author: Bradbury, C. J.

text:
    State v. Lewis.

      Illegal arrest— When officer may arrest without warrant— When not:
    Where a -breach of tbe peace is committed in the presence of a marshal of an incorporated village or city, he may, without warrant, arrest the persons who participate therein. If, however, the officer was absent when such offense was committed, and did not appear there until after the affray had ended, public order restored, and the guilty parties had departed from the vicinity, and all the information the officer had of the affray and of the parties to it, was the statements of b3>--standers who witnessed it, he has no authority in law to pursue and arrest the persons charged with the offense without first obtaining a legal warrant therefor.
    (Decided March 7, 1893.)
    Exceptions by the prosecuting attorney, to the rulings of the Court of Common Pleas of Highland county.

      Geo. L. Garrett, Pros. Att’y., T. II. Hogsett, and R. M. Dittey, for the State.
    The question which is raised by the refusal of the court to charge as asked by the state, and the giving of that portion of the general charge to which the state excepted, is the power of a police officer to make arrests without warrant, for misdemeanors not committed in his presence or view. This right or authority is a statute^ one, and is given by sections 1849 and 7129, Revised Statutes of Ohio.
    We claim that under the statutes above quoted any of the officers therein named may arrest for the violation of any law or ordinance if he finds one in the act of offending. But this statute must be strictly construed, and its terms can not be enlarged by any judicial construction. Before the passage of these acts the power to make arrests was such as was given by the rules of the common law. An examination of these rules will show that the law held the officer to the strictest account for the manner of making arrests, and that he must rely on his written authority in the form of a legal warrant, except in cases where the character of the crime was so grave that the delay of the officer for the length of time necessary to procure a warrant, might defeat the ends of justice by allowing the guilty party to escape. To these cases, which were what were denominated felonies, was also added but one class of misdemeanors for which an officer might arrest without warrant, and that was for breaches of peace committed in his view. This power was given because by virtue of his office he was made a conservator of the peace. But even this right of arrest was very strictly construed, and it has been held that to warrant such'arrest, the breach of peace must not only be in his view, but must be still continuing; after it is over he has no right to arrest without warrant. Pow v. Beckner, 3 Ind., 475; Quinn v. Heisel, 40 Mich., 576; Meyer v. Clark, 41 N. Y., Sup. Ct., 107; Kndevitz v. R. R. Co. 9 N. E. Rep. 613; Taylor v. Strong, 3 Wend., 384; State v. Sims, 16 S. C., 486; Whar. Cr. Pl. and Prac. sec. 8; Drenman v. People, 10 Mich., 169; Com. v. Cooley, 6 Gray, 350; State v. Phinney, 42 Maine, 384.

      It is claimed by the defense that the sections of the statutes quoted above very greatly enlarge the power to arrest without warrant, in cases of misdemeanors, from what it was at common law; and it is now claimed that such officers have a right to arrest for misdemeanors not committed in their presence, whenever they receive reasonable or reliable information that it had been so committed. It seems to us that a close examination of these sections and the decisions heretofore made by the Supreme Court construing them, will show that the construction claimed by the defense is wholly wrong, and is unsupported by reason or authority. Wolf v. State, 19 Ohio St., 249; Ballard v. State, 43 Ohio St., 340.
    By reference to Blackstone, vol, 4, 292, we find that a sheriff or constable could, without warrant, arrest for three classes of crime, and three only, viz.: (1) Treason; (2) felonies; (3) breach of peace committed in his view. The same rule is laid down in the following authorities: 2 Hawk, chap. 13, sec. 8; 1 Hale, 587; Arch. Cr. Pr. and Pl., 100; Addison on Torts, vol. 2, page 702; 1 East, P. C., 303.
    If we have arrived then at the true construction of the law, it is this: That no officer has a right to arrest for a misdemeanor without a warrant, unless said offense was committed in his view.

      E A. Huggins, and M. R. Patterson, contra.
    The determination of this question depends upon the construction to be placed upon the words “found violating,” in section 7129, and the words “in the act of committing,” in section 1849, Revised Statutes.
    In the construction of these sections we are usually met with the statement that they should be' taken strictly; and while this may be true, it is also just as true that they .should not be taken so strictly as to defeat their reasonable operation and intention. And it may be said in the outset, that the trial court took these words in a more restricted sense than was required by the decisions of this state. We do not deem it important to go into anj>- examination of the common law rules governing arrests, further than to call attention to one or two analogies from English statutes, which help to solve the question at issue.
    The English Statutes, 7 and 8, George 4, Ch. 30, in relation to malicious injuries to property, enacted, section 38, “that any person found committing any offense against-this act,” etc. And statute 5, George, Ch. 4, among other things, provides: “That it shall be lawful for any person whatsoever to apprehend any person who shall be found offending against this act, and take and convey him or her before some justice of the peace,” etc. These sections, were construed in the case, of Rex. v. Howarth, 1 Moody, 207, and Hanway v. Boultbee, 1 Moo. & Rob., 14.
    But we are not shut up to English decisions for a like-construction of such words. Wiltse v. Halt, 95 Ind., 469; Dilger v. Commonwealth, 11 S. W. Rep. 651; People v. Bartz 19 N. W. Rep., 161.
    The case of Ballard v. State, 43 Ohio St., 340, we think, gives to these sections a much more liberal construction than is required to support the position of the judge below, and which we think is decisive of the question here presented. Holyday v. Oxenbridge, Cro. Car., 234; Wharton’s. Crim. Pl. and Pr. 8 ed. secs. 8, 17; 1 Bish. Crim. Pro. 3 ed. sec. 183: Reg v. Phelps, C. & M. 180; Rex v. Howarth„ Supra; Hanway v. Boultbee, Supra; Ballinger v. Ferris, 1 L. M. R.; Beachy v. Sides, 9 B. & C. 806; Russel on Crimes, 410; 2 H. P. C. 89; 3 Cambp. N. P. 421.
   Bradbury, C. J.

The defendant was indicted for murder in the second degree for causing the death of one Edward Elliott, in the course of an attempt to.arrest the latter for the commission of a misdemeanor. The defendant was. marshal of the village of Hillsboro, in Highland county, and being put upon trial for the homicide, it became material to inquire into the authority of such officers to make-arrests without a written warrant therefor, and after the evidence had been given, the prosecuting attorney requested the court to give to the jury certain legal propositions, the object of which was to define the authority vested by law in the marshal of an incorporated village to arrest without written warrant alleged offenders against the laws of the state or the ordinances of the village. The third proposition requested reads as follows: “If you find from the testimony that the breach of the peace did not occur in the presence of the defendant, and was over and the deceased had ceased from the commission of a breach of the peace, and that the affray was ended, and the deceased was not attempting a continuation of the breach of the peace, but was about his peaceful and lawful avocations when the defendant arrived at the place where the affray had taken place, and the defendant did not attempt to make the arrest until he had gained such knowledge as he possessed of the affair from inquiries made of third persons, such arrest or attempted arrest was unlawful, and the deceased had a right to resist such arrest, or attempted arrest, and the defendant under the circumstances was himself in the performance of an unlawful act for the consequence of which he must be held responsible.” This proposition the court- refused to give, and instead gave substantially its converse in the following terms: “It is not disputed that a sliort time before Elliott wTas killed he had a quarrel in Doorley’s saloon with one William Eakin, and knocked him down; that was a violation of one of the ordinances of Hillsboro. The fact that Eakin called him a liar was no justification in law for knocking him- down. If you find from the evidence that within a short time after this occurred—as soon as possible after it occurred—Eewis was sent for to arrest Elliott, that Eewis as marshall of the town went at once in pursuit of Elliott; that Elliott, on seeing Eewis approach, started to leave the town in a hurried manner; that Eewis pursued him, then I charge you that Eewis upon overtaking Elliott had the lawful right to arrest him, notwithstanding he had no warrant for that purpose.”

To the charge as given, and to the refusal to charge as requested, the prosecuting attorney excepted, and embodying them in a bill of exceptions has brought them to this court for review by virtue of sections 7305 and 7306, Revised Statutes.

That the defendant was marshal of the village of Hillsboro; did not witness the affray nor procure from a magistrate a warrant for the arrest of the deceased, are conceded facts. In addition to this the testimony given in behalf of the state tended to prove that the deceased had participated in an affray in a saloon within the village of Hillsboro, on the day of the homicide; that the defendant was absent and did not hear or see any part of the affray; that a few minutes thereafter he received information that a breach of the peace had been committed, and at once weirt to the saloon where it had occurred; that when he reached the saloon, the parties to it had gone and good order -had been restored; that upon inquiry the defendant was told that an affray had been committed, in which the deceased had participated, and ascertaining the direction taken by the deceased, the defendant, without obtaining a warrant, immediately pursued, soon after overtook and proceeded to-arrest him for that offense; that the deceased, though having knowledge of the official character of the defendant, resisted the arrest, and in the resulting struggle was shot, and killed by the defendant.

The authority of peace officers to arrest without a warrant from a magistrate is a subject that has received the attention of the courts and text-writers from an early period in the history and development of the common law in both England and America. Some of the earlier English authorities,, while the prerogatives of the government were more highly considered than at a later day, maintained the power. (2 Hale P. C. 90.) But even then the doctrine met with a resistance which finally overturned it. (1 East P. C. 305.) Regina v. Tooley, 2 Lord Raymond, 1301, where Ford Holt,. in delivering the opinion of the majority of the court, is reported as saying: “The prisoners in this case had sufficient provocation; for if one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people out of compassion; much more where it is done under a color of justice, and where the liberty of the subject is invaded, it is a provocation to all the subjects of England. He said, that a constable cannot arrest, but when he sees an actual breach of the peace, and if the affray be over, he cannot arrest.” See also 2 Hawk. Crim. Haw, 13, sec. 8. The later English authorities seem to settle the law there in accordance with the views of Lord Holt. Coupey v. Henley et al., 2 Esp. 540; Baynes v. Brewster, 2 A. & E. (N. S. ) 375; Regina v. Mabel, 9 C. &P. 474; Timothy v. Simpson, 1 C. M. & R. 757; Grant v. Moser, 5 Mann. & G. 123; 1 Russ, on Cri. (8th ed.) 410, 805. In the case of Cook v. Nethercote, 6 C. & P. 741, AlüBRSON, B., in summing up says: “If, however, there has been an affray, and that affray were over, then the constable had not and ought not to have the power of apprehending the persons engaged in it; for the power is given him by law to prevent a breach •of the peace; and where a breach of the peace had been committed, and was over, the constable must proceed in the same way as any other person, namely; .by obtaining a warrant from a magistrate.” Id. 744.

The American authorities establish the same rule. Roberts v. The State, 14 Mo. 138; The People v. James Haley, 48 Mich. 495; Phillips v. Trull, 11 John. 486; Pow v. Beckner, et al., 3 Ind. 475; 1 Bishop on Cr. Procedure, 183, 184; Quinn v. Heisel, 40 Mich. 576; In re. Sarah Way, 41 Mich. 299; Commonwealth v. Carey, 12 Cush. 246.

'his court has held that a city council may lawfully authorize police officers to arrest upon view any person found in the act of violating the ordinances of the city, made for the preservation of good order and public convenience. White v. Kent, 11 Ohio St. 550. Also that the officer in making arrest upon view is not bound to disclose his official character. Wolf v. State, 19 Ohio St. 248. And that it is lawful to arrest, without warrant, one who is unlawfully carrying a concealed weapon, though the officer had no previous knowledge of the fact if he acted bona Jide upon knowledge which induced an honest belief that the person was violating the law in this respect. Ballard v. State, 43 Ohio St. 340. But the facts in those cases disclose that the person arrested was taken while in the act of committing the offense for which he was apprehended, while in the case under consideration the evidence tended to show that the defendant acted upon information only, and that the affray was over, and public order restored before he attempted to pursue or arrest the supposed offender!! The section of the Revised Statutes that defines the powers-^ of marshals within the municipalities of the state, reads as follows:

“Section 1849, Revised Statutes. He shall suppress all riots, disturbances, and breaches of the peace, and to that end may call upon the citizens to aid him; he shall arrest all disorderly persons in the corporation, and pursue and arrest any person fleeing from justice in any part of the state; he shall arrest any person in the act of committing any offense against the laws of the state, or the ordinances of the corporation, and forthwith bring such person before; the mayor, or other competent authority, for examination or trial; and he shall re'ceive and execute any proper authority for the arrest and detention of criminals fleeing or escaping from other places or states.”

This section imposes on the marshal of a municipality important public duties, and clothes him with extensive powers in respect to their discharge He is, by the terms of this section, among other duties which it enjoins, required to “pursue and arrest any person fleeing from justice) in any part of the state;” but whether with or without war- i rant the section is, in terms, silent. He is thus clothed with authority throughout the whole state, which, but for the statute under consideration, would be limited to his municipality. What is found in the other language of this statute that indicates a legislative purpose to dispense with a warrant in cases, where, according to the principles of the common law, or by other statutory provisions, one would otherwise be necessary? We can discover nothing. Statutes of this class, though enacted in the interests of public order, yet derogate from the liberty of the citizen, and if not strictly construed, which the weight of authority seems to hold they should be, yet are not to be extended by a loose or liberal construction. Bishop on Cr. Pr. 184; Ramsey v. Foy, 10 Ind. 493; State v. Dale, 3 Wis. 795. The authorhy should be limited to the necessity for its exercise; where an affray is in progress, or an offense in the course of commission, in the presence of an officer, his duty is to prevent its continuance or completion; to accomplish this effectually the power to, at once, apprehend the offender is necessary; under such circumstances to stay his hand until a warrant could be obtained would paralyze his power to prevent crime, and maintain the public peace. So, perhaps, the legality of an arrest without warrant might be maintained where the affray or other misdemeanor had already been completed when the officer appeared, if the offender was present, and public order had not yet been completely restored. Where, however, the offense is an acomplished fact, its prevention is no longer possible, and if public order has been fully restored before the officer appears, the power to arrest without warrant for a mere breach of the peace or other minor offense is no longer necessary, for the end—to maintain the public' peace—for which such authority is given, is no longer attainable.

Even where such an offense has been committed in the presence of an officer, his power to arrest the offender without warrant should be promptly exercised or it will be lost. 1 Am. & Eng. Ency. of Raw, 784; Queen v. Marsden, 1 Law Reports, Crown Cases Reserved, 131; Clifford v. Brandon, 2 Campb. 358.

In one case it was held that the officer must proceed at once in the matter, and follow it up until the arrest is accomplished, and a delay of five hours was fatal to the authority. Wahl v. Walton, 30 Minn. 506. In Regina v. Walker, Dearsly’s Crown Cases, 358, two hours had elapsed before the arrest was attempted, and the court for hearing Reserved Crown Cases, speaking by Pollock, C. B., said: “We are of opinion that the apprehension was not lawful. The assault for which the prisoner might have been apprehended was committed at another time and at another place; there was no continued pursuit of the prisoner.” Id. 359. In Meyer v. Clark, 41 N. Y. Superior Court Reports, 107, an interval of a few minutes, where the officer in the meantime had gone away and made the arrest on his return, rendered it illegal.

/The authorities establish the rule that the powers of peace officers to arrest without warrant for a mere misdemeanor, should be made as definite and certain as .may be consistent with an efficient discharge of his duty to maintain public order, and extended no further than may be necessary to that end. Where he acts upon view, he is required to act promptly. This may introduce .an element of indefiniteness;. for whether he is prompt or not, must depend to some extent upon the circumstances in which he is placed. This, however, is unavoidable, unless it should be held that he must act at once or lose the power to arrest, and this degree of promptness it seems is not required. Taylor v. Strong, 3 Wend. (N.Y.) 384; Shanley v. Wells, 71 Ill. 78; 1 Am. & Eng. Ency of Law, 737.

However, to extend his power of arrest, in the class of offenses under consideration, so as to authorize him to act solely upon information obtained from third persons, not only as to whether an offense had been committed, but also as to the person who had committed it, is not only unnecessary to enable him to preserve public order, but would render still niore indefinite and uncertain the extent of his authorityX

How s6on after the offense had been committed should the information be communicated, to authorize the officer to act without the sanction of a warrant — and how soon thereafter must he proceed to make the arrest? A satisfactory answer to these questions is not readily found. If such power was absolutely necessary to preserve the public peace, an objection to it, founded upon its • extent and uncertainty, should yield to that necessity; but it may well be doubted whether this power of apprehension for a mere misdemeanor, upon information only, and without warrant, in view of the temper and notions of our people in regard to their personal rights, and the opinion, so often; however,, unjustly entertained by the public, respecting the discretion of a large class of peace officers, would not tend to disturb, rather than promote, the public peace.

We think, therefore, the statute under consideration, even if it stood alone, should not be construed to authorize a marshal of a city or village to arrest without warrant for a mere misdemeanor not committed in his presence.

The section (1849 Revised Statutes,) under consideration, however, does not stand alone. The General Assembly, by section 7129, Revised Statutes, has spoken upon this subject. That section, (7129) provides that “ A sheriff, deputy sheriff, constable, marshal or deputy marshal, watchman, or police officer, shall arrest and detain any person found violating any law of this state, or any legal ordinance of a city or village, until a legal warrant can be obtained.”

This section, and section 1849, Revised Statutes, which has been under consideration, are in pari materia, and should be construed together as well as in reference to the established rules of the common law.

The general assembly, by section 7129, Revised Statutes, must be deemed to have prescribed the rule relating to the subject it was then considering, namely; the circumstances under which an arrest may be made without warrant, while by section 1849, Revised Statutes, it prescribed the general duties and powers of marshals of our cities and villages, and as there is no inconsistency between _ the two, neither statute should be regarded as conflicting with the other; but if there were such conflict, each should be deemed paramount in respect to the particular subject to which it specially relates. Section 7129, Revised Statutes, provides for the arrest of persons “found violating” a law or ordinance. Found by whom? The statute does not expressly declare; but when the rules of the common law upon this subject are considered, it is clear that the legislature meant, found by the officer who attempts to make the arrest.

Exceptions sustained.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Evans v. Beaver et al.

      Conflict of laws.

    A mortgage executed in the state of Indiana by a married woman domiciled in that state, on real estate situate in Ohio, to secure an obligation as surety to be performed in the state of Indiana, where she is without capacity to make such a contract, is void here as well as in Indiana.
    (Decided March 7, 1893.)
    Error to the Circuit Court of Defiance county.
    On May 26,1882, Edward D. Beaver executed his certain promissory notes amounting to $2,100.00, payable to the plaintiff, Amos S. Evans, at The Hamilton National Bank, Ft. Wayne, Indiana. The notes were given in payment for a stock of goods that had been purchased of the plaintiff by Weaver for Marion A. Webb, and the latter assumed the payment of the notes; and to secure the payment of the same, his wife, May H. Webb, as surety of her husband only, executed a mortgage upon certain real estate, belonging to her as her separate estate, situate in Defiange county, Ohio. May H. Webb and her husband were at the time and continued to be citizens of and residing in the state of Indiana, by the laws of which state, a married woman has no capacity to bind herself as the surety of another, and all such obligations assumed by a married woman are declared to be void. The mortgage as well as the notes were made in that state, and the notes, as before stated, stipulated for payment at The Hamilton National Bank, located in that state. The notes not being paid, suit was brought in Defiance county for the foreclosure of the mortgage; and the incapacity of a married woman to bind herself by the laws of Indiana as a surety, was relied on as a defense. On appeal the circuit court held the mortgage void and dismissed the petition. Error is prosecuted here to reverse this judgment.

      Henry Newbegin and B. B. Kingsbury, for plaintiff in error.

      N. G. Johnston, Harris & Cameron, C. S. Bentley and Hill & Hibbard, for defendants in error.
   By the Court.

May H. Webb was not originally liable upon the notes; but her husband assumed their payment, and she as his surety pledged her separate estate to secure that obligation. ¿ It is well settled that a mortgage is only a security for the performance of some obligation, and if that is void, it is of no avail."] All the parties to the notes as well as to the mortgage resided at the time in the state of Indiana, and performance, that is to say, payment, was to be made in that state. It was in every sense an Indiana contract; and, as to the capacity of the parties to make it, must be governed by the laws of that state. Story’s Conflict of Laws, §§ 65, 66, 66a, 242, 243; Lockwood v. Mitchell, 7 Ohio St., 388, 405; Wharton on Conflict of Raws, §§ 398, 399,400. By the laws of that state a married woman is incapable of making a contract, binding her as surety or guarantor in any form; it is declared void. Hence, though a married woman is under no such disability in this state, yet the mortgage of May H. Webb, having been executed in the state of Indiana, where she was then domiciled, to secure an obligation to be performed in that state, and, by whose laws she had no capacity to make it, is void here as well as .in that state.

Judgment affirmed.


text:
    Weisbrodt v. State.

      Intoxicating liquors—Information charging unlawful use of, on election day—Sufficiency of.

    X. In an information charging a violation of the act making it an offense to keep open on election day a place where on other days, spirituous, vinous, or malt liquors are habitually sold and drank, it is not sufficient to describe the place as one “where intoxicating liquors were on other days habitually sold and drank.”
    2. It is not necessary to allege in such information the filing of an affidavit charging the offense.
    (Decided March 28, 1893.)
    Exceptions by the prosecuting attorney, to the judgment of the Court of Common Pleas of Brown county.

      D. V. Pearson, Prosecuting Attorney, for the exceptions.

      John H. Markley, contra.
   By the Court.

The record presents the question whether or not, in an information under section 6948 of the Revised Statutes, which makes it an offense to keep open on election day any place where on other days spirituous, vifious, or malt liquors are habitually sold and drank, it is sufficient to describe the place as one “where intoxicating liquors were on other days habitually sold and drank?” We answer the question in the negative. All spirituous, vinous, or malt liquors are intoxicating, but all intoxicating liquors are not necessarily either spirituous, vinous, or malt liquor.

It is argued that an information charging an offense under the above cited section should allege the filing of an affidavit charging the offense. We think not. The filing of such affidavit is a necessary pre-requisite to a presentation of the information, but no allegation of the fact is necessary in the information itself. If it be claimed that no affidavit has been filed, a motion to quash would reach and determine the question.

Exceptions overruled.


text:
    Neil v. Bank.

      Interest on judgments.

    Interest on a judgment rendered in this state, on an obligation made and entered into in another state, bears interest according to the law of this state.
    (Decided April 11, 1893.)
    Error to the Circuit Court of Franklin county.
    Suit was brought in the common pleas of Franklin county by the defendant in error, against John B. Neil, upon a promissory note fcr $1,000, bearing interest at the rate of 18 per cent, per annum, executed in the state of Idaho, and where, by the laws of that state, 18 per cent, may be taken and reserved. Judgment was rendered for the amount of the note, with interest at the rate stipulated, 'amounting to $2,612.24, “to bear interest at the rate of 18 per cent, per annum.”

      F. F. D. Albery and E. L. Dewitt, for plaintiff in error.

      J. T. Holmes, for defendant in error.
   By the Court.

At common law a judgment did not bear interest. Freeman on Judgments, § 441. Interest is an incident added by statute. It is given in this state by §§ 3180, 3181, Revised Statutes. By section 3180 judgments rendered on instruments reserving interest at a rate not exceeding eight per cent, per annum, bear interest at the rate stipulated in the instrument; in all other cases the judgment bears interest at the rate of six per cent., § 3181, Revised Statutes. Hence, a judgment rendered in this state upon a note executed in another state bearing interest at a rate, valid by the laws of the state where executed, bul greater than allowed by the laws of this state, bears interest at the rate of 6 per cent. only.

Judgment modified accordingly.

Dickman, J., did not sit in this case.


author: By thu Court.'

text:
    Davis et al. v. State ex rel.
    Contempt— When Judges withoutjurisdictiou to punish—Mandamus —Circuit Court.

    Where a Circuit Court has awarded a peremptory writ of mandamus which the defendant neglects or refuses to obey, proceedings instituted to compel obedience to the writ and to punish him as for contempt, on account of such neglect or refusal, should be had before the court, the judges thereof, sitting at chambers, having no jurisdiction to hear and determine the matter.
    (Decided April 11, 1893.)
    Error to the Circuit Court of Ricking county.
    A proceeding in mandamus was brought in the circuit court of Ricking county against the plaintiffs in error to-compel them, as members of the county board of elections of said county, to sign an abstract, alleged to have been made out by such board, of the votes cast in said county at the November election for the year 1891, for the office of state senator of the joint 15th and 16th senatorial districts of this state, of which said county of Ricking was a part. Upon issue joined the court found for the relator, and awarded him a peremptory writ, directed to the plaintiffs in error, commanding them to sign the abstract in question. This they failed and refused to do. After the adjournment of the circuit court in Ricking county, and while the judges thereof were in the adjoining county of Muskingum, complaint in writing was made to them as such judges, of the refusal of the plaintiffs in error to obey the commands of the peremptory writ of mandamus. Whereupon an qrder was issued under the hand of the judges of said court, commanding the plaintiffs in error to appear before said judges, sitting at chambers at the courthouse in the county of Muskingum, to show cause why they had not obeyed the commands of said peremptory-writ of mandamus.

      Samuel J. Davis, only, appeared. A motion to dismiss the proceedings and discharge the respondents for want of jurisdiction was made by their counsel and overruled by the judges; to which ruling exceptions were taken. The matter was then heard upon testimony, and the plaintiffs in error ordered to comply with the commands of the peremptory writ under pain of imprisonment until they should do so.

      F. F. D. Albery, for plaintiffs in error.

      F. H. Southard, S. M. Winn, and Swartz & Allen, for defendant in error.
   By thu Court.'

Whatever the power may be of a court, or a judge sitting at chambers, and whether that power be inherent or conferred by section 5639, Revised Statutes, to punish summarily for contempt, persons guilty of misbehavior in the. presence of or so near the judge or court as to obstruct the administration of justice, the authority thus conferred does not include the power to punish as for a contempt, the disobedience of orders like the one under consideration. The authority to enforce orders of that character by summary proceedings is conferred by section 5640, Revised Statutes; and that section, as well as the eight succeeding sections of the chapter of the code relating to proceedings in contempt, all contemplate that the power shall be exercised by the court and not by the judges thereof, sitting at chambers.

The judges, therefore, sitting at chambers, were without jurisdiction in the premises, and the motion to dismiss the proceedings should have been sustained.

This summary jurisdiction given by section 5640, Revised Statutes, is clearly distinguishable from the authority of judges sitting at chambers in matters of equitable cognizance, as recognized by this court in Cincinnati, Sandusky & Cleveland Railroad Company v. Sloan, 31 Ohio St. 1,

Judgment reversed and proceedings dismissed.


text:
    Graves v. Graves.

      Alimony—Appeal—Jurisdiction of Circuit Court.

    (Decided April 11, 1893.)
    Error' to the Circuit Court of Ottawa county.

      C. P. Wickham, John M. Lemmon, and Malcom Kelley, dor plaintiff in error.

      B. R. Dudrow, and Basil Meek, for defendant in error.
   By the Court.

The plaintiff below filed her petition against the defendant below for divorce and alimony, alleging as her ground for divorce, extreme cruelty. The court of common pleas, on final hearing, found that she had not sustained the allegations of her petition, stating grounds of divorce, and ordered that the petition for divorce be dismissed. The court further found, as to the matter of alimony, that she had sufficient cause to leave her husband, and that the parties were still living separate and apart, and awarded alimony to the wife. On appeal to the circuit court the appeal was sustained and alimony decreed to the wife. Held: That 'fthis proceeding and judgment.is fully authorized by the divorce statutes of Ohio; and that after dismissing the petition of plaintiff for. divorce, the court properly proceeded to allow alimony to her; and-tfeat an appeal would lie from the judgment making such allowance.

Judgment affirmed.


author: Spear, J.

text:
    Treasurer v. Martin.

      Stafoite of limitations—When party not allowed to plead it if defense—Unconscientious defenses not favored in equity—Un constitutional law— When party not permitted to question it.

    1. An unconscientious defense, founded upon an unfair advantage obtained by a party without fault on the part of his adversary will not be favored by a court of equity.
    2. Where, before the accruing of a cause of action, a part)' procures the allowance of an injunction restraining the commencement of an action upon such cause, and its continuance in force unti) the period allowed by the statute of limitations for commencing such action has expired, such party will not, after such injunction has been dissolved, because wrongfully obtained, be permitted, in a court of equity, to plead the statute of limitations as a bar to such action.
    3. A party who has procured the enactment of a special law intended for his benefit cannot be heard to question the constitutionality of the act.
    (Decided April 25, 1893.)
    Error to the Circuit Court of Brown county.
    On the 26th day of April, 1882, the plaintiff in error filed a petition in the Court of Common Pleas of Brown county, to enforce the collection of an assessment of $328.12, with interest from December 20, 1881, made by the county commissioners for the construction of the Ripley and Arnheim free turnpike road, upon 220 acres of land of the defendant. By supplemental petition like relief was sought as to another assessment of $221.61, which had then become due.
    The road improvement was built under the act of April 5, 1866, known as the Two-Mile Free Turnpike Road Raw.
    To the petition the defendant pleaded the statute of limitations. To this plea the plaintiff replied that he was stayed by an injunction procured by defendant, from collecting, or attempting to collect, any of these assessments. The injunction was allowed February 7, 1871, and continued in force until dissolved by the Supreme Court at its December term, 1876.

      And, as separate reply, plaintiff further alleged that “on or about the--day of---1866, the commissioners of said county, under and by virtue of an act of the general assembly of the state of Ohio, entitled an act ‘to authorize the county commissioners to construct roads, on a petition of a majority of resident land owners along and adjacent to the line of said roads,’ passed and took effect April 5, 1866, ordered the construction of the Ripley and Arnheim free turnpike road improvement, mentioned in the pleadings herein, and under and by virtue of said act, and the proceedings thereunder, the lands of defendant described in the petition herein were duly returned and assessed in the sum of $550.05, as being benefited to that extent by said improvement, and said sum was, on the 28th day of October, ’70, ordered by said commissioners to be assessed against said lands of defendants to be paid in ten equal semi-annual installments; that the cost of said improvement was about $7,250 per mile; and that defendant and all others within the boundary of said road improvement were assessed at that rate per mile to pay for the same, and defendant stood charged with said amount upon the special duplicate in the hands of the treasurer; that afterwards, to wit: on the 6th day of May, 1878, at the instance and request of defendant, and others whose lands were assessed to pay for said improvement, the general assembly of the state of Ohio passed an act entitled an ‘ act to authorize the commissioners of Brown county, Ohio, to levy a tax and issue county bonds to pay the bonds issued by the commissioners of said county for the construction of the Arnheim Free Turnpike and interest and bonds of certain other roads of said county,’ and in pursuance to said act the said commissioners ordered a tax to be levied upon the lands of defendant and all others within the boundary of said road sufficient to pay off four thousand dollars per mile of the cost of said road and no more, and the said assessments theretofore levied upon the lands of defendant and others within the boundaries of said road, were on the--day of—.—1878, re-apportioned and reduced, and said lands were then taxed or assessed upon the basis of $4,000 per mile for said improvement and no more. The Arnheim Free Turnpike mentioned in the title to said last named act, is the same road or improvement mentioned in the pleadings herein, and the taxes so levied under and by virtue of said act are the taxes claimed in the petition herein.”
    A demurrer to these replies was sustained by the circuit court, and judgment entered dismissing the petition and awarding defendant his costs.

      Moore & Markley, for plaintiff in error.
    The petition in this case does not seek to recover a personal judgment against defendant, but was brought to enforce an assessment lein against the lands therein described, and the court will bear in mind, in the further discussion of this case, that there was no law authorizing this kind of a suit to be brought until 1876. 73 O. L., 218; Bruechweh v. Drake, 31 Ohio St., 652
    We think that the facts pleaded in the replies completely avoid the statute of limitations, if the court should find that this action is within the purview of the statute of limitations.
    The court will - bear in mind that the statute of 1876 was the first statute which gave the remedy sought to be enforced in this action. Ohio Raws, vol. 73, page 218: Bruechweh v. Drake, 31 Ohio St., 652. This act was passed and took effect April 11, 1876. Now we must bear in mind that at the time of the enactment of this statute the treasurer could do nothing toward the collection of this assessment, because he was enjoined from so doing.
    We claim that the statute of limitations w'ould not run against the collection of these assessments, until the passage of the act of April 11, 1876, in any event. Bruechweh v. Drake, supra.

    That the pendency of the case of Parker v. Burgett, ánd the fact that the treasurer was at the time of the passage of this statute enjoined by the parties in this case from collecting or attempting to collect these assessments, we think, would prevent the running of the statute of limitations until the injunction was dissolved.
    That by reason of the legislation set up in the second reply to the fifth defense, a right of action had not accrued more than six years prior to the bringing of this suit.
    We think that the case of Bruechweh v. Drake, is decisive of the question set out in the first reason, and will discuss the second and third reasons separately, and as to the second reason for reversing the judgment of the circuit court.
    We think that the state of facts set up by the reply to the answer setting up the statute of limitations, suspends the running of the statute.
    That it will not be premitted to this defendant to enjoin the treasurer, and prevent him from collecting or attempting to collect these assessments, and then after the court decides that the injunction ought not to have been granted, that he should set up the bar of the statute.
    •In a case where the facts are as alleged in the reply, it seems repugnant to all of our ideas to permit the defendant to set up the statute of limitations. We respectfully refer the court to the following authorities. Angelí on limitations, secs. 62 and 63, and notes; Id. page 197, note*- 3 and authorities cited; Braun v. Sauerwein, 10 Wallace, 218, which seems to us to be exactly in point and to meet the questions in the case at bar. Williams v. Pouns, Supreme Court of Texas, November, 1877, Reporter, volume 5, page 82: High on Injunction, sec. 87; Fortier v. Zimpel, 6 La. Ann. 54; Doughty v. Doughty, 10 N. J. Eq., 347; 3 Stock. N. J., 347; Little v. Price, 1 Md. Ch., 182; Moore v. Crockett, 10 Humph. (Tenn.) 365; Hutsonpiller v. Stover, 12 Gratt. (Va.) 579; Wilkinson v. Flowers, 37 Miss., 579; American and English Ency. of Law, page 719, under the Limitations of Actions; Armstrong v. Levan, 109 Pa. St., 177; Lengar v. Hazlewood, 11 Lea (Tenn.) 539; Dugin'd v. Scholfield, 32 Gratt. (Va.) 803.

      C. A. White, and G. Bambach, for defendant in error.
    Brief of C. A. White.

      Does the restraining order and injunction pleaded by the plaintiff in his reply prevent the statute from running? We contend that it does not.
    The allowance of an injunction addresses itself always to the equitable jurisdiction of the court, and is always subject to such modifications as the court allowing it may see proper in the exercise of a sound judicial discretion to impose. If it restrains an action at law, and the party is in danger of losing his rights by the interposition of the statute of limitations, there is no court that would hesitate for a moment to so modify the injunction as to permit the commencement and service of process in an action at law or in equity, as the case might be. The presumption is that courts will do their duty. More than forty years of the study of their procedure, and of the practice of my profession in them, has led me to the belief that that presumption is well founded; and being so, there is no occasion for the engrafting of a new exception upon the statute of limitations. Tucker v. Shade, 25 Ohio St., 355; Baker v. Millard, 16 Wendell, 572-3; 6th Bacon’s Abridgment, 395-6; McIver v. Ragan, 2nd Wheaton, 25; Hudson v. Cary, 11 S. and R. 10-14; Sacia v. Degraf, 1 Cowen, 356.
   Spear, J.

The first question is as to the sufficiency of the plea of the statute of limitations.

The original assessments were made by virtue of the act referred to as the two mile free turnpike road law, October, 1870, and ordered placed upon the special duplicate, payable in ten equal semi-annual installments, the first, $55.00 in amount, coming due December, 1870.. There then existed a provision of statute, (section 38 of the general tax law of 1859), which, in case of delinquent taxes on personalty, required the clerk of the court of common pleas, on application of the treasurer, to serve a notice on the delinquent to show cause why he should (,not pay such taxes, and if he failed to show sufficient cause, the court at the next term could enter a rule against him for the taxes and costs, having the force and effect of a judgment at law, and to be enforced by attachment against the person, or by execution, or such process as the court might direct. If this statute could be held to apply to assessments, which is at least doubtful, it authorized only a special proceeding, and not a civil action, within the meaning of the statute of limitations. It could not, therefore, affect the present case. And there was not, until the act of February 18, 1875, (72 Ohio Taws 37), to which the act of April 11, 1876, is an amendment, any authority for a suit similar to the present one. Plaintiff’s action was, therefore, founded upon the last named act, in which it is provided “ That whenever any taxes or assessments, heretofore or hereafter levied or assessed, shall stand charged against any lands or lots, or parcels thereof, upon the tax duplicate or special duplicate of any county 'of this state, for state, county, city, or any other purposes, and the same shall not be paid within the time prescribed by law for the payment of such taxes and assessments, the treasurer of such county, in addition to any other remedy provided by law, for the collection of such taxes and assessments, is hereby specially authorized and empowered to enforce the lien of such taxes and assessments upon said property, by commencing in any of the courts of this state having jurisdiction of the subject matter, a civil action in the name of such treasurer, to subject a sufficient amount of such realty to the payment of such taxes and assessments; and it shall be sufficient, having made proper parties to the suit, for such treasurer to allege in his petition that the said taxes and assessments stand charged upon the said duplicate of said county against said lands, the amount thereof appearing to be due and unpaid thereon, and that the same is due and unpaid.”

It was alleged in the petition that the auditor had placed in the hands of the plaintiff for collection, the special duplicate for the year 1881, for the construction of the Ripley and Arnheim free turnpike road; that upon it there stood charged against the person, and against 220 acres of the lands of the defendant therein described, an assessment for $328.12, with interest from December 20, 1881; that the same was due and unpaid, although the time prescribed by law for its payment had elapsed; that the same was a lien upon the lands, and praying an'order that, in default of payment of the amount found due, the lands be ordered sold.

Defendant’s plea was that the action accrued in favor of plaintiff, if at all, more than six years next before the Commencement of the same, and the filing of the petition and supplemental petition. And, in support of this, it is insisted that the case was covered by section 4981, Revised Statutes, which provides that “ An action upon a liability created by statute, other than a forfeiture or penalty, shall be brought within six years after the cause of action accrued.”

Plaintiff’s cause of action being given by the statute of February 18, 1875, no question is made but that, if the statute applies, and that if defendant can avail himself of it, the effect will be to defeat plaintiff’s action, inasmuch as the original petition was filed more than six years after the passage of the act. And, if section 4981 applies to an assessment, and can be pleaded against the county, the statute is a bar unless, because of' facts stated in the reply, the plaintiff’s case is saved from its operation.

Whether or not an assessment is “a liability created by statute, other than a forfeiture or penalty,” and whether the bar. of the statute can be maintained against the county, we do not here determine. Passing that, the question is whether or not a party may be permitted to set up the bar of the statute of limitations as a defense to an action the commencement of which he has wrongfully procured to be restrained until sufficient time has elapsed to render such a defense available at law?

That a party should be accorded the full legal effect of such plea is maintained upon the ground that to refuse to recognize and enforce such right is to engraft an exception upon the statute of limitations which the legislature has not placed there. And this is sustained by several decisions, and the opinions of some text writers.

Now, it may be freely conceded that the statute of limitations, where applicable, is a meritorious defense, and one which may be pleaded in equity as well as at law. Nor will a court of equity, where the demand is of' a legal nature, refuse to recognize such, defense, nor to enforce it where fairly ' obtained. So, if from the laches of the other party, the defense has arisen, its sufficiency appeals as well to a court of equity as to a court of law. But a party has not the right, under every and all circumstances, to take advantage of the statute. A variety of cases will be found in which courts of equity have refused to allow the application of the statutory bar. Hanger v. Abbott, 6 Wall. 532, is an example. Plaintiffs action could not be brought within the statutory time because, by reason of the rebellion, he could not sue in the state courts, and the court held that the plaintiff, having been without fault of his own, disabled by a superior power, from the capacity to sue, could not be affected by the statute. U. S. v. Wiley, 11 Wall. 508, is another instance. It is remarked by Mr. Justice Strong in that case that statntes of limitations “are enacted upon the presumption that one having a well-founded claim will not delay enforcing it beyond a reasonable time, if he has the power to sue. Such reasonable time is therefore defined and allowed. But the basis of the presumption is gone whenever the ability to resort to the courts has been taken away. In such a case the creditor has not the time within which to bring his suit that the statute contemplated he should have.” Another exception to the general rule is that there must be in existence both some one who can sue, and some one who can be sued, as shown by the familiar rule that where an action accrues to the estate of a deceased person, the statute does not begin to run until the qualification of a personal representative. Angell on Lim. Ch. 7; Montgomery v. Hernandez, 12 Wheat. 129; Marsteller v. Marsteller, (Penna.) 10 Rep. 440; Sarrells v. Trantham, (Ark.) 24 Rep. 297; Murray v. East India Co., 5 B. & Ald. 204; 13 Am. & Eng. Ency. of Law, 737, and cases cited.

And, while in proper cases, as suggested above, courts of equity will apply the statute, or act in analogy to it, yet it is a familiar principle of equity that a party may not be permitted to insist upon an unconscientious advantage acquired over his adversary. It will not be doubted, we suppose that where one wrongfully obtains an injunction and continues it in force, to the detriment of his opponent, he has taken an unfair advantage. It is said by Mr. Justice Story (2 Equity, 849), “if a party should apply to a court of equity and carry on an unfounded litigation, protracted under circumstances and for a length of time which should deprive his adversary of his right to proceed at law on account of the statute of' limitations having in the intermediate time run against it, courts of equity would themselves supply and administer within their own jurisdiction a substitute for that original legal right of which the party had been thus deprived, and by their decree give him the fullest benefit of it.” And to like effect are many other authorities. Little v. Price, 1 Md. Ch. 182; Williams v. Pouns, 5 Rep. 82; Moore v. Crockett, 10 Humph. 365; Sugg v. Thrasher, 30 Miss. 135; Wilkinson v. Flowers, 37 Miss. 579; Savings Inst. v. Buchanan, 60 Miss. 496; 13 Am. & Eng. Ency. of Law, 719.

It seems reasonable to conclude that it would be against conscience for a party to maintain a plea of the statute against an adversary, who, by his procurement, has been enjoined from prosecuting his suit. A court of equity may, and we think, when applied to, should, interpose the same instrument to prevent such injustice as the party himself has used to obtain an unfair advantage against his opponent. No man should be permitted to take advantage of his own wrong. And what a court of equity might do upon a direct application by bill for the purpose, it may do where the facts are shown by reply to a plea of the statute by a defendant.

In this case there appears no laches on the part of plaintiff. He refrained from prosecuting his remedy because such was the order of the court, procured by the defendant, and continued in force during the time he was prosecuting a fruitless litigation in the courts of the county and in this court. The delay complained of was the result of the wrongful act of the defendant himself, for which the plaintiff was in no way responsible, and it now comes with an ill grace for the unsuccessful party in that litigation to insist that the observance by plaintiff of that order of injunction, and his obedience to it, shall work a defeat of his right of action because of such delay.

It is insisted that the plaintiff might, at any time, have applied to the court for a modification of the order so as to permit the commencement of suit and service of process, and not to have done that is of itself laches. We do not think so. The court’s solemn fiat had gone forth forbidding the commencement of any such action, and to ask that court to set aside that order so that plaintiff might go through the fruitless motions of placing a petition upon the files, and obtaining service of summons, and thereafter go through the ceremony of responding “continued” at each call of the docket during the pendency of the injunction suit, would seem like an application for leave to do a succession of vain things.

The case of Tucker v. Shade, 25 Ohio St. 355, is cited as supporting the contention of defendant. In that case the question was whether or not, as between a creditor and the owner of land by purchase from the judgment debtor, the lien of a levy of execution would continue to operate after the period of five years, where the creditor had been enjoined at suit of one who was surety in the judgment from issuing a second execution, and the purchaser bought, took conveyance, and paid the purchase money, without actual notice of the alleged lien. The holding, in substance, was. that inasmuch as the purchaser was not a party to the suit in which the injunction was allowed, and inasmuch as-there was no reference to the property in controversy, nor any right to it set up in that suit, the controversy being only as to the. discharge of the alleged surety from liability on the judgment, the suit operated only on the parties personally, and the lien was not prolonged beyond the five years, as against the purchaser. It is apparent that we have a different case.

At the time the plaintiff’s cause of action arose he could not commence suit upon it because of defendant’s injunction. That disability continued until the judgment dissolving the injunction by this court at its December term, 1876, in fact rendered May 8, 1877. Within six years after-that judgment he commenced the present action, and our conclusion is that in equity and good conscience the defendant should not be permitted to insist upon the bar of the statute of limitations as applied to the time during which the plaintiff was enjoined from commencing his action.

The demurrer also challenges the validity of the act of May 6, 1878.

This act is open to verbal criticism, but we do not see that there is any serious fault to be found with it. The law is intended to operate upon a then existing condition of things in Brown county. A burdensome charge had been laid on lauds presumably benefited by the improvement. Many of the assessments had not been paid. By virtue of the act the commissioners were authorized to reduce the total burden from a sum based upon a cost of $7,250 per mile, to a sum based upon a rate of $4,000 per mile; to refund to such as had paid assessments based upon the first named rate an amount sufficient to equalize the burden, and to levy upon the taxable property of the county for the residue. They then might, as a substitute for the original assessments remaining unpaid, levy specially upon the same lands according to the reduced rate, and extend payment of such special tax or assessments, so that they would be paid in twelve equal semi-annual installments. This scheme does not seem to be unfair; at least not to those liable for such assessments.

As we have already found, the statute of limitations had not, at the enactment of this Statute, run against any of the assessments made upon the lands of defendant, and, the bar not being complete, the defendant could have -no vested right in the former statute of limitations, whatever that may have been. If any one could justly complain of this statute it would seem to be the general tax-payer, and not one 4who was benefitted by its provisions.

But, aside from this, the defendant is in no position to question the statute. The allegations of the reply show that he, with others, procured the action of the legislature in that behalf. It is a local measure, for their special benefit, and, after having invoked, the action of the law-making power for their relief, they cannot, upon well established principles, be heard to assert a want of power to give what they procured to be given. The State v. Mitchell, 31 Ohio St. 592; Tone v. Columbus, 39 Ohio St. 281.

The judgment of the circuit court will be reversed, the demurrer ordered overruled, and the cause remanded for further proceedings, in accordance with this opinion.

Reversed.


author: Buricet, J.

text:
    Zieverink et al. v. Kemper, Rec’r.

      Statute of Limitations—Frauds—Pleadings—When an action is commenced—Receivers— When may be appointed—Powers of— Stockholders' liabilities—Evidence.

    1. When it appears from plaintiff’s petition, in an action for relief on the ground of fraud, that the cause of action accrued more than four years before the action was commenced, a general averment in the petition, that the fraud was not discovered by plaintiff until a time within four years before the action was brought, is sufficient to bring the case within the saving clause of the statute of limitations for such actions, without specifically setting out when the discovery was made, or how it was made,, or why it was not made sooner.
    2. An action is deemed commenced at the date of the summons. which is served on the defendant, and although a demurrer is sustained to the petition and leave given to amend, the action remains “ commenced ”; and the averment as to the discovery of the fraud within four years before the action was brought, may be supplied in a subsequent amendment to the petition.
    3. In an action to enforce payment of the statutory liability of stockholders in an Ohio corporation, a receiver may be appointed by the court to collect and distribute the fund, and such receiver may, by authority of the court appointing him, prosecute actions in his own name as such receiver to enforce payment of judgments rendered for such.statutory liability.
    1 When a judgment in a former action exists against a party to another action in the same court, and upon the trial of such other action reference is made to such former judgment, admissions are made as evidence on the trial by counsel on both sides that such judgment shows certain facts, and witnesses testify as to facts said to be shown by such judgment, all without objection by either side, it is not error for the court hearing the case, to regard such judgment as in evidence, although not formally offered or read by either party. Bevington v. State, 2 Ohio St. 160, followed and approved.
    (Decided April 25, 1893.)
    Error to the Superior Court of Cincinnati.
    John Henry Zieverink, one of the plaintiffs in error, was a stockholder and officer in The Western Furniture Company at Cincinnati, for some time before the sixth day of June, 1878, and had full knowledge of its financial condition and the fact that said company was insolvent, and on the sixth day of June, 1878, said company made an assignment of all its assets for the benefit of its creditors. The assets of said company were insufficient to pay its debts; and on the 13th day of January, 1880, an action was brought in the Superior Couit of Cincinnati, known as case No. 35,313, in said court, by Oscar F. Moore against The Western Furniture Company and its stockholders, to enforce the statutory liability of the stockholders of said company. Such proceedings were afterwards had in said action, that on the 26th day of October, 1882, judgment was rendered against said John H. Zieverink in said Superior Court on account of his statutory liability for the sum of $2,000, and execution was issued on said judgment, and said execution remained unsatisfied for want of property upon which to levy, to make any part of said execution. On October 26, 1882, said Willis M. Kemper was duly appointed receiver by said court in said case No. 35,313. and authorized to collect said judgment, and other judgments for the benefit of the creditors of said company. And on January 21, 1887, said Willis M. Kemper, as such receiver, commenced an action in the Superior Court of Cincinnati against said John H. Zieverink, Mary Zieverink, his wife, William F. Wieman, Casimir Bauman and John B. Rucas, and in his said petition set out the foregoing facts, and averred that on the 27th day of May, 1878, just prior to the assignment so made by said company, said John H. Zieverink, and Mary Zieverink, his wife, conveyed the property in the petition described, being twenty feet front on the west side of Pleasant street, in the citjr of Cincinnati, to said William Wieman without consideration, and for the purpose, and with the intent, to defraud his creditors, and to conceal his property from his creditors; and that on the same day said William F. Wieman conveyed said property to said Mary Zieverink without consideration; and that said Mary Zieverink received the same with such fraudulent intent. That afterwards, on the 9th dajr of October, 1879, said John H. Zieverink and Mary Zieverink, his wife, conveyed the said property to Casimir Bauman; that thereafter, on the 29th day of December, 1883, said Bauman transferred said property to said John B. Eucas, and on the 15th day of April, 1885, said John B. Eucas conveyed said property to said Mary Zieverink, and that there was no consideration in fact for any of the above conveyances set forth; but that ■said plaintiff did not learn of said lack of consideration and the fraudulent intent on the part of said grantors and grantees, until within four years before filing his said petition. The prayer of the petition is that said conveyance of real estate may be declared void, and set aside, and that said real estate may be subjected to the payment of said judgment; and for all further’and proper relief.
    On the 24th day of February, 1887, an answer was filed by said Zieverink and wife, in effect, a general denial, with a plea of the statute of limitations; and the case was tried in the Superior Court of Cincinnati; judgment rendered in favor of the plaintiff; petition in error filed in the general term of said Superior Court, and said judgment reversed, and caiise remanded to special term for further proceedings, and with leave to said plaintiff to amend his petition. And on the 31st day of March, 1888, said plaintiff filed an amendment to his petition, in which he avers that he reiterates all the allegations of his petition, and in addition thereto says: “that Oscar F. Moore, A. Veneman & Co., Frederick Dell, H. N. Bird, A. Walterbos and F. D. Albra & Co., are all creditors of the said company; and that none of said creditors had any knowledge of the lack of consideration for the conveyance set out in plaintiff’s petition, nor of the fraudulent intent therein set forth, until a time within four years prior to the filing of said petition.”
    To this petition, as amended, Zieverink and wife de murred; the demurrer was overruled and exceptions taken. Thereupon an answer was filed, on the 25th day of May, 1888, in which the statute of limitations is again pleaded and a general denial interposed, together with the fact that said deeds were all of record and notice to the world. And they further aver, that at least one-third in amount of said creditors, after the recovery of said judgment, released their said judgments against Zieverink, and that the judgment, to that extent, was satisfied. And pray that an account be stated of the amount of said releases, and that a pro tanto satisfaction be entered of the judgment against said Zieverink.
    No reply was filed to this answer. That case was again tried at special term on the 21st of November, 1888, and judgment rendered for plaintiff, setting aside and vacating said deeds, ordering that said property in the petition described be subjected to the payment, first, of the costs; second, of plaintiff’s claim, and other debts of the said John H. Zieverink thereafter to be determind; and further, ordering that if said costs be not páid within twenty days from the date of the decree, that said property be sold by the sheriff of said county as upon execution, and make due return of his proceedings to the court for further order in the premises. To all of which exceptions were taken. A bill of exceptions was allowed, pretending to set out all the testimony; and in said bill of exceptions are found copies of the various deeds alleged in the petition to have been executed, conveying said property to said different parties.

      J. J. Glidde7i and John R. Von Seggern, for plaintiffs in error.
    The cause of action is complete when the fraudulent conveyance is made, and in this case, if at all, when the corporation became insolvent. Coombs v. Watson, 32 Ohio St., 234, 235; Gates v. Andrews, 37 N. Y., 657; Hawkins v. Furnace Co., 40 Ohio St.. 514.
    The original petition contained an averment that the receiver “did not learn of said lack of consideration and the fraudulent intent on the part of said grantors and grantees until within four years last past.” A demurrer to this petition was overruled, a decree was taken in favor of plaintiff, which decree was reversed by the Superior Court in general term, and the cause remanded. Then an amendment to the petition was filed alleging that certain six persons, naming them, were creditors of said corporation, and that neither .of them had any knowledge of the lack of consideration nor of the fraudulent intent set forth in the petition until within four years prior to filing said original petition.
    There is no allegation of any concealment by defendant. No allegation that negatives the inference that the lack of knowledge may have been caused solely by the negligence ■of, or lack of diligence upon the part of said creditors; there is no allegation showing any diligence. No facts set forth excusing the delay in making inquiry. No allegation when the discovery was made, nor, what was discovered, nor why the discovery was not made sooner. Douglas v. Corry, 46 Ohio St., 354; Wood on Limitation, 590; Wood v. Carpenter, 101 U. S., 135, and cases cited; Boyd v. Boyd, 27 Ind., 429; Stanley v. Stanton, 36 Ind., 445; Wynne v. Cornelison, 52 Ind., 312; Carr v. Hilton, 1 Curtis, 390; Taylor v. S. & N. R. R. Co., 13 Fed. Rep., 158; Credit Company v. Arkansas Central R. R. Co., 15 Fed. Rep. 58; Harwood v. R. R. Co., 17 Wallace, 78; Bohm v. Cunningham, 2 Bull., 274; Kilbreath v. Fosdick, 3 Bull., 523; Moon v. Green, 19 How. (U. S. S. C.) 69; Badger v. Badger, 2 Cliff., 137; Stearns v. Page, 7 How., 819 to 829; Moore v. Green, 19 Howard, 69; Bieubien v. Bieubien, 23 How., 190; Badger v. Badger, 2 Wall., 95.
    The evidence utterly fails to show or tend to prove any effort upon the part of plaintiff or any of the creditors to ascertain the facts, does not tend to prove any diligence on their part. For this reason there was no cross-examination. Carr v. Hilton, 1 Court (C. C.) 390; Wood v. Carpenter, 140; Buckner v. Calcote, 28 Miss., 432; Nudd v. Hamblin, 8 Allen, 130; Cole v. Claretin, 9 Me., 131; McKown v. Whitman, 31 Me., 448; Rouse v. Southard, 39 Me., 404; Rice v. Burt, 4 Cush., (Mass.) 208; Wood on Limitation, 590.
    The original petition stated no cause of action, and, therefore, no action was brought by its’ filing. Weidner v. Rankin, 26 Ohio St., 522 to 525; Roseborough v. Ausley, 35 Ohio St., 111. The action is upon an amended petition. Bank v. Telegraph Co., 30 Ohio St., 555. And it is decided in Coombs v. Watson, that a demurrer lay to the original petition, on the ground that it did not state facts sufficient to constitute a cause of action. It showed upon its face that the cause of action had arisen more than four years before suit brought, and the lack of knowledge by the receiver was of no consequence—-he being merely a representative to enforce such rights of the parties he represented as the court empowered him to enforce for them. And for this reason the general term reversed the judgment of special term, and ,remanded the cause.
    The record does not disclose any authority to the plaintiff to maintain this action or to bring this suit. There is no order of the court empowering him to bring the action; nor does it appear that he was appointed for that purpose. And the receiver has not the power to bring the action without an order of the court. Daniels Chancery Practice 1438, 1439; Bank v. Buckingham, 12 Ohio St., 419; section 5590, Revised Statutes.

      Avery & Holmes, for defendant in error.
    It is claimed that the mere allegation, that the want of consideration and fraudulent intent was not discovered until within four years from the filing of the petition, is insufficient. It is claimed that in addition the circumstances of the discovery must be fully stated and the delay shown to be consistent with the requisite diligence. And that there must be an allegation of concealment that negatives the inference that lack of knowledge may have- been through negligence of the creditors. We have alleged and proved in the most positive manner a continuous attempt to conceal. We do not see how the fact could be put stronger. It is not necessary to state the conclusion of fact when we state the facts themselves. But it is .not necessary to plead the concealment, and we shall suppose for argument that such has not been done.
    This raises a point of pleading under our code. Secs. 4979-4982, Revised Statutes of Ohio provides that “Civil actions—can only be brought within the following periods after the cause of action accrues: Within four years, an action for relief on ground of fraud, but the cause of action in such case shall not be deemed to have accrued until the discovery of th,e fraud.”
    The allegation in the amended petition is substantially in the language of the statutes. The fact is stated (although in general terms) which saved the plaintiff from the bar of the statute. If the amended petition is good on demurrer, all that is necessary on the trial of the case is to prove its. allegations. This was done. Coombs v. Watson, 32 Ohio St., 228; Maple v. Railroad Co., 40 Ohio St., 313; 6 Rich Eq. p. 96-100 and 101: 7 Rich Eq. 430; 17 Ohio St., 485, 508.
    The pleadings and the proof in this case must be regulated by the statute and rules of the state of Ohio, and are not governed by the rules of pleading and proof in equity, though the latter coincide with the former in many respects. Howk v. Minnick, 19 Ohio St., 462.
    But if, as is claimed by the plaintiffs in error, that the section is the embodiment of the rule in equity, which we think goes too far, even then the amended petition and the proof under it is sufficient. The following cases show what this court has considered the rule in equity. Longworth v. Hunt, 11 Ohio St., 194; Long v. Mulford, 17 Ohio St., 485; Ormsby v. Longworth, 11 Ohio St., 653; Pratt v. Longworth, 27 Ohio St., 159; Bailey v. Glover, 21 Wal., 342; Story’s Ecp Juris., sec. 1521a; Sullivan v. Portland, etc. R. R. Co., 91 U. S., 807.
    Radies is not to be imputed to a suitor in a court of law who has not brought himself within the statute of limitations, if there had been no laches up to that point—he is not affected by any imputed laches in a court of equity. Waterman v. Sprague Mfg. Co., 55 Conn., 554; Bray v. Tofield, 18 Raw Reps., Chancery Div., 551; Quinby v. Blackey, 63 N. H., 77; Rosenthal v. Walker, Assignee, 111 U. S., 185.
    In defendant’s brief, the objection is raised, that the receiver had no power to sue, and collect judgment. The court will observe that the petition makes the following statement, viz: “Plaintiff further says that on or about October 26, 1882, in Case No. 35,313 of this court, by consideration of said court he was appointed receiver, to collect said judgments for the benefit of said creditors, and that he was duly qualified as such receiver.” The entry showing the appointment of the receiver and power to sue had been in evidence in the first trial of this case.
    In the second trial the defendants dictated the following admission: “It is admitted by counsel for defendants that Willis M. Kemper was appointed receiver in the case No. 35,313, Superior Court, October 26, 1882.”
    We claim that the admission dictated is substantially an admission of the allegation of appointment as made in the petition.
    The defendants claim that the original petition stated no cause of action, and therefore no action was brought. They cite 26 Ohio St., 522, and 35 Ohio St., 111. We cannot see how these cases apply to the case at bar; the original petition did state causes of action. The additional allegations of the amended petition were made necessary by demurrer to petition. There is no new cause of action set out in the amendment, but only additional facts in support of the original cause of action. The original petition was in such terms that the defense of the statute of limitations could be raised by demurrer; if defendants had not wished to make this defense, the petition would have been good upon which to found a judgment. Voss v. Woodford, 29 Ohio St., 245, 250; Johnson, Receiver v. The A. & S. Ry. Co., 54 N. Y., 416; Pollock on Contracts, new edition, 599, 600: B. O. & C. R. R. Co., v. Gibson, 41 Ohio St., 145, 146.
   Buricet, J.

The first claim made by plaintiffs in error is, that the court erred in overruling the demurrer to the amendment to the petition, for the reason that said amendment contains the averment that said creditors had no' knowledge of the lack of consideration for the conveyance set out in plaintiff’s petition, nor of the fraudulent intent therein set forth, until a time .within four years prior to the filing of said petition; and it is claimed that this is not a sufficient averment to avoid the statute of limitations; that the amendment to the petition should have contained a statement of the time at which the discovery of the fraud was made, and how it was discovered. This is a matter of pleading under our code and must be determined by the rules of pleading under the Code of Civil Procedure, and not by the rules of equity pleading as administered by the courts of chancery in England and this country. Hence the Indiana cases cited by counsel, as well as the cases in equity in the federal courts, are not applicable to the question here presented.

The complainant in equitj7 was permitted to state in his bill, as well the facts constituting the cause of his action, as the evidence of those facts, and the circumstances tending to establish them. But these rules of pleading were expressly abolished by our code; and, as if to emphasize the matter, the code provides that the forms of pleading and the rules by which their sufficiency shall be determined, are those prescribed by this code.

Whatever may have been necessary when the chancellor refused to give relief against wrongs of long standing, unless the plaintiff disclosed in his bill, due diligence in not only ascertaining his rights, but also in discovering the fraud of his adversary, and when, therefore, the conduct of the plaintiff was as important as that of the defendant in determining plaintiff’s right to relief, we think no such rule of pleading obtains under our Code of Civil Procedure.

The statute fixes the limitation, and it is not left, as formerly, to the discretion of the chancellor. It is not a question of diligence or conduct in the discovery of the fraud, but a question of time as to the discovery of the same, that is, not as to the specific day of discovery, but as to whether the fraud was discovered within four years before the action was brought.

The ultimate facts should be averred in a petition under the code, and not the circumstances and evidence from which such facts might be inferred. The ultimate fact in this class of cases is, that the fraud set out in the petition was not discovered until within four years before the action was brought. As the petition shows that the cause of action accrued more than four years before the action was brought, it is necessary for the plaintiff, in order to bring himself within the saving exception of the statute, to plead the facts which bring him within the exception, viz: that he did not discover the fraud until within a period of four years before the action was brought.

We think the case of Combs v. Watson, 32 Ohio St. 228, states the true rule, and that all that is necessary, in such case, is to state that the fraud was not discovered until within four years before the action was brought; and that it is not necessary, as against a demurrer, to state the exact date at which the fraud was discovered, nor what acts of diligence plaintiff used to discover the fraud, nor what acts of concealment the defendant practiced to prevent a discovery of the fraud. The conclusion here arrived at is sustained by the decisions of other states having codes similar to ours. Sublette v. Tinney, 9 Cal. 423; Boyd v. Blankman, 29 Cal. 20, 44; Carpentier v. City of Oakland, 30 Cal. 444; K. P. Ry. Co. v. McCormick, 20 Kans. 107; Ryan v. Railway Co., 21 Kansas, 365.

It is said by this court in Combs v. Watson, 32 Ohio St., on page 235’ that “The saving clause of the statute in question, is a substantial embodiment of the rule applied by courts of equity, in suits for relief on the ground of fraud.” And counsel for plaintiff in error contended, that having adopted substantially the rule in equity, that we have also adopted with it the rule of equity as to the pleadings in such case. The answer to this is, that the same statute which adopted this rule in equity as to the discovery of the fraud, also prescribed the rules of pleading, and expressly abolished the rule of equity pleading, and provided that the rules by which the sufficiency of a pleading should be determined, were the rules prescribed by the code.

The case of Douglas v. Corry, 46 Ohio St. 354, is cited and relied-upon by plaintiffs in error; but it is sufficient to say that the section of the statute here in question was not involved in that case, and received no construction, either in the syllabi, or in the opinion of the court.

It is urged that the four years within which the fraud was discovered, must be the four years next before filing the amended petition. An action is deemed commenced, as to each defendant, at the date of the summons which is served on him; and although a demurrer be sustained to the petition, and leave given by the court to file an amended petition, which is done, yet the action remains “ commenced" so as to stop the running of the statute of limitations; and an averment, in such amended petition, that the plaintiff, or other party in interest, did not discover the fraud until within four years prior to the filing of the original petition, has the same force and effect as if contained in such original petition.

Complaint is also made by counsel for plaintiff in error, that the averments of the petition, even if regarded as sufficient, are not sustained by any evidence. And it is said that the deeds complained of were all of record, and should have enabled plaintiff, with fair diligence, to have discovered the fraud many years before this action was begun. But an inspection of the deeds shows that each deed recites not only full and ample consideration, but also recites the fact that said consideration has been paid by the grantee, and received to the full satisfaction of grantor. There is, therefore, nothing on the face of the deeds to excite suspicion, unless it be that the second deed was to the wife of Mr. Zieverink. But even the sting of that suspicion is taken out of the case, by the further fact, that when the first action was brought against Mr. Zieverink on January 13,1880, and when the first judgment was rendered against him on October 22, 1882, the title to the lot had been conveyed away by Mr. Zieverink and his wife to Casimir Bauman, and stood in his name all that time, and until April 15, 1885, when he conveyed it to John B. Rucas.

It further appears that the deed to Mr. Bauman was, in effect, a mortgage to secure one thousand dollars, and that the deed to that extent was valid, and inquiry would not, likely,.have resulted in the discovery of any fraud.

The deeds are admitted to be without consideration, except the one thousand dollars, and that was paid back by Mr. Zieverink, and the only defense relied upon to defeat the action in the court below, was the statute of limitations.

We have examined the evidence, and while it is a little meager as to the exact time of the discovery of this fraud by the different parties in interest, there is no evidence whatever, that any of them discovered the fraud more than four years before the action was brought; and there is some evidence that, as to all of them, the fraud was discovered within four years before the action was commenced. We cannot say therefore that there is total failure of proof to sustain the judgment.

But it is further urged that the petition avers that the receiver was appointed to collect the judgment against Zieverink for the benefit of creditors, and that he duly qualified as such receiver, that this is denied by the answer, and that the only proof on this point is the admission by counsel on the trial, that Willis M. Kemper was appointed receiver in case No. 35,313, Superior Court, October 26,1882, and the further admission, by counsel, that a judgment in case No. 35,313, was rendered October 26, 1882, against J. H. Zieverink on his stock-holder’s liability for $2,000,00. From these admissions by counsel it appears that the receiver was appointed by the court the same day that the judgment of $2,000.00 was rendered against Mr. Zieverink; and in the ordinary course of proceedings the appointment of the receiver, and the rendition of the judgment, would be in the same journal, and in the same entry on the journal. Hence, admitting the judgment, and the appointment of the receiver, was admitting all that appeared in the record of that case; and was, in effect, bringing the record before the court as testimony. But still it is insisted, that as the record of the judgment is not carried into the record of this case, that this court cannot know what its contents are. The answer to this is, that the record before us shows • that the record of the judgment in case No. 35,313 was a part of the records of the court trying this case below, that said judgment was referred to by counsel for both parties; that admissions were made on the trial as to matters shown by said judgment; that witnesses testified to matters in said judgment, all without objection by either party. In such case, the trial court is authorized to regard the judgment as part of the evidence in the case, although not formally offered or read by either party. Bevington v. State, 2 Ohio St. 160.

In the case just cited the court say, on page 163: “When an instrument in writing is produced by a party on a trial as evidence, and witnesses examined in relation to it, without objection to its admissibility from the other- side, it is not error for the court to regard it as in evidence, although not formally offered and read by the party producing it.”

Again, as the judgment in case No. 35,313, was referred to, and admissions made by counsel of both sides with reference thereto, so as to authorize the court to regard it as in evidence, it ought to have been incorporated into the bill of exceptions, and as it is not found there the record is not complete, and the fourth syllabus in Armleder v. Leiberman, 33 Ohio St. 77, is applicable.

With the judgment in case No. 35,313 in, as evidence in the trial of this case in the court below, and said judgment not appearing in the bill of exceptions in this case, it will be presumed, on error, that there is sufficient evidence contained in said judgment, to warrant the finding and judgment of the court below in this case.

But it is urged finally, by attorneys for plaintiffs in error, that as this is a statutory action for the recovery of the statutory liability from a stockholder in an Ohio corporation, that there is no law in Ohio authorizing the appointment of a receiver in such case, that the appointment of the receiver was therefore void, and that the receiver could not maintain this action, even though appointed for that purpose, and ordered to do so by the court.

The appointment of the receiver, and the order to bring this action, having been made in an action in which said John H. Zieverink and Mary Zieverink were parties, they cannot now be heard to complain, as they acquiesced in the judgment, and took no steps to reverse or modify the same by proceedings in error or by appeal. High on Receivers, page 35, section 37.

We think there is abundant authority in the statutes for the appointment of a receiver in an action to collect the statutory liability of stockholders, and that such is the usual and better practice. But the judgment against the several stockholders must be rendered in the original action brought by a creditor or stockholder as provided in section 3260 Revised Statutes.

Such an action is equitable in its nature, and the statutory liability of the stockholders is a trust fund inuring to the equal benefit of all the creditors of the corporation, and this fund is made up from different amounts of money, to be collected from many different stockholders, and to be distributed among many creditors, and no one creditor is more interested in the collection than another. As no preference can be obtained by diligence, no one would be specially interested in prosecuting suits for the equal benefit of himself and others; and in such cases, it is the usages of equity to appoint a receiver to collect and distribute the fund under the order of the court, for the equal benefit of all the creditors. The fact that the right of action is given by statute, makes it none the less an equitable action, and being an equitable action, in its nature, requiring the service of a receiver, it is one of those in which receivers have heretofore been appointed by the usages of equity, as provided in section 5587 of the Revised Statutes. This case also comes within the letter, as well as spirit, of the third subdivision of said section 5587, which provides that a receiver may be appointed, “after judgment to carry the judgment into effect.”

The judgment being made a charge on the real- estate in question, the court properly ordered it sold, in case the judgment and costs should not be paid by a day named.

The judgment provides that if the costs be not paid in twenty days, that the property be sold as upon execution by the sheriff, and that he make due return of his proceedings to the court for further order in the premises. When that return shall be made, or when the case gets into the probate court under section 6844, the rights of the plaintiffs in error as to the accounting prayed for, in their answer, will doubtless be protected.

We fail to find any error in the-record, and the judgment will therefore be

Affirmed.

Minsharr, J., dissents.