author: Bradbury, C. J.

text:
    Vincent v. Taylor.

      Recovery of losses in gaming — Section 4271, Revised Statutes — Action by wife to recover money lost by husband in gambling — Nature of averments and proof — Not necessary to describe particular games — Playing for “ chips ” bought same as playing for money.

    1. In an action brought under section 4271, Revised Statutes, by a wife dependent on her husband for support, it is not necessary to aver or prove that the husband lost money or other thing of value in the gambling schemes in which he participated. It is sufficient in that respect that he expend “money or thing of value” on account of such scheme, and that the defendant in the action receive the same.
    2. Where in such action the petition discloses that the husband of the plaintiS on numerous occasions during a period extending over a number of months had gambled at a place kept by defendant, it is sufficient if the petition states generally that the husband expended money on schemes of gambling conducted at such place, and it is not necessary to describe the particular games or schemes at which he played.
    3. Where persons who engage in playing at gambling games or schemes in a room kept for gambling, instead of using money to bet thereat, employ “ chips ” or “ counters ” that represent money, and which are furnished by the keeper of the room at an agreed valuation for that purpose, the players buying them when they enter on the game, and the keeper of the room redeeming or buying back, such of them as a player may have when he quits playing, the player in buying and paying for them should be deemed to have expended, and the seller to have received the money paid ior the chips, etc., on account of a scheme of gambling.
    (Decided May 9, 1899.)
    Error' to th§ Circuit Court of Fayette county.
    The defendant in error brought this action in the court of common pleas of Fayette county against the plaintiff in error and others to recover under section 4271, Revised Statutes, money expended by her husband on account of a ‘ ‘scheme of gambling,” together with the exemplary damages allowed by that section. She recovered in the court of common pleas a judgment against all of the defendants. The cause was taken to the circuit court and there reversed as to all of the defendants except the ' plaintiff in error, and affirmed as against him. Whereupon he brought the cause to this court for review. The facts necessary to an understanding of the decision are stated in the opinion.

      Iiarper <& Harper, for plaintiff in error.

      Mills Gardner, for defendant in error.
   Bradbury, C. J.

The cause was tried to a jury and a verdict returned for the defendant in error against plaintiff in error and three others, James Casey, Michael Casey and Barney Casey. A motion was made for a new trial by all the defendants in the court of common pleas which was overruled and judgment rendered on the verdict. Thereupon a bill of exceptions was taken which embodied all the evidence and the charge of the court. The cause was then taken to the circuit court on error and the judgment reversed as to the three Casey’s on the ground that the evidence was not sufficient to sustain the verdict and judgment against them, but was affirmed against the plaintiff in error, Charles Vincent, who brought the cause to this court to obtain a reversal of the judgment as to him. The bill of exceptions, while it shows that some controversy was had at the trial over what occurred on a number of occasions in respect of the losses that the husband of defendant in error suffered during his visits at the place where the gambling complained of was conducted, yet no substantial controversy was had over any fact material to her recovery, provided her cause of action falls within the provisions of section 4271, Revised Statutes, and whether it thus falls or not is the only question in the case entitled to serious consideration.

The petition as amended reads as follows:

The plaintiff says, that on or about November 23, A. D. 1884, she was married to one George W. Taylor, with whom she has ever since lived, and upon whom she was wholly dependent for support and maintenance.

That the said defendants from the first day of December, A. D. 1887, continuously to and including the twelfth day of August A. D. 1888, were the keepers of a certain place in the town of Washington, Payette county, ■ Ohio, used by them for gambling purposes, and in which place during the days and times aforesaid they conducted and allowed various schemes of gambling in which schemes of gambling the said defendants had an interest.

That during the days and times aforesaid, the said George W. Taylor on said schemes of. gambling, in said place so kept by defendants and in which schemes of gambling the said defendants were interested, expended and paid the sum of two hundred dollars, which sum was there by said G. W. Taylor paid to and received by said defendants. For which sum of two hundred dollars, together with five hundred dollars exemplary damages as provided for by law, the said defendants are indebted to this plaintiff.

Wherefore plaintiff prays for a judgment against said defendants for the sum of seven hundred dollars, the amount so expended and her damages aforesaid.

There are two sections of our statutes under which money lost at gambling, or expended on account of gambling may be recovered — sections 4270 and 4271. The former section is in the following terms:

“If any person, by playing at any game, or by means of any bet or wager, loses to any other person any sum of money or other thing of value, and pays or delivers the same, or any part thereof, to the winner, the person who so loses and pays, or delivers may, at any time within six months next after such loss and payment or delivery, sue for and recover the money or thing of value so lost and paid or delivered, or any part thereof, from the winner thereof, with costs of suit, by civil action founded on this chapter, before any court of competent jurisdiction.” The latter section reads as follows: “A person who expends any money or thing of value, or incurs any obhgation for the purchase of or to procure any lottery or policy ticket, hazard, or chance, or any interest therein, in or on account of any lottery, policy, or scheme of chance, or in or on account of any game of faro, pool or combination, keno, or scheme of gambling, and any person dependent in any degree for support upon, or entitled to the earnings of such person, and any citizen for the use of the person so interested, may sue for and recover, from the person receiving such money, thing of value or obligation, the amount thereof, together with exemplary damages, which in no case shall be less than fifty nor more than five hundred dollars, and may join as defendants in such suit all persons having any interest, direct or contingent, in such lottery, policy, or scheme of .chance, or the possible profits thereof, as backers, venders, owners, or otherwise.”

The petition does not state that the husband of the defendant in error played any game or made any bet or wager with the plaintiff in error and the Casey’s or either of them. The operation of section 4270, Revised Statutes, is confined to instances where, by playing some game or by some bet or wager, one person has won of another, money or other thing of value, and the action it authorizes is to be directed against the winner. Further yet, a wife is not by the terms of that section given a right of action at all. Her right to maintain an action for money, etc., lost in the manner mentioned in that section depends upon the provisions of a succeeding . section 4273, Revised Statutes, and did not accrue to her until the conditions prescribed by the latter section had happened. The plaintiff below did not attempt in her petition to show that such conditions had occurred. It seems to us, therefore, that the petition did not state a cause of action that fell within the provisions of section 4270, Revised Statutes.

Section 4271, Revised Statutes, was enacted long after section 4270 had been in force, and it seems clear that its chief object was to provide a remedy for other instances of money lost at gaming than was afforded by the earlier section, by reaching a class of persons who, although they did not participate in a game played for money, etc., nor were parties to a bet or wager, nevertheless, promote the evils of gaming by affording the means by which schemes or games of chance for money could be indulged in or played by others. The averments of the petition manifest an intention on the part of Mrs. Taylor to invoke the provisions of the later section (4271) of the statute, and to seek a remedy on account of money lost by her husband at play, not against those who may have won it, but against those who promoted the game at which he played. She avers that the defendants below kept the house for gambling purposes and conducted therein various schemes of gambling and that they received from her husband the sum of $200 which he expended and paid to them on such schemes. The language of section 4271 in as far as it relates to the matter in hand is as follows: “A person who expends any money or thing of value” * * * “in or on account” * * * “of any scheme of gambling, and any person, dependent in any degree for support upon” * * * “the earnings of such person” etc. * * * “may sue,” etc. * * * “the person receiving such money,” etc.

The averments of the petition we think brought the transaction complained of within both the letter and the spirit of section 4271, Revised Statutes before recited. The petition was, therefore, sufficient to show a cause of action in her and against the defendants below.

A motion was made to require the petition to be made more definite and certain (among other things) in that it state “the nature and kind or kinds of schemes of gambling in which he (the husband) expended the amount of money.”

The court of common pleas overruled the motion.

This was not error. The defendants were sufficiently apprised of the nature of the evidence that would be introduced to support the petition. The husband may have played at one scheme one day and another scheme another day, or he may have played at different schemes the same. day. The period named in the petition during which he played extended over many months, and the difficulty the wife would encounter specifying the different g-ames or schemes in operation from time to time is apparent. If gambling schemes were conducted by the defendants below on premises occupied by them, of course the kind and character of such games were better known to them than to the wife, and we think under the circumstances an averment in the terms employed in the petition should be regarded as sufficiently definite that the defendant could not have been injured by its generality.

The remaining question and really the only one about which much difference of opinion could arise relates to the sufficiency of the evidence to bring the gambling transaction in question within the scope of section 4271, Revised Statutes. The evidence must show that the husband of the plaintiff below expended and the plaintiff in error received money on account of “a scheme of gambling,” or no recovery could be bad under this section.

The greater part of the evidence produced at the trial was introduced either to show that gambling was being conducted in the room by the plaintiff in error, Vincent, or the sums of money lost there by the husband of Mrs. Taylor.

That gambling was carried on in the room in question and that it was occupied by the plaintiff in error, Vincent, was not contested at the trial, and upon the evidence it seems quite clear that Mrs. Taylor’s husband played there frequently, and although sometimes winning, more often lost; but the aggregate loss he suffered was left uncertain. The question whether he won or lost is not, according to the view we have taken of section 4271 at all material, for as we construe that section it is not necessary to a recovery thereunder that money, etc., should have been lost at gambling. Take, for instance, the case of the purchase of a lottery ticket, it is not essential to recover against the party who sold and received the money for the ticket, that the ticket should have failed to draw a prize, and therefore the purchaser lost on account of the transaction. It is enough if the person to be charged received money or something of value in exchange for the ticket, and the recovery in such ease should be for the amount he had expended for the ticket together with the penalty provided in the statute. The same principle applies in the case before us. The material inquiry in this connection is, did the plaintiff in error, Vincent, receive money which Mrs. Taylor’s husband had expended on account of a scheme of gambling? The evidence is sufficient to show that during the period covered by the complaint of Mrs. Taylor that gambling in the forms of faro and poker was conducted in the room in question. The evidence also shows that usually at least money itself was not used for making bets on the games, but instead that “chips” or “counters” were used for that purpose. These “chips” or “counters” were flat circular pieces like large smooth buttons without eyes, and made of ivory or some substance resembling ivory. They were of different colors, red, white and blue. They had but slight instrinsic value, not much greater then that of the pasteboard which is used for printing lottery tickets. They have, however, a representative or conventional value, that the players in the games agree shall be placed upon them which was usually fifty cents for blue ones, twenty-five cents for red ones, and ten cents for white ones. The evidence shows that the players, Mrs. Taylor’s husband among them, for the purpose of engaging in gambling games or schemes conducted in the room in question, bought these chips of the plaintiff in error pajdng him for them the amount they would represent in the game. Whenever one of the players quit the game the plaintiff in error would redeem or buy back at the same price he had sold them, whatever chips the player then had. If the quitting player had won he had more chips and of course received more money than he had paid out in the beginning. If he had lost his chips were fewer and he would receive less than the had paid out. It is evident in his course of dealing with the players that plaintiff in error neither won nor lost. He simply furnished to the players the means to conveniently play with each other, but did not participate in the game himself. True the evidence discloses that he occasionally played, and if he did play, like other players might win or lose according as his skill or luck compared with that of other players.

However we are not dealing with him as a player, but with him as one who furnished the means of playing. These “chips” were sold in “stacks,” and according to the evidence of Mrs.Taylor’s husband, twenty of them constituted a stack generally valued at two dollars. Whenever the plaintiff in error sold a “stack” of chips or any other number to the husband of the plaintiff below to be used by the latter in one of the gambling schemes in progress in the room in question, the purchaser should be deemed to have expended the money paid for those chips, and the plaintiff in error should be regarded as having received it on account of a scheme of gambling within the meaning of section 4271, Revised Statutes. The evidence was such that the jury might have found that the loss suffered by the defendant in error at the room in question during the period covered by the petition would aggregate several hundred dollars, but the proportion of this sum that was expended in purchasing chips, etc., was left in uncertainty. If, however, any part of it was thus expended, that would be sufficient to bring the transaction as to such part within section 4271, Revised Statutes. An inspection of the evidence discloses that it tends to show that at least a portion of the money was thus expended, which is sufficient to entitle Mrs. Taylor to relief under that section (4271), leaving the amount to be determined by the jury.

Judgment affirmed.


source: Caselaw Access Project

author: Shauck, J. Ml NS hall, J.,

license: Public Domain

text:
    Ex Parte Malcom Jennings.

      Witness before notary public — May refuse to testify, when — Relevancy of testimony — Power of officer to punish for contempt— Habeas corpus.

      A witness whose deposition is being taken before an officer may-refuse to testify to facts not relevant to the issues in the case in which the deposition is to be read, if the disclosure of such irrelevant facts would be injurious to the business of the witness ; and, if imprisoned by the officer for such refusal, he may be discharged on habeas corpus.

    (Decided May 9, 1899.)
    Habeas Corpus.
    The petitioner, Malcom Jennings, by his petition in hateas corpus seeks to be discharged from a commitment made by a notary public before whom his deposition was being taken in an action in quo warranto pending in this court, being the State of Ohio ex rel F. S. Monnett, Attorney-General v. The Buckeye Pipe Line Company. The object of that action, briefly stated, is to oust the pipe line company, an Ohio corporation, from its corporate franchises and privileges because it has offended against the law of its creation and against the act of April 19, 1898, entitled “An act to define trusts and provide for criminal penalties and civil damages and punishment of corporations, persons, firms and associations or persons connected with them, and to promote free competition in commerce and all classes of business in the state” (93 O. L., 143), by entering into trust agreements with the Standard Oil Company, of Ohio, and numerous other corporations for the purpose of limiting the production, transportation and refining of petroleum, and thus to exact extortionate prices for its products to the oppression of the public. In the course of his deposition the petitioner had testified that he is the proprietor of “The Jennings News Bureau and Advertising Agency” started about December 1, 1898; that the agency had contracts with newspapers in Ohio providing that they should print and publish advertisements and “reading notices” furnished by it, the reading notices not to appear as advertisements; that he had received from Mr. Apthorp, a representative of the Standard Oil Company matter to be published under such contracts; that he had furnished nothing, and was instructed to furnish nothing, bearing upon suits pending in the state; that while the witness understood that Mr. Apthorp represented several other corporations, he had furnished him no matter except for the Standard Oil Company. The witness was then asked to furnish a list of the papers circulating in Ohio with which he had such contracts. This the witness refused to do upon the ground that the information sought was not pertinent to the issues in the case in which the deposition was being taken and that the disclosure would be detrimental to the business of the witness. Thereupon the Attorney-General made the following request:
    “Attorney-General: Now, Mr. Notary, we ask you to enforce the order and for you to ask him to do it. We propose to show by the article and matter furnished coming from this witness and Mr. Apthorp and his agents that they have reflected upon the proceedings in this case on the relation of the state of Ohio against these constituent companies, and were designed to prejudice the court, and are in contempt of the Supreme Court of the state.”

      Thereupon, the witness persisting in his refusal to answer, the notary issued his writ to a constable of the township commanding him to arrest the petitioner and commit him to the jail of the county and there to remain until he shall submit to testify.

      Virgil P. Kline and Lawrence T. Neal, for petitioner.
    It is, perfectly obvious, from an examination of the testimony itself and a reference • to bhe pleadings in the case, as well as from the avowed purposes for which the evidence is sought, that it can have no bearing whatever upon any of the issues in the case.
    No contracts for advertising were made by Mr. Jennings or his agency, until weeks after the suit against the Buckeye Pipe Line Company had been commenced.
    The question arises, then, whether in an action between two citizens pending in any court of record of the state, the attorney for either of the parties may select a notary, serve notice to take depositions, cause subpoenas to be served upon citizens, and compel them to be sworn and submit to an examination on irrelevant, extraneous and private matters, or go to jail for refusal, and whether, on such refusal and a commitment therefor, there is a remedy by habeas corpus in the state of Ohio.
    It is easy to see how the most flagrant abuses, disgraceful to the administration of justice, may be inflicted upon citizens; how private affairs may be made public at the instance of malicious and unscrupulous' attorneys, until courts, instead of being the protectors of the rights of persons and property, may become destroyers of both, unless there is some check to such proceedings.'
    We think there is a remedy by habeas corpus. Church on Habeas Corpus, sections 319, 331, 332, 323; section 5252, Revised Statutes of Ohio.
    If the case of the State of Ohio ex rel. F. S. Monnett, Attorney-General v. The Buckeye Pipe Line Company, was before this court on oral hearing, and the questions presented here were asked of a witness, this court would be bound to hold that he need not answer, as the same were wholly irrelevant and incompetent, and that it involved a needless disclosure of private business, from which it was the duty of the court to protect him. If this be so, he cannot lawfully be ordered by an inferior magistrate or officer to answer such question.
    It is no contempt on the part of a witness to refuse to answer irrelevant, immaterial or inadmissible questions and if, for the refusal to answer such questions, he is committed by the notary, he will be released on habeas corpus.

    The courts will review upon habeas corpus an order of commitment made by a notary, and will, in any case where the courts would not compel an answer to a question, discharge the witness. In re Beardsley, 37 Kan., 666; In re Davis, 38 Kan., 408; In re Cubberly, 39 Kan., 291.
    If it appears that the court rendering the judgment of contempt was without authority for rendering it, or if the acts alleged as contempt do not 'cpnstitute contempt, or if the court exceeded its authority, the person may be discharged by another court on habeas corpus. Ex parte Perkins, 29 Federal Reporter, 900; Ex parte Grace, 12 Iowa, 208; Ex parte Hardy, 68 Alabama, 303.

      Is not a court without authority and therefore without jurisdiction to require a witness to answer a manifestly incompetent and irrelevant question ? As to questions irrelevant and impertinent to the issue, the witness is .privileged, and the refusal to answer is not contempt. Ex parte Zeehandelaar, 71 California, 238; In re McKnight, 27 Pacific Reporter, 336.
    The notary public, in committing a witness for contempt, exercises judicial power. Dogge v. State, 21 Nebraska, 278; Holman v. Mayor, 34 Texas, 668; Ex parte Krieger, 7 Missouri Appeal; 367; Ex parte Woodworth, Hamilton Common Pleas, 1893, 4 Ohio Legal News, 19; s. c. 29 Cincinnati Law Bulletin, 315; In re Ayers, 123 U. S., 443; Ex parte Fish, 113 U. S., 713; Bradley v. Veazie, 47 Maine, 85, relied upon as an authority for the decision of this court in De Camp v. Archibald, 50 Ohio St., 618, does not sustain it. Ex parte Goodin, 67 Mo., 637.
    The principle declared by this court, in the case of De Camp v. Archibald, that a witness who for any reason refuses to answer a question, which does not involve a question of personal privilege on his part, may be committed by the notary, as a contumacious witness, is not sanctioned by the weight of authority, and is against a wise public policy.
    There the witness declined to answer on the ground that the evidence was incompetent, and this court held that the notary had no discretion but to enforce an answer to the extent of committing him for his refusal.
    In conclusion, we ask the court to remember that, “the general spirit and genius of our laws and the spirit of liberty prevailing in our courts have tended to enlarge the jurisdiction of the courts in habeas corpus proceedings, so as to cover every case of illegal confinement of a person or his illegal restraint.” Brown on Jurisdiction, section 100, page 266.

      F. S. Monnett, Attorney-General; E. B. Einlcead and Smith W. Bennett, for relator.
    In answer to a suggestion made by a member of this court, at the time of the argument for the granting of the writ herein, we respectfully answer that we think the rules would permit us to take the deposition of a witness, residing in Franklin county, the same as if he resided in some foreign county. For the purpose of the consideration of this question, we waive the fact that the witness did not claim that as a reason for refusal to answer ¿.the questions disclosed by the record, but the refusal was placed on entirely different grounds, and also waive the more serious proposition that such a question could not be insisted upon in an application for a writ of habeas corpus.

    The statutes of Ohio pertinent to the questions are as follows: Sections 5261, 5266, 5265, 5281.
    It will thus be seen that by section 5266 there is no restriction placed upon the right of either party to take depositions. Any party to an action, at any time .after service upon the defendant, may take the deposition of any witness. Power is given to the officer by section 5248, and succeeding sections, to compel the attendance of witnesses. There is thus no limitation or restriction upon the right to take; but the right to use a deposition, and to have it read as evidence is controlled by sections 5265 and 5281. A party is not required to await any infirmity befalling the witness before he can proceed to take his deposition, he can take it at any time after service on the defendant, and if the infirmity befalls the witness he can then use the deposition. Section 5281.
    We understand that here, as is provided in section 5265, the oral examination of the witness is not required. If it is we would be pleased to produce the evidence ore tenus upon this court.
    We cite the following authorities: In the matter of the application of Leopold Nushulin, 1 Clev. Law Rep., 249; s. c. 3 Cin. L. Bull., 739; s. c. 4 Dec. Re., 299; Shaw v. Edison Inst. Co. et al., 17 Cin. L. Bull., 274; 9 Dec. Re., 809.
    It will be observed that this witness is not a party, and hence is not brought within the rule laid down in 14 C. C. Rep., 517, (7 Circ. Dec., 603), and the lower courts in this state have unif ormally held that the testimony of a witness may be taken at any time notwithstanding the fact that' the witness is not sick nor likely to depart, etc.
    No question of jurisdiction can be raised against the officer in this action who committed the applicant for contempt in refusal to answer, for although it may have been seriously questioned in the past, yet since the decision of this court in DeCamp v. Archibold, 50 Ohio St., 618, there can no longer be any question but’that a notary public has full power to conímit a witness who is contumacious, for contempt in refusing to obey the’ order of the notary.
    The question of a notary public being empowered to make such an order and to commit for refusal to obey the order had long been a mooted question and was discussed in the case of Burnside v. Dewstoe, 15 Bulletin, 197 (9 Dec. Re., 589), and in the case of State ex rel. v. Cost, 22 Bulletin, 250, (10 Dec. Re., 619), and in many other cases not so well considered but of inferior courts.
    ’ The question of jurisdiction in the officer being beyond dispute, it becomes necessary to inquire when, how and under what circumstances the power to commit should be exercised by such officer. Relying upon the well established rule that an officer, such as a notary public, taking depositions has no power at all vested in him, either by a rulé of practice or by an express statute, to pass upon the competency, materiality or relevancy of testimony, but that his office in the premises is merely to reduce to writing the deposition, either by himself or some disinterested person, cause the same to be subscribed by the witness, and then to be sealed up and transmitted to the clerk of the court where the action or proceeding is pending. His powers in this regard are purely statutory. He does nob possess any powers of a referee or even of a master commissioner, as held both by this court and the federal courts. It necessarily follows from the decision in DeCamp v. Archibald that exercising no judicial powers he cannot pass upon the relevancy,¿materiality or competency of' the testimony, it must all be reduced to writing, the objections noted and these objections brought to thé attention of the court upon the trial of the case, so that whether the question is competent, relevant or material must be alone determined by the court before whom the deposition will be used.
    This is further ma^e to appear by sections 5284, 5285, 5286 and 5287 of the Revised Statutes of Ohio, wherein it is required that exceptions to depositions shall be in writing, shall specify the grounds of objections, and shall be filed with the papers in the ease, and that unless the exceptions are filed before the commencement of the trial, no exceptions will be considered, other than for incompetency, or irrelevancy, and that the court shall on motion of either party hear and decide the questions arising on the exceptions to the depositions before the commencement of the trial, and in the event that no exceptions are saved by the parties to the rulings of the court upon questions arising in the deposition the same are waived.
    The court will readily see that an answer to a question may not at the opening of the case be found to be material or competent, but when the trial has progressed and the evidence introduced, portion by portion, that which at first was thought to be incompetent will at last be found to be competent, and for a court to strike out as improper that which afterwards will be shown to be proper, would be unfair and destructive of the rights of the party against whom such a rule might be inflicted.
    This brings us to the proposition, what is meant by “questions of privilege” which a witness may lawfully refuse to answer, and were the questions which the applicant in this cause refused to answer, such questions as would be called “questions of privilege?”
    Our claim is that there are no privileges which a witness may claim other than those prescribed in the constitution and statutes of the state.
    The constitutional privileges are, that no one shall be compelled to testify against himself in any criminal case, or to give any testimony in any ease which may tend to criminate him or subject him to a forfeiture or penalty.
    The statutory privileges are'the well known ones prescribed by section 5241 of tbe Revised Statutes of the state of Ohio, and reLate to communications between attorney and client, physician and patient, minister and his flock. Outside of these there are absolutely no other privileges that any witness can claim. Ward v. Sharp, 15 Vt., 115.
    We say that this was the well settled rule at common law, and for authority refer to section 452 of Green leaf on Evidence; Cox v. Hill, 3 Ohio, 411; Underhill on Evidence, section 353; Bank v. George, 12 Am. Dec., 487; Taney v. Kemp, 7 Am. Dec., 673.
   Shauck, J.

Authority to punish, as for a contempt, a witness who refuses to answer “when lawfully ordered” is conferred upon notaries public by sections 5252 and 5254 of the Revised Statutes. DeCamp v. Archibald, 50 Ohio St., 618. The denial here is not of the power of the officer, but of the lawfulness of the occasion for its exercise. The taking of testimony by depositions is authorized with much detail in the provisions of our statutes relating to civil procedure. The general provision is that “the testimony of witnesses may be taken” in this mpde. The purpose is to present to the court upon the trial of issues of fact the testimony of witnesses unavoidably absent as though they were present, and the power to punish those who refuse to appear or to testify is conferred to effectuate that purpose. The language of the section conferring authority upon the officer to punish a witness for refusing to answer “when lawfully ordered” implies that punishment cannot be imposed for every refusal.

It is familiar that an objection to the competency of the evidence to be elicited, when interposed by a party to the action in which the deposition is taken, cannot be either sustained or overruled by the officer. In such case the question of competency is for the court. But it seems quite consistent with the purpose for which depositions are taken that a witness may refuse to make disclosures which would operate to his personal prejudice without aiding the court in determining the rights of the parties, by reflecting either upon the issues in the case or upon the credibility of the witness. Accordingly the settled law upon the subject is as stated in Church on Habeas Corpus, section 319: “The law has not invested such officers (notaries public) with arbitrary and omnipotent power to compel a witness to answer all questions however incompetent, irrelevant, immaterial or inadmissible. A refusal to answer such questions is not necessarily a contempt. To have power to commit for contempt, the notary must exercise his functions substantially in the manner and under the circumstances prescribed and contemplated by law. It has, therefore, been held that a witness will be discharged on habeas corpus where he has been committed for contempt by a notary public for failing or refusing to produce papers and testimony that are incompetent and inadmissible. ” Proffatt on Notaries, section 31; In re Beardsley, 37 Kas., 666; Ex parte Krieger, 7 Mo. App., p. 637.

The conclusions stated must be sound, unless the officer, taking a deposition is released from limitations which the law imposes upon the authority of the judge before whom it is to be read, since a witness examined in court is not guilty of contempt in refusing to answer an incompetent question. Ex parte Zeehandelaar, 71 Cal., 238; People ex rel. v. Kelly, 24 N. Y., 74. In DeCamp v. Archibald, so confidently relied upon to justify this imprisonment, it was clearly pointed out in the opinion that the question which the witness refused to answer was competent. Indeed it does not seem to have been finally determined in any case that the personal liberty of the citizen is of so little importance that it should yield to a desire to gather food for idle gossip.

Are the facts which the witness refused to furnish relevant to the issues in the ease in which the deposition is to be read? Is there reason to suppose that our minds so operate that, in determining whether the pipe line company has entered into an unlawful compact with other corporations to extort unreasonable prices for the products of petroleum, we can be aided to a conclusion by knowing whether this witness has entered into more or fewer contracts of the character indicated, or by having- the names of the papers which have entered into such contract relations with him? If we should attend to all that might be said in criticism of journalism which publishes advertising matter without distinguishing marks; or of the reprehensible practice of creating public sentiment, by either party, for its supposed influence in the judicial determination of causes, we should be no nearer to a conclusion upon the issue of fact. That can be reached only by a consideration of evidence tending to establish or refute the allegations of the state.

With respect to the suggestion of the attorney general, that the evidence would tend to show that there has been a contempt of this court, it seems to be sufficient to say that the court should, ana will, take the responsibility of instituting such inquiries as it may deem necessary to the preser-' vation of its dignity and the orderly character of its proceedings. There can be no issue of that character until it is ordered by the court.

We do not suppose that any interest which the witness may have in concealing the facts which the question propounded was designed to elicit would excuse him from answering, if the facts were relevant to the issues in the case on trial; nor that the sincerity of his belief that the facts are irrelevant would shield him from imprisonment if the court should be of the opinion that they are relevant. If he refuses to answer upon the ground that the answer is incompetent he does so at his own peril. It seems, however, entirely clear that in this case the opinion of the witness as to the irrelevancy of the question is correct.

Petitioner discharged.

Ml NS hall, J.,

dissents from the proposition of the syllabus, but not from the discharge of the relator.


author: By the Court.

text:
    Silverthorne et al. v. Parsons et al.

      Countv road — Agreement between county commissioners and land owners — To change location of road — New road becomes legal-highway, when — Section 4869 Revised Statutes.

    When the owners of land crossed by a county road enter into an agreement' with the county commissioners pursuant to which they convey to the commissioners other land, with a view to affecting a necessary change in the road, and the road is by order of the commissioners opened on the lands conveyed, and is so used by the public and by the proper authorities, there is a legal change in the location of the highway, notwithstanding the want of statutory proceedings for that purpose : and, under section 4669 of the Revised Statutes, so much of the original road as is rendered unnecessary by the change is vacated.
    (Decided May 9, 1899 )
    Error to the Circuit Court of Cuyahoga county.

      The plaintiffs own the fee in a tract of land lying in the hamlet of Rocky River in Cuyahoga county and the defendants are the trustees and supervisors of said hamlet, the trustees having succeeded with respect to the matters in controversy to the rights and duties of the commissioners of the county. The defendants, asserting- an easement in the public for a street or public way in a strip thirty feet in width across said tract, were about to enter thereon and remove the fences and shade trees, The plaintiffs, denying the existence of such easement, brought suit to enjoin the defendants from opening- the street. Issues of fact having been joined the case was tried on appeal in the circuit court where there was a judgment for the defendants upon the following state of facts as shown by the special findings:
    “This cause came on to be heard on the pleadings, exhibits and evidence, and upon due consideration thereof, and in response to a request made by the plaintiff that the court make a statement showing the conclusions of fact separate from its conclusions of law, the court finds as follows:
    4 ‘First — -That on June 1, 1889, the plaintiffs were, the owners in fee of three acres of land in Rock-port township, in Cuyahoga county, Ohio, bordering' on the westerly side of Rocky river, on which was a public house, kept by them. The title to these premises, the plaintiffs .obtained on July 23, 1884, by warranty deed from Emma A. Hopkins and Mary A. Patchen, who, from the twenty-fifth day of March, 1882, to the twenty-third day of July, 1884, owned and occupied the same.

      44Second — That for many years prior to March 25,1882, The Rockport Plank Road Company, had control of the public highway known as the Detroit or Wooster road, which crossed the Rocky river, lying across the said premises of three acres. Prior to March 25, 1882, the said Roekport Plank Road Company, had built a bridge at this point for crossing the Rocky river, and had graded a roadway for its plank road up the side of the westerly bank in a northerly direction, and extending behind and northerly of the said public house.

      “Third — That on March 25, 1882, The New York, Chicago & St. Louis Ry. Co., a corporation legally organized for railroad purposes, located its main track in such manner that it came close upon said plank road at 'the north of said public house and upon said premises, and made travel so dangerous to be continued by that route that, in consideration that the said plank road would and did quit-claim to said Emma Hopkins and Mary Patehen, whatever interest it had in the said roadway which it was thus considered necessary to abandon, the said railway did cause to be conveyed from said Mary Patehen and Emma Hopkins, to said Roekport Plank Road Company, a roadway in front of said public house of thirty feet wide, and to the southerly side of said public house connecting by proper grade and with necessary slopes, the said plank road on the side of said westerly bank of Rocky river, with the county or Wooster road (so called) on the top of said bank, and to the satisfaction of the county commissioners; which was accordingly done.
    ■ “Fourth — That on October 11, 1882, the said Emma Hopkins and Mary Patehen, at the instance of said Railway Company, and in carrying out the arrangement named in finding “3” above set forth, conveyed to said Roekport Plank Road Company, a part of said three acre tract, described as follows: Being a strip of land thirty feet wide, beginning at a point on the side of the hill near the bridge where the new plank road recently constructed diverges from the old road recently abandoned, and extending along and up to the hill to the point in front of the Patehen house, where said new road intersects with the county road running- north and south, and wrote in the deed of conveyance, as follows: ‘Provided that in case the said party of the second part (the grantee Plank Road Company), its successors or assigns, shall at any time hereafter abandon or cease to maintain and operate its said plank road over the roadway hereinbefore, described, or any part thereof, then and in that case, all rig’hts hereby conveyed in said roadway or in any part thereof so abandoned, shall revert to the public.’ Thus separating said three acre tract into two parcels, one north and the other south of this thirty feet roadway.

      “Fifth — Subsequent to October, 1882, and prior to June 1, 1889, the said Rockport Plank Road Company, in due course of law, as provided by Revised Statutes, sections 3495 to 3500, sold and conveyed to the county commissioners of Cuyahoga county, their said' plank road, including the bridge over the said Rocky river, which at that time was about fifty feet above the bed of said river and about fifty feet below the level of the top of the banks on either side of the river, and said county commissioners having taken possession of said plank road, made it a free road for the public travel, and thereafter prior to June 1, 1889, the said county commissioners, having been legally authorised to build a new bridge for the public travel, which would cross said Rocky river on the level of what was substantially the top of the banks of said river, bargained with plaintiffs for a strip of land to serve as a right of way, on which to erect such new bridge, and by an oral agreement made on or about April 15,1889, by which all three county commissioners agreed with plaintiffs, but did not however reduce it to writing, that the said county commissioners would give to plaintiffs, three hundred and twenty-five ($325) dollars, in money, to be paid to said Emma Hopkins and Mary Patchen, for a release of so muGh of their mortgage' held upon said three acre tract as included the proposed right of way for said new bridge,' and would also give to said plaintiffs the said premises described in paragraph “4” of these findings, as conveyed by said Emma Hopkins and Mary Patchen, to said Rockport Plank Road Company, to be put in the possession of plaintiffs after the said new bridge should be completed and travel opened across said river upon the same; and thereupon in consideration of said agreements, the plaintiffs agreed to, and on June 1, 1889, did convey to said county commissioners, by warranty deed, for the purpose of said new bridge, a strip of land off the southerly side of said three acre tract, being fifty-four and sixty-four one-hundredths in width, and extending from said Wooster road to the said Rocky river, and said county commissioners went immediately into possession of said premises so conveyed, and erected thereon a bridge and roadway which was completed and opened and used for public travel on the fourth day of July, 1890, and from the day last named, has continued to be the sole means of public travel across said river at that point. Immediately after the date last named, the said county commissioners proceeded to sell the material contained in the old plank road bridge, and the same was at once taken and removed by the purchaser.
    “From the point where the roadway of the said Plank Road Company entered upon its said old bridge, the bank was precipitous to the water’s edge of the river, and it was impossible to reach said water’s edge then or hitherto by a team.

      u Sixth — Soon after the opening for- travel of the said new bridge, the plaintiffs took possession of said thirty feet roadway, described in paragraph “4” above, under claim of right derived under said oral agreement set forth in paragraph “5” of the findings, and by and with the consent of the commissioners, and in the spring of 1891, proceeded to and did, at the expense of about one hundred ($100) dollars, and by open and continuous work for several weeks, carried on in the plain sight of all the inhabitants of the vicinity, which afterwards became part of the hamlet of Rocky river, and while no objection was made by any person thereto, plaintiff did fill up a portion of the said roadway of thirty feet, and plant over the same, brushes and flowers, and did place a fence consisting of a bar upon posts set in the. ground at the line where said thirty feet roadway entered the easterly side of said county or Wooster road, covering such entrance except about two feet at the southerly line thereof, which fence has continued till the time of this trial.
    “That the commissioners required said bar to be so placed as to leave an opening for foot passengers to pass through and thus over said road way to the river.
    “ Seventh — That on or about the nineteenth day of December, 1891, the hamlet of Rocky river was duly organized, under the statutes of Ohio, and at the date of the commencement of this action, the defendants named in plaintiffs’ petition were such officers of 'said hamlet, duly chosen and holding the offices named in said petition. Up to the date of about a year prior to the filing of the petition in this cause, there is no proof of any complaint or objection made to the plaintiffs against their taking possession of said • thirty feet roadway, and filling in the same as aforesaid; and about a month before the bringing of this suit, the said defendants, as officers of said hamlet, made threats that they were about to take down said fence described in paragraph “6” of these findings, and to plough up and restore as a road for travel, said thirty feet roadway.

      uEighth — When the new bridge was opened for travel on July 4, 1890, at the point where said thirty feet roadway entered said county or Wooster road, which was within the territory after wards included in said hamlet, there were no sidewalks there, nor up to the time of this trial.

      “Ninth — The county commissioners of Cuyahoga county never at any time entered upon their record any memorandum of the oral agreement made with plaintiffs as it is set forth in paragraph “5” above, nor did they_ ever proceed in any formal action which is entered on their records, to vacate that portion of said thirty feet roadway claimed by plaintiffs under said oral agreement last named.”
    ■ As conclusions of law, resulting from said conelusions of fact, the court finds:

      First — That under the statute of Ohio, providing for the dedication of highways, the roadway in controversy in this suit, from 1885, became a legally established .public highway, and that on the creation of said hamlet of Rocky River, the same became one of the highways of said hamlet.

      “Second — That under section 1651, Revised Statutes of Ohio, trustees of hamlets within this state, have exclusive jurisdiction of the highways within the corporate limits of their respective hamlets, and therefore, the court finds that the defendants in this action, the trustees of the hamlet of Rocky River, represent the interest of the public in this highway, and are proper parties to this action, and have a standing to contest the rights claimed by the plaintiffs in said highway in controversy in this action.

      “Third — That the commissioners of the county could not by contract executed or otherwise, turn the public highway over to a private individual, so as to deprive the public of its use without proceeding in the form and manner as provided by section 4661, Revised Statutes of Ohio; and that within the time asserted here in this action by the proper agencies of the public, its use as a high way may be enforced.

      uFourth — That the plaintiffs have no such right in law or equity to the premises embraced in said thirty feet roadway, as would entitle them to maintain this, action.
    “And it is therefore ordered, that the same be, and it hereby is, dismissed at the costs of plaintiffs to be taxed, to which finding of fact and of law and judgment, the plaintiffs except.”
    This is a petition in error to reverse the judgment of the circuit court.

      Bivrke <& Ingersoils and Squire, Sanders <& Deuvpsey, for plaintiffs in error.

      Alex. Hadden and II. R. Husbands, for defend ants in error.
   By the Court.

Counsel for the defendant in error relies upon the decision of this court in the City of Steubenville v. King, 23 Ohio St., 610, where it was held that “a conveyance of land to the county commissioners for a county road, the acceptance of the grant by the commissioners, the opening of the road by their order and its subsequent use as such ■ by the public, and by the proper authorities, constitute a legal public highway, notwithstanding the want of statutory proceedings for its establishment.” Applying this doctrine to the facts found by the circuit court it results that there is a legally constituted public highway upon the ground now occupied by the public in connection with the high level bridge, notwithstanding the want of statutory proceedings for its establishment. Since the absence of favorable action by viewers does not prevent the change of the road to the new level, it cannot serve to defeat the result of such change, which section 4669 of the Revised Statutes defines to be that “so much of the original road as is rendered unnecessary by such alteration * * * shall be and remain vacated.”

Judgment of the circuit cou/rt reversed and judgment for the plaintiffs in error.


author: Minshall, J.

text:
    City of Fostoria v. Fox. Fox v. City of Fostoria.

      Action for injury to land— Where action to be brought — Section 5081 Revised Statutes — Summons may issue to other county, when— Section 5088, Revised Statutes — Reversal of judgment.

    1. An action for consequential injuries to land, or, a suit for a mandatory injunction requii’ing the defendant to abate a nuisance on his own land, causing injury to the land of the plaintiff, is, under our code, not local, but transitory in character; and, under section 5031, Revised Statutes, must be brought in the county where the defendant resides, or may be summoned.
    2. A city partly situated in two counties has its situs in the county where its municipal offices and government are located; and must, when the action is not local, be sued in that county.
    3. Under section 5038, Revised Statutes, to warrant the issuing of a summons in one county to be served- by the sheriff of another, on a defendant therein, the suit -must have been properly brought in the county where the summons was issued; that is, must either be local in character, or have been properly commenced against some one of the defendants.
    4. A judgment rendered in an action in favor of a defendant in which the court had jurisdiction of the subject-matter, but not of the person of the defendant, is not erroneous, although . the defendant made a timely objection and reserved an exception to the ruling of the court, and might, for this reason» have caused a judgment against him to be reversed.
    (Decided May 9, 1899.)
    Error in each case to the Circuit Court of Hancock county.

      J. M. Bever, City Solicitor and J. A. <& E. V. Bope, for plaintiff in error, City of Fostoria, (City of Fostoria v. Fox.) v
    Section 5038, we contend, refers solely and makes provision only for the issuing of summons to foreign counties for non-resident co-defendants where service has been made in the county where suit is instituted, upon a defendant having a real and substantial interest adverse to plaintiff in the subject of the action. Allen v. Miller, 11 Ohio St., 374.
    Section 5044 refers to and provides for the method or manner of service and upon whom it may be made. So that we are r.elegated to section 5026 and upon the interpretation of this section depends the solution of the question of jurisdiction of this case.
    If situated in Hancock county, then when the clerk issued his summons in this case, it should have been directed to the sheriff of that county and by him served within the county. This we claim is the clear and necessary construction and intendment of section 5026. It must be the county in which the corporation is situate and in which process may be served. But, as found by the court, summons was not and could not be issued to the sheriff of, or served in Hancock county.
    And it would necessitate legislative action and authority before suit could be commenced in a county against a municipal corporation in another county and summons issued to and served in that county. Directors, etc. v. City of Toledo, 15 Ohio St., 409.
    But sections 5072 to 5029 provide for venue of actions against various corporations, and then section 5031 provides that every other action must be brought in the county in which the defendants reside or may be summoned. Thompson v. Massie, 41 Ohio St., 317.
    For in the case at bar the action and remedy sought are personal, and personal in their application. Purely in personam, nothing in rem. . Primarily it is for injunction and secondarily for damages, both personal in their nature and application, and the parties must be subject to the jurisdiction of the court and jurisdiction acquired by personal service within the county within which the suit is instituted.
    It must be admitted that under section 2407 the city could have taken possession of the water rights and easements on Fox’s land, and no doubt had injury or damage been anticipated, would hare done so by proceedings to appropriate.
    If now, for the purpose of this branch of our argument, we concede that the injury claimed by ■Fox has unexpectedly resulted, then the city is in possession of the water right without agreement, otherwise not. But if so in possession, the statute gives to Mr. Fox a full and adequate remedy open to him. Section 6448, Revised Statutes, provides the remedy to the land owner when a corporation is in possession without appropriation and compensation paid, or written agreement. City of Logansport v. Uhl, 50 Am. Rep., 116.
    Injunction will not issue when the relief sought is disproportionate to the nature and extent of the injury sustained. Ammerman v. Dean, 23 Am. State Rep., 584.
    Injunction will not be granted to restrain a great public work. Steward v. R. R. Co., 14 Ohio St., 358.
    The owner of lands through which a stream runs is entitled to the continuance of its natural flow, subject to the rights of eminent domain, and any one impairing his right is liable in damages, but not to injunction. A clear distinction is made between private and public corporations exercising governmental powers; the exclusive right to a stream is qualified; a lower riparian owner, particularly when a public corporation, may back water, and is liable only when the injury is clear and specific, and then the remedy is at law for damages. That the lower riparian owner may not back water is not a universal or absolute rule but is subject to qualification. Ten Eck v. Canal Co., 37 Am. Dec., 233; Garrett v. McKee, 44 Am. Dec., 263.
    When plaintiff’s land bordering on a stream was liable to overflow during winter freshets, his application for injunction to restrain the building of a dam in the stream should be denied since it cannot be inferred that the damage from the overflow would be augmented by its existence. Essen v. Watier, 34 Pacific Rep., 750; Monongahela Navigation Co. v. Coon, 6 Pa. State, 379; 10 Neb., 460; 6 Northwestern, 755.
    Where plaintiff remains silent and inactive and allows acts to be done and expenses incurred, he willijlose the remedy by injunction and be compelled to assert his right of law. He must show promptness and vigilance in asserting his right. Chapman v. R. R. Co., 60 Ohio St., 119; Kellogg v. Ely, 15 Ohio St., 64; Goodin v. Canal Co., 18 Ohio St., 169; Trout Club Co., v. Sporting Club, 8 C. C. Rep., 207; City of Logansport v. Uhl, 50 A. Rep. 109; 99 Ind., 531; State v. Patterson, 40 N. J. L., 246 and 36 N. J. L., 159; State v. Morristown, 34 N. J. L., 445.
    A mere objection or protest or a threat to take legal proceedings is not sufficient to exclude the consequences of laches or acquiescence. Easton v. N. Y. R. Co., 24 N. J. Eq., 57; 10 Neb., 460; 23 Kan., 217; 61 Wis., 515; 70 Ga., 164; Whiting v. Union Ry. Co., 11 Gray (Mass.), 359 and 71 Am. Dec., 715.
    Injunction will not be granted unless a clear case of nuisance, or irreparable injury is made out. Goodale v. Crofton, 33 Ohio St., 270.
    But injunction against a nuisance will not be allowed or very rarely prior to a trial at law where the nuisance is established. Rosser v. Randolph, 31 Am. Dec., 712.
    Courts of equity will not exercise the extraordinary remedy of injunction except in extreme eases, that is to say, it must appear from the facts alleged in the petition and supported by the testimony that plaintiff has no adequate remedy by law; that the injury is one which cannot be compensated by damages, or in other words, in the language of the courts, the injury must be irreparable and irremedial; to justify injunction the injury must go to or tend to a destruction of the inheritance. When the statements in the petition are vague and indefinite or the testimony fails to make the injuries clear, certain and specific, injunction will not be granted. Blaine v. Brady, 64 Maryland, 373; 1 Am. State Rep., 378, and note in which the whole doctrine is discussed and authorities cited.
    Upon examination of the decisions of our own Supreme Court we find nothing to contravene our position. Upon the contrary we think they sustain our contention. Crawford v. Rambo, 44 Ohio St., 279; R. R. Co. v. Bohm, 34 Ohio St.; The R. R. Co. v. Tucker, 48 Ohio St., 57.

      George II. Phelps, for plaintiff in error, Elias Fox. (.Fox v. City. of Fostoria.) ' .
    We know of no exception or qualification to the primary right of the riparian owner the free, unobstructed and uninterrupted flow of the water of the stream in its natural channel. 48 Ohio St., 57; Tootle v. Clifton, 22 Ohio St., 254.

      This doctrine of primary riparian right is so far fundamental as to require no comment, or citation of authority; and certainly, if there is, or can be any qualification to such right, it cannot go to the extent of suspending the right altogether at a time of all others when such right is most valuable, to-wit: when the stream is at flood tide, and its capacity taxed to the utmost limit to carry off the super abundant waters. Dayton v. Robert, 8 C. C. R., 649; 4 Circ. Dec., 361; 8 C. C. R., 650.
    The court is asked in this case to engraft an exception, of qualification, upon this rule of riparian right, by holding that in time of high water, when this stream may reasonably be expected to overflow its banks its ordinary channel, and in fact its entire channel, may be completely obstructed for from six to twelve hours at a time when of all others, such riparian right is the most valuable, and the waters held back upon the farm of the plaintiff for the convenience, or (if we may so term it), the business necessity of a lower riparian owner.
    We say business necessity because it is well settled that' a municipal corporation owning property for such uses and purposes represents a proprietary interest, and for any violation of the property rights of others, in the course of such úse, the municipality is liable in the same degree as an individual would be under like circumstances. Cincinnati v. Cameron, 33 Ohio St., 336; Robinson v. Greenville, 42 Ohio St., 628; Dayton v. Peas, 4 Ohio St., 80; Ironton v. Kelley, 38 Ohio St., 50; Springfield v. Spence, 39 Ohio St., 665; Johns v. Cincinnati, 45 Ohio St., 278.
    It has been strenuously argued by counsel, that plaintiff must be content with his remedy at law for damages, and that equity will not interfere.

      That position, is not tenable. The protection and preservation of riparian rights is within the recognized exclusive jurisdiction of equity. High on Injunctions, sections 501 to 514 inclusive; Pollock v. Ship Company, 56 Ohio St., 674; Fox v. Fostoria, 14 C. C. R., 481; 8 Circ. Dec., 62.
    In Railroad v. Carr, 38 Ohio St., 448, the doctrine is established in Ohio, that a riparian owner like the defendant, who proposes for purposes of his own, to make changes or improvements, in the channel of the stream, must in the conception, as well as in the execution of his plan of improvement, pay just and proper regard to its probable effect upon other riparian owners. Crawford v. Rambo, 44 Ohio St., 279.
    The alleged necessity of the defendant for the maintenance of this dam and its operation in the city’s water supply is no warrant for denying the plaintiff a remedy where, as in this case, the operations of the defendant result in a direct and substantial injury to his inheritance, and in a manifest violation of his primary riparian right. Coal Co. v. Tucker, 48 Ohio St., 61; Hay v. The Cohoes Co., 2 Comstock (N. Y.), 159.
    A man may prosecute such business as he chooses upon his premises, but he cannot erect a nuisance to the annoyance of the adjoining proprietor, even for the purpose of lawful trade.
    If he cannot construct the work without the adoption of such means * * * he must abandon that mode of using his property.
    The above doctrine is quoted approvingly by this court in Tiffin v. McCormick, 34 Ohio St., 644.
    There is nothing whatever in the record to show the motive or consideration which actuated the court, and affected to dismiss the plaintiff’s petition, and the record in this case would effectually and forever bar the plaintiff against all further equitable remedies to procure the removal of this dam, or to enjoin its use and operation in the manner and for the purpose for which the pleadings in this case disclose that it is proposed and designed to be applied. 27 Ohio St., 238; 53 Ohio St., 361.
   Minshall, J.

These two cases relate to the same. subject of litigation and present similar questions, and for these reasons are reported together.

In the case of the City of Fostoria v. Fox, the suit below was brought by Fox against the city for a mandatory injunction, requiring it to remove a dam from a stream of water, a branch of Portage river, the dam being a part of its system of works for supplying water to itself and its citizens; and for damages, on the ground that the lands of the plaintiff were thereby wrongfully overflowed and injured. The dam was on the premises owned by the city, but a short distance below the lands of the plaintiff, situated on the stream above. The defendant was served with process by the sheriff of Seneca county, on a summons issued by the clerk of the court of common pleas of Hancock county. The defendant appeared for the purpose only of objecting to the jurisdiction of the court over it, and moved to quash the summons, and set aside the service made upon it on the ground that it is a city situate within Seneca county. ' It appeared, however, that a part of the city is within Hancock county, but that its principal place of business and all of its offices, are situate within Seneca county. In other words, Fostoria is substantially a city in Seneca county. The court overruled the motion and held that it had jurisdiction of the person of the defendant on the service as made. The defendant excepted. Issues were then made up, trial had, and judgment rendered against the city. It appealed to the circuit court The same objection was there made to the court’s jurisdiction; the objection was overruled and exception taken; and a trial had, which resulted in a judgment against the city.

Error is prosecuted here on various assignments of error, among others, that the court erred in overruling its motion to quash the summons, and set aside the service made upon it.

Evidently the court did not proceed upon the assumption that Fostoria is a city situate in Hancock county; for in such case the summons should have been issued to and served by the sheriff of that county, instead of to the sheriff of Seneca county; and the real question would seem to be, whether a city in a case like this may be sued in a county other than the one in which it is situated.

The action as brought is not a local one. This will appear from an examination of the chapter of our code of civil procedure, fixing the venue of actions, beginning with section 5022, and including section 5034, Revised Statutes. It is not an action for the recovery of real estate, or an interest therein, nor to enforce a lien of any kind upon it — it is for a consequential injury to such property, the defendant and the thing causing the injury, the dam, being both situate in another county. Nor is it within any of the eases that, under section 5025, must be brought in the county where the cause of action arose or some part thereof. This section applies only to actions for fines and penalties, to actions, against public officers for neglect of official duty, and to actions brought upon their bonds. The cause of action of the plaintiff below is under our code, transitory in character. At law the plaintiff had a right to proceed against the defendant for consequential damages; and such action could have been brought in Seneca county, as it is not local in character, that is, it need not be brought where the injury occurs. He proceeded in equity for a mandatory injunction, as well as for damages. If he had simply proceeded for a mandatory injunction, the suit could have been brought in Seneca, where the defendant had its domicil, and the thing sought to be abated was situate; and should have been brought there and not elsewhere. This necessarily results from the general rule prescribed in section 5031. It follows the sections prescribing where certain actions must, or may be brought; and is as follows: “Every other action must be brought in the county in which a defendant resides, or may be summoned,” except actions against executors, etc., which may be brought where the appointment was made or the defendant resides. It was held at an early day in Genin v. Grier, 10 Ohio, 209, that the common law division of personal actions into local and transitory is not known in Ohio. Local actions are such only as are made so by statute; and all other personal actions may be prosecuted in any county where process may be served on the defendant. See, also, Butler v. Birkey, 13 Ohio St., 514, 518.

It is argued, however, that under sections 5026, 5038 and 5044, construed together, this action was rightly brought and jurisdiction obtained of the defendant in Hancock county. We are unable to see how section 5038 can be of any-avail in this case. It simply provides that where an action has been rightly brought under the provisions of the Code, a summons may, at the request of the plaintiff, be issued to another county against one or more defendants. This section can only apply where the action has been rightly brought in the county where commenced. This action had not been rightly brought in Hancock county, where the summons was issued to the sheriff of Seneca. It had not in law, been brought at all; and could not be regarded as brought until the city had been rightly summoned. It is the only defendant to the action. Nor do we see how under the other two sections, or either of them, the service made in this case can be supported. Section 5044 simply provides how service against a corporation may be made: The summons may be served on the president, mayor, or other chief officer. There is no question in this case but that the proper officer was served, had the writ been properly issued.

We come now to section 5026 under which the claim is principally made, that the court acquired jurisdiction in this case. It reads as follows: “An action other than one of those mentioned in the first four sections of this chapter (being the sections prescribing a local venue to certain actions) against a corporation created under the laws of this state, may be brought in the county in which such corporation is situated, or has, or had, its principal office or place of business, or in which any corporation has an office or agent.” Of course this section can be of no avail in supporting the jurisdiction of the court, unless there was a showing that Fostoria is situate within Hancock county, or, being partly situate in this county, has its principal office or place of business therein, or at least an office or agent therein. But this is not claimed to be the case. The court found that a part of the city is within Hancock county, and then expressly found that its principal place of business is not therein, and that none of its officers or agents reside therein. We do not wish to be understood as intimating that, had the mayor resided in the part of the city within Hancock county, service could have been made on him at his residence, that would have bound the city. We suppose that in the case of a city, it would require a showing that the office of the mayor is located within the county where the suit is brought and that its principal place of business is therein.

But it is also claimed, that where a city is partly within one and partly within another county, it has a situs in each. This we think is not admissible. If this were so, it would be two cities instead of one. It would be quite as consistent with reason to say, that an individual could have two domiciles. The situs of a city is to be determined by the place where its principal seat of municipal government is located.

Again, if the above assumption were correct, then, as before pointed out, the service was bad; because it was made by the sheriff of Seneca countjq and not by the sheriff of Hancock, as it should have been, if Fostoria is a city of Hancock county.

As to the case of Fox v. Fostoria: After the determination of the previous suit, the city proceeded to make certain changes at its dam, so as to conform to suggestions of the court, whereby the injury complained of might be avoided. But the plaintiff, claiming that the changes had not avoided injury to his land, commenced this suit for an injunction and damages. The case having ' been heard in the common pleas, was appealed to the circuit court, where it was heard on the merits, and the court finding for the city, dismissed the action. The same question as to jurisdiction was made and reserved in both courts. The plaintiff in error seeks to reverse the judgment on the ground that the court erred in the admission of evidence, that the finding is against the weight of evidence, and that the judgment is against the law and the facts. There is no finding of facts, but the record contains all the,, evidence. We are of the opinion that there was no error in the admission of evidence; and, if it were proper for us to weigh the evidence, we have examined it sufficiently to say, that we would not disturb the finding below. Nor is the judgment against the law.

The court had jurisdiction of the subject matter, and the plaintiff having invoked it against the defendant, cannot object to an affirmance of the judgment on the ground that the court had no jurisdiction of the person of the defendant. It is an advantage a defendant jn such a case has: He may avail himself of a judgment in his favor on the merits, or set it aside for want of jurisdiction, where it is against him. .

It is proper to observe that the plaintiff in error does not ask a reversal of the judgment on the ground of a want of jurisdiction of the court over the person of the defendant, what has just been said it is to remove any appearance of inconsistency in reversing the first, and affirming the second ease on error; in as much, as the court had, in neither case, actual jurisdiction of the defendant.

Judgment in the first case reversed and petition dismissed; in the second case the judgment is affi/i'med.