author: Owen, J. McIlvaine, J., dissenting.

text:
    Martin v. Bolenbaugh.
    1. Where a sheriff has in his hands for service an order of replevin for goods which are claimed by persons other than the defendant in replevin, the taking of a bond of indemnity by such sherifE conditioned that the plaintiff in replevin shall pay any judgment which may be recovered against the sherifE by any person or persons for damages sustained by reason of the seizure and detention of such goods, is not against public policy, but creates a legal and valid obligation.
    2. The obligors in such a bond are estopped to deny the recital therein that the goods sought to be replevied are claimed by persons other than the defendant in replevin.
    3. Where the goods replevied have been, delivered to the plaintiff, and the defendant in replevin has recovered judgment against the plaintiff for the value of the goods taken and his costs, and has subsequently recovered judgment against the sherifE on his official bond, based upon his failure to take a replevin bond as required by statute, and thereafter the sherifE proceeds against the plaintiff in replevin and his sureties, upon their bond, of indemnity conditioned to pay any judgment rendered against the sheriff for the seizure and detention of the goods, the sheriff’s failure to take such replevin bond is (in the absence of bad faith or culpable neglect), no defense to such action.
    4. In'an action upon a bond of indemnity conditioned that the principal obligor shall pay any judgment which may be recovered against the obligee, the measure of recovery is the amount of the judgment, and it is not necessary either to aver orprove payment of the judgment by the obligee prior to bringing the action.
    EeROe to the District Court of Hardin county.
    On the 3d day of March 1817, L. A. Gormley, one of the plaintiffs in error, commenced an action in the court of common pleas of Hardin county, against J. H. Poore, for the recovery of the possession of certain chattels, of which he alleged he was the owner and entitled to the immediate possession, and which he alleged were wrongfully detained by the defendant, Poore. An order of replevin was duly issued and placed in the hands of Isaac Bolenbaugh, sheriff of the county, for service, by virtue of which he took the goods into his possession.
    Thereupon, Gormley as principal, and his co-obligors as sureties, executed and delivered- to Bolenbaugh their writing obligatory, of the following tenor:
    [INDEMNIFYING BOND.]
    ' “Enow all men by these presents, that we, L. A. Gormley, I. "W. Martin, J. R. Wilson, J. J. Myers and George Longa-baugh, are held and firmly bound unto I. Bolenbaugh, Sheriff of Hardin County, and State of Ohio, in the sum of twelve hundred dollars, the payment of which well and truly to be made, we do hereby jointly and severally bind ourselves. Sealed with our seals and dated the 3rd day of March, A. D. 1877.
    .“The condition of this obligation is such, that whereas the said I. Bolenbaugh, Sheriff of Hardin County, Ohio, by virtue, of a writ of replevin, issued out of the court of common pleas of said county, dated March 3,1877, at the suit of L. A. Gorm-ley against J. H. Poore, did seize and levy on, as the.property of the said J. H. Poore, certain goods and chattels, fully described in the return of said writ of replevin, to which reference is hereby made, and whereas said goods and chattels are claimed by persons other than the said J. H. Poore, now if the said L. A. Gormley .shall pay, or cause to be paid, to the said I. Bolenbaugh, sheriff, the full amount of any judgment, or judgment and costs, which may hereafter be recovered against the said I. Bolenbaugh, sheriff, by 'any person or persons, in any court having jurisdiction thereof, for damages sustained by reason of the seizure and detention of said goods and chattels, or by reason of the detention thereof, and shall pay the said I. Bolenbaugh, sheriff, all costs, charges and expenses of every description, to which he may be subject in consequence, or growing out of the seizure and detention of the goods and chattels aforesaid, and shall also pay all reasonable attorneys’ fees, or other charges and expenses which the said I. Bolen-baugh, sheriff, shall or may be compelled to pay, or become liable to pay, in order to collect the amount which may be due on this bond from the obligations thereof, to the said L. A. Gormley then the obligation to be void, otherwise to be in full force and virtue in law.
    “ L. A. Gormley, [Seal.]
    “ I. W. MaiítiN, [Seal.]
    “ J. R. WilsoN, [Seal.]

      “ J. J. Myers, [Seal.]
    “ George LoNGabaugh, [Seal.] ”
    At the time of the delivery of this writing to him, and of his delivery of the goods to Gormley, Bolenbaugh supposed it to be in effect a replevin bond.
    The obligors (so far as anything appears in the record to the contrary), supposed and intended it to be of the effect imported by its language.
    No other bond or undertaking was taken by the sheriff. Upon the delivery to him of this writing, Bolenbaugh delivered the goods to Gormley. Upon the trial of the action at the October term of 1877, Poore recovered judgment against Gormley for the sum of $279.17, damages and $74.24, costs, and that Poore had at the commencement of the action, both the right of property and of possession in the goods.
    Poore afterwards transferred this judgment to long & Rath, partners, who, in October, 1878, in an action in Hardin county court of common pleas, recovered the amount of such judgment, with interest and costs, against Bolenbaugh and his sureties upon his bond, as sheriff, amounting to $365.55, with costs taxed to $14.21. The papers in the latter case had become lost at the time of the trial of the present ease, but from the pleadings, evidence, and stipulations of the parties below, it sufficiently appears that the ground of recovery, in the case of Long & Rath against Bolenbaugh was the seizure, of the goods and their delivery to Gormley without taking an undertaking in replevin as required by law.
    Bolenbaugh paid $234 upon this judgment. He and his sureties are liable for the unpaid balance of such judgment and are solvent.
    On May 3, 1881, Bolenbaugh commenced the action below upon the writing above set forth, for the recovery of the amount of the judgment so recovered against him by Long & Rath.
    The foregoing facts are summarized from the record in the case which embraces the pleadings and bill of exceptions.
    Judgment was recovered against the defendants below for the sum of $451.50 and costs, which was affirmed by the district court. To reverse this judgment the present proceeding is prosecuted.

      James Wait and Stillings da Allen, for plaintiff in error.

      F. O. da J. W. Dougherty, for defendant in error.
   Owen, J.

1. The first alleged error relied upon as ground of reversal of the judgment below, is that the writing sued upon was unauthorized ; that it was the duty of the sheriff to require an undertaking in replevin payable .to Poore, the defendant in the replevin suit, before delivering the property to Gormley, and that public policy did not sanction his demanding or taking indemnity against the consequences of acts not authorized by law.

The ease of Purple v. Purple, 5 Pick. 226, where it was held that: “A replevin bond made to the replevying officer instead of the defendant in replevin is void,” is relied upon to support the position contended for. In that case, the replevin was of goods in the hands of an attaching officer. The decision is put upon the ground that: “ It stands as a bond given to one who has no lawful authority to take it, and the ■purpose and effect of it was to aid and abet a trespass upon the attaching officer; it is therefore illegal and void.” Without discussing the soundness of that decision, or inquiring how far it is sustained by subsequent holdings, it is sufficient for our purpose to say it is apparent that it is not decisive of the case at bar.

In the present case the writing sued upon is, neither in form nor effect, a replevin bond. It is a bond of indemnity intended by its.terms to hold the sheriff harmless from the consequences of the “seizure and detention” of the goods of Poore, the defendant in replevin.

Was such a bond authorized ?

One of the recitals of it is. that: “ said goods and chattels are claimed by persons other than the said J. H. Poore.” As against the obligors of this bond, this recital will be taken as true. Shoyer v. Richmond, 16 Ohio St. 455; Cutler v. Dickinson, 8 Pick. 386; Cox v. Thomas, 9 Grattan, 312; Bursley v. Hamilton, 15 Pick. 40; Bigelow on Estoppel, 308. ■

While the sheriff supposed this writing to be in effect a replevin bond* yet as no ground was laid in the court below for its reformation, we must regard the 'parties as standing upon its terms, and the only importance to be ascribed to,the sheriff’s supposition regarding the bond is, that he stands excused of all bad faith or culpable conduct or neglect in the discharge of his duties.

As the title to the property affected by the replevin was in question, and as the officer’s writ did not protect him from liability as a trespasser in seizing and delivering to Gormley the property of a third person not named in his writ, the taking of indemnity by him was not only in accord with public policy but was a proceeding upon which the law looked with favor. State v. Jennings, 14 Ohio St. 78; Moulton v. Jose, 25 Maine, 76-81; Colt v. Eves, 12 Conn. 261; Caldwell v. Arnold, 8 Minn. 265; Wells on Replevin, § 294. The sheriff, in taking this bond, was guilty of no act of malfeasance or misfeasance, nor was it taken to indemnify him for doing any unlawful act, but was taken under an honest mistake, supposing it was a replevin bond; therefore no principle of public policy was infringed.

The seizure of the goods by the sheriff was lawful.

Upon the faith of this bond they were delivered to Gormley, the principal obligor. It is difficult to see upon what principle of public policy or of fair dealing Gormley or his sureties may now question the integrity of the transaction or the validity of the bond.

Whatever ground of complaint Poore, the defendant in replevin, may urge against the delivery of the goods .to Gormley without a replevin bond, the latter ought not (nor ought his sureties) to be heard to say that the goods were improvidently or unlawfully delivered to him.

The court below did not err in treating this bond as a valid and legal obligation.

2. The second alleged error relied upon is, that there was no breach of the conditions of the bond. That there was no condition in the bond against turning over the property to Gormley, and that whatever the latter’s liability may be, his sureties cannot be held beyond the very terms of their bond.

It was stipulated by the parties below in the present case, that the papers in the case of Long & Rath against the sheriff and his official sureties had become lost, “ and that the sole ground upon which said action was founded was the failure of the plaintiff in this action, as sheriff, to take a replevin bond in the said case of Gormley v. Poore."

By this we are to understand that the neglect to take such replevin bond was the one breach of the sheriff’s official bond relied upon.

But we are to consider this stipulation in the light of the facts of the whole case. The rights of Poore were fixed. in the replevin suit. The property taken was adjudged to have been his. His damages were fixed and adjudged to him in the value of the property and his costs of suit.

The loss which Poore sustained resulted from the seizure of his goods, their delivery to Gormley, and the failure of the remedy he would otherwise have had by an action upon a re-plevin bond payable to himself, in lieu of which this bond of indemnity was taken.

Looking to this instrument we find it conditional that:— “ if the said L. A. Gormley shall pay, or cause to be paid, to the said I. Bolenbaugh, sheriff, the full amount of any judgment, or judgment and costs, which may hereafter be recovered against the said I. Bolenbaugh sheriff, ly any person or persons, in any court having jurisdiction thereof, for damages sustained by reason of the seizure and detention of said goods and chattels, or by reason of the detention thereof . . . then the obligation to be void, otherwise to be in full force and virtue in law.”

This condition is certainly broad enough to protect the sheriff against the loss sustained by him in the recovery of the judgment by Poore’s assignees.

Neither bad faith nor culpable neglect of duty, can be imputed to him. The bond, as we have seen, was a valid obligation. As one of the fruits of it, Gormley, by the act of the sheriff, became possessed of Poore’s property. The sheriff has been called upon to answer for the loss which Poore thereby sustained. It would be palpably inequitable to permit Gormley to enjoy the fruits of this transaction without a resulting liability upon the instrument, whereby he plainly undertook to answer for the very loss which has resulted to his obligee.

3. The third alleged error is that the court rendered judgment for the full amount of the recovery against the sheriff in the action upon his bond, whereas, ho had paid upon it but the sum of $234.

The condition of the bond is that Gormley “shall pay or cause to be paid, to the said I. Bolenbaugh, sheriff,-the full amount of any judgment or judgment and costs, which may hereafter be recovered against the said I. Bolenbaugh, sheriff,” etc.

The agreement was not simply to indemnify the sheriff against 'loss, by reason of the judgment, but to pay it. The measure of recovery is not, in such case, the amount paid upon the judgment recovered, but the amount of the judgment, and actual payment by tbe party indemnified is not necessary to a recovery by him of the amount of the judgment.

The failure to pay the judgment according to the undertaking of the indemnity bond, fixes and determines the measure of the liability of the obligor. Wilson v. Stilwell, 9 Ohio St. 467; Webb v. Pond, 19 Wend. 423; Conkey v. Hopkins, 17 Johns, 113; Kirskey v. Friend. 48 Ala. 276.

Judgment affirmed.

McIlvaine, J., dissenting.

I admit that a sheriff having in his hand a writ of replevin, and it being doubtful whether the seizure or detention of the property by him could be justified under the writ, may take from the plaintiff in the writ, a bond of indemnity, upon which a suit could be maintained, in case the seizure or detention should be adjudged a trespass. But I deny that such officer having seized the goods before the execution of a bond, can maintain an action on such bond for damages resulting to him from an omission to perform a plain and unquestionable duty imposed upon him by the statute of the state. A recovery in such ease would bo against public policy, a reward for misfeasance in office.

This case has its origin in Gormley v. Poore, an action in re-plevin pending in the common pleas of Hardin county, wherein Isaac Bolenbaugh, as sheriff, under the order of delivery, had seized the goods, and being in possession, took from the plaintiff the bond upon which this action is founded, which is as follows:

Know all men by these presents, that we, L. A. Gorm-ley, I. W. Martin, J. R. Wilson, J. J. Myers and George Longabaugh, are held and firmly bound unto I. Bolenbaugh, sheriff of Hardin county, and state Ohio, in the sum of twelve hundred dollars, the payment of which well and truly to be made, we do hereby jointly and severally bind ourselves. . Sealed with our seals and dated the 3 day of March, A. D. 1877.
The condition of this obligation is such, that whereas the said I. Bolenbaugh, sheriff of Hardin county, Ohio, by vir-ture of a writ of replevin, issued out of the court of common pleas of said county dated March 3, 1877, at the suit of L. A. Gormley against J. IT. Poore, did seize and levy on, as the property of the said J. H. Poore, certain goods and chattels, fully described in the return of said writ of replevin, to which reference is hereby made, and whereas said goods and chattels are claimed by persons other than the said J. IT. Poore, now if the said L. A. Gormley shall pay, or cause to be paid, to the said I. Bolenbaugh, sheriff, the full amount of any judgment, or judgment and costs, which may hereafter be recovered against the said I. Bolenbaugh, sheriff, by any person or persons, in any court having jurisdiction thereof, for damages sustained by reason of the seizure and detention of said goods and chattels, or by reason of the detention- thereof, and shall pay the said I. Bolenbaugh, sheriff, all costs, charges and expenses of every description to which he may be subject in consequence, or growing out of the seizure and detention of the goods and chattels aforesaid, and shall also pay all reasonable attorney’s fees or other charges and expenses which the said I. Bolenbaugh, sheriff, shall or may be compelled to pay, or become liable to pay, in order to collect the amount which may be due on this bond from the obligations thereof, to the said L. A. Gormley, then the obligation to be void, otherwise to bo in full force and virtue in law.
“L. A. Gormley, [Seal.]
I. W. MaetiN, [Seal.]
“ J. R. WilsoN, [Seal.]
“J.J. Myers, [Seal.]
“ George LoNgabaugh, [Seal.]”

It may be conceded that this bond was taken by mistake instead of an undertaking required by section 5819 of Revised Statutes, which reads as follows : “ The sheriff shall, except as provided in the next section, deliver the property so-taken to the plaintiff, his agent or attorney, when there is executed, by-sufficient surety of the plaintiff, a written undertaking to the defendant, in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him ; and the undertaking shall be returned with the order.”

The duty of the sheriff in such cases is prescribed in section 5822 which is as follows: “If the undertaking required by section fifty-eight hundred and nineteen be not given within twenty-four hours after the property is taken, or after the right first accrues to the plaintiff to receive the property from the officer on executing the proper undertaking, the officer shall return the property to the defendant; and if the officer deliver any property so taken to the plaintiff, his agent or attorney, or keep the same from the defendant, without taking such security within the time and in the manner aforesaid, or if he take insufficient security he shall be liable in damages.”

It is not claimed that the bond in suit is sufficient as a statutory undertaking. The claim is, that it is good as a common law bond, and that the delivery of the goods replevined to the plaintiff was a sufficient consideration for the bond. It is quite certain that there was no other consideration than the delivery of the goods to the plaintiff without the undertaking required by the statute.

Poore, the defendant in the replevin suit, recovered, and failing to obtain satisfaction of his judgment from the plaintiff in the action, brought his action by the assignees, against the sheriff, Bolenbaugh, on the ground that he had wrongfully delivered the goods to the plaintiff without his executing an undertaking as required by the statute, and recovered judgment therefor.

The action now under review was then brought by Bolen-baugh on the indemnity bond to recover the amount of the judgment which Poore had recovered against him for neglect of duty in delivering the goods to the plaintiff in replevin, without the undertaking required by statute. The courts below rendered and sustained a judgment against the obligors of the indemnity bond.

This judgment ought to be reversed, not because the terms of the bond do not cover the case made, but because it is against public policy in so far as the loss of the plaintiff, Bolen-baugh, resulted from his wrongful act in his office, in delivering the goods to Gormley, plaintiff in replevin, instead of returning them to Poore, defendant in replevin, as the statute Required him to do. It is agreed in this action that the sole ground upon which the action against the sheriff, Bolenbaugh, ''was based, was his failure to thke a replevin bond in the re-plevin suit of Gormley v. Poore.

It appears to me that in affirming the recovery on this bond, the court has ignored the distinction between a bond of indemnity to a sheriff against losses resulting from causes over which he has no control and to which he does not contribute ■by his own misfeasance, and a bond executed to him in con-' sideration of an unlawful act on his part, and where the only breach of the bond is the omission of the sheriff to discharge á duty which is imposed upon him by the plain terms of the statute. • In other words, the judgment of affirmance is in ‘effect a holding that the omission to discharge a plain statutory duty is excused or is equivalent to a discharge of the duty, if it be shown that the omission was not willful or corrupt.

The decision of the court appears to rest mainly on the proposition that the sheriff was not guilty of any moral turpitude in omitting to take a replevin bond. It is true, as the record shows, that the sheriff intended to exact a replevin bond, but the matter was left in the care of his deputy, for that purpose, who prepared the bond in suit, which was executed by the plaintiff in replevin and his sureties, with full knowledge of its terms, whereupon the goods were delivered 1 to the plaintiff in replevin. The only consideration of the bond was such delivery. Without a good and lawful consideration the bond was void. The only consideration relied on was a violation of the statute which required -the goods to be delivered to the defendant, Poore, unless a replevin bond was executed within twenty-four hours. It appears to me the intention or motive of the sheriff is immaterial. The fact is, the replevin bond was not executed, and for this neglect, the' sheriff was held liable to Poore, and it seems plain to me that this neglect of a plain statutory duty wras not a good or sufficient consideration for the bond, in the present action.


source: Caselaw Access Project

author: McIlvaine, J.

license: Public Domain

text:
    Insurance Company v. Wells.
    An absolute condition in a fire insurance policy, on a dwelling-house, that the policy shall he void “if the building insured be vacated or left unoccupied ” avoids the policy, although the vacation of the house results from the permanent removal of the tenant of the insured during the running of his lease, without the knowledge or consent of the landlord.
    Error to the District Court of Delaware county.
    The original action was brought by George W. Wells against the Farmers’ Insurance Company, on a policy of insurance against loss by fh’e to recover five hundred dollars, being the amount of risk taken on a certain dwelling-house of the plaintiff and, which was wholly destroyed by fire during the period for which the policy was written.
    The policy attached to the petition in the case contains a condition, therein written, that the policy shall be void “ if the building herein mentioned be vacated or left unoccupied.”
    The defendant answered that “ at the time said house was burned and for some time prior thereto, it was left, and without the knowledge or consent of the defendant, wholly vacant and unoccupied.”
    To this answer plaintiff for reply denied each and every allegation contained therein.
    It appears that at the time the policy was written the dwelling house therein described was occupied by one James Carpenter as tenant of Wells under a lease for one year, commencing on the 1st of March, 1880. During the running of the lease, to wit, on the — day of October, 1880, Carpenter, with his family., removed from the dwelling-house, taking away his household goods without any intention of returning, leaving in the house a barrel containing some bran and a coal oil can. During the night following the removal, the house was burned.
    On the trial of the case in the court of common pleas, Delaware county, the court charged the jury, “ the company had a right to stipulate that the property should be occupied. The defendant claims it made this contract, that it should not be left unoccupied, and that Carpenter and wife moved out with the intention of leaving and not returning there any more. The house is to be occupied as a residence and not as a storehouse. They claim they went out the day before the fire, and did not intend to come back to occupy it as a residence, and now if Wells consented and knew it was to be vacated, that was a violation of the contract and the plaintiff cannot recover. If Carpenter went away without any consent or notice on Wells’s part, that is not such a vacation as would avoid the policy. If the tenant leave without the knowledge of the landlord ; yet the landlord must know it, so he can make provision for a new tenant. If the tenant left the day before without the knowledge or consent of Wells, and there was not reasonable time to get some one to re-occupy the house, then it was not a vacation within the meaning of the terms of the policy. If the tenant should go away suddenly without notice to the plaintiff, that would not avoid the policy ; he should have notice that he had left.”
    To this charge the defendant duly accepted and requested the court to charge as follows : “ If the jury should find that the house and premises in question, was occupied at the date of the policy by a tenant, and the tenant had removed from the premises before the time of the fire, and the house ceased to be used by any one living therein, then the house was vacated and unoccupied within the meaning of the terms of the policy; although some of the goods or furniture remained in the house at the time of the fire, and although the time of the tenant had not expired which charge the court refused and defendant excepted.
    The verdict and judgment were rendered for the plaintiff, which judgment on petition in error, was affirmed by the district court.
    This proceeding is to reverse the judgments below.

      Curper & Van Deman and Critchfield & Graham, for plaintiff in error,
    claimed that a vacation of the premises insured, when a policy of insurance contains a clause against vacation, absolute in terms, by the tenant of the assured, without the landlord’s knowledge, avoids the policy, and cited Dennison v. Ins. Go., 52 Iowa, 457; Western v. Ins. Go., 15 Wis. 138; Gans v. Ins. Go., 43 Wis. 108 ; Sleeper v. Ins. Go., 56 N. II. 401; Ins. Go. v. Meyers, 63 Ind. 238 ; Deehl v. Ins. Go., 58 Pa. St. 443; Franldin Savings Institution v. Ins. Go., 119 Mass. 240 ; Ins. Go. v. Walsh, 54 111.164; Paine v. Ins. Go., 5 T. & C. (N. Y.) 619 ; llarrisson v. Ins. Go., 9 Allen (Mass.) 231; Ins. Go. v. Burns, 5 Ins. L. J. 69; Ashworth v. Ins. Go., 112 Mass. 422; Mead v. Ins. Go., 7 N.Y. 530 ; Ins. Go. v. Williamson, 26 Pa. St. 196 ; Ajojoleby v. Ins. Go., 45 Barb. 454.

      J. D. Gritchfield and Powell, Gill & Ilauffmann, for defendant in error,
    claimed that if the premises were vacated without the fault of the assured, and by his tenant, without his knowledge, the assured had a reasonable time within which to obtain another tenant. Wood on Ins. 184; Paine v. Ins. Go., 5 N. Y. S. C. 619 ; Ins. Go. v. Baenzer,' 63 Ill. 464; Cummins v. Ins. Co., 12 N. Y. S. C. 554 ; Ins. Go. v. Meyers, 63 Ind. 238 ; Dennison v. Ins. Co., 52 Iowa, 427; Western v. Ins. Go., 15 Wis. 138.
   McIlvaine, J.

We think the courts below erred. The condition that the policy should be void if the building therein mentioned be vacated or left unoccupied ” was absolute. The parties to the contract were competent to make such stipulation. No fraud was practiced. No qualification to the condition in avoidance of the policy is found in the contract. The only question therefore which arises in the ease is, was the building vacated or left unoccupied ? It was insured as a dwelling-house. As a dwelling-house was it vacated ? On the facts this question must be answered in the affirmative. At the time of the fire the tenant had removed therefrom, and had ceased to occupy it,as a dwelling-house. The leaving behind the barrel of bran and coal-oil can, by the departing occupant, did not prevent the avoidance of the policy. The length of time elapsing after the vacation and before the fire is wholly immaterial. The cases relied upon as authority to the contrary by the defendant in error involved the construction of contracts materially different from this one. Here no construction or interpretation is needed ; the plain and unequivocal terms of the contract must be enforced.

Judgment reversed and cause dismissed.


author: Okey, J.

text:
    Raymond v. Cleveland.
    1. Assessments for street purposes are those special and local impositions upon property in the immediate vicinity of an improved street, which are necessary for the improvement, and laid with reference to the special benefit which such property derives from the expenditure of the money ; and a re-assessment is a re-apportionment of the cost and expense of such improvement, and the imposition may be either upon the same lands, or part of the same lands, and it may include other lands.
    2. While a taxing district is essential to a valid local assessment, the statute (70 Ohio Laws, 127, § 539), which confined the assessment to “lots and lands that are contiguous and adjacent ” to and “ those that abut upon the improvement, and the provisions which defined the powers and proscribed the duties in this regard of the board of improvements, equalizing board, and council, under the municipal code' of 1869 (§§ 584, 587, 588, 089), after due notice to and opportunity to be heard by persons interested, under sections 585, 586 of the same code, and this before the special tax could be levied and assessed, provided for such taxing district; and the statutes relating to assessments for street purposes, in force in 1873, were not in conflict with the constitution, art. 13, § 6, for any defect therein in that respect.
    3. The revised municipal code, passed in 1878 (75 Ohio'Law, 161-419, Rev. Stats. §§ 1536-2729), by which the general laws then in force granting power to assess and re-assess for street improvements were repealed, contained the following saving clause : “‘No suit, prosecution or proceeding shall be in any manner affected by such change, but the same shall stand or proceed as if no such change had been made.” 75 Ohio Laws, 165, § 4 ; Rev. Stats. § 1539. At the time of the passage of the act, an assessment had been made under the acts in force in 1873, which were among those repealed, but subsequently to such repeal the assessment was enjoined, not on ground going to the power to assess, or the justice of an assessment, but for the reason that the particular assessment was, in form, illegally made : Held, that the various steps in council and before the boards, with respect to such street improvement, constituted a proceeding, within the meaning oí the above provision, and hence council was empowered to re-assess pursuant to the municipal code of 1869, §§ 551, 552.

      EkeoR to the District Court of Cuyahoga county.

      Griswold & Starr, for plaintiff in error.
    Kain, Sherwood db Bunts, for defendant in error.
   Okey, J.

On September 28, 1873, the council of the city of Cleveland adopted an ordinance for the extension of Bond street from Superior street to Euclid avenue. The cost of the land appropriated for the purpose was $118,000. The money to pay for the land was obtained by issuing the bonds of the city, in anticipation of an assessment, payable in live annual installments, with interest, and these bonds have been'renewed. The second section of the ordinance provided : that the cost and expense of opening and extending said street shall be levied and assessed upon the lots or parcels of land benefited thereby, as provided by an act of the general assembly of the state of Ohio, passed April 12, 1873 ” (70 Ohio L. 126). The municipal code, then in force, among other things provided as follows, with respect to assessments and re-assessments.

§ 539 (as amended April 12, 1873, 70 Ohio L. 126). “ Where the council of any municipal corporation shall appropriate any lots or lands for the purpose of laying off, opening, extending, straightening or widening any street, alley or ,public highway, it shall have power to assess the costs and expense of such appropriation and improvement upon the lots or lands benefited thereby, including lots and lands that are contiguous and adjacent, as well as those that abut upon said street, alley or highway, or upon the general duplicate of the real and personal property subject to taxation within the limits of the corporation, as provided in section 583.” . . .

§ 543 (as amended May 2. 1871, 68 Ohio L. 125). “ In no case shall the tax or assessment specifically levied and assessed upon any-lot or land, for any improvement, amount to more than twenty-five per centum of the value of such lot or land as assessed for taxation ; the cost exceeding the said per centum that would otherwise be chargeable on such lot or land shall be paid by the corporation out of its general revenues : provided, that in cities of the first class the tax or assessment specially levied and assessed upon any lot or land for any improvement, may amount to twenty-five per centum of the value of such lot or land after such improvement is made, the cost exceeding the said per centum that would otherwise be chargeable on such lot or land shall be paid by the corporation out of its general revenue.” [This section was repealed and reenacted in a changed form in 1874 (71 Ohio L. 45), in 1875 (72 Ohio L. 68), and in 1876 (73 Ohio L. 171), but it is not necessary to determine whether or not the section as changed in either of those years applied to this improvement, for the case before us does not necessarily involve such question.]

§ 551. “ Whenever it shall appear to the council that any special assessment is invalid by reason of informalities or irregularities in the proceedings, or when any court of competent jurisdiction shall adjudge any such assessment to be illegal, the council, whether the improvement has been made or not, shall have power to order a re-assessment.”

§ 552. All jtroceedings upon such reassessment, and for the collection thereof, shall be conducted in the same manner as is provided for the original assessment.”

§ 5S3 (as amended April 12, 1873, 70 Ohio Law, 127). “ Whenever it shall be deemed necessary by the council of any municipal corporation to open, extend, straighten or widen any street, alley or public highway, within the limits of such corporation, the council of such corporation shall provide by ordinance for the same ; and such ordinance shall briefly, and in general terms, describe the property sought to be appropriated, for the purposes aforesaid. The proceeding for such appropriation shall be as in such cases provided for, in an act entitled ‘ an act to provide for the organization and government of municipal corporations,’ passed May 7, 1S69, and as amended April S, 1S70. The assessments made for the purpose of paying the cost and expense of opening, extending, widening or straightening such street, alley or highway, shall be made and approved in accordance with sections 577, 578, 5S2, 584, 5S5, 5S6, 5S7, 5S8 and 5S9, and subject to the limitations contained in section 543 (as amended May 2, 1871).”

§ 584. “In all cases in which it is determined to assess the whole or any part of the cost of any improvement upon the lots or lands bounding or abutting upon the same, or upon other lots or lands benefited thereby, the council may require the board of improvements, or may appoint three disinterested freeholders of the corporation, or vicinity, to report to the council an estimated assessment of such cost on the lots or lands to be charged therewith, in proportion, as nearly as may be, to the benefits which may result from the improvements to the several lots or parcels of land so assessed, a copy of which assessment shall be filled in the office of the clerk of the corporation for public inspection.”

§ 585 provides for publication of notice of such filing; section 586 provides for filing objections to the assessment; section 587 provides for the equalizing board and its duties; section 588 provides for confirming the report, which by section 589 is to be by a two-thirds vote of council. Other sections referred to in section 5S3, require no special mention.

As contemplated by the ordinance, the city caused an assessment to be prepared by an assessing and án equalizing board, and having confirmed the assessment, an ordinance was passed on May 2, 1876, levying such assessment on the real estate therein designated. Rut this court, at the December term, 187S, perpetually en joined the assessment. The grounds of the decision are fully stated in Chamberlain v. Cleveland, 34 Ohio St. 551, and need not be here repeated. It is sufficient to say that the validity of the statutes upon the subject was not questioned, nor was the power to make an assessment for the improvement doubted.

On June 9,1879, council passed, in due form, the following ordinance:

An ordinance to require the board of improvements to prepare an estimated assessment for opening Bond street, from Superior street to Euclid avenue, and repeal an ordiance levying an assessment for that purpose, and rescind certain resolutions and orders pertaining thereto.
“ Section 1. Be it ordained by the city council of the city of Cleveland (two-thirds of all the members elected, concurring), that the board of improvements be required to prepare an estimated, assessment of the damages awarded, and costs and expenses incurred in opening and extending Bond street from Superior street to Euclid avenue, or so much thereof as may be lawfully assessed as herein indicated upon all the lots and lands especially benefited by said improvement, in proportion to the benefits which resulted to such lots and lands from said improvment, and limited to the special benefit conferred thereby, on each lot or parcel of land assessed, and to one-fourth the value thereof, at the time, and in view of the appropriation for said improvement and calculated on the basis of being payable in five annual installments to be prepared in the manner prescribed by law.
“ Section 2. That an ordinance entitled ‘ An ordinance to levy an assess a special tax to pay the damages awarded, and the costs and expenses incurred in opening Bond street,’ passed May 2d, 1876, be and the same is hereby repealed ; and that all resolutions and orders providing for the assessment levied by said ordinance, and the resolution adopted May 12, 1879, requiring the board of improvements to prepare an estimated assessment for said improvement, be and the same are hereby rescinded.”

On February 9,1S80, the board of improvements submitted to council an estimated assessment, notice of which was published as required by section 5S5; and objection to the assessment having been filed as provided in section 586, a board of equalization was appointed, as provided for in section 587, “ to equalize the same in such manner that the assessment upon any lot or parcel of land shall not exceed the special benefit conferred thereon by the improvement, nor one-fourth of the value thereof at the time and in view of the appropriation therefor, and distribute the assessment amongst the several lots and parcels of land, in the proportion that the special benefit to each lot or parcel of land bears to the whole special benefit conferred by the improvement, the objections- to be determined and the assessment equalized according to law.”

The board of equalization having made report, the equalized assessment was confirmed by council on April 2, 1S80. On June 14, 1880, an ordinance was passed levying and assessing a special tax, in accordance with such assessment, and that ordinance was amended June 28, 1880.

The real estate of Elizabeth A. Raymond and Emma S. Raymond being embraced in the assessment, they prosecuted an action in the court of common pleas of Cuyahoga county, against the city, to enjoin, the enforcement of the assessment. An answer and a reply were filed, and after the cause was decided in the court of common pleas, it was appealed to the district court. That court having heard the testimony, found for the city and dismissed the petition ; and the cause comes into this court by petition in error.

It will be seen that the municipal code, as amended in 1873, authorized an assessment for land taken for a street improvement, and permitted such assessment to be made “ upon the lots or lands benefited thereby, including lots and lands that are contiguous and adjacent; as well as those that abut upon the street, alley or highway.” But it is said a taxing district is essential to a valid assessment, and that no such district as the law requires was provided for by the statutes then in force, and that those provisions were in conflict with the' constitution, art. 13, § 6, which requires that the general assembly shall restrict the power of assessment by municipal corporations, so as to prevent the abuse of such power. No doubt a taxing district is essential to a valid assessment. Cooley’s Taxation, 170. But when regard is had,to the true definition of an assessment for street purposes, namely, those special and local impositions upon property in the immediate vicinity of an improved street, which were necessary to pay for the improvement, and laid with reference to the special benefit which such property derived from the expenditure of the money ” (Hill v. Higdon, 5 Ohio St. 243, 247); to the language of the statute already quoted, granting the power to assess, and confining it to “ lots and lands that are contiguous and adjacent ” and those that abut upon” the improvement; the limitations placed by section 543 on the power with respect to the amount; the powers imposed upon and exercised by the board of improvements and the equalizing board, the nature of the duties of such- boards being well stated in Hagar v. Reclamation Dist., 111 U. S. 701, 710, and cases there cited ; and in view of Meissner v. Toledo, 31 Ohio St. 387, and other cases, reported and unreported, virtually sustaining the constitutionality of the legislation in this respect, — we have no doubt that the statutory provisions quoted are in harmony with the constitution. To be sure, they are liable to great abuse, and the legislature, in view of that fact, has changed the law, so that now the specific property to be assessed must be designated before the improvement is made. Rev. St. § 2264.

The further objection is made that this was an attempt to assess and not to re-assess, and that there was no statutory provision then in force which authorized either an assessment or a re-assessment for the improvement in question. An assessment is well defined in Hill v. Higdon, ubi supra. A re-assessment is made for the purpose of remedying some error or omission in an assessment, and is a re-apportionment of the cost and expense of such improvement, and the imposition may be either upon the same lands or part of the same lands, and it may include other lands. There was no attempt by the ordinance of June 9, 1879, to institute a proceeding de novo, but it was a re-assessment,and in our opinion clearly authorized.

Furthermore, it is urged that the statutory provisions hereinbefore quoted, were repealed by the act of 1878 (75 Ohio L. 161-419), without a saving as to cases where proceedings to assess had been commenced but no valid assessment had been made; that, therefore, no re-assessment can lawfully be made under those provisions, subsequently to such repeal; and that no re-assessment can be made under the act of 1878, or the Revised Statutes, because it is a condition precedent to a lawful assessment, under those statutes, that the lots ana lands to be assessed should be designated in an ordiance before the improvement is made, and that was not done in this case.

Ve find it necessary to answer but one of these propositions, that is, whether there was an express saving to the city of the right to re-assess under the acts in force in 1873, those acts having all been repealed by the act of 1878, above mentioned. Counsel for the city rely on the following provision in the act of 1878: “ All rights and property which were vested in any municipal corporation under its former organization, shall be deemed vested in the same municipal corporation under the organization made by this title; and no rights or liabilities,either in favor of or against such corporation, existing at the time of the taking effect of this title, and no suit, prosecution or proceeding, shall be in any manner affected by such change, but the same shall stand or proceed as if no such change had been made.” 75 Ohio L. 165, § 4; Eev. Stats. § 1539. Counsel for plaintiffs in error, contend that the provision has relation to vested and property rights, pending actions, proceedings in the nature of actions, and the like, and does not extend to or embrace the right to make such an assessment or re-assessment. But we are unwilling to place any such limitation upon the provision. It is remedial, and no violence is done to the language by holding that it preserves the right to make this reassessment under the municipal code of 1869. With respect to vested rights no saving was necessary. If the wordproceed-ing, where it occurred in statutes relating to practice, has ,in one or two instances received a construction which seemed to limit it to litigation in the nature of a suit, that affords no justification for giving to the word such restricted meaning where it occurs in a provision relating to matters in fieri under a municipal code. See Lafferty v. Shinn, 38 Ohio St. 46, and cases cited. We think the saving has peculiar reference to matters like that involved here, and indeed the municipal code of 1869, to which the provision last quoted from the act of 1878 related, employs the word proceeding repeatedly in the sense of steps to make an assessment or a re-assessment. See sections 544, 549, 550, 551, 552 and 583. Where the meaning of a word or phrase in a statute is doubtful, but the meaning of the same word or phrase is clear where it is used elsewhere in the same act or an act to which the provision containing the doubtful word or phrase has reference, the word or phrase in the obscure clause will be held to mean the same thing as in' the instances where the meaning is clear. Bishop’s Written Laws, § 95a. Chamberlain v. Cleveland, supra, and other cases were pending when the act of 1878 was passed. They did not involve the power to assess or the justice of assessment, but the power to make, or the justice of the particular assessment, in the form that it was made, and it would be surprising if the legislature intended to take away the power to reassess during the pending of those cases, so that it might not be exercised even where an assessment was enjoined for mere informality. We could only so hold by giving to the provisions a narrow and as we think unreasonable construction. Whether an express saving was necessary we do not decide.

Other questions are made, but they require no remark.

Judgment affirmed.


author: JOHNSON, C. J.

text:
    McGuire v. The State.
    That clause of section 6942 of the Revised Statutes, which provides that “the provisions of the last section, concerning the sale of intoxicating liquors to be drank where sold, and this section, do not extend to the sale of wine manufactured from the pure juice of the grape cultivated within this state,” is not in conflict with section 8, art. 1, of the constitution of the United States, which gives to congress the exclusive power “ to regulate commerce with foreign nations and among the several states, and with the Indian tribes.”
    ERROR to District Court of Paulding county.
    The facts are stated in the opinion.

      W. J. Beers, for plaintiff in error,
    claimed that section 6942, Revised Statutes, was in conflict with section 8, art. 1 of the constitution of the United States, for that it is a regulation of commerce, among the several states, discriminating against the products of other states and in favor of the products of Ohio, and cited: 2 Story on Constitution, §§ 1067 to 1073; .Cooley on Const. Lim. 581, 582; 28 Ohio St. 528, 532; 4 Ohio, 523 ; Gibbons v. Ogden, 9 Wheaton, 1; Brown v. Maryland, 12 Wheat. 419 ; 5 Howard U. S. 504; 91 U. S. 275 ; County of Mobile v. Kimball, 102 U. S. 691, 696, 702; Guy v.
      Mayor, 100 U. S. 434; Packet Go. v. St. Louis, 100 U. S. 423; VicJesburg v. Tobin, 100 U. S. 430; Machine Go. v. Gage, 100 U. S. 676; Weber v. Virginia, 103 U. S. 344.
    All sales of wine manufactured of thé pure juice of the grape cultivated in this state, beer, ale and cider, whether lawful or unlawful are exempt from the operation of this section. Johnson v. State, 23 Ohio St. 556. This construction put upon this section by this court makes it clear that it does discriminate against the grape products of the soil of all the other states and in favor of the products of the soil of Ohio.
    Any attempt of the defendant below to prove that the sales for which he was indicted, and convicted, were of wines manufactured of the pure juice of the grape cultivated in any state or states than Ohio would have been unavailing, if this section 6942 is valid. West v. Camion, 9 Ohio St. 439.

      James Lawrence, Attorney General, for the defendant in error:
    In view of the decisions of ,the supreme court of the United States in Welton v. Missouri, 91 U. S. 275; Guy v. Baltimore, 100 ü. S. 434, and Webber v. Virginia, 103 U. S. 344, the question here is reduced mainly to a consideration of the scope and effect of our statute^ But what is there said in regard to police power must not be understood as defining the full extent of the police power of the states, for what is said on that subject is incidental to what follows.
    The police power of the state includes the power to make regulations in respect to all classes of trade, especially of articles dangerous or hurtful to the people, to provide against the evils resulting from the traffic in intoxicating liquors, to prevent tippling and intemperance and to cause the abatement of nuisances. This section 6942 is valid as a police regulation.
    To render a statute invalid by reason of its discrimination against the products of other states, such discrimination mnst appear to be the sole ground on which the distinction between the products of this and the other states would have been made. If there be any other reason or purpose for such distinction, it ought to be presumed in favor of the constitutionality of the law, that the legislature enacted it with that purpose and for that reason. The provision of the statute under consideration was directed against the evils of tippling houses.
    In addition to the authorities cited by counsel for plaintiff in error I refer the court to 9 Baxter (Tenn.) 518 ; 129 Mass. 580 ; 23 Hun (N. Y.) 591; 12 Nevada, 263 ; 49 Texas, 279.
   JOHNSON, C. J.

The plaintiff in error was convicted under an indictment .founded on the provisions of section 6942 Revised Statutes.

It charged that he was the keeper of a place of public resort, where intoxicating liquors, other than “ wine manufactured from the pure juice of the grape cultivated in this state, or beer, ale or cider,” were sold in violation of law."

It is claimed, that the foregoing exception in favor of such wine is in violation of art. 1, § 8, of the constitution of the United States, which gives to congress the exclusive power: “ To regulate commerce with foreign nations and among the several states,” &c.

In the view we take of this statute, its object is to provide against the evils resulting from the traffic in intoxicating liquors as a beverage, and is an appropriate exercise of the police power of the state against the retail traffic. It does not seek to regulate or restrain the traffic in wine or any other specific property, as an article of import or export. It simply deals with the infernal traffic, the retail traffic in intoxicating liquors.

The police power of the state to pass inspection laws, quarantine laws and health laws, as well as laws regulating or restraining internal traffic, belongs to that great mass of powers, not delegated to the federal government.

In Brown v. Maryland, 12 Wheat. 419, Marshall, C. J., speaking of the taxing power of the state, said : “ It cannot interfere with any regulation of commerce,” and he adds, “ That when the importer has acted upon the thing imported, and it has become incorporated and mixed with the mass of property in the country, it has, perhaps, lost its distinctive character, and has become subject to the taxing power of the state.”

In the License Cases, 5 Howard, 574, this principle was applied to intoxicating liquors as an article of commerce.

' There the state in the exercise of the police power, sought to regulate and restrain the retail traffic therein.

Chief Justice Taney in a very lucid and able opinion, said : Every state may regulate its own internal traffic according to its own judgment and upon its own views of the interest and well-being of its citizens, and while articles imported, while in the hands of the importer for sale, in the original bale, package, or vessel, are not subject to the power of the state, yet when the original package is broken for use, or for retail, or has passed into the hands of a purchaser, it ceases to Toe an import, and becomes subject to the laws of the state.

Applying these principles to the state laws regulating the retail traffic in intoxicating liquors he said : “ These state laws act altogether upon the retail traffic within their respective borders. “ They act upon the article, after it has passed the line of foreign commerce, and becomes a part of the general mass of property in the state. These laws may indeed discourage imports and diminish the price which ardent spirits would otherwise bring.” He adds, that although the state is bound to receive and permit the sale by the importer of any article imported, “ it is not bound to furnish a market for such article, nor abstain from the passage of any law which it may deem necessary or advisable to guard the health or morals of its citizens, although such laws may discourage importations, or diminish the profits of the importer, or lessen the revenue of the general government. And if any state deems the retail traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice or debauchery, I see nothing in the constitution of the United States to prevent it from regulating and restraining the traffic or from prohibiting it altogether.”

Thus the internal retail traffic in intoxicating liquors, under the police power of the state, may be restrained, regulated or prohibited, without any infringement of the power of congress to regulate commerce. This doctrine has very recently been re-affirmed in Foster v. Kansas, decided by the supreme court of the United States and found in Supreme Court Reporter, vol. 5, p. 97.

Commerce is, “ The exchange of merchandize on a large scale between different places or communities; extended trade or traffic.” Webster’s Dictionary.

In the sense used in the constitution, it is the transportation and exchange or traffic in articles or commodities between different states, or between the United States and foreign countries or with the Indian tribes.

Any state law interfering with the export or import articles of legitimate commerce or traffic between different states, or with foreign nations, is unauthorized, though a state may, by inspection, health and quarantine laws, prevent the transportation into or through jit, of articles calculated to bring into the state dangerous, infectious or contagious diseases, or articles obviously injurious to public health or welfare. Such articles are not the legitimate subjects of commerce, and no act of congress can make them so.

This exclusive power to regulate commerce, has reference to burdens or restraints imposed directly on the articles themselves, and not upon the materials of which they may be composed nor upon instruments or vehicles of commerce.

Hence, a tax upon freights, at so much per ton, imposed by a state, was a direct tax on articles of commerce (Reading R. R. Co. v. Penn., 15 Wall. 232), but a tax on the gross receipts arising from carriage of such articles was not. R. R. v. Penn., 15 Wallace, 284. Here the distinction is clearly recognized between a law taxing the specific articles of commerce, and the money earned by transporting such articles. So a tax on the gross receipts of a telegraph company, received on telegrams relating to commerce among the states, is only a tax upon an instrument of commerce, and not upon the commodities themselves. Western Union Tel. Co. v. Mayer, 28 Ohio St. 531. So a tax upon the 'capital of a merchant engaged in importing into this state merchandize from other states and from foreign countries, and selling the same by wholesale, and retail is not a regulation of commerce. Ragnet v. Wade, 4 Ohio, 107. And the exclusive right granted to a patentee of a medicine to manufacture and use the same, is not infringed bj a state law prescribing certain qualifications for a practicing physician, which prevents the patentee from using the same in his practice as a physician. Jordan v. Overseers of the Poor, 4 Ohio, 294. And a tax on steamboats engaged in interstate commerce is valid. Perry v. Torrence, 8 Ohio, 521.

It is settled, that a state in the exercise of its power of taxation cannot impose burdens upon the products of other states imported into the state for sale more onerous than is imposed upon the same kind of articles produced within the state, nor discriminate against citizens engaged in selling them. Wilten v. Missouri, 91 U. S. 275; Guy v. Baltimore, 100 U. S. 434; Tiernan v. Rinker, 102 U. S. 123. These cases relate to the taxing power of the state, and not to its police power.

Tiernan v. Rinker is much .relied on in the case at bar. It related to the validity of an act by the state of Texas, regulating taxation, which provided for the levy and collection of a tax upon the occupation of selling intoxicating liquors, but excepted from such tax, “any wine or beer manufactured within this state.” Following Wilten v. Missouri, it was held that this was a discrimination in favor of domestic aud against foreign made wines, and therefore this proviso or exception was void. Here was a direct discrimination against a specific article of legitimate commerce.

The statute under consideration makes no such discrimination. Wines imported into this state are on an equality with wines made in Ohio. Wherever the article is manufactured, whether within or without the state, it is equally unlawful to sell it, contrary to the act. Wine, wherever manufactured, whether within or without the state and imported, if made of the pure juice of the grape, cultivated within this state, is excepted from the operation of the law. There is no restraint or burden placed upon the importation or sale of wines, as an article of traffic. This statute, after the wine has become a part of the general property of the state, undertakes to restrain the retail traffic therein as a beverage. This we think may bo done under tbe authority conferred by the police power, without at all interfering with the freedom of transportation into the state, or a sale thereof by the importers. It is merely a regulation of the internal retail traffic in an article, which the law-making power regards as injurious, after it has become part of the mass of property in the state'.

That this law discriminates in favor of pure wine, made from the juice of grapes cultivated in this state, is clear, but it is not an interference with, or burden on commerce. In other words, it is a discrimination against adulterated wine, without regard to where it is manufactured.

In coming to this conclusion we are not unmindful of the importance and difficulty of the question, but since this act has been enforced, and has stood unchallenged, on this-ground, for near thirty years, it would require a case clear beyond controversy to authorize us now to declare it unconstitutional. If, however, we are in error in this, and .the case of Tiernan v. Rinker is sound, then the result is, that the proviso only is void, and a sale of the excepted liquors does not relieve the plaintiff in error. Had he proved on the trial that lie sold wine manufactured from the pure juice of native grapes, it would have been in violation of the valid clause of the statute.

The proviso being void and the other provisions being valid, he would have been found guilty, though he dealt only in the excepted liquors.

Judgment affirmed.


author: By the Court.

text:
    Wagner v. The State.
    1. While “ a speedy.public trial by an impartial jury” is guaranteed to every person accused of crime, the right to review a conviction, on error or otherwise, is not guaranteed, but depends solely on statutory provision. '
    S. At the time the Revised Statutes were adopted, the jurisdiction of the supreme court and district court to review, on error, the judgments of the court of common pleas, in criminal cases, was in all respects concurrent, and extended to every prejudicial error properly appearing in the record, including the power to determine whether the verdict was against the weight of the evidence ; but while the jurisdiction of the district court and its successor, the circuit court, remains the same, the jurisdiction of the supreme court has, by the amendment to the Revised Statutes, § 7856, passed in 1883 (80 Ohio Laws, 170), been so limited that “in the supreme court only errors of law occurring on the trial, or appearing in the pleadings or judgment, can be reviewed.”
    3. “ Trial,” in the sense of this limitation, has reference to a trial. upon a plea in bar, and does not extend to a hearing on a motion to quash, or trial upon a plea in abatement; it commences, at least, when the jury is sworn, and embraces questions as to the admissibility of evidence, refusals to charge and the charge given, and the like; and it ends with the rendition of the verdict. Qucere, whether “trial ” extends to matters occurring during the impaneling of the jury ?
    4. “Pleadings,” in the sense of that provision, do not embrace motions to quash, but include the indictment and pleas in abatement as well as in bar ; but where matter, not the proper subject of a plea, is incorporated ■ in a paper denominated a plea, a decision with respect to it will not, ordinarily, be reviewed in the supreme court upon the ground that it is an error in the “pleading.”
    5. “Judgment,” in the sense of the provision, has relation to the final judgment and the orders with respect to the “ pleadings.”
    Error to tbe Court of Common Pleas of Morrow county.

      G. JEL. Blackburn, Andrews & Allison, and Olds & Flue-key, for plain tiff in error.

      James Lawrence, attorney general; Thomas S. White, prosecuting attorney; and Thomas F. Powell, for the state.
   By the Court.

At January term, 1883, an indictment was found in the court of common pleas of Morrow county, against Yalentine Wagper, for shooting with a pistol, on December 18,1882, one Dauiel Shehan, causing his death, the indictment containing allegations sufficient to constitute a charge of murder in the first degree.

On January 29,1883, the prisoner moved to quash the indictment for divers alleged errors. The motion was overruled and exception taken. And afterward, on January 31, 1883, a plea in abatement was interposed, paragraphs 6 to 13 inclusive, of such plea being as follows: 6. “ The grand jury that found and presented the indictment in the above entitled cause, was not drawn, summoned, impaneled and sworn according to the statutes of the state of Ohio in such case made and provided.

I. “ In impaneling the grand jury aforesaid, the number thereof was made up by special venire, and such special venire was not signed by the clerk of said court; nor authenticated by the seal thereof ; nor was the same in the name of the state of Ohio, Morrow county.

8. “ John Markley, Sr., was drawn as one of the grand jurors of said court, for the January term, 1883, to wit, the term at which the indictment was found, and said Markley was not summoned, sworn or impaneled as such grand juror or excused by the court.

9. “ A. S. Gardner was drawn as one of the grand jurors and was not summoned as such.

10. “ A. G-. Gardner was summoned as one of the grand jurors, and was not sworn or impaneled as such grand jury, or excused by the court.

II. The foreman of the grand jury aforesaid, did not indorse upon the indictment, in the above entitled cause, the words ‘ a true bill ’ and subscribe his name thereon as foreman.

12. “Because the venire for. the grand jury aforesaid was not served in the manner provided by law.

13. The venire for the grand jury aforesaid was issued in vacation and was not returned on the first day of the term, to wit, January 22, 1883.”

After a mistake in the name of the juror Gardner, mentioned in paragraphs 9 and 10 of the plea, had been corrected, the court sustained a demurrer to that part of the plea (paragraphs 6 to 13 inclusive); and the state, by reply, took issue of fact as to the other matters set -forth in the plea, and upon the trial of such issuses the verdict was in favor of the state. A motion for a new trial of such issues was overruled, and exception was taken not only to the action of the court in that regard, but upon the further alleged ground that the prisoner had not been present at such trial and had been prevented from being present by imprisonment.

A demurrer to the indictment was overruled, and a plea of not guilty having been interposed, the cause was tried at the January term, 1884 (February, 1884), aud the verdict was, guilty of murder in the first degree. Motion for a new trial overruled and sentence of death pronounced, to be carried into effect July 11, 1884. A bill of exceptions was taken, contain-, ing the evidence, exceptions with respect to the jury and the competency of jurors, exceptions with respect to the admission and exclusion of testimony, requests to charge and exceptions for refusing the same, and the charge of the court, with exceptions to portions thereof; also exceptions with respect to the judgments on the pleadings and the judgment in the cause.

By the constitution of the state, there is guaranteed, among other things, to every person accused of crime, “ a speedy public trial by an impartial jury.” The right to another trial, on appeal, error or otherwise, is not guaranteed, and whether a conviction for crime, whatever the grade of the offense, shall or shall not be the subject of review, on error, in the supreme court, or any other appellate court, and if so the extent to which such review will be allowed, are matters to be determined by the legislature by statutes regulating the jurisdiction and powers of the appellate courts. Lafferty v. Shinn, 38 Ohio St. 46.

Rev. Stats. § 7356, as amended in 1883 (80 Ohio Laws, 170), provides as follows : “ In any criminal case, including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer, inferior to the court of common pleas, may be reversed in the court of common pleas; a judgment or final order of any court or officer inferior to the district court, may be reviewed in the district court; and a judgment or final order of the district court or court of common pleas in cases of conviction of a felony or misdemeanor, and the judgment of the district court in any other case involving the constitutionality or construction of a statute, may be reviewed in the supreme court; but in the supreme court only errors of law occurring on the trial or appearing in the pleadings or judgment, can be reviewed.”

It will be seen that while the district court has the power to reverse for any causo-that affords ground of reversal by the supreme court, yet, that the powers of the district court to reverse for error in such cases is broader than the power conferred on the supreme court.

While doubtless the supreme court can determine from the record, as a question of law, whether the admitted facts, in any case, constitute a crime, that court cannot, in view of the above amendment, look into the evidence, where it is in conflict, for the purpose of weighing it and determining whether the verdict is or is not in opposition to its weight. Rut the district court may reverse where the verdict is clearly against the weight of evidence. Rev. Stats. §§ 7304, 7350.

Por certain errors in the proceedings preliminary to the trial, the district court may reverse; but the supreme court has no such power ; nor has that court power, like the district court, to reverse for errors committed subsequent to the rendition of the judgment, unless such errors appear in the pleadings or orders with respect thereto, or in the final judgment.

“Trial,” in the clause limiting the jurisdiction of the supreme court, relates to the trial on the merits, upon a plea in bar, and does not extend to a trial on a plea in abatement, and errors, if any, occurring on the trial of a plea in abatement, or hearing on motion to quash, are not reviewable in the supreme court. “ Trial,” in the sense of that provision, commences, at least, immediately after the jury is sworn, and embraces questions as to the admissibility- of evidence, questions as to refusal to charge and the charge given, and the like; and “ trial,” in this sense, ends with the rendition of the verdict. N o error occurred in this case during the impaneling of the jury, and hence we find it unnnecessary to determine whether “trial,” in this sense, extends to errors committed during the impaneling of the jury. No error occurred during the trial.”

“ Pleadings,” in the sense of the provision, includes the indictment and as well pleas in abatement as those in bar, and extends to the orders or judgments with respect to the pleadings ; but where matter, not the proper, subject of a plea, is incorporated in a paper denominated a plea, a decision with respect to it will not ordinarily be reviewed in the supreme court, upon the ground that it is part of the “ pleadings.” The plea in abatement in this ease contains such irrelevant matter. Thus, paragraphs 6, 7, 8, 12 and 13 do not, nor does either of them, contain the substance of such a valid plea, but if any error was committed with respect to the matters there stated, advantage should have been taken of it in another way, at an earlier stage of the case. Forsythe v. State, 6 Ohio, 8; Huling v. State, 17 Ohio St. 583. Paragraph 11 is evasive and wholly insufficient. Consistently with the plea, the foreman may have subscribed his name upon the indictment, adopting as his own the words then thereon : “A true bill.” Such a plea must be pleaded with exactness. Whart. Cr. Pl. & Pr. § 427. The same objection also applies to the other paragraphs above mentioned. No error was committed with respect to the pleadings.”

“ Judgment,” in the sense of the above provision, has relation to the final judgment ahd the orders with respect to the pleadings. There was no error in that matter.

We repeat, there was no error in this case with respect to-the pleadings, — none in admitting or rejecting evidence on the trial on plea of not guilty, — none in the refusals to charge or the charge given, — none in the judgment, — none, in short, for which the supreme court should reverse the judgment, and hence the judgment and sentence are on this 19th of June, 1884, affirmed.

The prisoner, by bis counsel, having subsequently to such affirmance, applied to this court for leave to withdraw the papers in the cause, with a view to an application to the district court for leave to file therein a petition in error, such request was granted, and the district court granted leave to file such petition and the same is pending in that court. Practice of this sort is not to be commended. If application is to be made to the district court or its successor, such application should precede the application to this court; but the fact that the statute is new and the practice under it not settled, affords sufficient excuse for a different course in this instance.

So far as the views of this court are expressed in this opinion, they are, of course, binding upon the district court and circuit court. As to other matters in the record within the jurisdiction of the district court and circuit court, but not within the jurisdiction of the supreme court, namely, — matters preliminary to and preceding the actual trial of the case, and matters arising on overruling the motion for a new trial with respect to the weight of evidence, — it will be the duty of the circuit court, which is the successor of and clothed for this purpose with all the powers of the district court (81 Ohio Laws, 369, § 448a; 171 § 454e), to consider the cause in those respects, and if there is error in the record as to those matters, prejudicial to the prisoner, it will be the duty of the circuit court to reverse the judgment and remand the cause to the court of common pleas for a new trial; but if the circuit court finds no prejudicial error, then it will be the duty of that court to affirm the judgment, and, pursuant to Rev. Stats. § 7360, fix a day for the execution of the prisoner. Of course we express no opinion whether there is or is not such error.

As the jurisdiction of the supreme corrrt to reverse in such cases is precisely the same whether the application is made here originally or after the cause passes through the district court or circuit court, this court has already given to the questions presented in the record all the examination it can with propriety give them, and expressed an opinion thereon; and rehearings are not allowed in this court. Longworth v. Sturges, 2 Ohio St. 104; Zink v. Grant, 26 Ohio St. 378. The case is reported to afford information as to the jurisdiction of the supreme court, district court and circuit court in cases like this. The matters occurring on the trial and with respect to the refusals to charge and the charge given, we do not deem of sufficient general importance to call for a report.

The motion in McHugh v. State, ante, 154, was overruled before this case was decided.

JohNSON, C. J., did not sit in this case.


author: Follett, J.

text:
    Springfield v. Walker.
    1. Municipal corporations, that have any controversy as to disputed claims, the same as individuals with whom such controversy exists, are included in the word “persons” as used in Revised Statutes, §5601; and as to such controversy, such a corporation may be a party to the arbitration therein provided for.
    2. The Revised Statutes, § 5601 to § 5613, providing for statutory arbitration, do not provide for taking exceptions before the board of arbitration ; and if such exceptions be taken, the case is not reviewable thereon.
    3. The award may be set aside only as provided in Revised Statutes, § 5611: FirsWlf legal defects appear in the award or other proceedings. Second — If it be made to appear, on oath, at the term of the court at which the award and arbitration bond are filed, that the award was obtained by fraud, corruption, or other undue means, or that the arbitrators or umpire misbehaved
    MotioN for leave fco file a petition íd error to the District Court of Clarke county.
    Moses R. Walker commenced an action in the court of common pleas of Clark county, against the city of Springfield, for damages for personal injuries received in one of its streets, and alleged to be caused by the negligence of the city.' Before trial, Walker and the city of Springfield entered into a, bond as follows:
    “ Whereas, a certain suit is pending in the court of common pleas of Clark county, wherein Moses E. Walker is plaintiff, and the city of Springfield is defendant, and whereas said parties desire to have the suit and all matters in controversy therein submitted to arbitration according to the provisions of the statutes of Ohio governing arbitrations ; now, therefore, the said Moses. B. Walker, and the'city of Springfield hereby agree to make such submission to arbitration of the matters and things in controversy and upon the pleadings now or which may be hereafter filed in the action, and upon such competent testimony as the parties to such suit may produce before the arbitrators herein provided for. The arbitrators to be R. A. Harrison, Esq., of Columbus, Ohio, Oscar T. Martin, Esq., and A. P. H. Cochran, Esq., both of Springfield, Oh-io, and in case said R. A. Harrison does not' consent to become one of said arbitrators, his place shall be filled by some disinterested attorney not a resident of Springfield, Ohio, to be agreed upon by the parties to said action, but in case the said parties shall be unable to agree upon such party to fill the place of said Harrison, then said Cochran and said Martin shall select such third arbitrator.
    “ Said arbitration shall be commenced in 40 days, and may be adjourned from time to time, until a conclusion is reached, but an award shall be made within "0 days, and shall be in-writing signed by the arbitrators, or»a majority of them, and a true copy thereof be given to each of the parties in interest, and a copy thereof shall be filed in the office of the clerk of the court of common pleas without unnecessary delay ; and if either of the parties neglect or refuse to comply with the award, the other party may have' judgment of the court thereon, and execution as in other cases; and each of the parties herein shall be entitled to all the rights, and privileges guaranteed by the statutes of Ohio governing arbitrations touching exceptions to such award or proceedings, and the same shall be conducted in all respects in accordance with the provisions of such statutes, except as otherwise herein provided. Said arbitrators shall tax the costs of arbitration together with already accrued costs in said suit, and including a fair and reasonable compensation for their services as they may deem ■just and equitable, and shall specify in their award the time within which the award shall be complied with.
    March 20, 1883. The City of SpuiNgfield, Ohio,
    by A. S. BushNell,
    President City Council.
    J. S. Shewaltek,
    City Clerk.
    March 24, 1883. M. B. Walxeb.”
    The agreement to arbitrate, and the arbitration bond were duly authorized, and were executed in accordance with a resolution of the city council as follows :
    “Resolved, that council hereby consents to and authorizes the arbitration of the suit of M. B. Walker against the city of Springfield in accordance with the agreement therefor this day submitted to council by the committee on finance, and the president of council and the city clerk are hereby directed to sign said agreement on behalf of the city in the form named.”
    The arbitrators named by the parties met and heard the evidence, and made an award in favor of 'Walker and against the city, awarding damages in*the sum of $8,000, and costs. The award was filed and copies given, and exceptions to the award were filed in the court of common pleas by the city of Springfield, but the exceptions were not on the ground “that the award was obtained by fraud, corruption, or other undue means, or that the arbitrators misbehaved,” as provided in Revised Statutes, § 5611.
    The court overruled the exceptions and entered judgment in favor of Walker and against the City of Springfield for the amount of the award. The city filed a motion for a rehearing and a new trial, claiming that the decision of the court is not sustained by sufficient evidence, and is contrary to law. The court overruled the motion, and allowed the city to prepare and file a paper, called a “ bill of exceptions,” containing all the evidence and proceedings before the court. Error was prosecuted in the district court where the judgment of the common pleas was affirmed; and the plaintiff now seeks to file a petition in error to the district court.

      F. M. llagan, for plaintiff in error.

      Wm. H. West and George Sjpenoe, for defendant in error.
   Follett, J.

An action was pending in the court of common pleas, and the parties sought to submit the matters in dispute to arbitration under the statute. The parties appeared before the arbitrators and presented their respective claims. The arbitrators, chosen by the parties, met and heard the evidence, and, after deliberation, they made their award, which was given to the parties, and filed in the office of the clerk of the court. The court, having heard the parties and having overruled the city’s exceptions to the award, entered judgment on the award.

The city of Springfield, plaintiff in error, has had her choice in having a trial by arbitrators rather than by a jury or by the court; and now she seeks to avoid the award and judgment thereon, and claims, that a municipal corporation in Ohio has no legal right to enter into or participate in an arbitration.” Arbitration is favored; and the purpose of an arbitration is, to avoid needless and expensive litigation. By the 9 and 10 Will. III. c. 15, powers are given enabling per-, sons to agree that their submissions to arbitration and the award should be made a rule of any court of record; and the Common Law Procedure Act, 1854,” provides what may be done in case of arbitration. Statutes have been enacted providing that the award of the arbitrators may be accepted as the judgment of the court. This case is one of submission to arbitration under Eevised Statutes, § 5601 to § 5613; and this case must be governed by the statute.

A corporation maybe a party to a submission to abitration. Morse Arb. 5; Russ. Arb. 21; 6 Wait Act. and Def. 511; Brady v. Mayor of Brooklyn, 1 Barb. 584. Tuskaloosa Bridge Co. v. Jenison, 33 Ala. 476; Alex. Canal Co. v. Swann, 5 How. (U. S.) 83.

“ As a general proposition, municipal corporations have the same powers to liquidate claims and indebtedness that natural persons have, and from that source proceeds power to adjust all disputed claims, and when the amount is ascertained, to pay the same as other indebtedness. It would seem to follow, therefore, that municipal corporations, unless disabled hy positive law, could submit to arbitration all unsettled claims with the same liability to perform the award as would rest upon a natural person, provided, of course, such power be exercised by ordinance or resolution of the corporate authorities.” Dill. Mun. Cor. § 478; City of Shawneetown v. Baker, 85 Ill. 563; Kane v. City of Fond du Lac, 40 Wis. 495; Remington v. Harrison County Court, 12 Bush (Ky.) 148. In this case the power was exercised by a resolution of the city council.

Revised Statutes, § 5601, provides: “ All persons who have any controversy, except when the possession or title of real estate may come in question, may submit such controversy to the arbitrament or unpirage of any person or persons, to be mutually agreed upon by the parties, and they may make such submission a rule of any court of record in the state.”

It. is claimed that while the word “ person ” may include public corporations, yet the “persons ” who may have the benefits of an arbitration, are limited by section 4947 to private corporation, and that a municipal corporation is excluded by the use of the word “ persons” and the interpretation given to that word by section 4947, which provides, “ In the interpretation of part three of this revision, unless the context shows that another sense was intended, the word ‘ person ’ includes a private corporation ;” etc: and thus by implication the word “ person ” excludes all public corporations. But see § 4948 : “ The provisions of this part, and all proceedings under it, shall be liberally construed, in order to promote its object, and assist thqparties in obtaining justice; and the rule of the common ■ law, that statutes in derogation thereof must be strictly construed, has no application to this part,” etc.

The arbitration statutes, are enabling statutes, and were made to “ assist the parties in obtaining justice,” and should “ be liberally construed.” And the words, “all persons,” used in section 5601, must include the individual persons who have a controversy with the municipal corporation; and such individual persons are given the benefits of an arbitration, in such controversies. Thus as each party has the same rights, the ‘‘ context shows ” that in section 5601, the word “ persons ” includes not only private corporations bat also municipal corporations, as well as the persons with whom they have controversies.

' There is no claim that there is any positive law that disables a municipal corporation from submitting to arbitration an unsettled cause of action, or that provides “ that a municipal corporation in Ohio has no legal right to enter into or participate in an arbitration.”

In this regard there was no error in the court below.

There is no provision made for excepting, before the board of arbitration.

“ Arbitrators are constituted, by the parties, chancellors, judges and'jurors, and have jurisdiction of the law and the facts.” Ormsley v. Bakewell, 7 Ohio, 99.

But the award may be attacked,

1. When it appears on its face to be erroneous: and

2. When it was obtained by fraud.

Section 5611 provides, “ If legal defects appear in the award or other proceedings, or if it be made to appear, on oath, at the term of the court at which the award and arbitration bond are filed, that the award was obtained by fraud, corruption, or other undue means, or that the arbitrators or umpire misbehaved, the court may set aside the award, and the matter submitted shall be retained by the court for trial as upon appealetc.

The award is not objected to on either of such grounds.

And when the award is not thus attacked judgment should be entered on the award.

Moüon overruled.


text:
    Eichelberger v. Gross.
    1. A guardian of the person and property of a minor, having received, after giving bond, money belonging to his ward, and embezzled the same, the subsequent discharge of the surety in such bond, and the acceptance, by the probate court, of a bond with other surety, in lieu of the first bond, will not exonerate such surety in the first bond with respect to the money so embezzled, but lie will be liable upon the ground that the guardian failed to faithfully perform his duties.
    2. The judgments and orders of the probate court, including the approval of partial and final accounts of guardians, import absolute verity, as between the parties thereto, and they cannot be contradicted or questioned collaterally ; but where a surety in the bond of a guardian is discharged before any account is filed, and a new bond, with other surety, is accepted in lieu of the first bond, and, before such substitution, the guardian of the ward embezzled, money of the ward received after the first bond was given, the fact that, subsequently to such substitution, the guardian files his first account, which is approved by the probate court, failing to show the receipt of the money so embezzled, will not bar an action by the person who was ward, on arriving at full age, against the surety in the first bond, if the guardian, in a subsequent account, charges himself with the money so embezzled; and parol evidence is admissible to show when it was received, and also when it was embezzled.
    MotioN for leave to file a petition in error to reverse tbe judgment of the District Court of Crawford county.
    July 26, 1872, John Gross was, by the probate court of Crawford county, appointed guardian of the persons and estate of William A., Martha, Thomas and Mary Gross, children and heirs of Frederick Gross, deceased, and on the same day the guardian gave bond in the penal sum of $10,000, with Jacob Gross and Isaac Eichelberger as sureties, conditioned to be void “ if the said guardian shall discharge with fidelity the trust aforesaid in him aforesaid, shall render an accurate settlement of his transactions, with a just account of the profits arising and accruing from the real and personal estate of his said wards? and shall deliver up the same to the court when thereunto required.”

      The statute then in force (1 S. & C. '672), provided that the bond should “ be conditioned for the faithful discharge of the duties of said person as such guardian,” but further provided on the same page (§ 9) that no such bond should u be void or held invalid on account of any informality in the same.”
    The duties of a guardian of the estate of a minor, as then prescribed by statute (69 Ohio L. 55), were, among other things, as follows :

      “ First. To make out and file, within three months after his appointment, a full inventory, verified by oath, of the real and personal estate of his ward, with the value of the same, and the value of the yearly rent of the real estate; and failing so to do for thirty days after he shall have been notified of the expiration of the time by the probate judge, said probate judge shall remove him and appoint a successor.
    “ Second. To manage the estate for the best interests of his ward.

      “ Third. To render, on oath, to the proper court, an account of the receipts and expenditures of such guardian, verified by vouchers or proof, once in every two years.

      “ Fourth. 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.” ....
    “ Seventh. To loan or invest the money of his ward in a reasonable time after he receives it, and the payment of the , money loaned or invested shall be secured by a mortgage on ' real estate of double the value of the money loaned, exclusive of buildings or other improvements, timber and minerals in or upon such real estate, or upon the purchase or pledge of the certificates of the funded debt of this state, or the bonds or certificates of the funded debt of the United States : Provided,, that said guardian shall in all cases be held to account for all premiums realized upon coin received by him as interest or otherwise. And if said guardian fail to loan or invest the money of his ward within such reasonable time, he shall account on settlement for such money and interest thereon calculated with annual rests.

      “Eighth. To obey and perform all the orders and judgments of the proper courts touching the guardianship.”
    On November 25, 1872, the guardian received for his wards and for a brother of his wards, who was of full age, the sum of five thousand dollars, being the amount of a policy of insurance issued by the National Life Insurance Company, insuring the life of the father of the wards in that amount. No inventory of this money or any part of it was made by the guardian, nor did he render any account with respect to it for three and one-half years after he received it, as hereinafter shown.
    Of the money so received, John Gross invested $3,000 in the purchase of real estate in Crawford county, taking the title in his own name, the deed failing to show that the wards had any interest in the property. This real estate he incumbered with his own debts, and he subsequently sold the same, receiving the larger part of the amount agreed upon in Missouri lands, the title to which he took in the name of his wife, the deed failing to recite any interest of the wards in the lands. The other portions of the $4,000, the ward’s part of the $5,000, the guardian applied to his own use. So that, previous to September 10, 1873, John Gross had converted nearly or quite all of the $4,000, to his own use.
    On September 10, 1873, on application of Eichelberger, John Gross was ordered by the probate court of Crawford county, to give a new bond as such surety; and on September 17, 1873, he gave such bond, in the penal sum of $10,000, with Daniel Stump and Jacob Gross as sureties, which bond was approved by the probate court; and thereupon the court ordered, “ that said Isaac Eichelberger, a surety upon the former bond of said John Gross, as such guardian, be and he is henceforth released upon said former bond of said John Gross as guardian as aforesaid.”
    The statute then in force (1 S. & C. 674, § 18), provided as follows : “ Any surety of a guardian may, at any time, apply to the proper probate court to be released from his bond with such guardian by filing his request therefor with a judge of such court, and giving ten days’ notice to such guardian, wbcn sucb court shall release such surety ; and if such guardian fail to give new bond, as by such court directed, he shall be removed and his letter susperseded, but such original surety shall not be released until such guardian so gives bonds, and such original surety shall be liable only for the acts of such guardian from the time of the execution of the orignal bond to the filing and approval by the court of such new bond.”
    John Gross’ first partial account as such guardian was filed in the probate court on February 1, 1875, and, after having been advertised for the proper length of time, it was in due form approved by the probate court, that court finding that there was due to said John Gross, as such guardian, from his ward, William A. Gross, $83.28. No exception to the account was filed, nor was any appeal taken. In that account the guardian did not charge himself with or in any way account for the $4,000, so received by him for his wards.
    On May 19, 1876, John Gross, the guardian, filed in the probate court his second partial account, in which he charges himself with having received, on November 2, 1872, said sum of $4,000. This account was approved by the probate court July 10,1876, abalance of $741.45 being found due from the guardian to his ward William A. Gross, and the guardian was ordered to account for the same according to law.
    On March 7,1878, the guardian John Gross, filed his final account showing a balance due from him to William A. Gross of $1,017.01, including such insurance money. This account was approved April 22, 1878, and the guardian was ordered to pay the same to said William A. Gross according to law.
    On the same day that John Gross filed his final account (March 7, 1878), he resigned as such guardian, which resignation was then accepted ; and on March 16, 1878, Daniel Stump above mentioned, was appointed guardian in place of John Gross; and said Daniel Stump gave bond as such guardian.
    During the same year John Gross caused the Missouri lands to be conveyed to Daniel Stump, who was his surety and successor, as already stated; but the whole amount realized from the land was $300, which sum was deposited in court.

      'William A. Gross became twenty-one years of age on July 31, 1878, and on March 29, 1879, commenced an action in the court of common pleas of Crawford county, against John Gross, Jacob Gross and Isaac Eichelberger, on the first bond of John Gross as such guardian. Issue was joined between the plaintiff, William A. Gross, and the defendant Eichelber-ger, by answer to the petition and reply to the answer, and on the trial there was a verdict and judgment in favor of the plaintiff and against the defendant Eichelberger for $890.42; and the district court, at the March term, 1884, affirmed the judgment. This motion is for leave to file in this court a petition in error to reverse those judgments.

      Finley dé Eaton, and Paxton dé Warrington, for Isaac Eichelberger.

      8. P. Harris, for William A. Gross.
   Okey, J.

As the proceeds of the Missouri lands, amounting to about three hundred dollars, have been paid into court, the sureties of Daniel Stump are in no way liable to the plaintiff below, William A. Gross; and as John Gross had converted to his own use four thousand dollars, money of his wards, being the amount of a policy of insurance on their father’s life, before the guardian gave his second bond, the sureties in that bond are not liable to tire wards for the money or any part of it (State v. Sanders, 62 Ind. 562; State v. Page, 63 Ind. 209; Lowry v. State, 64 Ind. 421); it follows, necessarily (John Gross being insolvent), either that the sureties in John Gross’ first bond are liable for the amount, or that the wards are wholly without security or remedy with respect to it.

We entertain no doubt as to the liability of the sureties in the first bond. That instrument does not pursue the language of the statute, but by the terms of the act that is not material, and the bond, which is to be read as though the act of 1872 (69 Ohio L. 55 ; Rev. Stats. § 6269) had been in terms incorporated therein (Holt v. Whittier, 31 Ohio St. 475; Jewett v. Railway Co., 34 Ohio St. 601; Banks v. De Witt, ante, 263), is sufficiently broad to cover the conversion here shown, for the guardian failed to “discharge with-fidelity the trust,” and probably the bond is sufficient, even without such curative provision. And neither the new bond of the first guardian, nor the resignation of the first and appointment of the second guardian, nor the bond of the second guardian, had the slightest effect upon the liability of the sureties in the first bond, which became absolute by the receipt and conversion of the four thousand dollars by John Gross.

Rut it is urged that by the guardian’s first partial account, a definite sum of money was ascertained to be due from William A. Gross to him, and that to permit a recovery with respect to money received by the guardian and appropriated to his own use previous to filing that account, is to contradict the record. True, a partial account is conclusive unless attacked in the mode provided ■ by statute ( Woodmansie v. Woodmansie, 32 Ohio St. 18), but this is only in respect to matters adjudicated therein (Schouler’s Dom. Rel. [2nd ed.] 495), and there was no adjudication in the first account ,,as to the insurance money. Besides, the first partial account was corrected in that respect by the second partial and the final accounts, which show that the money was received after the first bond was given and before the giving of the second bond ; and of this Eichelberger had no right to complain. Scobey v. Gano, 35 Ohio St. 550. The Ohio cases mainly relied upon by counsel, arising upon other-statutes or materially different facts (Favorite v. Booker, 17 Ohio St. 548; Lindsay v. Lindsay, 28 Ohio St. 157; Woodmansie v. Woodmansie, supra; Newton v. Hammond, 38 Ohio St. 430; and see 1 S & C. 677, § 31; Rev. Stats. § 6289), are not inconsistent with this view. Our conclusion is, that the embezzlement, by John Gross, of the money of his wards, did not leave the wards remediless, but that the sureties in the bond, which was in full force and effect when John Gross received the money and converted it to his own use, are liable, and that the judgments in the courts below against Eichelberger are right.

Motion overruled.