author: Hickman, J.

text:
    Schuler v. Miller.

      Homestead exemption — Sale—Interest, of purchaser — Judgment—Lien—Assignment for benefit of creditors.

    1. A judgment recovered against a debtor who tas executed an instrument of assignment under the insolvent laws of Ohio, reserving to himself his homestead rights, will not operate as a lien upon land set apart to the debtor as a homestead, prior to the recovery of such judgment, by appraisers appointed under section 6348 of the Revised Statutes, the legal title to the land being in the assignee by virtue of the instrument of assignment.

      2. A purchaser from such debtor, with deed of warranty of the land so set off for a homestead, does not acquire a legal title and estate, but only the equitable interest of the debtor after the settlement of the assignee’s trust under the insolvent laws.
    3. The right to have and hold a homestead, being a personal privilege which cannot be conveyed to another, the occupancy by a purchaser from the debtor, with deed of warranty, of the land so set off by appraisers for a homestead, will be subject to the rights of the assignee and the settlement of his final account.
    (Decided October 4, 1887.)
    Error to tbe Circuit Court of Stark County.
    The original action was commenced by the defendant in error, Peter S. Miller, against the plaintiff in error, Louis Schuler, in the court of common pleas of Stark county. The plaintiff in his petition alleged, that he — Miller—was then seized of the legal title and estate of certain land in the petition described, situate in Stark county. That he became the owner of the land by deed executed to him by Joseph Sommer, dated April 15, 1'880, and recorded May 20, 1880, and that he was then in peaceable possession of the same. That Sommer, at the time of the execution of the deed, owned the land iree from lien. That the defendant, Schuler, claimed to have a judgment lien on the land, and was proceeding to enforce the same. That such claim was invalid, and really was not a claim on the land, although it might appear to be so, and constituted a cloud on plaintiff’s title. The petition asked that the defendant be compelled to set up his'claim; that it be adjudged invalid, and that the title and possession of the plaintiff in the premises be quieted, and for all proper relief.
    Schuler filed an answer and cross-petition, averring the recovery of a judgment on May 5, 1879, in the court of common picas of Stark county, against Joseph Sommer and others, for the sum of $928.50 and costs, and alleging that at the rendition of the judgment, Sommer was the owner in fee of the premises described in the petition, by reason whereof, such judgment became, on the 5th day of May, 1879, a lien on the premises.
    To this answer there was a reply setting up new matter.

      The cause came on to be heard upon the petition of the plaintiff, the answer and cross-petition of the defendant, the reply of the plaintiff thereto, and the testimony, and the court being requested by the defendant to make a finding of facts in the case, and to state the conclusions of fact separately from the conclusions of law, found the facts as follows :
    “ That on the 7th day of March, 1879, one Joseph Sommer was the owner in fee-simple of the real estate described in the petition : that on said day he executed an instrument of assignment under the insolvent laws of Ohio, in which deed of assignment said Joseph Sommer expressly excepted and reserved to him the homestead and other rights, and property to which he was entitled under the homestead, exemption and other laws of Ohio, and which was on that day duly recorded in the probate court of Stark county, Ohio (that county being the residence of said Sommer), and amongst other property assigned thereby was the real estate in question. That an assignee was appointed and qualified Avho proceeded to discharge his trust. That in the proceedings in regard to said assignment in the probate court, said Joseph Sommer claimed the right to have certain property set apart to him as a homestead. And the . real estate in question was, by the appraiser’s appointed by said probate court, in said proceedings, on the 21st day of March, 1879, set apart and assigned to said Joseph Sommer as a homestead, and return thereof made by them to said court on said day, and that before said Schuler recovered his said judgment against said Sommer, said Sommer took possession of the same and held possession thereof, at the recovery of said judgment and up to the time of his sale to the plaintiff. That the determination of said appraisers was approved by the probate court, and never was questioned in said court by any one. And the said assignee had filed his final account and fully administered and settled his said trust before said levy was made on said premises. That said Joseph Sommer was, at the time of said assignment, indebted to the defendant on the claim set up by him in his answer and cross-petition.

      “That on the 5th day of May, 1879, the defendant recovered a judgment against Joseph Sommer in the court of common pleas of Stark county, Ohio, for the sum of $928.50 and costs, to bear '8 per cent, interest from that day, on which judgment there is due said Louis Schuler the sum of $995.25 and interest on $928.50 at 8 per cent, per annum from July 10th, 1883, and costs taxed at $15.67. That execution was issued on said judgment as follows: March 4th, 1881, returned ‘ nulla bona/ July 14th, 1883, which latter execution was on the same day levied upon said real estate, but no levy was made on the real estate in question until after the plaintiff had received the deed of conveyance therefor from said Joseph Sommer. That on the 15th day of April, 1880, said Joseph Sommer executed and delivered to the plaintiff his warranty deed for said premises, which deed was on the 20th day of May, 1880, recorded in the records of Stark county records of deeds, and the plaintiff took possession of said premises on receipt of his said deed and has ever since been in the peaceable possession thereof, and has cultivated and improved the same.
    “ That there never had been any buildings on said land, and Joseph Sommer never resided thereon, but resided adjacent thereto. That he, said Sommer was, at the time said land was set apart to him as a homestead, the head of a family residing with him, relying on him for support, and he was then and has continued ever since to be a resident of this state.
    “ That after the plaintiff so received said deed of conveyance, and entered into possession of said land, the defendant caused an execution to be issued on his said judgment, aud levied on said land, and was proceeding to sell the same to satisfy said judgment.
    “ The court upon the foregoing facts find and consider that the defendant has no lien on said lands by reason of the rendition of said judgment against Joseph Sommer and the levy of the execution as hereinbefore recited. And the plaintiff being in the possession of the land, is entitled to the relief prayed for in his petition as against the defendant, wherefore the cross-petition of the defendant is dismissed, and it is considered that the plaintiff be and is quieted in bis possession of said premises; as to said claim of the defendant, and the defendant is perpetually enjoined from setting up bis judgment as against the plaintiff or taking any steps to enforce the same against said land; and it is considered, that the plaintiff recover his costs expended in this cause, taxed at $-, and that the defendant pay his own costs, for which, it is ordered, that execution issue, to all of which the defendant at the time excepted.”
    The judgment of the court of common pleas was affirmed on error in the circuit court, which judgment of' affirmance is now sought to be reversed.

      William J. Piero, for plaintiff in error.
    J". J. Parker, for defendant in error.
   Hickman, J.

On the 7th day of March, 1879, Joseph Sommer made an assignment under the insolvent laws of Ohio, for the benefit of his creditors, of all his property, money, rights and credits, excepting and reserving to himself the homestead, and other rights and property to which he was entitled, under the homestead, exemption and other laws of Ohio. On the 21st day of March, 1879, appraisers appointed by the probate court, under section 6348 of the Revised Statutes, set off to him, as a homestead, the land in litigation, and he took possession of the premises. .No buildings had ever been erected on the land. Sommer therefore had never resided thereon, but his residence was on land adjacent. •

At the time the homestead was set apart to him, he was the head of a family that resided with him, and relied upon him for support and maintenance. By operation of the assignment, the legal title to the land in question passed to and vested in the assignee, in trust for the benefit of the creditors of the assignor, unless prevented by reason of the exception and reservation in the instrument of assignment, and the provisions of section 6348 of the Revised Statutes.

It is provided by that section, that: No assignment for the benefit of creditors shall be construed to include or cover any property exempt from levy or sale on execution, or from being, by any legal process, applied to the payment of debts, unless in the assignment the exemption is expressly waived * * ; and, as to the homestead exemption, * * * the appraisers appointed by the court shall, on making the appraisement, set the same off in the same way that appraisers of property levied on or attached are required to do.”

The homestead right is a statutory right purely, created for the benefit of the debtor and his family. Under our laws, a homestead exemption is merely a personal privilege of the beneficiaries. It is not an assignable estate, but a mere possessory right, personal to the debtor and his family, and which does not run with the land. As held in McComb v. Thompson, 42 Ohio St. 139, the right to have and hold a homestead is a personal privilege which cannot be conveyed to another, and is lost by neglect or refusal to claim it, or by abandonment of the homestead. The husband, or, in case of his failure or refusal, the wife, may exercise the right of making the demand therefor, or may refuse so to do.

Such being the nature of the homestead privilege, its enjoyment is not made dependent upon holding the legal title to the land set off; and a reservation by the assignor of a homestead right, is in keeping with a conveyance of the fee to the as- ' signee, in trust for the benefit of creditors. The law designs that a debtor’s property shall be applicable to the payment of his debts; and when the ajopraisers appointed by the court have set off the homestead, it is not the fee in the land that passes, but merely the right to use and occupy the same for the purposes of a homestead. If the property in the hands of the assignee proves inadequate to pay the creditors in full, when the land ceases to be occupied for a homestead,- it may be subjected to the payment of the assignor’s debts. But, if the creditors are otherwise wholly satisfied, a resulting trust arises, and the assignee may be ordered to reconvey to the assignor, the legal title to the land set off.

On the 5th day of May, 1879, the plaintiff in error, Louis Schuler, a creditor to whom Joseph Sommer was indebted at the time of his assignment, recovered a judgment against Sommer in the court of common pleas of Stark county, and it is contended that that j udgment became a valid lien upon the land in which the homestead had been set apart prior to that day. But on that day, the legal title, as it is evident, was not in Sommer, but in his assignee. The provision of the statute regulating judgments, that the lands and tenements within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered, is applicable only to legal interests in lands and tenements — to such interests as can be sold upon execution. The defendant or judgment debtor must have a legal title in order that the judgment may operate as a lien. Baird v. Kirtland, 8 Ohio, 21. The judgment, therefore, of Schuler, did not attach as a lien.

Schuler having acquired no lien upon the land by virtue of his judgment, even if, after the setting apart by the appraisers of a homestead to Sommer, there was in consequence vested in him an interest that could be reached on execution, the levy of Schuler’s execution on the 14th day of July, 1883, upon the land in controversy, could be of no avail to him as against Miller, the defendant in error, as Sommer had executed and delivered to Miller, as early as the loth day of April, 1880, his warranty deed of the premises, which was duly recorded on the 20th day of May, 1880. Doubtless if the judgment of Schuler had once taken effect as a lien, it could not have been divested by a subsequent occupation of the premises as a homestead; and although the enforcement of such judgment might have been suspended as long as the property retained its homestead character, yet, upon an abandonment of the homestead, or an alienation of it by the owners, whereby the homestead character was removed, the property Avould have been left liable to be sold under the judgment against the alienors at the date of the conveyance. But the case at bar does not present such a state of facts. Freeman on Judgments, § 355; McComb v. Thompson, supra.

The question, liOAvever, arises, Avhat title did the defendant in error acquire by the deed from Sommer? Assuming that the homestead right Avas thereby terminated, Avhat, if .any interest in the land, could the grantor vest in his grantee ? As to the legal title in the land, it could not be conveyed by Sommer, as it was already vested in the assignee, and it is not disclosed that he ever reconveyed it to the debtor. Sommer, therefore, could transfer to Miller, the defendant in error, only an equitable interest, the measure of which would be determined upon the settlement of the assignee’s final account, and to that interest Miller became entitled. The -principle is stated in Halsey v. Whitney, 4 Mason, 206, that any surplus which shall remain in the hands of an assignee after indemnifying and paying fully all the creditors, will constitute a resulting trust by mere operation of law in favor of thc.debtor. And as said by Read, J., in Matter of Potter, 54 Pa. St. 465, “an assignment by an insolvent debtor for the benefit of creditors, always leaves a resulting trust in the assignor, which, if his debts were actually paid, or a legal presumption of their payment has arisen from lapse of time, entitles him to the possession of the assigned property.”

Before the execution issued on Schuler’s judgment was levied on the land, the assignee, according to the finding of facts, had filed his final account, and fully administered and settled his trust. But the assignee is not a party to this action, and as such has furnished no information in regard to the property assigned to him in trust for the benefit of creditors. We do not discover from the record, that his final account represented all the creditors of Sommer to have been paid in full. Indeed, the levy of the execution in favor of Schuler would indicate, or afford the presumption, that they had not all been so paid. Under such circumstances, the premises, of which a deed had been executed to Miller, and of which the occupancy as a homestead had ceased, would constitute a fund in the hands of the assignee, for distribution among creditors — the surplus, if any, after paying them all in full, to be held by him in trust for the debtor, or Miller, his grantee in the warranty deed. The provisions of the statute regulating assignments of insolvent debtors would preclude Schuler from absorbing the whole of such trust fund, and limit him to a proportionate share thereof.-.

For these reasons we are of opinion, that the plaintiff in error acquired no lien on the land involved in this suit, by reason of the rendition of the judgment in his favor against Sommer, and the levy of the execution in July, 1883. But we think the circuit court erred in affirming the judgment of the court of common pleas, ,so far as it adjudged Miller to be seized. of a legal title and estate in the land described in his petition, and decreed that he should be quieted in the possession of the premises.

Judgments of the circuit court and court of common pleas reversed, and petition and cross-petition dismissed.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    Bassenhorst v. Wilby.

      Promissory notes — Overdue—• Presentment for payment — Peasonable time for — When question for court, when for jury — Insolvency of maker — Pemand and notice — Waiver.
    1. A promissory note negotiable in form, though over-due, is still capable of being transferred by indorsement, and when so transferred the indorser is, in the absence of anything to the contrary, liable upon his indorsement, if, - in a reasonable time thereafter, the note is presented to the maker for payment and notice given in ease it is not paid.
    2. In such case a reasonable time for its presentment is the lapse of such a period after the indorsement as, under all the circumstances, will enable the holder, in the exercise of reasonable diligence, to present the note for payment.
    3. What is a reasonable time is generally a mixed question of law and fact-Where the facts are in dispute, it should be submitted to the jury for its determination under proper instructions from the court; but where the material facts are admitted, or not in dispute, it is a question for the court, and cannot properly be submitted to the jury.
    4. The known insolvency of the maker, and that he himself can not pay, does not dispense with the necessity of presentment for payment in order to fix the liability of the indorser.
    5. B., the payee of a negotiable promissory note over-due, transferred it by indorsement to W. for a valuable consideration on the 30th of July, 1883 ; the makers were, to the knowledge of the parties, insolvent at the time of the transfer and had made an assignment for the benefit of their creditors; and it was known that, by reason of certain litigation between the general and certain secured creditors, the note would not be paid immediately from the funds in the hands of the 'assignee; all the parties resided in the same city, and nothing was said at the time of the indorsement as to whether the note should be presented to the makers for payment or not; upon the determination of the litigation in favor of the secured creditors, the note was, on the 21st of November, 1883, presented to the makers for payment and immediate notice of non-payment given the indorser. Held: (1) That there is nothing in the facts of the transaction from which' an inference can be drawn that presentment for payment had been waived by the indorser; (2) that the note was not presented to the makers for payment within a reasonable time; and (3) that the indorser was discharged.
    (Decided Oct. 4, 1887.)
    Error to tbe Superior Court of Cincinnati.

      Baker & Goodhue, for plaintiff in error.

      Lawrence Maxwell, Jr. and Gustavus LI. Wald, for defendant in error.
   Minshall, J.

The suit below was upon the indorsement of a certain promissory note. The noto had been made by Hyman & Armstrong for the sum of $255.25, payable to W. C. Bassenhorst, or order, one day after date. It was dated January 2, 1883, and was indorsed to the plaintiff July 30, by the following indorsement: Pay to the order of Charles B. Wilby. W. C. Bassehorst.” The plaintiff, in his petition, simply alleged that the defendant was indebted to him upon this indorsement, in the amount of the note and interest, and “ that due demand for payment * * * had been made, and that the defendant had received due notice of said demand and non-payment of said note.” The answer was a general denial. From a bill of exceptions taken on the trial, it appears that at the close of the plaintiff’s evidence, the defendant moved for judgment on the ground that payment of the note had not been demanded of the makers, and notice of non-payment given the defendant in a reasonable time. A similar motion was made at the close of the case. Both motions were overruled, and the jury by direction of the court, rendered a verdict in favor of the plaintiff. To all which exceptions were duly reserved. It also appears that the defendant offered to show his own understanding as to the purpose of the indorsement at the time he indorsed the note. This was refused and exception taken.

These rulings of the court are assigned for error.

The court, as we think, was right in assuming the duty of directing what the verdict should be, as, upon the evidence, there was no ground for controversy as to any of the material facts of the case; but it erred, as we think, in directing that the verdict should be for the plaintiff, instead of the defendant.

All the parties resided in the same place, the city of Cincinnati. The makers of the note were insolvent at the time of the indorsement, and had made an assignment for the benefit of their creditors a few days after the making of the note. It was made on the 2nd of January, 1883, and was indorsed on the 30th of July, following, so that it was some six months overdue at the time of the indorsement. The settlement of the assignment was delayed by litigation between the general and certain secured creditors, particularly with James M. Armstrong, the father ■ of one of the assignors, to whom a mortgage, to secure some $8,000, had been given a short while before the assignment.

On the day the note was transferred and indorsed, Bassenhorst, the payee, called at the office of the assignee, Mr. Wald. He and the plaintiff, Wilby, were partners in the practice of the law, and so occupied the same office. On being informed that by reason of the pending litigation, the note could not then be paid, and the assignee having, for obvious reasons, refused to discount it, Bassenhorst turned to Wilby, who was present in the office, and requested him to discount it. Wald examined his books and informed Wilby that it would be a safe investment; and Wilby then offered Bassenhorst the face of it. This was refused at the time, but during the day a boy returned to the office with the note indorsed, and a message from B. that he accepted the offer. Thereupon Wilby drew his check for the amount and received the note. This is all that transpired between the parties during the transaction, and up to the 21, November, when the note was protested for non-payment, and notice given to Bassenhorst.

Wilby and Wald were retained and acted is the attorneys for Armstrong in his contest with the general creditors. The matter was finally determined in his favor, which made it necessary for Wilby to look to the indorsement of Bassenhorst for payment of the note, whereupon the note was -presented for the first time for payment, and notice of the non-payment given as before stated.

Though it be admitted that, as a question of law, the defendfendant had the right to show by parol that he was not to be held upon his indorsement, and that such an issue was made by the pleadings, still there was no error in the court rejecting his simple understanding as to the matter. Nothing was said or done during the transaction that would warrant the inference that such was the understanding of both parties, and, unless such was the case,-the understanding of one could not affect the other.

The question, whether upon the facts, it was the intention that Bassenhorst should, in any event, be liable upon his indorsement, will be considered in connection with the claim of Wilby, that demand and notice was not required, or had been waived, because they will be found, so far as the evidence is concerned, to be nearly related.

The real question in the case is the one upon which it seems to have been disposed of in the court below, and that is, whether the demand was made upon the maker of the note in a reasonable time, for the notice, having been immediately given, was reasonable if the demand was. That demand and notice, unless waived, were required to complete the liability of Bassenhorst on his indorsement, although the makers were known to be insolvent, admits of little doubt. 1 Par. on Cont. 279; 1 Notes & Bills, 446.

A promissory note payable to one or his order is none the less negotiable because overdue. After its maturity it can no longer be transferred so as to deprive the maker of any defense he may have against the original holder. But this is the principal, if not the only, effect which maturity has upon the character of such paper. It can still be transferred so that the transferee will take the legal title; and it may be indorsed, and when indorsed, unless without - recourse, the indorser becomes liable to the indorsee, if the note is presented to the maker for payment in a reasonable time, and notice is given the indorser, in case of non-payment. 1 Par. Cont. 5 ed. 254-6. Leavitt v. Putnam, 3 N. Y., 494. The legal effect of indorsing an overdue promissory note, negotiable in form, is generally held to be the equivalent of an inland bill of exchange, drawn by the indorser on the maker of the note payable to the indorsee at sight or on demand; and by its analogy in this regard, the duty of the indorsee of such a note, if he would hold the indorser, is generally determined. Patterson v. Todd, 18 Penn. St. 426. As the duty of the holder of such a bill is to present it for payment in a reasonable time, a like duty devolves upon the indorser of such a note. Thus it is said in Tyler v. Young, 30 Penn. St. 144, “ The endorsement of a note, due or not due, always expresses a conditional as opposed to an absolute obligation. The indorsement of a note overdue, has been invested by the modern decisions with a very distinct character. Liedy v. Tammany, 9 Watts. 353. It is a bill of exchange drawn upon the party primarily liable, payable at sight. In this theory, the necessity of demand and notice is an essential element; not notice on a given day, as in the case of a maturing note, possible in that case, but impossible in the other, for the day appointed by the former maker and the new acceptor has passed; but notice after the holder has had reasonable time to make the demand on the maker, and has employed that time with diligence.”

As to what is a reasonable time has been regarded as a question of some difficulty. Dan. Neg. Inst. sec. 604. But in a case like this, the only reasonable rule that can be adopted is to require due diligence in presenting the note to the maker for payment. It is said in one case (Aldis v. Johnson, 1 Vt. 136) “if the indorsement be made after the note falls due, the demand of payment must be made as if the note fell due on the day of the indorsement.” But the general, and better rule, is the one iust stated. Tyler v. Young, supra; Berry v. Robinson, 9 John. 121; M’Kinney v. Crawford, 8 Serg. & Rawle, 351; 1 Par. N. & B. 381, and notes; Dan. Neg. Inst. secs. 605, 611, 996 Light v. Kingsbury, 50 Mo. 331.

Where a thing is required to be done, and may be done presently, a reasonable time in which to do it, necessarily excludes any delay, that, in the exercise of reasonable diligence, could have been avoided; so that a reasonable time in which to fix the liability of the indorser of an overdue promissory note, should be such, as, under the circumstances, will enable the holder, in the exercise of due diligence, to present it for payment; and any delay that may, by the exercise of such diligence, be avoided, should be treated as negligence, and deprive the holder of the right to look to the indorser.

Where the facts are in dispute, it is, as in similar controversies, a question for the jury to determine whether the note was presented in a reasonable time to the maker for payment so as to bind the indorser; but where they are ascertained, it is a question for the court, and cannot properly be submitted to the jury as a question of fact. Walker v. Stetson, 14 Ohio St. 89; 1 Parsons N. & B. 339; Dan. Neg. Inst. sec. 612. Here all the material facts were ascertained. The parties resided in the same city; the note was indorsed on the 30th of July and was not presented for payment until the 21st of November following; the delay in the settlement of the assignment caused by the litigation between creditors, was no impediment to presenting the note to the makers for payment and giving notice of non-payment; such notice might have been of value to the indorser, but whether so or not, was immaterial to the duty of presentment. In a few days after the determination of this litigation made it apparent that the holder would not be jmid from the funds in the hands of the assignee, the note was presented to the makers for payment and notice of non-payment given; and there is no showing why, in the exercise of the same diligence, it could not have been presented for payment with the same promptitude after indorsement.

Whether the presentment of a note due on demand has been delayed for such a period as, by becoming dishonored, to be open to defenses of the maker against the original holder, is not the same as the question whether it has been presented in due time to bind an indorser. "When such an instrument has been transferred by indorsement, it would, in the opinion of a modern author, become, “by the very act of indorsement, a draft by the indorser upon the maker; and the indorsee holding it should regard it, as it is, in fact, a demand through him for the amount due the indorser. And it should therefore be presented immediately, subject only to such qualifications as apply to bills payable at sight.” Dan. Neg. Inst., § 610; and still more is this true as to a bill payable on demand (Id., § 605) the analogue/ as before shown, of the indorsement of a promissory note after maturity.

We are, therefore, clearly of the opinion that the note was not presented for payment to the makers in the requisite time to charge the defendant below as an indorser of it.

This brings us to the question, based on the claim that there was a waiver of demand and notice, and that of the defendant that he was not to be bound upon his indorsement.

It seems that consistently with the contract of indorsement, where it is' in blank, either fact may be shown by parol; but where it is not, and the offer is to show that a party was not to be bound by his indorsement, there is upon principle much question as to the admissibility of such evidence; there is less, however, as to the right to show a waiver of demand and notice. Barclay v. Weaver, 19 Penn. St. 396; Morris v. Faurot, 21 Ohio St. 155; Hudson v. Wolcott, 39 Ohio St. 618; 1 Par. N. & B. 584 and cases cited in notes; Dan. Neg. Inst. § 717 et seq. The two following cases illustrate the distinction: Thus in Dye v. Scott, 35 Ohio St. 194, it was held, that parol testimony is competent as between the parties to prove that the indorser at the time of indorsing a note waived demand and notice, whilst it is held in Cummings v. Kent, 44 Ohio St. 92, that such evidence is not admissible on the part of the drawer as against the payee, that he was not to be liable as drawer, although the relation of drawer and payee is in commercial law, the same as that of indorser and indorsee.

But tbe question of waiver must be distinguished from the cases where demand and notice are excused. A waiver ordinarily results from such acts or words of a party as import an agreement to that effect; whilst the grounds of an excuse are derived from circumstances that would make it inequitable or unjust to insist on the requirement. 1 Parsons N. & B. 521. Thus a demand is excused where the drawer had no funds in the hands of the drawee, or where the holder is prevented by unavoidable necessity from making a demand and giving notice in the time required by law; but the cases are few, if any, in which the indorsee will be excused, in the absence of a waiver or the existence of unavoidable necessity, from making demand and giving notice. An exhaustive discussion of the subject will be found in Parsons on Notes & Bills, § 7 ch. 11. “Excuses for absence of demand of payment;” and ch. 13, “Excuses for want of notice.”

As between the holder of negotiable paper and the prior parties thereto, it is now well settled, that the insolvency or bankruptcy of the maker or acceptor will constitute no excuse for want of demand. And the rule is the same whether the maker becomes insolvent between the time of indorsing the note and its maturity, or is insolvent before and at the time of the indorsement, and his insolvency is known to the indorser when he puts his name upon the note. 1 Par. N. & B. 446. “ The reason” says this author, “ is to be found in the stringency of the rule requiring demand, coupled with the fact that it is possible that the note may still be paid by the assistance of friends, or otherwise.” The same author, in his work on Contracts (1 Vol. 270, 5 Ed. n. c.), observes “ the fact that at the time of the indorsement the indorser had reason to believe and did believe, that the maker would not pay does not dispense wish the necessity of due notice to him of the maker’s default,” citing Denny v. Palmer, 5 Ired. L. 610; Oliver v. Munday, 2 Penning, 982; Allwood v. Haseldon, 2 Bailey, 457, the latter being a case where the note was indorsed after maturity. See also Gray v. Bell, 2 Rich. L. 67; 2 Dan. Neg. Inst. § 1171-1172, and cases cited.

It is claimed, however, on the authority of Hudson v. Wolcott, 39 Ohio St. 618, that demand of payment and notice of dishonor were not required in this case. That case is very different from this one. There the indorser, as the court finds, had assented to an extension of the time of payment for thirty days, and afterward for sixty days. The court rightly held that, under these circumstances, demand and notice were not required; for an extension of the time of payment is uniformly held to constitute a waiver of demand and notice; and it is immaterial in this regard whether the waiver takes place before or after the default. 1 Par. N. & B. 582; Dye v. Scott, 35 Ohio St. 194; Forster v. Jurdison, 16 East, 105; Amoskeag Bank v. Moore, 37 N. H. 539; Ridgway v. Day, 13 Pa. St. 208; Barclay v. Weaver, 19 Pa. St. 396; 2 Dan. Neg. Inst., § 1106.

A similar distinction exists in Kyle v. Green, 14 Ohio, 490. There the ordinary contract of indorsement had been super-ceded by an agreement that Kyle, the indorsee, should use due diligence to collect the note, and that Green, the indorser, would pay it, if, after the use of such diligence, it could not be collected. And so the court held that Green was not entitled to notice; that his liability depended upon the use of due diligence by the indorser to make collection.

It is also generally held, that if the indorser holds indemnity against his liability, he is not entitled to notice; and it was upon this ground that, in the subsequent case between the same parties, Kyle v. Green, 14 Ohio, 495, the indorser was held liable without due demand and notice.

We have before given the substance of the transaction between the parties as disclosed by the evidence; and are unable to find in it one element, recognized by the decided cases (1 Par. N. & B. 584, where they are summarized), tending to show a waiver by the indoi’ser of demand and notice: There was no express waiver in the indorsement; no promise' by the indorser to pay the note at the time or subsequent to the indorsement; no agreement to extend the time of payment, nor request by the indorser for forbearance. Any inference that may be drawn from what occurred, taken in connection with the circumstances of the transaction, tend quite as much to support the claim of Bassenhorst, that his only purpose in indorsing the note was to transfer the title, and that he was not to be liable upon his indorsement, as the claim of Wilby that there was a waiver of demand and notice; and if, as a matter of fact, B. did not suppose that he was to be liable as an indorser, it is difficult to see how he could have intended to waive demand and notice; to have intended the latter he must have contemplated the former. But we think that neither claim is supported by the evidence. The note, though overdue, was still the subject of a contract of' indorsement, the terms of which are implied by the law from the act of the indorser placing his signature on the back of the note. It is true, these terms may be varied by the agreement of the parties: The indorser may stipulate against further liability, and this is usually done by indorsing, without recourse; ” and the indorsee may stipulate against the requirement of him* and this is usually done by the formula, “ demand and notice waived.” Here the indorsement on the note is unrestricted; and during the entire transaction no reference was made by either party as to the liability of B. on his indorsement; and both were equally silent as to the requirement of demand and notice. Under these circumstances, the liability of the indorser and the duty of the indorsee must be regarded as fixed by the law. The liability of the indorser, Bassenhorst, depended upon the note being presented for payment in a reasonable time, and notice to him of dishonor. Such presentment was not made; and the jury should have been directed to return a verdict for the defendant below.

Judgment of the superior court reversed, and judgment rendered for the defendant below.

Spear and Williams, JJ., dissent from the statement and holding in the fifth paragraph of the syllabus. .


author: Owen, C. J.

text:
    Sawyer v. State ex rel. Horr.

      Act of March 21, 1887 — -Construction of.

    The act of March 21,1887 (84 Ohio L. 240) creating a new eighth judicial circuit, and providing for three additional circuit judges, one for the . new eighth and two for the old sixth circuit, contained a provision that such additional judges should be elected “on the first Tuesday of November next,” but provided no machinery for holding such election, nor is there any adequate machinery therefor to be found in any general provision of the statutes. Held: The clause fixing the time for the election of the new judges is surplusage, should be disregarded, and the general provisions of the statutes for the election of circuit judges, on the first Tuesday after the first Monday of November, applies to such new judgeships.
    (Decided October 11,1887.)
    Error to tbe Circuit Court of Cuyahoga County.

      Foran & Dawley and. Arnold Green, for plaintiff in error.

      Boynton & ' líale, for defendant in error.
   Owen, C. J.

The proceeding below was in mandamus do compel the sheriff of Cuyahoga county to issue by his proclamation a notice of an election of a circuit judge of the eighth circuit of Ohio, at the general election to be held on the first Tuesday after the first Monday of November next. The case involves the construction of an act of the general assembly, passed March 21, 1887, to amend an act relating to the organization and jurisdiction of the circuit and other courts, passed February 7, 1885, and to create the eighth circuit. The act purports, in words, to provide for the election of three judges of the circuit court — one for the new eighth, and two for the sixth circuit, on the “first Tuesday of November next/’ which will be one week prior to the day of the general fall election.

It is claimed on behalf of the sheriff, that the'act is too plain to admit of construction; while the relator below maintains that it was not within the legislative intent to provide for a special election of three circuit judges one week prior to the general fall election. Several considerations support the latter view. The general Jaw (section 2978 of the Revised Statutes), provides for the election of circuit judges on the Tuesday after the first Monday of November of each year. The act in question does not purport to be a special act. It is amendatory of the general act. It was prompted by an overcrowded condition of the dockets, and a consequent necessity for additional judicial force". Had a special election been in the contemplation of the general assembly, it is not probable that it would have been delayed until one week before the general election, to be then held in twelve counties, (at a cost of several thousand dollars) in view of the fact that in two of the counties a registration is to be made, the ensuing work of which, in every probability, could not be completed in time for the special election. It was said by this court, in Moore v. Given, 39 Ohio St. 663. “That the law does not require vain, absurd, or impossible things of men, is one of its favorite maxims; and it is the plain duty of the courts, in the intepretation of a statute, unless restrained by the rigid and inflexible letter of it, to lean most strongly to that view which will avoid absurd consequences, injustice and even great inconvenience ; for none of these can be presumed to have been within the legislative intent.” See also as strongly supporting this rule of construction: Hirn v. State, 1 Ohio St. 20; Slater v. Cave, 3 Ohio St. 80.

In Tracy v. Card, 2 Ohio St. 431, it is said by Thurman, J.: “ "While, on the one hand, the judiciary should be careful not to make its office of ex])ounding statutes a cloak for the exercise of legislative power, on the other hand it is equally bound not to stick in the mere letter of a law, but rather to seek for its reason and spirit in the mischief that required a remedy, and the general scope of the legislation designed to affect it.” In this case the word “ administrator ” was, by construction, incorporated into an act and inserted after the word “ executor.” as this seemed to the court to be within the clear legislative intent. In Fosdick v. Perrysburg, 14 Ohio St. 472, the court was construing an act passed May 3, 1852, and providing that it should take effect “from and after the 15th day of May next.” The court, in view of all its provisions, and of facts that appeared by the legislative journals, held that the act spoke from April 28, 1852, and took effect from the 15th of May next thereafter, while the letter of it would have postponed it taking effect tó May, 1853.

If it be conceded, however, that the letter of this act is rigid and inflexible, and that it leaves no room for construction, there is another and controlling view which, in the opinion of each member of the court, determines its construction.

As we have already observed, the act purports to be general. There is nothing to indicate, in the slightest degree, that it was to be a special enactment, or to provide for a special election, except that the first Tuesday of November is named as the day of the election of the judges to fill the offices created, or intended to be created, by it. Six years in every seven the day named in the act would answer to the call of the general act fixing the day for the election of circuit judges. Then there is noticed in this act the entire absence of any provision for conducting the election on the day named.

No machinery is provided for, nor the slighest allusion made to the manner of conducting, the election, or making and certifying the returns and ascertaining the result. Every act providing for a special election of a judge, enacted during the last thirty years, which we have been able to find upon our statute books, contains comprehensive provisions for the conduct of such elections, making returns thereof, and ascertaining the result, either by making the general election laws applicable thereto, or otherwise, by specific provision.

Such provision is indispensable to an effective special election law. Only partial provision is made by our general election laws for conducting and declaring the result of special elections. Section 2922, of chapter 2 of title XIY, of the Revised Statutes, provides that: Except where it is otherwise provided, all public elections shall be held and conducted according to the provisions of this chapterThis chapter (2) provides for conducting the election, making the returns thereof, and for making and transmitting the proper certificates thereof to the respective clerks of the counties. Beyond this it is silent. There is no similar provision making the prescribed modes of opening the returns and certifying the results, the rule in all public elections.” All such provisions arc found in other and subsequent chapters of Title XIV, relating to elections. Section 2994, of chapter 4, provides, among other things, for certifying returns to the clerk of the court, in the judicial election district having the largest population. This clerk makes out the necessary election certificate, etc., without which, and the commission to which it entitles the successful candidate, the election would be an idle form and incur a useless expense. These provisions, as we have said, are no part of the act before us, either by direct reference or by any general enactments. The inevitable conclusion is that if the act before us is special so far as it attempts to provide for a special election of circuit court judges, it is a vain and idle form by reason of its failure to provide any means of ascertaining and declaring the result, and must fall of its own inherent infirmity. It remains to inquire if the entire act must fall. If controlling effect is sought to be given to the fact that the language which creates the three new judgeships is that which fixes the day of election, the obvious answer is that this is not and was not intended to be an act to fix a day for holding an election. It is an act to create a new judicial circuit and three new judgeships. We find nothing in its letter so rigid or inflexible as to stand in the way of giving effect to this plain intent of the general assembly. The foregoing considerations call upon us to construe this act to be one for the creation of this new circuit, and these new judgeships, according to the unmistakable legislative intent, and that it is not necessary that we should declare that the act must wholly perish — the last extremity to which judicial construction should go — because of the palpable inadvertence in attempting to provide a day of election.

Recognizing as we do the existence of these new judgeships by virtue of the act before us, and discovering no reason why they should not be filled at the time appointed by the general law for the election of circuit court judges — which remains unaffected by this act — there is shown no sufficient reason why tbe notice of sucb election should .not be proclaimed by tbe sheriff, tbe judgment below, ordering him to issue sucb proclamation, is ' Affirmed.


author: Widliams, J.

text:
    State v. Barbee.

      Act of February 24, 1868 — Election—Time to fill vacancy in judgeship.

    1. The act of February 24, 1868 (65 Ohio L. 11), authorizing the election of one additional judge of the court of common pleas, in the third subdivision of the fifth.judicial district, provides that “the first election for said additional judge shall be held on the first Monday in April, 1868, and his term of office shall commence on the second Monday in May thereafter.” It further provides, “that it-shall be the duty of the sheriff in each county in said subdivision, at least fifteen days prior to the first Monday of April hereafter, in each year, when an election for such additional judge is to be held, to give notice, by proclamation, of the time and place of holding such election,” and that, “ any vacancy that may occur in the office of such additional judge -by death, resignation or otherwise, shall be filled as in other cases of vacancy in the office of judge of said court.” Under the provisions of the constitution, a vacancy in the office of any judge is to be filled by appointment, by the governor, until a successor is elected and qualified, “and such successor shall be elected for the unexpired term at the first annual election that occurs more than thirty days after the vacancy shall have happened; ” and by statute it is provided that such “ successor shall be elected at the first proper election, that is held more than thirty days after the occurrence of the vacancy.” At the election held on the first Monday in April, 1868, such additional judge was duly elected; he served during his constitutional term; at the annual election held on the first Monday of April, 1873, a successor was elected, and at the annual elections hold on the first Monday of April, 1878,and 1S83, re-elected for like terms. On the 29th day of April, 1887, he resigned, and the vacancy was filled by appointment by the governor : Held, that the annual election occurring on the first Monday of April, 1888, is the proper one for the election of a successor of such judge for the unexpired term.
    2. Section 2978 of the Revised Statutes, as amended March 24,1886 (83 Ohio L. 35), providing that allgeneral elections for judge of the court of common pleas shall be held on the first Tuesday after the first Monday of November, does not apply to elections for filling vacancies in the office of the additional judge authorized by the act of February 24, 1868, nor does it repeal or otherwise affect that act.
    (Decided November 1, 1887.)

      Mandamus.
    On the 30th. of September, 1887, the relator filed his petition in this court alleging, in substance, that he is an elector, and the defendant is sheriff, of Franklin county ; that the act of February 24th, 1868 (65 Ohio L. 11), authorized the election of an additional judge of the court of common pleas in the third subdivision of the fifth judicial district, comprising the counties of Franklin, Madison and Pickaway, under which, at the election held on the first Monday in April, 1868, such additional judge was duly elected for the term of five years from the second Monday in May thereafter; and at the election held on the first Monday in April, 1873, Hon. E. F. Bingham was elected his successor, and at the election -held on the first Monday in April, 1878, he- was re-elected, and again at the annual election held on the first Monday in April, 1883, for like terms of five years; that he held said office until the 29th day of April, 1887, when he resigned, and on the same day the governor appointed Hon. David F. Pugh, to fill the vacancy. The defendant, on the 30th day of September, 1887, gave notice by proclamation of the time and places of holding the ensuing general election for state and county officers, on the first Tuesday after the first Monday in November, but he refuses to give notice by proclamation, to the electors of Franklin county to vote for a judge to fill such vacancy, or include that office in his proclamation as one to be filled, by a person to be voted for at that election; and the petition prays for a writ of mandamus commanding him to do so.
    The defendant answered, admitting the allegations of fact in the petition, and consents that a peremptory writ may issue without further hearing, if the court should be of the opinion that a case is made for an alternative writ.

      II. F. Page and Booth & Keating, for relator.
    J. E. Wright, J. T. Holmes, Nash & Lentz and John J. Chester, for defendant.
   Widliams, J.

The office of the additional judge provided for by the act of February 24th, 1868, having become vacant by the resignation of the incumbent, April 29th, 1887, and the vacancy having been filled by appointment by the governor, until a successor should be elected and qualified, the question is presented, when shall such successor be elected for the unexpired term ? Shall it be at the general election of the first Tuesday after the first Monday in November, 1887, or at the annual election to be held on the first Monday in April, 1888 ?

The act creating the office (65 Ohio L. 11) provides that “the first election for said additional judge shall be held on the first Monday in April, 1868, and his term of office shall commence on the second Monday in May thereafter.” It also provides, that “ the sheriff in each county in said subdivision, shall, at least fifteen days prior to the first Monday in April, 1868, and at least fifteen days prior to the first Monday of April thereafter, in each year, when an election for such additional judge is to be held, give notice by proclamation of the time and place of holding such election,” and “ any vacancy that may occur in the office of such additional judge, by death, resignation or otherwise, shall be filled as in other cases of vacancy in the office of judge of said court.”

Section 11 of the Revised Statutes, relating to appointments to fill vacancies, and the election of successors in such cases, contains the following provision: “ When an elective office becomes vacant, and is filled by appointment, such appointee shall hold the office till his successor is. elected and qualified, and such successor shall be elected at the first proper election that is held more than thirty days after the occurrence of the vacancy.”

The question still remains, what is the proper election ? In the absence of any other positive rule, the answer naturally suggested would be, that it is the first regular recurrence of that election, at which the officer, whose successor is to be chosen, was elected; or, in other words, the first election occurring, appropriate to that particular office, under the law regulating elections to that office.

It'is claimed, however, that section 13, of article 4, of the constitution prescribes a different and positive rule on the subject. Its language is : “ In case the office of any judge shall become vacant before tbe expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the governor, until a successor is elected and qualified; and such successor shall be elected for the unexpired term, at the first annual election that occurs more than thirty days after the vacancy shall have happened.” Under this section of the constitution two propositions are urged in behalf of the relator:

1. That the November election is the first annual election occurring more than thirty days after the vacancy happened, and by the plain terms of the section, the successor for the unexpired term must be elected thereat.

2. That since, by the constitution, state officers are required to be elected at the fall, and not at the spring, election and' since judges are state officers, the annual election contemplated by the section, is the general election for state officers.

These propositions may be considered together. It is a fundamental rule that to properly determine the effect to be given any clause of an instrument, a due regard must be had to all its parts, and its various provisions be so construed, if possible, as to make a harmonious whole. In the constitution, elections are characterized as general, and annual. Section 1, of article 3, provides that the officers of the executive department, viz.: governor, lieutenant-governor, secretary of state, auditor of state, treasurer, and attorney-general, shall be chosen on the second Tuesday of October (now the first Tuesday after the first Monday of November), and the provision of section 18 of the same article is: that every vacancy in the office of auditor, treasurer, secretary, and attorney-general, shall be filled by election, at the first general election that occurs more than thirty days after it shall have happened.” Section 4, of article 10, provides that township officers shall be elected on the first Monday of April annually; and by the terms of section 15 of the schedule, until otherwise provided by law, elections for judges shall be held, and the poll-books returned as is provided for governor.” It will thus be seen that certain state officers are required by the constitution to be elected at the October (now November) election, which is therein called the general election; .township officers, until the recent amendment, were required by the same instrument to be elected annually in April, which is the only election denominated annual by the constitution; while the time for holding elections for judges rests wholly in the legislative discretion. This discretion has been exercised, and various periods fixed by law for the election of judges; some are chosen at the general election, some at the April election, and some at other-times. The act creating the office of the additional judge in question, appointed the April election as the one at which to choose incumbents for that office. So that if Judge Bingham had served his full term, the election for choosing his successor would be that occurring on the first Monday in April, 1888.

• It is to be observed that section 13, of article 4 of the constitution, does not authorize the successor of a judge whose office becomes vacant before the expiration of his term, to be elected at the first election that occurs more than thirty days after the vacancy happens. It certainly -would have done so, by omitting the word annual,” if the sole or dominating purpose was to so limit the executive patronage in filling vacancies, that persons appointed thereto should hold only until it was possible to elect the successors. While a primary object of the constitution undoubtedly was to make the office of judge elective by the people, the limitation upon the power of executive appointments to vacancies, was intended to be reasonable, and to some practical end. The same intention and policy is manifest in the provisions of section 18, of article 3, investing the governor with the like power of filling vacancies in the office of auditor, treasurer, secretary and attorney-general, and requiring all such vacancies to be filled at the first general election that occurs more than thirty days after they shall happen. >

It is worthy of notice that in this latter section the first general election is the period fixed for filling vacancies, while in section 13, of article 4, it is the first annual election. It cannot be assumed that this difference in phraseology was accidental, or that the terms are used in the same sense. The presumption is, that the language was selected with care, and used with accuracy; and that if it had been intended to designate the same election in the two sections, the same descriptive terms would have been employed in each. The fact that in the two sections of the same instrument relating to the kindred subjects, the elections at which vacancies are tó be filled are described in different language, raises the inference that they are, or may be, different elections. As has been seen, vacancies occurring in the offices named in section 18, of article 3, are to be filled at the general election, and can be at no other; and this obviously was made so, because that is the one prescribed by the constitution for the regular election of those officers. But one purpose can therefpre be perceived for the difference in the phraseology of the two sections; and that is, that inasmuch as the times for the election of judges, was left by the constitution to the discretion of the legislature, and might, in some instances at least, be fixed by statute for periods other" than those of the general election, it was intended to provide for filling vacancies in that office, at the first annual elections at the periods so fixed, that occur more than thirty days after the vacancies shall happen; thus applying to appointments by the governor under each section, the same reasonable rule and limitation. In the case of all elective officers, the necessity for the existence of some continuous authority to fill vacancies temporarily, in order that the performance of their duties may not be too seriously interrupted, and the inconvenience and inadequacy of any system, by which such power could be exercised by the people through the medium of popular elections, except at regular periods, led, no doubt, to the adoption of both sections; the design of each being, as we conceive, to effectuate the same general policy of uniformity in filling vacancies already alluded to. It is said that the general election is an annual election, because it occurs regularly every year at the same stated time; and where it is the next election that occurs more than thirty , days after a vacancy has happened in the office of any judge, it becomes the first annual election so occurring, and the successor must therefore be chosen at that election. Equally, and in the same sense, is the April election an annual election, for it occurs regularly every year at stated times; and it would follow, that ■where it, is the next election that .occurs more than thirty days after such vacancy happens, that woul<d, “for the same reason, become the first annual election, and tb,e one at which the successor must be chosen. If this is the meaning to be given to the term annual election, then, although judges of the supreme court, judges of the probate court and many judges of the court of common pleas, are regularly elected at the general election, their successors, where vacancies happen after that election, and more than thirty days before the ensuing April election, would have to be elected at the latter.. Such has not been the generally accepted interpretation.

In State v. Taylor, 15 Ohio St. 137, while the question we are now considering was not directly involved, Brinkerhoff, C. J., in the opinion, after quoting section 13, of article 4, says: “Now according to the facts in this case, admitted by the pleadings, Cassad, the deceased predecessor of the defendant Taylor, was regularly and duly elected (probate judge of Logan county)’ on the second Tuesday of October, 1860, for the full term of three years from the ninth day of February, 1861, which would expire on the ninth day of February, 1864. He died in October, 1861. The defendant Taylor was appointed to fill, for the time being, the vacancy thus created, and was elected to the same office at the October election, 1862.” And in Foster v. Scarff, 15 Ohio St. 533, speaking of the same election, the same judge says: “ On the second Tuesday of October, 1862, Taylor was regularly elected to said office.” And see State v. Cogswell, 8 Ohio St. 620.

From these cases and considerations, it may be accepted as a sound conclusion, that where a judge is by law required to be elected at the general election, and his office becomes vacant before the expiration of his term, the next general election that occurs more than thirty days after the vacancy happens, is the first annual election so occurring, within the meaning of section 13, of article 4, of the constitution, at which his successor must be elected; and it would seem as certainly to follow that, where, by law, the office of judge is created, and the April election is tbe one established for the regular election of incumbents thereto, and it becomes vacant before the expiration of the term, the next April election occurring more than thirty days after the vacancy happens is the first annual election for choosing the successor. The rule should work both ways; for the same reason that supports one conclusion, sustains the other; unless it can be maintained that because judges are state officers, their successors must be elected at the general election. Such is the relator’s claim. In his behalf it is said that officers are divided into two classes; state and county officers constituting one, and township officers the other class; and that where reference is made in the constitution and laws to annual elections in connection with officers of the former class, the general election is meant: and when made in connection with the latter, the April election is intended; and consequently all vacancies in offices of the former class must be filled at the general election.

The statement of the proposition at once provokes the inquiry, that if such was the intention of the framers of the constitution, why they did not in section 13, of article 4, provide that every vacancy in the office of judge should be filled at the first general election, as they did in section 18, of article 3, in regard to executive officers? We have before indicated that the difference in the phraseology of the two sections was for a purpose, and what that purpose was; and adverted to the different provisions made concerning elections for executive and judicial officers, from which it appears that under the constitution it is perfectly competent to1 provide by statute for the election of all judges at the April election. If it were so provided, and their regular elections so set apart for a period different and distinct from the general election, would it be claimed that, because judges are state officers, the elections for their successors in cases of vacancies, must be fixed with reference to the elections at which executive officers are regularly chosen, rather than those appointed for the regular election of all judicial officers?

The legislature has seen proper to provide that some of the judges of the court of common pleas shall be elected at the general election, and some at the April election. For the purposes of election, they may therefore be divided into two classes; one including all to be elected at the general, and the other all to be elected at the April, election. Undoubtedly, where vacancies happen, the successors for the unexpired terms of those chosen at the general election, should be elected at that election, not because it is the general election, nor because state executive officers are elected thereat, but because that is the annual election appropriate to that particular office. For the same reason, successors for the unexpired terms of those chosen at the April election, should be elected at that election. The proper election for choosing successors in every case, is determined by reference to the election established by law for the particular office.

The real ground for the claim that where a vacancy occurs, the successor for the unexpired term of a judge should be elected at the general election, is that that is the appropriate election for that office, because it is a state office, and that is the election at which state officers are regularly elected. This is, at last, determining what is the appropriate election for choosing the successor, by reference to the election at which the officer is regularly chosen; and the grade or class to which the office belongs, is of consequence only as it makes that certain. The reasoning is that since judges are state officers, and the latter are regularly elected at the general election, therefore that is the proper election whereat to . elect successors to fill vacancies for the unexpired terms of judges. The defect in the reasoning is evident; all judges, though state officers, are not regularly elected at the general election, but some are so elected at the April election; and hence, whether a successor for the unexpired term of any particular judge, is to be chosen at the general, or at the April election, depends upon which is the one established by law far regular elections to that office; the decisive fact in each case being, not the rank of the office, but the class of elections to which the law has assigned it.

The statute creating the office of additional judge under discussion, has made specific provisions for the election of judges thereunder, and appointed the April election, as the one at which, they are to be so elected; and a majority of the court are of the opinion, that the eleetioa to be held on the first Monday of April, 1888, will, within the meaning of the constitution, be the first annual election occurring after the vacancy in the office happened, by the resignation of Judge Bingham, and the proper one under the statute for choosing the successor for the uhexpired term.

The provision in the act of 1868 that any vacancy shall be filled as in other cases of vacancy in the office of judge of said court,” is not incompatible with this conclusion; for, as judges are by law elected at different elections, the election of a successor for the unexpired term in other cases, must be governed by the considerations already expressed.

The further claim is made, that section 2978 of the Revised Statutes, as amended March 24, 1886 (83 Ohio L. 35), which provides that all general elections for judge of the court of common pleas shall be held on the first Tuesday after the first Monday of November, rejjeals that part of the act of February 24, 1868, relating to the election of judges thereunder, and changes all such elections from April to November.

The obvious answer to this claim is, that, by its terms, the section applies only to general elections, and the act referred to is unaffected by it. Writ refused.

Owen, C. J., and Minshall, J., dissent.


author: Spear, J.

text:
    Chapman v. Lee.

      Appeal — Bight to trial by jury — Accounting in equity — Discovery.
    1. Upon the trial of an action against several defendants, where the plaintiffs in their petition charge upon the defendants a conspiracy to cheat . and defraud the plaintiffs, and with thereby procuring and appropriating to their own use a single sum of money which rightfully belongs to the plaintiffs, and which they are entitled to recover, and for which they seek a joint judgment against the defendants, and the answer admits the receipt of a stated sum of money, and is otherwise, in effect, a general denial, either party is entitled to demand a jury, notwithstanding the plaintiffs pray a full discovery, and for an account of the full amount due to them, and to have an equitable lien declared and enforced.

      2. In such case the remedy of accounting in equity, is not necessary to full and adequate relief to the plaintiffs.
    3. Adequate means of obtaining discovery from parties to actions at lair being afforded by our statute, suits for discovery, as prosecuted in equity, before the adoption of the code, are practically obsolete in this state.
    (Decided November 1, 1887.)
    Error to the Circuit Court of Lucas County.
    Suit was brought in the court of common pleas of Lucas county by the defendants in error against the plaintiffs in error, and Albert J. Miller and The Lake Shore & Michigan Southern Railway Company, by the filing of a petition of which the following is the substance :
    In the year 1879, the plaintiffs, who were partners in the practice of law, entered into a contract in writing with the defendant Albert J. Miller, whereby the plaintiffs were to prosecute an action for him against the railway company for damages to his property by fire, and, for their services, in addition to being reimbursed for any money outlay necessarily made, were to receive four-tenths of all moneys that might be realized from the company, whether by judgment and execution or settlement and compromise, and were to have a lien on any money so realized to the extent of four-tenths, and if nothing was realized they should receive nothing for services, but should be reimbursed for moneys expended. Chapman and Tracy were at the time creditors of Miller. They' had notice of the terms of the contract, and, in writing, assented to it. The plaintiffs prosecuted the action with due diligence, and procured a judgment against the company for $12,811, and costs. This judgment was reversed by the district court, and the cause remanded to the court of common pleas for a new trial. The plaintiffs were endeavoring to bring the case to trial and final judgment at the May term, 1881, when during said May term, Miller, Chapman, Tracy and said railroad company, all well knowing all of the rights of plaintiffs herein under said contract, negotiated and conspired with each other to affect a settlement of said action without further proceedings in court, and to conduct secretly as to said Lee & Brown, said negotiations, and to so fix upon the terms of, and make payment under said settlement, as to deceive said Lee & Brown as to the terms of said settlement and as to the amount they would be entitled to receive out of the same under their said contract for said professional services;

      “ That in furtherance of said plan and purpose, it was devised and agreed to between the defendants herein, that their real negotiations and agreements in respect to said settlement, and the carrying out of same, should be kept from the knowledge of the plaintiffs herein, and that the defendants herein should hold out and represent to the plaintiffs that such settlement was in fact agreed upon at and for the sum of five thous- and dollars and no more, and these defendants in pursuance of said plan and purpose, did get up an agreement in writing and cause the same to be signed by said Miller and said railroad company to the effect that said cause was settled between the parties thereto, at and for the sum of five thousand dollars, to be paid by said railroad company; and on the 6th day of June, A. D. 1881, they caused said written agreement to be produced to said court, and to have said court make an order declaring said cause settled at and for the sum of five thousand dollars, although the plaintiffs herein then and there objected to the making of said order, and to said alleged settlement.

      “ That to enable the defendants herein to deceive the plaintiffs herein as to the amount at which said settlement was in fact made, and to cheat and defraud plaintiffs out of a part of the four-tenths of the amount paid and to be paid, the defendants herein got up a pretense, which they fully carried out, that the defendant Chapman, who was interested, in conjunction with the defendant Tracy, as the bondsman of said Miller in obtaining, of the proceeds of said proposed settlement, the sum of about three thousand dollars to meet their said liability, should be pretendedly employed by, and act as, the agent of said railroad company in attempting to effect, and effecting, a settlement of said action, and that whatever was in fact paid by said railroad company, or was or might be agreed so to be so paid, over and above the sum1 of five thousand dollars," should be pretendedly paid by said railroad company to said Chapman or some other for him as and for his compensation for his pretended service in and about effecting such settlement.
    “ That said aforesaid pretense and scheme were, in fact, carried out by defendants, and said railroad company in fact for and in consideration of the settlement of said action, did pay, not only the sum of five thousand dollars, but also a further large sum, but in what precise sum, the plaintiffs do not know, for the defendants have each and all refused to inform plaintiffs of the true amount thereof, which amount -plaintiffs are by others informed and believe is not less than the sum of four thousand dollars.
    “That said payment so made by said railroad company, was, in fact, so made for the sole purpose of aiding said Miller and other defendants in cheating plaintiffs out of the full four-tenths of said settlement money, and of getting the amount of said settlement-money reduced to a lower amount than it otherwise could have done, and with full knowledge on the part of said railroad company, that said money so paid to said Chapman or said Tracy, or some other for said Chapman, was so paid to and for the use and benefit of said Miller, as in fact it was:
    “ That at the time said contract was entered into by and between plaintiffs herein and said Miller, and from thence until the present time, the said Miller has been, and now is, insolvent, all of which was well known to each and all of the other defendants herein, at and before the time of making and carrying out of said settlement:
    “ That by reason of the premises the plaintiffs had a right to have from said railroad company, and a lien upon, four-tenths of all moneys, directly or indirectly páid by said railroad company for or on account of the settlement of said action, and that said lien so attached to and upon said moneys in the hands of said railroad company and followed and now attaches to the same in the hands of whomsoever the same may have passed, with the knowledge of plaintiffs’ said rights; but plaintiffs have received of the same only the sum of two thousand dollars:

      “ That plaintiffs are entitled to have a full discovery from the defendants of each and all the facts touching said settlement and the amount and payment of the settlement money, in whatever form the same may have been made, whether under the guise of compensation to said Chapman for services or otherwise. And they are also entitled to have an account of the full amount due to them under said contract with said Miller, from said Miller, said railroad company, said Chapman, and said Tracy, and to have the judgment and decree of this court that defendants pay the same to plaintiffs:
    “ The plaintiffs further say that the defendant — The Lake Shore & Michigan Southern Railway Company — is a railroad corporation under the laws of Ohio, and its line of railroad runs and is operated through Lucas county, Ohio.

      “ Whereupon plaintiffs pray that said Charles F. Chapman, J. R. Tracy, and the Lake Shore & Michigan Southern Railway company may be made parties defendant hereto; that they may be served with process; that they may make full answer to each of the interrogatories hereto annexed, and on final hearing hereof, plaintiffs may have their lien declared and enforced upon and against the full four-tenths of any and all moneys paid or agreed to be paid by said railway company, directly or indirectly, for or on account of the settlement of said action, and that plaintiffs may have the judgment and decree of the court accordingly, and for other and full relief.” Chapman answered, alleging, among other things, that the railway company stated to him that they desired to settle and stop litigation, but were unable to settle with Miller, and offered to pay him (Chapman) $2,500 as stated compensation for his services if he would procure a settlement at $5,000; that he undertook the service, spent much time, and did settle the case for that sum and received of the company the $2,500 agreed for such service; that he had been sued as surety for Miller, and had from Miller an assignment of an interest in the claim against the railway company; that this was the first assignment, and that other creditors had like assignments executed later, and that without great abatement of the claims of other creditors no settlement could be had, etc., etc., and denying all allegations inconsistent with the answer.
    Tracy answered alleging that he received for Chapman checks from the railway company to the order of Chapman, as an accommodation to Chapman, and turned the same over to him, and had no other connection with the matter.
    Miller also answered as did the railway company.
    Replies to these several answers were filed by plaintiffs. At the trial neither party having demanded a jury the case was tried and submitted to the court. The court found in favor of the railway company as against the plaintiffs, and dismissed the company from the case. It found in favor of the plaintiffs as against Miller, Chapman and Tracy, and rendered a judgment against them for $1094 and costs." The plaintiffs gave notice and bond for appeal as to the judgment in favor of the railway company, and Chapman and Tracy gave notice and bond for appeal as to the judgment against them. In the circuit court, on motion of the railway company, the plaintiffs’ appeal was dismissed, and on motion of the plaintiffs the appeal of Chapman and Tracy was dismissed, on the ground that in law those defendants had no right to appeal from the judgment against them. To reverse this order of dismissal of the appeal of Chapman and Tracy this proceeding in error is prosecuted.

      Bissell & Gorrill, for plaintiffs in error.
    The frame of the petition below was as completely a petition in equity as modern equity practice could require.
    The interest of plaintiffs below in the claim in suit was equitable and not legal. Stanbery v. Smythe, 13 Ohio St. 500; Christmas v. Griswold, 8 Ohio St. 558; Horst v. Dague, 34 Ohio St. 371; Story’s Eq. Jur. sec. 1045; Olds v. Tucker, 35 Ohio St. 581; Reed v. Reed, 25 Ohio St. 422.
    The plaintiffs below implored the aid of the equitable power of the court; (1) because they were ignorant of the true state of facts, and asked a discovery, and (2) because they had no legal title to the fund, they asked the court to find and enforce the lien upon which the contract was supposed to vest them with.
    They did not ask a money judgment for any particular sum, but asked the court to take an account. What would they have done with such a case on default? They did not indorse their petition, and the summons did not state, that the action was for a specific sum of money, and for money only, as required in actions at law.
    In Hall v. Eaton, 25 Vt. 458, the court held, that in case of conspiracy to prevent a creditor from getting pay of his claim from a debtor, the creditor should either attach the goods or go into a court of equity and charge the confederate as a trustee. This was the object of the action below.
    The right of action against Miller was founded upon the contract. The right of action against the other defendants might be joint or several, or might exist against one alone, or more than one, depending upon the application of equitable rules to the testimony which should be received upon the trial. How was a jury to determine such liability ? McCrory v. Parks, 18 Ohio St. 1-7.
    “ Equity has exclusive jurisdiction over an assignment of a specific fund.” 1 Pom. Eq. Jur. sec. 169; Weakly v. Hall, 13 Ohio, 174.

      J. O. Lee and J. M. Brown, in person.
    It is plain that the test is whether the right to demand a jury in the case did or did not exist.
    The mere presence of allegation and prayer in-the pleadings setting up a right to, or demanding, equitable relief, may not be conclusive upon the question as to whether or not a jury may be demanded prima facie. If there is a prayer for a judgment for money only, as ultimate relief, either party has the right to demand a jury. Ladd v. James, 10 Ohio St. 437; Sheeful v. Murty, 30 Ohio St. 50; Brundridge v. Goodlove, 30 Ohio St. 374.
   Spear, J.

This court is called upon to determine but one question: Did the circuit court err in dismissing the appeal of Chapman and Tracy ? If the parties had the right, in the court of common pleas, to demand a jury, then the case was not appealable; if they had no such right, then the case was appealable, and the appeal was improperly dismissed.

A jury trial may be demanded by either party of “issues of fact arising in actions for the recovery of money only.” (Section 5130, Revised Statutes.) If the pleadings in this action made a case for the recovery of money, and one in which a joint judgment might be rendered against the defendants, a jury could, of right, have been demanded. An examination of the pleadings will determine this question. What was the primary object sought? If it was a judgment for money against all the defendants, and the allegations of the answers did not change the character of the case attempted to be made, the mere fact that the petition contains allegations which seem to invoke some of the equity powers of the court, will not necessarily change the character of the action. The purpose of the pleader, even, does not control, but we must ascertain the scope and purpose of the proceeding. Under our rules of pleading the petition must contain a statement of the facts constituting the cause of action, and a demand of the relief to which the party supposes himself entitled. When we have ascertained the legal effect of the facts pleaded, the scope of the action is determined and the question disposed of. The pleader may have inserted allegations which are immaterial and unimportant. He may have asked for relief, to which, though he supposed himself entitled, he was not entitled. These errors, if such they are, in the absence of a motion to make definite, or to strike out, would not alter the legal effect of his pleading. Ladd v. James, 10 Ohio St. 437; Brundridge v. Goodlove, 30 Ohio St. 374.

A careful examination of the petition satisfies us that, giving to it the liberal construction which our practice requires, the gist of the action attempted to be appealed was a charge of fraudulent combination between the defendants, whereby plaintiffs were deceived as to the real terms of settlement of the pending case, and money, which belonged to plaintiffs, was wrongfully appropriated to the use of Miller for the benefit of himself, Chapman and Tracy. The plaintiffs had an equitable lien, by virtue of their contract with Miller, upon all moneys paid by the company to the extent of four-tenths, but the action idid not primarily seek to trace the fund as such and enforce a lien on that, or hold Chapman and Tracy as trustees, but rather to hold them all liable for money had and received by them to the use of plaintiffs. In other words, the claim of plaintiffs in substance was that the defendants Miller, Chapman and Tracy were wrongdoers; that they had, by a fraudulent combination, procured money which in fact, as to four-tenths of it, was the money of plaintiffs, and hence the defendants were jointly liable to plaintiffs for the amount. The receipt of money by Chapman from the source claimed, and the possession of checks, by Tracy from the same source, was admitted, and neither answer made a case different in kind from that made by the petition. Hence the simple question was whether or not this claim of the plaintiffs was true. If it was, the moment that the money in settlement of the case against the railway company passed into the hands of the defendants, four-tenths of it became the property of the plaintiffs, known by the recipients to be such, and any appropriation of it by Chapman and Tracy, or by Miller with their knowledge for their benefit, was a wrongful use of the plaintiffs’ part of the money, for which those defendants became liable to plaintiffs, and the remedy was a straight judgment against all of them.

This case is dissimilar in principle to Hall v. Eaton, 25 Vt. 458, cited by counsel for plaintiffs in error. There the defendant combined with the plaintiff’s debtor to conceal the latter’s property, and prevent the plaintiff, who was a general creditor and had no lien, from reaching it. The acts complained of were alike injurious to all the creditors of the debtor; the plaintiff had not been injured in any personal, individual right. The court held that plaintiff might have gone into a court of equity, or have charged defendant as trustee, but that he could not maintain an action on the case, and remarked that if the plaintiff had acquired a right to have the application of the property made in payment of his debt, to the exclusion of other creditors, a different question would arise, and intimated that in such case an action on the case could be sustained. The equitable lien on the money given plaintiffs in the case at bar by the contract, gave them the right to have four-tenths of it applied in payment of their services, to the exclusion of all other creditors. Our case more resembles that of Adams v. Paige, 7 Pick. 542, where a third person fraudulently aided a debtor to conceal his property and cause it to be sold and proceeds applied on a fictitious judgment, and a creditor having obtained a subsequent lien on the same property, which he could not enforce because of prior attachments and of the insolvency of the debtor, it was held that action on the case would lie.

Neither the allegation as to the right of plaintiffs to a lien on the money itself, nor to have full discovery, from the defendants of each and all the facts touching the settlement, and the payment of the settlement money, nor the claim that they are entitled to have an account of the full amount due to them under the contract, can materially change the case. As to the first, if it could avail the plaintiffs at any time, it could not do so unless they first showed facts which would warrant a money judgment; the second Avas an entirely superfluous allegation save as to the ordinary mode of inquiry by interrogatories, and the allegations of fact did not make a case for an accounting in equity, nor were there contractual relations botAveen plaintiffs and any of the defendants save Miller, and it Avas the other defendants against whom the real relief Avas sought, Miller being insolvent. Suits for diseoATcry Avere, in equity practice, auxiliary proceedings, brought not to obtain any equitable remedy, nor to establish any equitable right, but to aid in maintaining a legal right, and in prosecuting actions pending, or to be brought, in a court of Iuav. If a party could not succeed Avithout the aid of facts Avitliin the personal knoAvlcge of his adversary, he might file his bill, setting forth all the facts Avithin his knoAvledge, and adding interrogatories which the other party Avas required to answer fully under- oath. No relief beyond the answer desired need be asked, and no decree made, and as soon as the ansAver Avas complete the function of the equity court ordinarily was ended, but the answer so far as responsive, could be used by either party in the trial at law. yie will not be understood as meaning that it was not common for a court of equity, having taken cognizance of a case for one purpose, to retain it for all purposes, and award complete relief though the final remedy was of the kind which might be conferred by a court of law. Such result often followed where discovery was sought as an incident to equitable relief, covering the whole controversy. But where a court of law had ample power to award full relief, a court of equity ordinarly refused to take cognizance of the case, and there clearly is more conclusive reason for such refusal, in a case like the one at bar, under our present practice. All the aid which a suit for recovery would give is now given by our code in the case at law itself. The party may attach to his pleading interrogatories which, so far as pertinent, the other party is bound to answer, and those answers may be used by either party as evidence. He may also take the deposition of the opposite party, or put him on the stand as a witness at the trial. The doctrine and rules concerning the subject-matter of discovery established by courts of equity, are believed to be still in force and to control the same matters in the new procedure, but the bill of discovery, as a separate action, is practically obsolete in this state. And in a case like the present the matter of accounting is but another name for a discovery. It is not a case of mutual accounts, nor where there are circumstances of great complication, nor of a fiduciary relation existing, such as that of guardian, administrator, or director of a corporation, where a duty rests to render an account, nor is it a case of partnership. The single fact that an accounting would disclose, is: what was the exact amount paid by the railway company in settlement of the pending suit? and ample means, in the mode hereinbefore indicated, were at hand to ascertain that fact. Where an adequate remedy is given at law, resort to equity is not necessary,- and, as a general rule, cannot be had. Says Pomeroy in his work on Equity Jurisprudence, section 178: “Even when the cause of action, based upon a legal right, does involve or present, or is connected with, some particular feature or incident of the same kind as those over which the concurrent jurisdiction ordinarily extends, such as fraud, accounting, and the like, still, if the legal remedy by action and pecuniary judgment for debt or damages would be complete, sufficient and certain— that is, would do full justice to the litigant parties — in the particular case, the concurrent jurisdiction of equity does not extend to such case. For example, whenever an action at law will furnish an adequate remedy, equity does not assume jurisdiction because an accounting is demanded or needed; nor because the case involves or arises from fraud; nor because a contribution is sought from persons jointly indebted; nor even to recover money held in trust, where an action for money had and received will lie.” See, also, sections 82, 83, 142, 193, 194, 1420 and. 1421.

It is true that the prayer of the petition is involved and indefinite, but it can hardly be said that it does not pray a money judgment, though it does not ask for any particular sum of money. It does ask for judgment for four-tenths of any and all moneys paid on account of the. settlement of the case. But the character of the action is not wholly, or mainly, determined by the prayer. Though the pleader be mistaken as to the relief he may be entitled to, if he prove the allegations of his petition, such mistake would not deprive the court of the power or relieve it of the duty to grant such relief as the case made by the pleadings and evidence warrants. Nor is it of consequence that a judgment by default might not have been proper upon the petition. The issues were fully made by petition, answers and replies, and the case was tried upon evidence. The trial court rendered a money judgment against the defendants, which was the relief the plaintiffs were entitled to if their petition was true. Nor can the belief of the plaintiffs at the time as to their right to a jury affect the merits of the case.

We have examined all the cases cited by counsel for plaintiffs in error, but are not impressed that they support their contention.

From this view of the character of the case made by the pleadings, the conclusion follows that either party had a right to demand a jury at the trial, and the ease was, therefore, not appealable.

Judgment affirmed.