

Jenks and others brought suit against Richardson'and others in the court of common pleas, and procured the issuance of a writ of attachment which was levied on property of Richardson in the county. Richardson moved for a discharge of the attachment on various grounds of invalidity set out in his motion. This motion was overruled in the court of common pleas. To the order overruling his motion to discharge, Richardson filed a petition in error in the circuit court where the order of the common pleas was affirmed. On the 25th of May, 1895, he filed a petition in error here to obtain a reversal of the judgment of the circuit court. To the petition in error here the defendants in error answer, alleging that on April 2, 1895, Richardson, being a nonresident of the state, made application to said court of common pleas for the removal to the circuit court of the United States for the Northern District of Ohio, of the cause in which said proceeding for an attachment was had; that upon his application said cause was removed to the federal court and there proceeded in to final judgment. To this answer the plaintiff in error demurs.

Held: Notwithstanding the right of a party under the code to prosecute error to an order made in special proceeding in an action, jurisdiction of such proceeding’ must be in the same courts with that of the action to which it is auxiliary. The cause having been removed to the federal court, that court will not only determine the rig’hts of the parties but award appropriate remedies.

Demurrer to answer overruled, and petition in error dismissed.


text:
    Keyl et al. v. Feuchter et al.
    Wills— Validity of — Acknowledgment of signature.

    One essential to the admission of a paper writing purporting to be a will to probate is that it shall have been acknowledged by the maker as his will, and his signature also acknowledged, in the presence of the two subscribing witnesses.
    (Decided May 11, 1897.)
    Error to the Circuit Court of Summit county.
    On February 4, 1880, one John Feuchter deposited with the probate judge of Summit county, a ipaper purporting to be his last will and testament. After the decease of Feuchter, which occurred in 1882, the probate judge opened the purported will, and it was produced for probate. The body of the paper was in due form as a will, and the attestation clause appeared as follows:
    “In witness whereof, I do hereunto set my hand and seal this 4th day of February, one thousand eight hundred and eighty.
    (Signed) “John Feuchter. (Seal.)
    “Signed and acknowledged by said John Feuchter as his last will and testament in our presence, and signed by us in his presence.
    “Charles Wilhelm, residence, Akron, Summit county, O, Thomas C. Brandon, residence, Akron, Summit county, Ohio.”
    The deceased left no widow, but left a son, Henry Feuchter, who was duly notified, and appeared at the hearing. Katharine Keyl, and others, plaintiffs in error, residing in Germany, next of kin, were not notified. A hearing was had and an order made, refusing to admit the paper writing to probate. Some months after, the plaintiffs in error, instituted a proceeding in that court for the purpose of obtaining probate of the alleged will. The application was refused. From this order an appeal was taken to the court of common pleas, and that court dismissed the appeal. This judgment of the common pleas was reversed by the circuit court and the case remanded to the common pleas for further proceedings. The judgment of the circuit court was affirmed by this court (48 Ohio St., 357), on the ground that the plaintiffs in error, having had no notice of the proceedings in the probate court, were not concluded thereby, and had the right to repropound the will.
    On the hearing in the court of common pleas, witnesses were called by whom it was shown that the signature, John Feuchter, to the alleged will was his genuine signature; that he was at the date of the same of full age, and of sound mind and memory; that the witness, Thomas C. Brandon, was deceased, and that the signature purporting to be his as a witness, was his genuine signature. The other witness to the paper, Charles Wilhelm, was produced and by him it was shown that John Feuchter, at the time witness signed the paper, was not under any restraint. The circumstances of the signing were testified to by him as follows:
    In chief. Question: I produce this paper which purports to be his last will and testament, and ask you, Mr. Wilhelm, whether that is your signature as witness, át the bottom of that paper? A. Yes, that is m37 name and signature.
    Q. Did 37ou see Feuchter on the day you made that signature? A. When I made the signature?
    Q. Yes, sir. A. WI137, I suppose so, yes.'
    Q. And where did you see him? A. Very7 likely at my place of business, at the packinghouse.
    Q. And do you remember of seeing- him there at the packing house? A. I suppose so, yes; I couldn’t say positive, but I think so, he was there.
    Q, And what did he come there for, if you know? A. Well, he came there to ask me to go with him and witness the paper, that is my recollection of it.
    Q. And did you go with him? A. Yes, sir.
    Q. Where did you go? A. My recollection is, that we went to the Harmonie Hall, to the Leopold block.
    Q. To the Leopold block? A. Yes, sir.
    Q. And to whose office, or to what place in the Harmonie Hall? A. To Squire Brandon’s office.
    Q. Did you know Squire Brandon? A. Oh, yes.
    Q. Now, after you got into Squire Brandon’s office, do you recollect what took place there? A. Yes. '
    Q. Well, what took place there? A. Well, I signed that paper.
    Q. Anything else? A. That is all I remember.
    Q. Who produced the paper? A. Well, my recollection is that Feuchter did; he asked me to witness it, and he produced it, and I signed it and left.
    Q. What did he say when he asked you to sign it? A. Well, he said nothing, except if I wouldn’t go with him and witness a paper, sign a paper, he said nothing at all.
    Q. Who else was there at the time besides you and Brandon and Feuchter? A. I could not tell. My recollection — I guess there was nobody there, but I couldn’t tell positive about that.

      Q. Do you know what was done with the paper after you signed it? A. No, sir. ■
    Q. Was he under any restraint at that time? A. Under what?
    Q. Under restraint. Was anybody forcing him, or urging him to sign the paper at the time? A. No, sir, I don’t know whether he was under any restraint or not; 1 don’t know as to that.
    Q. Did you hear anybody say anything to him? A. No, sir.-
    Q. Do you recollect anything about that? But you do recollect that he produced the paper, and asked you to sign it, and you did sign it? A. Yes, sir — never said nothing about a will, either.
    Q. Did he ask you to sign it as a witness? A. He told me to witness a paper for him, to witness some transaction.
    Q. Was his name signed to the paper at the-time he asked you to witness it? A. My recollection is there was no name there.
    Q. Well, have you any recollection on the subject? A. To the best of my recollection, 1 seen nothing; I didn’t look over the paper.
    Q. You didn’t look over it at all? A. Not to my recollection.
    Q. Now, do you mean to say that his name wasn’t there? A. I havn’t seen it.
    Q. Well, did you sign 3’our name when his name wasn’t there? Is that what you want us to understand? A. Yes, sir, I signed my name and didn’t see- his name at all — I thought I signed a lot that he sold, or something of that kind; he didn’t mention no will or nothing ; it didn’t make no more impression on me or nothing; never thoug’ht he made a will.

      Q. But you went there to sign as a witness? A. Yes, sir, to witness a paper.
    Q. And he brought out the paper himself, and asked you to sign as a witness? A. Yes.
    Q. Now, do you say that his name was not on that .paper at that time? A. My recollection is that it wasn’t there; I havn’t seen it anyway; it wasn’t shown to me, his name either.
    Q. Well, did you sign without looking at it at all? A. I expect so, yes.
    Q. How did you know you were not signing a note? A. I knew that.
    Q. Or signing a deed?' A. I knew that; I would sign most anything for John that way as a witness, because he was an intimate friend ; I knew exactly what the man was, he was an A No. 1 good man, an honest man.
    Q. And knew what he was about, did he not? A. Yes, sir, I suppose so, he knew what he was about.
    Q. Did you ever sign any other paper with him? A. Not to my recollection.
    Q. Did he ever come to your office at any other time and ask you to witness anything? A. Not to my recollection.
    Q. Don’t recollect? A. No.
    Q. Did he tell you where to sign your name?
    A. Not that I recollect; I suppose he said “here,” I do not know — I suppose he made the motion, I don’t recollect about that.
    Q. Did Brandon say anything-while you were there? A. There was not much said of anything-; I signed, I know, and I left — took me right from my work and went there and made signature and left. That is all I remember about it.
    Cross-examination: — Q. You say you supposed you signed á paper as a witness for the sale of some lot? A. That is what I supposed, yes, something of that sort.
    Q. Was he selling lots at the time — was that his business? A. Yes, he was engaged in selling lots, and selling his property and lots.
    Q. Well, had he any other business than that, taking care of his property in that way? A. Not that I know of.
    Q. He had a number of lots for sale, had he not, in your part of town, what we call Upper Town? A. Yes, sir.
    Q. And that is the paper you supposed you witnessed? A. I supposed I signed something of that kind, yes — because he came there.
    Q. You say that nothing was said about a will?
    A. No, sii’j nothing whatever; nothing.
    Q. If you had been advised at that time that that was a will that you were witnessing, would you have ascertained whether Mr. Feuchter was disinheriting his son, before signing as a witness? A. Yes.
    Q. Examine this paper produced by the other side and marked “Exhibit A.” Notice where John Feuchter’s name purports to be and where yours was signed, and express your judgment whether that name was there on the paper when you put yours here on the paper. A. Whether that name was here?
    Q. Yes, sir, whether the name John Feuchter was signed there when you signed yours as a witness or whether it wasn’t there. A. My attention was not called to this name.
    Q. Did you see, at the time you signed your name, the name of John Feuchter to that paper?

      A. I did not. My attention was not called to that name.
    Q. What do you now say is your best recollection, was Mr. Feuchter’s name to that paper when you signed it as a witness or not? A. My best recollection is, that my attention was not called to this at all, so I don’t know nothing about this.
    Q. Did you then know that John Feuchter had signed that paper that you witnessed? A. No, sir, I did not.
    Q. Did you see his name to that paper when you signed as a witness? A. No, sir, I did not.
    Q. Did anyone point out his. name to you as being on that paper when you signed as a witness? A. No, sir, nor did I see him sign it, either.
    Q. Was this clause read to you, before you signed as a witness, “Signed and acknowledged by said John Feuchter as his last will and testament in our presence, and signed by us in his presence?” Was that read o\rer to you before you signed it? A. If it had been, it would have made an impression on me.
    Q. ■ Well, therefore, what? A. Therefore, it wasn’t read to me; don’t know nothing- about this at all.
    Re-examination: — Did you sign a certificate, Mr. Wilhelm, that wasn’t true? A. What?
    Q. Did you sign a certificate that wasn’t true? A. What certificate do you mean? This that wasn’t true?
    Q. Yes. A. I don’t know whether it was true or not.
    Cross-examination: — Q. Did you know that you signed any certificate as I have just read to you? A. No, sir, I don’t recollect nothing of the kind at all.

      No other witness testified as to what occurred when Wilhelm signed the paper.
    The court refused to admit the alleged will to probate, finding that it had not been duly executed. A motion for a new trial was overruled, to which and to the order made, exception was duly entered. The testimony was all reduced to writing, in conformity to the statute. A bill of exceptions, containing all the testimony was taken, and duly allowed. The circuit court, on error, having affirmed the judgment and proceedings of the common pleas, this proceeding is brought to reverse both judgments.

      Baird cfc Voris and August IF. Bode, for plaintiffs in error.

      N. B. Tibbals, for defendants in error.
   By the Court.

The paper . writing was refused probate, on the ground that it had not been lawfully executed as a will. ,

Section 5914, Revised Statutes, which provides who may make a will, is as follows: “Any person of full age and of sound mind and memory, and not under restraint, having any property, personal or real, or any interest therein, may give and bequeath the same to any person by last will and testament lawfully executed.”

Section 5916, which directs how a will shall be made, is as follows: “Every last will and testament (except nuncupative wills, hereinafter provided for) shall be in writing, and signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge the same.”

At the hearing of the case in the common pleas, it was shown that the alleged will in form, complied with the statute, and that at the date of its purported execution the maker was of full age, of sound mind and memory, and not under restraint.

One of the subscribing witnesses having deceased, his signature was duly proven. This had the effect in law of proof that the purported will had been duly acknowledged in the presence of that witness.

By the testimony . of the other witness, it was shown affirmatively that the alleged will was not executed and acknowledged in accordance with the statute, in that there was no acknowledgment by the maker, either of the paper as his will, or of his signature thereto, in the presence of that subscribing witness.

Upon the case as thus made by the propounders of the paper writing, the order of the court refusing- to admit it to' probate as the will of John Feuchter, was the only order which the facts warranted, and was, therefore, not erroneous. Raudebaugh v. Shelley, 6 Ohio St., 307; Haynes v. Haynes, 33 Ohio St., 598.

Judgment affirmed.


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    Lutman et al. v. The Lake Shore & Michigan Southern Railway Company.

      Assessment upon lands — For construction of township ditch — Suit to enjoin — Premature if tmistees have takemio steps to make the assessment.

    A suit to enjoin the assessment upon the lands of the plaintiff of a portion of the costs of constructing a township ditch upon the ground that his lands will not be benefited thereby, is prematurely brought if the trustees have taken no steps to make such assessment; and unless the trustees in their answer assert the right or admit their intention to make such assessment a judgment in favor of the plaintiff for an injunction for costs, is erroneous.
    (Decided June 1, 1897.)
    Error to the Circuit Court of Wood county.
    The case was tried on appeal in the circuit court. The railway company sought an injunction against the plaintiffs in error, who are the trustees of a township to restrain them from constructing a township ditch across the line of its road for the reason, among others, that it would not be benefited thereby, and the trustees intended to assess upon it a portion of the costs of constructing the ditch. The defendants did not, in their answer, admit that they intended to make such assessment. There was no evidence showing that they had apportioned any portion of the work to the company, or taken any official action whatever toward making such assessment. The court found that the company would not be benefited by the construction of the ditch, and enjoined the trustees from making such assessment, though permitting them to make the improvement. It .also rendered judgment against the trustees for costs.

      Baldwin c& Harrington, for plaintiffs in error.
    The circuit court should have sustained the demurrer.
    Full power is vested in the trustees to construct ditches even across railroads. Section 4511 R. S. Sessions v. Crunhilton, 20 Ohio St., 349."
    They are not prohibited from establishing and constructing- ditches because the same territory is already drained by other ditches, nor are they restricted to the natural water course. 37 N. L. B., 189; Miller v. Weber et al., 1 C. C., 130; Affirmed by Sp. Court without report; 19 Wkly. Law Bull. 350. The plaintiff had an adequate remedy at law. It should have perfected its appeal to the probate court. Section 4533 R. S., 37 Ohio St., 508; Haff v. Fuller, 45 Ohio St., 495; JDoney v. Trustees, 1 C. C. 566; Miller v. Board of Commissioners, 3 C. C. 617 S. C. Affirmed by Sup. Court without report, 27 Wkly. Law Bui., 216; Vornholt v. 'Cordon, 30 Wkly. Law Bui., 33.
    The acts of the Legislature questioned by the defendant in error have been considered and discussed in numerous cases in the circuit and supreme courts hereinbefore cited, and have always been upheld. Sections 4518, 4533, 4520 and 4521, R. S.; Kent v. Ferhins, 36 Ohio St., 640.
    Compensation is the word used in the constitution. Section 19, article 1 of the constitution.
    The words compensation and damages are held to be synonymous. Grove v. Commissioners, 8 C. C., 167, s. c. Affirmed by Sup. Court, 33 Wkly. LaW Bui., 144.
    The statutes authorizing County Commissioners to construct ditches are similar. Section 894 R. S.; "Limmerman v. Canfield, 42 Ohio St., 463. If any damages would result to the Railway Company, or it should be entitled to compensation and adequate remedy at law is provided by sections 4533, 4540,’ Revised Statutes.

      Potter (& Emery, for defendant in error.
    While devoted to the accomplishment of purposes of conséquenee to the public, the railroad property is nevertheless private, acquired, constructed and maintained by private capital, and the subject of private ownership upon faith in being protected in the. use and enjoyment thereof for the purposes of its franchise, and thus entitled to the benefit of those legal safeguards which the law affords to private property generally.
    The provisions of R. S. 4511 do not confer upon township trustees authority to compel the railway company to submit to either having- an open ditch across its tracks, or at its own expense, regardless of amount, to construct such pipe, drain, aqueduct or culvert as will afford equivalent water way across its right of way grounds?
    There is an entire absence of anything- indicative of legislative intent to authorize the maintenance of such open ditches across a railroad or turnpike road. R. R. Co. v. Dayton, 23 Ohio St., 518; R. R. Go v. Belle Centre, 48 Ohio St., 273.
    Where the ground of complaint against the assessment is not one of mere irregularity, but of manifest palpable wrong, the court has undoubted authority and jurisdiction to hear and determine such complaint, and, finding the complaint sustained, to enjoin the imposition of the assessment. R. S. 5848; Buckley v. Commissioners, 1 Cir. Ct., Rep., 251; Stephen v. Daniels, 27 Ohio St., 527; Steese v. Oviatt 24 Ohio St., 248; Peck v. Watros, 30 Ohio St., 590; Chesbrough v. Commissioners, 37 Ohio St., 508; Tone v. .Columbus, 39 Ohio St., 28L; Blue v. Wentz, 54 Ohio St., 247.
    There can be no valid assessment in the absence of or beyond manifest special benefit. Chamberlain v. Cleveland, 34 Ohio St., 551; Weioell v. Cincinnati, 45 Ohio St., 425.
    The facts and circumstances as to the assessed or proposed to be assessed premises, with and without the improvement, are matters to be given in evidence, by parol or otherwise, and from which evidence the uourt is authorized to determine tüe question whether the land is or is not specially benefited, and the amount if any of such special benefit. B. B. v. Campbell, ,4 Ohio St., 583; B. B. Co. v. Ball, 5 Ohio St., 573; Powers v. By. Co., 33 Ohio St., 437; By. Co. v. Gardner, 45 Ohio St., 309.
    And parol evidence may be received to show that the assessing board did not act upon the proper basis. Chamberlin v. Cleveland, 34 Ohio St., 571; Buckley v. Commissioners, 1 Cir. Ct. Rep., 251. And upon such trial a witness may be asked and answer as to whether the land will or will not be benefited by the improvement. Miller v. Webber, 1 O. C. Ct., 130.
    The decree in no wise interferes with or prevents construction and maintenance of a suitable conduit at the expense of land owners whose lands are especially benefited by the improvement.
    What it does interfere with and prevent is;
    1. Construction and maintenance of such a ditch as will unnecessarily interfere with,- supersede and defeat the use of the railroad ground for railroad purposes.
    2. Imposing upon the Railway Company the expenditure of 8150 in the construction of a ditch which, in no wise specially benefits the company or its property.
   By the Court.

Although lands not benefited by the construction of a ditch are not assessible with any portion of the costs thereof, this suit was prematurely brought, since the trustees had taken no action which contemplated the making of such assessment. And since the trustees did not in their answer assert the right or declare their intention to make such assessment, the judgment against them for costs is erroneous.

Judgment reversed.


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    Miller v. Busick.

      Trial of bastardy suit — Cotirtof common pleas — Evidence taken before justice of peace not subscribed to by complainant — Not error to admit such evidence if defendant enter trial without objection.

    Y\Uiere, at the trial of a bastardy suit in the court of common pleas, the examination of the complainant taken before the justice of the peace is offered in evidence in conformity with section 5625, Revised Statutes, and the record shows full compliance by the justice with all the requirements imposed upon . him by the chapter regarding bastardy, save that the examination was not subscribed by the complainant, and the defendant has appeared in the common pleas in obedience to his recognizance, and, without objection, entered his plea and entered upon the trial to the jury, it is noterror to admit such examination in evidence over the objection of defendant,
    (Decided June 1, 1897.)
    Error to the Circuit Court of Licking county.
    The proceeding below was in bastardy, commenced by the defendant in error against the plaintiff in error, ' by the making of complaint in due form before a justice of the peace. The defendant having been ^brought in by a warrant, the complainant was examined under oath by the justice, and cross-examined by counsel for defendant, which examination was reduced to writing by the magistrate and certified by him and filed, but not subscribed by the complainant. At the trial in the common pleas, the examination before the justice was offered in evidence by complainant and admitted and read to the jury, against the objection and exception of the defendant. A verdict for plaintiff followed, and' judgment thereon, which was affirmed by the circuit court.

      Kibler <& Kibler and Fulton & Fulton, for plaintiff in error.
    Section 5625, provides that when the accused pleads not guilty of the charge, before the court to which he is recognized to appear, or having been recognized, fails to appear, the court shall order the issue to be tried by a jury; and at the trial of such issue the examination before the justice shall be given in evidence by the complainant.
    The plaintiff in error claims that the examination of the complainant before the justice is a jurisdictional matter, and without such examination the court would have no jurisdiction to try the plaintiff in error.
    The statute requires the complainant to be examined under oath in the presence of the accused and that such examination shall be reduced to writing in the presence of the justice and be subscribed by the complainant. We claim that these four things are equally obligatory, and that no one of them, can be omitted without affecting the jurisdiction of the higher court.
    . The statute now in force differs from the statute in force when the case of Hoff v. Fisher, 26 Ohio St., 7, was decided. Then the statute only' required that “the examination before the justice shall be given evidence.” Whereas the statute now in force says: “The examination shall be given in evidence by the complainant.” 16 Ohio St,. 56.
    . S. M. Hunter, for defendant in error.
    The complaint was duly made, sworn to and subscribed before the justice by the complainant. On that complaint a warrant was issued, and Miller arrested and brought before the justice. In his presence the complainant was examined by the justice, and her examination written down in the presence of the accused. Some half a dozen questions were asked her by the justice, and then the defendant proceeded to examine her at great length, asking her over a hundred questions which were answered as the transcript shows. The defendant entered into a recognizance for his appearance at the common pleas court and made no objection whatever to her not signing the examination. The defendant had every benefit from her examination that he could have had if she had formally signed it.
    The accused has waived his right to object. The examination is provided by statute for his benefit. He may waive the examination or any part of it or any formality connected with it.
    ' Bastardy is not a criminal action in any sense in Ohio. The verdict of guilty or not guilty cuts no figure. That was the verdict in the old action of trespass.

      The defendant could be tried in his absence, even if he was not under recognizance. So far as the trial and proceedings are concerned all are conducted as a civil action. A verdict for the accused maybe set aside as well as a verdict against him, and a new trial granted, and it would not be putting him twice in jeopardy. A preponderance of evidence is sufficient. Carter v. Frise, 9 Ohio St., 402. The proceeding in bastardy then being in its essential features a civil action, the strictness of criminal proceedings is not required. The defendant may waive any of the requirements of the statStateY. Johnson, 56 N. W. Rep., 404; Williams v. Copeland, 5 Allen, 209; 20 N. W., 383; Striclder v. Grass, 48 N. W., 804; State v. Smith, 9 S. E., 433; Hoff v. Fisher, 26 Ohio St., 7.
    Proceedings of justices were construed with great liberality. Mo Garvey . v. Pucket, 27 Ohio St., 669; Austin v. Ilaydeyi, 6 Ohio, 388; Ilumiston v. Anderson, 15 Ohio, 557; Lewis v. Laylin, 46 Ohio St., 663; Scovern v. State, 6 Ohio St., 288.
   By the Court.

The proposition of plaintiff in error is, that there could be no jurisdiction in the common pleas without a preliminary examination in accordance with the statute ; that there was no such examination shown by the record because the paper was not subscribed by the complainant as required by the statute; that its introduction was, for that reason, error, and the common pleas, was without jurisdiction to hear the complaint-.

We think the admission of the examination was’ not error, and that the common pleas had jurisdiction. It is true that the statute, section 5615, provides that the examination shall be subscribed by the complainant. But the simple neglect to observe this requirement is not such an omission as to render the proceeding void. The record shows a legal complaint, legally presented; the presence of the proper parties; that the complainant was, under oath, examined by the magistrate, and, at great length, cross-examined by counsel for defendant; that the examination thus made was certified by the justice, and was filed by him; that the defendant, upon being required by the justice, entered into recognizance to appear in the common pleas ; that he there appeared, entered his plea, and the trial was commenced without objection. The proceeding is not a criminal one to punish the defendant, but is a civil one for the purpose of affording a remedy to enforce the discharge of a civil and moral duty. The requirement of section 5625, that ‘ ‘the examination before the justice shall be given in evidence by the complainant,” is for the benefit of the defendant. It affords him an opportunity to compare the testimony of the complainant given at the trial with her statements under oath, at the inception of the proceeding-. It is a requirement which the defendant might waive.

And, where all other indicia of indentification specified in the statute are present, and no real doubt exists of the genuineness of the examination, it would be tlie extreme of technicality to hold the mere absence of the complainant’s signature to be a fatal defect. Under the authority of Hoff v. Fisher, 26 Ohio St., 7, and especially considering that proceedings before justices are to be treated with libera] ity, and that, as to matters within the scope of their authority, technical precision is not to be required, the provision of section 5615, that the examination shall be subscribed be the complainant, may well be held to be directory merely. ■

Judgment affirmed.


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    Henn v. Horn.

      Actionfor libel — Punitive damages — Evidence by defendant as to his feelings towardplaintiff competent, when.

    Where, at the trial of an action for libel, the plaintiff has given evidence tending to show a right to recover punitive damages, evidence by the defendant as to his feelings towards plaintiff, and his motives in the publication, is competent as bearing upon the question of such damages.
    (Decided June 1, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    The action below was libel. A verdict in favor of the plaintiff was recovered in the common pleas, upon which judgment was entered. This was reversed by the circuit court, and the plaintiff now asks a reversal of that-judgment.
    White, Johnson, Me CasUn c& Cannon, for plaintiff in error.
    The circuit court held that the common pleas court was right in charging the jury that, unless the defendant had reasonable ground for believing, the libel to be true, the absence of personal ill will, or the belief (without, reasonable cause) that the charge was true, was not a defence, nor did it tend to mitigate damages; and yet the same court held that refusing to admit this testimony was reversible error. We conceive that the only purpose for which evidence is admissible is to assist the jury in coming to a conclusion upon some matter about which the jury are to decide; that evidence which does not have a legal tendency to assist the jury in deciding some of the questions submitted to them is, in a legal sense, irrelevant and incompetent; hence, that evidence, to be admissible, must have a legal tendency to inform the jury either as to.the right, or want of right to recover, or as'to the amount of damages. This may seem elementary, and yet it seems to us that the circuit court must have entirely overlooked the purpose of evidence.
    Black L. Diet., 441; Hotchkiss v. Newton, 10 Ga., 567; 1 Greenl. Ev., sections 1, 2; Wills Oircumst. Ev., 2; 1 Bouv. L. Diet., 544; 1 Whart. Ev., Sec. 3; Stephens Dig. of Law of Ev., Secs. 1, 2; 1 Sutherland on Dam., Sec. 392, 393, 394, 365, 366, 368; Borland v. Barrett, 76 Va., 128; Drohns. Bretoer, 77 111., 280; Benson v. Frederick, 3 Burr, 1845; McBride v. McLaughlin, 5 Watts, 375; Sawyer v. Sauer, 10 Kan., 466; Welch v. Durand, 36 Conn.,. 182; Emblem v. Myers, 6 H. & N., 54; B. <é Y. Turnpike v. Boon, 45 Md., 344; Milwaul&ee, etc. R. R. Oo. v. Arms et al., 91 .U S., 489; Wilkinsons. Dreio, 45 Me., 360; R. R. Co. s. Patton, 31 Mass., 156; M. <& C. R. R. Oo. s. Whitfield, 44 Miss., 466; Raynors. Nimms, 37 Mich., 34; Peckham Iron Oo. v. Harper, 41 Ohio St., 100; Brown s. Evans, 17 Fed. R., 912; Pitts., etc. Ry. Oo. s. Lyon, 123 Pa,. St., 140; Lake Shore c& M. S. Ry. Oo. s. Rosenweig, 113 Pa. St., 519; Ala. St. G. N. S. Ry. Oo. s. Hill, 90' Ala., 71; Barlow s. Loioder, 35 Ark., 492; Harrison v. Ely, 120 111., 83; O. & N. W. Ry. Oo. s. Williams, 55 111., 185; Bauer s. Gottmcmhaus, 65 111., 499; Miller s. Kirby, 74 111., 242; Cochran s. Miller, 13 Iowa, 128; Wiley s. Keokuk, 6 Kan., 94;
      Boetcher v. Staples, 27 Minn., 308; Louisville <£ N. B. B. Go. v. Ballarcl, 85 Ky. 307; Meet y. Hollenkemp, 13 B. Mon., 219; Kennedy v. North Mo. By. Co., 36 Mo., 351; Green y. Craig, 47 Mo., 90; Storm y. Green, 51 Miss., 103; Holmes v. Carolina Central' By. Co., 94 N. C., 318; Knowles y. Bailroad, 102 N. C. , 59; Bay y. Holland, 15 Or eg., 464; Sloan y. Edwards, 61 Md., 89; Taylor y. Bailway, 48 N. H., 304 ; Champion y. Vincent, 20 Tex., 811.
    We pass, now, to the direct question relative to the rule in actions for libel. In this special action, courts and text writers have sometimes been led astray by the use of the words, “malice in law and malice in fact,” or, “implied malice and express malice,” as if that meant two distinct things. Very much the better opinion is that these two things are precisely the same, the only difference being in the manner in which the ultimate fact is proved, which the law denominates, for the purpose of the action, malice. If a man intentionally • charges another with having’ committed a felony, and does this without having any reasonable grounds to believe the charge true, then, even if there is no personal malevolence, there is yet. either wantonness, recklessness, oppression, or a negligence which indicates a heart regardless of social duty, and regardless of the rights of others. This, for all purposes, civil or criminal, is equivalent to malevolence, and, in the terminology of the action of libel, is as much malice, is as much express malice, is as much malice in fact, as is personal malevolence. Townshend on Slander (pages 130 to 143). Lewis v. Chapman, 16 N. Y., 369; Polkard Starkey on Slander, Sec. 581; Moore v. Stephenson, 27 Conn.; Wynne v. Parsons, 57 Conn., 73; Osborne v. Troup, 60 Conn., 485; Gott
      v. Pulsifer, 122 Mass., 235; Cotulla v. Kerr, 74Tex., 89; Blocker v. Schoff, 83 Iowa, 265; Barr v. Hack, 46 Iowa, 308 -, Morrison v. Press Pub. Co., 38 N. Y., 357; Newell on Slander, Secs. '320, 13; 322, 18; Commercial Gazette v. Grooms, 21 W. L. B., 292; Hayner v. Voioden, 27 Ohio St., 292; Barling v. Williams, Adrar., 35 Ohio St., 58; Edwards v. Publishing Co., 99 Cal., 431; Childers-v. Mercury P. P. Co., 105 Cal., 284; Bergman v. Jones, 94 N. Y., 51; Holmes v. 'Jones, 121 N. Y., 461; Morey v. Morning Journal Association, 123 N. Y., 207; Warner v. Press Pub. Co., 132 N. Y., 181; Morrison v. Press Pub. Co., 38 N. Y., 358; Van Ingen v. Star, 72 N. Y., 565; Turton v. Ef. 7. Recorder Co., 144 N. Y. 144; Mattice v. Wilcox, 147 N. Y., 624; Webber v. Butler, 81 Hun., 244; Morning Journal Association v. Rutherford, 51 Fed. R.,-513; Post Pub. Co., v. Hallam, 59 Fed. R., 530; Buckley v. Knapp, 48 Mo., 152; Lanius v. Druggist Pub. Co., 20 Mo. App., 32; Wood v. Hilbish, 23 Mo. App., 389 ; Baldioin v. Fries, 46 Mo. App., 288; Callahan v. Ingram, 122 Mo., 355; Regenspevger v. Kiefer, 7 Atl., 724;. Boioden v. Bailes, 101 N. C., 612; Hintzv. Graupner, 138 111., 158; The Evening Hews Association v. Try on, 42 Mich., 549; Maclean v. Scripps, 52 Mich., 214; Park v. Detroit Free Press Co., 72 Mich., 560; Davis v. Marxbauson, 103 Mich., 315; General Laws of Minn., 308; Allens. Pioneer Press Co., 40 Minn., 117; Post Pub. Co. v. Maloney, 50 Ohio St., 71; Rearick-v. Wilcox, 81 111., 77; Sweeneys. Baker, 13 West Va., 158; McWilliams v. Bragg, 3 Wis., 424.
    When it became evident that the only fact known to the defendant was that the plaintiff had altered, with a lead pencil, prior void articles of incorporation, written in ink, the court refused to permit him to testify to his belief or his motives in charging that the plaintiff had committed forgery, until he should offer evidence showing that he had some information of some sort, from some one, that the plaintiff, in making these alterations, had committed forgery, had done it with a fraudulent intent, had done it with a design to have the altered articles pass off as genuine. The slightest examination made of the photograph attached to the record will show that no person could have come to the conclusion that the alterations were intended as a forgery, merely from the inspection of the altered document. Such an intent was necessary to make the alteration a forgery. 2 Bac. Abr., 256; 2 Hawk. P.- C., 104; 2 Bish. Crim. L., Sec. 586, 335 ; 8 Am. & Eng. Enc. of Law, 453; Ex Parte Windsor, 10 Cox, C. C., 118; Queen v. Ritson, L. R., 1C. C. Res., 169; Snyder v. State, 8 O. C. C., 463.

      Boynton <& Ilorr; Charles E. Penneioell and Judd, Ritchie <& Esher, for defendant in error.
    The competency of this class of testimony in eases of slander, libel and of malicious prosecution, has been settled by repeated adjudications and by none more clearly than by an adjudication of this court. White v. Tucker, lé Ohio St., 468.
    A plaintiff, in an action for malicious prosecution, must allege and prove two things. He must prove malice and want of probable cause for the former suit or prosecution. Moak’s Underhill on Torts, 164; McKnoion v. Punter, 30 N. Y., 625; Van Perveer v. SuPphin, 5 Ohio St., 299; Smetters v. Rainey, 14 Ohio St., 287; The Atlantic & Great Western R. R. Co. v. Dunn, 19 Ohio St., 170.
    The following cases are to the point, that, to justify the jury in awarding exemplary or punitive damages, there must have been actual or express malice upon the part of the defendant in the publication complained of. Roberts v. Mason, 10 Ohio St., 277; Hayner v. Coto den, 27 Ohio St., 292; Templeton v. Graves, 59 Wis., 95; Drohn v. Brewer, 27 111., 280; Baltimore, etc., R. R. Go. v. Boon, 45 Md., 344; Sheik v. Hopson, 64 Iowa, 146; Foifc v. Blachnar, 64 N. Y., 440.
    The following- elementary authorities and decided cases are in principle in full accord with White v. Tucker, supra; Superintendent of the Poor v. The Superintendent of the Poor, 44 N. Y., 22; Fiedler v. Darrin, 50 N. Y., 443; Thurston v. Cornell, 38 N. Y., 281; Jauvrin v. Fogg, 49 N. H., 341; Delano v. Goodwin, 48 N. H., 203; Wharton on Evidence, sections 482, 508 and 955; Odger on Slander and Libel, 317; Starke on Slander and Libel, 639; Newell on Defamation, 909; Callahan v. Ingram, 26 S. W. Rep., 1020; Post Publishing Go. v. IIal~ lam, 59 Fed. Rep., 530; Haywood v. Foster, 16 Ohio. 88.
    The court erred in not arresting the case from the jury when the plaintiff rested his case. Townsend on Slander and Libel, secton 134 ; Norton v. Ladd, 5 N. H., 203; Waggoner v. Richmond, Wright 173; Van Rensselaer v. Dole, 1 Johns. Cas., 279; 1 Ohio Dig. 759, Apples from my trees, 11 Met., 554; Newell on Del, 117; Frost v. Aeyre, 3 Bulstr., 265; Gamier v. Noonan, 4 Wis., 231; Moak’s Underhill on Torts, 139; Bishop on Non-Contract Law. section 265; Holt v. Scholefield, 6 Term Rep., 691; Thompson v. Berbnard, 1 Camp., 48; Gristie v. Cowell, Peake, 4; Reed v. Ambridge, 6 Carr and P., 308; Zuckerrnan v. Sonnenschein, 62 111., 115; Wing v. Wing, 66 Me., 62; Jackson v. Weisinger, 2 B. Mon., 214; Hall v. Adkins, 59 Mo., 144; Quinn v. (Y Gara, 2 E. D. Smith, 388; Fdgerly v. Swain, 32 N. H., 478; Alleb v. Ilillman, 12 Bick., 104; Newell on Defamation, 305; Abbott’s Trial Evidence, 669.
    The court erred in holding the defense of justification insufficient. Revised Statutes, sections 5093, 5094, 90 O. L., 324; Barret v. Ward, 36 Ohio St., 107; Swan’s Pleadings and Precedents, 522.
    The erasure of the description in a deed striking out the name of the grantee, erasing the acknowledgment or the name of the maker, would each be a material alteration of the deed and within the meaning of the Iowa Statute, would be forgery, yet in neither of these cases, would it be intended to use the altered instrument as and for the genuine one, as in such case with such alteration the deed would be without any legal effect whatever. Hess v. The State, 5 Ohio, 12; Barnhan v. The State, 15 Ohio, 717; Commonwealth v. Bay, 3 Gray, 446; 4 Blackstone, 17; 13 Ency., 466; Laird v. Lhe State, 61 Md., 312; Boode v. The State, 5 Neb., 177; 1 Leech, 405; 2 Bishop C. L., 506; Henderson v. The State, 14 Texas, 517; 2 Bishop C. L., section 572; Section 7091, Revised Statutes.
    The English statute did not define forgery.' Beg v. Biteon, Law Reports, 1 C. C., 200; States. Young, 46 N. H., 266; Commonwealth v. Ladd, 15 Mass., 526; State v. Pierce, 8 Iowa, 231; State v. Wooderd, 20 Iowa, 541; States. Maxioell, 47Iowa, 454; Bishop on Non-Contract Law, 609;. Willson v. Oreen, 25 Vt., 450.
   By the Court.

The ground of reversal by the circuit court was that the court of common pleas erred in excluding the testimony of the defendant Horn, as to his feelings toward the plaintiff, and as to his purpose and intent in writing and publishing the article. It is insisted that the exclusion of the proposed evidence was proper, • because it had not been shown that the relief on which the defendant acted was justified by any facts of which he then had knowledge.

Wé think there was no error-in the holding of the circuit court. The rule, well established by authority and founded in reason, is that, in a suit for libel, the plaintiff having introduced evidence tending to show a right to recover punitive damages, evidence by the defendant as. to his motives in the publication is competent as bearing upon, the question of punitive damages. Whether the alleged belief • is well or ill-founded is a question for the jury.

Other exceptions to the ruling of the trial court were argued, and have been considered. We deem it sufficient to say that we do not find error in the record as to such exceptions.

Judgment affirmed.


author: Williams, J.

text:
    Kingsborough v. Tousley, et al.

      Action on personal judgment — Competent to plead in defense that defendant was not served with process — Though record shows otherwise.

    1. In an action on a personal judgment, whether rendered by a court of this state or elsewhere, it is competent to plead and prove in defense, though it be in contradiction of the record, that the defendant was not served with process, nor jurisdiction of his person, otherwise obtained by the court rendering the judgment.
    2. Such a defense is not within the rule which forbids the collateral impeachment of judgments, but is in the nature of a direct attack upon the judgment.
    3. An answer in such case is not defective because it fails to state a defense to the cause of action on which the judgment is founded.
    (Decided June 8, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    Suit was brought in the court of common pleas, by Tousley, on a judgment recovered by him against Kingsborough before a justice of the peace of Cuyahoga county.
    The petition sets forth the date and amount of the judgment, including costs, and prays judgment for the aggregate sum with interest. A transcript of the proceedings'of the justice is attached to the petition, from which it appears that a return was made of a summons issued against the defendant, stating that he was served by leaving a copy at his usual place of residence. And the transcript further shows that, failing to appear on the return day of the writ, the judgment was rendered against him by default. The answer filed by the defendant avers that when the action before the justice was commenced, and during its pendeney, his domicile and residence was in the state of Illinois, and had been for a long time before that, and so continued to be for a long period thereafter, during which time he was not within the state of Ohio; and, that no summons was ' served on him, nor other notice given him of the commencement or pendency of the suit; and furthermore, that he did not discover or learn of the judgment rendered by the justice, until the commencement of the action below, upon it. He further alleges that the justice was without jurisdiction of his person, and that the judgment is void; and prays that it may be so adjudged, and its enforcement perpetually enjoined. The answer does not set forth any defense to the original cause of action.
    Issue having been joined on the allegations of the answer, the defendant, on the trial, gave evidence in their support, which was received subject to objections made by the plaintiff to its competency; and at the conclusion of the evidence, as the record shows, the court sustained the objection and excluded all the testimony of defendant, and “held and so decided, that the allegations in the cross-petition of the defendant were not sufficient in law to constitute a defense to the matters and things set forth in the petition, in that there was no allegation in said answer and cross-petition of a mentioned defense to the original cause of action upon which the judgment pleaded in this ease is founded. ’ ’
    Thereupon the court gave judgement against the defendant for the amount of the justice’s judgment with interest, which having been affirmed by the circuit court, error is prosecuted here.

      McMillin & Dickey, for plaintiff in error.
    We maintain that the evidence excluded in the Court below shows affirmatively that the Court had no jurisdiction of the person of plaintiff in error, and therefore no jurisdiction to render a judgment, and that such pretended judgment is void and of no effect. Spier v. Cortt, 33 Ohio St., 236; Thompson v. Whitman, 18 Wall., 457; Knoioles v. The Gas light c& Coke Co., 19 Wall., 58.
    It is now maintained in the case at bar, that the return of the constable in the record of the justice is conclusive, and its statements absolute verity, that cannot be contradicted, although plaintiff in error was at the time a resident of the state of Illinois, and had not been within the state of Ohio for'more than.one year preceding the date of the judgment.
    We maintain that such is not the law. Ferguson v. Crcmford, 70 N. Y., 253; Cowenon Hill’s notes, 1 Ed. 801, note 551; Rape v. Heaton, 9 Wis., 328; Pollards. Wegener, 13 Wis., 569; Owensv. Rcmstead, 22 111., 161; Nomoood v. Cobb, 15 Tex., 500; Aldrich v. Kinney, 4 Conn., 380; Jones v. Terry, 43 Ark., 230; Newcomb v. Dewey, 27 Iowa, 381; Mastín v. Gray, 19 Kan., 458; McNeill v. Edie, Sheriff, 24 Kan., 108; Ridgeway v. The Bank of Tennessee, 11 Humphrey, 523; Bell v, Williams, Admr., 1 Head, 229; Ryan <& Co. v. Boyd, 33 Ark., Rep., 278; Dozier, Admr. v. Richardson, Harts field & Co., 25 Ga., 90; Stone et al v. Skerry et al., 31 Iowa, 582; Mallett v. Uncle Scorn Mining Co., 1 Nev., 156; Pennoyer v. Neif, 95 U. S. Rep., 714; Callen el al. v. Ellison, 13 Ohio St., 446.

      William, V. Tousley, for defendants in error.
    The record of the justice shows as per transcript in the record that Kingsborough, plaintiff in error, was duly served by leaving a true copy of the writ at his usual place of residence in every way according to the law at that time. Ohio statute, section 6476. The Code of Ohio, section 6705, makes applicable to the practice before a justice all of the code from section 4947 to 5912.
    Copies of a justice docket, unpretending, simple and informal as they are, are evidence of so high a nature that they import absolute verity, they cannot be contradicted at all. Daily v. Ruckei, 14 Ohio, 93.
    Return of a sworn officer on a process which it is his duty to make, are conclusive of the facts therein contained as to parties and privies to that suit. Wherever there is sufficient privity to enable the party to sustain an action against the officer for a false return. Phillips v. Ell well, 14 Ohio St., 244; Robins v. Clements, 41 Ohio St., 286.
    When it appears by the record that the justice had acquired jurisdiction of the subject matter and the parties, the judgment of the justice of the peace is as impregnable against collateral attack as the judgment of any other court in the state. McCurdy v. Baughman, 43 Ohio St., 81.
    The court’s decision is binding on this point; because it was authorized to make it, and because of public policy and the r.espect due to the sovereignty it represents; and further on same subjects. Callen v. Ellison, 13 Ohio St., 454; Hall v. King, 4 Ohio, 135.
    Before the return can be controverted there must be a direct proceeding against the officer and the direct proceeding put in issue. No collateral impeachment is permitted. Mueller v. Gogrieve, 2d Disney, 321.
    Equity is not concerned about a judgment which although irregular is in fact just and equitable. Gifford v. Morrison, 37 Ohio St., 506.
    The return of an officer to the summons cannot be impeached or contradicted. The case presented is almost like this one. 21 Bulletin, 258.
    The return of an officer of service of summons is conclusive; if the return is false the remedy is against him, the officer. 40 Arkansas, 141.
    Judgment will not be set aside. 96 Indiana, 433-52 Michigan, 260. Freeman on judgments, 124, 125 and 152.
    A party though a non-resident, to such finding who conceives himself prejudiced thereby must resort to some one of the various modes provided by law for appeaal, review, 'rehearing- or impeachment. Foivlery. Whitterman, 2.Ohio St., 270.
    The records of a justice import absolute verity when jurisdiction of matter and parties affirmatively appear, every other matter necessary to support the judgment will be presumed. 3 Western Law Monthly, 621. Van Vleet on Collateral Attack, sections 526, 804, 831, 866 and 891.
    Judgments for lack, of service will not be reversed unless a good defense is shown. Black on Judgments, vol. 1, section 377.
    It is error for a court to set aside its own judgment until it first finds -that there is a good defense. Braden v. I-Ioffman, 46 Ohio St., 639.
    A court of equity does not act as a court of error to reverse judgments of law. Hall v. King, 1 Ohio, 413.
   Williams, J.

The questions in the ease, are:

1. Was it competent for the defendant to .impeach the judgment on which the suit was brought, by showing in contradiction of its recitals, that he was not served with process, nor jurisdiction otherwise obtained of his person? And if so, (2) was the answer defective because it failed to state a defense to the cause of action on which the judgment was rendered? Two seemingly conflicting principles have given rise, in their application, to differences of judicial opinion concerning the effect of judicial records. The one accords to judgments of courts having apparent jurisdiction of the subject matter and parties in an action, conclusive verity as to all matters purporting to have been adjudicated, and precludes a re-examination of them in subsequent litigation between the parties and their privies. And the other, asserts the right of every person to his day in court, and an opportunity to be heard, before he can be condemned in his person or property. In accordance with the former, the rule generally prevails, and is nowhere more firmly established than in this state, that when it does not otherwise affirmatively appear from the record, it will be conclusively presumed, whenever a domestic judgment of a court of general jurisdiction is .drawn in question in any collateral way, that the court regularly acquired and lawfully exercised its jurisdiction over the parties; and the record of an inferior court imports absolute verity when it shows on its face that such jurisdiction was obtained; and neither the presumption, nor recitals of the record, can be contradicted in such a proceeding, by extrinsic evidence. When the record discloses a want of jurisdiction the judgment is, of course, void everywhere, and for every purpose. On the other hand, the other principle referred to is sometimes employed to justify the broad statement that in all cases, even when the judgment is collaterally assailed, the jurisdiction of the court rendering it may be inquired into, and a want of service, or the absence of other, jurisdictional facts be shown by parol, in opposition to the recitals of the record. ’ Most of the cases in which the rule is so stated that have fallen under our observation, however, are those in which the question arose upon defenses to suits on judgments, and may, perhaps, on that ground be brought in harmony with the rule usually adopted of permitting such inquiry and proof when the judgment is directly attacked for want of jurisdiction. For while there is some conflict of the decisions as to whether, where there is a presumption of service and jurisdiction, or where these - appear on the face of the record, it can be shown in a collateral proceeding that in fact no service was had, the authorities are substantially uniform-to the effect that when the judgment is directly attacked for want of jurisdiction, such want of service and jurisdiction may be shown, though it be in contradiction of the record. But here, again, the authorities differ as to what constitutes an attack of that nature. It is conceded that it includes proceedings in error, motions to vacate or modify the judgment, and that in some cases it may be made by original action, as was formerly done by bill in chancery to correct or set aside the judgment. That in a suit brought in one state upon a judgment rendered in another, it is competent to show that the judgment was rendered' without jurisdiction, though the record récites all necessary jurisdictional facts, is

maintained by a series of decisions of tbe Supreme Court of the United States, notwithstanding the provision of the federal constitution which requires that “full faith and credit shall be given, in each state, to the public acts, records and judicial proceedings of every other state, ” and the act of congress in pursuance thereof, providing that they “shall have such faith and credit given them in every court within the United States, as they have by law or usage in the courts of the state from whence the records are or' shall be taken.” D'Arcy v. Ketchum, 11 How., 165; Thompson v. Whitman, 18 Wall., 457; Pennoyer v. Neff, 95 U. S., 714. In several reported decisions of this court the same rule has been declared. Pennywit v. Foote, 27 Ohio St., 600; Spier v. Corll, 33 Ohio St., 236. And in the state of New York, the courts maintain the same right of attack in suits on domestic judgments; holding, that there is no solid ground upon which to rest a distinction in that regard between domestic judgments and those of sister states. Borden v. Fitch, 15 Johns., 141; Ferguson v. Crawford, 70 N. Y., 253.

In Spier v. Corll, supra, the action was upon a judgment rendered in another state; but the court, in the syllabus, lays down the broad rule, that “the jurisdiction of a court or tribunal entering a judgment in any particular case may always be inquired into, when such judgment is made the foundation of an action either in a court of the state in which it was rendered, or of any other state. ’ ’ And in the ease of Clark v. Little, 41 Iowa, 497, it is held that, where in a suit on a domestic judgment the defendant denies the jurisdiction of the court rendering it, for want of notice, or service of process, his defense is not a collateral, but a direct attack upon the judgment, and it is permissible for him to show that service was not made upon him. Cases are found in other states also, which maintain that doctrine. A direct attack on a judgment has been defined to be one by which the judgment is directly assailed in some mode authorized by law; while a collateral attack is an attempt to' defeat the operation of a judgment, in a proceeding where some new right derived from or through the judgment is involved. The rules of law applicable to these different methods of attack are based on substantial reasons which serve to make more apparent the real distinction between them. The rule which forbids the collateral impeachment of judgments is founded on those considerations of public policy which require stability of judicial records for the protection of those who acquire rights and property in reliance upon their conclusive effect, and for the peace of society; and, as said by Read, J., in Boswell v. Sharp, 15 Ohio, 447, 465, “seems to have been adopted from right and necessity, to give confidence to the judicial action of the country, and protect those who have made purchases on the faith of judicial sales.” It is obvious these reasons find no just application in an action brought upon the judgment, in which the only relief sought is a new recovery on it, as a debt of record; and where no rights of third persons have intervened, or are involved. Nor, in such case, would there appear to be any substantial ground for denying to the defendant the right to show in defense to the action, that the judgment was rendered without jurisdiction. Such a defense may, we think, be properly regarded as a direct attack on the judgment, and not within the rule or its reason, against collateral impeachments.

Besides, the answer of the defendant in the action below alleges that he was a resident of the state of Illinois when the suit was brought before the justice, and when the judgment was rendered; and that he was not served with process, nor his appearance otherwise effected. And, since the adoption of the fourteenth article of amendment to the federal constitution, the Supreme Court of the United States has held, that the validity of a personal judgment rendered by a state court against a person who was at the time a resident of another state, and who was not served with process nor appeared, may be questioned, and its enforcement resisted on the ground that the proceedings of a court of justice to determine personal rights and obligations of one over whom it has no jurisdiction, is not due process of law. To give such proceedings, any validity, that court says, there must not only be a tribunal competent to pass upon the subject matter of the suit, but, if “that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process or his voluntary appearance. ’ ’ Pennoyer v. Neff, 95 U. S., 714; Freeman v. Alderson, 119 U. S., 185. Following these decisions, and applying them to a case not distinguishable in its facts from the one before us, the Supreme Court of Massachusetts has recently held, that a judgment in personam against a person • who was not personally served with process, nor appeared in the action, cannot be enforced by a suit upon it, either in the same or in any other court; nor can the defendant in an action upon it, be deprived of his right to show by plea and proof that the judgment is void, without abridging his privileges and immunities which it was the object of the fourteenth article of amendment to protect. Needham v. Thayer, 147 Mass., 536. Whether the enforcement of such a judgment, or a denial of the right to defend against it by showing the want of jurisdiction of the court rendering it, violates the constitutional provision referred to, is a federal question, with respect to which the state courts are necessarily controlled by the decisions of the National Supreme Court.

But, it is claimed that sections 5354, to and including 5360, of the Revised Statutes, provide a method of direct attack upon judgments, by proceedings thereunder to have them vacated or modified,of which the defendant should have availed himself, and by which he is required to tender a good defense to the action, before a vacation of the judgment can be obtained. Neither in their terms, nor in their nature, are these provisions of the statute applicable to justice’s courts; and if they were, the time within which the remedy they afford may be resorted to, had elapsed, as the answer alleges, long before the judgment complained of was discovered by the defendant. The only provision of the justice’s code on the subject, is contained in section 6578, which authorizes a defendant, when a judgment has been rendered against him in his absence, to move within ten days thereafter to have it set aside upon the terms therein prescribed; and the limitation contained in that section, rendered impracticable any proceeding under it by the defendant after he first learned of the judgment. In such a case, under the practice which prevailed before the adoption of the civil code, a hill in equity would lie for relief against the judgment; or, similar relief might have been obtained by cross bill in a suit in the nature of a creditor’s bill to reach equitable interests of the judgment debtor, or other proceeding in chancery to enforce the judgment. Bank v. Stevens, 1 Ohio St., 233; Ridgeway v. Bank, 11 Humph., 523; Bell v Williams, 1 Head, 229; McNeil v. Edie, 24 Kan., 108. And where the judgment was obtained without jurisdiction of the party, he was not required to tender a valid defense to the cause of action on which the judgment was rendered, in order to obtain relief against it. The practice in chancery, in such cases, is sufficiently shown by the' case of Ridgeway v. Bank, supra, which was a suit to enjoin the collection of a judgment the record of which showed the defendant therein was duly served with process, and was otherwise regular on its face. The bill to enjoin, alleged that the complainant was not summoned, and the judgment was rendered without notice to him. The court said: “In the first place, it is very evident that if the party was not summoned, and did not appear in the suit at law, the court had no jurisdiction of his person, and its judgment against him, would be, for that reason, merely void. This principle is founded in natural justice, and is universal in application. Borden v. Fitch, 15 J. R., 140; Bigelow v. Stearns, 19 J. R., 40; Buchanan v. Rucker, 9 East., 192. A judgment thus obtained, without notice or defense, and without a day in court to make defense, is an injury to the rights of the party • for which he should not be without remedy. Now, in the present case, this principle should apply with the greater force because the judgment in question is to be considered as void, by reason of an extrinsic fact, which eannot'be averred or be made to appear in a court of law, and a court of law has not, therefore, any power to arrest its execution however unjust or iniquitous. Nor is it material in such case to inquire whether the defendant could have made any valid defense, if he had been summoned. The injury of which he justly complains is, that a judgment was rendered against him without notice and without defense. We cannot doubt but that in view of a court of equity, it is unjust and unconscientious to attempt to enforce a judgment so obtained.”

The equitable remedy was not taken away by those statutory provisions authorizing an application to the court in which the judgment was rendered, to vacate or modify the judgment; nor was it abrogated by any provision of the code. And, as the ultimate legal and equitable rights of the parties concerning the subject matter in litigation, may now be finally determined in the civil action of the code, which has taken the place of both the former action at law and suit in equity, there is no reason why, in an action on a judgment, the defendant may not plead by way of defense, any matter which would have been available as a ground of relief in equity against the judgment. The code authorizes a defendant to plead the equitable, as well as the legal defenses he may have to an action; and whatever is sufficient in equity to defeat a judgment, or its enforcement, is a valid equitable defense to an action brought upon it. The answer of the defendant in the action below stated a defense of that character. If sustained by proof it practically puts an end to the judgment, and affirmative relief by way of injunction is unnecessary. The judgment below must be reversed, and cause remanded.

Judgment accordingly.