author: Owen, J.

text:
    King v. Penn.

      Jurisdiction on error — By consent or agreement — Limitation—When party estopped, to question — When paper considered "filed” — Docketing case.

    1. This court is without jurisdiction to hear and determine a proceeding in error which is hot commenced within the time prescribed by statute after the rendition of the judgment complained of.
    2. Parties to a proceeding in error can not, by private agreement or consent, nor by voluntary appearance (in the absence of facts which should es-top them to deny the jurisdiction of the court), confer upon this court power to hear and determine such proceeding after the expiration of the time limited therefor.
    3. Where a petition in error is filed within the period of limitation prescribed by statute and both parties proceed with the preparation of the case for final hearing, in the belief that the proceeding has been duly commenced and is actually pending, the defendant in error is estopped, after appearing and submitting the case, either upon oral arguments or printed briefs, to question the jurisdiction of the court, either of the parties or subject-matter, upon the ground that no summons in error was issued or served.
    4. When a paper is in good faith delivered to the proper officer to be filed, and by him received to be kept in its proper place in his office, it is “ filed.” The indorsement upon it by such officer of the fact and date of filing is but evidence of such filing.

      5. The jurisdiction of this court to hear and determine a proceeding in error does not depend upon the docketing of such proceeding by the clerk.
    Motion to dismiss petition in error to the District Court of Brown county.
    The judgment sought to be reversed was rendered September 5, 1882.
    On May 29, 1884, the plaintiff in error filed in this court his motion for leave to file a petition in error to reverse the judgment of the district court. At the same time the petition in error; waiver of notice of the motion for leave; transcript of the record below ; the original papers below ; ten printed copies each of the record and plaintiff’s brief; were by the plaintiff in error deposited with the clerk to be kept in his office. Each of these papers was indorsed by the clerk as filed of that date, except the petition in error, ■which the clerk promised the plaintiff in error, upon the latter’s request, lie would file in this court, upon the granting leave therefor, and also docket the cause in this court.
    The defendant in error promised the plaintiff in error that he would waive a summons in error, and the latter supposed this had been done until after the expiration of two years from the rendition of the judgment of the district court.
    Upon these promises the plaintiff relied and supposed, as did also the defendant, that the petition in error had been duly filed in this court, upon the granting of leave therefor, and that this cause had been duly docketed, and was pending herein, until long after the expiration of two years from the rendition of the judgment below.
    The papers above mentioned have so remained in the clerk’s office, in the same package, to the present time.
    On June 10, 1884, the motion for leave to file petition in error was granted, but it was not by the clerk indorsed as filed until after two years from the rendition of the judgment below.
    On September 15, 1884, the defendant procured from the plaintiff a written acknowedgment of service of the former’s brief, which, on September 25, 1884, he filed in this court, together with ten printed copies of such brief. Each of these papers was indorsed “ filed,” by the clerk, of the latter date.
    On December 17, 1884, the defendant filed in this court and in this case a writing, entitling the case and proceeding: “The issuing and service of summons in error is hereby waived and the appearance of defendant in error is hereby waived. W. W. Young,

      Attorney for Defendant in Error.”
    This paper was indorsed by the clerk, with his file mark, of the date of its filing, and at the same time the petition in error herein was, for the first time, indorsed as filed with the file mark of the clerk. The filing of the petition in error was not entered upon the appearance docket until December 17, 1884.

      On Jauuary 27, 1884, defendant in error filed in this court a motion to dismiss the petition in error for the alleged reasons:
    First. That the petition in error was not filed in this court within two years from the rendition of the judgment complained of; and,
    Second. That this cause was not docketed in this court within two years after the rendition of such judgment.
    These facts appear from the files of the case, the docket entries, and affidavits used upon the hearing of the motion.

      W. W. Young, for the motion, filed no brief.

      Harrison, Olds ¡$¡ Marsh, contra, urged that the petition in error was, in fact, filed.
    The claim that it was not filed because it did not have the file mark on it-is unsubstantial, technical,and unsound. A file mark is only one species of evidence of filing; the filing may be proven by other evidence. Nimmons v. Westfall, 33 Ohio St. 213, 221. Docketing a cause is not essential to jurisdiction. The defendant in error is estopped to deny that the court had jurisdiction to consider his argument or the cause he argued. Railroad Co. v. Mara, 26 Ohio St. 185, 189; Bowen v. Bowen, 36 Ohio St. 315.
   Owen, J.

The question involved in the motion before us is that of the jurisdiction of this court to entertain the proceeding in error in which it is filed.

Both parties supposed the proceeding had been duly commenced and was pending in this court, and pi’oceeded with the preparation for the final hearing of it, the same, in all respects, as if it had been properly commenced and was actually pending. To hold this sufficient to invest this court with jurisdiction of the proceeding, without regard to the time of its commencement, would be to treat such proceeding as one in which the statute of limitation is waived unless specially pleaded. The Revised Statutes, sec. 6723, provide that no proceeding to reverse a judgment shall be commenced (except as to persons under disability) unless within two years after the rendition of the judgment complained of.

That the commencement of a proceeding in error within the time prescribed bylaw is essential to clothe the reviewing court with jurisdiction to hear and determine it is too well settled to justify further discussion. Schooner Marinda v. Dowlin, 4 Ohio St. 500; Little Miami R. Co. v. Hopkins, 19 Ohio St. 279; Railway Co. v. Wick, 35 Ohio St. 247; Piatt v. Sinton, 35 Ohio St. 282; Bowen v. Bowen, 36 Ohio St. 314.

It follows that the parties may not by private agreement or consent, nor by voluntary appearance, confer upon this court power to hear and determine a proceeding in error commenced after the time expressly limited therefor.

What circumstances ought to estop a party to deny the jurisdiction of the court pending the consideration of a cause we shall consider hereafter.

The present motion to dismiss is predicated upon the alleged grounds that the petition in error was not filed nor the proceeding in error docketed in this court within two years from the rendition of the judgment complained of.

Was the petition filed within the two years? On May 29, 1884 (nearly four months prior to the expiration of the two years limitation), the petition in error, motion for leave to file it, waiver of notice of such motion, transcript of the record below, the original papers below, ten printed copies each of the record aud plaintiffs’ brief, were deposited by the plaintiff with the clerk in his office, and all indorsed, of that date, with his file mark, except the petition in error. At the time of the filing of these papers, the plaintiff in error had the assurance of the clerk, upon which, he relied and acted, that, upon the granting of the motion therefor, the petition in error would be formally .filed and indorsed. While it was not the practice to do so, there would have been no impropriety in indorsing the petition in error as filed, upon the filing of the motion, as a paper presenting the grounds and assignments of error complained of, and to be considered only for the purposes of the motion. Had this been done, we think that, in the language of Scotty C. J., in Robinson v. Orr, 16 Ohio St. 286, “the objection that there should havé been a distinct act of refiling after leave granted, is too technical and unsubstantial to require grave consideration.” But the petition was in fact “filed.”

When a paper is in good faith delivered to the proper officer to be filed, and by him received to be kept in its proper place in his office, it is “ filed.” The indorsement upon it by such officer of the fact and date of filing is but evidence of such filing. Haines v. Lindsey, 4 Ohio, 90; Nimmons v. Westfall, 33 Ohio St. 221; Bishop v. Cook, 13 Barb. 329.

In every substantial sense, then, the petition in error was “filed” long prior to the expiration of the prescribed period of limitation.

We are not called upon to consider the question of service by summons in error, as nothing is claimed from absence of service. It may be assumed, however, that no formal service was made. But the defendant in error appeared and filed his printed briefs and arguments after the expiration of the two years limitation (thereby ratifying his informal agreement to enter his appearance made prior to such expiration), treated the proceeding as pending, stimulated the plaintiff in error to continue his work of preparation for the hearing, and invoked the action and consideration of the court upon the merits of the controversy. The circumstances of this proceeding call upon us to say that the defendant in error should now be estopped from availing himself of his supposed discovery (made long after the cause was prepared and submitted for final disposition), that this court was without jurisdiction to proceed further.

In the language of the opinion in C. C. & C. R. R. Co. v. Mara, 26 Ohio St. 190: “Any other rule of practice would enable parties to trifle with the court by first requiring it to hear the case upon its merits, and then, when an adverse decision on the merits is reached, turning round and denying its jurisdiction, thus rendering all its labors abortive and useless.” It is said of this cáse by the court in Bowen v. Bowen, 86 Ohio St. 315 : “ We do not question the principle settled in that case, that where the petition in error is filed, but there is no service within the time, the defendant may, after the time, by voluntarily appearing to the merits, estop himself from denying service within the time, or from questioning the authority of the court to hear and determine the case on the merits.”

The jurisdiction of this court does not depend upon the docketing by the clerk of a proceeding in error, and this ground of the motion to dismiss is not well taken.

Motion overruled.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Mary O’Donnell v. D. D. Downing.

      Petition in error — Leave to file — Section 79 Revised Statutes — Act of February 7, 1885.
    Motion for leave to file petition in error to the District Court of Madison county.

      W. J. Gilmore and Martin O’Donnell, for the motion.

      Harrison, Olds ‡ Marsh, contra.
   By the Court.

The right to file a petition in error, upon

leave granted, to reverse a judgmeut of the district court, is a cause of proceeding, and is saved by section 79 Revised Statutes, notwithstanding the act to revise and consolidate the statutes relating to circuit and other courts, passed February 7, 1885. Lafferty v. Shinn, 38 Ohio St. 49 ; Bode v. Welch, 29 Ohio St. 19, 22.

Motion granted.


text:
    Gordon Shilito et. al., Exrs., etc. v. John A. Thacker, Admr., etc.

      Bill of exceptions— When not considered part of record.

    Error to the District Court of Hamilton county.

      G. B. Matthews and Ramsey $ Matthews, for the plaintiffs in error.

      ■Goppock 8¡ Goppock, for defendants in error.
   By the Court.

A paper purporting to be a bill of exceptions, but which is not signed as required by statute, will not be considered as a part of the record, although the journal entry in the case recites that a bill of exceptions was duly signed, sealed, allowed and ordered to be made part of the record, and no other paper purporting to be a bill of exceptions appears in the files of the ease. Rankin v. Sanderson, 35 Ohio St. 482, approved and followed.

Judgment of the district court reversed and that of the common pleas affirmed.


author: Johnson, J.

text:
    Niehaus v. Faul.

      Homestead — Allowance in lieu of — Section 5441 Revised Statutes.

    P., being the owner of a tract of land,-and entitled to a homestead therein, mortgaged the same. She also owned other land subject to another mortgage made by her. Both mortgages were foreclosed and the lands ordered sold to satisfy the same,at the instance of a judgment creditor, who sought to subject her equity of redemption in both tracts to the payment of his judgment, she having no other property to satisfy the same. Before sale, P. demanded an allowance of $500 in money out of the surplus proceeds of such sales, on the ground that she was precluded from having a homestead by metes and bounds, by reason of her mortgages. The homestead tract was first sold, the sale was confirmed, but the surplus under order of distribution, after the payment of prior liens, was insufficient to satisfy this demand. Afterward the other lands were sold, leaving a surplus, after satisfying the mortgage thereon. Held:

    1. The right to demand an allowance in -lieu of a homestead under Rev. Stats., section 54:4,1, out of the proceeds of the second sale, is to be determined by the state of facts at the time the surplus arising from such sale was finally disposed of by the court.
    2. That by the sale and confirmation of the homestead tract, R. was divested of her ownership therein, and was no longer the owner of a liome- • stead, and if the surplus, arising from the first sale, was insufficient to satisfy her demand, she was entitled under section 5441 to have the same satisfied out of the surplus arising from the sales of the other lands, though not entitled to a homestead therein.
    Error to the District Court of Clermont county.
    July 7, 1879, plaintiffs, Neihaus and Klinckhamer, obtained a judgment against Barbara Paul for $413.57 and costs. She was the owner of four tracts or lots of land; the first, second, and third being in Batavia in said county and the fourth lying outside of said village; those in Batavia being subject to a mortgage made by her to one Brimmer for $500, and. the fourth tract to another mortgage by her to Brimmer for $600, the former dated December 14, 1878, and the latter October 23, 1878.
    The plaintiffs, as judgment creditors, commenced their action to subject the equity of redemption of Bai’bara Paul, in all of said tracts,-to the satisfaction of their judgment against her, making the mortgagee a defendant; who answered, setting up his claims. At March term, 1881, a judgment was rendered that Brimmer’s mortgages were paramount to plaintiffs’ judgment on said tracts, and ordering them sold, the first, second, and third to satisfy the $500 mortgage and the fourth to the $600 mortgage, balance, if any, after paying costs, to be applied on plaintiffs’judgment. Under this order the property was sold, but this sale Avas, on motion of defendant, set aside. Upon supplemental petition the decree in Brimmer’s favor was modified as to amount due him and an order of sale again made in his favor.
    June 8, 1882, and before sale, Mrs Paul filed an application for an allowance of $500 out of the proceeds of said real estate, in lieu of a homestead after paying the mortgage liens, on the ground that under said mortgages she was precluded from claiming a homestead by metes and bounds.
    June 14, 1882, all of said tracts having been sold, she moved the court to set aside the sales.
    July 8,1882, the demand for a homestead was passed upon by the court, which found the following facts :
    “ This day this cause came on to be heard on the motion and demand of the defendant, Barbara Eaul, for the allowance out of the proceeds of real estate sold in this case of the sum of five hundred dollars in lieu of a homestead. And the court having heard the evidence and argument of counsel and being fully advised in the premises does find that there is a dwelling-house and outbuildings on the fourth tract in the pleadings in this case described; that at the date of the levy of the execution and at the date of the judgment on which said execution was issued the said Barbara Eaul was occupying said fourth tract as and for a homestead. And the court further finds that there is a dwelling and outbuildings on the first, second, and third tracts in the pleadings in the case described, and that after the rendition of judgment against her in favor of the plaintiffs, and the issuance and levy of execution upon said judgment, the said Barbara Eaul abandoned the fourth tract and removed and took possession of the said dwelling-house and outbuildings on said first, second, and third tracts and has ever since continued to l’eside thereon. And the court further finds that at the date of the rendition of said judgment and the issuance and levy of said execution the defendant, R. M. Brimmer, held deeds for the whole of said real estate, and that the execution was levied on the whole thereof, and that this court has since in a proper proceeding, to which the said Barbara Eaul and the said R. M. Brimmer and the plaintiff’s were parties, declared the said deeds, though absolute on their face, to be mortgages, and has determined the amounts due thereon from the said Barbara Faul to the said R. M. Brimmer.”
    Upon this state of facts, the court finds that said Barbara is precluded from having a homestead in either of said tracts by reason of the Brimmer mortgages, and is entitled to the $500 out of the fourth tract, subject to Brimmer’s mortgage, but not out of the first, second, and third tracts.
    On the same day, July 8, 1882, the sales of the tracts last named were set aside and of the fourth tract confirmed.
    A distribution of the proceeds of the fourth tract was then ordered, which, after payment of costs, taxes, and the Brimmer mortgage thereon, left $10.89 to apply on the homestead claim.
    No appeal was taken from this order, but Barbara Faul appealed from the judgment disallowing her money in lieu of a homestead in the first, second, and third tracts. They were afterward sold and, after satisfying prior liens, there remained $403.65 to be applied, either to plaintiffs’ judgment or to the claim for exemption in lieu of a homestead, according as the law may be. The common pleas ordered this surplus to be applied to plaintiffs’judgment.
    On appeal, the district court, upon the evidence and the law, determined that this balance of $403.65, arising out of the sale of the first, second, and third tracts, should bo applied to the claim for a homestead in preference to the judgment of plaintiff's.
    A bill of exceptions was taken, setting out all the evidence, but it is unnecessary to stake it in detail. In effect it warrants the finding of the court of common pleas, already quoted, and the further finding that Mrs. Faul was the head of a family, and entitled to a homestead under the statute, unless she is deprived of it by reason.of the facts stated.

      Ashburn § Iiulick, for plaintiffs in error.

      A. T. Gowen, J. C. McMath, J. T. Parrott, and Wm. Pease, for defendants in error.
   Johnson, J.

The facts show that at the time Mrs. Faul made the mortgages, one on the fourth tract and one on the three lots, and at the time she contracted the debts to plaintiffs, as well as when proceedings were instituted to subject her equity of redemption to the satisfaction of the plaintiffs’judgment, her homestead was on the fourth tract outside of the village of Batavia, and that after judgment and levy she abandoned the fourth tract, and adopted'as a homestead a dwelling-house on one of the three lots in Batavia, all of which were afterward sold as one tract. As all the tracts were covered by mortgages, precluding her from demanding a homestead by metes and bounds in either tract, and as only $10.89 was realized to her out of what was her actual homestead on the fourth tract, her claim is to the surplus money arising from the village property in preference to the judgment creditor.

This application is based upon Rev. Stats., section 5410, which is as follows: “When a homestead is charged with liens, some of which, as against the head of the family, or the wife, preclude the allowance of a homestead to either of them, and others of such liens do not preclude such allowance, and a sale of such homestead is had, then after the payment, out of the proceeds of such sale, of the liens so precluding such allowance, the balance, not exceeding five hundred dollars, shall be awarded to the head of the family, or the wife, as the case may be, in lieu of such homestead, upon his or her application, in person, or by agent or attorney.”

The district court determined this case under Rev. Stats., section 5441, which provides : “Any resident of this state who is the head of a family, and not the owner of a homestead, may hold exempt from levy and sale real or personal property, to be selected by such person, his agent, or attorney, at any time before sale, not exceeding five hundred dollars in value, in addition to the amount of chattel property otherwise by law exempted.”

If Mrs. Paul, who was the head of a family, permanently abandoned her homestead on the fourth tract before sale of the same, and fixed her home elsewhere, she was no longer entitled to demand under Rev. Stats., section 5440, a money allowance in lieu of a homestead out of the proceeds afterward arising from a sale thereof. After such abandonment her right to such allowance out of the pi-oceeds of that tract must arise, if at all, under the provisions of Rev. Stats., section 5441.

Her right to such surplus must be determined by the state of facts existing when the fund is finally disposed of by the court.

And this is equally true of the fund arising from the subsequent sale of the other tracts lying within the village of Batavia. Cooper v. Cooper, 24 Ohio St. 488; Jackson v. Reid, 32 Ohio St. 443.

Whether the court was right in giving her the $10.89 arising after satisfying the mortgage of the fourth tract, seeing that she had before such sale permanently abandoned the same, may well be doubted; but as there was no exception to or appeal from this order, and no error now assigned, we need not determine it. When the property in Batavia was sold she had ceased to be the owner of a homestead in the fourth tract. She had lost her right therein either by abandoment or by the sale. In either case, and by which is immaterial, she was not the owner of a homestead in the fourth tract.

If she had acquired a new homestead in the Batavia property subject to the mortgage thereon, she was entitled to the surplus under section 5440 of the Revised Statutes.

But if not, and the abandonment or sale of the fourth tract had divested her, as we hold it did, of a homestead therein, then she was not the owner of a homestead, and under section 5441 was entitled to this surplus.

Brimmer might have foreclosed the mortgage on the fourth tract, and divested her of a homestead therein, and afterward foreclosed the mortgage on the Batavia property. No one would doubt Mrs. Paul’s right under section 5441 to her allowance out of the surplus arising from the last sale, if the Batavia lots, after satisfying the mortgage thereon, left a surplus. Practically and in legal effect, that is what was done in this case. Although done in one action there were two foreclosures and two sales, with separate judgments and confirmations upon each mortgage.

At the time when this fund was in court for distribution Mrs. Paul had ceased to be the owner of a homestead in the fourth tract, and was entitled to an allowance of her exemption out of the surplus proceeds arising from the sale of the Batavia property.

This surplus, together with the amount she received from the fourth tract, does not satisfy her demand.

The judgment of the district court is affirmed.


author: Follett, J.

text:
    Younglove v. Hackman.

      Street — Appropriation of land to open — Severance of single tract into two parcels — Charge of assessment on one parcel — Tax sale — Valid, though part of tax illegal— Whether purchaser entitled to illegal taxes paid.

    1. The appropriation by a municipal corporation of land for the opening of a street through a parcel of land standing on the tax duplicate as a single lot, severs the same into two lots, for the purposes of assessment, though it remains on the general tax duplicate as an entirety for purposes of other taxation. Spangler v. City of Cleveland, 35 Ohio St. 469, approved and followed.
    2. Where the same is assessed as two lots, and the assessments thus made are certified to the county auditor for collection, it is error to charge such assessments made on each side of the street upon the land on one side of the street.-
    3. Where land is sold for non-payment of taxes charged thereon, and some part of such taxes is so charged illegally, such sale is void.
    4. Where a tax sale proves to be invalid, the purchaser is entitled to receive the legal taxes, including interest and penalty legally thereon paid by him, and legal taxes subsequently paid by him, with interest from the date3 of such payments; but he is not entitled to receive illegal taxes thereon paid by him, or interest or penalty thereon.
    Error to the District Court of Cuyahoga county.
    Since 1867, Moses C. Younglove has owned a lot of land 235 feet wide, situated in East Cleveland, which, in October, 1872, became a part of the city of Cleveland. In 1878 Prospect street was extended east through this lot, so as to divide the lot into two parts; the part on the north side being but 22 feet in depth and 285 feet front, and the part on the south side being 235 feet front and of a much greater depth.
    For opening this East Prospect street an assessment was made on lands abutting and adjacent, and was $3 per foot front on the north side, and $7 per foot front on the south side ; being $705 on that part of the lot lying north of the street, and $1,645 on the part lying south of the street.
    Assessments for grading the street and for curbing were also made on each side by the foot front.
    On March 30, 1874, Younglove paid to the city treasurer $1,645, which was the full amount of the special assessment levied upon the land on the south side of said street for the opening of the same. The tax for the grading and curbiug was not payable until 1874. The special assessment levied upon the north side lot for the opening of the street, and the special assessment levied upon both the north side lot and the south side lot for the grading and curbing of the street, were certified to the auditor of the county ; and by him the entire assessment for opening the street levied upon the north side lot — being two installments of $165 each— and the entire assessments for grading and curbing the street levied upon the north side lot, together with the special assessments for grading and curbing levied upon the south side lot, and the general tax and sewer tax against both pieces of land, weré all charged upon the general tax duplicate for the year 1874, and for all subsequent years against the lot of land on the south side of East Prospect street.
    Before any of the items of tax or assessment had become delinquent, plaintiff in error tendered to the treasurer of the county the general and sewer taxes and the special assessments levied upon the south side lot, but declined to pay the assessments which were really levied upon the north side lot and charged upon the duplicate upon the south side lot, on the ground that the assessments were illegal. Like tenders were regularly made by Younglove. or his agents, and in each case before delinquency, twice a year until and including July, 1877; and in June, 1877, he brought this suit. All tenders were refused by the treasurer.
    On January 18, 1876, the lot on the south side of the street was sold to defendant, Joseph Hackman, for $967.86.
    The items making up that sum were as follows :
    General tax for 1874 against both lots.........................................$ 46 20
    Sewer “ “ “ “ “ .......................................... 11 55
    Opening assessment north side lot, 1st installment......................... 165 00
    “ “ « “ “ 2d “ ......................... 165 00
    Grading and curbing assessment north side lot, 1st installment....... 133 95
    Grading ancl curbing assessment south side lot, 1st installment...... 133 95
    General tax for 1875 against both lots.......................................... 48 67
    Sewer “ “ “ “ “ ............... 16 50
    Grading and curbing assessment north side lot, 2d installment......... 117 50
    “ “ “ “ south “ “ “ “ 117 50
    Penalty on general tax for 1874................................................. 11 54
    Total................'............................................................$967 36
    There were charged against the south side lot on the general duplicate for 1876 the following items:
    General tax against both lots....................................................$ 48 68
    Grading and curbing assessment north side lot, 3d installment......... 115 62
    “ “ “ “ south “ “ “ “ ......... 115 62
    -Total.........................................................................,.$279 92
    This amount was paid to the treasurer by Hackman, one-half January 7, 1877, one-half August 1, 1877; but both in January and July, 1877, plaintiff in error made a tender to the treasurer of the eutire general tax aud the special assessments levied upon the south side lot, which tenders were refused.
    The taxes charged against the south side lot on the duplicate for 1877 were not paid when due, and the lot was again sold at tax sale, January 21, 1879, to Hackman, who - paid therefor $98.71. All taxes and assessments subsequently charged against the lot have been paid by plaintiff in error.

      June 5, 1877, plaintiff in error filed his petition in the common pleas court of Cuyahoga county, against Joseph Hackman and Levi D. Benedict, auditor of the county. The petition alleged the invalidity of the tax sale and the reasons therefor; the tenders by the plaintiff to the treasurer of all taxes and assessments levied or chargeable upon the south side lot prior to any delinquency, and asked that the sale might be set aside and Hackman ordered to surrender the certificate of purchase; and the auditor restrained from giving a deed to Hackman; and for. other proper aud equitable relief.
    The answer denied the illegality of the tax sale, and set up the amounts paid by Hackman, to wit, $1,247.28, and claimed a lien on the lot, for that sum and 50 per cent penalty added, equaling $1,870.93, with interest on the amounts paid from the respective dates of payment; and averred that the lot on the north side of the street and the lot on the south side were in fact one parcel of laud. The reply denied that the north side lot and the south side lot were one tract of land; and denied that Hackman had a lien on the lot for $1,870.93, or for any sum; and averred that the plaintiff was ready and willing to pay Hackman whatever sum, if any, the court may find he has a right to receive and is a lien on the south side lot.
    The common pleas court held that both the tax sales to Hackman were invalid, but decreed that they should be set aside only on plaintiff’s paying to Hackman the sums he had paid, with interest from the respective datqs of payment; and also that Younglove and Hackman should divide the costs equally.
    The plaintiff appealed the case to the district court, and that court gave the same judgment; and plaintiff took a bill of exceptions, and now seeks a reversal of that judgment.

      James H. Hoyt and Wm. H. Gushing, for plaintiff in error.

      John F. Weh, for defendant Hackman.

      Kain, Sherwood § Bunts, for defendant Pelton.
   Follett, J.

Youuglove brought his action on June 5, 1877, to set aside the tax sale of January 18, 1876, and within two years from the time of the tax sale. The last tax sale was January 21, 1879, and when the action was pending. In opening streets and in making assessments by the foot front, the manner of making the same and the duties of the auditor are clearly laid down in Spangler v. City of Cleveland, 35 Ohio St. 469, where it is held: “1. The appropriation of land for the opening of a street, by a municipal corporation, through a parcel of land which stands upon the tax duplicate as a single lot or parcel, severs the same into two lots or parcels for the purposes of assessment, though it remains on the general tax duplicate as an entirety for purposes of taxation.

“2. "Where the same is assessed as two lots, and the assessments thus made are certified to the auditor of the county for collection, by order of the council, it is error to add the assessments made on each side of the street together, and charge the same upon the whole lot, as if no severance had been made.”

Here a part of the assessment was $3 per foot front ou the north side, and should have been entered on the tax duplicate against that side only.

Also in Corry v. Folz, 29 Ohio St. 320, the court held: “ Where a street has been improved and a special assessment by the front foot of the lot or parcels of laud abutting on it has been made to pay the expense of the improvement, each lot or parcel of land so abutting is separately liable for the amount assessed upon it, provided the amount does not exceed the maximum allowed by law.”

These cases show that it was error for the auditor to charge the assessments made on the north side of the street against the land on the south side $ and, as against the south side, such assessments, when so charged, were illegal. These illegal assessments were wrongly charged against the south side and caused the land to be sold, but rendered the sale void. Wallingford v. Fiske, 24 Me. 386; Hall v. Kellogg, 16 Mich. 135; Case v. Dean, 16 Mich. 12; Hubbard v. Brainard, 35 Conn. 563.

Where the tax sale is void or invalid the purchaser can not recover any penaltv. Johnson v. Stewart, 29 Ohio St. 498.

There is no doubt that the rule of caveat emptor applies to purchasers at tax sales, but we have a statute that defines what the owner of the land shall pay to remove the cloud of an invalid tax sale. The one in force when this sale was made (S. & C. 104, § 32), provides : “ If such sale should prove to be invalid on account of any irrégularity in the proceedings of any officer having any duty to perform in relation thereto, the purchaser at such sale shall be entitled to receive from the proprietor of such land or lot the amount of taxes, interest, and penalty, legally due thereon at the time of such sale, with interest thereon from the time of payment thereof, and the amount of taxes paid thereon by the purchaser subsequent to such sale,” etc. As that statute is written, the context, the location of the words, and the punctuation, all and each lead to the conclusion that the words, “legally due thereon at the time of such sale,” qualify the preceding words, “ amount of taxes, interest, and penalty.” This case shows'the value of such a statutory limitation in preventing a city from evading the maximum limit of assessment.

The amounts that were specifically assessed upon the north side of the street, and that wmre afterward charged to the south side of the street, can not be included in the amount of laxes and interest and penalty that the purchaser shall receive from the proprietor of this lot. He should receive the general taxes and the special assessments levied on the south side that he paid, and interest on such payments from the respective dates of such payments; that is, the legal taxes on the south side and proper penalty and interest, but no illegal tax hr penalty.

The offer of Younglove to pay Hackman whatever sum or sums the court may find should be so paid by hini as a condition of the relief prayed for, may excuse a specific tenclei’, but we think the offer did not stop interest on the amount of taxes legally duo thereon that Hackman paid.

Judgment reversed and cause remanded.


text:
    Railroad Company v. Wagner, Treasurer.

      Taxation — County ditch improvement — Necessity of notice of proceedings to resident land-owner — Sections 4490 and, 4491 Revised Statutes.

    Where county commissioners linvo caused to bo placed on the duplicate a personal tax to be collected against a resident owner of land as part of the cost of a county ditch affecting his land, under a proceeding of which such land-owner had neither notice nor knowledge, such tax is illegal, and its collection may be perpetually enjoined. The remedial provisions of sections 4490 and 4491 (ltev. Stats.) do not apply to such a case. Miller v. Graham, 17 Ohio St. 1, distinguished.
    Error to the District Court of Seneca county.

      Newbegin &¡ Kingsbury, for plaintiff in error.

      Noble ^ Adams, for defendant in error.
   Owen, J.

The original action was hy the plaintiff in error, the Baltimore and Ohio and Chicago Railroad Company, an Ohio corporation, to enjoin the collection of $436, the costs of construction, and $17.96, the costs of location of a county ditch, which stood charged against it on the treasurer’s duplicate, to be collected like other taxes, and which it was alleged was there without authority of law. The ditch proceedings were conducted under the statutes in force April 12, 1876.

Numerous grounds of illegality and invalidity of the proceedings are alleged ; among them, that the plaintiff had neither notice nor knowledge of such proceedings until after the pretended assessment or tax had been placed upon the duplicate for collection. The denials of the answer are so far unresponsive to the averments of the petition that the plain effect of the pleadings in the case is to leave this fact admitted.

The case was taken on appeal to the district court, which referred it to a special master, who heard it upon the evidence. He found and reported, among other things, that “ there is such error in the record here as will allow plaintiff relief, if injured theréby ;” and further : “That there is such error in the record, on. account of the insufficiency of the notice only, as will allow plaintiff relief, and that plaintiff has been injured thereby, and also an unjust apportionment to plaintiff.”

Assuming that the case was one within the operation of the curative provisions embodied in sections 4490 and 4491 Revised Statutes, the master proceeded to reduce the amount apportioned to the plaintiff as the cost of construction of the ditch, to the sum of $240.80.

The record discloses that the ditch proceeding throughout, so far as it affected the plaintiff, was one to chai'ge upon it a pérsoDal tax. No attempt was made to charge it, as a “ resident land-owner,” whose land was to be affected by the ditch, or to subject its lands to the charge of an assessment for the cost of the ditch.

The master’s report was confirmed by the district court, whereby it was ordered that the plaintiff pay the sum of $240.80 and $17.85 (costs of location), to the treasurer of Seneca county, within ten days, and that in default thereof that execution issue therefor.

The result of it all is that a personal tax charged upon the duplicate against the plaintiff, as the fruit of a proceeding to which it was in no manner a party, of which it had neither notice nor knowledge, is ordered to be paid by it, and that in default of such payment execution issue therefor ; which is to be satisfied out of its general property.

As against the plaintiff, the proceeding leading to this tax was a nullity.

The proceeding'by and before the master, is attempted to be justified on the authority of Miller v. Graham, 17 Ohio St. 1.

While we are not called upon by any thing in the present case to review or consider the soundness of that decision,* we certainly are not disposed to extend the application of the role there announced.

That was a proceeding in rem to charge the lands of a non-resident, constructive notice to whom would have been sufficient to clothe the commissioners with jurisdiction to proceed, and to charge his lauds with an assessment for part of the expense of the improvement. The published notice was defective. The proceedings were ordered to be set aside and the owner allowed to come in and show wherein he'was injured. Brinkerhoff, J., says :■ “ The remedial provisions of the statute are, in fact, in the nature of proceedings de novo, in which the party on whose lands an assessment has been laid, is permitted to make every claim and every showing which he might have made if the proceedings by and before the commissioners had been in all things regular, and he had been personally notified from the beginning.”

The eminent judge proceeded upon the assumption that every right and every protection assured to one whose lands were sought to be charged by the proceeding, and who was originally served with notice, could be as well and fully accorded to the plaintifl’by proceedings de novo, resulting from setting the proceedings aside, and allowing him to show wherein he was injured. Granting the assumption to be well founded, there is no substantial objection to such an interpretation of the remedial provisions therein invoked. But the proceeding now called in question was clearly one in personam,. The plaintiff was entitled to personal service of notice of the proceeding to charge it.

The first notice it had was one to pay a special personal tax charged against it upon the duplicate. Among the simplest rights of the plaintiff, as a resident owner of land to be affected by the proceeding, was that to dig that part of the ditch apportioned to it.

, It is difficult to conceive of a Lenovo proceeding so radical and comprehensive as to secure to it the benefit of this privilege, after the completion of the ditch.

While we are not called upon to give controlling importance to this consideration as a jurisdictional question, it is an aid in determining the true interpretation of the act in question. The remedial provisions of the ditch laws are entitled to liberal interpretation; but we are not prepared to say that it was within the legislative intent to give to them an interpretation so at war with the inviolability of private property as that now contended for by the defendants in error.

“ No man is to be condemned without the opportunity of making a defense, or to have his property taken from him by a judicial sentence without the privilege' of showing, if he can, that the pretext for doing it is unfounded.” Ray v. Norseworthy, 23 Wall. 128, 136. If the tax was authorized, the plaintiff was made an in voluntary debtor by a proceeding to which it was throughout a stranger.

We must deal with the proceeding as one seeking to subject the plaintiff and its general property to all the incidents of a personal judgment; and we can not suppose that the provisions we are construing were intended so far to dispense with jurisdictional facts as to ignore, in such a case, that fundamental principle of. our law which hears before it condemns, and to cast upon a party the burden of showing, by vexatious and expensive litigation, that he has been injured by an unauthorized proceeding to charge him and his estate, of which he has had neither notice nor knowledge.

Judgment reversed, and injunction perpetuated.


author: Okey, J.

text:
    McCurdy v. Baughman.

      Pleadings — Construction—Judgment of justice of the peace — Collateral attack — Default judgment against married woman, whether void■ — ■ When enjoined.

    1. Pleadings, under the present system, must be fairly and reasonably, not strictly, construed; and where the plaintiff seeks to restrain the enforcement of a judgment upon a promissory note, rendered against her while she was a married woman, an allegation with respect to her execution, during coverture, of such note, that “ she was ignorant of what she was signing,” should be construed in connection with the other parts of the pleading; and if by so doing, the fair meaning of such phrase appears to be merely that she was not fully informed as to the exact nature and extent of her obligation on such note, the phrase will bo so construed.
    2. In order to render a valid judgment, ajusticeof the peace must have jurisdiction of the subject-matter and parties, as prescribed by statute, and this must fairly appear by his record; but jurisdiction appearing, his judgments aro as impregnable against collateral attack as those of any other tribunal.
    3. A judgment rendered upon default against a married woman, in an action to which coverture would have been a defense, is not void, but voidable; and the enforcement of such judgment will not be enjoined, unless some equitable ground of relief be shown, such, for instance, as fraud or coercion.
    Error to the District Court of Franklin county.
    January 20,1871, John Baughman and Mary Baughman executed and deliverd to II. II. McCurdy a promissory note, payable to his order, for $99.50, due one day after date, with interest at eight per cent. McCurdy having indorsed the note to Burén Taylor, the latter, on March 18, 1871, obtained by default, a judgment thereon against the makers and indorser for the amount of the note with interest, before a justice of the peace of Franklin county. At the time the note was executed and also when suit was brought and when judgment was rendered, Mary Baughman was the wife of John Baughman, and she continued to be his wife until March 4, 1873, when he died insolvent.
    September 17, 1878, the judgment having become dormant as well by the death of John Baughman as from the fact that no execution had issued for more than five years, the judgment was revived in due form, before the justice, against McCurdy aud Mary Baughman, the latter failing to appear in obedience to the order of revivor, which was served upon her.
    The coverture of Mary Baughman did not appear in the record in any form.

      November 15,1878, Taylor filed a transcript of such judgment in the court of common pleas of Franklin county, and the clerk of that court having issued an execution thereon, the sheriff of Franklin county levied the same on the real estate of Mary Baughman (properly described), and advertised the same for sale on April 5,1879. Mary Baughman thereupon commenced an action in that court, against McCurdy and Taylor, to enjoin the enforcement of such levy, execution and judgment. In her petition she sets forth the above facts, which are admitted, and further alleged that the debt for which the note was given was the individual debt of John Baughman ; that she signed it at his request and as his surety; that she was not then indebted to McCurdy, nor was she the owner of any property, nor was she engaged as partner or otherwise in any mercantile business ; “ that she was ignorant of what she was signing at the time, and that she derived no consideration whatever from said H. H. McCurdy, or any other person or persons whatsoever, upon said note;” that the real estate levied upon came to her since the death of her husband, as the heir of her father; that the judgment, revivor, execution, and levy are all void, and she prays for a perpetual injunction.
    The court having overruled a demurrer to the petition, the defendants, by answer, denied that the note was given for an individual debt of John Baughman, denied that Mary Baughman signed the note as surety, and denied the allegation that she received no consideration for it.
    The case was submitted to the court on the petition and answer, without evidence, and the court decreed in accordance with the prayer of the petition. The district court having affirmed the judgment, a petition in error was filed in this coui’t to reverse the judgment below.

      Mariott § Hughes, for plaintiff in error.

      Outhwaite $ Linn, for defendant in error.
   Okey, J.

1. The allegation of the plaintiff below, in her petition, that when, she signed the note “she was ignorant of what she was signing,” is to he construed in connection with the admission that she knew it was a promissory note, and with the allegations that the note was given for an individual debt of John Baughman, and that she signed it as his surety at his request, and the further fact must be considered that the petition contains no allegation of fraud or coercion, nor is it even claimed that she was misled or mistaken as to the nature of the instrument, nor that she would have refused to sign it on the fullest explanation. Pleadings, under the present system, must receive a fair and reasonable construction (Crooks v. Finney, 39 Ohio St. 57 ; Robinson v. Greenville, 42 Ohio St. 625), and so construed, the phrase quoted means no more than that she was not fully informed as to the exact nature and extent of her obligation on such promissory note. Clearly, such an indefinite statement in a petition, in view of the facts stated, affords no ground of relief. At best, the matter should have been set up when suit was brought on the note.

2. In Ohio, justices of the peace have jurisdiction only as conferred by statute, and in order that the decision of such magistrate should operate as an estoppel, it must appear from his record that the matter adjudicated was within the jurisdiction so conferred, and also it must appear that he had acquired jurisdiction over the person. This fairly appearing, however, the judgment of a justice of the peace is as impregnable against collateral attack as the judgment of any other court in the state. The State v. Daily, 14 Ohio, 91. Hence, the case would stand in no respect different if the judgment had been rendered by the court of common pleas.

3. The answer in effect admits the allegations of the petition, except so far as denied. No proof of the matters denied having been offered, the allegation of Mary Baughman, in her petition, that the note was given for the individual debt of John Baughman, and that she signed the note as his surety and at his request, may be regarded, for the purpose of this opinion, as out of the ease. And this brings us to the real questions in the case, which may be stated as follows: A married woman, upon sufficient consideration, united with her husband in executing to another person a promissory note, and she and her husband being sued thereon, failed to appear in obedience to the summons, and judgment was rendered against both for the amount of the note, although coverture would have been a complete defense in her behalf, and she was fully authorized to make such defense. Civil Code of 1853, § 29; Rev. Stats., § 4997. The disability did not appear in the record, and no step was taken to set aside or reverse the judgment. Is such judgment void or merely voidable, and, if merely voidable, will a court of equity, without allegation and proof of some ground of relief additional to coverture, as, for instance, fraud or coercion, enjoin the enforcement of such judgment ?

The first question, namely, whether such judgment is void, is very distinctly answered in the negative by Callen v. Ellison, 13 Ohio St. 446. That was a case in which it was shown by the record that a member of the bar appeared in court, and producing the warrant of attorney of Rebecca Callen and others, confessed judgment against them for an amount specified therein, upon which judgment their land was sold. Rebecca Callen and other defendants were, at the time the warrant was executed, and also when the judgment was confessed, married women, though the fact did not appear in the record. No steps were taken to ¡set aside or reverse the judgment. Subsequently to the ■sale, the persons so under disability sought to obtain partition of the land, proceeding upon the theory that the judgment and sale were as to them merely nullities; but this court, in an able and instructive opinion by Gholson, J., unanimously held that the judgment and sale were valid «aid operated as a complete bar to partition, notwithstanding such coverture; and that decision has never been doubted or questioned in this court, but has been repeatedly cited with approbation. Wehrle v. Wehrle, 39 Ohio St. 365.

Undoubtedly a number of decisions have been found to be in opposition to Callen v. Ellison : Graham, v. Long, 65 Pa. St. 383; Swayne v. Lyon, 67 Pa. St. 436; Vandyke v. Wells, 103 Pa. St. 49 ; cf. Hartman v. Ogborn, 54 Pa. St. 120; Morse v. Toppan, 3 Gray, 411 ; Griffith v. Clarke, 18 Md. 457; Higgins v. Peltzer, 49 Mo. 152; Weil v. Simmons, 66 Mo. 617; Wernecke v. Wood, 58 Mo. 352 ; cf. Walker v. Deaver, 79 Mo. 664; Cary v. Dixon, 51 Miss. 593; Norton v. Meader, 4 Sawyer, 603. And see Brittin v. Wilder, 6 Hill, 242 ; Watkins v. Abrahams, 24 N. Y. 72 ; Hix v. Gosling, 1 Lea, 560 ; Swing v. Woodruff, 41 N. J. Law 469 ; 7 Rob. Pr. 157 ; Schouler on Hus. & Wife, § 289, note 5; Bigelow on Estoppel (3d ed.) 61, 62; 1 Dan. Ch. Pr. (5th Am. ed.) 186, note by Chancellor Cooper.

With respect to some of these cases a brief explanation is proper. Morse v. Toppan, which is an opinion of ten lines by Chief Justice Shaw, has not been followed in Massachusetts, and although not overruled, it is much shaken by Reid v. Holmes, 127 Mass. 326, 329, where Gray, C. J., remarked: “In Morse v. Toppan, 3 Gray, 411, the judgment which was held void was against a married woman alone, in an action brought against her upon a contract made by her during coverture, while she was incapable by law of contracting or being sued; no argument was submitted for the plaintiff; and in the only case cited by the court (Faithorne v. Blaquire, 6 M. & S. 73), the judgment was set aside on motion.” And see Frieson v. Bates College, 128 Mass. 464. Cary v. Dixon, though not overruled, is limited in Taggert v. Muse, 60 Miss. 870, which is an authority that the judgment against Mrs. Baughman is not void. Norton v. Meader was affirmed (11 Wall. 442), but in the supreme court the general question of the validity of a judgment against a married woman was not considered. Hix v. Gosling, though an able opinion, is not an authority that such a judgment is void, but if it could be so considered, Crawford v. Crawford, 1 Tenn. Leg. Rep. 37, is a direct authority against it. Brittin v. Wilder and Watkins v. Abrahams are eases in which the attack was made directly, and it is shown in later New York cases, hereinafter cited, that these cases are not to be regarded as sustaining the view that such a judgment is a nullity. In Swing v. Wood-ruff, also, the judgment was set aside on motion.

While it is probable that the courts of Pennsylvania, Maryland, Missouri, and Mississippi would arrive at a conclusion, in a ease like Callen v. Ellison, exactly the reverse of that reáched by this court, it does not follow that all of them would hold the judgment in this case to be void; for in several cases the point decided was, that a married woman’s warrant of attorney being void, the court did not acquire jurisdiction to render judgment pursuant to it, and hence, like the warrant, the judgment was void; but here, as the case stands before us, the note may have been given for the debt of Mrs. Baughman, contracted dum sola, and hence the action and judgment against both may have been entirely proper. Placing the case, however, on the broader ground that the debt was of such a character that the plea of coverture would have been a complete defense, our duty to hold the judgment not to be void, and thus to adhere to Callen v. Ellison, is very plain ; for the doctrine there enunciated is, as Mr. Freeman and Mr. Bishop show (Freeman on Judgments, § 150 ; 2 Bish. Rights Mar. Women, § 886), sustained by the better reason and greater weight of authority, and a somewhat laborious examination of the eases leads us to the same conclusion. Green v. Branton, 1 Dev. Eq. 500; Frazier v. Felton, 1 Hawks, 231; Vick v. Pope, 81 N. C. 22; Boraback v. Stebbins, 3 Keyes, 62; s. c. 4 Abb. App. Dec. 100; First National Bank v. Garlinghouse, 53 Barb. 615 ; s. c. 36 How. Pr. 369; Palen v. Starr, 14 N. Y. Supreme Court, 422; Smith v. Dunning, 61 N. Y. 249 ; Wilson v. Coolidge, 42 Mich. 112; Howard, v. North, 5 Texas, 290; Cayce v. Powell, 20 Texas, 767; Taylor v. Harris, 21 Texas, 438; Laird v. Thomas, 22 Texas, 276; Bullock v. Hayter; Baxter v. Dear, 24 Texas, 9, 17; Gambette v. Brock, 44 Cal. 78; Spalding v. Wathen, 7 Bush (Ky), 659 ; Wolf v. Van Metre, 28 Iowa, 397 ; s. c. 27 Iowa, 341; Guthrie v. Howard, 32 Iowa, 54; Glover v. Moore, 60 Ga. 189; Mashburn v. Gouge, 61 Ga. 512; Lewis v. Gunn, 63, Ga. 542; Freison v. Bates College, supra; Crawford v. Crawford, supra; Taggert v. Muse, supra ; Landers v. Douglas, 46 Ind. 522; Burk v. Hill, 55 Ind. 419; Dick v. Tolhausen, 4 Hurl. & Nor. 695; 1 Salk. 400. And, indeed, this is but to reassert the doctrine constantly maintained in this court, “ that the judgment or final order of a court having jurisdiction of the subject-matter and parties, however erroneous, irregular, or informal such judgment or order may be, is valid until reversed or set aside.” Wehrle v. Wehrle, supra ; Arrowsmith v. Harmoning, 42 Ohio St. 254.

The judgment of the justice of the peace not being void, not having been set aside, and not having been reversed on error coram nobis, as it might have been, is, so long as its enforce ment remains unrestrained, as valid and effectual as any other judgment whatever, and the real estate of Mrs. Baughman, inherited from her father since coverture ceased, must be subjected to its payment, unless the sale be enjoined on the sole ground that she was a married woman when the judgment was rendered. But such fact of itself, under the circumstances of this case as we must now regard them, affords no ground of equitable interference; nor will a court of equity interfere unless the facts bring the case within some such ground of relief as fraud, collusion, or coercion. Ruffin, C. J., states the principle in Green v. Branton, supra, and many of the eases above cited are to the same effect; and the statutory provisions in relation to married women in force when the note was executed, and still in force (67 Ohio L. 111, § 28 ; Rev. Stats., §§ 3108, 3109, 3110, 4996, 4997), no less than the course of decision iu this state, afford a sufficient answer to the suggestions in Hix v. Gosling, supra. In favor of women so under disability, however, any obstruction or interference, especially by the husband, which may fairly be said to have induced her not to defend, may well afford ground for an injunction ; but nothing of the sort appears here.

We hold that the court of common pleas erred in rendering judgment in favor of the plaintiff below, in view of the posture of the ease at that time, and the district court erred in affirming the judgment. That disposes of the case; bat being satisfied that the demurrers to the petition and amended petition were improperly overruled, we are bound so to declare. The judgment of the district court and court of common pleas will be reversed, and the demurrer to the amended petition sustained. This leaves the record without an answer, as it falls with the petition. While if the amended petition had been sufficient, the demurrer to the answer and cross petition may have been properly sustained on the ground that they did not constitute a defense ; yet, of course, when the question is whether a judgment should be perpetually enjoined, the chancellor should receive any evidence which may fairly aid him in arriving at a just conclusion, and very general allegations in the pleadings will warrant the reception of such evidence.

Judgment reversed.


author: McIlvaine, C. J.

text:
    Gorman v. Taylor.

      Guardian — Removal—Exclusive jurisdiction of probate court to settle account — Suit in equity on guardian's bond, whether maintainable — Acts of March 2G, 1872, and May 1, 1854.
    1. The removal of a guardian for cause by the probate court is within the meaning of section 1, clause 4, of the act of March 26, 1872 (69 Ohio L. 55), which requires a guardian “at the expiration of his trust fully to account for and pay over to the proper person all of the estate of his ward remaining in his hands.”
    2. The settlement of such account is within the exclusive jurisdiction of the probate court, under section 2 of the probate act. (S. & O. 1212.)
    8. A suit in equity, on a guardian’s bond, to compel an account can not be maintained without a showing that the powers and jurisdiction of the probate court are ineffectual to secure such accounting. Newton, v. Hawmondl 38 Ohio St. 430, approved.

      Error to the District Court of Eranklin county.
    The original action was brought in the court of common pleas of Eranklin county by Thomas E. Taylor, guardian of Mary Elizabeth Hoffman, against Synon Eitzgerald and Rose Gorman, on the bond of Eitzgerald, a former guardian of said Mary Elizabeth Hoffman, who had been removed as such guardiau by the order and judgment of the probate court of Eranklin county, and Rose Gorman, his surety thereon. The following is a copy of the original petition :
    “ The plaintiff says that heretofore, to wit, on the 25th day of January, A. D. 1876, the said Mary Elizabeth Hoffman, a minor, over the age of fourteen years, personally appeared before the probate court in and for said 'county of Eranklin, and state aforesaid, and made choice of plaintiff as her guardian, which choice was then and there approved by said court, and the custody of the person and property of the said minor committed to plaintiff, who thereupon on the said 25th day of January, a. d. 1876, took upon himself the burden of said guardianship, and is now such guardian ; and the plaintiff further says that on the 24th day of September, a d. 1870, the defendant, Synon Fitzgerald, was duly appointed guardian of said Mary Elizabeth Hoffman by the aforesaid probate court, and the said Synon Fitzgerald then took upon himself the burden of said guardianship of the person and property of the said Mary Elizabeth Hoffman, said minor, then aged ten years, and that pursuant to the order and approval of said probate court, in that behalf, the said Synon Eitzgerald and Joseph Norris, since deceased, with Rose Gorman, who, with said Synon Eitzgerald, have survived the said Joseph Norris, on the 24th day of September, A. D. 1870, by their certain written obligations, sealed with their seals, a copy of which is hereto attached, marked “ A,” and made a part of this petition, acknowledged themselves to be held and firmly bound to the state of Ohio in the penal sum of one thousand dollars, to be paid to the state of Ohio, when they should be thereunto afterward required, which said written obligation was and is subject to a certain condition, in substance and the effect following; that if the above named Synon Fitzgerald should faithfully discharge his duties as guardian of the person and estate of the said Mary Elizabeth Hoffman, and faithfully discharge the trust reposed in him as such guardian to said minor, and should also render an accurate statement of his transactions, with a just account of the money received by him from the estate of his said ward, and should deliver up the same to said court at such time as they should require, then the said obligation to be void, otherwise to remain in full force and virtue.
    “And the said plaintiff further says that after the granting of said guardianship to said Synon Fitzgerald, as aforesaid, and the execution of said bond, as aforesaid, the following sums of money came into the hands of said Synon Fitzgerald, as such guardian, to wit:
    “Four hundred and six and 13-100 dollars on the 31st day of October, a. d. 1873.
    Thirty dollars on the 4th day of December, a. d. 1873.
    Thirty dollars on the 5th day of March, a. d. 1874.
    Thirty dollars on the 5th day of June, a. d. 1874.
    Thirty dollars on the 5th day of September, a. d. 1874.
    Thirty dollars on the 5th day of December, a. d. 1874.
    Thirty dollars on the 5th day of March, a. d. 1875.
    Thirty dollars on the 5th day of June, A. d. 1875.
    Thirty dollars on the 6th day of September, a. d. 1875.
    Thirty dollars on the 6th day of December, a. d. 1875.
    “Making a total sum of six hundred and seventy-six dollars and thirteen cents, received by said Synon Fitzgerald as guardian of the estate of his said ward from the estate of his said ward; and the said plaintiff further says that the said Synon Fitzgerald did not faithfully discharge the trust reposed in him as guardian of said minor, but wholly converted and disposed of to his own use the said money which came to his hands as aforesaid, and on the 14th day of February, a. d. 1874, the said probate court discharged the said Synon Fitzgerald, as guardian as aforesaid of Mary Elizabeth Hoffman. The plaintiff further says that the said Synon Fitzgerald has wholly neglected and refused to pay to the said probate court, or to plaintiff, the said sum of money or any part thereof, although often requested so to do, and has wholly neglected and refused to settle his accounts of his guardianship of his said ward with the said probate court, as required by law, or to take any steps toward discharing the duties of his said trust, by law imposed upon him.
    “ "Wherefore plaintiff asks judgment against said Synon Fitzgerald and said Rose Gorman, in the. sum of one thousand dollars.”
    By T. E. Taylor, Attorney for Plaintiff.”

    To this petition Rose Gorman filed a demurrer on the ground that it did not state sufficient facts to constitute a cause of action. This demurrer was overruled. Issues of fact were then joined and final judgment was rendered in favor of defendants. On petition in error the district court reversed the judgment. The plaintiff iu error now seeks to reverse the judgment of reversal.
    J. T. Holmes and W. B. Page, for plaintiff in error.

      Stacy Taylor and D. C. Jones, for defendants in error.
   McIlvaine, C. J.

The trust of a guardian expires at the date of his removal from office by the probate court, within the meaning of section 1, clause 4 of the act of March 1, 1872 (69 Ohio L. 55), which provides that a guardian shall, “ at the expiration of his trust, fully account for arid pay over to the proper person all of the estate of his ward remaining in his hands.” Over such accounting the probate court has exclusive jurisdiction. A right of action, at law, first accrues on the guardian’s bond to recover the amount remaining iu his hands when the amount is ascertained by the probate court on the settlement of the guardian’s final accouut. Newton v. Hammond, 88 Ohio St. 430.

This doctrine was laid down in a case where the amount in the hands of the guardian was first ascertained and determined by settlement in the probate court, and so applied, was undoubtedly correct, although it may be that an action at law may be maintained on the bond where the parties have agreed upon the amount, and no accounting is necessary to fix the exact amount of the recovery. Such action at law is not for an account, but for the recovery of money only, and either party thereto is entitled to a trial by jury.

An action, however, may be prosecuted in equity on the bond for an account, in case the jurisdiction of the probate court is ineffectual for that purpose. (Ibid.) But in such case the ground of equitable jurisdiction must be set forth in the petition ; otherwise it will be assumed that they do not exist, and the accounting will be left to the “ exclusive jurisdiction” of the probate court.

The case before us was undoubtedly brought for the purpose of compelling an accouut and for judgment on the sum so found to be in the hands of the former guardian; but no reason is shown why the accounting should not be had in the probate court. It is averred that the principal in the bond received moneys belonging to his ward which he converted to his own use; that he has neglected and refused to pay the same over to the plaintiff, who has been appointed his successor, though often requested so to do, and that he has failed to render any account as required by law. The probate court on its own motion or-upon complaint, by citation might, for aught that appears, have compelled an account, but no effort has been made to procure such settlement. The jurisdiction of that court has not been invoked, and no reason assigned for failing to do so.

For the reasons stated, we think the demurrer to the original petition should have been sustained, and that no error appears on the record for which the judgment of the court of common pleas should have been reversed by the district court.

Judgment of the district court reversed,, and that of the common fleas affirmed.


text:
    Street Railway Company v. Eadie.
    Negligence— "Whether that of parent may he imputed to minor so as to bar recovery.

    The plaintiff was a minor aged sixteen years, and was fully capable of taking reasonable care of herself. She was lawfully riding with her father, who was driving his own wagon, when she was injured by a collision between the wagon and a street car, caused by the mutual and concurring negligence of a street ear driver and her father, but without any fault or negligence on her part. Held, that the negligence of her father was not to be imputed or attributed to her, and did not bar a recovery against the street car company, whose negligence directly contributed to the injury. Transfer Co. v. Kelley, 36 Ohio St. 86, followed and approved.
    Error to the District Court of Cuyahoga county.
    The record presents several alleged errors, but in. affirming the judgment the court reserves for report but a single question. Upon this question the facts necessary to be stated are as follows:
    This action was originally brought in the common pleas court of Cuyahoga county by Ellen Eadie, by her next friend, who was also her father, James Eadie, against the Saint Clair Street Railway Company, which is and was a corporation operating a street railroad in Saint Clair street and other connecting streets in the city of Cleveland.
    In her petition, among other things, she alleges that she was, at the time of the bringing of her action and receiving the injuries complained of, a minor sixteen years of age; that in the evening of the fourth day of June, 1881, accompanied by her father and mother, she was proceeding homeward in her father’s wagon, drawn by one horse driven by her father, James Eadie, eastwardly along said Saint Clair street, and in her journey was approaching Wilson aveuue; that her father was driving along the southerly track of said street railway; that at some distance ahead of them was a passenger car of said defendant also proceeding eastwardly along the same track; that said car was driven on to a turn-table just westwardly of Wilson avenue and there turned around and started on its westward trip; that it proceeded to the frog or junction, situate seventy-eight feet from said turn-table, aud there, instead of taking the northerly track, as was usual, the driver of the car directed it into the southerly track on the left hand side of the road, and that the plaintiff was then at least 127 feet away; that her father saw it and immediately began to turn off the track, and made loud outcries ; that the car was being driven at a rapid rate of speed, and the same was driven violently against the wagon of said plaintiff’s father, upsetting it and greatly injuring the plaintiff, Ellen Eadie; that the injuries occasioned her were without her or her father’s fault or negligence.
    The defendant below denied all allegations of negligence on its part, and alleged negligence on the part of said plaintiff and her father. The trial resulted in a verdict and judgmeut for defendant in error. On a motion for new trial the following, among other errors of law, were assigned as grounds for a new trial:
    “ 8th. That the court erred in the trial of this cause in charging the jury, ‘that if there was negligence on the part of said plaintiff’s father, still she is not to be held responsible for it,’ and ‘that the conduct of her father who was driving that wagon, any negligence on his part, with which she had nothing to do, would not be attributed to her in that respect; even though the father by his negligence may have so contributed to that accident that he would be barred of a recovery by his contributory negligence, it still will not prevent this plaintiff of a recovery unless she herself participated in the negligence which caused the injury.’
    “9th. That the court erred on the trial of this cause in refusing to charge the jury that, ‘if the jury are convinced from all the testimony in the case that plaintiff’s said father, James Eadie, after he discovered that said car was coming down the south track on said road, had sufficient time by the use of ordinary care to get off from said track, and out of the way of said car, it was his duty to do so, and the plaintiff" can not recover in this action.’ ”
    It is assumed from the pleading and charge of the court, that evidence was offered tending to show that the defendant below was guilty of negligence directly contributing to the plaintiff’s injury, and that the plaintiff’s father was also guilty of contributory negligence.
    No claim was made that the company was negligent in employing the driver, nor that he was not competent, nor that the father was not also competent to drive his own wagon.
    The ground alleged for recovery was, that the car driver was driving too rapidly; did not keep a sufficient lookout, and did not stop the ear as he might have done, and so avoid the accident.
    For the purposes of this case we will assume that the verdict establishes the fact that the negligence of the driver caused the collision with the wagon in which she was riding, turning it over and injuring the plaintiff, and that her father, who was driving the wagon, was also negligent in being upon the railroad track, and was not exercising proper diligence and care to avoid the collision, thereby directly contributing to the injury. The plaintiff" herself was not guilty of any negligence in the premises, so that the sole question is, was her father’s negligence to be imputed or attributed to her?

      Foran Daioley, for plaintiff in error,
    on the question of contributory negligence on the part of one other than the person injured, cited the following authorities: Carlisle v. Town of Sheldon, 38 Vt. 44; Mooney v. Hudson River R. Co., 5 Robt. N. Y. 548; Beck v. East River Ferry Co., 6 Robt. 82; Brown v. New York Central R. Co., 31 Barb. 385; Munroe v. Leach, 7 Met. (Mass.), 274; Puterbaugh v. Reasor, 9 Ohio St. 484; Prideaux v. Mineral Point, 43 Wis. 513; Otis v. Town of Janesville, 47 Wis. 422; Houfe v. Fulton, 29 Wis. 296; L. S. & M. S. R. Co. v. Miller, 25 Mich, 274 ;
      Cauley v. P. R. R. Co., 95 Pa. St. 398; Forks Township v. King, 84 Pa. St. 230 ; Holly v. Boston Gas Light Co., 8 Gray, 123 ; 65 E. C. L. 114; Leslie v. City of Lewiston, 62 Me. 468; Stillson v. Hannibal & St. J. R. R. Co., 67 Mo. 671 ; Nagle v. Allegheny Valley R. Co., 88 Pa. St. 35 ; 3 Central Law Journal, 415; Philadelphia & Reading R. Co. v. Boyer, 97 Pa. St. 91 ; Cooley on Torts, 684; Brown v. N. Y. Central R. R. Co., 32 N. Y. 597-602; 43 American Rep. 212; Lockhart v. Litchtenthaler, 46 Pa. St. 151; Payne v. C. R. I. & P. R. Co., 39 Iowa, 523; Lynch v. Smith, 104 Mass. 52; Callahan v. Bean, 9 Allen, 401; Carter v. Towne, 98 Mass. 567; Ohio & Miss. R. W. Co. v. Stratton, 78 Ill. 88; Waite v. Northeastern R. Co., El. B. & E. 728; 13 Central Law Journal, 384; Thorogood v. Bryan, 8 C. B. 115 ; Armstrong v. Lancashire & Y. Railway Co., L. R. 10 Exch. Cas. 47; 8 Southern Law Review, 119.

      Griswold $ Starr, for defendant in error, claimed that the negligence of the parent could not be imputed to the child, and cited : Thompson on Carriers, 284to 289; Bennett v. Railroad, 36 N. J. Law, 225; 19 N. Y. 341; 20 N. Y. 492; Danville Turnpike Co. v. Stewart, 2 Met. (Ky.), 119 ; Robinson v. Railroad Co., 66 N. Y. 11; Dyer v. Railway Co., 71 N. Y. 228.
   Johnson, J.

The plaintiff, though a minor, was sixteen years old, and was therefore sui juris.

She was fully capable of taking care of herself. Had her negligence or misconduct contributed to her injury she could not recover, though the company was also guilty.

The question fairly presented, therefore, is whether a minor child, who, being sui juris as to a reasonable care of her person and safety, lawfully and properly enters into a conveyance with her parent, and without fault on her part, is injured by the negligence of a street railroad company, is prevented from recovering against such negligent company because her parent has, by his negligence, contributed to the injury.

In Transfer Co. v. Kelley, 36 Ohio St. 86, this court held, that the concurrent negligence of a street car company, whose passenger the plaintiff' was, with that of a transfer company, whereby there was a collision between the wagon of the latter with the car of the former, can not be imputed to the passenger, so as to charge him witji contributory negligence.

In that case,as in this, the plaintiff was not in fault, but there, as here, it was contended that the plaintiff' was so identified with, or related to the railroad company by the contract of carriage, that the fault of the carrier must be imputed to the passenger.

Neither in that case nor in this,was there any fault alleged against plaintiff'for becoming a passenger. The two cases differ in two respects only. There- the carriage was by a public carrier, presumably for hire or reward, while here it was by private conveyance, and presumably gratuitous. There the driver of the street car was a stranger to the passenger, while here he was her father, with whom she was riding home.

In that case, it was held that the driver in the street car was in no just sense the agent or servant of the passenger. If the driver had been under the control of the passenger, then, it was said, there might be some show ot reason for holding the passenger liable for the negligence of the driver. But as there was no such power of direction or control, the negligence of the driver of the car could not be imputed to the passenger.

That was held to be a ease of joint negligence of the railroad company and the transfer company for which they might be sued jointly or severally.

After a thorough examination of the numerous and conflicting authorities upon this point, some of which are cited in the opinion, we then declined to follow the case of Thorogood v. Bryan, 8 C. B. 115, and other like cases, which holds the passenger liable for the contributory negligence of his driver, where there was mutual fault of two drivers causing an injury, and, as before stated, held, that upon principle as well as upon the better authorities, the passenger was not so identified with the vehicle in which he was riding as to make him responsible for the driver’s fault. It was held by us that the passenger in the street car was not responsible for the,negligence of the driver; that the latter was in no just sense the agent of the former, and had no control of or direction over the management of the vehicle in which he was riding, so as to identify driver and passe ngei’.

The opposite doctrine, though suppoi’tedby high authority, has not been received even in England with approbation.

We cite a few of the cases and text-books touching this vexed question, but since the subject was fully considered in The Transfer Co. v. Kelley, supra, we need not further consider it. See Armstrong v. The Lancashire and Yorkshire Railway Co., L. R. 10 Exch. Cas.47; Waite v. The N.E.R.R., El., B. & E. 719 (a case of a child too young to take care of itself); Lockhardt v. Litchenthaler, 46 Pa. St. 151 ; Thompson on Carriers of Passengers, Ch. VII, where all the cases pro and con. are cited, notes, p. 284; Bennett v. Railroad, 36 N. J. Law 225, 1 Smith Lead. Cases (8 Am. ed.), 505, *315; Danville, Turnpike Co. v. Stewart, 2 Met. (Ky.), 119; Chapman v. N. H. R. Co., 19 N. Y. 341; Colegrove v. N. Y. & N. H. R. Co., 20 N. Y. 492; Louisville C. & L. R. Co. v. Case, 9 Bush (Ky.), 728; Wharton on Neg., sec. 395; Webster v. H. R. R. Co., 38 N. Y. 260.

The foregoing cases mostly relate to passengers by public carriers, and where the passenger is injured by the negligence of another public earner or of a third pei’son.

It only remains to determine if a like rule applies where the plaintiff was a passenger in a private conveyance.

We think it does. The plaintiff in the case at bar was in no just sense the master, nor was her father her agent or under her control or direction.

In Puterbaugh v. Reasor, 9 Ohio St. 484, the want of ordinary care of plaintiff’s agent prevented his recovery, when the agent’s negligence directly contributed to the injury, though the defendant was also guilty.

But it is well settled that passenger-s in a public conveyance are uot so liable for the negligence of the employes of the carrier, because they are uot the agents of the passenger. The same reasons apply with equal force to a private carrier.

Plaintiff’s relations to her father, being that of a passenger in his wagon, going to their common home, did not in law, make him her servant or agent, and as such responsible for his misconduct. If he had brought an action for the loss of services of his daughter, caused by this injury, his contributory negligence would defeat a recovery, nor could he recover for his own injuries for the same reason. This is because he was guilty with the defendant of causing the collision. Neither does- the fact that she was the daughter defeat her right. If her father’s misconduct or negligence contributed to the injury, why should that fact exonerate a joint wrong-doer ?

Robinson v. The N. Y. Cen. & H. R. R. Co., 66 N. Y. 11, was the case of a female, who had accepted an invitation to ride with a gentleman, who was the owner and driver of a buggy, in which they were riding, when she was injured through the joint negligence of her driver and a train of cars. Church, C. J., says: “I am unable to find any legal principle upon which to impute to the plaintiff the negligence of the driver. . . . The acceptance of an invitation to ride creates no more responsibility for the acts of the driver than the riding in a stage-coach, or even a train of cars, providing there was no negligence on account of the character or condition of the driver, or the safety of the vehicle, or otherwise. It is no excuse for the negligence of defendant that another person’s negligence contributed to the injury, for whose acts the plaintiff was not responsible.”

We think this reasoning unanswerable, notwithstanding the adverse criticism and contrary holding in Prideaux v. The City of Mineral Point, 43 Wis. 513.

This doctrine of imputed negligence,” and the reasons for its application, were considered in B. & I. R. Co. v. Snyder, 18 Ohio St. 399. That was the case of a child six years old, and the negligence of the parent or custodian of the child did not prevent its recovery against one also guilty.

The court say the rule that contributory negligence bars a recovery is founded on : (1). The mutuality of the wrong; (2). The impolicy of allowing a party to recover for his own wrong; and, (3). The policy of making personal interests of parties depend on their own prudence and care. It was said all these are wanting in the ease then before the court.

With equal truth it can be said that all these reasons are wanting in the present case, where it is conceded the plaintiff was in no fault.

Whether in this case the father would have been jointly liable with the defendant we need not now determine. By the well-settled rule of law, he would be, unless his relations to her modifies this rule, for his culpable negligence, she being sui juris, and not guilty of want of proper care for her own safety. Boyd v. Watt, 27 Ohio St. 259; Wharton on Neg., sec. 144; Shearman & Redfield on Neg., sec. 58. If it be conceded that he would not be so liable, either by reason of his parental relation, or that it was a gratuitous service, that would not excuse the negligence of the defendant, nor bar the plaintiff, who was free from fault, from recovering from the other wrong-doer, whose negligence was a proximate cause of injury.

Judgment affirmed.