source: Caselaw Access Project

author: White, C. J.

license: Public Domain

text:
    Dodson v. The City of Cincinnati.
    1. In an action to recover compensation for land apppropriated by a mu.licipal corporation to public use, the same rule applies for assessing compensation as is applicable where the assessment is made by a jury in a special proceeding instituted, under the statute, for the purpose.
    2. A municipal corporation is authorized to appropriate an easement in land abutting on a street, for the purpose of making a sloping fill in order to afford lateral support to the street.
    3. Such appropriation does not divest the owner of his dominion over the property subject to the easement. He may still use it for all purposes not inconsistent with the special purpose of furnishing the neccessary support to the street.
    -4. Where suci an easement has been appropriated, the land-owner is entitled to be compensated for all the rights of which he has been deprived; hut where he still retains substantial rights in the property, he is not entitled to he allowed the value of the land in fee simple.
    Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    The original action was brought by Edmond H. Dodson ■against the city of Cincinnati, to recover the valúe of a ;strip of ground twenty-five feet wide, taken off the front of his lot, and used by the city in the construction of State street. Ten feet in width of the strip were used in making the street, and the remaining fifteen feet were taken and used for the purpose of making a slope to support the -street.
    On the trial of the issues in the case, evidence was given by the plaintiff, tending to prove that the street was made in part upon his land ; and he also gave evidence as to the value of the land.
    On the part of the defendant it was admitted that the street had been improved by filling the same up in front of the plaintiff’s premises to a height of about t-welve feet, and that, in making such improvement, the agents of the defendant had so filled the street as to form a slope on the plaintiff’s lot, running from the line of the street as im-proved, to a point about fifteen feet in on plaintiff’s lot.
    The court instructed the jury, “ that if the defendant had ■constructed its street-in part on the plaintiff’s land, then, thaf the plaintiff was entitled to recover from the defendant the value of the fee of so much of his land as was •covered by and included in the street.”
    The court further charged the jury as follows: “If, in improving a street, the city makes a fill, it is bound to con-fine the earth within the street lines, and if it fails to do this, and allows the earth to run over onto abutting property, so as to make a slope for the support ■ of the street, this is a condemnation for street purposes of so much of the-land abutting on the street, as is covered by the slope, which is necessary for the support of the street, and the-property owner is entitled to recover from the city the value of the fee of his land occupied by so much of the slope as is necessary for the support of the street.”
    To the rule of compensation laid down in the charge, for the land occupied by the slope, the defendant excepted.
    The jury found for the defendant as to the land occupied by the street. As to the land occupied by the slope to support the street, they found for the plaintiff, and assessed his. damages.
    On petition in error, the court, at general term, reversed the judgment, for error in that part of the charge to which, exception had been taken.
    By the present proceeding, it is sought to reverse this judgment of reversal.

      Mallon § Coffey, for the motion.

      Bates, Perkins &¡ Goetz, contra.
   White, C. J.

The only question raised in this case is as to the rule by which the owner is to be compensated for ground taken and used by the city in making the slope to-support the street. ■

No question is made against the right of the city to the use of the ground for the purpose. The ground appears to have been regarded on the trial, as finally appropriated by the corporation for such purpose, subject to its liability to make due compensation therefor. The case is treated by the parties, and was so treated by the court below, as coming within the principle determined in Hatch v. The Cincinnati Railroad Company, 18 Ohio St. 93; and the only-question now in controversy is, whether the rule of compensation is the full value of the ground in fee-simple.

The rule ought to be the same as would be applied where the assessment is made by a j ury, in a special proceeding, instituted under the statute, for the purpose. Whether-the amount of the owner’s recovery should be the full value of the property, depends upon whether he has been deprived of the whole. It is the property of which he has been deprived by the public, for which he is entitled to be compensated; and his recovery should be neither more nor less-than a compensation for what has been taken.

Section 507 of the municipal code invests the city with power to appropriate, enter upon and hold real estate within its corporate limits for the purpose, among others, of opening, widening, straightening, and extending streets, alleys, and avenues; but provides that no more shall be taken or appropriated than is reasonably necessary for the purpose to which it is to be applied.

Section 509 declares that the terms “ land ” and “ real estate ” shall be regarded as including rights and easements of an incorporeal nature.

By section 512, it is provided that when it shall be deemed necessary to appropriate private property to public use, “ the council shall, by resolution, declare such intent, defining therein the purpose of the appropriation, and setting out a pertinent description of the property designed to be appropriated.”

The application made to the court or judge, for the assessment of compensation for the property appropriated, is required to be in writing, and to describe as correctly as may be the property to be taken, and the object for which it is taken.

Where a street is to be made at an elevation above the natural surface of the ground, it is clearly competent for the corporation, under these provisions, to appropriate the right to use so much of the abutting property as may be necessary to furnish the requisite lateral support to the street. Such use constitutes a mere easement in the abutting property, and does not divest the owner of his general dominion over it. He may still use it for all purposes not inconsistent with the special purpose of furnishing the necessary support to the street.

In' some instances, such use may, owing to the peculiar conformation of the land, be equivalent, substantially, to divesting tbe owner of the fee. But in others it may increase the facilities of the owner for using the land, and in fact enhance its value. True, the compensation must be assessed without deduction for benefits. But, as already remarked, the owner is entitled to be compensated only for such rights as have been taken from him by the public. And where he stills retains substantial rights in the property, he can not insist on their value being included in the measure of his compensation.

Leave refused.


author: Okey, J.

text:
    Brigel v. Starbuck.
    An order, decision, or decree of the probate court, in a proceeding under the statutes in relation to assignments for the benefit of creditors, is not appealable to the court of common pleas, unless it is of a definitive nature, affecting property rights; and the approval by the probate court of the election of an assignee by the creditors, is not an order, decision, or decree of that nature.
    Error to the District Court of Hamilton county.
    George Weber, on December 15, 1874, executed a deed to Alexander Starbuck and Jacob Pfau, assigning his propperty to them for the benefit of his creditors, pursuant to the statutes then in force relating to that subject. 1 S. & O. 709 ; S. & S. 395 ; 68 Ohio L. 41; 69 lb. 71, 172; 71 lb. 28,73; 73 lb. 101, 146; 74 lb. 110. The provisions of these acts have been modified in some respects, and incorporated into the probate code. 75 Ohio L. 935.
    The assignment was filed in the Probate Court of Hamilton county, on the same day, and the assignees gave bond and entered on the pei’formance of their duties.
    May 14, 1878, certain creditors of Weber filed a petition in the probate court for permission to make choice of an assignee in place of Starbuck and Pfau. The petition was filed under the fourteenth section of the assignment law of 1859, which as amended in 1874, (71 Ohio L. 74), is as follows :
    “ That whenever a petition properly verified, signed by creditors whose claims against the estate of the debtor .amount to the sum of one thousand dollars or upward, shall be filed in the probate court, praying for permission to elect an assignee or assignees of the estate of the debtor, it shall be the duty of the probate judge to cause printed •or written notices to be served by mail or personally, upon .all creditors named in the schedule filed in said court, or whose names may be given to him by the debtor, or any •creditor, which notice shall specify the time when the creditors will meet at the office of said probate judge for such election. That on the day mentioned in said notice, if creditors representing fifty per centum or more of the debts of the assignor, shall appear in person or by attorney, said •creditors may proceed to choose one or more assignees of the estate of the debtor, the choice to be made by the greater part in value and number of the creditors who are thus present at said meeting, which choice shall be subject to the approval of the court. The said choice of election shall be evidenced in writing, signed by the creditors so making the election, and filed with the court. Thereupon, if within ten days the assignee or assignees shall personally appear in said court, accept the trust and give bond, as provided in the first section of this act, the said assignee or assignees shall succeed to all the rights and privileges, and be subject to all the duties and liabilities, of any preceding assignee, and the rights, privileges, and powers of any preceding assignee shall thereupon cease and determine. The court shall make and enforce all necessary orders to put the said assignee or assignees into possession of all property, moneys, rights, or credits belonging to the assignor covered by the assignment. The assignee or assignees thus chosen and qualified, shall have power, by suit in the court of common pleas or otherwise, to compel the delivery of all the property, moneys, rights, and credits of the assignor covered by the assignment in the hands or under tbe control of the preceding assignee, and of all books and papers of the assignor to them. The probate-judge shall .have the right at any time to remove any assignee for good cause, and to appoint another in his stead, and to make and enforce all orders necessary to cause the property and effects to be delivered to the new trustee, and to require new undertakings with additional sureties; and on application made by any surety or sureties of any assignee may, if satisfied of the reasonableness of such application, discharge such surety or sureties from further-liability, and require that said trustee shall be removed or give new sureties.”
    The meeting of creditors was held, and the probate court made and entered on the journal, in the insolvencjr proceeding, the following order:
    “ Now, on this 20th day of May, a. n. 1878, the proceedings, in writing, of the meeting of the creditors of the estate of said George Weber, signed by said creditors present at said meeting held on the 18th day of May, a. d. 1878, in the office of the Probate Court of Hamilton county, Ohio, was presented to this court; and it appearing to the court that creditors representing more than fifty per cent, of the debts of the said assignor, George Weber, were present at said meeting, in person or by attorney, and that said-creditors elected and chose Leo A. Brigel assignee of the-estate of said George Weber, said choice being made by the-greater part, in number and value, of the creditors present at said meeting, and the said election and choice so made by said creditors being now submitted to the court for approval, the election and choice of said Leo A. Brigel, as assignee of the estate of George Weber, so made by said creditors, is hereby approved by the court.”
    Peter Andrew, one of the creditors of Weber, and others, gave notice of appeal from the order of approval to the court of common pleas, and gave bond for such appeal,, which was approved by the probate court.
    The appeal was taken under the third section of the act of 1854, relating to the probate court (2 S. & C. 1218; S. & S. 625), which section, as amended in 1871 (68 Ohio L. 57),; was as follows:
    “ That appeals may be taken from any order, decision,, or decree of the probate court in settling the accounts of an executor, administrator, or guardian; in proceedings for the sale of real estate for the payment of debts; in cases where the probate court shall have increased or diminished the allowance made by appraisers of any estate to any widow or minor child or children for their support for one year; in proceedings against persons suspected of having concealed,, embezzled, or conveyed away the property of deceased persons ; in cases for the completion of real contracts ; from any order, decision, or decree made under ‘ an act regulating the-mode of administering assignments in trust for the benefit of creditorsand in proceedings to appoint guardians for lun- ■ atics or idiots, by any person against whom such order, decision, or decree shall be made, or who may be affected thereby, to the court of common pleas of the proper-county; and the cause so appealed shall be tried, heard, and decided in the court of common pleas, in the same manner as though the said court of common pleas had original jurisdiction thereof.”
    This section also has been incorporated in the probate code. 75 Ohio L. 957.
    May 28,1878, the court of common pleas, on motion of Brigel, dismissed the appeal.
    June 15, 1878, the district court, on the petition of Peter Andrew, Alexander Starbuek, and others, reversed the judgment of the court of common pleas, and remanded the matter to that court for further proceedings.
    Leo A. Brigel, on leave, filed, in this court, a petition in error to reverse the judgment of reversal, for the reason that the order of approval by the probate court was not appealable ; and whether that objection is well taken is the; question on this final hearing.

      Long, Kram.er $ Kramer, for plaintiff in error:
    They insisted that the order was not in its nature final, .and lienee was not appealable, and they cited Teaff v. Hewitt, 1 Ohio St. 543; Lawson v. Bissell, 7 Ohio St. 129 ; Still’s estate, 15 Ohio St. 484; Bell v. Crawford, 25 Ohio St. 402; Aultman v. Seiberling, 31 Ohio St. 204.

      Iioadly, Johnson § Colston; Matthews, Ramsey § Matthews ; .and L>. M. Hymans, for defendants in error:
    .1. They claimed that the act authorizing the appeal (68 ■Ohio L. 57) applied as well to the assignment law (includ•ding the fourteenth section thereof), after the amendment of the fourteenth section in 1874 (71 Ohio L. 74), as to the .act in its original form. Ex parte Zellner, 9 Wall. 244.
    2. They also claimed that the approval was in effect a final order as to a branch of the cause separable from the -other parts of it, and therefore appealable. They commented on the cases cited for plaintiff in error, and cited, in addition, the following cases: Clermont Co. v. Robb, Wright, 48 ; s. c., 5 Ohio, 491; Butman v. Fowler, 17 Ohio, 101; Shepard v. Darke Co., 8 Ohio St. 354; 1 Ohio St. 432; Bowersox v. Watson, 20 Ohio St. 496 ; State v. Hamilton Co., 26 Ohio St. 364; Southard v. Stephens, 27 Ohio St. 649. They cited, furthermore, various acts from the statutes of Chase and Curwen, to show the policy of the legislature in providing for appeals in analogous cases.
    3. They insisted, moreover, that the order affected the ¡substantial rights of Starbuck and Pfau, and cited Ex parte Garland, 4 Wall. 333 ; Angell & A. on Corp., § 426.
   Okey, J.

The statutory provision relating to appeals from the probate court, in force at the time these proceedings were had, was passed in 1871 (68 Ohio L. 57), as appears in the statement of the case. The provision, it will be seen, authorized an appeal from that court to the court ■of common pleas “ from any order, decision, or decree made under ‘ an act regulating the mode of administering assignments in trust for the benefit of creditors/ ... by any person against whom such order, decision, or decree shall be made, or who may he affected thereby.” The fourteenth section of the assignment law of 1859 (1 S. & C. 712), in force-in 1871, did not authorize the creditors to select an assignee.. That, as appears in the statement of the case, was provided for in 1874, by an amendment of the section. 71 Ohio L. 74. But this in no manner affects the rights of the parties. The amendment did not leave the assignment law of 1859 without a fourteenth section. The section retained its place in the act in its amended form, and the above mentioned act of 1871, relating to appeals, applied as well to-the act as amended in 1874 as to the original act. McKibben v. Lester, 9 Ohio St. 627 ; Job v. Harlan, 13 Ohio St. 485; Bowers v. Pomeroy, 21 Ohio St. 184; Taylor v. Thorn, 29 Ohio St. 569.

The question for our consideration, then, is whether the-probate court's approval of Brigel as assignee, in place-of Starbuck and Pfau, was an appealable order. The language of the statute, “ any order, decision, or decree,” taken literally, would embrace this order. Nor can it be-doubted that where the words of a statute are perfectly • clear, they are to be adhered to, notwithstanding the consequences are such as the legislature had not contemplated,, and such as might occasion some inconvenience. In such case there is nothing to construe. But where strict adherence-to the mere letter of a remedial statute will manifestly lead to-serious inconvenience, interruption, and delay in the settlement- of an estate, we may sometimes depart from it; and we are always justified in looking to the whole statute to-ascertain in what sense the words were used.

There can be no doubt that general words in a statute-will sometimes be limited in their application. Thus, although the statute to prevent frauds declares that fraudulent conveyances “ shall be deemed utterly void and of no-effect,” yet they are held to be valid except as to creditors- and purchasers. Burgett v. Burgett, 1 Ohio, 469. The word “ void” in a statute is, indeed, frequently construed to mean voidable. Terrill v. Auchauer, 14 Ohio St. 80. The word. “ all ” in an act is to be construed in a general or universal'. ■sense, according to the demands of sound reason. Stone v. Elliottt, 11 Ohio St. 252. Words, however broad, must be ■construed in view of the territorial limit to the powers of the legislature. Woodward v. Michigan, etc., It. Co., 10 Ohio St. 121. And it is a general rule that “ all words, whether they be in deeds or statutes, or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter or person.” Steamboat Messenger v. Pressler, 13 Ohio St. 255 ; Tracy v. Card, 2 Ohio St. 431; Maxwell on Stats. 54.

Broad as the language, “ any order, decision, or decree,” is, this court, on careful consideration, held that it did not Embrace an order setting aside or refusing to confirm a sale made by such assignee. Aultman v. Seiberling, 31 Ohio St. 201. The court pertinently remarked, in that case, that the provision “ can not apply to decisions and orders granting continuances, or further time to assignees, or to executors .and administrators, or to decisions made during the progress ■of a trial; nor to granting authority, under the assignment law, to sell at private sale, nor to the fixing of the time within which such sale might be made ;” and it was said that to allow “ appeals from the refusal of the court to confirm sales, would be to impede unreasonably the settlement -of the assignment.” This is opposed to the view taken in New Jersey and some other states (Conover v. Walling, 2 McCarter, 167), as to the rights of such purchaser, but it is in accordance with the course of legislation and decision in this state.

It is said that if it be admitted that the order is not appealable unless it is in its nature final, still the decision in ■question is such final order, as it “ determines and disposes ■of the whole merits of ... a branch of the cause which is separate and distinct from the other parts of the ■ case.” Teaff v. Hewitt, 1 Ohio St. 511-520. There the •court was speaking of appeals under the 55th section of the chancery practice act of 1831 (3 Chase, 1702), and the ■ decisions under provisions of that character would prob..ably not be strictly applicable here. But if their entire applicability be conceded, they will be found to defeat rather than support this appeal; for, under the first section of the act of 1852 (3 Curwen, 1725), corresponding with section 55 of the chancery practice act, it was held that an order appointing a receiver to receive the revenues of a railroad, and bring the same into court subject to its order, was n )t a final order from which an appeal could be taken. Eaton & H. R. R. Co. v. Varnum, 10 Ohio St. 622.

An examination of our legislation and decisions shows that it has been the general policy in this state not to permit an appeal from an order appointing or removing a trustee, and that this extends to guardians, executors, and administrators. In some states the rule is different. 1 Green’s Ch. 78; 1 McCarter, 540; 25 N. J. Eq. 508; 3 C. E. Green, 472 ; 1 Williams’ Ex. (6th Am. ed.) 642. The exception as to an appeal from the appointment of a guardian for a lunatic or an idiot, made, doubtless, by reason of the gravity of the proceeding and its effect upon the person, estate, and family of the ward, tends to prove the general rule in this ■state, and would seem to require that those who assert other exceptions should be able to point out some provision in terms warranting the appeal.

It is, indeed, a recognized principle that general words in a ■statute granting appeals will, ordinarly, not be extended to matters resting in the discretion of the court, or to judgments, orders, or decrees of an interlocutory character. To render the decision of orders of that sort appealable, express provision must be made, or words must be employed from which it is reasonably certain that such was the intention. As expressed in Juan v. Ingoldsby, 6 California, 439, “ appeals from interlocutory orders are the creation of statute, and •can not be extended by implication.” And see 3 Estee’s Pr. 646. We do not think the intention to make the order in •question appealable is to be inferred in this case. The principle is really settled in Aultman v. Seiberling, supra, where it was said: “ In view, therefore, of the nature of an ¡appeal, and of the effect of allowing it in cases like the present, it seems to us that it was not intended to apply to such cases. That an order or decision, to be the subject of appeal, must be definitive or final in its character.” And we believe that it may be stated as a general rule, that an order to be appealable, must affect property rights, and not merely the administration of the trust. Here there is no-question as to the amount of any creditor’s claim, as to the-order of.liens, as to the property assigned, or as to the costs- and expenses of the assignment; but the sole contention is-as to the persons who shall administer the assignment. An appeal from such an order involves delay, as well as expense, whereas it is the duty of a substituted assignee to proceed immediately to the execution of the trust. We do not think the original assignees had such interest 'in this trust as to-entitle them to litigate the question of their displacement by an appeal to the court of common pleas, nor do we think any creditor could litigate the question in that form. The-analogy between such a trust and a public office is slight.

An examination of other clauses of the section under consideration, leads to the same conclusion. Thus, “ appeals may be taken from any order, decision, or decree-.of the probate court ... in proceedings for the sale of real estate for the payment of debts.” Could an appeal be taken from an order substituting one appraiser for another in such case ? It will not be claimed that this could be done, and yet the order would be embraced by the-general language of the section. Other reasons might be-given why the general words of the section ought to be-limited in their application, but let these suffice. Whether,, in such cases, there is any remedy by proceeding in error,, or otherwise, we need not determine.

Judgment of the district court reversed, and judgment of the court of common pleas, dismissing the appeal,, affirmed.

       Erroneously printed definite. 31 Ohio St. 205.


text:
    Gibbons v. The Catholic Institute of Cincinnati.
    1. Section 3, chapter 1, title 4, of the revised code (75 Ohio L. 804), when applied to the Superior Court of Cincinnati, must be construed in connection with section 8 of the act of May 10, 1878 (75 Ohio L. 140). Construing the sections together, it appears that a judgment rendered1 by the superior court, at general term, was not intended to be embraced, in said section 3, and thus made reviewable by the district court.
    2. The validity of section'8 of the act of May 10, 1878, is not affected by the fact that the remainder of the act is unconstitutional. That section* is separable from the remainder of the act.
    Error to the District Court of Hamilton county.
    A judgment was recovered by the Catholic Institute of' Cincinnati against Joseph Gibbons and Anna M. Gibbons,, his wife, at the July term of the Superior Court of Cincinnati, the cause having been reserved from special term.
    On the 14th of October, 1878, Gibbons and wife, the-present plaintiffs in error, filed a petition in error in the-District Court of Hamilton county, to reverse the judgment.
    The Catholic Institute, the defendant in error, appeared and waived the service of process, and filed a motion to-dismiss the proceeding in error, on the ground that the district court had no jurisdiction of the subject matter.
    The district court granted the motion, and dismissed the. petition in error for want of jurisdiction.
    To reverse this order of dismissal, the present petition in* error has been filed in this court.

      Coffin S;- Mitchell, fbr plaintiff in error.

      Follett § Dawson, for defendants in error.
   White, C. J.

Section 8 of the act of May 10, 1878 (75-Ohio L. 140), repeals section 17 of the act of April 7,1854,, to establish the Superior Court of Cincinnati, and all portions of the act last named conferring upon the superior •court, at general term, jurisdiction to entertain petitions in •error, to review the judgments and orders of the court rendered at special term. Section 8, above referred to, took ■effect on the first Monday of October, 1878, and until that time the superior court, at general term, had jurisdiction to review, on petition in error, the judgments and orders rendered at special term, notwithstanding the jurisdiction in error conferred on the district court by the revised code •of May 14, 1878, which took effect on the first of September of the same year. On the first Monday of October, 1878, all proceedings in error, pending in the superior ■court at general term, were required, by said section 8, to be transferred to the district court for determination. The jurisdiction of.the district court was substituted for that •of the superior court at general term, in regal’d to cases in •error arising on judgments or orders rendered at special ■term. And the provision, in the section, that thereafter the “ final judgments and orders of said superior court may be reversed, vacated, or modified by said district court, in ■the same manner, and by like proceedings, as judgments and orders of the court of common pleas,” has reference ■only to such judgments and orders as, prior to that time, were reviewable by the superior court at general term, ■namely, the judgments and orders rendered at special term.

Section 3, chapter 1, title 4, of the revised code (75 Ohio X. 804), when applied to the Superior Court of Cincinnati, ■must be construed in connection with sectiou 8, above re-ferredto; and, thus construed, it seems to us the district ■'court were right in holding that a judgment, rendered by the superior court at general term., was not intended to be embraced in said section 3, and thus made review;able 'by the district court.

It is proper to add that we do not regard the validity •of section 8 of the act of May 10, 1878, as affected by the fact, that the remainder of the act has been declared unconstitutional. The section in question is separable ifrom the remainder of the act.

Judgment affirmed.


author: Boynton, J.

text:
    The Texas Building Association No. 2 v. The Aurora Fire and Marine Ins. Co.
    ,1. The'Axeeution of an order remanding a cause for further proceedings, upon the reversal of a judgment of an inferior court, may be stayed by the court in which a petition in error is filed to reverse the judgment of reversal, or by a judge thereof, as provided by section 22, chapter 1, article 4 of the act of May 14, 1878 (75 Ohio L. 806).
    ■2. An order staying the execution of a judgment or final order, as provided for in said section, will only be granted on good cause shown, and the mere pendency of a petition in error tó reverse the judgment of reversal is not a sufficient ground for an order granting such stay.
    Motion to stay the execution of a judgment of reversal Tendered in the District Court of Hamilton county.
    At the June term, a. d. 1877, of the Court of Common .Pleas of Hamilton county, the plaintiff recovered a judgment against the defendant in the sum of $800, which judgment at the April term, 1878, of the District Court of that county was reversed, and the cause remanded .for further proceedings. To reverse the judgment of reversal .a petition in error is now pending in this' court. The plaintiff now says that the defendant threatens to press the. cause so remanded to trial in the common pleas, and therefore moves for an order staying further proceedings therein, until the cause in error is decided by this court.

      Tilden, JBuckwalter ‡ Campbell, for the motion.

      Blackburn, Collins ‡ Shay, contra.
   Boynton, J.

It is clear that the judgment of the district •court reversing the judgment of the court of common pleas, .and the order remanding the cause for further proceedings, •do not belong to the class or classes of judgments or orders, the execution of which may be stayed in the mode pro-i vided in section 15, chapter 1, title 4 of the act of May 14, 1878 (75 Ohio L. 806). But section 22 of that act provides that “execution of a judgment or final order, other iban those enumerated in this chapter, of any judicial tribunal, may be stayed, on such terms as may be prescribed by the court in which the petition in error is filed, or by a judge thereof.” This is the language of the original section of the code as amended April 3,1861 (S. & S. 570). This section provides for stay of execution in all cases not provided for by sections 15 and 21, without regard to the court in which the judgment is rendered or order made. All that is required, is that the judgment or order be final. That such was the character of the judgment of reversal and the order remanding the cause for further proceedings is settled by Schaffer v. Marienthal, 17 Ohio St. 183. It was there held, that “ where a judgment is reversed, and the cause remanded for further proceedings, error will lie to reverse the judgment of reversal, while the cause is still pending in the court to which it was remanded.” The same practice prevails in England. McMahon v. Leonard, 5 House of Lords Cases, 931. Where the judgment is not final, error, under our practice, will not lie to reverse it; but being final, and the order remanding the cause for further proceedings being consequent upon the reversal, the execution of such judgment and order may be stayed in the manner prescribed by section 22 aforesaid. The mandate sent down in such case, to carry into effect the judgment and order of the district court, is, in substance and effect, a writ of procedendo, authority to issue which is found in section 2 of the act of March 14,1853 (1 S. & C. 382), supplementing the jurisdiction in procedendo conferred by the constitution. That section, among other things, provides that “the district court, in addition to the original jurisdiction conferred upon it by article 4, section 6 of the constitution, shah have power, on good cause shown, to issue writs of error and certiorari in criminal cases, and supersedeas in any case, and all other writs not specially provided for nor prohibited by statute, whenever this may be neeessary for the exercise of its jurisdiction in the due administration of justice.”

And section 4 of the same act provides that the supreme court or district court shall have power to remand its final decrees, judgments, or orders, in cases removed before them ■on appeal, to the court below, as the case may require, for the specific or general execution thereof, and may also remand causes which so come before them to the inferior ■courts for further proceedings therein.”

By the latter of these two sections, express power is conferred on the district court, and also upon this court, to remand equity causes to the court below for further proceedings ; and, by a fair and just construction of the provisions of the former, the same power is conferred upon the district •court in actions at law. Hence, when the mandate is received by the court to which the cause is remanded, it becomes its duty to carry into effect the judgment or order of the reviewing court. The performance of this duty, in cases where the cause is remanded for a new trial, consists in proceeding to trial and judgment; and the suspension of this action of the court, during the pendency of the petition in error, constitutes the stay of execution provided ' for. But power to stay execution of the judgment or order, .as provided by section 22, above quoted, is discretionary, to be exercised only on good cause shown by the party moving for the stay. See Pim v. Nicholson, 6 Ohio St. 176. Counsel for the plaintiff seem to assume that the mere pendency of the petition in error in this court, the hearing upon which may result in the reversal of the judgment of the district court, and in the affirmance of the judgment of the court of common pleas, is a sufficient .ground to stay further proceedings in the latter court, until the petition in error is disposed of. If this were so, the re.sult would be, in this class of cases, that, on the filing of the petition in error in the reviewing court, stay would be ordered, as of course, however clear and manifest it might be that the judgment of the district court was right.

The only caiise stated for the order staying proceedings is, that the defendant threatens to bring the case to trial in; the common pleas. This ground we think insufficient-Should the ease go to trial and judgment, under circumstances from which no waiver upon the part of the plaintiff of the proceeding in error ought to be implied, if without' his assent or against his objection he is forced to trial, and. the judgment of the district court upon the pending petition in error should be reversed and that of the common pleas affirmed, it by no means follows that such first judgment would be lost, or that the second would be substituted for it. Pinney v. Gleason, 9 Cow. 635.

Motion overruled.


author: McIlvaine, J.

text:
    Benson’s Administrator v. Stein.
    1. In an action for an account and the recovery of money, where the defendant admits his indebtedness to the plaintiff in a certain sum, but. sets up that a judgment creditor of the plaintifLhas a suit in aid of execution then pending against the plaintiff and defendant, in which such indebtedness is sought to be subjected to the payment of his judgment: Meld, that it is error to render judgment for the amount so admitted to-be due, until such judgment creditor is made a party, or his right in the-premises is determined.
    2. But where a judgment is so erroneously rendered, the error is cured. whenever it is made to appear of record in the case that such action in aid of execution has been dismissed by the party.
    3. Where, in an action to compe.l the statement of an unsettled account between the joint owners of a steamboat, with a prayer for a judgment for the amount that may be found due to the plaintiff, the defendant answers that the amount due the plaintiff has been ascertained and fixed. • by an award upon submission to a third person, and the plaintiff replies, admitting the submission and award, and asks judgment thereon, there is no such departure in pleading as will vitiate a judgment for the amount admitted to be due by the answer. The judgment in such case rests on the petition and answer, and not on the reply.

      4. Where a defendant admits the amount of his indebtedness to the plaintiff and pleads a set-off, and issue is joined on the set-off, a judgment rendered upon the pleadings, on the motion of the plaintiff, for the amount admitted to be due, less the amount of the set-off, is not erroneous. Section 376 civil code, as amended March 13, 1872 (69 Ohio-L. 44).

      Motion for leave to file a petition in error to the Superior Court of Cincinnati.
    The original action was commenced by James Good, in tbe Superior Court of Cincinnati, against Albert Stein, John G. Benson, and John Good (tbe latter of whom was not served), for tbe settlement of an account between them as joint owners of certain steamboats and barges. Benson filed an answer and cross-petition, admitting the allegations in tbe petition as to tbe joint interest of tbe parties in tbe vessels and tbe profits thereof, and charging that Stein bad converted tbe earnings and profits of tbe boats to bis own use, and bad failed and refused to account therefor, and praying that Stein might be compelled to account, and for a judgment for tbe amount that might be found due to him from Stein. ;
    Stein filed an answer, admitting generally tbe allegations of tbe petition and cross-petition, but alleged that tbe matters of difference between the parties bad been submitted to tbe arbitrament of one Robert C. Rogers, who bad awarded, among other things in favor of Benson, a certain sum of money, which, subject to certain set-offs, was tbe amounf of bis indebtedness to Benson. ;
    Stein further alleged in bis answer that one William Q, Hodgson, a judgment creditor of Benson, had commenced an action in aid of execution against Benson and himself, for tbe purpose of subjecting the amount of such indebted* ness to tbe satisfaction of bis j udgment, and that such action was still pending. ,

    At this stage in tbe action Benson died, and Powell; Crosby, his administrator, filed a reply to Stein’s answer, admitting the alleged arbitration and award, and also admitting the pendency of tbe action by Hodgson against his intestate and Stein, but denying tbe set-off pleaded by Stein, and also denying that Hodgson had acquired any lien upon tbe indebtedness of Stein to bis intestate, and praying foi? a judgment for tbe amount of tbe award made in favor of* Benson by Rogers. v

      Afterward, in open court, at special term, Benson’s administrator moved for a judgment in Ms favor for the amount of said award, less the amount of the set-offs claimed by Stein. This motion was insisted by Stein, who demanded a trial. Thereupon, upon the pleadings, the court rendered judgment in favor of the administrator against Stein, for the amount of the award, less the set-offs claimed by him ; and Stein excepted.
    This judgment having been affirmed in general term, a petition in error was prosecuted in this court by Stein, and the judgment of affirmance was reversed; but, inasmuch as it was then suggested to this court that, subsequent to the judgment of affirmance, Hodgson had been made a party to the action in the court below with leave to answer, this court declined to reverse the judgment at special term, and remanded the cause to the general term for such judgment as might be proper in view of the fact that Hodgson had been made a party, etc.
    The cause being thus again pending in general term, it was made to appear by the answer of Hodgson, then of record, that his proceeding against Benson and Stein, in aid'of execution, had been dismissed, and that he claimed no interest in the indebtedness of Stein to Benson, except as a general creditor; the court proceeded to consider other supposed matters of error in the record, and reversed the judgment rendered at special term, and remanded the cause to special term for trial.
    Benson’s administrator now seeks to reverse the judgment at general term reversing the judgment rendered at special term.

      Butterworth $ Vogeler, and Powell Crosby, for the motion.

      Iloadly, Johnston Sf Colston, contra.
   McIlvaine, J.

"When this cause was before the court on the petition in error of Albert Stein, the judgment rendered in general term, affirming the judgment at special term, was reversed solely on the ground that the court at special term erred in rendering judgment in favor of Benson’s administrator and against Stein, without either making Hodgson a party to the action, or determining the right of Hodgson to subject the indebtedness of Stein to Benson tc the satisfaction of his judgment. By that judgment Stein was ' exposed to the risk of being compelled to pay his indebtedness to Benson’s administrator, and afterward to Hodgson in his action in aid of execution. It is true, the court by its judgment at special term ordered the money to. be paid into court to abide its further order, and reserved alt other issues in the case for future determination ; but this court was of opinion that this order and reservation did not afford to Stein all the security to which he was entitled. Hodgson’s proceeding in aid of execution having been commenced before the original action, he was not bound to appear in the original action to assert his right; and It seemed to us that Benson’s administrator was not entitled to judgment against Stein until Hodgson’s right was determined, or at least, until he was made a party to the action.

It having been suggested to this court, however, that Hodgson had become a party to the original action, and would, therefore, be bound by the judgment., and order of the court in regard to the disposal of the money, the judgment of affirmance was reversed, and the cause remanded for such judgment as might be proper in view7 of the then state of the record.

The case being thus again- before the court below, In. general term, and it having been made to appear of record that Hodgson had no interest in the subject-matter of the suit, by reason of the dismissal of his action in aid of execution, the proper judgment, under the then state of the record, would have been an affirmance of the judgment at special term. The alleged claim of Hodgson having been determined against him, the premature rendition of the judgment ceased to be prejudicial to Stein, inasmuch, as -between him and Benson’s administrator, the latter, upon the pleadings, was entitled to the judgment rendered in his favor.

■■ ■'We'are informed, however, in argument, that the judgment of reversal was based on the ground of a supposed! departure in pleading, that is to say, that the judgment was ■ rendered in favor of Benson’s administrator on an award, as prayed for in the reply, whereas, the cause of action as stated in the cross-petition, arose on an unsettled account.

While no such ground was alleged in the petition in error, we admit the right of a reveiwing court, to reverse on grounds not specially assigned for error, if, in its discretion,. it chooses to do so; yet we do not find the error now relied on iu the record.

After deducting the set-offs pleaded- in the answer from the amount admitted to be owing on the award, as was-done below, the administrator would have been entitled to-the judgment rendered in his favor, if no reply had been, filed.. The prayer for judgment in the cross-petition was-sufficient to support such judgment, and we must hold that, the judgment was rendered on the prayer of the cross-petition, and not on the prayer of the reply.

It is true that judgment was demanded in the cross-petition, on the statement of an unsettled account of earnings and profits between the joint owners of steamboats- and barges; but it is equally true, that the submission and awai’d set up in the answer was not, and was not intended as a bar or defense to the action, but only as a fact fixing and limiting the amount of recovery. The money due-on the award was the same indebtedness which was claimed in the cross-petition to be due on a unsettled account, to-wit, Benson’s share of the earnings and profits of the vessels..

,. Indeed, as a matter of pleading, the reply was of no significance except in so far as it put in issue the new matter-alleged in the answer by way of defense.

. ,-It'is urged, in favor of sustaining the judgment of reversal, that the admission of indebtedness contained in the answer was made under a mistake; that the submission of the .differences between the parties to the arbitrament of Rogers had been withdrawn! by Good and Benson before-the award was rendered. This suggestion is not entitled to any controlling weight. If judgments could be affected by allegations of mistake in pleading the facts, more evil than good would result. A party has no right to comrlainif he be held to be bound, after judgment by an admission-solemnly made in his pleadings.

Motion granted. Judgment at general term reversed,, and that at special term affirmed.


author: Gilmore, J.

text:
    Griffin v. The State of Ohio.
    1. To maliciously enter a store-house, and attempt to steal anything of the-value of thirty-five dollars or more, is an “attempt to commit a felony,” ' within the meaning of section 6, title 1, chapter 4 of the crimes act. (74 Ohio L. 249).
    2. Tinder section 33, title 2, chapter 6 of the penal code (74 Ohio L. 349), special instructions given to the jury in writing, after argument, are-not required to he taken hy the jury, in their retirement, where the-principal charge is not required to he in writing.
    3. It is no ground for the reversal of a judgment, that a motion for a now trial was made, argued, and overruled in the absence of the prisoner,, where no objection was made till after sentence.
    Motion for leave to file petition in error to reverse the-judgment of the Court of Common Pleas of Franklin county.

      T. C. Campbell and Booth § Keating, for the motion.

      Isaiah Pilliars, attorney-gen eral, contra.
   Gilmore, J.

The plaintiff in error was jointly indicted with Albert Wolf, in the court of common pleas, for maliciously entering a store-house, and attempting to steal personal property of the value of more than thirty-five dollars, and he was separately tried, found guilty as-charged, and sentenced to the penitentiary.

The reversal of the sentence and judgment thereon is the object of this proceeding.

None of the several errors assigned are found to be well taken, and only those of sufficient importance to be reported will be noticed.

First It is contended that the section of the statute, under which the indictment was found, does not embrace the •crime for which the defendant below was indicted, and that the judgment is, therefore, contrary to law.

The indictment was found under section 6, title 1, chapler 4 of the penal code (74 Ohio L. 249), which, so far as necessary to quote it, reads as follows : “ Whoever maliciously, either in the daytime or night season, enters any •dwelling-house, . . . store-house, . . . barn, or stable, and attempts to commit a felony, shall be imprisoned In the penitentiary not more than ten years nor less than •one year.”

This is a re-enactment and amendment of section 16 of the crimes act of. 1835. S. & C. 407.

The two sections are substantially the same in all respects •except this — that where section 6 provides in general terms .against “attempts to commit a felony,” section 16 inovides specifically against attempts “ to kill, disfigure, or maim any person, rob, stab, commit a rape, or arson.” It is plain that attempts to commit grand larceny were not in•cluded in this latter section, and the question is, whether .such an attempt falls within the mischiefs sought to be provided against by section 6 ; in other words, whether an attempt to commit grand larceny is an attempt to commit a felony within the meaning of section 6.

The object must be to arrive at the purpose and intent of the legislature, in changing the phraseology of section 16, .and substituting that of section 6 in the re-enactment.

The word felony is a technical word, and it is to be understood in its recognized legal sense, unless the legislature, in the act in which it is found, has, by an interpretation clause ■or otherwise, given the sense in which it is understood when used in the act. When this is done, the word is to be -understood in the prescribed sense, whether this be an enlargement or contraction of its usually recognized legal sense; and the word will be applied in the sense given to it by the interpretation clause of the act, unless to do so-would he repugnant to reason, or to other provisions of the same act.

An interpretation of the word felonies is given in section 2, title 1, chapter 1 of the crimes act (74 Ohio L. 241), as follows r “ Offenses which may be punished by death, or by imprisonment in the penitentiary are felonies; all other offenses are misdemeanors.”

Following this definition, in order to ascertain whether maliciously entering a store-house, and attempting to-commit grand larceny, is or is not an attempt to commit a felony, within the meaning of section 6, it becomes necessary to inquire whether grand larceny, if it had been committed, would have been a crime punishable by imprisonment in the penitentiary.

In section 25, title 1, chapter 4 of the crimes act, larceny is-thus defined : “ Whoever steals anything of any value is guilty of larceny, and shall, if the value of the thing stolen is-thirty-five dollars or more, be imprisoned in the penitentiary not more than seven nor less than one year.”

The punishment here annexed to grand larceny shows it to be a felony within the meaning of the interpretation clause above quoted, and, hence, it follows that maliciously entering a store-house, and attempting to commit grand larceny, is an attempt to commit a felony within the-meaning of section 6, under which the indictment in this-case was found.

The difference in the phraseology of the new section (6) and the old section (16) is in such marked contrast, as to-clearly indicate an intention on the part of the legislature-to change section 16, and to give to section six an enlarged operation. That it was within- the power of the-legislature to do this, can not be questioned. And we fail to see wherein the changing of section 6 so as to bring; within its operation, offenses not named in section 16, as for instance, the offense for which the indictment was found in this case, is repugnant to reason. But it is, in effect, contended by counsel for plaintiff’ in error, that if section 6 is held to embrace the offense for which the indictment was found, it is so inconsistent- with, and repugnant to, sections 5, 7, and 25 of the- same title and chapter, as to negative the idea that the legislature could have intended section 6 to embrace the offense in question. It is, we think, a suffi-cient answer to this to say, that section 6 defines an offense that in its essential elements is different from the offenses -defined in the other sections named; and that while the punishment annexed to offenses under section 6 may seem 'to be excessive, as compared with the punishment annexed to ■offenses under the other sections, still this seeming disparity in the degrees of punishment, is not sufficient to warrant us in assuming that the legislature did not intend that the offense in question should be embraced in section •6, especially when such an assumption would be against the plain meaning of the words of the section.

This objection is, therefore, untenable.

Second. It is assigned for error that the court refused to ■permit certain written instructions that were requested by the prisoner, and given by the court, to be taken bythe jury in their retirement.

Before the commencement of the argument, neither of the parties requested the court to reduce either special in•structions or its general charge to writing, and, at the conclusion of the argument, the court charged the jury •orally, after which the prisoner presented certain special instructions, in writing, which, at his request, were given to the jury by the court.

Thereupon the prisoner requested the court to permit the special instructions so given to be taken by the jury in ■ their retirement, which request was refused by the court, and the prisoner excepted.

The duty of the court, in respect to written charges, is pointed out in the 5th and 7th clauses of section 83, title 2, •chapter 6 of the penal code (74 Ohio L. 349). .

- The 5th clause relates exclusively to special instructions •on points of law that either party may request at the conclusión of the evidence, and which are required to be reduced to writing by the court, if either party requests ic. The manifest purpose of this provision is to enable counsel, in the argument to the jury, to advisedly apply the facts to the law of the case, as previously settled by the coart in giving or refusing to give the special instructions on the points of law requested. These instructions, if insisted on by the party, requesting them, are to be reduced to writing before the argument is commenced, so that counsel may bave the benefit of them in the argument.

Under the provisions of the 7th clause, if either party ,-desires the court to reduce its general charge, or special instructions, other than those provided for in the 5th clause, to writing, the court must be requested to do so before the .argument to the jury is commenced; otherwise the court is not required to do so. The object of this requirement ■probably is to give the court time and opportunity to reduce its charge to writing during the progress of the argument to the jury, and thus save the delay that would be consequent upon reducing the charge to writing, if the •court wTas required to do it, at the request of either party, made after the conclusion of the argument. But, be this as it may, the only charges that the court is required to reduce to writing, under either clause of the section, are .such charges or instructions as it is requested to reduce to writing before the argument is commenced ; and it is too late to make the request after the argument is commenced. Jt follows, that where no such request was made before the argument was commenced, the court was not bound to reduce its charge to writing, and if the court, after an oral ■charge to the jury, gave in addition thereto, special instructions in writing, at the request of either party, the court was not required to permit such special instructions to go with the jury in their retirement. In other words, special instructions given to the jury, in writing, after argument, are not required to be taken by the jury in their retirement, where the principal charge is not required to be in writing.

We are not to be understood as holding that where a general charge has been reduced to writing, in pursuance of a request made by either party before the commencement of the argument, that either party is to be precluded from making special requests at the conclusion of the general charge, or that the court is not to permit such special requests, when given, to be taken by the jury in their retirement. On the contrary, such special instructions, when so given, operate as a written, not oral, qualification or modification of the written charge, and constitute a part of it, and the entire charge, as thus qualified or modified, is to go to the jury.

The court did not err in refusing to send the special written requests with the jury.

Third. It is assigned for error, that the prisoner was not in court when the motion for a new trial in his case was argued and overruled.

It does not afiirmatively appear of record, whether the prisoner was voluntarily absent or not; but it is assumed that he was in jail, and that he was not ordered to be brought in at the hearing of the motion. It does appear, however, that when the prisoner was brought in for sentence, he was informed, by the court, that a motion for a new trial had been made and overruled in his absence, to which he then made no objection, and none was in fact made till after sentence, when it was assigned for error in this court.

There is no doubt that the prisoner had a constitutional right (art. 1, § 10) to appear in court at his trial, and defend in person and by counsel, and to meet the witnesses face to face, before an impartial jury. But it is doubtful whether it is necessary for the defendant to be present in court during the agitation of questions of law, between the rendition of the verdict and sentence. Some of the authorities seem to indicate that it is not. 3 Am. Crim. L. •§ 2998; Bishop’s Crim. Pr. § 277; Jewell v. Commonwealth, 10 Harris, 102.

But, conceding that he had the right to be present during the argument and overruling of the motion for a new trial in his case, we all think it was a- right that he could waive; and that where, as in this case, he had knowledge of the fact, and made no objection till after sentence, lie-must be held to have waived his right to object to the sentence and judgment on this ground. We do not decide-what the effect would have been if there had been no such waiver. Under the circumstances of this ease, the fact, ■that the prisoner was not present when the motion for a. new trial was argued and overruled, furnishes no sufficient, ground for reversing the sentence.

Motion overruled.


text:
    Kilbreath v. Gaylord, Adm’r, etc.
    The subscribers to the stock of an insurance company organized under a. special charter granted prior to the adoption of the present constitution, gave to the corporation their secured promissory notes, payable-on demand, for the amount of the stock by them respectively subscribed. Held, that the notes must be construed in connection with the-nature of the business of the corporation, and in view of the object intended by the parties in giving their notes. Thus construed, the notes-were intended to be payable on the call of the directors; and the statute of limitations is no more available as a defense against the collection of the notes, than it would have been against the collection of the-subscriptions.
    Motion for leave to file petition in error to reverse the judgment of the Superior Court of Cincinnati.
    The original petition was filed by W. E. Gaylord, administrator of Eliza Lemerick, deceased, against the Washington Life Insurance Company, and James R. Kilbreath and others, stockholders in said corporation, to subject the .amount due from them respectively, as stockholders, on account of their stock subscriptions, to the payment of a judgment recovered by Gaylord, as administrator, against the corporation.
    The "Washington Life Insurance Company was organized under a special charter granted on the 20th of March, 1851. •49 Ohio L. 214.
    The judgment for which payment is sought was recovered on the 24th day of February, 1872, on a policy of insurance issued by the corporation on the 20th day of September, 1851.
    Suit was first brought on the policy in January, 1852, "which was afterward dismissed without prejudice. In May, 1855, suit was again entered on the policy, which was prosecuted continuously until it resulted in the judgment against ■the corporation of February 24, 1872, before mentioned. 'The suit was defended by the officers of the corporation ■until the final judgment.
    Execution issued on the judgment was returned unsatisfied, the company having no property subject to execution.
    On the 6th day of June, 1851, the stock subscribers executed to the corporation their several promissory notes for ■the amount of stock by them respectively subscribed. These notes were in the following form: “On demand, we promise to pay to the ~Washington Life Insurance Company of. -Cincinnati,” etc., and were signed by the stock subscriber .and his surety as makers.
    On the 6th day of June, 1851, the company made an assessment of ten per cent, on the notes; and in March, 1853, .an additional assessment of ten per cent.; and in April, .1854, a further assessment of five per cent.; all of which .assessments were paid by the parties. No other assessments were made by the company on the stock subscriptions or on ■the notes.
    The company ceased to take risks in the year 1854, and proceeded to close up its business; and no debts are owing by the company, except the judgment recovered as aforesaid, and two small sums of money lent to the company by two ■of the stockholders in 1854 and 1855, and the attorney’s fees arising from defending the suit in which the judgment was recovered.
    The stock subscribers interposed a plea of the statute of limitations in bar of the action. This plea was overruled, ■and the court gave judgment against them pro rata for the amount necessary to pay the plaintiff’s judgment.
    The plaintiffs in error now seek the reversal of this judgment.
    The only ground of error relied on is the overruling by the court of the plea of the statute of limitations.

      JBoadly, Johnson $ Colston, for the motion:
    This action, is on the notes, not otherwise; hut, if other~wise, and this can be treated as a suit on the subscriptions, still the plaintiff gains nothing, for the demand for and acceptance of notes payable on demand with sureties, is a ■call, which prevents any new call now.
    Besides the note given with surety is payment, within the third section of the charter (49 Ohio L. 213).
    Suit could not be brought on the subscription without returning or offering to return the notes. Miller v. Woods, 21 Ohio St. 485 ; Sawyer v. Hoag, 17 Wall. 619.
    The notes were payable on demand, and the statute of limitation runs from their date. Hill v. Henry, 17 Ohio, 9; Darling v. Wooster, 9 Ohio St. 517; Pullen v. Chase, 4 Ark. 210.

      Follett $ Dawson and Collins § Herron, contra:
    The giving of a promissory note is not payment of a subsisting debt, unless it clearly appears that it was the understanding of the parties that the latter should be extinguished by the former. McNaughton v. Partridge, 11 Ohio, 223 ; Merrick v. Bowry, 4 Ohio St. 60 ; Leach v. Church, 15 Ohio St. 169.
    Unless, then, the statute of limitations applies to the subscription of stock, the giving of the notes will not help it.
      Sawyer v. Hoag, 17 Wall. 610; Warren v. Callender, 20 Ohio St. 190.
   White, C. J.

The plaintiffs in error can not avail themselves of the statute of limitations as a defense.

They rely on the decision in Hill v. Henry, 17 Ohio, 1, as entitling them to the benefit of the statute. It was held, in that case, that a promissory note for money, payable on demand, is due on delivery.

Upon the question whether the statute of limitation began to run from the delivery of the note, the court say: “ Upon this point, we are aware that there have been contradictory decisions, but, in our opinion, a right of action exists in the payee of such note, upon its delivery, and that from the time of the delivery the statute of limitations commences to run.”

The principle ruled in that case was subsequently followed in Darling v. Wooster, 9 Ohio St. 517, where it was held that a due-bill became payable on delivery, and bore interest from that time; though it was conceded that the weight of authority, both in England and in this country, favored the rule that such note will bear interest only from the time of demand made, or of suit brought.

But, without questioning the authority of these cases, we think the rule applicable to promissory notes given in the ordinary course of business by a debtor to a creditor, can not be properly applied to a case like the one before us.

The plaintiffs in error, and their associates, became incorporated for the purpose of carrying on the business of life insurance. The only means of the company for doing business, consisted of its stock subscriptions. In payment, or to secure the payment of these subscriptions, the subscribers executed their non-negotiable notes to the company, payable on demand. These notes must be construed in connection with the nature of the business of the corporation, and in view of the object intended by the parties in giving the notes. The notes represent the fund intended ultimately for the payment of debts, if they should be required for such purpose. To hold that the statute of limitations began to run from the time of the execution of the notes, would defeat the purpose intended, and work a fraud, not only on the policy-holders, but on such of the stockholders as might see fit to pay the cash in discharge of their liability.

Upon such view of the liability of the subscribers, upon the notes, if the business of the company should be sufficiently prosperous to enable it to meet its current liabilities from its current income, during the period required for the statutory bar, the company would, after that time, be destitute of the means to pay policies which might subsequently mature; and in regard to policies maturing before the bar was complete, if payment could be postponed until that time, payment of such policies would be defeated. At least the .ability of the company to pay them would depend upon whether the subscribers chose to plead the statute.

That such was not the intention of the parties is very clear; and if it had been, that it would have been a fraud upon creditors, and could not have been carried out, is equally clear. Sawyer v. Hoag, 17 Wall. 620.

The notes were intended to be payable on the call of the ■directors. We see no good reason why such intention ■should not have effect. The statute of limitation is no more available as a defense against the collection of the notes than it would have been against the collection of the ■.subscriptions.

This was the view taken of the nature of the liability arising ou the notes by the directors in the assessments which they did make, and we see no reason to doubt its ■correctness.

We do not say that, the directors might not call for payment- of part of the notes without calling for the payment ■of all of them. Special reasons might arise why this should be done. But in the absence of a call or demand for payment by the directors, we think a suit by the company on the notes would have been contrary to the intention of the parties. Leave refused.


text:
    Kennedy v. The State.
    1. An indictment contains the averment that an order issued by the county auditor on the county treasurer, in favor of A., was presented to the' treasurer by B., and that by reason of B.’s false pretense that the order was properly issued on a valid claim, and that he (B.) was authorized to receive payment, the treasurer paid the order by delivering to B. a check. Held, 1. That this is not a sufficient averment, under the crimes act, chapter 11, section 7, first clause (74 Ohio L. 289), that B. obtained' the cheek by false pretenses. 2. The alleged facts, coupled with the-further averment that by said false pretenses B. procured the treasurer’s-signature to the check, as maker, with intent to defraud, does not constitute the offense of procuring another’s signature by false pretense,, within the meaning of the second clause of the section.
    2. Where B., a county auditor, fraudulently issued an order on the county treasurer in favor of A., and received payment thereof from the treasurer, on the false pretense that he was authorized by A. to do so, while-in fact, as he well knew, A. had no claim against the county, had never' presented any such claim, and had never given B. authority to issue the order or receive payment, this does not constitute an-offense under chapter 6, section 18, chapter 8, section 39, or chapter 11, section 6, of the-crimes act (74 Ohio L. 240).
    Error to the Court of Common Pleas of Trumbull county.
    At the May term, 1878, of said court, the plaintiff in-error was convicted, on his plea of guilty, and sentenced to the penitentiary, on an indictment which, omitting caption and conclusion, is as follows: The grand jurors, “in the name and by the authority of the State of Ohio, on. their oaths and " affirmations, do find and present, that' George B. Kennedy, late of the county of Trumbull aforesaid, on the twenty-eighth day of July, in the year of our Lord one thousand eight hundred and seventy-seven, at the-county of Trumbull aforesaid, unlawfully did falsely pretend to one Alonzo A. House, who was then treasurer of said county of Trumbull, that the said county of Trumbull was indebted to H. C. White in the sum of two hundred: dollars; and the said George B. Kennedy, who was then. auditor of said county of Trumbull, did draw, make out, and present to said Alonzo A. House for payment, a false and fraudulent order for the sum of two hundred dollars, and did then and there and thereby falsely pretend that an indebtedness existed in favor of H. 0. White and against the said county of Trumbull, and that the said George B. Kennedy had been requested, instructed, and authorized to draw, make out, and present for payment to the treasurer of said county of Trumbull, and receive payment upon, said false and fraudulent order. Said false and fraudulent order is of the purport and value following, to wit:
    “ ‘ Auditor’s office, Trumbull county, Ohio, Warren, July 28, 1877. Treasurer of Trumbull county: Pay to II. C. White, or bearer, two hundred dollars from the bridge fund, and charge the county. Geo. B. Kennedy, county auditor: ’ That thereupon, by reason of said false pretenses so made by said George B. Kennedy, on the said twenty-eighth day of July, A. d. 1877, the said Alonzo A. House paid said order by delivering to said George B. Kennedy a check for two hundred dollars drawn on the Trumbull National Bank of Warren, and the said Alonzo A. House did then and there stamp upon said order the words and figures following, to wit: ‘Paid July 28, 1877, treasurer’s office, Trumbull county, Warren, Ohio.’ By which said false pretenses the said George B. Kennedy then and there unlawfully did procure from the said Alonzo A. House, treasurer of said county of Trumbull, the signature of A. A. House, as maker, to a check drawn on the Trumbull National Bank of Warren, Ohio, of the value of two hundred dollars, and that said check was paid on said 28th day of July, a. D. 1877.' Said check is of the purport and value following, to wit: ‘Warren, Ohio, July 28,1877. Trumbull National Bank of Warren: Pay to H. 0. White, or order, two hundred dollars. A. A. House.’ Said check is indorsed ‘Henry 0. White,’ and stamped with the words and figures following, to wit: ‘Paid July 28, 1877, Trumbull National Bank, Warren, Ohio,’ with the intent, then and there, and thereby to defraud: whereas, in truth and. in fact, the said county .of'Trumbull was not indebted to said H. C. White in the sum of-two hundred dollars, or iu any sum whatever; that he, the said H. C. White, presented no claim or account against the said county of Trumbull, nor had he, the said II. C. White, any claim whatever against the said county of Trumbull; that the said George B. Kennedy was not instructed, requested, or authorized to draw, make out or present’ for payment, or to. receive payment by check or otherwise, of said false and fraudulent order.aforesaid; and the said George B. Kennedy, at the time he so falsely pretended as. aforesaid, well knew the said false pretenses to .be. false.”
    A reversal is sought on" the ground that no crime is charged in the indictment.
    The crimes act of 1877 (74 Ohio L. 240), contains the following provisions:
    Chapter 6, section 13. “ A . . . county auditor, . . . who, by color of, or in the execution of, his office, willfully or corruptly injures, defrauds, or oppresses any person, or attempts to defraud, injure, or oppress any person, shall be fined not more than two hundred dollars.”
    Chapter 8, section 39. “A county auditor who . . . willfully fails to perform any . -. . duty required of him by law, shall be fined in any sum not more than two thousand dollars, and. shall forfeit his office.”
    Chapter 11, section 6. “Whoever, knowing the same to be false or fraudulent, makes out or presents for payment, or certifies as correct, to the . . . auditor ... of any county, . .' . any claim, bill, note, bond, account, payroll, or other evidence of indebtedness, false or fraudulent, in whole or in part, for the purpose of procuring the allowance of the same, or an order for the payment thereof out of the treasury of said . . . county; . . . and whoever, knowing the same to be false and fraudulent, receives payment of any suck claim, account, bill, note, bond, payroll, voucher, or other evidence of indebtedness, from the treasurer of . . . any county, . . . shall, if such evidence of indebtedness so made out and presented, or certiffed, or of which, payment is received, is false or fraudulent to the amount of thirty-five dollars or more, be imprisoned in the penitentiary not more than ten years nor less than one year, or, if false or fraudulent to an amount less than that sum, be fined not more than two hundred, dollars, or imprisoned not more than thirty days, or both.”
    Chapter 11, section 7. “ Whoever, by any false pretenses, with intent to defraud, obtains from any person any thing ■of value, or procures the signature of any person, as maker, indorser, or guarrantor thereof, to any bill, bond, receipt, promissory note, draft, check, or any other evidence of indebtedness, shall, if the value of the property, or. instrument procured to be signed, is thirty-five dollars or more, be imprisoned in the penitentiary not more than three years nor less than one year, or, if the value is less than that sum,.be fined not more than one hundred nor less than ten dollars, or imprisoned not more than sixty nor less than ten days, or both.”
    ' Hutchins § 1'ultle, for plaintiff in error.. •
    . Isaiah Pillars, attorney-general, for the state.
   Okey, J.

Where no objection is taken by motion ta •quash or by demurrer, the court on error, based on the insufficiency of the indictment, will only inquire whether the facts averred constitute an offense punishable by statute.

Chapter 8, section 39, is evidently a substitute for the first clause of the 20th section of the act of 1870 (67 Ohio B. 106), and hence the clause is repealed thereby. Lehman v. McBride, 15 Ohio St. 573. The remaining part of section 20 falls, in the revision of the laws, under another title,, which could not be submitted for re-enactment at tbp session, ■of 1877, and that is the reason there was no express repeal ■of the section.

. Section 12, of the act of 1831 (S. & C.. 426-429), which, provided for the punishment of obtaining goods by falso pretenses, continued to be a part of that act, though amended, and re-enacted in 1873 (70 Ohio L. 39), and 1877 (74 Ohio L. 41.) While the latter re-enactment has not been in terms repealed, the repeal of the original act by the crimes act (74 Ohio L. 297, par. 22), and the enlargement and re-enactment,, in the crimes act (74 Ohio L. 289), of the provisions of the original section 12, operated as such repeal. State v. Bell, ante, 194.

The statement that the construction of the above men- , tioned sections (20 'and 12) is involved in the inquiry is, therefore, erroneous. The penal provisions which we suppose to be involved in the inquiry, are set forth in the statement of the case, and we will now consider whether the indictment can be maintained under either of them.

1. No offense is charged under chapter 6, section 13. The misdemeanor described in that provision is oppression in office, punishable by fine only.

■2. No offense is charged under chapter 8, section 39. The misdemeanor made punishable' in that provision by fine is non-feasance, and not malfeasance, as charged in this-indictment.

3. No offense is charged under chapter 11, section 6. The crime of receiving “ payment of any such claim,” has-no reference to false orders issued by the auditor, but to-the fraudulent instruments mentioned in the preceding part of the section.

4. No offense is charged under the first clause of chapter-11, section 7. In a prosecution under that clause against one who “ by false pretense, with intent to defraud, obtains from any person anything of value,” it is essential to-the validity of the indictment that it contain an averment,, in terms, that the accused did obtain from another, a thing-of value, as, for instance, a check; or, in place of the word obtain, a word or words of equivalent or larger meaning-may be employed, but the word contained in the statute must be clearly embraced in any such substitute. Poage v. The State, 3 Ohio St. 229; 1 Bishop’s Crim. Pro. § 612, note.

The charge that, by reason of the false pretense, “ House-paid said order by delivering to said George B. Kennedy a. check for two hundred dollars,” is argumentative; but giving to it a construction which is perhaps permissible, it. amounts to an averment of a delivery of the check by House to Kennedy, by reason of the false pretense. House is made the actor. He delivers the check to Kennedy in consequence, directly or indirectly, of something said by Kennedy, who may not have desired a check, or intended to get possession of one. The averment, though entirely proper, (2 Whart. Cr. L. § 2162), is in no sense the equivalent of, or a substitute for, the averment that Kennedy did obtain the check by false pretense. The crime defined in the statute is not that of making a false pretense, but the provision is directed against one who obtains something, or, in other words, one who gets possession of something purposely, by effort, that is, by false pretense. Schleisinger v. The State, 11 Ohio St. 669; Norris v. The State, 25 Ohio St. 217 ; 2 Whart Cr. L. § 2162. Besides, what is even more-obvious, the offense defined by the statute is obtaining the thing mentioned, by means of the false pretense, “ with intent to defraud.” Reading this as an indictment under the-first clause of the section, we find the allegation to be that House paid Kennedy an order by delivering to him a check, with intent to defraud. This, of course, involves an absurdity, and shows conclusively, what abundantly appears-from the whole indictment, that the pleader did not attempt to charge the offense of obtaining the cheek by false pretense, but the offense of procuring a signature, defined in the second clause of the section.

5. Nor is any offense charged under the second clause of the section. The offense under that clause is directed, against one who, “ wnth intent to defraud, . . . procured the signature of any person, as maker, indorser or guarantor thereof, to any bill, bond, receipt, promissory-note, draft, check, or any other evidence of indebtedness.”' The false pretense was that the order was issued on a valid claim, and that he (Kennedy) was authorized to receive payment thereof. The averment is that by reason of the false pretense, House paid the order to Kennedy. What Kennedy applied to House for was payment of the order. The representation he made was that he had authority to receive such payment. Neither the application to House nor the representations to him had relation to a check; much less to a signature to a check. There is, therefore, nothing set forth upon which to ground the averment that by the false pretenses, Kennedy did procure of House his ■signature to the check, with intent to defraud. The signature to the check was an incident of, and not the end in fact sought, or to which the pretenses related, and hence the offense charged is not the one inhibited by the statute.

The conclusion to which we are led is that the indictment charges no offense. If the indictment had contained the averment that Kennedy, by means of the false pretenses, obtained the check from House, with intent to defraud, it would have been sufficient; but it contains no •such averment.

Judgment reversed.

McIlvaine. J., dissented, on the ground that the offense •of obtaining the check by false pretenses is sufficiently •charged.


text:
    Sheldon v. McKnight, Agent of The State of Missouri.
    1. There is no authority for taking a bill of exceptions, setting out all the testimony in a proceeding before a judge, under the act of March 23, 1875 (72'Ohio L. 79).
    2. An order made by such judge is not reviewable on error.
    Motion for leave to file petition in error to reverse the •order of the Hon. E. E. Bingham, a judge of the Court of ■Common Pleas of Eranklin county.
    On a requisition of the governor of Missouri, the governor of Ohio issued his warrant to the sheriff of Eranklin ■county, Ohio, commanding him to arrest Stephen Sheldon, the plaintiff in error, and take him before any judge of the-court of common pleas of the district, etc. Sheldon was-accordingly arrested, and taken before the Hon. E. E. Bingham, a judge of the Court of Common Pleas of Franklin county (in which the arrest was made), who, having examined the charge, proceedings, proof offered, etc., adjudged the same sufficient, and ordered the sheriff to deliver up the said Sheldon, as a fugitive from justice, to' James McKnight, the duly authorized agent of the State-of Missouri, to be. returned to the last-named state, to-answer a chai’ge of embezzlement, for which he is there indicted. On the motion of the plaintiff in error, the execution of the order was suspended for the time being,, to enable him to make this application.
    A bill of exceptions was taken, setting out copies of all the documentary evidence accompanying the requisition,, ' the warrant, and all the oral testimony offered on the examination.
    The object of this proceeding is to obtain a reversal of Judge Bingham’s order.

      Charles JE. Burr, Jr., and A. L. Ralston, for Sheldon.

      I). K. Watson for McKnight:
    The proceedings before Judge E. F. Bingham were had under the act of March 23, 1875 (72 Ohio L. 79), and his action thereunder is not the subject of review by this court. Appellate jurisdiction is only conferred by statute, and there is nothing in this act giving this court such jurisdiction.
    Section 513 of the code does not reach this case, for the reason that a final order made or judgment rendered by a common pleas or superior court is one thing, while a finding of a judge, upon a question, by virtue of a special statute, is quite another thing. Matter left to the sound discretion of the court or judge will not be reviewed. 1 Ohio St. 286; 16 Ohio St. 374; 3 Ohio St. 494 ; 9 Ohio-St. 93. ,
   Gilmore, J.

The order sought to be reversed was made under authority and in pursuance of “ an act to regulate “the practice of the delivery of fugitives from justice, when -demanded by another state or territory” (72 Ohio L. 79), which requires the fugitive, when arrested, to be taken before “ any judge of the supreme court, or any judge of the court of common pleas of this state, in whose district or jurisdiction such person so charged may be found, to be •examined on such charge;” and if, on such examination, the proof is adjudged sufficient, such judge is required to •commit, etc.

The questions sought to be made arise on the bill of exceptions, and it would be a sufficient gi’ound for oven’uliDg the motion, to say that the bill of exceptions was taken without authority of law, and, therefore, forms no part of the record before us.

A more radical question, however, arises: Is the order «ought to be reversed one that may be reviewed on petition in error in the supreme court?

The jurisdiction of this court, in proceedings in error, is prescribed by section four, title four, chapter one of the •civil code. 75 Ohio Laws, 804.

The section reads as follows : “A judgment rendered, or final order made by any court, board, or tribunal mentioned 'in the last two sections, may be l’eversed, vacated, or modified by the supreme court for errors appearing on the rec•ord; but the petition in error, in such case, except as to a judgment or final oi’der of the district court, can be filed ■only by leave of the supi’eme court or a judge thereof.”

“ The last two sections ” referred to are as follows:

“ Sec. 2. A judgment rendered, or a final order made, by .a probate coui’t, justice of the peace, or any other tribunal, board, or officer exercising judicial functions, and inferior :iu jurisdiction to the court of common pleas, may be reversed, vacated or modified by the court of common pleas.”

“ Sec. 3. A judgment rendered, or final order made by •the court of common pleas, or any superior coui’t, may be reversed, vacated, or modified by the district court for errors appearing on the record.”

Most clearly the order sought to be reversed was not made by a district court, or a court of common pleas, or any superior court, or by a probate court, a justice of the peace, or any other tribunal or board, and, in our opinion, it was not made by an “ officer exercising judicial functions, and inferior in jurisdiction to the court of common pleas,” within the meaning of said section two.

Motion overruled.