author: Johnson, O. J.

text:
    Secor v. Witter.

      1. Where the name of one of several partners against whom a joint judgment was rendered on the ground that their petition did not state a cause of action, was by mistake omitted in a petition in error filed by his co-plaintiffs below, on behalf of all, to reverse such judgment, the reviewing court in which the petition is filed, or this court on reservation, may allow the omitted partner to become a co-plaintiff in error, though the time has elapsed for filing a petition in error. Smetters v. Rainey, 14 Ohio St. 287, distinguished and limited.
    S. In an action before a justice of the peace a garnishee who is summoned to answer is not a party, nor has he his day in court in that action. His duty is to appear and answer all questions touching the property and credits of defendant in his possession or under his control, and truly disclose the amount owing by him to defendant, whether due or not, and whether upon a negotiable instrument or otherwise,
    3. If by such answer it appears that he is owing defendant on a negotiable instrument not yet due, it is the duty of the justice, after judgment against defendant, to order him to pay the amount when duo to the justice, to be applied in satisfaction of such judgment.
    4. The order of a justice is not a judgment charging the garnishee.' It does not determine the ultimate rights of the parties. It can only be enforced by actions as in other cases. In legal effect it is an assignment of defendant’s right in the claim to the plaintiff, and authorizes him to sue thereon in his own name, if the order is not complied with.
    5. In such an action the garnishee may interpose any offset or defense he may have against the action, notwithstanding the order of the justice, and no judgment should be rendered against him that will not be a protection against the rights of third persons.
    6. A negotiable instrument, before maturity, is subject to garnishment in the hands of defendant, and, as against him and those claiming through him, with actual notice of the proceedings in attachment, the right of the plaintiff in attachment is paramount; but such right is liable to be defeated by one who, before due, without such notice, becomes the Iona fide holder. The pendency of the proceedings, without actual notice thereof, will not defeat such holder.
    7. In an action for failure to obey the order of the justice, the fact that the instrument had, since it was seized in- attachment, and before its maturity, become the property of such a bona fide holder, will defeat a recovery.
    8. After the order of the justice and before the maturity of a negotiable instrument so seized in attachment, equity will interpose, on the application of the plaintiff, against an endorser with actual notice of the attachment, to restrain him from transferring the same so as to defeat the attachment, and on final hearing will grant such relief as the rights of the parties may require.
    Error. Reserved in the District Court of Lucas county.
    January 27, 1877, plaintiffs in error commenced an action against defendants in error, under the following caption:
    “ Peter F. Berdan, Maro Wheeler, John Berdan, and James Secor, late copartners as Secor; Berdan & Co., plaintiffs, v. Elbridge Gr. Wetmore and Samuel B. Witter, John Wood, and David Robison Jr., copartners doing business in firm name of Witter, Robison & Wood; Chauneey E. Smith, J. C. Bruning’ and-'Bruning, copartners, doing business as Bruning Bros. defendants.”
    Witter, Robinson and Wood demurred on the ground that as to them the petition did not state facts sufficient to constitute a cause of action. Smith and Bruning Bros, answered; Wetmore made default.
    A temporary injunction was allowed, but on final hearing upon the demurrer in February, 1878, the petition was dismissed as to all the defendants, on the ground that said demur, rer was well taken.
    February 15, 1878, said plaintiffs, except Peter F. Berdan, with one Forman Waite, styling themselves late copartners as Secor, Berdan & Go., filed a petition in error to reverse said judgment. Tlio omission of Peter F. Berdan’s name and the insertion of Norman Waite’s, now appears to have been by mistake in copying the petition in error, the intention being that all of said partners should join as co-plaintiffs in error. This mistake was not discovered' until since the case was reserved.
    This petition correctly describes the judgment which it seeks to reverse.

      The original papers and copies of journal entries in the case properly authenticated, are attached and made part of the petition. In them is found the name of Peter F. Berdan as one of said firm of Secor, Berdan & Co., and that of Norman Waite is a stranger to the record. On the hearing in the district court, no objection was made by defendants on account of the omission of Peter F. Berdan’s name as a plaintiff; but upon motion of said defendants, as well as plaintiffs, the case was reserved for decision in this court upon the questions raised by the demurrer below. When reached for oral argument here, the plaintiffs, with said Berdan, filed a motion, supported by affidavit, to be allowed to make said Peter F. Berdan a co-plaintiff in error, showing that the discrepancy between the names of said partners in the court below, and on error, occurred by mistake. This is not controverted, but defendants insist that as the time allowed by law for filing a petition in error has now elapsed, therefore the amendment cannot be made.
    This is the first question for decision.
    A statement of the substances of the petition is required to determine the points raised by the demurrer.
    December 11,1876, plaintiffs commenced an action and sued out an attachment before a justice of the peace of Ottawa county against defendant Wetmore, with garnishee process against Smith and Bruning Bros., all of which were duly served
    On appearance day, the garnishees appeared and answered; each admitting an indebtedness to Wetmore, which was evidenced by negotiable notes not yet due, the aggregate of which was less than the plaintiffs’ judgment that day rendered against Wetmore. He, so far as appears, made no defense, but moved to discharge the attachment; but on what grounds is not stated.
    On December 23, 1876, this motion was overruled, and an order was made that the garnishees pay into court, when due, the amounts which they owed the defendants as payees of said notes, to be applied in satisfaction of plaintiffs’ judgment.
    After said attachment took effect by service, Witter, Robinson & Wood, who had actual notice of these proceedings, procured from the defendant Wetmore by indorsement these notes, to apply on a pre-existing debt from him to them.

      The petition claims that by these proceedings the plaintiffs acquired, as against Witter, Robinson & Wood, the legal right co the proceeds of these notes, and that, as against plaintiffs, their possession is a fraud upon the court and upon plaintiffs. They aver this, right is in danger of being lost by a transfer of the notes to bona fide holders for value before due. Wherefore they ask that Witter, Robinson & Wood be restrained from transferring them, and that on final hearing they have a judgment enforcing the order of the justice, and for general relief.
    This petition was filed some sixty days before maturity of these notes, garnished.
    The garnishees, as defendants in this action, each answered touching their indebtedness as above stated, and asking the protection of the court, by whose order they are willing to abide.
    Final judgment on the demurrer was rendered after the notes became due.
    The only error assigned is, that the demurrer should have been overruled.
    The defendants resist on three grounds.
    1. There is a defect of plaintiffs, that cannot now be remedied, more than three years having elapsed.
    2. Negotiable instruments, before due, are not the subject of garnishment.
    3. No sufficient ground is stated for equitable relief.
    Lee, Brown <& Lee, for plaintiff in error, claimed :
    I. The jurisdiction of the common pleas of Lucas county was complete over the parties and the subject matter.
    II. A debt evidenced by a negotiable, undue promissory note may be garnished in attachment before a justice of the peace.
    III. Where such note, at the time the notice in garnishment is served on the maker, is -owned by and in the possession of the debtor in the attachment, the debt evidenced by the note is appropriated to the payment of the defendant, and a subsequont transferee of such note, with notice of the garnishment, acquires no interest therein, as against the plaintiff in the attachment.

      • IY. Any court having jurisdiction of the parties, and general jurisdiction of civil actions, may interpose by injunction or otherwise to prevent any transferee of such note, with notice of the proceedings in garnishment, from disposing of the same, and may order compliance with the judgment and orders of the justice of the peace, made in attachment suit.
    For convenience, the.second and third propositions are consolidated and stated thus: A debt evidenced by an undue negotiable promissory note, may be garnished while such note is owned by, and in the hands of, the defendant in attachment, and no interest in such note as against the plaintiff in attachment, after service of notice of garnishment, can be acquired by any one having notice of the garnishment. Statutes S. & O. 778-9, §§ 37, 38, 39, 40, 41, 42, 43, 44; Rev. Stats. §§ 6498 to 6505 inclusive; Drake on Attachment. (4th ed.) §§ 587, 58S; Kieffer v. Ehler, 18 Pa. St. 388; Stone v. Elliott, 11 Ohio St. 252; Howe v. Hartness, 11 Ohio St. 449; Calcord v. Daggett, 18 Mo. 557, 560; Warden v. Valiant, 15 Mo. 409; Quarles v. Porter, 12 Mo. 76; Drake on Attachment (4th ed.) 635; 2 Dev. & Battle, 138; 9 Iredell, 116; 11 Iredell, 564; 65 N. C. 201; Glanton v. Griggs, 5 Geo. 424; King v. Carhart, 18 Geo. 650; Mims v. West, 38 Geo. 18; Enos v. Tuttle, 3 Conn. 27; Culver v. Parish, 21 Conn. 407; Huff v. Mills, 7 Yerger, 41; 9 Yerger, 411; 6 Humphreys, 402; Railroad Co. v. Cleneay, 13 Ind. 161; 14 Ind. 453; 17 Ind. 520; 26 Ind. 375; Hill v. Kroft, 29 Pa. St. 189.
    Equity jurisdiction has long recognized the bill of inter-pleader as a proper’ remedy where suits are either threatened or actually pending, by two different claimants, against a party claiming the same debt or duty by different or separate interests. Such interpleader is found in this case in the answer and cross petition of Bruner Brothers and Ohauncey E. Smith. Although they did not institute the suit, they were made parties as well as the other claimants, and so, being in court, they have filed their “ interpleader” in the form, of answer and cross petition. As our civil action in Ohio is as broad as both law and equity, the court has full power to administer fnll relief, as full as could be done by both courts of law and equity.

      Baker, Smith & Baker, for the defendant in error :
    I. Peter P. Berdan, one of the plaintiffs in the common pleas court, and against whom a judgment was there rendered, jointly with three of the plaintiffs in error here, was not made a .party in any form to the petition in error now before this court. No action of this court can be taken that will bind him ; and under the circumstances, this court, not having the necessary parties before it, has not such jurisdiction as will authorize it to disturb the action of the- common pleas court. Jones v. Marsh, 30 Ohio St. 20, 23; Smithers v. Rainey, 14 Ohio St. 287, 291.
    II. The demurrer to the petition was properly sustained, for three reasons: 1st. Garnishment is a purely statutory proceeding, and the remedies for its enforcement pointed out by statute are exclusive. Rice v. Whitney, 12 Ohio St. 358, 360; Kibling v. Burley, 20 N. H. 359, 361; Drake on Attachment (5th ed.) §§ 451 a, 454; Squire v. Shea, 26 Ohio St. 645, 650; Dunn v. Kanmacher, 26 Ohio St. 497, 504; Walker v. Mad River, &c. Co., 8 Ohio 28, 30; Shepard v. Commissioners, 8 Ohio St. 354, 358 ; Ohio ex rel. v. Marlow, 15 Ohio St. 114, 134; Johnson's Ex'rs. v. Johnson, 26 Ohio St. 357, 364; Ohio ex rel. v. Commissioners, 26 Ohio St.; 364, 369; Commissioners v. Bank, 32 Ohio St. 194, 201; Haskins v. Alcott, 13 Ohio St. 210, 216. 2nd. The plaintiffs had not exhausted their adequate remedies at law. Endel v. Liebrock, 33 Ohio St. 254, 269 ; Mechanics' Bank v. Rakin, 28 How. Pr. 510, 511; Bank of Chillicothe v. Yoe, 4 Ohio, 125.
    III. The petition, considered as an action of any known kind, as against Witter, Robinson & Wood, is essentially and fatally defective in its averments. This is clearly not an action at law, as against Witter, Robinson & Wood. But if it were, it could not be maintained, at the time this suit was commenced, for, at least, two sufficient reasons: 1. The notes were not due and no proceeds of or from them had come into the hands of Witter, Robinson & Wood. 2. The whole theory of plaintiffs’ case was that at the time of filing the petition they had suffered no damage, and Witter, Robinson & Wood had acquired no rights. There was merely the possibility that damage might be done. This petition cannot be sustained as an action for interpleader. Story’s Eq. Juris. §§ 806, 807; Hillier v. Stewart, 26 Ohio St. 652; Story’s Eq. Pleading, § 297; Story’s Eq. Juris. § 809; Snodgrass v. Butler, 54 Miss. 45; Starling v. Brown, 7 Bush (Ky.) 164. Then, if this petition is to be regarded as attempting to state any cause of action, it is one for an injunction to restrain Witter, Robinson & Wood from disposing of the notes to a bona fide purchaser, without notice, before their maturity. But in addition to the other defects of this petition, it does not appear therein that Witter, Robinson & Wood were intending, threatening, or about to, or even that there was any reason to believe that they would, dispose of the notes; nor are there any facts stated from which the court can learn that the acts which it is said Witter, Robinson & Wood “ may” do, would work any irreparable injury to the plaintiffs. These allegations, in some form, we believe to be essential. Village of Van Wert v. Webster, 31 Ohio St. 420; Newton v. Commissioners, 26 Ohio St. 625.
    III. Secor, Berdan & Co. had no cause of action of any kind against Witter, Robinson & Wood.
    1st. By the better authority and the stronger reason, undue negotiable notes should be exempted from liability tó garnishment. Jones v. Gorham, 2 Mass. 375, 379; Drake on Attachment, §§ 584, 588 ; Davis v. Pawlette, 3 Wis. 300, 306; Carson v. Allen, 2 Chand. 123; Terry v. Wisconsin, 18 Wis. 87; Wilson v. Albright, 2 G. Greene, 125, 127; Greer v. Powell, 1 Bush, 489; Hubbard v. Williams, 1 Minn. 54, 55; Hutchins v. Evans, 13 Vt. 541; Gregory v. Higgins, 1 Col. 339, 340; McMillan, v. Richards, 9 Col. 418; Kibling v. Burley, 20 N. H. 359; Stone v. Dean, 5 N. H. 502; Gaffney v. Bradford, 2 Bailey, 441; Sheets v. Culver, 14 La. 449; Rapp v. Teel, 33 Texas, 811; Iglehart v. Moore, 21 Texas, 501; Littlefield v. Hodge, 6 Mich. 326; Clough v. Buck, 6 Neb. 343.
    Thus far the authorities are clear and easily understood and followed, and it seems to us, state the better and safer rule, and one which, taken in connection with the right given by statute in attachment cases, when commenced in the common pleas court, to seize the notes and collect them by the aid of a receiver (Rev. Stat. §§ 5539-5543), will afford ample remedy to all while sacrificing the rights of none.. There are ten states, however, in which the right of garnishment of current negotiable paper seems in some sort to be recognized, but upon the questions of the how, wherefore, and to what extent, these cases display the widest variance. In fact, the ideas of negotiability and garnishability seem so utterly at variance, that it is well-nigh impossible to apply the one without destroying the other. In considering these cases, we must bear in mind that no judgment can be rendered by a justice of the peace, in the attachment case against the garnishee. Rice v. Whitney, 12 Ohio St. 358. And that, under our justices’ code, the rights and liabilities of the garnishee are. fixed at the time of his examination before the justice, are not to be changed by subsequent events, and that the subsequent action is merely to enforce the liability then fixed. Swan’s Treatise (11th ed.) 426; Drake on Attachment (5 th ed.) § 451 a.
    So, where Judge Drake and many courts use the phrase “ at the time of the rendition of judgment against the garnishee,” we should understand “at the time of the examination of the garnishee before the justice.” There is certainly no author-, ity, and the justice did not attempt, to keep the garnishee before his court after judgment against the attachment debtor. Revised Statutes, § 6505. It seems to us clearly to be contemplated by this statute that if the garnishee answer truly, and pay according to the order of the court, that payment shall be a full and complete discharge as to all the world.
    But when the indebtedness is represented by a negotiable note undue and beyond the control of the court or the maker, such payment cannot have that effect; and we desire to call attention, in passing, to the fact that in nearly all the states where the attachability of such paper is recognized, the courts refuse to fix the liability of the garnishee unless the note has then reached its maturity. And our contention now is that the action in the common pleas court having been brought, not to acquire new rights, but to protect and enforce those acquired in the suit before the justice, the action cannot be maintained unless it can be said, as a matter of law, that payment by the garnishees in accordance with the judgment and order of the' justice would have afforded them full protection. Rev. Stafc.' §§ 6504, 6505.
    2nd. But if held to be technically subject to garnish-/ ment, their negotiation before maturity should be held to felease them from the lien, for it is unjust, improper and unwise to establish a rule by which the maker of the note will be subject to two law suits upon a question as to which he has not the slightest interest, and in both of which, for want of necessary testimony, he is likely to be defeated. Drake on Attachment (5th ed.), § 583. Even an injunction in forcé against the negotiation of a note does not destroy its negotiability. Winston v. Westfeldt, 22 Ala. 760.
    In conclusion, we submit, that even if this court shall hold with the courts of those states holding negotiable paper to be the Subject of garnishment, yet in those states the decided weight of authority favors a rule' at least as restricted as the . one suggested by Judge Drake, which, being modified to conform to the justices’ code of this state, would beRule. The maker of a negotiable note should not be charged as garnishee of the payee, in a suit before a justice of the peace in Ohio, Under an attachment or garnishment served before the maturity of the note, unless it be affirmatively shown, that, before the examination of the garnishee (or at least before the rendition of judgment against the defendant in attachment), the note had become due", and was then still the property of the payee. Drake on Attachment, § 587.
   Johnson, O. J.

The objection raised to the amendment of the petition in error by striking out the name of Forman Waite, and, adding that of Peter F. Berdan as a co-plain tiff,: is not well taken. He was a co-plaintiff below, as one of the firm of Seer, Berdan & Go., who now seek a reversal. It is not denied but that his name was omitted by mistake. If the district court, or this court, cannot allow such a mistake to be corrected, in furtherance of justice, our reform system of pleading, in respect to its supposed superiority over the old system, is a delusion. But while this power to amend is conceded, if exercised in time, yet on the authority of Smithers v. Rainey, 14 Ohio St. 287, it is claimed it cannot be exercised after the time has elapsed for filing a petition in error, which was then, three years. The facts of that case are unlike the present, and we are not inclined to extend the principle there stated beyond the facts there stated. That was the case of a joint judgment against four defendants, three of whom were joint makers and one an indorser of a promissory note. Smith, one of the joint makers, on his ovm account, filed a petition in error to reverse, without joining his co-defendants, or making them defendants in error. After the three years had elapsed for filing a petition in error, objection was made to a hearing for want of these parties, and leave was given to bring them in. This was done by uniting one of them as a co-plaintiff, and the other two, whóse consent could not be obtained, as defendants. One of these was the indorser, who, not desiring a reversal of the judgment against him, plead the three years limitation, and moved that the petition be dismissed without a hearing, and thereby leave the judgment below to stand. The plaintiffs below joined in this motion. The court sustained the motion and held, that all defendants to a joint judgment-are necessary parties to a petition filed by one of them to review it, either as plaintiffs, or as defendants, and if not so made in three years, the revising court had no jurisdiction of the subject-matter. It is quite true that all the defendants to a joint judgment are necessary parties to a petition to reverse it, as the judgment is an entirety.; but the second branch of the proposition, that unless they are so made within the time limited for prosecuting error, the court has no jurisdiction over the subject-matter, may well be doubted, as it was in Bradford v. Andrews, 20 Ohio St. 208. Be this as it may, that case is so different from the one at bar that we are not embarrassed by it. There, one of four judgment debtors alone sought a reversal, neglecting for three years to bring the others in; here, all the members of a partnership sought a reversal, but by mistake the name of one was omitted. There, there was no intention to make all, parties, while here there was. There, two of the four joint defendants objected to a reversal of the judgment against them, while two favored it — a tie vote, in which case, after such long delay, the court might well refuse to hear the case; while here the omitted party unites with the others asking a correction, of the mistake and a reversal. There, the petition was filed by one in Ms own behalf, while here, it was filed in behalf of all who were members of the partnership and plaintiffs in the case.

The scope and legal effect of -that case is, to hold that all defendants to a joint judgment are necessary parties to an action to reverse it, either as plaintiffs, or, if their consent cannot be obtained -for that purpose, then as defendants ; but if the consent of one or -more cannot be had, they must be made defendants within three years, otherwise upon their objection the case will be dismissed. In short, when co-defendants to a joint judgment are not agreed in asking a reversal, those desiring it must within the time bring in their unwilling associates, or the court will decline to hear the case. The right of each joint defendant to seek a reversal of a joint judgment is thus conceded, but this right cannot be exercised after three years when his- co-defendants are unwilling. The alternative was presented, as there could be no severance, of reversing a joint judgment where some were opposed to such reversal, or of allowing it to stand against all. On account of the delay of the one desiring a reversal, the court declined to compel, the unwilling ones to be brought in and accept a judgment they did not seek after the three years had elapsed.

Jones v. Marsh, 30 Ohio St. 20, also -relied on, simply holds, that all defendants are necessary parties to a proceeding to reverse. In neither case -was the power of the court to correct mistakes involved. In 'neither was the right of a co-defendant to such a judgment, after three years, whose name had been omitted by mistake, to become a co-plaintiff in error, involved or considered.

Where, as in the present case, it is manifest that the plaintiffs in error are acting for all, the court may correct such a mistake, in furtherance of justice, after three years, and allow other necessary parties to be brought in, even without their consent, and while it may not compel unwilling parties to come in after three years, where there was no mterition to make them sueh, yet when- there is, the court has jurisdiction over the subject-matter and may allow them to become parties seeking a reversal. (In this, I speak for myself only, and not-for my brethren.) Indeed, I should be willing, as at present advised, to hold that the power of amendment in this- respect, notwithstanding the statute of limitations, is as ample in cases of error as in other civil actions, and therefore the rule that if' all are so united in interest as that one is saved from the statute all are saved applies-. This -is the principle settled in Wilkins v. Phillips, 3 Ohio, 49, which has been cited with approval ill several cases sinee. Several' plaintiffs in error, claiming as heirs, sued out a writ of error after the time' for doing so had elapsed. One of the heirs was an infant, and thereby within the saving clause of the- statute. It was held that the aetion" was saved as to all. So, in a suit to contest a will, Meese v. Keefe, 10 Ohio, 362; Bradford v. Andrews 20 Ohio St. 208.

In the last case, Smithers v. Barney was- relied on to defeat a contest on a cross-petition filed within the . proper time against unwilling heirs brought in after. It is like the present case in principle. It was held that by filing the cross-petition in time the court acquired such jurisdiction over the subject-matter so as to save the case as to all who might ultimately be made parties by an order of the court. The same principle applies to Bills of Review under the former Chancery Practice. Heirs of Massie v. Mathews, 12 Ohio St. 351; Sturgess v. Longworth, 1 Ohio St. 544.

The reason for this rule,- as explained in Moore v. Armstrong, 10 Ohio, 17, is, that as the judgment is an entirety, and all must recover or none, there can be no severance; and therefore the casé is saved as to all rather than one shall loose his right.

What right did the plaintiffs- acquire to the amount owing on these negotiable notes by the garnishment of tlie makers ? The attachment operated as a seizure' of these debts, if at all, from the time of service of process on the garnishees, not from the time of the order of the justice, nor from the maturity of the notes, nor when final judgment should be rendered against the garnishees. At that time they owed the defendant certain sums payable at a future day, evidenced by negotiable notes payable to the order of defendant.

By the statute, all debts, whether due or not, and without regard to the form of the evidence of them, are by express terms subject to garnishment. This includes debts on. negotiable instruments, the property of defendant.

Another statute makes contracts in a certain form negotiable, and vests- the title and right to the proceeds, free from all equities and defenses in bona fide holders, who, before due, have acquired the same in the usual course of business. All other holders are not thus protected. The terms of the contract as imprinted upon it by this statute cannot be changed by the proceedings in attachment. The garnishee is liable by those terms to such a holder, irrespective of all claims the maker or others may have. But for the negotiable quality of these contracts, the attachment. would have bound all subsequent assignees or indorsers, as well as defendants without regard to notice.' Drake on Att. 5 ed. § 575.

Owing to their being commercial paper, the statute protects those who can establish their bona fide ownership before due. Such holders are specially pi’otected, and their rights are paramount to all claims of others, whether by garnishee process or otherwise.

"We deduce, from principle and the best considered cases, the following propositions, which are controlling in the case at bar.

1. That, all debts, whether due or not, and whether evidenced by negotiable instruments or not, the property of a defendant in attachment, are subject to garnishment.
2. That, by reason of the commercial quality of negotiable instruments, that which was a debt to the defendant may become the debt to another; and if such other has acquired his title before.maturity, under such circumstances that he is a bona fide holder, the debt at maturity is not one to defendant in attachment, and therefore cannot be appropriated to plaintiff’s judgment. - •
3. That no judgment charging the garnishee can be rendered in any case of a debt not due until after it becomes due, and not .then as to negotiable paper, if it appears that the garnishee is liable to a tona fide holder under our statute, relating to negotiable instruments.
4. A garnishee is entitled to his day in court, and tp. have all the rights accorded to a defendant. No judgment should be rendered against him, as the maker of a negotiable instrument, that will not be adequate protéction to him against the possible rights of third persons. Until maturity there is no cause of action against him upon which he can be charged as garnishee by a judgment or final order.

This brings us to the important features of the attachment proceedings before justices of the peace in this State. ' The garnishee is not, as in many of the States a party to the attachment action. He has no day in court. The order made by the justice is not an adjudication between the plaintiff and the garnishee. It does not determine, their ultimate rights. In legal effect it is only an assignment of the claim from the debtor to the creditor in attachment. If the garnishee fails to appear and answer, or if his answer is not satisfactory, or if he does not comply with the order, he is liable to an action, “ as in other cases.” In such an action he is a party entitled to his day in court, and the final determination of that action is a judgment either charging or discharging him. If that is against him, he is charged as garnishee within the meaning of that term as used in the text books and decisions.

As a logical sequence, it follows that the order made- by the justice in this case was not a judgment or final order charging the garnishee. In those states, where the garnishee is- a party in the attachment suit, such a judgment is rendered in that action, and is enforced by execution ; but our statute requires that there should bean independent action brought,.before the garnishee can be charged.

It follows that the order of the justice does not purport- to-charge the maker of commercial paper before due, .in the Legal sense of that term. This statutory order simply authorizes-the plaintiff in attachment to take the place of the defendant,, and sue in his own name, if the order is not complied, with.. The attaching creditor does not acquire a more summary remedy for the collection of his debt, by such an order, than the defendant had. Rice v. Whitney, 12 Ohio St. 358 ; Board of Education v. Scoville, 13 Kan. 32; A. de P. R. R. Co. v. Hopkins, 91 U. S. 11

It is a mistake to say that the liability of the garnishee is fixed by the order of the justice of the peace. Its office is to give the plaintiff a right of action where the answer discloses an indebtedness to the defendant. That liability is not fixed until a judgment is rendered against him in such action. The garnishment binds him for any debt that on such final adjudication may be found due from him to defendant, “ at or after service of the order of attachment and notice upon him,” and not from the date of the order of the justice. Hence the phrase found in Drake on Attachment, and in numerous decisions, where speaking of the power of the court to charge a garnishee where the debt is assigned, “ at the time of the rendition of the judgment against the garnishee,” means, under our system, at the time of final judgment in the action authorized • by the statute, and not at the time of the examination of the garnishee, as learned counsel contend. In case of all debts not yet due, no such action can be commenced until their maturity. If the instrument is negotiable and not due, it is liable to become the property of a bona fide holder before maturity. By the law merchant, his right is paramount, and the attachment ceases to be available. If the plaintiff, after maturity, brings his action for non-compliance with the order, and it then appears that by reason of the negotiability of the paper the title and property thereof has been acquired by such a holder, the plaintiff cannot recover; otherwise the garnishee must pay twice. The statute making such paper negotiable extends this immunity to bona fide holders only. As to the defendant in attachment, and all claiming through him, after service of process, with actual notice of the proceedings, the attachment is binding.

Witter, Robinson and Wood, are not bona fide holders of these notes. They took them with actual notice of these proceedings, not in the usual course of business, but to be applied, when collected, in satisfaction of a pre-existing debt. The transfer of these notes, pending the attachment, was a fraudulent act by defendant. His object obviously was to defeat the collection of a judgment against him. Witter, Robinson and Wood, well knowing the facts aided him, in this act. They are in no better position than the defendant would •be if in their place. In their hands these notes are subject to the attachment, and a judgment may be rendered against the garnishees charging them to pay as ordered by the justice. Culver v. Parish, 21 Conn. 408; Drake on Att., Chapter XXX.

In support of this conclusion, the following ease's are in point.

Stone v. Elliott, 11 Ohio St. 252, was an action by a bona fide holder of a negotiable instrument against the maker.

The defense was, that,-in a suit in- chancery by a judgment creditor against his debtor, to which the maker was a party, he was decreed to pay the amount, when due, in satisfaction of the complainant’s judgment, and had done so. Elliott, the plaintiff, had acquired the note pending this litigation, but without actual notice of these proceedings. It was held, that constmctive notice of the suit in chancery by the mere lis pendens, was not sufficient to defeat the right of a bona fide holder, acquired before maturity for value, and that such a decree made before the note was due, if this fact was disclosed by the answer, was erroneous.

It is said, the chancellor should have suspended proceedings until the maturity of the paper, and the possible rights of third parties were ascertained. If, as is here claimed, the court had no jurisdiction to reach such paper, the statement that the court should have suspended a final decree until the possible rights of third persons could be ascertained, has no significance. The error of the decree was that it- was made before maturity of the paper, and without protecting the maker from liability to a bona fide holder.

In Howe v. Harkness, 4 Ohio St. 449, the same rule was applied, where the attempt was made to charge a garnishee as maker of such a note, although it had beefi transferred before due to such a holder. It was held, that the right of the holder was paramount, and the garnishee was not liable in attachment. This defense was made in the statutory action against the garnishee, and not in the attachment proceeding itself.

These decisions are without point or meaning if such paper is not subject to attachment. They rest on the sole ground that the title and property of the note acquired by a bona fide holder rendered the proceedings to appropriate the amount unavailing.

In Smith v. Blatchford, 2 Ind. 184, it was held that the maker of such paper cannot be charged so as to defeat the rights of a bona fide endorsee.

In Junction R. R. Co. v. Cleneay, 13 Ind. 161, held that before & judgment can be rendered against the garnishee, the plaintiff must show that at the time of maturity the note remained in the hands of the defendant, or a fraudulent assignee or was not the property of a bona fide holder. See, also, Cleneay v. Junction R. R. Co., 26 Ind. 375 ; King v. Vance, 46 Ind. 246.

Kieffer v. Elder, 18 Pa. St. 388, which is quoted with approval in Stone v. Elliott, holds, under a statute substantially like ours in this respect, that commercial paper is subject to attachment before due, but that the process is rendered unavailable as against a bona fide holder for value.

In Day v. Zimmerman, 68 Pa. St. 72, it is said : “ The law is well settled that a promissory note is liable to attachment before maturity. Though not due, it is a debt within the meaning of the statute, and therefore, as between the payee and the attaching creditor, it is bound by the service of the attachment on the maker; and if, after being attached, it remains in the hands of the payee until maturiUj, it is bound by the attachment as against all persons into whose hands it may thereafter come. But the attachment is una/oailing as. against a bona fide holder, dbc.”

In conclusion, it is claimed :

That no cause for relief in equity is made.: (1.) Because the statutory remedy by action is exclusive; and, (2.) Because no case is made for equitable relief.
.(1.) The statutory action given is against the garnishee for a failure to appear and answer, .or because his answer is not satisfactory, or for non-compliance with the order to pay.
This is not an action of either kind. True, the garnishees are proper parties, but the real defendants are Witter, Robinson and Wood. It was brought before the maturity of the notes, to enjoin their falling into the hands of a bona fide holder. It may be that as against the garnishees alone the statutory remedy is exclusive, yet if there is a cause of action against the holders of these notes, plaintiffs may have the benefit of it.
The garnishees appear and make no resistance, but claim the protection of the court against the possible rights of third persons. As the notes were due before final judgment it was within the. power, and was the duty, of the court to grant this.
(2.) Has the court power to grant to the plaintiffs equitable relief? They are, as against Witter, Robinson and Wood, the real owners of these notes. The latter hold the legal title, but are not bona fide holders for value. They stand in the shoes of defendant in attachment. Against them the plaintiffs had no action at law. The right of plaintiffs would be defeated if the notes were negotiated to a bona fide holder. While equity might not aid a plaintiff in attachment against the defendant or the garnishee until all legal remedies are exhausted, yet, as against Witter, Robinson and Wood, the only remedy the plaintiffs hadnvas equitable.

Since the ease of Hood v. Aston, 2 Russ. 412, it is regarded as settled that equity will enjoin the wrongful or fraudulent holder of negotiable paper before due from negotiating the same. That was the case of the wrongful acceptance of a bill of exchange in the partnership name by a partner in payment of his individual debt, which the firm sought to enjoin the holder from negotiating. Lord Eldon said that from' the danger of its passing to a bona fide holder the plaintiffs .have a right to be protected.

Chief Justice Marshall says : “ A court will always inter- ' pose to prevent a transfer of a specific article which, if transferred, will be lost to the owner.” Again: “ The holder of negotiable securities indorsed in the usual manner, if he has acquired them fraudulently, will be enjoined from negotiating them, because, if negotiated, the maker or indorser must pay them.” Osborn v. Bank of U. S., 9 Wheat. 845; Delafield v. Illinois, 26 Wend. 192; Hamilton v. Cummings, 1 John. Ck. 517; Clayton v. Lyle, 2 Jones Eq. 188; Hilliard on Inj. chap. XXX.; 2 Story Eq. Jur. §§ 907, 906 and 955; Martin v. Graves, 5 Allen, 601. In the ease last cited, the rule is thus stated: Whenever a deed or other instrument exists, which niay be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect or maintain his right by any course of proceedings at law, a court of equity will afford relief by directing the instrument to be delivered up and canceled, or by making any other decree which justice and the rights of the parties may require.”

This sound principle, so tersely expressed, is applicable to the facts of this case.

The demurrer to the petition should therefore have been overruled.

Judgment accordingly.


source: Caselaw Access Project

author: Upson, J.

license: Public Domain

text:
    Palmer v. The State.
    Section 7090 of the Revised Statutes provides for the punishment, by fine or imprisonment, or both, of persons who knowingly sell, or offer for sale, any substance purporting to be butter or cheese, or having semblance of butter or cheese, which substance is not made wholly from pure cream or pure milk, unless each package of such substance have distinctly and durably painted, stamped, or marked, thereon the name of each article used or entering into the composition of such substance.

      Séld: 1. The fact that the article sold was manufactured under letters patent issued by the United States, constitutes no defense to an information or indictment for violating the provisions of this section. 2. For the purpose of promoting the public welfare the legislature has power to regulate, or forbid, the sale of patented articles to the same extent as articles not patented, if no discrimination is made.
    Motion for leave to file a petition in error to the District Court of Cuyahoga county.
    The case is stated in the opinion of the court.

      E. Sowers, for plaintiff in error:
    The act (Rev. Stats. 7090), under which plaintiff in error was indicted is unconstitutional and void. U. S. Const, art. 2, § 8 ; Ohio Const, art. 2, § 28 ; U. S. Rev. Stats. §§ 4884, 4888, 4890, 4990. And see Prigg v. Commonwealth, 16 Pet. 617, 618; 92 U. S. 259; 95 U. S. 465 ; U. S. v. Fisher, 2 Cranch, 358; Grover (& Baker S. M. Co. v. Baker, 53 Ind. 454; Hollida v. Hunt, 70 Ill. 109 ; Grant v. Raymond, 6 Pet. 218 ; McClung v. Kingsland, 1 How. 202.
    A patentee and his assigns acquire a vested right of property during the term of the patent, which cannot be abridged by the legislature of the State. See authorities above cited.
    The substance sold was plainly marked just what it was, and the purchaser knew just what it was. No right was invaded, nor was the peace, good order, comfort and safety of any person injuriously affected hence the act cannot stand on the basis of a police regulation. 103 U. S. 344; 92 U. S. 259; 95 U. S. 465.

      B. A. HoTlmgsworih, Attorney-General, for the state.
   Upson, J.

J ohn Palmer was convicted, in the police court of the city of Cleveland, of selling twenty-seven packages of a substance having the semblance of butter, but not made wholly from pure cream or pure milk, and the packages not having painted, stamped or marked thereon the name of each article used or entering into the composition of the substance thus sold, in violation of the provisions of section 7090 of the revised statutes. Upon this conviction Palmer was sentenced to pay a fine of fifty-dollars and costs. The judgment, of the police court was, on error, affirmed by the. court of common pleas, and the judgment of the latter court was affirmed by the district court. Palmer now asks leave to file a petition in error to reverse the judgment of the district court.

The defense made in the police court was founded upon the fact, which is shown by the record, that the substance sold by Palmer was manufactured under letters patent'issued by the » United States, and it is claimed that the section under which Palmer was convicted, so far as it applies to articles protected by such letters patent, is in conflict with the constitution and laws of the United States, and is therefore void.

The constitution of Ohio provides that private property shall ever be held inviolate, but subservient to the public welfare, and in vesting the legislative power of the State in the general assembly, full power is given, by the constitution, to enact such judicious and reasonable laws as, in the judgment of the legislature, may be necessary for the purpose of preventing any person from using his own property, or rights, in such a way as to injure the community, or individuals. This general power is subject only to the limitations imposed by the constitution of the State, or that of the United States, and within it is clearly included the right to regulate, or forbid, the sale of property to any extent that may be necessary to promote the public welfare.

It was therefore within the undoubted power of the legislature to prohibit the sale of substances having the semblance of butter or cheese, but not wholly made from pure cream or milk, unless each package of such substance should have painted, stamped or marked thereon, in the manner prescribed by the statute, the name of each article used in,’ or entering into, the composition of such substance; and this power is possessed by the legislature over the sale of articles protected by letters patent as well as of those not thus protected.

The patent laws of the United States give to inventors the exclusive right to their inventions, but do not give to them the right to disregard laws enacted to promote the welfare of the whole people. The State cannot discriminate against patented articles by imposing upon their sale conditions and restrictions not placsd upon the sale of other similar articles; but the sale of all articles like those now under consideration, whether patented or not, may be restricted, regulated or forbidden, whenever the public good requires such restriction, regulation, or prohibition.

These principles have been recognized and illustrated in a number of cases decided by this court, and by the Supreme Court of the United States. Among the leading case are Jordan v. Overseers of Dayton, 4 Ohio, 295 State ex rel. v. Telephone Co., 36 Ohio St. 296; Patterson v. Kentucky, 97 U. S. 501; and Webber v. Virginia, 103 U. S. 344.

It is claimed, however, that laws regulating the sale of patented articles can be sustained only when they come fairly within the police powers of the State; that those powers extend only to regulations relating to the health, morals, good order and comfort of the people, and that the provisions of section 7090 are merely intended to prevent fraud. .The language of the act supplementary to section- 7090, passed April 26, 1881, shows very plainly that the design of the legislature in passing section 7090, as well as the supplementary section, was to prevent the sale of impure and unwholesome food, and that both sections therefore, come within the most narrow definition of police regulations. If it were conceded, however, that none of the substances described in section 7090 are positively injurious to health, we hold that the law is within the general powers possessed by the state. Those who buy food have a right to know what they buy, and to have the means of judging for themselves as to its quality and value.

"Motion overruled.


author: O.Kuy, J.

text:
    Insurance Co. v. Tullidge.
    1. Where an insurance company refuses to receive from the assured a premium on a life policy, on the ground that the policy has lapsed by reason of the non-payment of such premium on the day stipulated for its payment, and the assured claims that the company has -waived the right to assert such forfeiture, equity has jurisdiction to determine, on the petition of the assured, the rights of the parties under such policy, and, if the policy is found to be in force, to compel the company to receive the premiums thereon, and issue renewal receipts.
    2. Although a life policy and the renewal receipts may contain a stipulation or notice that agents of the company shall not have authority to waive forfeitures where premiums have not been paid on or before the ¡ day designated for their payment, yet the course of business between the agent, the assured, and the company, in giving effect to payments made when overdue, may be such that the company will be precluded from objecting to a payment tendered when overdue, where no notice had been given the assured that in the future such overdue payments would not be received.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Hamilton county.

      ■ The National Life Insurance Company of the .United States, on March 19,1869, issued at Cincinnati, Ohio, to Alfred Tullidge and others a policy for $10,000 on the life of Frank E. Tullidge, in consideration of premiums of $41.90, payable on the 19th of March, June, September and December, each year, at the branch office in Philadelphia, or to their duly authorized agents when they produce receipts signed by the president or secretary. It was provided in the policy “ that the premiums shall be paid in cash on or before the days upon which they become due,” and that “ agents of the company are not authorized to make, alter, or discharge contracts or waive forfeitures.” It was further provided as follows : “ And the said company further agrees, that after due payment of premiums for three full years, they will, if requested, on the surrender of this policy duly receipted, issue another policy, payable as herein provided, on which no further premiums shall be required, on the life of the person whose life is hereby in sured, for an amount equal to to total amount of premiums paid on this policy.”
    All the premiums which accrued from the issuing of the policy down to and including September 19, 1880, were paid by the insured to the agent of the company, in Cincinnati, on receipts produced by him, signed by the president or secretary; and in no instance was it required that premiums should be paid at Philadelphia. The payments in 1877,1878, 1879, and 1880, were made on production by such agent of receipts sent from the office of the company at Chicago ; and the agent, on receiving the money from the insured, was required by the terms of such receipts to countersign the same. They contained the following clause : “ It is understood and agreed that if the premium is paid when overdue, such payment shall not restore or keep in force the policy, unless, at the time of such payment, the assured is alive and in good health.” And in the receipt given September 19, 1880, this further clause is added to those words: “ And a good risk, the same as when the application was made for, and when the same policy was issued.”
    During the four years mentioned (1877-1880), the premiums were not, as a general rule, paid until after the day upon which they became due, and in 187-9 and 1880 they were not paid in any instance until after the day on which they became payable. On December 31, 1880, he tendered the premium which had become due December 19, 1880, but the company refused to receive the money, on the ground that the poliey had beeome forfeited by such non-payment on December 19th. The company, however,.proposed to issue a policy under the clause above quoted, which proposition Tullidge declined. No notice had been given in any way to the insured or the assured that the premiums becoming due after September 19,1880, would not be received after the day on whibh they were payable ; and on December 31, 1880, Tullidge was, in all respects, as good a risk as when the original application for insurance was made. No part of the premiums received by the company were returned to the party paying the same.
    The company refusing to receive such premium, or to continue the policy in force, the beneficiaries, on March 3, 1881, brought suit in the court of common pleas of Hamilton county to compel it to do so. The cause was heard in that court on issue joined, and the relief asked by the beneficiaries was granted. 6 Oin. L. Bulletin, 341; opinion per Avery, J. The judgment was affirmed in the district court, and the company now moves for leave to file in this court a petition in error, to reverse the judgments of both courts.

      C. B. Robertson, in support of the motion :
    The policy was forfeited for non-payment of premium on December 19,1880; there was no waiver ; and a court of equity had no jurisdiction to relieve from such forfeiture. Insurance Co. v. Wolff, 95 U. S. 326 ; McKenzie v. Steele, 18 Ohio St. 38; Insurance Co. McMillen, 24 Ohio St. 82; Merserau v. Ins. Co., 66 N. Y. 278; Catoir v. Ins. Co., 33 N. J. L. 487; Bouton v. Ins. Co., 25 Conn. 542; Klein v. Ins. Co., Thompson v. Ins. Co., 104 U. S. 88, 252 ; Smith v. Ins. Co., 3 Hill, N. Y. 508; Barnley v. Proprietors, 2 L. R. H. L. 43 ; Howard v. Carpenter, 2 Md. 259; Howell v. Ins. Co., 1 Bigelow, 578.

      Sayler c& Sayler, contra:
    The forfeiture was waived, and a court of equity has jurisdiction. Cohen v. Ins. Co., 50 N. Y. 610; Bliss on Ins. (2 ed.), § 413; Mansbach v. Ins. Co., 17 Hun, 340; Ins. Co. v. Pottker, 4 Am. L. Rec. 111; s. c., 33 Ohio St. 459; Day v. Ins. Co., 45 Conn. 489 ; Neville v. Ins. Co., 17 Ohio, 218; s. c., 19 Ohio, 457; Carpenter v. Ins. Co., 4 Sand. Ch. 408; Taylor v. Ins. Co., 9 How. U. S. 390; Ins. Co. v. Norton, 96 U. S. 242; Rudwig v. Ins. Co. (Ky.), 11 Ins. L. Jour. 603 ; Ins. Co. v. McMillan, 24 Ohio St. 82; Ins. Co. v. Pierce, 75 Ill. 426; The State v. Graham, 25 La. 443; Helme v. Ins. Co., 61 Pa. St. 110 Ins. Co. v. Eggleston, 96 U. S. 577; Hanley v. Ins. Co., 96 Mo. 380; Meyer v. Ins. Co., 51 How. Pr. 263; McCraw v. Ins. Co., 78 N. C. 149; Buckbee v. U. S. M. A. & T. Co., 18 Barb. 544; Ruse v. Ins. Co., 26 Barb. 560; Garber v. Ins. Co., 5 Bigelow, 221; Bodine v. Ins. Co., 51 N. Y. 117; Thompson v. Ins. Co., 52 Mo. 469; Hanley v. Ins. Co., 4 Mo. App. 252; Ins. Co. v. Hinerly, 75 Ind. 1; Mayer v. Ins. Co., 38 Iowa, 304; Murphy v. Ins. Co., 59 Tenn. 450; Ins. Co. v. Huth, 49 Ala. 529; Ins. Co. v. Ins. Co., 10 Ins. L. Jour. 257; Miller v. Ins. Co., 12 Wall. 285; Ins. Co. v. Booker, 9 Heis. 606; Wing v. Harvey, 2 Big. 365; Sheldon v. Ins. Co., 25 Conn. 207; Rockwell v. Ins. Co., 20 Wis. 335; Smith v. Ins. Co., 2 Mo. App. 339; Ins. Co. v. Doster, 106 U. S. 30; Hodson v. Ins. Co., 97 Mass. 144; Dilleber v. Ins. Co., 7 Daly, 542; s. c., 76 N. Y. 567; Ins. Co. v. Ins. Co., 86 Pa. St. 236, s.c., 11 Ins. L. Jour. 540; Ins. Co. v. Tesler, 62 Ga. 247; Goodwin v. Ins. Co., 73 N. Y. 491.
   O.Kuy, J.

Where an insurance company has refused to receive from the assured the amount of a premium on a life policy, basing such refusal on the ground that the policy had lapsed by non-payment of such premium at the time stipulated for its payment, the assured, if the refusal is wrongful, has an election of remedies. He may tender the premiums as they become due till the policy is payable, and then recover the amount of the policy in an action thereon. He may, in an action for the rescission of the contract, recover back the premiums paid, with interest. Or he may maintain an action to obtain a judgment that the policy shall be continued in force. Union Gen. L. Ins. Co. v. Pottker, 4 Am. L. Rec. 111; s. c., 33 Ohio St. 459 ; Meyer v. Knickerbocker L. Ins. Co., 73 N. Y. 516 ; Day v. Conn. Gen. L. Ins. Co., 45 Conn. 480; May on Ins. § 356 et seq_. The latter course was adopted here, " and the propriety of pursuing it, where it is desired that the policy shall be continued in force, is obvious. The witnesses to prove there had been no forfeiture may die before the insured, and the insured himself may be an important witness on the question of forfeiture; and besides, insurance in another company may be desired, in case it is determined that the. policy is not in force.

Finding that equity has jurisdiction, the question is whether a case for relief is presented. The defendant is a foreign corporation, and the insured a resident of this state, and the premiums were all paid at Cincinnati, to an agent of the company residing there. This agent was required to and did countersign the receipts which had been furnished by the company, on payment of the premiums to him. Conditions uopn those receipts show that, notwithstanding the language of the policy, payment after the days on which premiums fell due, was contemplated, for they provide that such premiums shall not be received after the days named for their payment, unless the insured is in good health, and as good a risk as when the policy was issued. Premiums had been repeatedly, and without objection, received by such agent after the days specified for their payment, and no one of the last eight premiums had been paid until it was overdue — in some instances,' a week or more. This was done in the exercise of the power to receive premiums after the specified days, where the risk had not been increased by any change in the health or condition of the insured; and it is clear that there had been no such change in the insured’s health or condition-on December, 31, 1880, when the premium, falling due December 19, 1880, was tendered. No notice had been given to the insured or assured of any purpose on the part of the company to change the practice which had prevailed between the parties as to the times of paying premiums on this policy ; no part of the sums which had been received on overdue premiums was ever returned ; and it is clear that there was no intention on the part of the insured or the assured to abandon the insurance or evade the payment of any premium. In our opinion, it would be unwarranted, and indeed plainly unjust, looking to the character of the agency, the course of business as to this policy,' and other matters mentioned in the statement of the case, to permit the company to assert such forfeiture. We think the court of common pleas did not err in granting the relief which was asked for by the beneficiaries, and the district court properly affirmed the judgment; and in so holding we are fully supported by Union Central L. Ins. Co. v. Pottker, supra; Phoenix Ins. Co. v. Doster, 106 U. S. 30; Germania Life Ins. Co. v. Rudwig (Ky. Ct. of Appeals, 1882), 11 Ins. L. Jour. 603 ; May on Ins. § 361.

Motion overruled.


author: Doyle, J.

text:
    Alber v. Froehlich.
    A, recovered a judgment before a justice of the peace upon a joint and several demand against S. and H., who jointly appealed the action to the court of common pleas. G-. and F., the sureties on the undertaking for appeal, say: “ I do hereby, pursuant to the statute in such case made and provided, promise and undertake that the appellants, if judgment be rendered against them on appeal, will satisfy such judgment and costs,” etc. In the appellate court A. recovered judgment against S. only. S. being insolvent, A. brought this action against the sureties on the undertaking in appeal. Held: The sureties are liable on their undertaking to satisfy the judgment against S.

      Lang v. Pike, 37 Ohio St. 498, overruled.
    Error to District Court of Cuyahoga county.
    Charles Alber (the plaintiff in error) recovered a judgment against Ludwig Strowbeck and Fred. Haag for $262.50 in an action pending before a justice of the peace in Cuyahoga county. Strowbeck and Haag, desiring to appeal the cause to the court of common pleas, John Froehlich and George Gabelee (the defendants in error) entered into the following undertaking, to wit:
    Charles Alber j v. >• Ludwig- Strowbeck and Fred. Haag, j
    Appeal .Bond.
    Whereas, on the 5th day of February, 1876, the said Charles Alber obtained a judgment against the said Ludwig Strowbeck and Fred. Haag, on the docket of O. P. McMillan, Justice of the Peace, for $262.50 damages, and for’ $44.10, cost of suit, and the said Ludwig Strowbeck and Fred. Haag intend to appeal therefrom to the court of common pleas of Cuyahoga county.
    Now, therefore, I, of Independence township, of Cuyahoga county, Ohio, do hereby, pursuant to the statute in such case made and provided, promise and undertake that the said appellants, if judgment be adjudged against them on the appeal, will satisfy such judgment and costs, not exceeding the sum of $614.40 and I do also undertake in said last mentioned sum that the said appellants will prosecute their appeal to effect, and without unnecessary delay.

      yy ., j. y Bail for appeal.
    George Gabelee.
    John Froehlich.
    Executed and acknowledged before me, and surety approved this 12th day of February, 1876.
    O. P. McMillan,
    Justice of the Peace, Independence Township.
    Afterwards proceedings were had in the common pleas court which resulted in a judgment, in favor of Alber, against Strowbeck alone, upon the same cause of action, for the sum of $295.29 and costs.
    Execution having issued on said judgment and returned “ no goods or chattels, lands or tenements found whereon to levy,” an action was brought upon the undertaking above set' forth. To a petition fully setting forth the above facts, a demurrer was filed and sustained by the court of common pleas, and such petition dismissed. The district court affirmed the judgment of the court of common pleas, and this proceeding is prosecuted to obtain a reversal of such judgments.

      Stone <& Hessenmueller, for plaintiff in error,
    claimed that La/ng v. Pike, 27 Ohio St. 501, was not the law of Ohio, and cited dissenting opinion in that case of Johnson, J., and Helt v. Whittier, 31 Ohio St. 475; Emerick v. Armstrong, 1 Ohio, 513 and 172; Ewers v. Rutledge, 4 Ohio St. 210; Secrest v. Babree, 17 Ohio St. 425, 427; Bentley v. Dorcas, 11 Ohio St. 398, 408; Hood v. Mathias, 21 Mo. (6 Bennett) 308; Cass v. Adams, 3 Ohio, 223; Burrel v. Vanderbilt, 1 Bosw. 637; Secors v. Morgan, 3 Reyes, 636; 4 Abb. (N. Y.) App. Dec., 172; 17 How. 394; 24 How. 467; 1 Wend. 90.
    ■ Peisley c& Stewart, for defendants in error:

      “ The bond speaks for itself; and the law is, that it shall so speak, and that the liabilities of the sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond ; and'if the words will not make them liable, nothing can. There is no construction, no equity, against sureties. If a bond cannot have effect according to its exact words, the law does not authorize the court to give it effect in some other Avay in order that it may prevail.” This applies to statutory undertakings. Lang v. Pike, 27 Ohio St. 503; State v. Medary, 17 Ohio, 565.
    The liability of a surety can never be extended beyond the strict letter of the obligation into which he has entered. State v. Cutting, 2 Ohio St. 1, 6; 20 Ohio, 97; 15 Pet. 208; 14 Pet 200-208; 9 Wheat. 702 ; 17 Wend. 422, 180.
   Doyle, J.

The action of the court's below, in sustaining the demurrer to the petition, was based upon the authority of the case of Lang v. Pike, 27 Ohio St. 498. The undertaking in this case differs from the one passed upon in that case only in the fact that there are tAVo sureties to the undertaking instead of one, and the facts of the two cases are otherwise identical.

We must, therefore, either affirm the judgments of the courts below, or disapprove the ruling in Lang v. Pike. We are compelled, af£er due consideration, to adopt the latter course.

That case was decided by a divided' court. The dissenting opinion of Johnson, J., expresses, in our judgment, the laAv of the case, and it will not be necessary now to go over the ground covered thereby. The statute governing the subject of appeal, and the undertaking therefor, is in this language; “ Sec. 6583. In all cases not otherwise specially provided for by law, either party may appeal from the final judgment of any justice of the peace to the court of common pleas of the county where the judgment was rendered.

“ Sec. 6584. The party aj>pealing shall, within ten days from the rendition of the judgment, enter into an undertaking to the adverse party with at least one good and sufficient surety, to be approved by said justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and' costs, conditioned:

“ 1. That the appellant will prosecute his appeal to effect and without unnecessary delay.
“ 2. That if judgment will be adjudged against him on such appeal, he will satisfy such judgment and costs.”

It cannot be doubted that where judgment is rendered against two or more defendants, upon a joint and several demand either one of the defendants may alone appeal upon giving an undertaking; or all the defendants may unite in appealing and perfect such appeal by a single undertaking. What the effect of the-appeal by one only would be, where the demand was several but a joint judgment was rendered, as to taking up the case as to both, it is not necessary to determine. This statute, therefore, which uses the singular number only, in speaking of the appellants, must be held to apply to all cases of appeals, whether the appellants, where the judgment is against more than one, unite, or act separately in perfecting their appeal.

A narrow construction of the statute, which would require each appellant to give a separate undertaking, would not be sanctioned. The intent of the legislature is very plain.

In construing the undertaking given “ pursuant to the statute” such intent is to be considered, if it is not in conflict with the plain terms of the undertaking. „

The judgment of the justice was against both defendants, upon a several demand, shown to be several by the judgment against one only in the court of common pleas. Defendants, instead of separately appealing from the judgment, united and this single undertaking was executed. The effect of it was to vacate the judgment against each, and the action thereupon was transferred to the court of common pleas for trial upon that cause of action, upon which a several judgment might be rendered.

In the light of the statute, and the state of the case, and considering the purpose of the undertaking as ascertained from the surrounding circumstances, its effect is precisely the same as if the sureties had executed a separate undertaking for each of the defendants. They undertake that the defendants will pay any judgment that may be rendered against them (or either of them) in an action in which, legally, a separate judgment may be rendered against one only, but by virtue of which undertaking the judgment is vacated as to both.

There cannot be the slightest doubt that such was the intention and understanding of the parties, and “to hold that the surety is discharged because the judgment is not against both, after he has arrested the right of the plaintiff to collect as to either, seems to me a narrow and technical construction of the statute, not required by its words nor the obvious intention of the legislature. Such construction tends to defeat rather than promote the administration of justice.” Johnson, J., in Lang v. Pike, supra.

That we have a right to look to the purposes of the statute, the state of the case in which the undertaking was given, the object for which it was authorized, and the surrounding circumstances, to ascertain the legal effect of defendants’ undertaking was expressly held by this court, in Insurance Company v. Hayes, 17 Ohio St. 432. See, also, Jewett v. Railway, 34 Ohio St. 607; Helt v. Whittier, 31 Ohio St. 475.

Judgments reversed.


author: MoIlvaine, J.

text:
    Smith v. Hoover.
    1. The only mode in which jurisdiction, m inmium, can be obtained over the defendant company in suits authorized by the act of February 37, 1846 (S. & C. 1188), was prescribed by section two of the act: by service of process at their usual place of business within the county wherein the suit was brought.
    3. In actions against unincorporated companies by name, as authorized by that act, constructive service on defendants by publication, as authorized by section thirty-five of the justices’ code of March 14,1853 (S. & C. 769), when service of summons cannot be made and property has been seized in attachment, cannot be resorted to in lieu of actual service, at the usual place of business of the company within the county.
    3. The appearance of a defendant in court for the sole purpose of objecting, by motion, to the jurisdiction of the court over his person, is not an appearance in the action or a waiver of any defect in the mode or manner by which such jurisdiction is obtained.

      Error to the District Court o£ Tuscarawas county.
    On May 13, 1878, Smith & Curtis commenced an action before T. TI. Mozena, Justice of the Peace of Mill township, Tuscarawas county, against G. C. Hoover & Co., “a 'firm doing business in the state of Ohio,” to recover $178.02 on a special contract. The summons was returned, indorsed, “ The within named defendant not found in my county.” At the commencement of the action an affidavit for an attachment was filed with the justice by the plaintiff, on the ground “that the said defendants were non-residents of Tuscarawas county, Ohio.” A writ of attachment, with notice of garnishment to W. A. Bovey & Co., were placed in the hands of the constable with the summons, which writ was returned served “ by delivery to W. A. Bovey in said Mill township, a copy of this order and a written notice to appear and answer,” &c. On May 23, 1878, W. A. Bovey, of 'the firm of W. A. Bovey & Co., appeared’ before the justice, and, on oath, stated that W. A. Bovey & Co. were indebted to G. C. Hoover & Co. in the sum of $200.00. ' Thereupon, the justice made the following order : “ Having failed to get service on the defendants, G. C. Hoover & Co., I adjourn this action until July 5, 1878, at 9 o clock A. m., for the purpose of getting service of defendants by publication.”
    Proof of publication having been made, the defendants filed the following motion:

      “ And now come the said' defendants, G. C. Hoover & Co., for the purpose of this motion only, and expressly disclaiming any and all intention or purpose of making or entering an appearance upon the merits of this case, or for any other purpose save that contained in this motion^ and here moves the said T. H. Mozena, J. P. aforesaid, to dismiss this action, discharge the garnishee herein, and dissolve the attachment issued herein, for the following causes, to wit:
    “ 1st. That said justice of the peace has no jurisdiction of the persons of said defendants, or either or any of them.
    “ 2nd. That the said justice of the peace has no jurisdiction of the property of said defendants. “ 3rd. That no service of process has been made upon defendants as required by law.
    “4th. The answers of- the garnishee herein are wholly insufficient to give said justice of the peace jurisdiction of the property of these defendants, as said answers fail to disclose affirmatively that said garnishees are indebted to the said defendants ; and, even if they were, it could give said J. P. no jurisdiction against said firm.
    “ Yeagley, Douthitt & Healea,

      “ Attorneys for Defendants.”
    This motion was overruled, and defendants filed-the following motion:
    “ And now comes the said G. O. Hoover & Co., defendants, for the purpose of this motion only, and disclaiming all intention or purpose of entering any appearance in MoüXfsDef’ts-this cause as to the validity or invalidity of the cause of action sued upon, but appearing for the purpose of this motion, and for no other purpose, and waiving none of the rights of defendants herein, here moves said justice of the peace to discharge the attachment hereinbefore issued in this cause, and dismiss the action, for the following causes, to wit:
    “'1st. That said affidavit in attachment is insufficient inlaw to maintain an attachment or justify the issuing of an order of attachment, and can confer no jurisdiction upon said justice in this action, either of the person or property of said defendants*
    “ J. W. Yeagley and Douthitt & Healea,
    “ Attorneys for Defendants.”
    This motion was also overruled. Whereupon, the justice-proceeded to hear the cause (no one appearing for defendants), and upon the testimony offered by the plaintiffs rendered judgment for the plaintiff for the sum claimed, and ordered the garnishee to pay the amount thereof into court.
    The defendants filed a petition in error in the court of common pleas, where the judgment of the justice was affirmed. Rut upon like petition in error, the district court reversed the judgment of the court of common pleas and the justice of the peace. £{

      This proceeding is prosecuted to reverse the judgment of the district court.

      J. T. McCullough andJ. II. Barnhill, for plaintiff in error:
    It appears by the record that all of the parties to the action, Smith & Curtis, the plaintiffs, of the city of Cleveland; Gr. C. Hoover & Co., the defendants, of Dennison, Tuscarawas county, who still held property there, although Gr. C. Hoover, of said firm, had removed to Columbus, and W. A. Bovey &■ Co., the garnishee and successor of Gr. C. Hoover & Co., at Dennison, Ohio, were partnerships formed for, and doing business, or holding property in the state of Ohio, in their respective partnership names, and capable of suing and being sued in such firm names, according to.section 5011, Rev. Stats. Ohio.
    ' A partnership formed for, and doing business or holding property in the state of Ohio in its firm name, is in law a person, and can be sued in such firm name in attachment the same as a natural person, or a corporation, under said section 5011, as in force when this action was begun. Rev. Stats. Ohio, § 5011; Whitman v. Keith, 18 Ohio St. 144; Champion Machine Co. v. Huston, 24 Ohio St. 503.
    The affidavit is sufficient in law to support the attachment and proceedings in garnishment, against the property of a defendant non-resident of the county, whether a natural person, a corporation having no officer, or a partnership, as in this case, having no place of business within the county where process of a justice of the peace can be served as is directed by law. Rev. Stats. § 6489; Whitman v. Keith, 18 Ohio St. 144; Champian Machine Co. v. Huston, 24 Ohio St. 503; Cresser v. Young, 31 Ohio St. 57.
    In all cases against any class of defendants in attachment, where the processes cannot be served at the place or in the manner prescribed by the law; but where property is seized or a garnishee duly served with notice, the justice has acquired jurisdiction of the property, and it cannot be ousted by any adverse answer or denial of the garnishee, and shall continue the case for publication to non-resident defendants. Rev. Stats. Ohio, § 6496; Nat. Bk. N. London v. L. S. & M. S. R. W. Co., 21 Ohio St. 230; Paine v. Moorehead, 15 Ohio, 436; Cochran v. Lowing, 17 Ohio St. 409.
    It is not necessary that the garnishee by his answer, shall affirmatively disclose possession of property or indebtedness to the defendant, where the action is against a non-resident to give the justice of the peace jurisdiction. Nor is the plaintiff in any manner concluded by such answer, if the same were made; but'in this case the answer is affirmative. Rev. Stats. Ohio, § 6504; Nat. Bk. N. London v. L. S. & M. S. R. W. Co., 31 Ohio St. 230; Myers v. Smith, 29 Ohio St. 120; Penn. R. W. Co. v. Peoples, 31 Ohio St. 537.
    The defendant by grounds No. 4, in his motion No. 1, and by motion No. 2, does more than object to the jurisdiction of the justice, and has, in law, entered an appearance by answering to the merits of the action, notwithstanding its disclaimer of such intention, and • thereby submitted to the jurisdiction of the justice of the peace. Evans v. Iles, 7 Ohio St. 236; Shafer v. Barry, 7 Ohio St. 309 ; Maholm v. Marshal, 29 Ohio St. 614.
    The cases of Brownson v. Metcalf, 1 Handy, 189, and Dobell v. Loker, 1 Handy, 574, were in a court having no original jurisdiction in attachment, against the property of defendants on the grounds of non-residence within the county, and were under section 5521, Rev. Stats., against firms nonresidents of the state of Ohio, while this action is under section. 6489 Rev. Stats., in a court which has jurisdiction against the property of defendants, non-residents of the conntjr, including partnerships formed for and doing business or holding property in the firm name within the state of Ohio.

      J. W. Yeagley and Douthitt aud Healea, for plaintiff in error:
    I. The record shows that suits were brought against G-. O. Hoover & Co. in attachment, as non-residents, in their firm name. At common law no action could be maintained against any company, not incorporated, without disclosing the names of the several partners composing such firm. 1 Ohitty’s Plead. 256 (12 Am. ed.) and cases cited, in notes (i) and (1). In Ohio such action can only be maintained by favor of the statute passed February 27,1846. S. & O. Stat. 1138, § 1. The process against such company or firm shall be served by copy left at their usual place of doing business within the county. S. & O. 1139-, § 11. , That statute only applies to companies and associations formed for the purpose of carrying on any trade or business, or for the purpose of holding any species of property, in Ohio. Actions by and against all other companies and associations, not incorporated, must be maintained, as at common law, by disclosing the names of the several partners composing such firm. Haskins v. Alcott c& Horton, 13 Ohio St. 210.
    II. Where a statute, upon certain conditions, confers a right or gives a remedy, unknown to the common law, the party asserting the right or availing himself of the remedy, must bring himself, or his case, clearly within the statute. Haskins v. Alcott, 13 Ohio St. R. 216. We think the plaintiffs in error have failed rto do this. It does not appear that summons was left at the usual place of doing business of said firm within the county. On the other hand, it appears from the affidavits in attachment and the return of the constable, that Gr. O. Hoover & Co. had no place of business in the county, and the plaintiffs in error proceeded against said partnership in its firm name, as non-resident, and caused orders of attachment to issue upon the ground of such non-residence. It does not even appear • in the bills of particulars and affidavits in the action that Gr. C. Hoover & Co. were a company or association formed for the purpose of doing business in Ohio, or that they, had any place of business in Ohio. We think if the record does not show these facts giving jurisdiction, affirmatively, the district court did not err in reversing the judgments of the court of common pleas and justice of the peace. Haskins v. Alcott, 13 Ohio St. 210-215.
    III. The justice must acquire jurisdiction by virtue of the act of February 27, 1846, or he does not acquire it at all. All attachment cannot be issued against a non-resident firm. The code allows attachments against individuals who are nonresidents, but not against firms as such. Dobell v. Loker, 1 Handy, 574; Drownson v. Metcalf, 1 Handy, 188 ; Haskins v. Alcott, 13 Ohio St. 210.' But it is claimed that if a domestic corporation may be proceeded against by attachment, as non-resident of the county (Champion Machine Co. v. Huston, 24 Ohio St. 503), it follows that a domestic partnership may be proceeded against in the same manner. It certainly does not follow at all. A corporation may sue or be sued, but no action lies against its stockholders in the first instance. In a partnership the copartners may be sued in the first instance. If a partnership, like a corporation, can be proceeded against as a non-resident, then, does it not follow, that if the partners composing the firm of (I. O. Hoover & Co. should all reside in Tuscarawas county, but that the firm had its place of business in Franklin county, that an attachment may issue against the partnership property in Franklin county, in the names of the individual partners, upon the ground of the non-residence of the members of such firm in Franklin county; and at the same time, another attachment issue against the property of the firm, in the firm name, in Tuscarawas county, notwithstanding all the partners reside there, because of the partnership (the ideal person) being non-resident of Tuscarawas county ? If such a theory is correct, it must follow that the property of a partnership may be attached, by reason of non-residence, in the very county where all the partners reside, should its place of business happen to be in another county; and its property could be attached in the county in which it did business by reason of the non-residence of the partners composing the firm. This state of facts cannot occur in the ease of a corporation, as no suit in attachment can be maintained by reason of the non-residence of the stockholders. The legislature, in passing the act of February 27,1846, certainly did not intend to license any such wholesale attachment of partnership property.
    IV. Ve have examined the authorities cited by counsel for plaintiffs in error, but are unable to discover their application to the questions r.aised in these cases. There is no appearance as to the merits of plaintiff’s claim in these actions.
   MoIlvaine, J.

At common law a partnership could sue and be sued only in the name of the members of the firm.

By the act of February 27, 1816 (11 Ohio L. 66), however, it was provided that unincorporated companies formed for the purpose of carrying- on any trade or business, or for the purpose of holding any species of property within the state of Ohio, might sue or be sued in any of the courts of this state by the usual or ordinary name of the company, without setting forth in the process or pleadings the names of the members of such company. Undoubtedly, the original action was intended to be prosecuted under favor of this statute, and the only question before us is, Did the justice of the peace acquire jurisdiction of the defendant company ? The second section of the act provides “ That process against any such company or firm, under the provisions of this act, shall be served by a copy left at their usual place of doing business within the county.” It is conceded that jurisdiction was not so obtained : but it is claimed that personal, jurisdiction was acquired by constructive service under section 35 of the Justices’ act of March 11, 1853 (S. & C. 777), which provides for service by publication when property of the defendant has been taken under an order of attachment, and it shall appear that the summons issued in the action has not been and cannot be served on the defendant in the county in the manner prescribed by law.

A majority of the court are of opinion that this mode of service by publication does not apply in cases which can be prosecuted only under favor of the act of 1816, which specifically prescribes the mode of acquiring jurisdiction of the defendant company, namely, by service of process at the usual place of doing business within the county, to wit: the county in which the process was issued. The statute is special and independent. It gives a new remedy, and prescribes the mode and manner of enforcing it. Being complete in itself, we think the mode prescribed for acquiring jurisdiction of the defendant, in invitum, is exclusive. This conclusion, it appears to me, is inevitable from the clear intention of the legislature that actions against companies in the firm name should be prosecuted only in the county in which its usual place of business may be situated, without regard to the residence of the members of the firm. The claim, however, of plaintiffs in error makes the non-residence of the members a test of jurisdiction in any county where property of the company may be seized in attachment, without regard to the usual place of business of the company. We think the act of 1846 is inconsistent with such claim.

Again, it is claimed by plaintiffs in error that defendants in error voluntarily appeared in the action before the justice by filing their motions to dismiss the action, &c. (See statement of case.)

It is not claimed that a voluntary appearance was intended by the defendants; but the claim is, that the filing of said motions was, in law, an appearance to the merits of the cause, and, consequently, a waiver of any objections to the mode or manner by which jurisdiction over the person of defendants was acquired.

The appearance of a defendant in court for the sole purpose of objecting, by motion, to the mode or manner in which it is claimed that jurisdiction over his person has been acquir* ed, is not an appearance in the cause, or a waiver of any defect in the manner of acquiring such jurisdiction; while, on the other hand, the appearance for the purpose of contesting the merits of the cause, whether by motion or formal pleading, is a waiver of all objections to the jurisdiction of the court over the person of defendant, whether the defendant intended such waiver or not.

In respect to this question, an important distinction is made between an objection to the jurisdiction of the subject-matter of the suit, and of the person of defendant, although complete jurisdiction in the court to hear and determine the action is not acquired unless the court lias jurisdiction over both the subject-matter and the person. An objection to jurisdiction over the subject-matter is a waiver of objection to the jurisdiction of the person, while an objection to the jurisdiction of the person is a waiver of nothing.

The motions of defendants, which are relied on as an appearance in the original action, when considered in the light of the circumstances disclosed in the record, were objections to the jurisdiction of the court over the persons of defendants, and nothing more. Hence, objections to the manner of acquiring such jurisdiction were not waived.

A question somewhat similar to the present arose in Handy v. Insurance Company, 37 Ohio St. 360, in which the filing of a motion by defendant to dismiss the action was held to be a voluntary appearance in. the action. The ground of the motion in that case, however, went to the jurisdiction of the court over the subject-matter of the action, and not to the jurisdiction of the person of defendant. While the motion in that case as well as in this was to dismiss the action, that was for want of jurisdiction over the subject of the suit, this over the person of defendants.

Judgment affirmed.

Upson and Doyle, JJ., dissent from the first and second propositions of the syllabus.


author: By the Court.

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    Board of Education v. Stuck.
    Motion for leave to file a petition in error to tlie District Court of Darke county.

      Anderson & Chenoweth, for the motion.

      II. M. Cole, contra.
   By the Court.

— When a joint sub-school district is established by the probate court, under the provisions of sections 3930 and 3950, inclusive, of the Revised Statutes, and the judgment of said court remains in full force and unreversed, an action by the Board of Education of the township in which such joint sub-district is established, to enjoin the county commissioners from levying a tax to support the same, cannot be maintained. The judgment of the probate court is final unless reversed for error or set aside for fraud.

Motion overruled.