author: .Grew, J.

text:
    Genell v. Hirons.

      Real property of a judgment creditor — Exempt from levy in lieu of homestead — May he sold hy judgment debtor — Grantee holds free of judgment lien — Section 5441, Revised Statutes— Exemption laws.

    Real property of a judgment debtor that is exempt from levy and sale in lieu of a homestead under section 5441, Revised Statutes, when selected and held by such judgment debtor as so exempt, becomes his absolute property with full power of disposition, and if thereafter he sells and conveys the same, such property in the hands of his grantee is not subject to the lien of a judgment obtained against the grantor prior to such sale and conveyance, nor to seizure and sale upon execution in satisfaction of such judgment.
    (No. 8383
    Decided June 21, 1904.)
    Error to the Circuit Court of Clark county.
    On June 6, 1902, the plaintiff in error commenced an action against the defendant in error, J. B. Hirons and others, in the court of common pleas of Clark county, Ohio, whereby she sought to have a marshaling of liens and to subject to sale certain real property in her petition described, against which she alleged she had and held a valid and subsisting judgment lien, as a judgment creditor of one Clyde Blose, who was a defendant in said action. In the court of common pleas the cause was submitted to the court upon the pleadings and the following agreed statement of facts:
    “That on August 1, 1895, the plaintiff recovered a judgment before W. S. Neese, a justice of the peace 'of Clark county, against defendant, Clyde Blose, for the sum of thirty-six dollars and forty-two cents ($36.42), no part of which nor the costs thereon have been paid. That said plaintiff is the owner of said judgment. That at the time said judgment was rendered and transcript thereof filed with the clerk of the court of common pleas, Clark county, Ohio, and at the time of the first levy or attempted levy hereinafter mentioned and until the execution and delivery of the deed hereinafter mentioned, the defendant, Clyde Blose, was the owner in fee simple of lot No. 169 in Blose’s addition to said Tremont City, German township, Clark county, Ohio; and that during all of said times said Clyde Blose was a married man, living with his wife and the head of a family, a resident of said state of Ohio, and neither he nor his wife were the owners of a homestead, nor personal or real property above the value of three hundred dollars ($300). That the value of said lot No. 169 is one hundred dollars. That on August 14, 1895, the plaintiff caused a transcript of said judgment to be filed with the clerk of the court of common pleas, Clark county, Ohio, and on the same day, to-wit, August 14, 1895, an execution was issued thereon to the sheriff of Clark county, Ohio. That oh the same day, to-wit, August 14, 1895, said sheriff proceeded to levy upon said lot No. 169, and on September 28, 1895, said execution was returned by said sheriff endorsed as follows: ‘Received this writ, August 14, 1895, at 10 o’clock A. M., and pursuant to its command on the same day of August 14, 1895, finding no goods or chattels of the within named defendant, Clyde Blose, whereon to levy I cannot make the amount of this execution on any part thereof, I levied on the following -described real estate as the property of the within named Clyde Blose, to-wit: ‘Situate in the village of Tremont City, county of Clark, state of Ohio, and being lot No. 169 in John H. Blose’s plat of addition to said Tremont City, situate in German township, Clark county, Ohio. This writ returned September 28, 1895. T. 'E. Lott. By Thomas Shocknessy, Deputy.’ That at the time said sheriff levied or attempted to levy upon said lot, said defendant, Clyde Blose, demanded of said sheriff that said lot No. 169 was not subject to levy or sale, and that he was entitled to hold the same exempt from levy and sale, and that he selected said lot as exempt in lieu of a homestead, asked that the same be set apart to him as so exempt, and that neither said Clyde Blose nor said sheriff now recollects whether said lot was actually set off to said Clyde Blose or not. That nothing further was done by the sheriff except as ' shown by his return, except that thereupon the sheriff caused the said lot to be appraised according to law, the value being found at one hundred dollars ($100). That afterwards, to-wit, August 14, 1900, a second execution was sued out on said judgment and •delivered to the sheriff of Clark county, who made, the following return thereon: ‘ Clark county, ss.: Deceived this writ August 14, 1900, at 8 o’clock P. M., and pursuant to its command on the same day of August, A. D. 1900, finding no goods and chattels ■of the within named defendant, Clyde Blose, whereon to levy that I cannot make the amount of this execution or any part thereof, I levied upon the following •described real estate as property of the within named Clyde Blose, to-wit: ‘ Situate in the village of Tremont City, Clark county, state of Ohio, and township of German, and being lot No. 169, John H. Blose’s addition to said Tremont City in German township, Clark county, Ohio, September 17, A. I). 1900, this writ was returned by order of the plaintiff. Thomas Shocknessy, Sheriff.’
    “And no further proceedings was had or done by said sheriff. That on or about May 3, 1901, the defendant, Clyde Blose, for and in consideration of the sum of eighty-one ($81) dollars to him paid, conveyed said lot No. 169 by deed of general warranty to said defendant, J. B. Hirons, who is now the owner of said lot and now in possession of the same.
    “That at the time said second execution was sued out, the said Clyde Blose was a resident of said state of Ohio, the head of a family and not the owner of a homestead, the same as when the first execution was sued out; but at that time no demand was made that the same be set aside as exempt from levy and sale; and that said Clyde Blose had no knowledge of said second levy or that said second execution had been sued out. It is further agreed that the amount due on said judgment is thirty-six dollars and forty-two cents ($36.42), with interest and costs as shown by the execution docket in the clerk’s office of this county in said case.”
    The court of common pleas found and adjudged that Adella Genell had a valid and subsisting first lien upon the premises in her petition described, that J. B. Hirons was the owner of said premises subject to said lien, and ordered that said premises be sold and that the proceeds thereof be applied to the payment of the adjudged lien of said Adella Genell, so far as the same were necessary to the satisfaction and extinguishment of said lien, and that the balance of the proceeds of said sale be paid to J. B. Hirons, the owner of said lot. From this judgment J. B. Hirons prosecuted error to the circuit court of Clark county, where the judgment of the court of common pleas was reversed, the petition of Adella Genell dismissed and an order was made quieting the title of said J. B. Hirons to the lot in controversy against the claims of said Adella Genell. Plaintiff in error now asks that this judgment of the circuit court he reversed and that the ■ judgment of the court of common pleas be affirmed.

      Mr. William M. Rock el, for plaintiff in error.
    The question herein involves a construction of section 5441, Revised Statutes, under the agreed facts.
    Judgment liens are created by statute and their extent and duration are such as the statute provides. Tucker v. Shade, 25 Ohio St., 355; The Coal Co. v. Bank, 55 Ohio St., 233; McComb v. Thompson, 42 Ohio St., 139; Roig v. Schultz, 42 Ohio St., 165.
    The making of a levy has nothing to do with a local judgment lien, it neither creates it nor takes it away. While the words judgment or order (section 5435) from the fact that when a judgment is had á lien follows, and an order usually means the enforcement of a lien, might have been held to include judgment liens. There is a sharp distinction between judgment liens on real estate and on personal property. On the latter, there can be no lien until a levy, a seizure of (section 5375) and this levy, or seizure involves a right to hold possession of the property, and therefore if the right be given to hold it exempt from levy and sale, it necessarily prevents the lien attaching, and no lien attaching, the •owner retains his full proprietary rights. But not so as to real estate. A judgment lien does not interfere with the right of possession, nor does possession have anything to do with the lien’s creation, •extent or duration. Therefore real estate to which •a judgment lien has attached, and still exists thereon, could very'consistently he held free from levy and sale, and yet not affect the validity of the lien, .nor the owner’s right of possession.
    In fact, the owner is entitled to possession until -sale is made. Reynolds v. Rogers, 5 Ohio, 169.
    It was not necessary even if an execution be issued that there be a levy. Bank v. Coal Co., 5 Circ. Dec., 421; 11 C. C. R., 424.
    When the judgment debtor claimed the property •exempt from levy and sale, and there was no .further attempt to enforce the execution, did he not .have all the law gave? He did not ask that it .might be freed from the judgment lien? Nor did the law say that his selection would destroy the lien.

      The holding of real estate exempt from levy and ■sale, is not inconsistent ivith the existence of liens thereon. Wuest v. James, 51 Ohio St., 232.
    Such holding may prevent their enforcement but does not destroy their existence.
    A judgment lien is a vested right of property and -cannot be satisfied except by payment or release. Smith v. Richard, 2 Idaho, 464; 21 Pac. Rep., 419.
    Much less can it be destroyed by a statute of •doubt and ambiguity. Riddle v. Bryan, 5 Ohio, 48.
    Such rights are carefully guarded by constitutional enactments and judicial decisions.
    It is claimed that even though the statute provides that the judgment shall be a lien on the real estate of the debtor within the county from the day the transcript is filed (section 5375), yet if the real estate is afterwards exempted, the lien never did exist. This is certainly an untenable position. The right to have certain property exempted, i. e., taken eut or from the levy or execution, necessarily follows upon the assumption that there is something attaching to the property that must be removed. If there was no attaching right or lien, there would be nothing from which the selected property need be relieved. And then the right of exemption is a personal right, and if never exercised, never exists. McComb v. Thompson, 42 Ohio St., 139.
    Until the claimant acts, there can be no exemptions. And the time when he should act is when the sheriff is about to execute the writ. Sears v. Hank, 14 Ohio St., 298; Wildermuth v. Koenig, 41 Ohio St., 180.
    There is no presumption that the claimant will select certain property or ever act. Carpenter v. Warner, 38 Ohio St., 416.
    The ■ conclusion then, is irresistible that until a writ is issued, and the property is at least claimed as exempt, that the lien attaches and exists by virtue of the express words of the statute. (Section 5378.) This is fully sustained where a homestead is ■claimed and set apart. McComb v. Thompson, 42 Ohio St., 139; Roig v. Schultz, 42 Ohio St., 165.
    There are no decisions in Ohio upon this part of section 5441, which relates to the setting apart of specific real estate in lieu of a homestead, etc., and text books, citing authorities of other states by reason of the difference of the statutes governing the same, are of little or no value. It is laid down in text books that property, exempt from execution, is unaffected by execution liens and may be sold or transferred even while writs are in the hands of the officer. Freeman on Executions, 197; Black on Judgments, sec. 424.
    A considerable number of decisions may be found holding that where a judgment is acquired before a homestead is set off, that such lien cannot be divested by any subsequent act of the owner. Schuler v. Miller, 45 Ohio St., 331; Black on Judgments, sec. 425.
    It is claimed that because of the humane purpose and the liberal construction given to exemption laws, that the court should hold that the property was absolutely exempt and it could be transferred free from plaintiff’s lien. This is an argument, frequently advanced, but this court has never held that it permitted a right of exemption to exist that was not clearly and unequivocally given by statute. Riley v. Hitzler, 49 Ohio St., 651,
    So it was also held that partners cannot claim exceptions in partnership property, although they all were the heads of families and the owners of no other property and all joined in the demand. Gaylor v. Imhoff, 26 Ohio St., 317.
    If the husband dies, the owner of a homestead, and the same is sold to pay debts, the widow may claim $500 out of the proceeds, yet if he owned land not a homestead and the same is sold to pay debts, the widow can claim nothing. Wolverton v. Paddock, 2 Circ. Dec., 279; 3 C. C. R., 488.
    Certainly the fact whether the land be a homestead or not, could not differently affect the needs of the widow and children; we could reasonably presume that the legislature did not so intend. If the debtor be the owner of a homestead, that is worth but $1.00, he cannot claim $500 worth of other land he may own. Biddinger v. Pratt, 50 Ohio St., 719.
    Nor could he hold it out of chattel property. Bartram v. McCracken, 41 Ohio St., 377.
    This law (section 5441) like every other must be construed according to its language, and cannot be construed otherwise merely because it may fail to give that which may believe or presume was intended.
    It is not what the court may believe the legislature intended that should control, but what is the meaning of that which they did enact. Slingluff v. Weaver, 66 Ohio St., 621.
    The mere fact that certain real estate, at one time, was set apart as exempt, etc., will not exempt it from subsequent executions, unless it be again selected, etc. For perchance at the time the subsequent execution is issued, the debtor may have sufficient other property that same cannot be claimed, or he may have changed his condition in life, so that he does not come within the law, or he may not choose to exercise the privilege. There is no presumption that he will either exercise his right or that he is entitled to exercise it. Carpenter v. Warner, 38 Ohio St., 416.
    The statute (section 5441) is vague, uncertain and defective in this, that no provision is therein found, nor in any other statute, for the ascertainment of the value of the real estate selected, the setting apart of the same by metes and bounds, the' designation of the land selected.

      The statute specifically provides that when a transcript is filed, it becomes a lien, etc. (sections. 5377, 5378); now how can this lien be removed from the records, without record be made therein of the fact that the property was set apart as exempt? This record is made so that all persons may have notice of the judgment’s existence. Coal Co. v. Bank, 55 Ohio St., 251.
    When a lien is made by record it should only be removed by the record.

    This is a provision alike essential to the judgment creditor as well as judgment debtor. For if it is absolutely exempt as claimed in this case, and of no benefit unless it could be sold, who would be the. purchaser, with a judgment lien standing against it on the record? And then please tell me what is the sheriff to do when certain real property is selected as exempt? He must make some return, what is it? The importance of all these matters are realized by the provisions made in section 5438 in reference to homesteads, etc.
    1. Its value shall be found by appraisement.
    2. It shall be set off by metes and bounds.
    3. It shall be returned with the writ.
    4. It shall be copied into the execution docket.
    None of these provisions are found in section 5441, nor can be made to apply by implication.
    This plaintiff has a perfect right to her judgment lien, until in some valid manner removed by the record. Swift v. Luce, 27 Me., 285; Black on Interpretation of Laws, 59.
    If the real estate claimed as exempt in lieu of a homestead, is to be set off like a homestead, which seems to be the only reasonable view that can be taken, if any effect can at all be given to this section: (5441), then the plaintiff’s lien must be held in force- or the cases of McComb v. Thompson, 42 Ohio St., 139; Roig v. Schultz, 42 Ohio St., 165; and Schuler v. Miller, 45 Ohio St., 330 and 331, must be reversed. Brandon v. Moore, 50 Ark., 247; 7 S. W. Rep., 36; State Bank v. Carson, 4 Neb., 498; Hoyt v. Howe, 3 Wis., 660.
    It is a well settled principle of law that the right-to claim exemptions is personal. It cannot be conveyed to another. McComb v. Thompson, 42 Ohio St., 139; Carpenter v. Warner, 38 Ohio St., 416; Conley v. Chilcote, 25 Ohio St., 320.
    Therefore defendant Hirons can reap no benefit-from the fact that the judgment debtor (Blose) may now be or was at the time the sale was made, in condition to claim the exemptions nor from the fact that the judgment debtor now claims the property as exempt.

      Mr. Clem V. Collins, for defendant in error.
    We contend that a construction has been given to-the language used in sections 5441 and 5378, by this-court in the case of McConville et al. v. Lee et al., 31 Ohio St., 447.
    It seems clear that the court in the McConvillecase held, that inasmuch as the statute (now section 5441) provided that real or personal property could be held exempt from levy and sale, it made no difference what character was impressed on the surplus, that is, whether it was to be considered as real or personal property, in any event it would be so exempt. Now if this is true, there can be no mistake that McConville had a judgment lien on the lots and the court found he had a lien on the fund whether to be considered as real or personal property, but yet when selected and demanded in lieu of a homestead by the judgment debtor, the same was allowed to her. Now we wish to inquire of counsel for plaintiff, what became of his judgment lien? Certainly a judicial sale could have no effect on a valid lien so far as the judgment debtor was concerned; it could add no force to the statute nor take any away. If ihe property to the value of $500 was exempt to the debtor under section 5441, it was exempt in lieu of a homestead, and as stated by the court, McComb v. Thompson, 42 Ohio St., 149, stood in the place of a homestead, that is, that with which the comforts of a home may be secured, and the debtor was entitled to it upon demand under the statute whether the same was real or personal property.
    Why make use of the phrase, “-that with which the comforts of a home may be secured?” If Claude Blose could not sell the lot but was required to hold it on account of the alleged lien of plaintiff in error, of what benefit was the exemption to him? How could he secure the “comforts of a home” if the lot was all he had and he could not sell it?
    Upon the question of the construction of sections ■5441 and 5378, we submit the following:
    In so far as two statutes are irreconcilable, effect must be given to the one which is the later. State v. Holliday, 63 Ohio St., 165.
    A later statute whose general provisions are incompatible with an earlier one must be read as an exception thereto. Cincinnati v. Holmes, 56 Ohio St., 104.
    Special statutes for particular cases operate as exceptions to general statutes which might include them. Gas Co. v. Tiffin, 59 Ohio St., 420.
    A special statute relating to a special subject must be regarded as an exception to the more general provisions of another statute. Doll v. Barr, 58 Ohio St., 113.
    We contend that section 5378 is a general provision, while section 5441 is a special statute relating to a particular subject and must be regarded as an exception to section 5378.
    Sections 703, 704, 612 and 613, Revised Statutes of the state of Indiana; Barnard et al. v. Brown et al., 112 Ind., 53 (13 N. E. Rep., 401).
    Now, if the statutes of Ohio and Indiana on the subject of exemption in lieu of homestead are practically the same, and we contend they are, is not the above case analagous to the one at bar and ought not the judgment of the circuit court be affirmed?
    Property exempt from execution is unaffected by execution liens and may be sold or transferred even while writs of execution are in the hands of the proper officer. Freeman on Executions, 197; Pool v. Reid, 15 Ala., 826; Barnard v. Brown, 112 Ind., 53; 13 N. E. Rep., 401; Ray v. Yarnell, 118 Ind., 112; 20 N. E. Rep., 705; Godman v. Smith, 17 Ind., 152; Dumbould v. Rowley, 113 Ind., 353; 15 N. E. Rep., 463; Durbin v. Haines, 99 Ind., 463; Minnich v. Shaffer, 135 Ind., 634; 34 N. E. Rep., 987-989.
    What a debtor does with his property while it is by law exempt from execution is a matter in which his creditors have no concern. Taylor v. Duesterberg, 9 N. E. Rep., 910; also, Burdge v. Bolin, 106 Ind., 175; 6 N. E. Rep., 140; also see collation of authorities; Airey v. Buchanan, 1 So. Rep., 102.

      -The ownér has the absolute right to sell or mortgage property exempt from execution, and such sale- or mortgage will be enforced. Cronan v. Honor, 57 Tenn. (10 Heisk.), 353.
    A debtor has the right to convey by voluntary conveyance property exempt from levy and sale. Wright v. Smith, 66 Ala., 514; Carhart v. Harshaw, 45 Wis., 340.
    Where property is exempt from execution by statute, the owner may transfer it free from any claim of his creditors, without regard to the uses to-which he devotes the proceeds, if there be no provision in the statute to the contrary. No prejudice or injustice can be wrought to the creditor by such transfer, for the reason that the property is beyond his reach, and his condition, rights and remedies, would not be affected by the transfer. Waugh v. Bridgeford, 28 N. W. Rep., 626; Bevan v. Hayden, 13 Ia., 122; Frost v. Shaw, 3 Ohio St., 270; Pool v. Reid, 15 Ala., 826; Cook v. Baine, 37 Ala., 350; Godman v. Smith, 17 Ind., 152.
    Upon the question of “selection,” we cite Slanker v. Beardsley, 9 Ohio St., 592.
    In the present ease the lot was all Clyde Blose had. He demanded of the sheriff to have the same as exempt in lieu of a homestead. What more was-required of him?.
   .Grew, J.

The circuit eourt was right in this case in reversing the judgment of the court of common pleas and in rendering judgment upon the agreed facts in favor of the defendant in error.

The property in controversy was property which, under favor of section 5441, Revised Statutes, the judgment debtor, Clyde Blose, had the right to se-. leet and hold, in lieu of a homestead, exempt from both levy and sale.

This fact the plaintiff in error does not dispute. But it is claimed by her that notwithstanding she was without right to seize and sell said property upon execution so long as Blose, the judgment debtor, remained the owner thereof, that he having voluntarily conveyed said property, that she now has the right to enforce her claim against the same in the hands of his grantee, by foreclosure of the lien which she claims to have acquired thereon un-. der sections 5377 and 5378, Revised Statutes, by the filing of her transcript in the court of common pleas. Section 5377, so far as its provisions are pertinent to the question now under consideration, reads as follows: “The party in whose favor a judgment is rendered by a justice of the peace, or mayor of a municipal corporation, may, at any time after judgment is rendered, if the same be not appealed or stayed, file in the office of the clerk of the court of common pleas of the county in which the judgment was rendered a transcript thereof, having certified therein the amount, if any, paid thereon; and thereupon the clerk shall enter the case on the execution docket, together with the amount of the judgment, and the time of filing the transcript ■ * * * Section 5378 provides: “Such judgment, if the tran-. script be filed in term time, shall be a lien on the real estate of the judgment debtor within the county from the day the transcript is filed; and if filed in vacation, the judgment shall, as against the debtor,' be a lien from the day it is filed, but as against other transcripts filed in vacation, and judgments ren-. dered at the next term of the court, it shall be a lien Only from the first day of the next term. ’ ’ This section, which was originally section 490 of the code of civil procedure, was passed January 25, 1860. At the time of its enactment the only property a judgment debtor was authorized to select and hold, as exempt from levy and sale in lieu of a homestead, was personal property, not exceeding five hundred dollars in value. At that time no exemption to any ¿amount, in lieu of a homestead, could be claimed by .a judgment debtor in real property; but all the real ■estate owned by such judgment debtor, except his homestead, was subject to the lien of a judgment obtained against him and might be seized and sold upon execution in satisfaction of such judgment. Subsequently, however, by the act of February 27, 1873 (now section 5441, Revised Statutes), the right of exemption in lieu of a homestead was so enlarged and extended by the legislature as to embrace and include real as well as personal property. So that, under the statute as it now is, and as it was at the time the plaintiff in error obtained her judgment against Blose, the latter had the right to hold exempt from levy and sale real property to the amount and value of five hundred dollars, in lieu of a homestead.

"What then were his rights and what the rights of his judgment creditor with- respect to the property so selected and held by him as exempt?

If by the filing of her transcript in the court of common pleas the plaintiff in error, Adella Grenell, by virtue, of the provisions of section 5378, Revised Statutes, thereby acquired an enforceable lien -upon the land or lot in controversy, that survived the selection of this property as exempt, then it must be admitted such lien was not divested by the-subsequent alienation of the property by the judgment debtor. But we think she acquired no such lien, and that the provision of section 5378, that: “Such judgment, if the transcript be filed in term time, shall be a lien on the real estate of the judgment debtor within the county from the day the transcript is filed;” construed and interpreted in the light-of subsequent legislation, must be held to apply to, and as creating or giving a lien upon, only such of the real estate of the judgment debtor as is subject to levy and seizure upon execution. Any other construction, or at least that contended for by the counsel for plaintiff in error, would put this section in conflict with section 5441, Revised Statutes, which is a later enactment, and would make the provisions of the latter section, which exempt real propérty to the value of $500 in lieu of a homestead, practically unavailing to a judgment debtor for the purposes for which such exemption is allowed and given, viz.: the support and protection of his family. As said by this court in McComb v. Thompson, 42 Ohio St., 149, “Our laws make a wide distinction between holding a homestead of one thousand dollars’ worth exempt from' sale, and holding in lieu of a homestead five hundred dollars’ worth exempt from levy and sale. * * * The statutes provide that what is held in lieu of a homestead — that with which the comforts of a home may be secured — may be held exempt from levy and sale; but that a homestead may be held exempt from sale.” The exemption which the statute allows by way of homestead is, in a sense, but a qualified exemption, and the law protects from sale the property so exempt, only so long as it is used ana occupied as a homestead. But the exemption which the law gives in lieu of a homestead is an absolute exemption and whether it be taken in personal or real property, the judgment debtor acquires, in and to the property so exempt, when selected and taken, an absolute ownership with full power of disposition. Freeman in his work on Executions, at section 218, says; “The power of the owner of exempt property, unless limited by statute, to sell or incumber it is undoubted. The right of exemption is a privilege, but not a restriction. In fact, the owner’s power to dispose of exempt property is more absolute than it is over other kinds of property. This is because of the freedom of exempt property from involuntary liens. Not being subject to execution, the owner may sell it, pledge it, or give it away, notwithstanding the existence of judgment or execution liens, and without reference to the rights of his general creditors.” And numerous authorities are cited by the author in support of this text. By section 5441, Revised Statutes, it is provided: “Husband and wife living together, a widower living with an unmarried daughter or minor son, every widow and every unmarried female, having in good faith the care, maintenance and custody of any minor child or children of a deceased relative, resident of Ohio, and not the owner of a homestead, may, in lieu thereof, hold exempt from levy and sale, real or personal property to be selected by such person, his agent or attorney, at any time before sale, not exceeding five hundred ($500) dollars in value, in addition to the amount of chattel property otherwise by law exempted.” * * * The real property ex-'erupt by this section is placed in tbe same category ■with, and is exempt in the same right and for the same purpose as the personal property." In view therefore of the provisions of this section, to give to the language of section 5378 the force and effect •claimed for it by counsel for the plaintiff in error, would, we think, be to impute to the legislature a manifest absurdity, for it would be idle to declare ■that a debtor who is the head of a family and not the owner of a homestead, shall have an exemption of five hundred dollars in value in lieu thereof in •either real or personal property, with which, as this •court has said, “to secure the comforts of a home,” and at the same time deny to him the right to so use or apply it. A construction that would produce such result is at variance with our ideas of justice, and certainly would be inconsistent with the humane policy and purpose of our exemption laws. It appears from the agreed statement of facts in this case, that at the time of the levy or attempted levy by the sheriff, on the property in controversy that Clyde Blose, the judgment debtor, was a resident of Ohio and the head of a family, but was neither the owner of a homestead nor of personal and real property exceeding three hundred dollars in value, and that he selected as his exemption in lieu of a homestead, this specific property. Having so selected it, he had the right to sell and convey the same to-Hirons, and such sale and conveyance operated to invest Hirons with the title to the property, free from any claim or lien thereon of the plaintiff in error. Affirmed.

Spear, C. J., Davis, Shauck and Price, JJ., concur.

Summers, J., not sitting.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Duffey v. Reardon.

      Order by justice of peace — In aid of execution — That judgment debtor shall pay amount of indebtedness into court — Is a final order, reviewable on error, when — Unmarried judgment debtor supporting widowed mother may demand exemptions— Under .sections 6489 and 6680-1, Revised Statutes — Of personal earnings, etc. — Law of exemptions.

    1. An order made by a justice óf the peace in proceedings in aid of execution, that a third party, who appears on notice for that purpose and.admits an indebtedness to the. judgment debtor, shall pay into court the amount of such indebtedness tó apply on the judgment, is a final order reviewable on error at the suit of the judgment debtor, where it is made over . his demand that the amount so due him is exempt under .the laws of Ohio.
    2. In proceedings in aid of execution, before a justice of the peace, against an unmarried judgment debtor, having in good' faith the maintenance and support of his widowed mother, wholly dependent upon him for support, such judgment debtor, under the provisions of sections 6489 and 6680-1, Eevised Statutes, may demand and hold as exempt from the ■' orders of the justice, his personal earnings in a sum less than $150, if the same have been earned within three months next preceding the commencement of the proceeding. Riley v. Ritzier, 49 Ohio St., 651, distinguished. ■
    (No. 8379
    Decided June 21, 1904.)'
    Error to the Circuit Court of Lucas county.
    On the first day of July, 1902, the plaintiff in error obtained a judgment against the defendant in error by the consideration of the city and justice court of the city óf Toledo, in and for Lucas county, Ohio, for a certain sum of money.
    No appeal was taken from the judgment and it has not been paid.
    On August 12, 1902, the judgment creditor, now plaintiff in error, filed his affidavit in the same court, in aid of execution, in which he alleged the rendition and existence of the above judgment, and that he had good reason to believe and did believe that the Lake Shore & Michigan Southern Railway Co. was then liable to the judgment debtor, Frank J. Reardon, defendant in error, in a sum of money which was then due him, and that the sum so due was not exempt from execution or attachment under the laws of the state of Ohio.
    On this affidavit, the justice, on the same day, issued an order commanding the railway company to appear before that court on August 23d, and answer under oath respecting its liability to the defendant, Reardon, and- to answer all questions touching the amount due him.
    The order also embraced a notice for the judgment debtor, to appear at the same time and place, and present such objections as he might have to the proceeding. Service of these notices was duly made on the railway company and the judgment debtor, Reardon, by the constable of the township.
    The railway company and judgment debtor appeared on the day designated, and the railway company acknowledged its indebtedness to the judgment debtor in the sum of $88.87. The bill of exceptions taken at the hearing shows that the judgment debtor moved the court to refuse an order requiring the money to be paid into court to apply on the judgment against him, and also moved to strike the plaintiff’s affidavit from the files.
    In support of his objection to any order to pay the money owing by the railway company into court, the defendant filed his own affidavit and also the affidavit of his mother. In his affidavit, defend•ant denied the statement in the affidavit of the .judgment creditor, “that the Lake Shore & Michigan Southern Railway Co. is liable to affiant in a sum of money not exempt from execution or attachment under the laws of Ohio.” He also deposed that he is the son of Catharine Reardon, who is a widow, wholly dependent upon affiant for her support, and that affiant has, for some months maintained, and is now in good faith maintaining and supporting her, and that the money sought to be applied to the payment of the judgment, are the personal earnings of affiant in a sum less than $150, for •services rendered within three months, and that the money was necessary for the immediate maintenance of said widowed mother.
    The affidavit of the mother alleges that she is a widow and the mother of the defendant, and that from his personal earnings he is, in good faith, supporting her, and that she is wholly dependent upon him for her support; that he has no money or property other than his personal earnings from said railway company, and that she is now in need of the money sought to be applied to the judgment against her. son.
    This is the sum and substance of all the facts adduced on the hearing, except the admission in -open court that the judgment debtor is unmarried.
    The justice refused to dismiss the proceeding, and ordered the railway company to pay the amount admitted to be due defendant, into court to cover the judgment and costs. The defendant excepted, and took a bill of exceptions and prosecuted error to the court of common pleas, where the proceedings of the justice were affirmed.
    The defendant, to reverse both judgments, prosecuted error in the circuit court, and it is the judgment of that court that the judgments of the justice and the court of common pleas be reversed, and that the money be released from the order of the justice, as exempt under the laws of Ohio.
    The judgment creditor now prosecutes error in this court to reverse the judgment of the circuit court.

      Mr. O’Brien O’Donnell, for plaintiff in error,
    cited and commented upon the following authorities:

      Secor v. Witter, 39 Ohio St., 218; Hammock v. Bank, 6 Circ. Dec., 105; 9 C. C. R., 139; Barbour v. Boyce et al., 9 Dec., 332; 6 N. P., 425; Deveaux v. Leslie, 9 Circ. Dec., 480; 18 C. C. R., 482; Riley v. Hitzler, 49 Ohio St., 651; secs. 5430, 5551, 6489, 6503, 6504, 6680-2, 6680-5, Rev. Stat.

      Messrs. Troup S Trues dale, for defendant in error,
    cited and commented upon the following authorities :

      Kirk v. Stevenson, 59 Ohio St., 556; Riley v. Hitzler, 49 Ohio St., 651; 24 W. L. B., 295; 25 W. L. B., 44; Deveaux v. Leslie, 9 Circ. Dec., 480; 18 C. C. R., 482; secs. 5430, 6489, 6680-1, Rev. Stat.
   Price, J.

The plaintiff in error presents two questions which arise on the record:

First. Is the order of the justice requiring the railway company to pay into court the money in its possession, due to the defendant in errbr, a final order ?

Second. In proceedings in aid of execution before a justice of the peace, are the wages under $150 earned within three months by an unmarried man, having a widowed mother wholly dependent upon him for support, exempt, where proceedings in attachment as provided by statute are not invoked to subject the money to the benefit of the judgment creditor?

(1) It is claimed that the order of the justice under consideration is not a final order, and if that view is correct, then error did not lie to review it, and the judgment debtor had no standing in either of the reviewing courts. To support the position taken, we are referred to the provisions of section 6680-5, Bevised Statutes, which is a part of the provisions of our statute, for proceedings in aid of execution before a justice of the peace. The .sections immediately preceding prescribe the manner of instituting the proceeding; — by affidavit of the judgment creditor, his agent or attorney; the process that shall issue for the party charged with a liability to the judgment debtor, its service and return, and the nature and extent of the examination of such party on the return day of the process, and the order to be made on such examination.

Then section 6680-5 provides that, “If the justice shall make an order, pursuant to the preceding section, directing the payment of money by the person, partnership or corporation, against whom the aforesaid proceedings are instituted, and if such person, partnership or corporation fail to comply with said order, the judgment creditor may proceed against such person, partnership or corporation by civil action; and thereupon such proceedings may be had as in other civil actions, * *

As to the person, partnership or corporation cited, to appear and answer in such proceeding, it appears from this section that the order of the justice of the peace, is not a final order, precluding further inquiry or proceedings. The party may decline to obey the order of the justice, and in such case the judgment creditor may resort to a civil action against him, in which any proper defense may be set up by answer.

Similar provisions are found in section 5551, Revised Statutes, regulating attachment and garnishee proceedings in the court of common pleas, and in sections 6503 and 6504, regulating like proceedings before a justice of the peace.

Hence, the cases cited for plaintiff in error, which hold that error will not lie to review the order of a justice of the peace, requiring the garnishee to pay into court money of the defendant in attachment. The remedy of the garnishee in such case, is to refuse to comply with the order and have his rights adjudicated in a civil action. This is the doctrine of Secor v. Witter, 39 Ohio St., 218, cited by plaintiff in error.

But this is not a case in which a garnishee in an attachment proceeding, or a party ordered to pay in a proceeding in aid of execution, prosecuted error to the order of the justice; but it is a ease where the judgment debtor, whose personal earnings were sought to be appropriated, prosecuted error to review the order of the justice. As to him the order was final, and his only recourse or rem-. edy is the one he pursued, unless he could have-appealed, which we do not decide. He was made a party to the proceeding and served with, notice to appear on the same day set for the examination of the railway company. The statute (section 6680-2) requires that he be notified, if found in the county, at least three days before the hearing, and by these steps he became a party to the proceeding. The order in question affected one of his substantial rights, inasmuch as it directed his employer to pay his wages into court to cover the judgment and costs. He was claiming-these wages as exempt under our laws, and, if his exemption was denied by the justice, such denial and order on the railway company appropriated his. property, and it became his duty, if he did not wish to abide by the decision, to prosecute error in a higher court to have his rights determined. It would be too late for him to contest the question with the railway company, if he took no steps to reverse the order, and the company obeyed it by paying the money into court, or to the judgment creditor.

We think that as to the judgment debtor, the order is a final order as defined in section 6707, Revised Statutes. It follows that he had a right to prosecute error in the court of common pleas, and also in the circuit court, as he has done.

(2) Are the personal earnings of an unmarried man having a widowed mother wholly dependent upon him for support, exempt in proceedings in aid of execution before a justice of the peace?

The plaintiff in error seems to concede that if he were seeking to subject such earnings by attachment before a justice of the peace, an unmarried. man having a widowed mother wholly dependent upon him for support, may lawfully hold his earnings within a certain time and under a certain amount, as exempt; hut as he is not proceeding by attachment, the right to the exemption does not. exist.

An examination of some provisions of our statute-becomes necessary in order to decide the question. Section 6680-1 provides: “When a judgment creditor, his agent or attorney, makes oath in writing-before the justice of the peace, who rendered the judgment, or before his successor, that the affiant has good reason to believe, and does believe, that any person, partnership or corporation, naming the-same, is liable to the judgment debtor in any sum of money, whether then due or not, and that said money is not exempt from execution or attachment-under the laws of the state of Ohio, the justice shall' order such person, partnership or corporation, to-appear before him at his office at a time and place-specified in such order, # * # and answer under-oath respecting such liability; and he may also subpoena witnesses to testify concerning the same.”

The affidavit made in this case contains the required statement that “the said money is not exempt from execution or attachment under the laws-of the state of Ohio.” The use of this clause of the-statute does not rest in the discretion of the affiant, but is one of the conditions upon which the order may issue.

As before stated, “the judgment debtor, if found, within the county, shall be served with notice in. writing at least three days before the hearing provided for in the foregoing section, which notice.shall be served like a summons.” See section 6680-2, Revised Statutes.

The judgment debtor, appeared in pursuance of the notice, and made it appear without contradiction, that while he is an unmarried man, he is the son of a widowed mother wholly dependent upon him for support, and that his earnings within three months ($88.87), were necessary to the support of the mother. That showing was in answer to a very material statement in the affidavit of the judgment creditor, quoted above, and we therefore turn to the statute, section 6489, Revised Statutes, regulating attachments before a justice of the peace to ascertain the effect of the showing.

The section reads in part: “The plaintiff shall have an order of attachment against any property of the defendant (except as hereinafter provided) in a civil action before a justice of the peace, for the recovery of money, before or after the commencement thereof, when there is filed in this (his) office an affidavit of the plaintiff, his agent or attorney, showing the nature of' plaintiff’s claim, that it is just, the amount the affiant believes the plaintiff ought to recover, and that the property sought to be attached is not exempt from execution, and, if the personal earnings of the defendant are sought to be attached, that the defendant is not the head or support of a family, and has not in good faith the maintenance and support of a widowed mother, wholly dependent upon him for support, **.”

If the affidavit contains what this section requires, followed by one or more grounds for attachment specified later in its provisions, an order of attachment may issue.

If the affidavit lacks any one of the elements made material in the particular case, the order should not issue, and, if issued, the defect would furnish a cause for discharging the attachment.

Where an order of attachment and garnishment has been issued on the affidavit made in conformity to the above section, and a garnishee answers .that he has in his possession the personal earnings of the defendant, less in amount than $150, and earned within three months preceding the service of the order, what would be the proper order, if the debtor defendant makes it appear that he is the son of a widowed mother, wholly dependent upon him for support? The appearance of such fact by affidavit or other competent evidence, negatives, and overcomes the statement in the attachment affidavit, so essential where the personal earnings of a defendant are sought to be attached, and the right to thus appropriate the personal earnings fails for want pf a legal foundation, and the fund should be released.

The counsel for plaintiff in' error undertakes to answer the proposition, by saying “that this is a statute (section 6489), setting forth the necessary allegations to be alleged in an affidavit for attachment in a justice court. In the present case, we are not proceeding under this section.” He then states that the proceeding is under section 6680-1, already quoted, and that section 5430, Revised Statutes, determines who may have exemptions and what the same may be.

It is true, that the exemption claimed in this case, is not expressly authorized by the latter section, nor by section 5483, providing for proceedings in:aid of ■ execution, before a probate judge or judge ;of the! court of common pleas. It is also true that an affidavit for attachment in an action pending in the court of common pleas need not contain the statement required in similar proceeding before a justice of the peace. But such facts do not explain why it is essential in the proceeding in aid of execution before a justice, to allege in the affidavit, that the money due the judgment debtor “is not exempt from execution or attachment;” or why the affidavit for attachment before a justice must state that the debtor “has not in good faith the maintenance and support of a widowed mother, wholly dependent upon him for support.”

If the defendant in attachment before a justice of the peace makes it appear that the allegation referred to is untrue, and to the contrary he has in good faith the maintenance and support of a widowed mother wholly dependent upon him for support; and that the fund attached are his personal earnings within three months, and less than $150 in amount, what should the justice do in the premises ? Discharge the attachment for want of a subject upon which to legally operate.

In the case at bar, the affidavit contains what is expressly required, to-wit: That the money sought to be applied is not exempt from execution or attachment. If it turn out at the hearing that the money is exempt from execution or attachment, on the ground permitted by the statute, the proceeding fails because what the judgment creditor is seeking has not been found.

Why the legislature has failed to incorporate this clause of section 6489, into sections 5430 and 5483, Revised Statutes, we are not able to determine. Nor can we explain why a similar clause is not found in section 5521, Eevised Statutes, as necessary in an affidavit for attachment in the court of common pleas, unless from the usual character and extent of personal earnings, the remedy to subject them is placed as more convenient, within the jurisdiction of a justice of the peace. At all events, unless we treat the language quoted from section 6489, and from section 6680-1, supra, as pure surplusage, it is our duty to give it its natural effect, as was done by the circuit court in this case.

However, it is said by counsel for plaintiff in error that this court has decided the point at issue in Riley v. Hitzler, 49 Ohio St., 651, of which the following is the syllabus:

“A debtor residing with his widowed mother and invalid brother who are supported by him, is not thereby entitled, under either section 5430 or section 5483, of the Eevised Statutes, as the head of a family, to hold exempt from execution or attachment his personal earnings for three months.”

That case was decided by this court November 22, 1892, and tracing its origin with the best means at our command, we find that it was pending in this court as far back as October 7, 1890, when the records show it was dismissed for want of preparation, but on motion was reinstated on the docket by consent, January 13, 1891. Therefore the case was commenced long prior to the amendment of section 6489, Eevised Statutes, which was passed April 3, 1891. See 88 O. L., 277. By this amendment, the words “and has not in good faith, the maintenance and support of a widowed mother wholly dependent upon him for support” were added, and they have ever since formed a part of the section. Therefore this court was not considering the question we have . here, because the amendment conld hot' be' applied to the. pending action commenced long prior to its. adoption.

This is -shown further by the statement of the facts, in that case. There, the motion to dismiss the attachment was based on the claim that the defendant was the head of a family, and not the owner of' a homestead, and that the property sought to be attached were the personal earnings of defendant within three months last priot to the beginning of the action, which did not exceed the sum Of $150, and that they.were necessary for the support ,of himself, and family. There was no evidence that Eiley was then the head or support of a family, except, that he resided with his widowed mother and invalid.brother who were solely dependent upon him for support. The attachment was not discharged, and on error, the court of common pleas, the circuit court- and this court approved the decision of the justice. The point to be determined was whether Eiley was the head of a family, under the then provisions of sections 5430 and 5483, Eevised Statutes, and it was decided that he was not the. head Of a family, as contemplated by either of said sections.

For these several reasons, that case does not control us on the facts of this case, under -the existing legislation. .

It is our opinion that the circuit court reached a proper conclusion in this case, and its judgment is affirmed.

Judgment affirmed,*

Spear, O. J., Davis, Shauck, Crew and Summers, JJ., concur.


author: Shatjck, J. Summers, J.

text:
    The State ex rel. Ellis, Attorney General, v. The Board of Deputy State Supervisors of Cuyahoga County et al.

      Supreme court without original jurisdiction of suits for injunction — Out in quo warranto suit may grant ancillary injunction, when.

    This court, though without original jurisdiction of suits for injunctions, may, in an original action in quo warranto to determine the right of rival boards to exercise official functions, grant an ancillary injunction to protect those having the prima facie right from interference by other claimants during the pendency of such original action.
    (No. 8993
    Decided June 21, 1904.)
    In Quo Warranto.
    The case is stated in the opinion.

      Mr. Wade H. Ellis, attorney general, for plaintiff.
    The power to issue restraining orders in aid of its original jurisdiction, is inherent in the Supreme Court.
    Section 2 of the judicial article of the constitution of Ohio gives to the Supreme Court original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo. Our contention is that in any case coming into the Supreme Court originally, this court has the inherent power to issue restraining orders, to make effectual the exercise of its original jurisdiction. Works on Courts and their Jurisdiction, page 171; Elliott on Appellate Procedure, sec. 45.
    Now it is true that the Supreme Court of this state by section 5573, of the Revised Statutes, is given jurisdiction in injunction in all causes pendving in the court, and it is also true that this must apply only to appellate jurisdiction, for the reason that the original jurisdiction granted by the constitution cannot be enlarged by the legislature. Griffith v. Commissioners of Crawford Co., 20. Ohio, 609; Kent v. Mahaffy, 2 Ohio St., 498; Railroad Co. v. Hurd et al., 17 Ohio St., 144; Yeoman et al. v. Lasley et al., 36 Ohio St., 416; Wagner v. Railroad Co., 38 Ohio St., 32.
    But it is equally true that the statutory grant of jurisdiction in injunction as an aid to jurisdiction in other actions is wholly unnecessary since, as Elliott points out in section 45, cited above, the Supreme Court has the inherent power to issue writs of injunction in aid of its appellate jurisdiction.
    It is true that the Supreme Court has no original jurisdiction in injunction (Wheeler v. Treasurer, 8 Ohio St., 394), but it does not follow that the court is without power to restrain litigants from rendering ineffective its jurisdiction in quo warranto. The right to preserve an existing status until a case can be heard and determined upon its merits is an incidental and necessary part of the right to hear and determine the case.
    This court has pointed out on several occasions the difference between the statutory and constitutional jurisdiction of courts and their inherent powers. Hale v. The State, 55 Ohio St., 213.
    Courts have uniformly protected incumbents in office pending the final determination of proceedings in quo warranto.

    The great majority of cases in which courts have refused to issue restraining orders where quo war

      ranto proceedings were pending to determine the title to a public office, have been decided upon the theory that to grant such summary relief would he to decide the case in advance and, in effect, to substitute the improper remedy of injunction for the proper remedy of quo warranto. It is elementary that injunction cannot he invoked to try title to office, and that the only appropriate action is quo warranto. Manifestly, therefore, courts will refuse to evade this well-known principle by issuing an injunction during the pendency of an action in quo warranto. To this effect are all the numerous authorities upon the subject. High on Injunctions, pt. 2, sec. 617; 1 Spelling on Extraordinary Relief, sec. 620; Beach on Injunctions, sec. 1381; People v. Draper, 24 Barb., 265; State v. Durkee et al., 12 Kan., 308; Markle v. Wright, 13 Ind., 548; Hartt et al. v. Harvey et al., 32 Barb., 55; Cochran v. McCleary, 22 Ia., 75; Tappen v. Gray, 9 Paige, 509; Beebe v. Robinson, 52 Ala., 66; Updegraff et al. v. Crans, 47 Pa. St., 103; Harding v. Eichinger, 57 Ohio St., 371.
    But out of this rule that courts before whom a quo warranto proceeding is pending will not disturb incumbents in the office which is the subject of the controversy has grown the further rule that such courts will protect by injunction such incumbents pending the final determination of the action in quo warranto. The authorities to this effect are numerous and the principle is firmly established and widely recognized. 2 High on Injunctions, sec. 1315; 2 Beach on Injunctions, see. 1380; 1 Spelling on Extraordinary Relief, sec. 622; Harding v. Eichinger, 57 Ohio St., 374; Reemelin et al. v. Mosby, 47 Ohio St., 570; Kerr v. Trego, 47 Pa. St., 292; Guilotte v. Poincy, 6 So. Rep., 507; Ewing v. Thompson, 43 Pa. St., 372; Tappen v. Gray, 2 Edw. (N. Y.), 450; Goldman v. Gillespie, 43 La. An., 83; Brady v. Sweetland, 13 Kan., 41; State v. Judge, etc., 8 So. Rep., 883.
    The order sought by this motion merely preserves, the existing status of affairs until the final determination of the action in quo warranto.

    Where important public interests are involved courts'have uniformly granted injunctions in aid of their jurisdiction in quo warranto. 1 Spelling on Extraordinary Relief, sec. 620; Commonwealth v. Dearborn, 15 Mass., 125; State v. Durkee, 12 Kan., 308; Kerr v. Trego, 47 Pa. St., 292; Appeal of Town Council, (Pa.) 15 A., 730; State v. Wolfenden, 74 N. C., 103; Dishon v. Smith, 10 Ia., 212; Ewing v. Thompson, 43 Pa. St., 372.
    ' This court has frequently exercised its inherent, p'owers in aid of the original jurisdiction conferred by the constitution. State ex rel. Attorney General v. Pollner et al., No. 8636; State ex rel. v. Spellmire et al., 67 Ohio St., 77; State ex rel. Attorney General v. Beacom et al., 66 Ohio St., 491.
    We submit that the power of this court to issue a. temporary restraining order when necessary to the continued performance of the functions of a public office, during the pendency of an action in quo warranto, brought to determine who shall perform those functions, is a part of its jurisdiction in quo id arrant o, as fully conferred by the constitution as if it were expressed in that instrument.

      Mr. Harry F. Payer, for Gongwer and Coughlin.

      Messrs^ Blandin, Bice S Ginn, for the members of the city board of elections.
   Shatjck, J.

The pleadings inform us that on the-second day of May, 1904, the state supervisor and inspector of elections, pursuant to the provisions of the-act of April 23, 1904, appointed the defendants. Gfentschj Hopkins, Fitzgerald, and Christian as members of the board of deputy state supervisors and inspectors of elections in and for the county of Cuyahoga ; that said persons duly qualified as members .of said board and organized, as required by law, and that they thereupon demanded the ballot boxes and other property used in the conduct of elections, from, the other defendants (except Coughlin and Grongwer), who refused to deliver said property, claiming-the. right to the continued possession thereof by reason of their previous appointments, some of them as members of the board of deputy state supervisors of said county and some of them as members, of the city board of elections of the city of Cleveland, in said county, the statutes under which said previous boards had been constituted having been repealed by said act of April 23, 1904. The prayer of the petition is that the defendants other than those appointed under the recent act be ousted from the asserted right to perform said functions. It is. further made to appear that before the cause can be put at issue, heard and determined upon its merits, it will be necessary that action be taken for the holding of popular elections in said county. It also appears that the members of the former boards assert, a right to continue in office and to retain possession of said property, upon the ground that the act of April 23, 1904, is unconstitutional, and its repealing section, therefore, ineffectual. The defendants Coughlin and Gongwer claim a right to be appointed as members of the board created by the act of April 23, 1904, instead of Fitzgerald and Gentsch, who were appointed by the state supervisor and inspector of elections.

The case is not now prepared for submission upon its merits, but we are called upon to determine who shall exercise the official functions which public interests require to be performed, pending the determination of the cause upon its merits. The attorney general invokes that action by a motion for an order enjoining the members of former boards from interfering with the members of the board appointed under the act of April 23, 1904, and from withholding said property from their possession. It is obvious that the public interests require that some board shall exercise these controverted functions, and every consideration of propriety tends to the conclusion that the validity of the later act should be assumed until after hearing and consideration it is found to be invalid.

The text books and numerous adjudicated cases have made common knowledge of the rule that in actions in quo warranto against an incumbent to try title to an office, the court will not enjoin the incumbent from the exercise of the functions of the office pending the determination of the question of title. This is for reasons of obvious and conclusive force. The public interests require that the functions of the office be performed by some one, and to transfer their performance from the incumbent to the contestant would deny effect to the prima facie title of the former and anticipate the conclusion of the court in quo warranto, that, and not injunction, being the proper suit for testing the question of title. But attention to the precise nature of the present case will show that while those considerations are applicable here, they favor the opposite conclusion. We have no controversy as to the title to any office except as to two of the defendants, and they claim to be entitled to an office from which they are now excluded. The case calls upon us to determine which is the existing office. The act of April 23,1904, assuming its validity, abolishes the former hoards and vests the functions of both in the single board in whose favor the restraining order is sought. It is not denied that the defendants, members of the former hoards, are entitled to hold the offices to which they were appointed, if the offices continue to exist; and it is conceded that the defendants who were appointed under the act of April 23,1904, are the only persons in the office which it creates. The public interests require that these functions he performed, and to say that they should not he performed by those who were appointed under the recent act would deny effect to their prima facie title and anticipate the conclusion that the act is invalid. The action which the motion invokes is, therefore, not an interference with the performance of official duty by those who have the right prima facie, hut it is for their protection in that performance from interference by rival claimants of the authority, whose right is yet to be made apparent. That the courts will afford such protection to an officer having the apparent title is shown by numerous decisions of this court and others, which are cited in the brief of the attorney general.

■ It is urged that we are without authority to make-the order which the motion contemplates. The present action is a resort to our original jurisdiction. That we have not original jurisdiction of suits for injunctions is entirely clear. If the language of section 5573, Revised Statutes, should be thought appropriate to confer it, the effect to be given to that section would, nevertheless, be indicated by section two of article four of the constitution, which ordains-that “it (the Supreme Court) shall have original jurisdiction in quo warranto, mandamus, habeascorpus and procedendo, and such appellate jurisdiction as may be provided by law.” Applying to this grant the maxim, Expressio unius est exclusio alterius, the conclusion is irresistible that the general assembly cannot add to the enumerated subjects of our original jurisdiction. Marbury v. Madison, 1 Cranch, 137; Kent v. Mahaffy, 2 Ohio St., 497. But our original jurisdiction in quo warranto is not doubted, and we have to inquire whether the desired order may be made in its exercise. In the consideration of that question the case of Yeoman v. Lasley, 36 Ohio St., 416, is suggestive. The proceeding in this court was-for the reversal of a judgment which the district, court had rendered in a suit for the foreclosure of a mortgagor’s equity of redemption. An injunction was not sought in the original suit, nor was a right-to that relief presented to the court below or considered by it. The question for ultimate determination by this court was whether the district court had erred in the decision of the case which had been presented to it. But this court, upon an application originally made here, allowed an injunction in favor of one of the parties to the proceeding in error and. against his adversary for “the protection of'the rights of the parties in the suit or matter under review, on error. ” It is true that it is said in the opinion that in allowing the injunction the court was exercising appellate, and not original jurisdiction. But as it was not a part of the jurisdiction invoked by the suit and exercised or refused by the district court, it •could be regarded as appellate jurisdiction only because; the order to be made was necessary to the proper and effective exercise of the appellate jurisdiction to reverse the judgment which the district court had rendered in the suit to foreclose. It has not been suggested, and it obviously could not be maintained, that our authority for the exercise of the original jurisdiction which, the constitution confers upon us is less complete than for the exercise of the appellate jurisdiction which we' derive from the statutes. The pertinent inference from the case cited is that a court has authority to make any judicial order which, from the nature of the case, may be necessary to the effective exercise of its jurisdiction, whether original or appellate. Jurisdiction is the power to hear and determine the subject matter in controversy between the parties to a suit. Authority to determine is exercised in the form of judgments, decrees, and orders, and it implies power to make all such orders- as may be appropriate to the case presented and necessary to give practical effect to the final judgment, as well as to preserve the subject of the action, pending the final determination of the case. In Kerr et al. v. Trego, 47 Pa. St., 292, it is appropriately said that “all bodies, except the legislature, are under law, and therefore for all transgressions of the law, are subject to tbe judicial power established by the constitution.” This is a public action, and its subject is the administration of the laws which provide for the conduct of popular elections. The more limited subject of inquiry started by this motion is the administration of those laws pending the case in quo warranto. Since the principal action involves its incidents, the court of common pleas, which alone has original jurisdiction of suits for injunctions, cannot with propriety, exercise that jurisdiction with respect to the subject of the action which is pending here; and it is entirely clear from the decisions- already adverted to, as well as from the obvious force of the reasons involved, that those having the apparent right should be protected in the exercise of these public functions. The power to grant an ancillary injunction for that purpose is inherent in the court which has jurisdiction of the principal subject. The case is novel only in the application of familiar principles of obvious necessity.

Motion granted.

Spear, C. J., Davis, and Crew, JJ., concur.

Summers, J.

(dissenting). I am unable to concur in the opinion that this is a discovery and not an invention. Quo warranto is of ancient origin, but no precedent for the conclusion reached is cited and I suspect none can be found, and for the very good reason that the proceeding is legal and not equitable, and authority to allow an injunction incident exclusively to chancery jurisdiction. The question is not affected by the code of civil procedure for the reason that original jurisdiction in quo warranto is conferred on this court by the constitution, which was adopted prior to the adoption of the code, and the jurisdiction so conferred is the common law jurisdiction in a proceeding in quo warranto, as it existed at the time of the adoption of the constitution. Clayton v. Freet, 10 Ohio St., 544; Hager v. Reed, 11 Ohio St., 626; Hartt v. Harvey, 32 Barb., 55, 66.

State ex rel. Campbell et al. v. Wolfenden et al., 74 N. C., 103, was a proceeding in the nature of a quo warranto and an injunction was asked until the final hearing of the case. The question of authority in such a proceeding to grant an injunction is not considered, but I suspect from Patterson v. Hubbs, 65 N. C., 119, that the question is settled by statute and a case based upon a statute is, of course, not a precedent. The opinion proceeds upon, the assumption that the power has not been conferred by statute and is to the effect that it could not be.

The question was made in The State v. Durkee et al., 12 Kan., 308, and if decided, the case supports this dissent.

The People v. Draper, 24 Barb., 265, also supports it, unless a distinction is to be taken between a case involving title to an office and one involving the existence of an office.

It is averred in the petition that the defendants, the Board of Deputy State Supervisors and Inspectors of Elections, have the right to the property belonging to that office, consisting of ballot boxes, books, papers, etc., and that they demanded possession of the same from the other defendants, assuming to be the other boards therein described, which was by them refused, and tha,t they unlawfully retain possession of the same and usurp and intrude into and- unlawfully hold the said offices of such-boards; and the prayer is that-the defendants/claiming to be the board of deputy state supervisors,'and the defendants, claiming to be the city board of elections, be ousted from said offices and that the defendants, claiming to be the board of deputy state supervisors and inspectors of elections, be inducted into that office, and to its rights, privileges, and franchises, together with the property appurtenant to said office, that is, to the property previously described and averred to be in the possession of the other defendants, and the motion is to restrain the defendants, members of the first mentioned board, from interfering with the last mentioned and to restrain and enjoin them from withholding or detaining from the defendants, members of the last mentioned board, any of the property described in the petition.

The case differs in no respect from those referred to in the opinion.- In none of them has a court of equity found that a prima facie title gave it any power to interfere by a mandatory injunction directing a surrender of property, but on the. contrary, whenever, it has interposed, it has been in the exercise of its clearly defined jurisdiction to protect the possession of property.

Hullman v. Honcomp, 5 Ohio St., 238, and others, are to the effect that generally,, even a court of equity will not interfere. . .

That the legislature may confer power upon the court incident to its original jurisdiction to allow- an injunction finds support in Yeoman v. Lasley, 36 Ohio St., 416, but not that the power is inherent.

That the remedy hj quo warranto is not as speecly or as efficacious as is desirable is not new (Cochran v. McCleary, 22 Ia., 75, 90), and in some of the states, for instance Tennessee and Maine, other remedies have been provided by statute.

In Prince v. Skillin, 71 Me., 361, 366, Appleton, C. J., says: “By quo warranto the intruder is ejected. By mandamus the legal officer is put in his place. The act c. 198, accomplishes by'one and the same process the objects contemplated by both these results. It ousts the unlawful incumbent. It gives the' rightful claimant the office to which he is entitled. It affords a speedy and effectual remedy instead of the tedious and dilatory proceeding of the common law. ’ ’

My excuse for indicating the reasons for my dissent is that the court being the exclusive judge of its own jurisdiction, ought not to exercise any hot «clearly possessed:


author: Davis, J.

text:
    Ohio Farmers' Insurance Co. v. Wilson.

      Policy of fire insurance — Issued with condition — That policy is void if premium or note given therefor — Is unpaid for thirty days at time of loss — Such condition is valid — Neither demand nor notice t>y company necessary.

    Where a policy of insurance is made and accepted upon the express condition that the “entire policy shall be void * * * if the premium, or any note given therefor, shall have been due and unpaid for thirty days at the time any loss or damage shall happen to the property insured,” there being no waiver of the condition, such policy will immediately be void if the premium or any note given therefor shall not be paid within thirty days after payment thereof is due; and neither demand of payment nor notice of intention to insist on the forfeiture is necessary on the part of the insurer. Insurance do. v. French, 30 Ohio St., 240, distinguished.'
    (No. 8435
    Decided June 21, 1904.)
    Error to the Circuit Court of Mahoning county.
    Defendant in error brought an action against the plaintiff in error to recover for a loss, under a policy which contained the following stipulations: “This entire policy shall be void * # * if the premium,, or any note given therefor, shall have been due and unpaid for thirty days at the time any loss or damage shall happen to the property insured hereby.”' Upon the trial it appeared that a note was given for the premium on this policy, and that the same had not been paid, although it was more than thirty days past due; nor was there any offer to pay except that after the fire had occurred a check for the face of the note was sent to the company’s agent, which was returned. The court instructed the jury that the policy was void by its terms, the proof being con-elusive that a note had been given for the premium, that it was unpaid for more than thirty days at the time of the loss, and that there was no evidence whatever as to waiver of this provision of the policy; and the court thereupon directed the jury to return a verdict for the defendant. A verdict was accordingly returned for the defendant and a judgment rendered thereon. • On petition in error the circuit court reversed this judgment and remanded the cause to the court of common pleas for a new trial. The insurance company now prosecutes a petition in error in this court to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.

      Mr. Lee Elliott and Mr. D. J. Hartivell, for plaintiff in error.
    There being no controversy on facts we contend that the policy by its terms had become void at the time the loss occurred and that the trial judge rightly directed the jury to return a verdict for the defendant. We think this court has passed directly on this point in Matthews v. Insurance Co., 40 Ohio St., 135.
    In Sanderson Robert v. Insurance Co., 13 Re., 668, 1 Disn., 355, the court clearly and ably discusses all the questions involved in the case at bar.
    Both of these cases cited directly support our position that where the policy stipulated that it shall be void in case of default in payment of the premium or note given therefor the policy becomes void at the time the default occurs without any affirmative act on the part of the insurance company or notice that it intends to insist on forfeiture and that no recovery can be had for a loss occurring during such default unless the company does some act waiving the forfeiture.
    The rule contended for is supported by all the leading text writers on the subject of insurance. May on Insurance (2 ed.), sec. 345; Joyce on Insurance, 1106; Biddle on Insurance, 908; Ostrander on Insurance, sec. 92, p. 286.
    The circuit court in deciding this case felt that they were bound by the ruling of the court in Insurance Co. v. French, 30 Ohio St., 240. This case was not referred to in Matthews v. Insurance Co., supra, although the last named case was decided several years afterwards, and if the French case bears the construction placed, upon it by the circuit court it is in direct conflict with Matthews v. Insurance Co. It seems to us that the case of Insurance Co. v. French did not present the precise question raised in the case at bar.
    Probably the latest authoritative expression on the question under consideration is the case of Insurance Co. v. Lewis, 187 U. S., 335.
    But again the conclusion Insurance Co. v. French, 30 Ohio St., 240, and its approval in Thompson v. Insurance Co., 104 U. S. 252, are cited. It was contended in the latter case that the mere taking of notes in payment of the premium was, in itself, " .a waiver of the conditional forfeiture, and Insurance Co. v. French, 30 Ohio St., 240, was cited to support the contention.
    The cases cited in the opinion show that the Supreme Court of the United States has uniformly maintained the rule contended for. It is also supported by the weight of authority in the state courts.
      Howe v. Insurance Co., 93 N. Y., 70; Roehner v. Insurance Co., 63 N. Y., 160; Baker v. Insurance Co., 43 N. Y., 283; Patch v. Insurance Co., 44 Vt., 487; Lewis v. Insurance Co., 44 Conn., 72; Pitt v. Insurance Co., 100 Mass., 500; State v. Insurance Co., 123 Mass., 113; Garlick v. Insurance Co., 44 Ia., 553; Critchetts v. Insurance Co., 53 Ia., 404; Am. Ins. Co. v. Leonard, 80 Ind., 272; Willcutts v. Insurance Co., 8 Ind., 300; Bulger v. Insurance Co., 63 Ga., 328; Mobile L. Ins. Co. v. Pruitt, 74 Ala., 487; Continental Insurance Co. v. Daly, 33 Kas., 601; Quinn v. Insurance Co., 28 La. An., 135; Knickerbocker L. Ins. Co. v. Dietz, 52 Md., 16; Webb v. Insurance Co., 63 Md., 213; McIntyre v. Insurance Co., 52 Mich., 188.

      Mr. Frank Jacobs and Mr. J. R. Johnston, for defendant in error,
    If the common pleas court was right, then this case should be reversed, if wrong it should be affirmed. We contend that the common pleas court was in error in almost every aspect of the case.
    Plaintiff below was entitled to have the question of fact, as to whether the note was received in payment of the premium, submitted to the jury. If authority for this is deemed necessary, we simply call attention to the elementary principles governing jury trials, together with Bank v. Green, 40 Ohio St., 439; Cole, for Eaton, v. Kerr, Wright, 675.
    The condition in the policy relied upon was void for want of mutuality. There is no provision in the clause which would invalidate the note. Bouton v. Life Ins. Co., 25 Conn., 542; Jacobs v. Life Ins. Co., 5 Bigelow, 48; Goit v. Insurance Co., 25 Barb., 189.

      The condition was waived. The note was held by the company for more than two years and no notice of cancellation given or forfeiture declared by plaintiff in error. It had the option of declaring a forfeiture, but did not do so. Goodenow v. Tappan, 1 Ohio, 69. Forfeitures are not favored, and a provision for forfeiture will be strictly construed against the party in whose favor it is made. Insurance Co. v. French, 30 Ohio St., 240; Webster v. Insurance Co., 53 Ohio St., 558; Lessee of Bond v. Swearingen, 1 Ohio, 395; Lessee of Boyd v. Talbert, 12 Ohio, 212; Smith v. Whitbeck, 13 Ohio St., 471; West et al. v. Insurance Co., 27 Ohio St., 1; Presbyterian Church’s Lessee v. Picket et al., Wright, 57.
    The note was received as payment.
   Davis, J.

The parties had the legal right to agree, as they did do in this case, that the entire policy should be void if the premium, or any note given therefor, should have been due and unpaid for thirty days at the time the loss occurred. Their agreement was not merely that the policy should be void if the premium were not paid; but that it should also be void if any note given in payment of the premium should not be paid. It was agreed also that on the happening of that condition, the entire policy should be void, not that the insured should have the option to declare it void, or that it should become void, or be declared void thereafter upon any subsequent conditions. It was therefore not necessary for the insurer to demand payment of the note, nor to give to the insured any notice of intention to stand on the forfeiture. The contract of insurance became cancelled by the mere failure of the insured to pay the premium note within thirty days after its maturity. Iowa Life Ins. Co. v. Lewis, 187 U. S. Rep., 335; May on Insurance (2 ed.), sec. 345/; Joyce on Insurance, sec. 1106. As this condition in the policy is made for the protection of the insurer it could he waived; but there is nothing in this case which tends'to show a waiver by the insurance company. We know of no ruling in this court which is in conflict with our view of this case. Indeed, there are several which are in complete accord with it, although in none of them is the precise question here made formally decided. For example, Union Mut. Ins. Co. v. McMillen, 24 Ohio St., 67. In that case as in this (see statement of case) there was a condition, which was contained in a special agreement on the margin of the policy, that if any note be given in payment of premium and such note should not be paid according to the provisions thereof, then the policy should “become immediately void,” etc. This very explicit condition, for some reason which is not apparent, does not appear to have been mentioned either in the argument or in the decision, and the case was decided upon another condition appearing in the body of the policy; but it seems almost certain that if the case had stood upon the single condition as to the payment of the note, the judgment must have been the same; for White, J., discussing the question whether .the policy was a subsisting obligation at the time of the death of the insured, says:

“In considering the first question it is to be observed that the body of the policy contains a provision which declares that the policy is made and accepted upon the express condition that if the amount of any annual premium is not fully paid, on the day provided for, then the policy shall become hull and void, and wholly forfeited; and also that no agent of the company, except the president or secretary, can waive such forfeiture, or alter that or any other condition of the' policy.
“The parties were at liberty to contract in their own terms; and where no rule of law or of public-policy is contravened, the terms thus employed must furnish the standard for determining their rights under the contract.
“By the terms of this policy, full payment of the annual premium on the day provided for, was necessary to its renewal or continuance. As a consequence of the failure to make such payment, it is-expressly declared that the policy shall become-‘null and void, and wholly forfeited.’ Hence, if there was no authorized extension of -the time of payment, the policy had ceased to be operative long before the termination of the life insured.”

Another case is Insurance Co. v. Robinson, 40 Ohio St., 270, which differs from this case in no essential particular. The default in that case was in the payment of interest on outstanding premium notes; but the same condition covered the case of non-payment of the notes. Still another case is Matthews v. Insurance Co., 40 Ohio St., 135, cited and commented upon in the brief for plaintiff in-error.

But it is said that a different doctrine is laid down in Insurance Co. v. French, 30 Ohio St., 240, and that it was the controlling factor in producing the judgment of the circuit court in this case. The real controversy in that case was whether the insurer had waived the forfeiture or by its course of business: •with the insured had estopped itself from setting up' the forfeiture under the contract. That issue was-fairly submitted to the jury and the court was notable to say that the jury had clearly erred in finding" a verdict for the insured, and that was the foundation of the judgment .affirming the judgment; of the court below. In that the court was undoubtedly right; but it is in the reasoning by which that conclusion was reached that the confusion as to the meaning of the court arises.. It was pointed out in the opinion that the note which was given for premium contained a stipulation that “if not paid at maturity said policy is to be null and. void,” but that jhe policy itself contained no such provision. It cohtained only a clause that it should be void for non-payment of the premium. It seems, to have been the view of the judge who wrote the-opinion that payment of the premium by a note satisfied the condition of the policy and that non-payment of the note not being provided for in the policy but only in the note itself, that clause was not a part of the policy and its breach would not, therefore, of itself, avoid the policy, and that it was necessary for the insurer to do something indicating its intention to insist upon the forfeiture. It is not very clear that such is the correct view. Indeed it seems to us. that the reasoning of the Supreme Court of the' United States in the ease above cited is more satisfactory. Counsel for the plaintiff in error in support of their contention that the policy was void, had cited Union Mut. Life Ins. Co. v. McMillen, supra, with other eases. The court however, declined to be controlled by them for' the reason that there was an obvious difference between those cases and the case then in hand, viz.: “In most of the cases which have been cited in argument the policy contained a clause, that it should be void upon non-payment of the premium, or any note .given for such premium. This policy, however, contains no clause of avoidance for the non-payment of notes for premium. ’ ’

But Insurance Co. v. French finally turned upon the question of waiver and the syllabus, for which alone the concurring judges are responsible, must be interpreted in the light of that fact and of the particular circumstances of that case.

It is important to note in this connection another remark in the opinion in Insurance Co. v. French, because it conclusively shows that in the mind of the •court the crucial point of that ease was the question •of waiver, viz.: “Nor do these views conflict with Robert v. Insurance Co., 1 Dis., 355, a case which counsel seem to' think decisive of this. In that case the court admit that subsequent acts may prevent fhe avoidance of a policy, quoting some of the authorities already cited. ’ ’

We do not, therefore, regard Insurance Co. v. French as in any way applicable to the case now in hand, nor as conflicting with any former utterances •of this court or with the law of this case as we have stated it above.

The judgment of the circuit court is accordingly ■reversed and that of the court of common pleas

Affirmed.

Spear, O. J., Shauck, Price, Crew and Summers, JJ., concur.