author: Eollett, J.

text:
    Falkenbach v. Patterson, Receiver. Seltzer v. Patterson, Receiver.

      Life insurance — $100,000 deposit of securities with superintendent of insurance — Security for policy- holders only — Rights of makers of securities— Application of deposited securities to payment of claims.

    1. Where a deposit of $100,000 in securities is made by the company with the superintendent of insurance, as required by the statute (69 Ohio L. 152, §§ 8-10; Rev. Stats., ¡¡¡! 3593-3595), such securities are held by him as security for policy-holders only, and not for the security of the general creditors of the company.
    2. Such a deposit does not change the character of such securities; and, subject to the rights of such policy-holders, such securities are also subject to the rights of the makers of the same.
    3. 'When, such a company has become insolvent, and is dissolved, and a receiver is winding up the affairs of the company, if a part or all of such deposited securities be needed to pay such policy-holders, there should be collected the amount needed, if the securities are sufficient, to pay such claims; if the securities are not sufficient, the proceeds should be duly applied upon the claims of such policy-holders.
    4. After the claims of policy-holders are satisfied, the remaining securities are liable only to the rights of the company in such securities; and, as against the makers, the company had no rights in accommodation notes and mortgages given to such company for the purpose only of such deposit.
    Error to the District Court of Eranklin county.
    These cases are alike in legal principles.
    In March of the year 1877, William. M. Patterson, as receiver of the Ohio Life Insurance Company, commenced his actions in the court of common pleas of Eranklin county, one against Joseph Ealkenbaeh, and William D. Hill, superintendent of life insurance for the state of Ohio, and others, the object and- purpose of which was the foreclosure of a mortgage claimed to have been executed by Joseph Ealkenbaeh to the company, to secure the payment of the note of Ealkenbaeh described in the petition; and the other against Van *S. Seltzer, said superintendent and others, seeking the foreclosure of a mortgage of Seltzer, to secure the payment of his note described in the petition.
    The petitions aver the creation and organization of the Ohio Life Insurance Company, as a corporation under the laws of the state of Ohio, to do a business of life insurance, about January, 1871; that such company or corporation ceased such business in January, 1875, for the reason of its insolvency and inability to conduct the same. That about May 25, 1876, proceedings were instituted by the directors of such corporation in the court of common pleas of Cuyahoga county, to dissolve the corporation and settle up its liabilities, which resulted in the appointment of Patterson receiver of the assets of said company, with authority to collect the same, and to apply their proceeds to the payment of the liabilities of the company. That the corporation, at the time of such dissolution, was not possessed of any assets at its place of business, or elsewhere, except such as are hereinafter stated. That in pursuance of the laws under which the company was organized, and before it did, or was authorized to, commence the business of life insurance, it deposited with the state superintendent of insurance, at Columbus, Ohio, notes secured by mortgages upon real estate amounting upon their face to $100,000. That the several notes so deposited were each payable five years from date, with interest at the rate of eight per cent per annum, payable annually. That the indebtedness of the company, as found by the court, for losses under policies issued before its dissolution, and other liabilities, amounted to $40,000, or more, and that the company has no assets with which to pay any part thereof, except the securities aforesaid ; and that among the notes, so deposited, were included the note and mortgage of Joseph Ealkenbach, and the note and mortgage of Yan S. Seltzer. That the notes and mortgages were assigned to 'W. D. Hill, superintendent of insurance, in trust for the benefit of the company and its creditors, to be held for that purpose, and were so held by that officer for that purpose and no other, under the laws of the state in that behalf.
    The petitions further aver the amount claimed to be due from Ealkenbach and Seltzep.
    Demurrers to the petitions were overruled.
    The defendants below, that is, Joseph Ealkenbach in the action against him, and Yan S. Seltzer in the action against him, by their amended answers deny substantially the averments of the petitions, except the execution of the notes and mortgages, and deny that any sum whatever was due to the plaintiff, as such receiver, from Ealkenbach and Seltzer, on the notes and mortgages, and aver that such pretended creation and organization of such company, or corporation, was in fraud of the laws of the state.
    The second defense of these answers set forth, that these notes and mortgages were wholly without consideration, as to Ealkenbach and Seltzer, and that any pretended consideration upon which the same were signed and executed by them had wholly failed.
    The third defense of the answers shows, that Ealkenbach and Seltzer were severally induced to make the notes and mortgages by the false and fraudulent representations of one Charles J. Hess, professedly acting for and under the authority of the pretended company.
    The replies deny all and singular the allegations of such answers.
    The judgments of the court of common pleas in the actions were in favor of Ealkenbach and Seltzer, and Patterson, as such receiver, took his appeal to the district court.
    The district court in each of the cases found generally for the plaintiff', and upon request of the plaintiffs in error found the facts and conclusions of law, separately, as follows :
    “ 1. That the defendants, Joseph Ealkenbach and Van S. Seltzer, made aud delivered to the Ohio Life Insurance Company the notes and mortgages described in the petition.
    “ 2. That they were, by the president and secretary of said insurance company, indorsed and delivered to the superintendent of insurance, as stated in the petition.
    “3. That they were, by said superintendent, deposited with the state treasurer on or before January 20, 1874, and have since remained so deposited.
    “6. That the several acts and proceedings required by law to be done and performed by the corporators, prior to commencing business, were by said corporators so done and performed, and that said corporation was regularly organized in due form of law, and deposited with the superintendent of insurance, the securities required hy law, before said superintendent issued to said corporation his certificate of organization and authority to commence business.
    “ 7. That the amount evidenced by the notes and mortgages deposited with and transferred to the state superintendent as certified to by him was $100,000, which amount included the notes and mortgages of said defendants, Joseph Ealkenbach and Van S. Seltzer.
    “ 8. That Charles J. Hess was in some way an officer or agent of the corporators or company, and was engaged in procuring subscribers to the stock, and notes and mortgages to be deposited with the superintendent to complete the organization for business.
    “ 9. That said company became insolvent; that its officers, on June 1,1876, applied to the court of common pleas of Cuyahoga county, under the act of April 15,1867, for a dissolution of said company and the appointment of a receiver to settle up its affairs pursuant to said act of April 15, 1867; that the superintendent of insurance was a party to said proceedings. •
    “ 10. That in and by said court, and in said proceedings, the plaintiff' was appointed receiver, said superintendent not objecting thereto, with full authority, so far as the" court could confer the same, to collect the assets and pay the liabilities of the company, among which assets was included the notes and mortgages of defendants.
    “ 11. That the plaintiff gave bond and was qualified to act as such receiver, and has so remained ever since.
    “ 12. That a large number of policies were issued by said company while it did business, and were outstanding at the time of said dissolution.
    “ 13. That the liabilities of said company to policy-holders and general creditors amounted to $35,000, or more, and that the proceeds of the notes in suit are necessary to pay the same and make good losses to policy-holders.
    “14. That said defendant, Joseph Ealkenbach, was not a subscriber to the capital stock of said company, but that said Falkenbach received $1,900 in the stock of said company, being certificate No. 26, for nineteen shares.
    “ 15. That the said defendants made and delivered their notes and mortgages, under the following circumstances : That said Charles J. Hess, who was a personal acquaintance, applied to them for the same; that he stated to them that he required the amount of said notes to make good the $100,000 required by law to be deposited with the superintendent of insurance before the company could do any business, and that when the company got into business he would in a short time procure other securities to be deposited in their place, and would then return to them the notes and mortgages so requested; that in pursuance of this request, and to accommodate said Hess, they gave the notes and mortgages in suit without any consideration, with knowledge that they were to be .transferred to the superintendent of insurance, under the law, and to obtain for the company the proper certificates to enable it to do business.”
    Upon the facts aforesaid, the court state the following conclusions of law, to wit:
    “ 1. That the indorsement of approval by the attorney-general, on the charter or certificate was sufficient, but if technically insufficient the defendants as against the policyholders represented by the receiver, could not question the organization.
    “ 2. That the receiver was and is the proper person to bring and maintain the action, but if there were doubt about it, he and the superintendent both ■ being parties, a proper decree could be rendered without dismissing the action.
    “ 5. That the stubs from the stock books, and the letters offered by plaintiff to show that the . defendant was a stockholder, are not competent evidence for that purpose, and that the receipt of February 10,1874, signed by Joseph Falkenbach, is competent to show that he received stock in said company.
    “ 6. That defendants, having given their notes and mortgages to accommodate Hess and enable the company to obtain the certificate, that $100,000 had been deposited, and such use having been made of them with their assent, they are estopped as between them and the receiver, representing the policy-holders, from setting up or maintaining the defenses of fraud and want of consideration. Decree is therefore ordered for the plaintiff.”
    To the decrees Ealkenbaek and Seltzer severally excepted and took bills of exceptions, and they now ask for a reversal of the judgments of the district court.

      Lorenzo English and George K. Nash, for plaintiffs in error.
    The defendant in error had no title to the notes and mortgages enabling him to maintain actions thereon. There was no greater authority or control vested in him than was possessed by the corporation of which he was the receiver. Rev. Stats., § 5658; Bell v. Shibley, 33 Barb, 610; Lincoln v. Fitch, 42 Me. 456; Receivers v. Patterson Gas Light Co., 3 Zabr. 283; High on Rec., §§ 201, 205. At the time he was appointed receiver, neither the title to, nor possession or control of, them was in the company, but in the superintendent of insurance, and held by him in trust “ as security for policy-holders in said company.” They were not so held by him for the special security of the general creditors of the company. The court has no power to substitute another trustee in the place of the one designated by statute.
    The superintendent of insurance was improperly made a party. He is a public officer of the state, and can no more be sued than the state, without the direction or authorization of the general assembly.
    The due creation and organization of the corporation is denied by the plaintiffs in error. Upon this issue the burden of proof was on the defendant in error. There was neither a technical nor substantial compliance with the statute (69 Ohio L. 151, § 5) requiring the attorney-general to examine and certify to the secretary of state the declaration of the intention of the corporators to form a life insuranee company. This provision should be strictly construed. 1 Red. Law Railways (5- ed.), 70, and cases cited.
    The notes and mortgages bear date December 29, 1873, while the certificate of the secretary of state of the filing of the declaration and certificate of the incorporators bears date February 23, 1874. Hence the company was without authority to make these contracts, and the notes and mortgages are invalid and void, whether held by it or by others claiming under-it.
    It does not appear that any policy-holder presented any claim to the receiver, or that any policy-holder has sustained loss constituting the basis of such a claim, or that any thing is due to policy-holders.
    Neither fraud nor bad faith is imputed to either of the plaintiffs in error. Acting in entire good faith, they were induced, by false and fraudulent representations, upon the part of the company and its promoters, without consideration to them, to give these notes and mortgages. As between the parties they were void, for these reasons as well as for want of power in the company. The policy-holders are not parties to these- contracts, and they are not privies with the parties within the rule authorizing them to invoke the doctrine of estoppel. McKinzie v. Steele, 18 Ohio St. 38; Mut. Life Ins. Co. v. Norris, 31 N. J. Eq. 583.
    To- constitute an estoppel, there must be a concurrence of fraud or bad faith with prejudice to the party setting it up, together with reasonable diligence and care on his part; and the prejudice must be the immediate or proximate result of the acts complained of. Policy-holders must be held to some degree of care. Ordinary care in this respect would require some investigation, of the solvency of the company and whether or not it was authorized to transact business. Such investigation would, at any time, have detected its rotten condition as well as its want of organization and creation.

      Estep, Dickey ‡ Squire, for defendant in error.
    Upon the question of want of consideration-, we maintain that it is not necessary that any thing of value should have passed to these parties in order to constitute a valid legal consideration. In the contract of the surety it is but seldom that he receives any thing of value. If his principal receive profit, advantage, or change of condition by reason of the contract and on the faith of it, this is sufficient consideration to sustain the contract. In consideration of these notes and mortgages the company received its certificate from the proper officer and corporate power to do business, issue policies of insurance, and obtain credit.
    The plaintiffs in error are estopped from denying the validity of the notes and mortgages, or from asserting a want of consideration for their execution. They admit that they knew their admissions of indebtedness to the company were false at the time they made them; that they made them with the intent to deceive the superintendent of insurance and the public; and they can not now be permitted to assert such a defense as against creditors of the corporation who have been thus misled. Douglas v. Scott, 5 Ohio, 194; Bocock v. Pavey, 8 Ohio St. 270; Beardsley v. Foot, 14 Ohio St. 414.
   Eollett, J.

Section 5658 Revised Statutes provides that: Such receiver shall be vested with all the estate, real or personal, of the corporation, from the time of his having filed the security hereinbefore required, and shall be trustee of such estate for the benefit of the creditors of the corporation and its stockholders; and he shall have all the power and authority conferred by law upon trustees to whom assignments are made for the benefit of creditors.”

William M. Patterson, as receiver of the Ohio Life Insurance Company, is in the place of the company, and has only the same rights that the company would have. Bell v. Shibley, 33 Barb. 610; Coope v. Bowles, 42 Barb. 87; High Rec., § 201. And the liabilities of third parties are not| increased or varied by his appointment as receiver. Lincoln v. Fitch, 42 Me. 456.

There passes to the receiver the property and rights of the corporation, precisely in the same condition, and subject to the same equities, as they were held by the corporation. Receivers v. Patterson Gas Light Co., 3 Zabr. 283; High Rec., § 205.

There is but little, if any, dispute as to the facts of this case.

As shown on the face of the papers, $100,000 of notes, and mortgages appearing to secure tlie same, were deposited with the superintendent of insurance; and among the notes and mortgages were those of Ealkenbaeh and' Seltzer, who gave to the company their notes and mortgages without consideration, and to accommodate the company and Hess, who was the main agent of the Ohio Life Insurance Company. These makers gave these accommodation notes and mortgages to be deposited with the superintendent of insurance, under the the following statutes (69 Ohio L 152):

“ Sec. 8. Any life insurance company organized under this chapter, or any other law of this state, may invest its capital in stocks, bonds, and mortgages, or securities mentioned in the preceding section, and change and invest the same, or any part thereof, in like manner, at pleasure; but no company shall commence business until it has deposited with the superintendent of insurance at least one hundred thousand dollars in the stocks, bonds, and mortgages aforesaid, or one or more of them, duly made or assigned to said superintendent in trust for the purposes mentioned in this act.

“ Sec. 9. The superintendent of insurance shall hold such securities as security for policy-holders in said companies, but as long as any company so depositing shall continue solvent he shall permit such company to collect the interest or dividends on its securities so deposited, and from time to time to withdraw such securities, or any part thereof, on depositing with said superintendent other securities of the kinds heretofore named and of equal value with those withdrawn.

“ Sec. 10. Whenever the corporators shall have fully organized such company, and shall have deposited with the superintendent the requisite amount of capital, said superintendent shall furnish the company with a certificate of such deposit, which, with a certified copy of the papers required by this chapter, when filed in the county recorder’s office of the county wherein such company is located, shall be the authority to commence business and issue policies, and the same may be used in evidence for and against the compauy in all suits.”

And when the notes and mortgages were so used as a part of such deposit, they must remain “ as security for policy-holders in said company.” The statute is clear and imperative. And we think it is clear that, as to such policy-holders, Ealkenbach and Seltzer are estopped to deny the existence of the corporation and its power to issue such policies. But what, if any thing, is due in this case to policy-holders ? There is no finding or evidence in the record from which we can ascertain any specific sum. The court finds, “ that the liabilities of said company to policy-holders and general creditors amount to $35,000 or more;” and in the record of the original case the plaintiffs, on May 25, 1876, “ express the hope and belief that in a short time every policy outstanding against the company and which shall not have lapsed by reason of the non-payment of assessments and premiums, will be canceled and taken up.”

It may be that no policy-holder has a claim secured by these deposits. Before these mortgages can be foreclosed there must be shown some specific amount due, or that may become due, on account of such policy-holders, and that such amount is a claim against this special deposit. And when such amount is ascertained, the amount needed from the deposit to pay the same, should be obtained through the .superintendent of insurance, who is the holder in trust of the deposited securities. The superintendent of insurance should act and perform his trust; and as he was formally made a party to the suit, he may disclose the facts of such trust; and when the trust is fully performed, the remainder of the deposit, if any, should be properly disposed of.

The receiver has no rights in that part of the deposit of the $100,-000 that the company did not own ; but he has a right to know what the company did own, and he has an interest in the rights of the company in the deposit, though the rights of the company are subject to the rights of the policy-holders.

It is .suggested that such a claim must first exhaust the stockholders’ liability before these deposits can be required to be used. We think that such is not the law in this state.

In Wright v. McCormick, 17 Ohio St. 87, this court held that the liability imposed upon stockholders is a security over which the corporate authorities have no control,” and that “ this statutory liability of the stockholders is not a primary resource or fund for the payment of the debts of the corporation.”

But the general creditors are not in the same relation to these deposited securities. They have an interest only in the rights of the corporation. The notes and mortgages of Ealkenbach and Seltzer were not the property of the corporation. They were accommodation notes and mortgages, made without consideration, and taken and used by the corporation for a specific purpose. As against the makers, the corporation had no right to them for any other purpose. The corporation could not sue and compel the makers of these notes to pay to the corporation the amount of the notes; neither could the corporation foreclose the mortgages.

The receiver, as acting for the general creditors, has no more rights in them than the corporation had; and the makers of these notes and mortgages may defend against the claims of the general creditors, who have no rights in them; and these makers are not shown to have done any act that estops them to set up their defense in a suit by the receiver, as the representative of the general creditors. As to the other questions in the case we express no opinion. Whether or not Ealkenbach and Seltzer are estopped to deny they are stockholders in the company, we express no-opinion; and this reversal is without prejudice to either party as to that matter.

On the facts, the court erred in the judgment and in ordering the mortgages to be foreclosed, and the judgment is reversed and the case is remanded to the circuit court for further proceedings.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Seibel v. Building Association.

      Building and loan associations — Revised Statutes, section 3835 — Loans—Rebate of interest — Distribution of earnings.

    1. Section 3835 of the Revised Statutes, as amended April 15, 1880 (77 Ohio L. 208), does not provide for the cancellation of parts of a loan as year by year dues are paid in on shares, but such a loan is to he settled, with such dues and other credits, when the share is fully paid; and designating the ordinary dues as “ dues paid on loans awarded,” -does not change their nature or application.
    2. Section 3835 contains the provision that a building association, atibe end of each year, “shall make a rebate of interest on the amount of dues paid on loans awarded,” and it thereby provides that the interest-hearing power of such loans shall be reduced year by year-as dues are paid in on the shares, and that the interest payable on such loans shall he less year by year as such dues are paid in.
    3. The “value” of a share in a building association may not be a proper basis for distribution of earnings due such share; hut the amount of dues paid on such share and the other credits to the share make such a basis, whether or not a loan has been awarded on such a share.
    Error to the Superior Court of Cincinnati.
    This suit is brought by certain members of the Victoria Building- Association No. 2, who have borrowed money from the association, in behalf of themselves and all other members who have borrowed money from the association, to enjoin the defendant from enforcing the following amendment to its constitution :
    “An annual settlement shall be had with .each borrowing member, when he shall receive a rebate of interest on the amount of dues paid and earnings credited for the expiring year, but upon sums so credited he shall receive no further dividends.”
    This is an amendment to the following provision :
    “ The secretary shall calculate the profits of members every six months, and enter them in their pass books.”
    The plaintiffs alleged that, at the time they became members and borrowed the- money and gave the mortgages, the constitution of defendant provided that the secretary should, every six months, credit to the plaintiffs and all other members of the association the net earnings ; crediting to each his ratable share in proportion to the gross amount of dues paid upon shares held by him; that by the amendment defendant proposes to credit earnings to those members who have not borrowed money from it semi-annually upon the same basis as heretofore, but to credit earnings to plaintiffs and other members who have borrowed money from it only annually, and then upon a different basis, giving to them a very much smaller portion of the net earnings, to wit, in lieu of crediting them with earnings in proportion to all dues paid, it proposes to credit them only with earnings in proportion to the dues paid during the preceding year.
    The plaintiffs further aver that the amendment is in conflict with the statute of Ohio, which requires the earnings to be credited to all members, borrowers, and non-borrowers.
    The defendant answers, admitting the distribution of earnings by defendant as alleged in petition, admitting the enactment of the amendment, and that it effects the change alleged in the petition, and that it proposes to enforce the amendment unless enjoined, and that its enforcement will result to the damage of plaintiffs as claimed, but claims the power so to do by amending its constitution, and claims it to be equitable.
    And defendant, by cross-petition, claims that the amendment is in conformity with the provisions of the statute, and that plaintiffs have heretofore been wrongfully and illegally credited with an excessive portion-'of earnings, and asking the affirmative relief of a decree enjoining plaintiffs from transferring tbeir pass-books and decreeing the right of defendant to surcharge the account.
    To the answer a general demurrer is filed, and a general demurrer is filed to the cross-petition.
    Upon these demurrers the cause was reserved to the general term of the superior court, and that court rendered a judgment overruling both demurrers, and plaintiffs not desiring to further plead, rendered judgment of dismissal of plaintiffs’ bill, and a petition in error is now filed in this court to reverse that judgment.

      J. J. Glidden, for plaintiffs in error.

      Evans $ Boettinger, J. Skroder, and Coppock &; Coppock, for defendant in error.
   Follett, J.

The defendant is a building association. Such a body exists for the equal benefit of all its members, who are presumed to be pei’sons whose earnings are small, and who seek to use small weekly savings in procuring suitable homesteads. Every member is presumed to become, at some time, a borrower to the extent of his interest. Building associations are not intended to enable money lenders to obtain extraordinary interest, .but they are intended to help in securing homes with the aid of small incomes. They may become oppressive, and they may be conducted so as to bring hope and secure comfortable homes.

Each member is a share-holder, and he pays for his share or shares by paying weekly a certain sum on a share, and by earnings credited. This is payment on stock or shares subscribed. The earnings of the association include all sources of income except the stated dues.

When the defendant was organized, and prior to 1880, the statute as to the disposition of earnings was as follows (Revised Statutes, section 3835): “So much of the earnings'as may be necessary, not exceeding ten per cent., per annum, may be set apart to defray the current expenses of thé associations, .and for the purchase of such real estate 31s may. be necessary for the convenient transaction of their business ; and the residue of .such, earnings shall be transferred to the credit ,of the share-holders, to be paid ratably to them when the shares are fully paid.”

. On April 15, 1880 (77 Ohio L. 208), this section was amended in several important provisions, and, in matter of earnings, providing as follows : Section 3835. So much of the earnings as may be necessary shall be set apart to defray, the current expenses of the association, and a portion of the earnings, to be determined by the board of directors, shall be reserved, annually or semi-annually, for the payment of contingent losses, and the residue of such earnings shall be transferred to the credit of all members, borrowing and non-borrowing, to be paid ratably to them at such times and in such manner as the association, by its constitution and by-laws, rules and regulations, in conformity with this act, may provide; and upon 'the cancellation of any share or shares that have been fully paid, by dues paid in and earnings credited, the association shall pay such member or members their pro rata share of such reserve fund, and at the end of each year shall make a rebate of interest on the amount of dues paid on loans awarded.”

, For some time after this amendment took effect, all seemed to-agree upon its true effect, and each member’s account was accordingly so kept. But now another effect is claimed, and a change in the constitution of the association is attempted. The borrowing members and the non-borrowing members dispute as to the distribution of earnings. This dispute comes from the provision that the association, at the end of each year, “ shall make a rebate of interest on the amount of dues paid on loans awarded.”

The legislative intent was to lessen the interest paid on such loans. The interest-bearing power of the loan is reduced year by year as dues are paid, which, at the final settlement, must be credited on the loan; and so each year the interest earnings of the loan become less. The entire loan earns some interest, and the effect is the same as though the rate per cent of interest were reduced each year. This is not a provision that dues when paid shall be credited on loans awarded ; but the various items of dues paid and earnings credited — from first to last — are put into one amount, and so remain until the share is paid in full, and then such amount is applied to offset the loan, and the loan is settled, if premiums and interest are paid. Shares or stock subscribed for must be paid in full. And when a loan is obtained upon a share, the share is taken out in advance, for which privilege premiums and interest are paid, and then the share may be of no value, but be a burden, and the share-holder must continue to pay his dues until the share is paid, and he must pay the premiums and interest until the loan is settled.

The share is not just equal to the loan thereon, it is more; and when the share is paid — and not before — the whole amount paid and credited on the share is applied to satisfy the loan, not including the premiums or interest paid in another way.

Each member is also entitled to a pro rata share of the reserve fund, whether a borrowing member or not.

The non-borrowing member gets his share in full — all his dues paid in and his ratable share of the earnings. This generally returns him his money with large interest.

The obtaining a loan upon a share does not lessen the amount paid upon that share; and the amended section 3835 does not lessen such amount as a basis for the distribution of the earnings. Neither does that section exclude any part of the payment on a share from such a basis at'each distribution.

The proposed amendment to the constitution of 'the association is not warranted by the amended section-3835, and the equity of the case is with the borrowing members.

There was error in overruling the demurrers : and the demurrer's are sustained.

The injunction asked is made perpetual.


author: McIlvaine, C. J.

text:
    Hanson v. The State.

      Criminal law — Robbery—Violence concomitant with the taking — Conviction of lesser degree of crime — Arraignment, necessity for.

    1. The violence which is essential to the crime of robbery must be concomittant with the taking of the property from the person of another.
    2. On the trial of a person indicted for the crime of assault with intent to rob, it is error to refuse to charge that violence, in order to constitute the crime, must not be subsequent to the attempt to take the property.
    3. Such, indictment will support a conviction for assault and battery, and it is error to refuse to so charge. Howard v. The State, 25 Ohio St. 399.
    4. The record of a conviction for crime must show that the defendant was arraigned on the indictment.
    Error to the Court of Common Pleas of Greene county.
    The plaintiff in error was indicted, tried, and convicted of the crime of assault with intent to rob, at the January term, 1885, of the court of common pleas of Greene county. The testimony on the trial tended to show that the alleged crime was committed in attempting to detach aüd remove a diamond shirt-stud from the person of the prosecuting witness, who was, at the time of the assault, standing in a crowd, and, feeling a sudden jerk at his shirt bosom, reached out his hand and caught the plaintiff in error, who struggled to release himself from the grasp of the witness. The shirt was torn by the jerk, hut the stud was not detached.

      T. JE. Wright and M. R. Snodgrass, for plaintiff in error.
    1. The court had no power or jurisdiction to proceed upon the trial without an arraignment of the accused. Rev. Stats., sec. 7257; Goodin v. The State, 16 Ohio St. 346; Doyle v. The State, 17 Ohio, 225; Williams v. The State, 12 Ohio St. 622.
    2. The violence must not be subsequent to the attempt to take the property. Shinn v. The State, 64 Ind. 13 ; 2 Arch. Cr. Prac. 1290; 1 Hale P. C. 534; 2 East P. C. 726.
    3. Under the indictment charging the plaintiff with assault with intent to rob, the jury might properly find him guilty of assault and battery, should the evidence warrant it. Howard v. The State, 25 Ohio St. 401; Heller v. The State, 23 Ohio St. 582 ; 1 Arch. Cr. Prac. 1311; Stewart v. The State, 5 Ohio, 241; Breese v. The State, 12 Ohio St. 146; Whar. Cr. Law, secs. 1678, 1679, 1681, 1682.
    4. To constitute the crime of “ assault with intent to rob,” where there is no “ putting in fear,” the element of violence must exist. If the evidence show that the offender intended to remove the shirt-stud by stealth, and by the use of that degree of force only that is generally needed to detach personal property from clothing, he can not be convicted of the crime of assault with intent to rob Brennon v. The State, 25 Ind. 403; Rex v. Moore, 1 Leach, 335; Long v. The State, 12 Ga. 293; 3 Green. Ev., see. 229; Roscoe Cr. Ev. 901; McCloskey v. People, 5 Park. Cr. Cas. 299; State v. McCune, 5 R. I. 60 ; Commonwealth v. Ordway, 12 Cush. 270; Bonsall v. The State, 35 Ind. 460; 2 Whar. Cr, Law, sec. 1701.

      James Lawrence, attorney-general, for the state.
    The evidence shows that Hanson used sufficient violence, in attempting to take the property, to constitute the crime of robbery, if he had succeeded in his attempt.
    It is true that the mere snatching of a thing is not considered a taking by force, but if there be a struggle to keep it or any violence, the taking is robbery. The violence need not necessarily precede, but may accompany the taking, and the force which is sufficient to take the property against the owner’s will is all that is required. 2 Whar. Cr. Law (7 ed.) 1701; Roscoe Cr. Ev. 913; 2 Bish. Cr. L. (6 ed.) 1167; Long v. The State, 12 Ga. 293, 320; Mahoney v. People, 5 Th. & C. (N. Y.) 329; State v. Broderick, 59 Mo. 318; Lapier’s case, 2 East P. C. 57, 708 ; Mason’s ease, Russ. & Ry. 419 ; Moore’s case, 1 Leach, 335 ; State v. McCune, 5 R. I. 60.
    The offense is complete if there was an intent by force and violence to take the stud from the person of the prosecuting witness, accompanied hy some act or movement toward its accomplishment, which constitutes an assault See Fox v. The State, 34 Ohio St. 377, 379.
    If overt acts be shown tending toward the commission of the crime, the intent will be presumed.
   McIlvaine, C. J.

Several errors are assigned, but we think it unnecessary to notice any other than those relating to the refusal of the court to charge the jury as requested by defendant below.

The court refused to charge “ that violence, in order to constitute ah assault with intent to rob, must not be subsequent to the attempt to take the property.” This request should have been, given. There being no putting in fear, violence is an essential ingredient in the crime of robbery. We find nothing in the charge as given which can be considered as a fair equivalent for the request. The testimony tended to show that after the taking of the property had been abandoned by the defendant, a struggle to avoid an arrest ensued. However violent this struggle, it did not characterize the attempt to take the diamond stud. The jury should have been plainly told that the charge of assault with intent to rob by violence was not proved by subsequent violence used to avoid an arrest.

The court also refused to charge, “that if the jury find that the defendant had not used such force and violence as makes him guilty of assault with intent to rob, he may be found guilty of assault and battery.”

If the jury, contrary to law, had been instructed that a conviction of the defendant for assault and battery only could not be had under that indictment, his danger of a conviction for the higher crime named in the indictment would, no doubt, have been increased. Howard v. The State, 25 Ohio St. 399; Heller v. The State, 23 Ohio St. 582.

True, the court had told the jury in the general charge “that if it was only an attempt to commit larceny of the property from the person by snatching the pin, then there would be no crime except assault and battery.” And again, the court had said to the jury: “Counsel for defendant suggests that the defendant may have simply intended to unfasten the pin, and then steal it without letting Miller (the prosecuting witness) know what he was doing. If this were so, I instruct the jury that the defendant would not be guilty of any thing beyond an assault and battery.”

It was probably the intention of the court that the jury should understand that a conviction of the less offense might be had in the pending action; but it was not so stated, and it may be that the refusal to charge as requested misled the jury, especially as no reason for the refusal was given.

The record before us does not show that the defendant was arraigned on the indictment before trial. The record is defective in this particular.

Judgment reversed.


text:
    Hubbard v. Elden.

      Sheriff’s sale — Investment of balance of fund, by order of court — Sheriff's liability.

    1. "When on the sale of mortgaged premises by a sheriff, as special master commissioner, there remains in the hands of the sheriff a portion of the proceeds, after paying the costs and the agreed and adjudged liens, and disputed claims for such balance are pending in the case, the sheriff and his bondsmen are liable for the sheriff’s failure to pay such balance to the rightful claimant, as adjudged by the court, though it is not demanded until his term of office expires.
    2. And in such case, before the rightful claimant is ascertained,.should the court order the sheriff to loan the money in a certain manner and on certain terms, no partial compliance with such order, without showing good reason why the order was not strictly obeyed, will release such liability of the sheriff or of his bondsmen.
    Error to the District Court of Jackson county.
    The original action was on a sheriff’s bond. The petition avers that Robert W. Hubbard was elected sheriff of Jackson county in October, 1872, and duly gave bond, conditioned “ that if the said Robert "W. Hubbard shall faithfully discharge all and singular the duties of sheriff of said county of Jackson for the term aforesaid, according to law and the best of his ability, then this obligation to be void, otherwise, to be and remain in full force and virtue in law.” The bond was approved, and Hubbard became sheriff.
    And the petition further avers that: “ January, 1874, such proceedings were had in a cause then pending therein, wherein Stephen N. Vaughn et ah, executors of Thomas Vaughn, deceased, were plaintiffs, and George Martin et ah were defendants, that the sale of certain premises of George Martin by the sheriff of said county, as special master commissioner, upon the foreclosure of a mortgage given by George Martin to Thomas Vaughn, theretofore made by order of said court, was duly confirmed, and said sheriff ordered to make a deed to the purchaser thereof; that after paying the plaintiff's in said suit,the full amount of the judgment and decree rendered therein, and also all the costs and expenses of said suit, and of said proceedings for the sale of said mortgaged premises, there remained in the hands of Robert "W. Hubbard, as such sheriff, a balance of the proceeds arising from said sale of $442.35. That at said December special term, A. D. 1873, William Elden was made a party defendant in said cause and proceedings, and filed his motion in said cause, setting up his lien upon said premises so sold, as aforesaid, and asking that the balance of said proceeds, after paying said mortgage and the costs of said proceedings for the sale of said premises, be ordered to be paid to him upon his lien; that afterward, to wit, on June 11, A. d. 1874, of the May term, A. D. 1874, upon the motion of the said George Martin, the sheriff, Robert W. Hubbard, was ordered to loan on interest said money, and take mortgage security for the same on real estate in this county of value to double the amount of said money in his hands, exclusive of buildings thereon, conditioned to be paid when demanded after ninety days, for the use and benefit of such party or parties as the court might thereafter find entitled to the same; that said sheriff, wholly disregarding his duty in that behalf, and refusing to obey said order of the court in the premises, either in its letter or in its spirit, wrongfully converted said money to his own use, and loaned the same out without security. That at the May term, a. d. 1878, such further proceedings were had in said cause that upon the further hearing thereof upon the answer and cross-petition of William Elden it was by the court found that William Elden had the first and best lien on said fund, and was entitled to have and receive the same. That on said May 20, a. d. 1878, the said William Elden was, and ever since has been, and now is, entitled to have and receive the said sum of $442.35, together with interest thereon, from said June 11, a. d. 1874, from Robert W. Hubbard, as said sheriff.”
    It also averred demand by Elden, and neglect and refusal to pay by Hubbard.
    To the petition demurrers were filed by Hubbard and by his sureties, which were overruled.
    Then Hubbard and his sureties answered and set up five matters of defense, the second and principal defense being as follows:
    “ Second Answer. — The said defendants for their second answer say: That afterward, and without their knowledge and consent, the said George Martin, the said Elden acquiescing therein, at the May term, a. d. 1871, of said Jackson common pleas, procured some case of Vaughn against Martin to be docketed, and then without the knowledge and consent of these defendants procured said order, authorizing the sheriff to loan, not $442.35, but $-, according to the terms set out in the petition in this case; and the defendants here deny that said Hubbard converted said money to his own use, and loaned the same without security; and said defendants deny that said court at any time had any authority or control of said funds, and say that they, said defendants, are not bound by said order so procured by said George Martin, and acquiesced in by said William Elden, and which said case so docketed was not, and is not, the original case of foreclosure.”
    The reply denied “ each and every averment of the answer that is inconsistent with the allegations and statements of the plaintiff.”
    On the trial the court found for Elden, and gave judgment against Hubbard and his sureties.
    A bill of exceptions was filed, and the district court affirmed the judgment. Hubbard and his sureties now seek a reversal of that judgment.

      John T. Moore and C. A. Atkinson, for plaintiffs in error.
    The effect of the order to loan the money converted it into a fund in the possession of the court, for the safe-keeping of which the sheriff’s bondsmen are not responsible. They are not liable for his acts as a money-lender. Webb v. Anspach, 3 Ohio St. 522.
    The order to loan was the act of Elden and Martin, the only parties interested. It matters not that they used the solemnity, of the court records; it was still their act. They wanted the fund to accumulate, and they agreed to lend it out to be repaid, with interest, ninety days after their rights were determined. The time for payment was extended ninety days after demand, and this fact will inure to the relief of the sureties. Day v. Ramey, 40 Ohio St. 446; Blazer v. Bundy, 15 Ohio St. 57; McComb v. Kittridge, 14 Ohio, 348; Boling v. Young, 38 Ohio St. 135.
    Sureties are liable only according to the express terms of their bond. State v. Medary, 17 Ohio, 554; Hall v. Williamson, 9 Ohio St. 17.
    ■ J. R. Challen, J. W. Laird, and J. M. Tripp, for defendant in error, commented upon the eases cited by counsel for plaintiffs in error.
    Elden gave no extension of time for payment, for a consideration, or otherwise. He insisted upon an order that the money be paid him as soon as he ascertained the balance in the hands of the sheriff.

      "With respect to the objection that sureties are only liable according to the express terms of their bond, we refer the court to United States v. Maurice, 2 Brockenbrough, 96, cited in Hall v. Williamson, 9 Ohio St. 17, 24, for the law distinguishing the case at bar from the latter case.
    How far the order of the court would have been a protection to Hubbard, had he complied with it, or whether the court had authority to make it, is not necessary to consider. The order was wholly disregarded and ignored.
   Follett, J.

On June 11, 1874, Robert W. Hubbard, as sheriff, held the $442.35. The mortgage lien and costs had been paid, and George Martin would have received this money had not William Elden become a party to the action and set up a superior claim to it.

Several questions presented by the plaintiffs in error are unimportant, by reason of the fact that, as sheriff, Hubbard then held the money for the rightful claimant, and it did not affect Hubbard’s liability whether the court ordered the money paid to Martin or to Elden. The court found Elden to be the rightful claimant.

The question is, did this order to loan this money, and the acts of the sheriff done by reason of that order, release either the sheriff’s liability to pay the money to the rightful claimant of the same, or release his sureties from their liability on the bond ?

It is claimed that the court had no power to make the order to loan; if this be so, the making the order did not release either the sheriff or the sureties.

The order directed the sheriff to loan the money on interest and take mortgage security for the same on real estate in Jackson county of double the value of the money in his hands, exclusive of buildings thereon.

As the money was not loaned in accordance with the order (and there is no averment or claim that it was), the question does not arise as to whether a strict compliance with the order would- have released the liability of the sheriff’ or that of his sureties. Elden is not presumed to have consented to any thing but a strict compliance with the terms of the order.

Hubbard and his sureties in their answer do not deny the averment of the petition that on June 11, 1874, the $442.35 were in the hands of Hubbard as such sheriff; and they do not show that he invested, or tried to invest, any part of that money, as directed by the order; and they do not try to account for any part of the $442.35. This leaves their liability in full force, though the money was not demanded until the sheriff’s term of office expired.. See King v. Nichols, 16 Ohio St. 80; Brobst v. Skillen, Ib. 382. But on the trial of the case Elden showed in his evidence that, on June 13, 1874, two days after the entry of the order to loan, Hubbard, as sheriff, may have loaned to one Andrew J. Dever this $442.35; as his successor in the sheriff’s office, about a year after Hubbard left the office, found among some waste papers in a pigeon-hole in his office, a mortgage purporting to be from Dever and wife to Hubbard as sheriff, to secure a loan of this amount, to be paid as required by the order of court; but the land described in the mortgage was only about $300 in value, the mortgage! was not .left for record or recorded, and when found Dever had made an assignment under the insolvent laws.

But no such unexplained partial compliance with the order to loan by Hubbard, even if averred in the answer, could release either his liability as sheriff or the liability of his sureties. There is no error shown.

Judgment affirmed.


author: Atherton, J.

text:
    Ashley v. Rockwell.

      Statute of limitations — Whether saving clause repealed by implicatioii by married women’s act of April 3, 1861.
    The act of April 3, 1861, constituting the real and personal property of a married woman her separate estate, and the provisions of section 28 of the Civil Code (now Revised Statutes, section 4996), authorizing her to sue and be sued alone, did not repeal by implication the saving clause in the statute of limitations securing to married women the right to maintain actions within the respective times limited after such disability is removed.
    Error to the District Court of Ashtabula county.

      Northway $ Fitch, for plaintiff in error,
    upon the question as to whether the causes of action were barred by the statute of limitations, cited Ong v. Sumner, 1 Cin. Sup. Ct. Rep. 424; Hayward v. Gunn, 82 Ill. 385, 391; Stevenson v. Morris, 37 Ohio St. 10; Railroad Co. v. Cobb, 35 Ohio St. 94, 97. In the two latter cases the court did not find it necessary to decide the question, here directly presented, .as to whether the saving clause of the statute of limitations with respect to married women has been repealed by implication. See also Hanford v. Fitch, 41 Conn. 500; Castner v. Walrod, 83 Ill. 171; 25 Am. Rep. 369.
    As to provisions of statutes inconsistent with each other, and which will prevail: Moores v. Bank, 104 U. S. 622; Slater v. Cave, 3 Ohio St. 80; Burgett v. Burgett, 1 Ohio, 482; Moore v. Vance, 1 Ohio, 5; Seymour v. Turnpike Co., 10 Ohio, 482; Castner v. Walrod, 83 Ill. 171.

      W. B. Howland, for defendant in error.
    There is no repugnance between the provisions of the act of 1861, and the saving clause of the statute of limitations. Simmerson v. Tennery, 37 Ohio St. 390 ; Goodyear v. Rumbaugh, 13 Pa. St. 480; Cummings' App., 11 Pa. St. 272.
    If the saving clarase was repealed, it is a repeal by implication ; and such repeals are not favored.

      If different acts relating to the same object or purpose can be construed together, so as to give effect to all their provisions, there is no repeal by implication. State v. Commissioners, 20 Ohio St. 421; Gallup v. Lorain Co., 20 Ohio St. 324; Buckingham v. Railroad Co., 10 Ohio St. 25; Dodge v. Gridley, 10 Ohio, 173.
   Atherton, J.

The original action was brought by the defendant in error, Caroline M. Rockwell, against the plaintiff in error, Salmon D. Ashley, for defamatory words alleged to have been spoken by Ashley of and concerning Caroline. It was alleged that Caroline, at the date of the speaking of the words, was and ever since has been the wife of Gfeorge M. Rockwell. There were five causes of action in the petition, and the date of speaking the slanderous words was alleged to have been, in each case, more than two years before the action was begun. '

Demurrers were interposed to the five causes of action, because neither of them accrued within one year before the action was commenced, and to the fifth cause of action, because the same did not state facts sufficient to constitute a cause of action.

The court overruled both the demurrers, and to that action the defendant excepted. In the subsequent stages of the case, the defense of the statute of limitations was relied and insisted upon in the charge and motion for a new trial, and is now relied upon to reverse the judgment of the court.

The act of April 3, 1861 (S. & S. 389), and its subsequent amendments, provide, that the “ personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest, or inheritance, or by purchase with her separate money or means, or be due as the ■wages of her separate labor, or have grown out of any violation of her personal rights, shall, together with all income, increase, and profits thereof, be and remain her separate property and under her sole control,” etc.

Section 28 of the code of civil procedure, among other things, provided that “where a married woman is a party, her husband must be joined with her, except when the action concerns her separate property, ... in which case she may sue alone.” “And in all cases where she may sue or be sued alone, the like proceedings shall be had and the like judgment rendered and enforced in all respects as if she was an unmarried woman.” “ But in no case shall she be required to prosecute or defend by next friend,” etc.

Section 28 was repealed and re-enacted in 1879 (76 Ohio L. 3), but no changes were made affecting the question now under consideration.

It is claimed by the plaintiff in error that the enactment of these statutes, making the property of a married woman her separate estate and authorizing her to sue and be sued concerning it without joining her husband or prosecuting by next friend, so emancipated her in respect to such actions as to make her, in legal contemplation and effect, a feme sole and, by necessary implication, repealing the saving clause in the statute of limitations in respect to such actions. The question for the court is, did the enactment of those statutes have that effect ?

It has been determined by this court that an injury to the person of a married woman by an assault and battery is a violation of her personal rights, and the right of action accruing to her for the injury, by the act of 1861, concerning the rights and liabilities of married women and by the subsequent amendments, constitutes the separate property of the wife and is under her sole control. Stevenson v. Morris, 37 Ohio St. 10.

The same rule would make the right of action of the plaintiff below her separate estate and property, and, under said section 28 of the Code (now Revised Statutes, section 4996), she had the right to sue alone and recover her damages for the slanderous words.

It was admitted that the defamatory words were all spoken more than two years before bringing the suit.

Section 4986 of the Revised Statutes provides that “ If a person entitled to bring any action mentioned in this subdivision, except for a penalty or forfeiture, is, at the time the action accrues, ... a married woman, . . . such person may bring such action within the respective times limited by this chapter, after such disability is removed.”

Mrs. Rockwell was a married woman when the cause of action accrued and when the suit was brought. This brings us squarely to a determination of the question of repeal by implication, which was mooted and suggested both in Stevenson v. Morris, supra, and Railroad v. Cobb, 35 Ohio St. 97. The saving clause has never been expressly repealed, but has been re-enacted in the same form since the passage of the married women’s act.

Repeals by implication are not favored, and if differr ent acts relating to the same general object or purpose can be so construed as to give effect to all their provisions, there is no repeal by implication.

There would seem to be no difficulty or logical impropriety in the legislature providing that a married woman may sue alone, and in also providing that she may have a given time to sue after the disability of coverture is removed.

If the sole reason, object, and purpose of the saving clause in the statute of limitations was to protect her right of action until she had the legal right to maintain an action without joining her husband or prosecuting by next friend, then the argument of repeal by implication might be unanswerable.

But was that the only object the legislature had in view? Can we say this is the only or even the controlling reason that influenced the legislature to put married women within the protection of the saving clause ?

The wife is always largely within the power of the husband. She may have the naked legal right to sue, and that be of little value or avail to her if he commands her to the contrary. She ought to have the right to sue after his influence, power, and commaud are no longer felt.

We at least have not the right to say that this consideration may not have influenced the legislature in enacting and re-enacting this clause after the statute relating to the rights of married women was enacted, and the court is of opinion that no such repugnancy exists between these statutes as to work a repeal by implication.

In arriving at this conclusion, we are not unmindful of the decision reached by this court in Slater v. Cave, 3 Ohio St. 80.

• The court there held that the statute saving to parties within the age of twenty-one years the right to bring actions within the respective periods after they arrived at that age, was changed by implication to mean eighteen years as to females, by the enactment making eighteen in women the age of majority.

That “case is to be distinguished from the case at bar. There infancy alone produced the disability. When the age of majority w,as changed to eighteen years in females, it gave them all the right to vindicate their causes of action by suit they could ever have. No practical reason existed for giving the emancipated female any longer time than the emancipated male to sue after her disability was wholly removed.

The court is also of the opinion that the defamatory words alleged, in the fifth cause of action, to have been spoken, were actionable per se.

There was no error in the proceedings and judgment of the court below.

Judgment affirmed.


author: Owen, J.

text:
    Corry v. Lamb.

      Dower — Appeal.
    A proceeding by a widow for the assignment of dower in the lands of her deceased husband is a civil action, and a judgment or final order therein may be appealed from.

      Motion to dismiss petition in error to the District Court of Hamilton county.

      Simeon M. Johnson, for the motion.

      1. J. Miller and George B. Okey, contra.

   Owen, J.

The plaintiff in error, Catherine Corry, brought the original action in the court of common pleas of Hamilton county, in 1881, for assignment of dower in lands in which she alleged her husband died seized of a legal estate which the defendant in error, Elizabeth Lamb, claimed to hold. Issue was joined and the cause tried, resulting in a judgment for the defendant.

The plaintiff perfected proceedings for appeal of the cause to the district court, wherein a motion to dismiss the appeal was overruled, to which the defendant excepted. The cause was then heard by that court, a finding of facts, stated, and the cause reserved for final disposition in this court.

The defendant now moves to dismiss the proceeding in error upon the alleged ground that the cause was a special statutory proceeding — was not a civil action — and was not appealable.

The plaintiff in error maintains that, as the action of the district court in refusing to dismiss the appeal is one of the matters for review in this court, the present motion is premature, and should await the consideration of the whole case upon its merits.

1. If the cause was not appealable, the district court acquired no jurisdiction to hear and reserve it, and this court is entirely without jurisdiction to hear it upon its merits. This court may entertain, at any stage of the proceedings, a question involving its own jurisdiction of the controversy before it.

2. Was the cause appealable? Section 5226 Revised Statutes provides that, “ . . . appeal may be taken . . . from a judgment or final order in a civil action rendered by the court of common pleas, and of which it had original jurisdiction, if the right to demand a jury therein did not exist,” etc. The defendant maintains that a proceeding for - assignment of dower is a special statutory proceeding, as distinguished from a civil action — that the dower remedy in the Revised Statutes is not classified with civil actions under the code, as it appears in Part III Remedial, in Title 1 under “ Division VII, Special Proceedings ” (Revised Statutes, p. 1361).

This argument is sufficiently answered by the fact, that actions to recover lands, actions to quiet title to lands, actions of replevin, and actions to collect back or to enjoin the collection of illegal taxes, are also classified with and as “ special proceedings.” Are not these civil actions ?

It was held in Chinn v. Trustees, 32 Ohio St. 236, that: “ The civil action of the code is a substitute for all such judicial proceedings as were previously known either as jaetions at law or suits in equity.” It may be profitable, in the light of this test, to notice the course of legislation concerning dower prior to and since the code.

. By an act relating to dower, passed January 28, 1824 (2 Chase Stat. 1316), it was provided: “ That the widow applying for dower in the lands of her deceased husband may file her petition in chancery . . • . setting forth her right thereto,” etc. JMo special provision was made by this act for the mode of service, etc., thus leaving the petitioner to pursue the mode of proceeding prescribed for suits in equity.

This provision remained in force in the same form until March 9,1866, when it was amended by providing that the widow may “ file her petition . . . as in .civil actions under the code, . . . upon which petition a summons shall issue and be served in like manner as in civil actions under the code, with the same time for answer and reply,” etc. (S. & S. Stat. 310.) The defendant maintains that the language used in this provision, “ as in civil actions under the code,” implies that a proceeding for dower was intended to be distinguished from civil ■ actions; and cites Chinn v. Trustees, supra, 238, where similar language concerning mandamus proceedings was said, by Scott, J., to imply that mandamus is not comprehended within the civil action of the code. It should be borne in mind, in considering this language, that mandamus had not been known, at the adoption of the code, as either an action at law or suit in equity, and hence could not bear the test prescribed by the same judge in the opinion cited.

Whether it was the intention of the legislature, by this amendment, to change the status which dower proceedings had maintained for thirty years prior, and nearly fifteen years subsequent, to the adoption of the code, we need not inquire, for this amended provision was repealed by the new revision of our statutes (75 Ohio L. 797), which provides (section 5708) that “ a widow may file her petition for dower,” etc., with no express provision for service or subsequent pleadings. The defendant relies upon section 604 of the code (S. & C. 1131), which provided that: “Until the legislature shall otherwise provide, this code shall not affect proceedings . . . under statutes relating to dower . . . but such proceedings may be prosecuted under the code, wherever it is applicable.” This provision is to be construed with the first succeeding section (605), which provided that “ . . . where the statute gives an action, but does not designate the kind of action, or prescribe the mode of proceeding therein, such action shall be held to be the civil action of this code, and proceeded in accordingly.” These provisions, however, were repealed by the revision (75 Ohio L. 794 and 820), and are chiefly of value for the light they cast upon the nature of the dower proceeding under the former code of civil procedure.

The provisions relating to dower, under which the original proceeding was commenced (section 5707,-ci seq., Revised Statues), do not “ designate the kind of action, or prescribe the mode of proceeding therein;” and, independently of the general effect which the last revision of our statutes may have had upon proceedings which had theretofore been regarded as special statutory proceedings, it seems clear that a proceeding for the assignment of dower is one in the nature of a civil action.

Section 4956 Revised Statutes provides, that “where, in part three of this revision (embracing dower proceedings), special provision is made as to service, pleadings, competency of witnesses, or in any other respect inconsistent with the general provisions in this title, the special provision shall govern, unless it appear that the provisions are cumulative.”

The logical inference from this provision is that, as the provisions relating to dower are silent upon the mode of proceeding, pleadings, etc., the general remedial provisions of the Revised Statutes relating to proceedure in courts having jurisdiction of dower proceedings are to control the form of service, pleadings, etc., in such proceedings.

These remedial provisions unmistakably impart to such a proceeding the character of a civil action, with the incidental right of appeal.

Motion overruled.