text:
    Lessee of Thomas E. Boswell and others vs. Sharp & Leppelman.
    If a bill in chancery be filed against nonresidents, in the county where the land lies, to enforce a specific performance of a contract for the conveyance of the same, and for an account for money expended and labor performed in improving the land, and the Court render a decree merely for the payment of money, the decree, if erroneous, can only be corrected by bill of review, and cannot be impeached, collaterally, in an action of ejectment.
    A purchaser at a sale made under such decree, acquires a good title.
    The subject matter of the suit being within the jurisdiction of-the Court, the defendants may be made parties by publication, and, if notice be thus given, and the Court ‘ pass upon the sufficiency of the notice, the same cannot be questioned collaterally,-
    This is a Writ or Error to the Court of Common Pleas of '' Sandusky County. .
    ■ The original action was ejectment, to recover a tract of land on which a portion of the town' of Lower Sandusky is. situated..

      In Bank.
    Dec. Term, 1846.
    On the trial, the plaintiff having established a clear right to recover, the defendants offered, in evidence, the record of a judicial proceeding, a decree and sale of the land in controversy, which was objected to by plaintiff’s counsel, but admitted by the Court, and this is assigned for error.
    The substance of the facts, as disclosed by the bill of exceptions and agreed facts, is as follows:
    From the 1st day of May, 1825, up to the 1st day of August, 1826, neither Thomas E. Boswell nor William T. Barry were within the State of Ohio, and were resident citizens of the State of Kentucky. That said. William T. Barry died in 1837, and that plaintiff’s lessors (other than said Boswell,) are his heirs at law, and that the legal title to the premises in controversy is in said'Boswell and the other lessors of the plaintiff, as tenants in common, unless it passed to Thomas L. Hawkins at a sale made to him by the sheriff, under certain proceedings had on the chancery side of the Court of Common Pleas of Sandusky county, at the suit of said Hawkins against said Boswell and Barry and one William Whitimore, which proceedings said defendants gave in evidence as the foundation of their title, and to which the plaintiff objected, which objection was overruled by the Court, and said proceedings, execution and sheriff’s deed were received in evidence, and judgment given for the defendants.
    Copy of the Bill in Chancery.
    “ Plumbly complaining, showeth unto your honors, your orac tor, Thomas L. Hawkins, that some time in the year 1816, £ Thomas E. Boswell, then and now of the State of Kentucky, £ your orator, one Reed, and, also, one Owings, engaged in £ building a sawmill at the town of Lower Sandusky, with a £ view and intent of purchasing of the government, eventually, £ the land where said mill was to be erected. Orator further ‘ shows, that said Boswell advanced a part of the expenses ne- £ cessary to the comencement of said mill, how much orator £ does not now remember, Owings about two hundred dollars, ‘ and Reed nothing.

      “ Orator further says, that all parties interested agreed that £ orator should be the acting agent in erecting said mill, and ‘ should advance his-- of expense in said mill by labor, ‘ and if ho advanced more than his share, the other parties £ to refund. . That orator went on and expended his time, £ labor and money, from 1816 until the land at Sandusky Res- ‘ ervation was sold by government, at Wooster, in 1818, when 1 Reed and Owings abandoned the purchase of land on which ‘ said mill was commenced, or to proceed with said mill any ‘ further. It was then agreed by Boswell, William T. Barry ‘ of Kentucky, and William Whitimore of Boston, (all three £ of whom orator prays may be made defendants to this bill,) £ and orator, to go on and purchase lot number nine in said ‘ reservation, or a large part of it, and the same on which said ‘ mill was commenced. That said purchase was made, and £ purchasers agreed that orator should advance his share of pur- ‘ chase money in labor on said mill and the improvements of £ said land; and, further, that said orator should be the acting ‘ agent of said Boswell, Barry and Whitimore — should go on c and make contracts for the erection of said mill. Orator fur- £ ther says, he did go on and superintend the building of said ‘ mill, and continued to labor upon the same until 1823, and £ laid out for himself and others interested in said mill, about £ $5,000 — about $2,600 thereof, orator advanced himself, be- £ sides his own time. That orator believed, that said Whiti- £ more, Boswell and Barry would convey to him one equal share £ of the land in said lot, that is, one-fourth of all that they £ should obtain a legal title to, of said land. Orator further £ says, that said defendants have obtained a legal title to twqc thirds of said lot, and now refuse to convey to orator any part ‘ of said land, or to account and refund to him the money he £ has laid out, more than his share, on said mill, or pay him for £ his time expended, for his agency, &c.; all which actions and £ doings are contrary to equity and good conscience, in tender £ consideration whereof, and inasmuch as orator is remediless, £ by the strict rales of common law, and can only be relieved ‘ by this Court, sitting as a Court of Equity.
    ££ To the end, therefore, that said Boswell, Barry and Whitic more may, upon their corporeal oaths, true answers make to £ all matters herein charged, and, on the final hearing of this £ cause, your Honors will decree that said defendants convey £ one-fourth of the said land to which they have obtained a le- ‘ gal title, and also, to account to your orator for the money £ and time he has expended, more than his share, on said mill, £ and the improvements of said land, and that notice be given £ defendants,” &c. ££ O. Parrish, Sol. for Compl.”
    Journal Entry, and which was published as notice, made at the May Term, (25th May,) 1825.
    “The complainant, by Orris Parrish, his solicitor, came and £ filed his bill, and it appearing to the satisfaction of the Court £ that the defendants are nonresidents of this State, but reside £ in the States of Kentucky and Massachusetts, it is therefore £ ordered, that notice of the pendency of this suit be published £ in the Western Statesman, a newspaper printed in the town £ of Columbus, Ohio, for the term of nine weeks, successively, £ before the next term of this court; and, that unless the said £ defendants appear at the October term of this Court, and £ plead, answer or demur to said bill, that the matters and £ things therein set forth and charged will be taken as confessed £ against them accordingly; and this cause is continued.”
    Journal Entry made at the October Term, 1825.
    “ Publication proved. This day came the complainant, by £ O. Parrish, his counsel, and on motion, leave is given by the ‘ Court to amend his bill, and this cause is continued; and, at £ the date last aforesaid, the said complainant filed in the office £ of the clerk aforesaid, an exhibit, in the words and figures £ following, to wit: T. L. Hawkins v. Barry and Boswell. ‘ In chancery. Personally appeared in open court, O. Parrish, £ one of the editors of the Western Statesman, published at £ Columbus, Ohio, and made oath that the order in this case, ‘ made at the last term of the Court, to give defendants notice, £ &c., has been published in said paper nine weeks succes- £ sively, since the last term aforesaid. O. Parrish. Sworn and ‘ subscribed in open Court. Jas. A. Schranton, Clerk.”
    Journal Entry made May Term, 1826.
    ££ This day came the complainant, by his counsel, and the 1 defendants still failing to appear and plead, answer or demur £ to complainant’s bill. On motion of said complainant’s counc sel, it is ordered, adjudged, and decreed, that the matters and ‘ things in said bill set forth and charged, be taken as confessed £ by defendants. And it is further ordered, that James A. ‘ Schranton be appointed Special Master Commissioner, to take £ an account between the parties, and report to this Court the £ amount due from defendants to complainant, for money ad- £ vanced and labor done in erecting and building the mill in bill ‘ mentioned, more than his share of the expenditures in build- £ ing said mill, and report the evidences on which his report £ shall be made. All other questions relative to this cause are £ open and continued till final decree.”
    Master’s Report, made to the July Term oe said Court, A. D., 1826.
    Divers small sums are set -out, amounting to the gross sum of...........,.. ................§2,016 86
    Book account; charges made by complainant for cash paid out, labor done, and materials furnished, 2,417 67
    Five years’ services by complainant, from the year 1817 until 1821, at §220 pear year.......... 1,100 00
    §5,534 53
    Deduct from the above, one-fourth, complainant’s share................................ .... 1,374 64
    §4,15.9 89

      Amount received by complainant, of defendants, in money, labor, materials, rents, sales, &c.................. $3,090 56
    One-fourth to be deducted as complainant’s part...................... 775 14
    ■$2,315 42
    $1,844 47
    Final Decree, made at the July Term, A. D. 1826.
    ££ And now, at this day, came the complainant, by his solici- ‘ tor, and this cause came on for final hearing, upon the decree £- pro confesso aforesaid; and the bill and exhibits filed in this ‘ cause, and upon the report of James A. Schranton, the Spe- ‘ cial Master Commissioner in Chancery, to whom the same £ was referred; and the said Master having reported to this £ Court, in pursuance of their said order, that there was due £ complainant from the defendants the sum of $1,844.17, for £ his disbursements, advances and services; the account having £ been received and inspected, the said report is accepted and £ confirmed by the said Court, and find the said sum of £ $1,844.17 to be due from the defendants to the complain-c ant. And thereupon the Court do order, adjudge, and de- £ cree, that the complainant do recover of the said defendants £ the said sum of $1,844.17, and his costs by him in this be- £ half expended. It is further ordered, adjudged, and decreed, £ that this decree shall, from the time of its being pronounced, £ have the force, operation, and effect of a judgment at law, £ and shall be a lien upon all the town lots of the defendants £ within said county, and also on all other real estate of the ‘ said defendants, within said county of Sandusky, as security 1 for the satisfaction of said decree. And it is further ordered, ‘ adjudged, and decreed, that if the above sum of $1,844.17 1 be not paid within thirty days from the date of this decree, 1 upon a precipe being filed with the Clerk of’this Court, by c the complainant or his solicitor, execution shall issue against ‘ the goods, chattels, lands and tenements of the defendants, ‘ which shall be taken in execution, and sold in like manner as ‘ though said execution issued on a judgment rendered in a ‘ court of law. And all further proceedings in this'cause to be ‘ continued until next term.”
    No further action of the Court was ever had in the case; but on the eighth day of August, A. D. 1826, an execution was issued on this decree, on the twelfth it was levied on the lot in question, and on the twenty-fifth of September, A. D. 1826, -it was sold by the sheriff, and bid off by said Hawkins, and the defendants in this suit hold whatever passed at said sale.

      Bartlett fy Watson, for Plaintiff in Error.
    It is insisted by the plaintiff, that the legal title to the land in controversy remains unaffected by the proceedings in chancery—
    First: Because jurisdiction was not conferred upon the Court, by the publication of notice, over the subject matter upon which the decree is based.
    All demands of a personal character attach themselves to the person of the party, and follow him wherever he goes; and their enforcement depends upon the laws of the country, where the party is found.
    At common law, bills, to enforce the specific execution of contracts for the conveyance of land, could only be prosecuted where the party could be personally served with process. Mas- . sie v. Watts, 2 U. S. Cond. Rep. 332; Story’s Eq. PI. 482.
    Hence, it is by virtue of statutory provisions that a Court has jurisdiction over a thing, when the person cannot be reached, and the party must bring his case within its provisions. Ra-burn v. Shortridge, 2 Blackf. Rep. 109.
    Courts, when proceeding under notice by publication, are courts of special and limited jurisdiction, and cannot extend their decree beyond the provisions of the statute, even when the proceeding is strictly in' rem. Hollingsworth v. Barbour 4 Peters’ Rep. 466; Düvál v. Duval,- 13; Mass. Rep. 263. '
    Second : The'Court of Chancery had no jurisdiction^of the case, for the reason,'that the prescribed publication was not made. The law required that the notice should “ set forth the ,£ pendency of such petition, and the substance of the prayer ‘thereof.” The proof was, that the. order .of-the Court had been published. This, certainly, was not'a substantial complianee with'the ’law; without which the Court had not jurisdiction. Dunning v. Corwin, 11 Wend. Repi 647;’ Thatcher v, Powell; 6 Wheat,- Rep, 1T9; Jackspn v. Esty, 7 Wend. Rep. 14?. ‘
    The-principle for which we are conténding is also-recognized and enforced in the following-cases: 'Warner v.- Webster, 13 Ohio Rep. 506;. Humphrey v, Wood, Wright’s Rep, 566; Bennett’s Lessee v. Williams, 5 Ohio Cond. Rep. 293; Campbell' v. Cpwden et al., Wright’s Rep/'484;' Taylor v. Kelson, 1 Blackf. Rep. 215; Lessee of Adams v. Jeffries, 12 Ohio Rep. 271; 6 Har. & Johns. Rep. 130; 6 Wheat. Rep. 119 ;- Í1 Wend. Rep. 647 ; 12 Wend. Rep. 9.
    .. Third:' The .proceedings are void • for want of a pertinent description of -the land. Lessee of Massie’s Heirs v. Long, 2 Ohio Rep. 287; Treoú’s Lessee v, Emerick, 6 Ohio Rep. 391; Pellón v. Platner, 13 Ohio Rep. 219.
    Fourth: If jurisdiction was acquired for any purpose, it 'was such only as authorized a proceeding in rem, and the Court transcended its authority in making a personal decree. It acquired jurisdiction only for a specific purpose; beyond that it had no power. Story on Con. of Laws, 461; Bates v. Deldr van, 5 Paige’s Rep. -299,; Bissell v. Briggs, 5 Mass. Rep. 468; Kibby v. Kibby, Kirby’s Rep. 119; Mitchell’s Lessee v. Eyster, 7 Ohio Rep. 384.
    The statute, giving the Court of Chancery power over land, within the county, did not attempt to confer upon it a jurisdiction in personam against nonresidents; neither had , the Legislature power to confer upon the courts such an act of sovereignty. 3 Phil. Ev. (Cowen & Hill’s notes) 908; Buchanan v. Rucker, 9 East’s Rep. 192; Lincoln v. Tower, 2 McLean’s Rep. 482; Mills v. Burgee, 7 Cranch Rep. 482; Picquet v. Swan, 5 Mason’s Rep. 35; Lockwood v. Wild-man, 13 Ohio Rep. 450; 7 Johns. Ch. Rep. 1.
    If the defendant is not served with process within the jurisdiction of the Court, and does not appear to the suit, a valid personal judgment or decree cannot be taken against him., To sustain this position, there is a strong and unbroken current of authorities. 5 Johns. Rep. 37; 8 Johns. Rep. 195; 6 Wend. Rep. 447; 13 Wend. Rep. 407; 2 Blackf. Rep. 82; 4 Conn. Rep. 380; 3 Wils. Rep. 197; 10 Serg. & Rawle’s Rep. 240; 7 Ohio Rep. 273; 13 Ohio Rep. 209; 1 Kent’s Com. 261, note b.

      Buckland, Hays and Lane, for Defendants.
    The plaintiffs’ title is shown by a patent.
    The defendants’ title depends upon the validity of a judicial sale, under the proceedings of the Court of Common Pleas of Sandusky county, in the case of Hawkins v. Boswell et al. The plaintiffs are expected to publish the records in their brief. If not, an exemplified copy will be found among the papers, it being a part of the bill of exceptions.
    It is understood, the strongest objection to the title, is, the want of sufficient notice. The statute of 1824, (XXII, 75,) was in force at the time of these proceedings. The 12th section provides:

      “ That in all cases properly cognizable in a court of equity, ‘ when either the title to or boundaries of land may come in question, or when a suit in chancery becomes necessary in or- ‘ der to obtain the rescission of a contract for the conveyance ‘ of land, or to compel a specific execution of such contract, ‘ and the defendant or defendants against whom a decree is ‘ sought is or are not resident within the State, it shall be com- < petent for the complainant to 'file his or her petition in the £ proper court of the county in which such lands may be situ4 ate, and such court is hereby authorized to take cognizance 4 thereof, and direct either personal notice or notice by publica4 tion, of its pendency, to be given as in this act provided, and 4 on proof of such notice having been given, to proceed as in 4.other cases.”
    Sec. 7. 44 That if any person shall file a petition in chance-4 ry against any defendant residing within this State, in which 4 it shall be proper or necessary to join any other defendant re-4 siding out of the State, whether in the United States or any 4 other country, the complainant may cause personal service to 4 be made on such absent defendant by a written notice, setting ’4 forth the pendency of such petition, and the substance of the 4 prayer thereof, or he shall cause publication to be made of 4 such notice for nine weeks successively in some newspaper 4 print (1 in this State, and having general circulation in the 4 county where such suit shall be pending, and on due proof 4 that such notice has been given, such defendant shall be con-4 sidered in court, and be thereupon proceeded against in the 4 same manner as if he had been regularly served with a sub-4 poena in the cause.”
    The notice actually published is as follows:
    “ The State of Ohio, Sandusky Common Pleas, May term, 4 A. D. 1825. Thomas L. Hawkins v. William T. Barry, 4 Thomas E. Boswell and William Whitimore. This day 4 came the complainant, by Orris Parrish, his solicitor, and filed 4 the bill, and it appearing to the satisfaction of the Court, the 4 defendants are not.residents of this State, but reside in the 4 States of Kentucky and Massachusetts, it is therefore ordered, 4 that notice of the pendency of this suit be published in the 4 Western Statesman, a newspaper printed in the town of 4 Columbus, Ohio, fo.r the term of nine weeks successively, be-4 fore the next term of this Court, that unless said defendants 4 appear at the October term of this Court, and plead, answer 4 and demur to said bill, that the matters and things therein set ‘forth and charged will be taken as confessed, and, a de- ‘ cree rendered against them accordingly. A true copy. Jas. ‘ A. Scranton, Clerk.”
    It is assumed by the plaintiff, that the Court only acquires jurisdiction by the publication of a notice which specifies “ the ‘ pendency of the petition and the substance of the prayer ‘ thereof,” and that these proceedings are void because there was no sufficient compliance with the last condition. The defendants will attempt to show, the validity of the sale does not depend upon such a strict and literal fulfillment of these requirements.
    The defendants do not claim that a judgment or decree is binding upon a party who has had ho day in court, or that a judgment is good without some equivalent to the service of process. For present purposes, they do not deny that a court of special jurisdiction, or a court of general jurisdiction, while exercising special powers, must show the condition upon whose existence its jurisdiction depends; but they claim, that the proceedings of courts of general jurisdiction, while exercising their ordinary functions, shall be supported by every reasonable intendment, and they claim the benefit of the most favorable presumptions arising from the nature of chancery tribunals to sustain the force of their acts.
    First: It is submitted, that the fair construction of the 12th section requires no other notice than a notice of pendency. The notice of the 7th section must set forth the pendency of the suit and the substance of the prayer. The 12th section carefully omits the requirement of the substance of the prayer. Its language is: “a notice, by publication, of its pendency, to ‘ be given as in this act is provided; and, on proof of such ‘ notice having been given, to proceed as in other cases.” Not such a notice as the 7th section requires, but “ notice of its pendency.” The phrase, “ to be given,” relates, not to the form of the notice, but to the communication of it to the party, viz: to the manner of publication; that is, “ notice ” “ of the pendency of the suit ” “ is to be given ” “ for nine weeks ' successively in some newspaper,” &c., and the words “such notice,” in the last clause,- by the common rules of interpretation, relate to the last-antecedent —not such notice as-the 7 th section demands, buhsueh a notice as is ,designated in the same sentence. . ■ ■' , , •
    Second: Admitting, for the sakqpf argument, that the notice must contain the substance of the. prayer, is not this reqrii- , sition satisfied when. it actually contains the demand ,of.a decree ? Is it not thé whole substance of the bill, to obtain an answer or a d'ecree ? • If it be held. that' the 12th; section requires the Substance of the prayer, we again recur with confi-' dence tó the practice of the day, which sufficiently manifests . that courts and.partitioners .regarded- such a notice a sufficient compliance with its dernands.
    •; Third: But who can doubt that actual jurisdiction lawfully • attached, and has been rightfully exercised between the parties, to this record,’ Conceding that, the-case was regulated, by the .’ J2.th section, “it .was competent for the complainant to file his f petition in the'proper'courts where the-lands are,situate,, arid “s.Uch court is hereby authorized to take cognizance thereof, A’ahd.;4ir¡ect Now, it may well be contended,, that complete .jurisdiction is conferred'by the simple words, “take cognizance,” when a bill is filed in the county where the land lies, which-is, to he affected by the decree, and that all after proceedings can be erroneous only. But our argument has stronger cogency; for the authority to take cognizance and direct notice' confers, expressly, the jurisdiction to make the order, and involved the right of adjudicating whether such, order has' been complied-with, so that complete jurisdiction over those parties, to some purposes, has become vested in the Court, which, once' acquired, enables- them to go on and dó complete justice between them.; , 11 Ohio Rep. 462; 12 Ohio Rep,368., For where; jurisdiction once attached; all subsequent acts, however erroneous, áre not vqid.
    , No language can more plainly define jurisdiction, than'..that employed .by-.the. Supreme Court at Washington.:. “.The power * to. hear' and determine a cause, is. jurisdiction. It is coram ‘.■jfidic’e,-whenever, a case is presented- which brings their power. 4 into action. ’ If the petitioner states such a case in his peti» 4 tion, that, on demurrer, the Court would render judgment in 4 his favor, it is an undoubted case of jurisdiction. Whether, 4 on an answer denying and putting In issue the allegations of the •4 petition, the petitioner makes out his case; is the exercise of 4 jurisdiction conferred by the filing of a petition containing the 4 requisites, and in. the manner prescribed by law.’? ‘ 6 Pet.. Eep- 709.'
    On a. motion to dismissj . Judge Baldwin" employs more for» cible illustrations: ■44 Any movement, (by a Court) is necessarily 4 the exercise of jurisdiction. Jurisdiction is the power to hear 4 and determine the subject of controversy between the parties 4 td a.suit-; to adjudicate Or exercise any judicial pbw.er over "4 them.- The question is,.whether,- on the case before the Court, "‘"their action is' judicial or extra-judicial, with' or without the 4 authority of law to render a judgment of "decree upon, the 4 rights of the .litigant parties ? If the law confers the power to 4 render "'a judgment .or decree, then the Court has jurisdiction 5 ‘.wh'at-"shall be adjudged or decreed between .the parties, and 4 with whom shall be'thé’right of the cáse, is judicial action, by 4 hearing and determining it.” 12 Peters5 Rep. 718.
    On another occasion, Judge Baldwin says:
    ' 44 If the validity of a sale under its process can be questioned 4 for any irregularity preceding the .judgment, the Court which 4 assumes such power places itself in the position of that which 4 rendered it, and deprives it of all power of regulating its own 4 practice or modes of proceeding, in the progress of a -cause to' ‘judgment. If, after rendition, it is declared void for any 4 matter which can be assigned for errof only, on a writ of error 4 or appeal, then such Court not only usurps the jurisdiction of 4 an appellate court, but collaterally nullifies what such Court 4 is prohibited,. by express statute law, from ever reversing.
    44 The line which separates , error, in judgment, from the usur4 pations of power, is very definite; and is precisely that which 4 denotes the cases, when a judgment or décree is reversible only by an appellate court, or may be declared a nullity collaterally, when it is offered in evidence in an action concerning the matter adjudicated, or purporting to have been so. In the one case, it is a record importing absolute verity; in the other, mere waste paper: there can be no middle character assigned to judicial proceedings, which are reversible for error. Such is their effect between the parties to the suit; and such are the immunities which the law affords to a plaintiff who has obtained an erroneous judgment or execution. It would be a well merited reproach to our jurisprudence, if an innocent purchaser, no party to the suit, who had paid his money on the faith of an order of Court, should not have the same protection, under an erroneous proceeding, as the party who derived the benefit accruing from it. A purchaser, unc der judicial process, pays the plaintiff his demand on the £ property sold; to the extent of the purchase money, he disc charges'the defendant from his adjudged obligation. Time c has given an inviolable sanctity to every act of the Court ‘ preceding the sale, which precludes the defendant from con- £ troverting the absolute right of the plaintiff to the full benefit ‘ of his judgment; and it shall not be permitted that the pur- ‘ chaser shall be answerable for defects in the record, from the £ consequence-of which the plaintiff is absolved. Such flagrant ‘ injustice is imputable neither to the common nor statute law of £ the land. If a judgment is reversed for error, it is a settled c principle of the common law, coeval with its existence; that £ the defendant shall have restitution only of the money — the c purchaser shall hold the property sold; and there are few, if { any, States in the Union who have not consecrated this prin- £ ciple by statute.
    “ Acts of limitation become useless if a defendant is allowed c to evade them, by avoiding judgments or executions, or the ‘ suggestions of defects or omissions in the records, which can £ be avoided 'only by an appellate court; a direct premium is £ held out for delaying the resort to the mode pointed out by £ law for correcting the errors of judicial proceedings. His debt
      4 is paid by the purchaser; the property purchased is restored 4 to the defendant, without any obligation to refund; and that * which was, when sold, of little value, and bought at its full * price paid to the defendant’s use, becomes his rightful estate 4 when the remote out-lot has become a mart for commerce ' and covered with valuable improvements.
    “ The principles which must govern this, and all other sales ‘ by judicial process, are general ones, and adopted for the ‘ security of titles, the repose of possession, and the enjoyment 4 of property by innocent purchasers, who are the favorites of ‘ the law in every court and by every code. * * * * If 4 the jurisdiction was improvidently exercised, or in a manner 4 not warranted by the evidence before it, it is not to be cor-4 rected at the expense of the purchaser, who had a right to ‘ rely upon the order of the Court, as an authority emanating 4 from a competent jurisdiction.” 2 Peters’ Rep. 163, 168.
    “ When a Court has jurisdiction, it has a right to decide 4 every question that arises in the cause; and whether the 4 decision be correct or not, its judgment, until reversed, is 4 regarded as binding in every other Court.” Elliot v. Pierrel, 1 Peters’ Rep. 340; 2 Peters’ Rep. 169; 10 Peters’ Rep. 474.
    It is needless to multiply these quotations. It cannot be necessary to remind the Court of the cases, where the finding, even by implication, by a Court of limited jurisdiction, of a fact, whose existence is necessary to confer jurisdiction upon it, is itself an exercise of jurisdiction sufficient to establish its authority, and conclusive upon all interests. Whenever a subject exists admitting any such exercise of judicial power, any action of the Court upon it is conclusive. 2 Howard’s Rep. 339.
    Fourth: The defendants have to submit one other view of this question. Admitting that the 12th section required the notice to contain substance of the prayer in certain cases, is this case among them ? That section points out four cases in which the Court have a right to direct publication, namely — to settle land titles or boundaries, to rescind, or to execute contracts. This enumeration omits large subjects of Chancery interference,, as. mortgages, liens, judgments, trusts,,- &c. &c. Now," hence arises the alternative, that, during the-seven years when- this statuté was in ■■ force, either Ohio Courts of. Chancery had no jurisdiction over nonresidents’ property,-except in the .enumerated cases, or they had jurisdiction-in some cases where the form .of notice was. not prescribed. The first member of .-this ■ alternativé proposition .will ‘ hardly be maintained. . “ It were a brave thing: indeed,” if there ever was a time when Ohio Courts cóüld'.nbt- fprecí’ósé, a nonresident mortgage,, of cbuld ‘ fáil. to find -means .to subject to the satisfaction-.of a-judgment or . decree,- the .property of a stranger, .which lay within, its power. . The. latter,alternative'is- therefore true,-and-Ohio Courts could acquire jurisdiction .in nonenUmerated-cases, by such process’as conforms .'to. .the analogies of similar proceedings. If, then, a plaintiff were about to.pursue a lien upon partnership property, a nonehuffierated -,case,’.but one of undoubted jurisdiction, and the process employed' answers every objefct of'giving nqtice, • and precisely conforms- to the existing- arid well established práctico, there is no difficulty in sustaining-the jurisdiction of the Court.' Now this precise case • is shown -in these proceedings. The bill was filed for two objects;. one, to .obtain a title to his share of-the land, the other, to extend the. lien for his advancements over partnership property. One was amorig the .enumerated objects,'the other was not. . The enumerated .cause ' of action was .never pursued, but abandoned without an effort to maintain it; the nonenumerated subject was' pursued to decree. The case, therefore, as made, and pursued, was one iri which the Court could acquire jurisdiction, by its own forms of notice, without being restricted by the provisions applicable to the' enumerated grounds of- equitable bills. -
    Fifth: Should all these -positions fail,.the defendants do not' yetdespair-of sustaining the authority of the Court;.' Where either person or property are'found.within the jurisdiction of a-given forum, which is competent to' investigate' a wrong,-.arid, whose' forms of actio:ti-:furnisli appropriate relief, its.-jurisdiction is' complete, and- it will -so shape .its proceedings ;as ¡to render its interposition effectual :■ Story’s Conflict,-: sec. ,539; -5 Littel,
    49, ‘ .It is among the rights, privileges and. duties óf Chancery, where relief--for an injury depends upon -a relation to the pro-.petty of.-nonresidents-, within1 its jurisdiction, to prescribe its . own terms for.the service of pfocess to prevent a'failure of justice." This- power .is- exercised in every casé of ■ what is called “'substituted service:” It is the course of the Court, where . ordinary' process cannot reach the defendant, to prescribe, by1 order, some form of service-which the Court will regard equi.va- . lent to it. TJsually, it is the service upon the attorney, solicitor, or agehtj or.'even 'by. leaving subpoena at the last place of abodé -of a defendant not withín-.thé government: I Barbour’s. Practice, 52. Where'defendant-is absent, service at his-store on; his servant, may' be good service: 11- Paige, 288; ’ 20 Wend. 57.0. So, service.óh a guardian of an infant,.a lunatic, may, by order, be made good service on the vyard r' 9 Yes; 357. Orders for substituted service are granted now with'more caution than formerly; but-they are still granted ,in proper cases,, and they establish our present position, viz! That every Court, of Chancery having' jurisdiction over the subject, has an inherent. power, not arising from statute, but from the yery.nature of the Court, (which relieves, beyond the ordinary forms of law,), of. adopting such: process as, in its judgment, will- afford -dire relief. But if the power be'admitted ,to exist in airy case, it must exist in all; and.it affords a just basis for the principle we. maintain, that Chancery-, this, extraordinary., tribunal,-.exercising powers beyond the ordinary courts of law,'and adapting'remedies ,tp all ■ exigencies,'■ does possess'.authority where property is found amenable to it’s process, to subject to its adjudications the rights of Its.owners,' and'-this principle will sustai'a the válidity pf the present record. v
    -Either of these positions seems tó ús suffieient-tb support the .jurisdiction of the Court,and establish thevalidity.of there? .córd.' V '''• ■' "
   Read, J.

It is contended on the part of the plaintiffs’ counsel, that the defendants derive no title by the purchase at judicial sale, because the decree under which the sale was had was void, for want of jurisdiction in,the Court pronouncing it:

First: Because the respondents were nonresidents, and the demand personal.

Second: That if the subject matter of the suit lay within the jurisdiction of the Court, the requisite notice by publication was not given to make respondents parties.

Third: That the description of the land in the bill was too vague to constitute it a suit concerning lands, contemplated and authorized by the statute.

The distinction between void and voidable judgments and decrees, is assuming, in the State of Ohio, a very high importance, as affecting titles to lands derived through judicial sales. If the judgment or decree is void, the land itself sold to satisfy it may be recovered back; and such proceeding may be impeached collaterally. The result or consequence, in such case, is precisely as though no such judgment or decree had ever been rendered or pronounced. If the judgment or decree be not void, but simply erroneous, subject to reversal upon writ of error or review, the consequences are wholly different. They must be impeached directly, and cannot be questioned collaterally ; and when reversed; the defendant shall have restitution in money against the plaintiff, and purchasers hold the land or property acquired by the sale had under such judgment or decree, undisturbed.

Such, in many instances, has been the rapid and great rise in the value of property in Ohio, from the springing up of towns, and other causes, that property which a few years ago was sold, even at its full value, to satisfy a small debt, would now, if it could be recovered back, constitute a large fortune. The greatest possible efforts will therefore be made to recover the land itself, when the mere reversal of the judgment or decree, and a moneyed restitution, would be scarcely worth the contest. Hence it is not surprising that able and experienced counsel should, in such cases, put forward the most ingenious and subtle arguments, to show that every defect looks directly to the jurisdiction of the Court. We shall adhere to those salutary and long established principles, which have been adopted from right and necessity, to give confidence to the judicial action of the country, and protect those who have made purchases upon the faith of judicial sales.

It is admitted, that if the Court had jurisdiction and authority to pronounce the decree under which defendants derive title, the plaintiff must fail.

It is said, in this case, that the demand was simply personal, and that without service upon the respondents, who reside in another State, the decree was pronounced against them. If this were so, the objection to the jurisdiction would have been well taken ; but the fact that the decree was for money only, does not establish that fact. The Court pronouncing this decree was a Court of general jurisdiction, and it is not disputed but that it had jurisdiction over cases of this sort.

The bill upon which the decree was pronounced, set up that complainant and respondents had entered into a contract with each other to build a mill, some to furnish money, and some to contribute labor, for which a compensation was to be estimated in money; and that, finally, on acquiring title to the land, which was, at the time of the contract, in the government, the complainant was to have a certain portion of it; that respondents obtained the title, and refused, in any sense, to comply with the contract; and the complainant sought relief by a specific execution of the contract, and by an account for money more than his share expended, and for improvements put upon the land.

Now, the contract set up in the bill is mixed' — a contract for title to real estate, dependent upon the payment of money and the performance of labor, connected with the land and the contemplated improvements. Before the Court could decree a conveyance of the land, it would be necessary to determine whether the complainant had complied with his agreement. The contract- was an ■ entire thing. So .far as the;.title-to the real estate was concerned, as thé land was within -the' jurisdicti'oii of the Court, it is admitted that that was the' place where • the suit should have been commenced.1 It is ;not contended ■' that the complainant could, enforce- that contract, specifically, 'elsewhere! - - ,■

It is not disputed but the Court had jurisdiction ovér contracts affecting realty. .'This power-is'expressly' conferred by the T2th section of the act of 1824. • • . . ' ■

.’ The Court,- then, had' a case before them, as presented by the, bill,'over which'they hád jurisdiction,’and were competent to decree. - But what -is the error' complained o'f?- . That the. Court, thus- having . ai.proper cáse before them, pronounced a wrong decree; thát’ the Court should have decreed a conveyanee of the land; that- the money and services, expended and performed by the complainant, .should’have been treated’ as payment, by.him,'For the land. But the-.Court, insteád'of this, •simply decreed him a compensation in money. ‘It is contended that the Court had no jurisdiction to do this. If it was wrong, what is i.t more than error ? It is-.the case of a: Court pronouncing a wrong judgment or decree, in a case properly before it. This, on that hypothesis, is precisely a case for a bill of review.; such error does n.ot go to the jurisdiction , of the Court. '

In this view of the case, then,-there is no lack of jurisdiction in'the Court.-'

But it.is said the Court had no jurisdiction, because there Was, not sufficient notice to respondent's of the pendency of the suit, by publication., ‘

The-objection-taken, is not'that no notice was published, but. that-the 'notice published vvas not full-enough. •

It is claimed that -the statute required notice to be given-, by' publication, of -the pendency of the bill,- and of the substance and the prayet thereof. . ' '" ■,

The notice actually given, was,' that a bill m chancery was pending, and a- prayer for a decree. ■ The Court had directed the notice, in pursuance of the'7th and-12th sections of the act of 1824. The Court regarded-this, publication as a compliance '■ with the order made under the statute. The publication made was in the'common of usual form adopted at that day, or, at least, in a form quite common. l-

Now, if there had. been' no notice at all, the objection would have been well taken. But as there'.was notice, adjudged to he sufficient,- by the Court ordering it, we will not disturb it collaterally. .,

The description of the .land, in the bill, -is' not véry certain, but. the bill seeks tp reach land- under a contract, and this ..is . sufficient to" bring the case within the statute. ■ The'fact that a bill, seeking..to. enforce.a-contract concerning land, dpes not ■■ describe very' definitely-the.-land embraced, does not go to the jurisdiction of the Court. --'We find no error which would authorise us to disturb-’the judgment. . .

Judgment Affirmed:


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    George Freeby vs. Thomas Tupper and others.
    Where a mortgagee recovers a. judgment at law for any'part of the money secured' by t the mortgage, and causes the mortgaged premises to be sold upon execution; the purchaser, at Sheriff's sale, takes the land relieved from, the lien of the mortgage. •
    This is a Bill in Chancery to foreclose a-.- mortgage, reserved in Summit County. ■ • . - '.
    The.-defendants have severally answered. No testimony was taken in the case, -but it is submitted upon an agreed statement ' of facts, which is embraced in1 the opinion of the Court.; •

      Van It. Humphrey and H. Wheedon, for Complainant.

      Wm. S. C. Ótis, for Defendants.
    The case was. a'rgüed.at length, bufas it is similar, in'principle,'.to. thecase of 'Fosdick’ s' Lessee, v; RisJt, decided at the present term of the Court, and reported at page 84, where the was fully discussed, the arguments are omitted.
    In Bank.
    Dec. Term, 1846
   Hitchcock, J.

The facts of this case, as agreed by counsel, are, that on the 6th day of September, 1836, Freeby, the complainant, sold the land, covered by the mortgage, consisting of one hundred and ten acres, to the defendants, Thomas Tupper and Alanson Penfield. On the same day, Tupper and Penfield made three several promissory notes, payable to Freeby, for four hundred dollars each; one payable Sept. 1, 1837; another payable Sept. 1, 1838; one payable Sept. 1, 1839; and, also, one note for three hundred dollars, payable Sept. 1, 1840; and on the same day executed a mortgage upqn the same premises, to secure the payment of said notes.

In September, 1837, when the first note fell due, suit was brought upon it, by Freeby, in the Court of Common Pleas of Portage county, and a judgment recovered, at the February term of said Court, 1838, for $446.68. On this judgment execution was taken out, and, by procurement and direction of Freeby, was levied on forty-four acres of land, part and parcel of the aforesaid one hundred and ten acres. The land thus levied upon was sold at sheriff’s sale, on the third day of September, 1838, at and for the price or sum of five hundred dollars, this being a little more than two-thirds the appraised value. With the avails of this sale, the sheriff paid to Freeby the amount of his judgment, and interest, together with the costs. He also paid over, to Tupper and Penfield, the judgment debtors, the residue of the purchase money, amounting to fifteen dollars.

In September, 1838, Freeby brought suit upon the note which fell due on the first day of that month, and at the February term of the same Court of Common Pleas, 1839, recovered a judgment for $469.90. On this'judgment he took out execution, and caused the same to be levied on the remainder of the mortgaged premises, and the same were sold at sheriff’s sale on the 27th day of May, 1839, and purchased by said Alanson Penfield, at the price of $759 — this sum being more than two-thirds the appraised value. This money was paid to the sheriff, with which he satisfied the last named judgment, and paid the surplus in his hands, amounting to $257.87, to Tupper and Penfield.

In September, 1839, suit was commenced by Freeby on the note falling due on the first day of that month. In this suit, judgment was recovered at the April term of the court, 1840. Alanson Penfield and Thomas Tupper have no real or personal estate subject to levy and sale, from which, on execution, this latter judgment can be satisfied, except 22i“ acres of the afore said premises, lying in common and undivided, in the sixty-six acres of said land which was sold upon the second judgment and execution.

On the 5th day of June, 1839, Alanson Penfield sold and conveyed all the aforesaid mortgaged premises to Horace Pen-field, one of the defendants, by a deed of warranty, except the twenty-two acres before mentioned.

On the 5th day of December, 1839, Horace Penfield, being indebted to the President, Directors and Company of the Commercial Bank of Lake Erie in the sum of $1,500, by a mortgage deed conveyed all of the aforesaid mortgaged premises to the said President, Directors and Company, in full satisfaction of said debt, at which time said President, Directors and Company had no knowledge, in fact, of the existence of any incumbrance on said land, but supposed the same to be free of any incumbrance whatever.

The aforesaid sales, by the sheriff, of said mortgaged premises, were regularly approved by the Court, and deeds executed by the sheriff to Alanson Penfield prior to the date of his deed to Horace Penfield, and the said mortgaged premises were appraised under the statute, without any reference to the mortgage incumbrance, to the complainant.

This agreed statement of facts shows, that the mortgagee, not electing to rely upon his mortgage, the condition of which was broken by the nonpayment of the first note when it fell due, commenced suit upon that note,, recovered judgment, and caused a part of the mortgaged premises to be sold on execution. The money made by this sale , was applied in satisfaction of his judgment. When the second note fell due, the same course was pursued. And now, after having caused the. entire land to be sold on execution to satisfy the. two first notes, he seeks to subject it to sale in equity to satisfy the two last notes. The case is not different, in principle, from the case of Fos-dick v. Risk, decided at the present term. And it-seems .to the Court, that it would be manifestly inequitable and unjust to peimit'-the mortgagee so . to defeat the- title .-pf the purchaser at ■ sheriff’s sale. ■. ; ' ... 1 ’•

.- -It may be thought, -that inasmuch as-AIanson Penfield, one' ■pf the -mortgagors, became the purchaser at sheriff’s sale,-a dif-; ferpnt rule should .prevail than would have done had the pUr'.'chaser b.een a -stranger.'' But we. can see no difference' in' principle. By this, purchase,'Penfield acquired'a new title. Before,1 . he held the. land -in' common with -the defendant,- Tupper, subject to the incumbrance of the mortgage. ‘ By the purchase and sheriff’s deed, hé became the sole' owner "of-, the property, and that purchase having been' made at a.judicial sale, directed by the complainant himself, there can be no good reason why he should not hold it divested of the .lien of the mortgage.

From, the agreed facts, it would seem that although the lien of the mortgage was discharged by the sale on execution, that twenty-two acres of the land purchased by Penfield at that sale remained in him when the third judgment was rendered. If so, .that judgment would operate as a lien. But it is not the lien of a judgment we are called upon to enforce, but the lien of' a mortgage • and, in the opinion of the Court, there is not now any such subsisting lien.

Bill Dismissed at Complainant’s Costs.


author: Read, J.

text:
    In Bank.
    Dec. Term 1846.
    Lorin Sigler and others vs. Daniel Shehy and others.
    In casé of an appeal from'the Common Pleas tp’the Supreme Court, if the appellant, before judgment in the Supreme Court, becomes a certificated bankrupt, and his as signee be permitted, under the bankrupt laW, ’to prosecute in his stead, and a decree for costs be rendered in favor of the appellee,-to-be charged upon the assets of the bankrupt in the hands of the assignee, and a ge'neral execution be issued against the bankrupt', and returned no goods, &c., .an'action will not lie against the-sureties, in $xe appeal -bond. ‘ * * * . ■ ’’ .* ' t \ ' ;
    To. ohárge tlie bail,'a judgment or decree must have been -rendered against the appel- : lant*personally, and an ‘execution’against hlm’havé-bQen returneÜ'nulla.bo'na.' •
    ' ■ • This is a Writ or Error, to the Súbeme Court for the-.'. County of Trumbull,• made returnable, in Bank,;'1 1 . N-; .
    .’ The original action was in. debt upon an appeal bond.' From, the bill' of exceptions tendered and allowed during the progress ■ of the trial in the Court of Common Pleas,, the following statement of facts is .drawn:' - •
    Walter Sigler, filed a certain bill in'Chancery againt Shehy. and Smith-. - At' the same term, 1841, á decree' was pronounced in favor of the respondents, Shehy and Smith. An appeal was taken to the Supreme Court, and bond executed by WalterSigler, as principal, and Lorin Sigler and Robert Russell, as ■ sureties, conditioned, that if the said Walter Sigler should pay the full amount pf the condemnation money in the Supreme Court,' and costs, in case a decree should be entered therein in favor of the appellee, then the obligation should be void. Prior • to.the final decree in the Supreme , Court, Walter Sigler become a certificated bankrupt. ■ At the September term, 1842, of the Supreme Court, Alexander McConnell, the assignee of Sigler in bankruptcy, .was made party complainant by consent. At the August term, 1844, said assignee filed his supplemental bill, and' prosecuted the original actioh. On final hearing, the Court dismissed-- the bill, and decreed that the complainant should pay the costs of suit, taxed at $148/29, and- that execution issue to collect the same of' the'goods and chattels, lands- and tenements, of the said Walter Sigler, in the hands of the said assignee. Execution was taken out against the goods and chattels of said Sigler, and returned no goods or chattels, &c. Thereupon, this action was commenced against the sureties in the appeal bond, and the case was tried at the March term, 1846, of the Court of Common Pleas of Trumbull county, by the Court, without the intervention of a jury. For the defence, it was contended that the condition of the bond had not been broken, inasmuch as there had been no decree against the appellant, such as contemplated by the statute, and no proper execution issued and returned nulla bona. But the Court held otherwise, and gave judgment upon the bond against the plaintiff in error.
    A bill of exceptions was tendered and signed, and the errors assigned were, that the Court erred in holding that the condition of the bond had been broken, and in rendering judgment as aforesaid.
    To reverse this judgment, the plaintiff in error sued out a writ of error from the Supreme Court, which came on for hearing at the last term of that Court, in Trumbull county, and the judgment of the Court of Common Pleas was affirmed.
    To reverse the judgment of the Supreme Court, affirming the judgment of the Court of Common Pleas, this writ is prosecuted.

      M. Sf C. G. Sutliff, for Plaintiffs in Error.

      John Crowell, for Defendants.
   Read, J.

The whole question in this case is, whether, the appellant having been discharged, the sureties in the appeal bond shall remain responsible; whether decree of the Court, that a certain sum shall be charged upon the assets of the appellant, in the hands of his assignee in bankruptcy, will authorize a general execution, so as to fix the liability of the bail' under the statute.

The statute authorizing and giving validity to appeal bonds, contemplates a decree or judgment against the appellant, and an effort at satisfaction by execution against him, before the bail can be held liable. In this case, the bankrupt law has stept in and withdrawn the principal liability, and discharged the debt, except so far as the assets in the hands of the assignee, distributed pro rata among creditors, will pay it. — ■ After the appellant has become a certificated bankrupt, no decree or judgment can be rendered against him. He is withdrawn from the action of the Court, and discharged from the debt, which is transferred over upon his assets. Now, if the debt or obligation to pay is transferred to the assets of the principal, why should it remain against the bail ? Because, it is said, the bail, by their bond, obligated themselves to pay whatever should be adjudged or decreed against their principal. But nothing has been adjudged or decreed against the principal. The effect of the whole matter was to discharge the principal, and hold his assets.

Thus, by operation of express law, the whole relations of the parties have been changed. The intent of the bankrupt law was to affect the rights of the party to whom the debt was due.— Why, then, should the creditor, to whom the debt is due, withdraw himself from the operation of the law, and substitute the appeal bail for his debt ? His debt is paid in the manner pointed out by the bankrupt law. Why should it be permitted'to exist, by being withdrawn from that law, to its full extent, against the bail? The equities between the bail and appellee are equal, and the appellee held his debt subject to the contingency of bankruptcy. The risk is his: all debts are held subject to this contingency, if it happen by the exertion of a bankrupt law. The bail bond, therefore, should be construed strictly; and unless decree or judgment should go against the appellant, and a general execution for satisfaction, as contemplated by our own statute, the bail must be discharged. It may be said the act of bankruptcy contemplated a prosecution of suits by the assignee, already commenced by the bankrupt. This does riot alter the matter. If the assignee prosecute for creditors generally,, costs at least-should.- come, out of the assets going to the- general- creditors. This prósécütion should not be at the risk-of the appeal 'bail. It is'1 said that this- is like- a case of death, arid a prosecution by representatives.- It is not like it at all. Death operates upon the life;, of the p'érsón, and the' bankrupt law upon the obligation to-pay. The one leaves the debt in full force; the other satisfies-it in a particular form.. . Hence.it is apparent the cases are nót análagous.

We are' of opinion that the Supreme Court erred in affirming the judgment of' the . Common Pleas, and therefore reverse thejudgment. ■' ,

Birchard, J:; having been of counsel with one-of the parties in the causé, took'nó'-part in this decision. - '

Hitchcock, J., dissented.


author:
Read, J.
      Birchard, J.

text:
    Joseph McCombs vs. The Town Council of Akron.
    - A municipal corporation, like an individual, is liable for injuries resulting to the property of others from the Sets of such corporation, though acting within the scope of its corporate authority, and without any circumstances of negligence 'or malice.
    ■ This is a Writ of Error to the Supreme Court'of Summit County, returnable in Bank, brought to reverse a judgment - of that Court, affirming the judgment of the Court of Common' Pleas.
    The original action was iñ' casé against the Town Council ■ of Akron for cutting down a street, whereby the' house and iot of the plaintiff suffered an injury.

      In Bank.
    Dec. Term, 1846.
    Plea, the general issue, and notice that the act of incorporation and the ordinances of the town conferred the full power to cut down and grade the street, and that it was done in a legal and judicious manner.
    Verdict and judgment for the defendant.
    The bill of exceptions shows, that the plaintiff’s house and lot were situated on the street and sustained an injury by cutting it down and grading it, but from no other act. The defendant introduced a certain contract of purchase from the proprietor of the town, by the plaintiff, which contemplated a future grading of the street, and proved that he received his deed under said contract, before the street was graded. ■ Proof was also offered tending to disprove the plaintiff’s claim.
    The plaintiff’s counsel asked the Court to charge the jury, that, if the plaintiff’s property had sustained a real and substantial injury by reason of defendant’s act in grading the street, that the plaintiff might recover, even though the corporate authorities had acted strictly within their legal authority and without any intent to injure the plaintiff’s property. The Court refused so to charge, and this was assigned for error.'
    The Supreme Court on the circuit affirmed the judgment of the Court of Common Pleas, and to reverse this judgment this writ of error is brought, the error assigned being, that the Supreme Court erred in affirming the judgment of the Common Pleas.

      King Taylor, for the Plaintiff in Error.
    The'case was submitted for the plaintiff without argument.

      Lucius V. Bierce, for the Defendant.
    This cause presents a new question. In all the cases bearing any analogy to this, heretofore decided by this Court, there has been “ illegality, excessive use of authority, malice,, or an * indirect injury by the act of the defendant to the land of the c plaintiff, as digging drains and ditches, by which the land of £ the plaintiff was washed away.”
    In the present case, no such injury is complained of, and though the intent to injure the plaintiff is alledged in the declaration, the charge has been submitted to a jury and found for the defendant.
    Another feature in this case, different from any heretofore passed upon by this Court, is the fact that Simon Perkins, the original proprietor of the town plat of Akron, in his contract for the sale of the lot to which the injury is charged to have been done, incorporated into it a clause, that “said Jot should £ be graded according to the directions of the party of the first £ part.” This formed a material part of the contract under which the plaintiff claims title, and, although he has since taken a deed of warranty, yet the original contract being uncanceled, shows that the parties considered themselves still bound by their covenant. The plaintiff purchased with that condition. The contract being uncanceled, he still holds with that condition.
    But aside from-this, the plaintiff cannot recover. From the bill of exceptions, it appears that the only injury complained of is, that the defendant graded the street in front of the lot, without, in any manner, entering upon or interfering with the lot itself, except by cutting down the street in front of it; and all illegality, or malice, or indiscreet or arbitrary exercise of authority has been negatived by the verdict.
    The case, then, bears but little analogy to that of Goodloe v. Cincinnati, 4 Ohio Rep. 500, where the gravamen of the charge is, that the plaintiff had finished his house, “ with an £ express view to the level and grade of Water street, as previc ously made by the defendants, and that the defendants mali- £ ciously and without cause dug up and destroyed said street.” By the demurrer, the defendants admitted the previous grade, established by themselves, the plaintiff building to it, and that they “ maliciously and without cause ” changed the grade, to his injury. The Court say: “In this case, the act is charged ‘ to have been illegal and malicious. When a corporation acts ‘ illegally and maliciously, we conceive it ought to be made di- ‘ rectly responsible.”
    The case of Smith v. Cincinnati, 4 Ohio Rep. 514, is, in all respects, similar, except the act was not charged to have been malicious.
    The previous grade, the building to it, and change of grade without cause, were the gravamen of the charge on which the plaintiff relied and recovered.
    In the case now under consideration, no previous grade had been established — no building with reference to -any grade — and all charge of malice, illegality or want of discretion or good faith is. rebutted by the verdict.
    This view of that decision is confirmed by Scovill v. Giddings, 7 Ohio Rep. 211, where the Court say, in reference to Goodloe v. Cincinnati: “There the Court decided, that ‘ where a public corporation acts illegally and maliciously, or * illegally, without malice, to the prejudice of an individual, an ‘ action on the case may be maintained — a doctrine which is c not controverted here.”
    The Court, also, put the same construction upon that decision In Rhodes v. Cleveland, 10 Ohio Rep. 159, where they say : “We held the corporation of Cincinnati liable for injury done by grading, either illegally or maliciously.”
    Both those cases were decided expressly on the ground of illegality or malice.
    In the present case, the jury having found there was no malice or illegality, and that “ the town council were authorized by 1 law to grade the street, that they acted strictly within their 1 authority, and performed the work judiciously and discreetly, ‘ and for the sole purpose of improving the'street, and without * any intention of injury to the plaintiff or his property;” as appears by the bill of exceptions, the case comes directly within the decision of Scovill v. Giddings, 7 Ohio Rep. 211, where the Court say: “ The principle of law, that when indi- ‘ viduals are exercising a power the law has given them, they c cannot be made answerable for it, in any form of action, ‘ applies. It is a principle of universal application, and is ab- £ solutely necessary to the protection of all those in whom any' ‘ public trust is confided. The case of Callender v. Marsh, £ 1 Pick. Rep. 418, is here recognized by law, in Ohio, which ‘ says, c a scavenger has authority, by law, to dig down or raise c a street, and if he does it with discretion, and not wantonly, c the party injured cannot maintain an action against him nor c any other person.’ ’■’ ■
    The same principle is recognized in Iliekox v, Cleveland, 8 Ohio Rep. 543, where the Court say: “ The corporation { acted under authority of the Legislature, and no action will ‘ lie for what they have done, in the execution of that duty, ‘ unless they exceeded the authority confided to them, or abused £ that authority by acting arbitrarily or oppressively in the mode ‘ .of carrying it into execution.” In-this case, also, the case of Callender v. Marsh is recognized as law, and the Court reiterate the doctrine,-that,if the corporation had exceeded the ■,£ authority intrusted to them, they would subject themselves to ‘ an action.”-
    But it is contended, that all these cases are overruled-by the-decision of. this Court in' Rhodes v. Cleveland, 10 Ohio Rep. 159. ' The Court disclaim any such intention, by saying: “No ‘ decision of our own State goes to deny the right to the pres-e ent action.” It is necessary, then, to examine the cases, and see wherein the difference consists between those cases and this. Those are for grading the street in front of the plaintiff’s premises; and to entitle them to recover, malice or illegality must be charged and proven. This was for “ cutting. ditches ‘ and water .courses in such manner as to cause the water to c overflow and wash away the plaintiff’s land.” '
    The remarks of the Court in this case, though somewhat general, must be supposed to be intended to apply to the facts then before the Court. This is clear, from the concluding remarks of the Court, where they say: “We hold that corpoc rations are liable, like individuals, for injuries done, although £ the act was not beyond their lawful powers.” If, then,, corporations are liable, like individuals, for injuries done,” the whole matter is decided by the simple inquiry as to the right of individuals. They are not liable for grading down their lots adjacent to the land of others, provided, they do not interfere with their neighbor’s land, but, most clearly, are liable, if. as in Rhodes, v. Cleveland, they “cut ditches and watercourses in ‘ such a manner as to cause the watér to overflow and wash £ away another’s land.” .
    If, then, the Town Council of Akron had cut ditches so as to overflow the plaintiff’s land, as in Rhodes v. Cleveland, or extended their authority, or acted arbitrarily or oppressively, as stated in Hickox v. Cleveland, or illegally and maliciously, as in Goodloe &f Smith v. Cincinnati, they would clearly be liable ; but, as the first is not charged against them, and the others are negatived by the verdict, I say with the Court, in Hickox v. Cleveland, “ the corporation acted under the authority of the Legislature, and no action will lie for what they have done, in the execution of that duty, unless they have exceeded the authority confided to them, or abused that authority by acting arbitrarily or oppressively in the mode of carrying it into execution, or by some act have caused an injury to the soil itself.
   Read, J.

The sole question in this case is, whetheí a municipal corporation can be made liable' for an injury resulting to the property of another, by an act of such corporation, strictly within the scope of its corporate authority, and unattended by any circumstance of negligence or malice.

The case of Rhodes v. The City of Cleveland, 10 Ohio Rep. 159, with admirable good sense and strength of reason, answers this question, by asserting that corporations are liable, like individuals, for injuries, although the act was not beyond their lawful powers. The late learned Ch. J. Lane, who pronounced the opinion of. the court in that instance, accounts for the elder cases, upon-the ground that courts were hampered by the mystic notion attached to corporate seals, by which corporations withdrew themselves from responsibility, and cast it uPon their agents. A sort of transcendentalism which' enveloped both the courts and the profession in a mist growing out of the airy nothingness of the subject matter, enabled corporations, like the pestilence which walketh unseen, to do their mischief and escape the responsibility. It is refreshing to the jurist, and important to the rights of individuals, that these confused notions are yielding to a clearer light and more solid reason. The late Chief Justice, in the same case, manfully asserts the freedom of judicial action in matters of this sort, where for ages the professional and judicial mind has been hampered by the declaration that, in cases like the present, he did not look so much for precedents as to the following out of incontestable principles. In pursuance of this declaration he asserts, with unanswerable force, upon the most solid foundations of reason, morality and law, “ That the rights of one should be so used as ‘ not to impair the rights of another, is a principle of morals ‘ which, from very remote ages, has been recognized as a maxim of the law. If an individual, exercising his lawful powers, commit an injury, the action on the case is the familiar remedy. If a corporation, acting within the scope of its authority, should ‘ work wrong to another, the same principle of ethics demands of ‘ them to repair it; and no reason occurs to the court why the < same remedy should not be applied to compel justice from ‘ them.”

We recognize the doctrine of that case, as laid down by this court, as founded in the most solid reason, right and morals, and a majority of the court have not the slightest disposition to impair its obligation, but, by the light of such example and assurance, hope that the whole subject matter of corporations will, in the end, be reduced to the control of incontestable principle.

There is another reason: If a municipal corporation,for the good of all within its limits, see proper to cut down a street, it is nothing more than right that an injury there done to a single individual, should be shared by all.

Judgment reversed, and cause remanded.

Birchard, J.

dissenting. I dissent from the above opinion. The extent to which this Court has ever gone in sustaining an action against a corporation, falls far short of what was necessary to sustain this case. In my opinion, the Court of Common Pleas gave the law to the jury correctly. So thought this Court upon the circuit, and the judgment was affirmed. I should cheerfully retrace that decision, and indeed would desire to do so, if not entirely satisfied of its correctness. The case of Rhodes v. Cleveland, 10 Ohio Rep. 159, established' a new principle, before unknown to the profession in this and our sister States. It was one that justice seemed to demand; and for myself I can here say, that as I understand it, and as it was understood by the learned Judge who delivered the opinion in that case, I have no desire to shake its authority. It goes not further than to subject a corporation to an action, upon a state of facts which, would have subjected a natural person. Apply that principle to this casé, and there was no error. The rights of the public to the highway, for the legitimate purposes of travel, and improving the road, are as perfect and absolute as the rights of a natural person are to his private property in lands. This right extends to all above and all below the surface, and he may use his own as best pleases himself, doing no unnecessary injury to his neighbor. If he choose to erect buildings or fences, so as to throw a- part of his neighbor’s garden adjoining him into the shade, no action can be sustained for the injury. If he sees proper to dig up his own soil, or to grade down his own lot, he may do it, taking cafe not to undermine his neighbor’s structures, or to break the soil of his neighbor’s lot, and no action will lie, although it may make it necessary for that neighbor to accommodate himself to the same grade.

The town council of Akron kept themselves strictly within the powers conferred upon them. They touched not the plaintiff’s soil; did not undermine his houses, fences, or other structures; did nothing wantonly, maliciously, or negligently. Every act was strictly legal. So that no consequences flow from it that would have made a natural person liable, had he the owner and performed the same acts. The injury, and the only injury to the plaintiff in such a case, must have been of the same nature as that which is sustained by the owner of a village lot, whose neighbor has graded down his own adjoining lot without disturbing him in any manner. The Court of Common Pleas charged the jury, in substance, that for such a cause no action could be maintained. The books abundantly sustain them. In a legal sense, there was no injury; nothing which the law recognizes as such. . The amount in controversy in this case is of no moment; but the principle which this decision establishes is of great importance. It is pregnant with mischievous consequences, which, when fully developed, will be too grievous to be borne. They will reach, if carried into practice, every portion of the State, and obstruct the improvement of all public roads, ways, and alleys, in each town, village and city. My hopes are still, that the rule applied in this case may be limited to the office of reversing the judgment before us, that it may live and die with the cause which brought it into being; and if not, that it may be hereafter understood and limited by my brethren as I would now limit it — giving a right of action against a corporation only upon a state of facts that would subject a natural person if committed by him instead of the corporation.


text:
    In Bank.
    Dec. Term, 1846.
    Jonathan Harrington vs. Eliphalet W. Heath.
    A Justice of the Peace has not jurisdiction in actions on the case for nuisance upon lands.
    If suit for such cause of action be commenced before a Justice, appealed to the Common Pleas, and issue joined in that Court'by declaration and plea, it is too'late to object the want of jurisdiction on the part of the Justice, and the Court of Common Pleas may proceed to trial and judgment.
    The proceedings of the Justice are wholly void, the case stands in the Common Pleas as though issue had been joined without process, and the costs before the Justice should not be taxed.
    This is a Writ ok Error to the Court of Common Pleas of Lake County.
    The original action was in case, brought by the defendant in error against the plaintiff in error, for erecting a dam across a certain water course,' and causing it to flow back upon the land of the defendant in error. The action was commenced before a Justice of the Peace, and the plaintiff below had judgment for three dollars damages, and $10.59 costs. The case was appealed to the Common Pleas, and issue joined upon declaration and plea of the general issue. After issue joined, the defendant below submitted a motion to dismiss the cause for want of jurisdiction, which was overruled, and the cause submitted to a jury, who found a verdict for the plaintiff of one dollar, for which the Court gave judgment, as well as for $69.48 costs — the defendant’s own cost being taxed at $8.65, for which no judgment was rendered.
    The plaintiff assigns for error —
    First: That the Justice had no jurisdiction.
    Second: That the Court of Common Pleas had no juris-, diction.
    Third: That the Court of Common Pleas erred in refusing to dismiss the cause, for want of jurisdiction.
    Fourth: That the judgment was given for defendant in error when it should have been given for plaintiff in error.

      Fifth: The Court erred in rendering judgment' against plaintiff in error for costs.

      Perkins &/■ Osborn and Phelps &f Riddle, for Plaintiff in Error.

      Hitchcock Wilder, for Defendant in Error.
   Read, J.

This case presents two questions —

First: Whether a Justice of the Peace has jurisdiction of an action upon the case for nuisance, in flowing back water upon the lands of another.

Second: And if not, and such an action has been commenced before a Justice of the Peace, and appealed to the Common Pleas, a declaration and plea filed, whether the Court of Common Pleas has jurisdiction.

The 105th section of the Justices’ act (Swan’s Stat. 525) reads:

“ The jurisdiction of Justices of the Peace shall extend to actions of trespass on real estate, in cases where the damages 1 demanded for such trespass shall. not exceed the sum of one ‘ hundred dollars ;■ and no claim of title to such real estate, set 1 up by the defendant, shall take away or affect the jurisdiction hereby given.”

Does this section confer jurisdiction upon Justices of the Peace over injuries to real estate, resulting from nuisance ?

In construing statutes, words are to be taken in their usual and ordinary signification, unless they be technical, and have a fixed legal meaning. In the latter case, it will be presumed they were employed in their technical signification, and will be so taken unless there be something growing out of the subject matter, or the plain intent of the Legislature, showing that they were employed in their ordinary, and not in their legal sense.

The words trespass and case both, in their ordinary and legal sense, have a different meaning; the word trespass applying to injuries resulting from direct force, and case to such as are consequential. True, the word trespass, in its broadest signification, as embracing every'species of injury, would include case; and, giving it that meaning, would, by the express words of the section above referred to, confer jurisdiction upon Justices of the Peace, over cases of injury to land, resulting from nuisance, where the damages demanded for such injury did not exceed one hundred dollars. It is contended that this word ought to be construed in its largest signification, in order to confer jurisdiction. It will not bear such construction, unless it be taken for granted that the Legislature intended to confer the broadest jurisdiction, or unless it is plain that such was the object, as manifested by the act. In examining the act, and observing the cases in which jurisdiction is conferred and forbidden to Justices of the Peace, it is plain that the Legislature intended to confer upon Justices of the Peace precisely such jurisdiction as the statute prescribes, and nothing more. There was no intent to confer a general jurisdiction. Original jurisdiction already existed in the Court of Common Pleas, where trial by jury was secured; and this right of trial by jury not existing at the time of the act, in trials before Justices of the Peace, and it being a common right favored by the law, and guarantied by the constitution to a certain extent, the presumption arises that all cases, not especially conferred upon Justices, were to be tried in the Common Pleas. This view would lead to a strict construction of the Justice’s act, and would affix the most limited meaning to the word trespass that it would bear. But statutes are to be construed together, so that all shall take effect if possible.

The seventh section of the judiciary act, regulating the prac- ■ tice of the Courts, declares, that in all actions for libel, slander, malicious prosecution, assault and battery, action on the case for nuisance, or against justices of the peace for misconduct in office, if the jury on the trial of the issue, or on inquiry of damages, shall find and assess the damages under five dollars, the plaintiff shall not recover any costs.

This section draws the action on the case for nuisance to the 'Common Pleas;- If we construe the justices’ act as conferring also upon .justices of the. peace . in ■ such case, ‘ it would follow that two rules for the taxation of costs . would exist, one in. the Court of Common Pleas, and the other before a justice, respecting the- same matter; If 'an action should be brought before a justice, and. one dollar be recovered, -it would - carry costs; if appealed to the common pleas, and a recovery sh.ould be' had for the same.sum, or .a .greater gum, within the limits of five dollars, then-it would not-carry costs. It'cannot be presumed that the Legislature intended such a result. . The learned judge who pronounced-the opinion of the Court in-the. case of Moeller v. Flowers, 7 Ohio Rep. 2d part, 230, which decides that justices of the peace have jurisdiction of cases of nuisance to lands, speaking of the seventh section of the judiciary act above named, says: “ Here, the action -fot a. ‘nuisance, by necessary-implication, is withdrawn. from the ‘ jurisdiction of a magistrate;” but.-concludes; on the-whole, the magistrate has jurisdiction, and overrules the case of Nichol v, Patterson, in 4 Ohio Rep. 200, which denied jurisdiction to justices of the peace in cases of .nuisance to lands.'- W e say, the case of Moeller v. Flowers, is not law, and reassert the doctrine, as to jurisdiction of justices of the peace, declared in Nichol v. Patterson. , We do not know what the.-facts were in the case of Moeller V. Flowers.' ■ .The Judge says it was an injury in the character of a nuisance.1 It may- have' been décided rightly upon .the facts, and probably 'was; biit the reasoning.is wholly wrong, as far as it impugns the case, of Nichol v. Patterson;' and.it is difficult to say whether the learned Judge intended to overrule that case, although the language bears that ,

The next point is as to the effect of an appeal, where; the' case-has been tried before a -magistrate, and a declaration and plea-has, been filed in the Common PJeas..- The magistrate having-no jurisdiction over such, case, all the-. proceedings before him are void; but .if such, case be appealed, and a declaration filed, the Court of Common Pleas having jurisdiction over the subject matter of complaint stated in the declaration — if the defendant came into Court and plead to it, he has appeared and answered to a matter within the jurisdiction of the Court, and will not be permitted, in the face of his plea, to deny that he is in Court. It is precisely as though a declaration had been filed without process and answered by plea. The object of process being to obtain jurisdiction of the person, if he comes in, and by his plea admits jurisdiction, he has submitted his person to the jurisdiction of the Court, and can take no advantage of want of process, or of defective process. This is a fundamental principle of judicial action, recognized every where in all the books, and in all judicial action. If the party wished to take advantage of the manner in which the case came into court, and of the want of jurisdiction by the magistrate, he should have done so by motion to dismiss. It, in the common sense, is not a defect of jurisdiction but of process; for the Court of Common Pleas has jurisdiction of the subject matter set forth in the declaration. So that it follows, necessarily, in a case of this sort, that the plea of the defendant brings himself properly within the jurisdiction of the Court; and the Court having jurisdiction of the subject matter, the case is properly before it, and the void proceedings before the magistrate constitute no objection to proceeding to judgment.

In the case of Nichol v. Patterson, the court felt the pressure of this argument, and attempted to escape its force by stating that it would be a convenient and safe rule to adopt, that if the papers disclosed that the appellate, and not the original jurisdiction of the court was sought, and the subject matter was not within the jurisdiction of the justice, to dismiss, upon motion, in any stage of the cause; but, where the papers did not sufficiently disclose these facts, and the defendant pleads, in bar, to consider the defect in the process as waived, or the jurisdiction admitted.

This rule, as laid down, is too broad. If the defendant wish to object, for want of jurisdiction in the justice, he may do so by motion; but, if he submits himself to the jurisdiction of the Common Pleas, rightfully having jurisdiction of the subject matter, by plea, he shall not thereafter be permitted, after costs may have accumulated by his own act, and the Court have proceeded upon his plea to take cognizance of the case, to deny jurisdiction, and withdraw himself from the control of the Court. After plea it is too late to urge that the justice had no jurisdiction. Those proceedings are a nullity, and the. case is precisely as though a declaration was filed without process.

Of course, in a case of this,sort, the costs before the justice cannot be included in the judgment of the Common Pleas. The judgment of the Common Pleas is affirmed, except as to the costs accruing before the justice, and, to that extent, reversed.

Hitchcock, J., having been of counsel with one of the parties, took no part in the decision of this case.


text:
    Samuel Caldwell and others vs. Wm. Dunshee.
    The Court of Common Pleas has exclusive jurisdiction in actions on the case for nuisance upon lands.
    This is a Writ of Error to the Court of Common Pleas of Richland County.
    The action below was in case, for nuisance, brought by the plaintiff below, to recover damages of the defendant for flowing water upon his land, by the erection of a dam. The plaintiff recovered a verdict for $52, for which the Court gave judgment, and far the plaintiff’s costs.

    The error assigned is, that the Court rendered judgment for costs.

      James Stewart and J. Sherman, for Plaintiffs in Error.

      Bartley Sf Kirkwood, for Defendant in error.
   Read, J.

The error is assigned, upon the ground that the case fell within the jurisdiction of a justice of the peace, and the recovery not being one hundred dollars, it could not carry cost. ,We have decided at this term, in the case of Harrington v. Heath, that an action for nuisance upon land did not fall within the jurisdiction of a justice of the peace. Hence, the recovery being over five dollars, the case carries costs.

We report this case, because one member of the. Court appearing to' have his name attached to the proceedings in that case by his partner, as counsel, did not sit.

We here assert, that it is the unanimous opinion of the Court, that the case of Harrington v. Heath, decided at this term, is law.

Judgment affirmed.