author: Davis, C. J. Spear, J.

text:
    Snider’s Exrs., etc., et al. v. Young et al.

      Same plaintiffs in joint judgment — Made parties defendant in error — Appearance effected hy service within statutory limit —Proceedings deemed commenced as to all parties at interest — Statute of limitations — Court may add names of omitted defendants — Court proceedings — Pleadings.
    1. When some of tbe plaintiffs in a joint judgment are made parties defendant to a petition in error to reverse tbe judgment and their appearance in the proceeding has been effected by service of process or otherwise, within the statutory limit for commencing proceedings in error, the proceedings must be deemed commenced, not only as to such defendants, but also as to all other persons united in interest with them, so as to stop the running of the statute of limitations in favor of such other persons who are not made defendants.
    2. The court in such case may amend the proceedings by adding to the petition in error as defendant thereto the names of the persons who had been omitted, and causing service to be duly made on such persons, although application for such amendment has not been made, or such defect of parties has not been brought to the notice of the court, until after the statutory period for commencing proceedings in error has elapsed.
    3. The second and third propositions of the syllabus in Smetters v. Rainey, 14 Ohio St., 287, are overruled.
    (No. 9291
    Decided May 23, 1905.)
    Error to the Circuit Court of Clark county.
    The defendants in error, among whom is one John Shuman, commenced an action in the court of common pleas of Clark county to contest the will of Martin Snider, deceased, the plaintiffs in error here being defendants there; and on the twenty-ninth day of February, 1904, a judgment was rendered by said court of common pleas, upon a verdict theretofore rendered, annulling the said will and the probate thereof, and adjudging the costs against the defendants.
    On the twenty-third day of April, 1904, the defendants filed a petition in error in the circuit court of Clark county to reverse the said judgment; but by mistake the name of John Shuman, one of the plaintiffs recovering the judgment below, was not included among the defendants to the petition in error. The defendants in error named in the petition in error, on the same day entered their appearance.
    On the twelfth day of July, 1904, in vacation, the plaintiffs in error filed their application for leave to amend the petition in error by making the said John Shuman a defendant in error.
    On December 5, 1904, the defendants in error moved to dismiss the case, for the reason that the court had no jurisdiction to grant relief in the case because one of the plaintiffs in the court below (John Shuman) had not been made a party to the proceeding in error, either as plaintiff or defendant; and on the ninth day of December, 1904, the circuit court refused leave to amend the petition in error by making John Shuman a party defendant, granted the motion of the defendants in error to dismiss the case for the reason stated in the motion, and rendered a judgment against the plaintiffs in error for the costs. This proceeding in error is prosecuted in this court to reverse that judgment of the circuit court. '

      Mr. F. M. Hagan; Mr. John L. Zimmerman and Mr. W. W. Witmeyer, attorneys for plaintiff in error.
    Counsel for defendants in error contend that a proceeding in error is not commenced even against persons who in the action below are united in interest, unless they are all served with summons or enter their appearance before the statutory period fixed for the commencement of a proceeding in error.
    Counsel seem to ignore section 4987, Revised Statutes, construed in Bechtold v. Fisher, 5 Circ. Dec., 685; 12 C. C. R., 559, to the effect that this section, by analogy, applies to proceedings in error. To the same effect, the supreme court of Kansas has construed a like provision of the code of that state. Barber Asphalt Co. et al. v. Botsford et al., 50 Kan., 331 (31 Pac. Rep., 1106).

      Railroad Co. v. Bailey, 70 Ohio St., 88, is really in point, though specially referring only to section 5114, Revised Statutes, as applicable to proceedings in error.
    Counsel for defendants in error rely for their contention mainly on the case of Smetters v. Rainey, 14 Ohio St., 287, and of course if that case is to stand as authority here, their contention is sound. But it appears in tracing the history of the case from the time the decision in it was made to the present, that it is entitled to but little, if any, weight because though approved in some instances it has been disapproved in other cases and severely criticised, limited and distinguished in others, though never technically overruled. Moreover, in other cases, that of Buckingham v. The Bank, 21 Ohio St., 131, a decision is made radically opposite in doctrine. Briefly tracing the history of Smetters v. Rainey, we find the following facts: In Robinson v. Orr, 16 Ohio St., 285, it is cited, but not on the point here in question. In Bradford v. Andrews et al., 20 Ohio St., 208, a proceeding for the contest of a will, the court holds in conflict with Smetters v. Rainey though not feeling itself required to overrule the same, Judge Welsh, however, announcing that it ought to be overruled whenever the case should be proper therefor. In Jones v. Marsh, 30 Ohio St., 20, Smetters v. Rainey is expressly approved. In Hempy v. Ransom, Smetters v. Rainey is cited, but not on this point. In King v. Bell, 36 Ohio St., 460, Smetters v. Rainey is cited in support of a proposition that all parties to a judgment should be parties in error, but this proposition is not in conflict with the point we seek to make in the present case. In Secor v. Witter, 39 Ohio St., 218, Smetters v. Rainey is severely distinguished.
    In Bank v. Green, 40 Ohio St., 431, Secor v. Witter is followed and approved and the court says that on the question of jurisdiction, Smetters v. Rainey is not sound because the defendants in error in Bank v. Green were so united in interest that service of a summons upon one, prevented the running of the statute as to the other and that had the district court been informed of the defect of parties, the missing person could and should have been brought in before the final disposal of the case, citing Buckingham v. The Bank, 21 Ohio St., 131. Here Smetters v. Rainey was overruled to all intents and purposes, the only addition which could have made such overruling more emphatic would have been the use of the word overruled. Yet strange to say, in Burke v. Taylor, 45 Ohio St., 444, the court in the case, the entire record of which is comprised within ten lines, approves Smetters v. Rainey and Jones v. Marsh without giving reasons therefor. Yet three years later in Wangerien v. Aspell, 47 Ohio St., 250. Smetters v. Rainey is treated as a case which had been generally criticised and the application therefore limited whenever under consideration by the court. "When we substitute section 4987 of the present code for section 20 of the old code, we have the court thus announcing the very principles for which we contend in this controversy. Well might the court say in Railway Co. v. Bailey, 70 Ohio St., 88, in which the last reference to Smetters v. Rainey occurs, that it “had been adversely criticised,” yet at the same time holding with it virtually that the code provisions are applicable to proceedings in error where there are no special provisions. In the light of all these decisions, what weight should now be given to Smetters v. Rainey? It is plainly against the liberal tendency of the practice in Ohio. It defeats substantial justice.
    Opposing counsel contend that section 4987, Revised Statutes, does not apply to any person not formally made a party defendant within the period of limitation.

      We think this is a distinction without substance. If the action is commenced by service upon persons united in interest with others not served and not formally made defendants, every purpose of justice is subserved by bringing them in at any time after-wards, either before or after the period of limitation expires.
    Opposing counsel insist that all parties to a joint judgment must be before the reviewing court in order that it may either affirm or reverse the same, or at least that all persons who are favored by the judgment of the lower court must be defendants in error, to authorize the reversal of the judgment.
    Whether this is true in all cases may well be doubted, but the question is immaterial to the present controversy, as, if our view is correct, John Shuman was a party to the record in the proceeding in error, or if such was not the case, the right existed to make him a party defendant, prior to the rendition of the judgment. ’The affidavits filed herein for plaintiffs in error show that the omission to name John Shuman as a party defendant in the case below was a mere clerical error, and that the intention of counsel for plaintiff in error was to make him a party defendant.
    But opposing counsel in the present case rest their contention on the alleged principle that all necessary parties must be in court within the period of limitation in order to vest the court with jurisdiction.
    If this is true, then it is immaterial how persons come in afterwards whether co-plaintiffs or co-defendants, voluntarily or involuntarily.
    If a necessary party has been omitted by mistake and the court has acquired jurisdiction, the court in which the proceedings in error are to be determined, can bring into court the necessary party, even after the time has expired for filing the original petition. Bradford v. Andrews, 20 Ohio St., 208; Secor v. Witter, 39 Ohio St., 218; Buckingham et al. v. Bank, et al., 21 Ohio St., 131; Bank v. Green, 40 Ohio St., 431; Wangerien v. Aspell, 47 Ohio St., 254.
    The interests of John Shuman in the outcome of the petition in error were identical with the other defendants and were protected and defended in the same way. No individual defense could have been made' in this case which would not at the same time involve the common interests of all the defendants in error. And the weight of the testimony from the affidavits, shows that John Shuman’s interests were looked after in exactly the same way as the interests of the other defendants in error, and in fact they could not have been protected with any other than the same means that were used for the other defendants in error. And all parties, including John Shuman and Keifer & Keifer, believed he, John Shuman, was in court, the same as the other defendants, until it was accidentally discovered that his name had been inadvertently omitted by the scrivener.
    It is contended that if John Shuman had been named as a party defendant, the case would have been different. In the case of Ewing v. Hollister, 7 Ohio, pt. 2, 138, the statutes required that infants be made defendants, the court say: “That, none but parties or privies can prosecute a writ of error will not be denied. But if I rightly understand the assignment, counsel are mistaken. The error complained of is this, not that the plaintiffs are not parties to the record, but that they are not parties to the petition. Were they not parties to the record, there might be some difficulty in the case, as there is no extrinsic evidence to show that they are the heirs of the intestate, or that they had ever any interest in the land. ’ ’
    And the court further say on page 144: “It is objected, however, that these plaintiffs were not made defendants in the petition. True, they were nor, nor were they subsequently made defendants by a formal amendment to the petition. But that which is equivalent was done. They .are parties defendant upon the record, made so by' the voluntary appearance of one who had the custody of their persons and property, and whose duty it was to attend to their interests. They had a day in court, and the law under which the proceedings were carried on has been substantially complied with. It was so decided by this court in the case of Lessee of Ewing v. Rigby, 7 Ohio, pt. 1, 198, in which this identical question was raised and discussed.”
    This case (7 Ohio) is approved in Snerely v. Lowe, 18 Ohio, 368; Nichols v. State, 71 Ohio St., 335.
    Section 3713, Revised Statutes, states in proceedings in error “a service on the attorney in the original case shall be sufficient.” The attorney in the original case is made to stand for the parties in whose service he acted, and a warning to such attorney is sufficient notice.

      Is John Shuman in court¶ He says in his affidavit “he was a defendant in error and Keifer & Keifer represented him and appeared for him and in his behalf. ’ ’
    Keifer & Keifer thought they represented him, for in their letter to the circuit court, they said: ‘ ‘ They did not know which name was omitted. ”
    ' Keifer & Keifer argued the case orally and filed a brief for Catharine Young et ah, in ‘which they say the defendants in error were the plaintiffs below.
    It is not denied but that the court must look to the record to determine if all the parties below are parties to the suit in error. If this is the case, then the court can look to the records to see who was represented by Keifer & Keifer.
    In this case the circuit court did not decide the case upon its merits. The case was submitted to them on the fifth of May, 1904. The time for serving summons in error in ordinary cases expired June 30, 1904, but upon motion filed December 5, 1904, dismissed the case for want of jurisdiction.
    In a case involving large interests, where the attorney of record below appeared in the circuit court and argued the case on its merits on the fifth of May, within the time when if any defects had been discovered they could have been remedied, where the party’s interests were fully protected, it is not in the interests of justice to dismiss an action of this kind for want of jurisdiction.

      Messrs. Keifer & Keifer, attorneys for defendants in error.
    An error proceeding in Ohio is an independent action — not like an appeal which vacates the judgment appealed from. Swan v. Railroad Co., 5 Dec., 297; 3 N. P., 225; Hammond v. Hammond, 21 Ohio St., 626.
    The right to prosecute error exists only by statute; and proceedings in error are to be strictly construed. Young v. Shallenberger, 53 Ohio St., 302; Burke v. Taylor, 45 Ohio St., 444; Bechthold v. Fisher, 5 Circ. Dec., 685; 12 C. C. R., 561; Taylor v. Boyd, 3 Ohio, 354; Page v. McConville, 6 Circ. Dec., 631; 10 C. C. R., 321.
    The question here is one of jurisdiction. With Shuman not a party the circuit court “acquired no jurisdiction of the case and the petition should be dismissed.” Bowen v. Bowen, 36 Ohio St., 312; O’Donnell v. Downing, 43 Ohio St., 62; Piatt v. Sinton, 35 Ohio St., 282; Jones v. Marsh, 30 Ohio St., 20; Smetters v. Rainey, 14 Ohio St., 287; Kreis v. Drott, 67 Ohio St., 516; Loewenstein v. Rheinstrom, 10 Dec., 587; 8 N. P., 235; Paving Co. v. Botsford, 50 Kan., 331.
    “A judgment is a unit;” it therefore cannot be reversed as to some and allowed to stand as to others who are parties to it. Especially is this true as to a judgment setting aside a will. Railway Co. v. Burke, 54 Ohio St., 140; Buckingham v. Bank, 21 Ohio St., 131; Robinson v. Orr, 16 Ohio St., 287.
    The claim that negligence is an excuse for not making the necessary parties to a petition in error is a novelty. The neglect to make‘one necessary party a defendant is as fatal as to fail to make any larger number defendants. As well might a party ask to have the four months’ limitation set aside on the plea that he intended to have brought a suit within the period, but failed through his own neglect. Even equity does not relieve against negligence. Elliott v. Elmore, 16 Ohio, 27; Pollard v. Collier, 8 Ohio, 43; Green v. Dodge, 6 Ohio, 80, 83; Dorflinger v. Coil, 2 Ohio, 311.,
    The thing a party asks to be relieved from must be “unmixed with negligence on his part.” Duncan v. Lyon, 3 John. Ch. R., 356. •
    A diligent endeavor of a plaintiff in an error case to have a summons duly issued and served is held necessary. Railroad Company v. Ambach, 55 Ohio St., 553.

      The circuit court had no jurisdiction. The four months’ limit expired June 30, 1904. Section 6723, Revised Statutes.
    After that time, as we have seen, it would have availed nothing to make John Shuman a party in the circuit court.
    Shuman is not a party, “the court acquired no jurisdiction of the case and the petition should be dismissed.” Young v. Shallenberger, 53 Ohio St., 291; O’Donnell v. Downing, 43 Ohio St., 62; Burke v. Taylor, 45 Ohio St. 444; Veach v. Kerr, 41 Ohio St., 179.
    All interested parties to the judgment are necessary to give the reviewing court jurisdiction over the subject-matter. Jones v. Marsh, 30 Ohio St., 20. “It is error to reverse or modify a judgment without having the parties before the court, affected by such reversal or modification.” Tod v. Stambaugh, 37 Ohio St., 469. The last two cases have never been questioned, but often followed.
    The Smetters v. Rainey, 14 Ohio St., 287 (fully in point, all agree), has been, on some points, growled at in obiter dictum, as to its application to particular cases, but it has never been overruled, and it has been followed and approved in many of the cases cited, supra, and in numerous others. Kreis v. Drott, 67 Ohio St., 516; Robinson v. Orr, 16 Ohio St., 284; Hammond v. Hammond, 21 Ohio St., 626; Hempy v. Ransom, 33 Ohio St., 312; King v. Bell, 36 Ohio St., 460; Abair v. Bank, 2 Circ. Dec., 165; 3 C. C. R., 290; Page v. McConville, 6 Circ. Dec., 631; 10 C. C. R., 316; Loewenstein v. Rheinstrom, 10 Dec., 587; 8 N. P., 235.

      In the last case the superior court in general term, Cincinnati, reviews Smetters v. Rainey and other cases, finding that ease has never been overruled, and, as a result, formulates the following syllabus: Loewenstein v. Rheinstrom, 10 Dec., 587; 8 N. P., 235; Kreis v. Drott, 12 Circ. Dec., 727; 21 C. C. R., 790.
    And the Lucas circuit court (Scribner, J.) made a still fuller review of all the then cases on the subject, reaching the conclusion Smetters v. Rainey was sound, and had never been reversed. Abair v. Bank, 2 Circ. Dec., 165; 3 C. C. R., 290; Page v. McConville, 6 Circ. Dec., 631; 10 C. C. R., 321; Werk v. Christie, 6 Circ. Dec., 255; 9 C. C. R., 439; Lumber v. Marcy, 7 Circ. Dec., 444; 14 C. C. R., 612; Ervin v. Mathers, 9 Circ. Dec., 847; 18 C. C. R., 199; Kreis v. Drott, 12 Circ. Dec., 727; 21 C. C. R., 790.
    The judge in Bradford v. Andrews, 20 Ohio St., 208, for himself, threatens Smetters v. Rainey. The case was not one in error where it is necessary to have all the parties before the court to give it jurisdiction,» its jurisdiction being wholly dependent on the statute.
    The syllabus of Bradford v. Andrews contains nothing on the question, and the judge says the cases are “not identical, and the question need not be passed on.”
    The judge in Secor v. Witter, 39 Ohio St., 226, doubts Smetters v. Rainey, and says “the principle there stated should not be extended,” and that the facts of that case are unlike the one under consideration. There was no want of parties in the SecorWitter case — all the defendants were before the court, and the only question was whether one of the partnership bringing the suit could be allowed to be named. The suit was brought “in behalf of all who were members of the firm.” The court had jurisdiction whether -he was- a party individually or not. Smetters v. Rainey is, in that case, only distinguished to show it does not prohibit amendments where jurisdiction has attached.
    In the case of Bank v. Green, 40 Ohio St., 431, the judge in the opinion seems to think Smetters v. Rainey not sound where the defendants in error “were so united in interest that service of a summons upon one prevents the running of the statute as to the other.” But even this principle, in the light of the Ohio cases, is not sound.
    And we have seen such a rule would not apply, if sound, in our case. And the judge says the court would have followed Smetters v. Rainey if it appeared the absent party was, in any way, injured by the reversal.
    The case of Wangerien v. Aspell, 47 Ohio St., 250, in which Smetters v. Rainey is mentioned, did not raise any question of want of parties defendant.
    There is no case to be found overruling Smetters v. Rainey; and in all the cases where it was really applicable, it has been followed. It has become the habit now to decide cases on its authority. Kreis v. Drott, 67 Ohio St., 516.
    It is too late for counsel to ask that Smetters v. Rainey and the long line of cases holding the same principle should be overruled.
    The holdings in the United States courts are in harmony with the rule that in error proceedings, all parties to the judgment below must be joined, or the proceeding must be dismissed. Hampton v. Rouse, 80 U. S., 187; Simpson v. Greeley, 87 U. S., 152; Masterson v. Howard, 10 Wall., 416; Williams v.
      Bank, 11 Wheat., 414; Terry v. Abraham, 93 U. S., 38; Trust Co. v. Clark, 83 Fed. Rep., 230; Elevator Co. v. Nichols, 91 Fed. Rep., 832; Loveless v. Ransom, 107 Fed. Rep., 626.
    The case last cited, like others, holds the want.of parties may be taken advantage of at any time.
    And snch is the uniform holding in the courts of states other than Ohio. A very few of the many are here cited. Bozeman v. Cale, 139 Ind., 187; Bank v. Reid, 154 Ind., 54; Pierce v. Downey, 56 Kan., 250; Court v. Howard, 76 Ky., 101; Campdoras v. Brooks, 49 Pac. Rep., 628; Bank v. Iron Co., 49 Pac. Rep., 159; Cattle Co. v. Bank, 52 Pac. Rep., 76 (960); Manufacturing Co. v. Dry-Plate Co., 75 N. W. Rep., 1099; Schrage v. McCoy, 63 N. E. Rep., 50. And see, collated cases from different states. 2 Am. Digest, pp. 2138-9, etc.
   Davis, C. J.

A question is made in the record and argued by counsel, whether Shuman had entered his appearance to the petition in error in the circuit court. We think that he did not enter his appearance; and therefore the sole question in the ease is, whether or not the circuit court erred in refusing leave to the plaintiffs in error to make Shuman a party defendant, and in dismissing the case for the reason stated. If Smetters v. Rainey, 14 Ohio St., 287, is to stand as a correct statement of the law, then the judgment of the court below was right; but that case has been so frequently and continuously doubted, distinguished, limited, criticised, assailed, and almost, if not quite, expressly overruled in this court, that it now seems necessary to test its foundations anew.

It will go without dispute, as was laid down in Smetters v. Rainey, 13 Ohio St., 568; Idem, 14 Ohio St., 287; Jones v. Marsh, 30 Ohio St., 20; Tod v. Stambaugh, 37 Ohio St., 469; Veach v. Kerr, 41 Ohio St., 179; Burke v. Taylor, 45 Ohio St., 444, and in many other cases, both before and since these, that all persons who -are jointly interested in a judgment which is sought to be reversed or modified, must be made parties to the proceedings in error before the reviewing court can render a judgment reversing or modifying it. But that doctrine stops very far short of the proposition that there can be no amendment to a petition in error, to correct a clerical error or mistake, by adding the name of a person who was directly interested in, and a party to, the judgment below; nor does it even lead to the conclusion that no such amendment can be made after the statutory limit of time within which a proceeding in error may be commenced, which was in this case four months from the rendition of the judgment. I shall presently endeavor to make it clear that, when there is a unity of interest as to the judgment, a denial of the right to so amend a proceeding in error after four months has elapsed since the rendition of the judgment which is to be reviewed, is a denial of the right to amend at any time; for if the right to amend exists after the statutory limit, it must be because the case was “commenced” so as to toll the statute of limitations as to all persons united in interest, and if the right does not exist after the statutory limit it must be because the case was not so “commenced” within the statutory period. If the action should be properly commenced as to some of the joint parties and leave is asked to amend and bring in the other parties before the expiration of the statutory period, the leave can only he allowed by the analogy of the code procedure in other cases, because there are no provisions therefor expressly relating to proceedings in error. Railway Co. v. Bailey, 70 Ohio St., 88. This seems to be conceded in Smetters v. Rainey, both in the syllabus and in the opinion. We have not been able to discover any satisfactory reason why, if the code provisions in sections 5114, 5005, 5006 and 5007, Revised Statutes, may be applied to error proceedings, section 4987, Eevised Statutes, may not also be so applied. Hence, as we have said, the denial of the right to amend after the statutory period has expired is logically the denial of the right to amend at any time,

If the action should be properly commenced as to some of the joint parties, then, as we shall show, the statute ceases to run as to the other joint parties. This proposition Smetters v. Rainey ‘denies. The logic of Smetters v. Rainey would therefore seem to lead to the conclusion that a proceeding in error must be like Minerva when she sprang from the head of Jupiter, full grown and perfect in the beginning, born of the gods and without human frailty.

But such relentless severity is foreign to the spirit of the modern procedure. Accordingly this court has, in several instances, applied to proceedings in error, by analogy, the liberal provisions of the code of civil procedure relating to “civil actions:” and one of these is the ample power of amendment conferred by section 5114, Revised Statutes. Railway Co. v. Bailey, 70 Ohio St., 88. The only comment on this section which need be made is the following terse quotation from the opinion in Shamokin Bank v. Street, 16 Ohio St., 7. “The general power of amendment given to the courts by the code is very broad, and is only limited by tbe ‘ justice ’ of tbe ease. But tbe statutory thing to be amended must exist before tbe power can be exercised.” Does tbe thing to be amended exist here? Had tbe circuit court such jurisdiction of tbe case and of tbe parties before it, as to enable it to bring in other necessary parties ?

Tbe original judgment set aside a will. If it was set aside as to one of tbe persons interested it was set aside as to all. If that judgment should be reversed as against some of tbe contestants it necessarily must be reversed as to all of them. Tbe judgment is an entirety and inseparable. For that reason all of tbe parties to tbe judgment must be in court before it can be reversed. Buckingham v. Bank, 21 Ohio St., 131; Bradford v. Andrews et al., 20 Ohio St.. 208. Here, a case involving tbe rights of everybody interested in that estate was properly in court. All necessary parties were in court, except one who refuses to come in, bis name being overlooked in instituting tbe proceeding. Is not tbe case pending, and lawfully pending, and capable of being amended? True, a judgment of reversal cannot be entered until all tbe joint parties are before tbe court; but does that imply that tbe court can do nothing in tbe case? Can any substantial reason be given why section 5006, Revised Statutes, as well as section 5114, may not be resorted to for authority? We think not. That section reads as follows: “Any person may be made a defendant who has or claims an interest in tbe controversy adverse to tbe plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.” Smetters v. Rainey, supra, first proposition of the syllabus.

But the contention is interposed that no application to make Shuman a defendant was made in the circuit court until after the lapse of four months from the rendition of the judgment in the court of common pleas, and that thereby the bar of the statute was raised in favor of Shuman, which enured to the benefit of all those who are united with him in interest. At least that is the effect of the argument, inasmuch as there could be no judgment of reversal without the presence of Shuman as a defendant. We do not think that this position is tenable.

It was held in Robinson v. Orr, 16 Ohio St., 284, and in Buckingham v. Bank, 21 Ohio St., 131, that section 20 of the code of civil procedure, now section 4987, Revised Statutes, is applicable by analogy to petitions in error. See also the dissenting opinion of Johnson, C. J., in Moore v. Chittenden, 39 Ohio St., 563, for citation of other cases. That section reads as follows: “An action shall be deemed commenced, within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him, or on a co-defendant who is a joint contractor, or otherwise united in interest with him; and when service by publication is proper, the action sháll be deemed commenced at the date of the first publication, if the publication be regularly made.”

In Bradford v. Andrews, 20 Ohio St., 208, it was held that where a proceeding for the contest of a will is commenced within the statutory period of limitation, although only a part of the persons interested-in the contest are made parties thereto, the right of action is saved as to all who are ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired. While no reference is made in that case to the statute cited here the ruling was based on the principle that the parties were “united in interest. ’ ’ It was said in the opinion: ‘ ‘ The interest of the parties is joint and inseparable. * * # The case belongs to "that class of actions where the law is compelled either to hold the rights of all parties in interest to he saved, or all to be barred. ’ ’ And in a case where more than five years had elapsed between the decree and the issue of a writ of error, but one of the plaintiffs was at the time of pronouncing the decree an infant, it was held that where one of the parties, the case being inseparable, is within the saving clause of the statute of limitations, the case is saved as to all of the parties. Wilkins v. Philips, 3 Ohio, 49. So it was held that where a will was set aside at the instance of an heir who is within the saving clause of the statute of limitations, the exemption of the plaintiff from the statute of limitations avails for all the heirs, so as to set aside the whole will. Meese et al. v. Keefe et al., 10 Ohio, 362.

The Barber Asphalt Paving Co. v. Botsford, 50 Kan., 331, is exactly in point, because it construes a section of the code of civil procedure of that state which is identical with section 20 of our code, now section 4987, Revised Statutes.

We are therefore fully warranted in concluding that under the provisions of section 4987, Revised Statutes, interpreted in the light of the foregoing decisions, this proceeding in error was “commenced” as to Shuman when the appearance of the defendants who were “united in interest” with him, was accomplished. Indeed, the controversy here does not appear to have been much considered by the court in Smetters v. Rainey, for it is disposed of in the opinion in a single sentence, to-wit: “It would seem that the revising court should have acquired complete jurisdiction over the subject-matter — the' entire judgment — before the limitation attaches.” Our view is that such jurisdiction is acquired in the present case. Then, what is the result? The judgment below is a unit and cannot properly be reversed as to some of the parties and affirmed as to others. All must be in court before the final adjudication. Buckingham v. Bank, 21 Ohio St., 131. The court thus has jurisdiction of some of the parties and of the subject-matter, the statute having ’raised no bar. Another party is necessary to the determination of the controversy. Can it be that under such circumstances a reviewing court cannot allow an amendment of the petition in error “in furtherance of justice, ’ ’ adding and summoning a new and necessary party? We think that the power of the court to permit an amendment under such conditions is abundantly sufficient and its duty clear.

Smetters v. Rainey, 14 Ohio St., 287, has been, and still continues to be, the source of infinite confusion and embarrassment, both to the courts and to the bar. No case in this court has been brought to our notice, which expressly approves the-propositions decided there which are controverted here, except the brief per curiam in Burke v. Taylor, 45 Ohio St., 444. In our opinion in respect to the controverted propositions, it is inconsistent with the following cases hereinbefore cited: Wilkins v. Philips, 3 Ohio, 49; Meese et al. v. Keefe et al., 10 Ohio, 367; Robinson v. Orr, 16 Ohio St., 284; Bradford v. Andrews, 20 Ohio St., 208; Buckingham v. Bank, 21 Ohio St., 131; and Railway v. Bailey, 70 Ohio St., 88; and also with the other cases following: Secor v. Witter, 39 Ohio St., 218; Bank v. Green, 40 Ohio St., 431; and Wangerien v. Aspell, 47 Ohio St., 250. It has been applied in this court a few times without report; but we are in position to know that it has never, at least in recent years, gone without protest among those who concurred in such application of it. It is a rule of practice, and not a rule of property, which we are considering; and therefore, in the interest of consistency in practice, harmony of judgment and the furtherance of justice we overrule the second and third propositions of the syllabus in Smetters v. Rainey, 14 Ohio St., 287, and reverse the judgment of the circuit court herein, remanding the case for further proceedings.

Reversed.

Shauck, Crew and Summers, JJ., concur.

Spear, J.

(dissenting). The question is: did the circuit court err in overruling the motion to make John Shuman a- party, the statutory four months having passed, and in dismissing the proceeding?

Not being able to concur in the judgment of the majority it seems proper to offer some suggestions justifying the dissent. With due respect I am compelled to say that I regard the departure of the majority, and the judgment rendered, as against principle, against precedent, inconsistent, unnecessary, and unfortunate.

The case of Smetters v. Rainey, 14 Ohio St., 287, which is overruled by the judgment of the majority, announces in addition to the doctrine (not here doubted) that defendants in a joint judgment are necessary parties to a proceeding brought to reverse it, the further doctrine that if not made parties-within the statutory time given for commencing proceedings in error, the reviewing court acquires no jurisdiction to review, and that if such judgment debtor is brought in after the statutory time, he may plead the statutory bar, and that will oust the jurisdiction of the reviewing court. The decision in this case was the work of Judges Ranney, Scott, Brinkerhoff, Peck and Wilder, making a court not exceeded as to learning or ability by any on this bench which preceded or has followed. Moreover the cause was argued pro and con by such lawyers as Judge Thurman and Mr. Hocking H. Hunter, and the result was reached after careful consideration, the case having been carried over from a preceding term of the court. The. judgment rests upon the fact that the error case is a new proceeding, and upon a recognition of that rule which is distinctly held in a later case (Burke v. Taylor, 45 Ohio St., 444), that r “Statutes authorizing proceedings in error should be strictly pursued.” That rule is in every sense a wise and just one. The complaining party has had a trial on the merits of the controversy, and he now seeks the aid of the statute to obtain a review, and, if possible, a reversal of the judgment against him. It surely is no hardship to insist that he should strictly pursue the path pointed out. This principle is recognized and enforced by severe application of the rules obtaining in this court from time immemorial with respect to the filing of the record, the printing, the filing and printing of briefs, and in a score of other ways familiar to the profession but not necessary to specially mention. This statute (6723), as now in force, gives the complaining party four months from the rendition of the judgment within which to commence his error proceeding, a time amply sufficient, if improved, to accomplish that end. Something is claimed for this action that the failure to make John Shuman a party was “by mistake.” A careful inspection of the record fails to justify any such distinction if more is intended by it than that the failure was a plain, ordinary case of common negligence. No merit surely can attach to that condition in this court. Numberless cases are going to pieces just upon that ground all the time, and the shore is Strewn with the wrecks.

That the four months ’ limit is at least a statute of limitations is conceded. It would seem to follow from this that the party in whose favor a judgment is rendered has a vested right to be protected from further annoyance after the lapse of four months, if he has not been, within that time, brought into a reviewing court to contest anew. It is assumed, however, in the majority opinion that the sections of the statute which provide who may be joined as plaintiffs and defendants, and for amendments to .pleadings and the making of new parties (5005, -6, -7 and 5114), apply to error proceedings, and that section 4987 also applies, and taken with the other sections is controlling. Admitting that these sections have some application, what then? How do they control? Section 4987 provides that an action shall be deemed commenced as to each defendant at the date of the summons which is served on him or on a co-defendant who is united in interest with him. It is to be observed that the ordinary civil action and the error proceeding are in many respects unlike. The first is original; the second appellate. That is, it is not a right of action but is simply a right of appeal. The language of the statute (section 6723) regulating the time for the commencement of proceedings in error is imperative. “No proceeding to reverse, vacate, or modify a judgment or final order shall he commenced unless within four months after the rendition of the judgment or the making of the final order complained of.” Jurisdiction as to the person is acquired by bringing the party into court. “A proceeding in error to reverse, vacate, or modify a judgment or final order is not commenced within the meaning of section 523 of the civil code [now 6723] unless the petition in error is filed, and appearance of defendants in error effected by service of summons or otherwise.” Bowen v. Bowen, 36 Ohio St., 312. Therefore, if the complaining party does not in some way commence his action within four months so as to bring the party into court, he fails. The insistence is that he does so bring the party in by obtaining service within the statutory time on one who is united in interest, that is, one who was united in interest in the controversy in the court below. But I maintain with confidence that section 4987 in no way aids that contention. Let us get the exact language of it. It is: “deemed commenced * * * as to each defendant, at the date of the summons which is served on him, or on a co-defendant * * * united in interest with him.” “A defendant.” Now the statute is treating of an original proceeding. Who, then, is “a defendant?” Manifestly, and it seems to me without question, he is one who is named in the petition in error as a defendant. It would work a reversal of all our legal ideas on the subject to think otherwise. Clearly,, then, this section does not aid the position of the majority in this case, for in no conceivable sense was John Shuman such defendant. He was not named in the petition in error as such, and the subsequent proceedings show that the whole trouble of the plaintiffs in error arose out of that fact and out of the necessity, as their counsel saw it, of getting him in as such defendant by hook or by crook. It follows that the proceeding was not commenced within the meaning of the section quoted, as .to John Shuman, within the four months, and that he was in no wise affected by service on those who were named as defendants.

The limit of four months is described as at least a statute of limitations. I submit that it is much more than this. This limitation is a part of the right itself. Its observance is a condition to the assertion of that right, and hence a condition to the acquirement of jurisdiction by the court. The statute is a positive interdiction against the bringing ■of an error proceeding after the limit fixed, and. the holdings are abundant that a proceeding sought to be brought after the statutory limit will be ¡stricken from the docket for want of jurisdiction in the reviewing.court to entertain. But, taking either view of this matter, it is clear that, if we assume that ■sections 5005, 5006 and 5114 apply to error proceedings, and the construction sought to be given them in conjunction with section 4987 by the majority •opinion is to be entertained, then there is an apparent conflict between those sections and section 6723. In such view it becomes the duty of the court to endeavor to reconcile the sections. In meeting this ■duty I insist that full effect can be given sections 5005, 5006 and 5114 by confining their operation as to the making of new parties within the time limit. Should the plaintiff in error, through negligence or otherwise, omit from his petition the name of a party whom he desires to bring in, the court would have ample power, upon application within the time, to allow an amendment and direct service, and this would be entirely consistent with the provisions of section 6723, and would not deprive the person not brought in within the time of his statutory right of limitation. The contrary construction is squarely in the face of section 6723, and does deprive the person of his protection under that statute. It may be added that no prejudice should arise in considering a statute of limitations, for it is now universally regarded as a statute of peace.

It is stated at the outset of this dissent that the conclusion of the majority is against principle. I desire here to illustrate that it is against our fundamental ideas of law. Let us suppose a not unnatural situation and one which did actually occur. Three or more persons are makers of a joint promissory note. Before the note matures all but one go out of the state and so remain until within a short time of the expiration of the fifteen years, when they return to the state. Learning of this, and supposing them responsible, the holder of the note brings suit but fails to make the resident maker a party, no matter for what reason only so that such maker was in no way responsible for the omission. Learning soon thereafter, but subsequent to the expiration of the fifteen years, that he was mistaken as to the responsibility of the other makers, the holder amends, making the resident maker a party, and causes service to be made upon him. Would a court, in such a situation, refuse to entertain the resident maker’s plea of the statute of limitations simply because service had been made upon co-obligors, parties united in interest, within the statutory time? or, on the ground that such action was “in furtherance of justice” as indicated in section 5114? Surely it would be a bold or a very ignorant court who would so hold; and if such a holding were made and the case should reach this court I surmise it would stagger my brethren of the majority to affirm it. Treating the requirement as to time as a statute of limitation merely, I fail utterly to see any difference, in principle, between the supposed case and the case at bar.

It is insisted, however, that, whatever view should be taken of Shuman’s rights when in, the circuit court had the right, and the holding is that it was its duty, to allow an amendment to the petition by inserting the name of John Shuman, and then authorize service on him. But this ought not and could not avail. The court had no power to make any order except the very order it did make. It had acquired no jurisdiction of the cause. Besides, the act of bringing him in would only emphasize the condition that the plaintiff in error had failed to bring in the necessary parties in time. Shuman’s resistance to the motion showed fully that he intended to stand -on his rights with regard to the statutory limit, and that the allowance of the amendment as to him would be simply a vain thing. , In the language of Minshall, J., in The State v. McGregor, 44 Ohio St., 630: ‘£It is neither the policy nor the practice of courts to require the doing of a vain thing. ” Hence it was not error to overrule the motion, for had it been sustained and Shuman brought in, his plea upon any admissible theory of the ease, ought to have prevailed and the error proceeding ought to have been dismissed.

It is also hereinbefore stated that the conclusion of the majority is against precedent. On the other hand it is thought by the majority that previous decisions of this court justify, if they do not compel, the overruling of Smetters v. Rainey, and a reversal of the judgment herein. Several of those decisions are cited. Attention may be given to a few of them as samples. In Robinson v. Orr, 16 Ohio St., 284, it is held that a proceeding in error is not deemed commenced upon the mere filing of a petition in error in the proper court, and that section 20 of the code furnishes the rule which, by analogy, determines when proceedings in error are to 'be deemed commenced. Section 20 is now section 4987, Revised Statutes. I have undertaken to show heretofore the proper construction of that section. This decision in no way aids the contention of the majority, but points in the opposite direction. The opinion is by Scott, J., concurred in by Day, White, Welch and Brinkerhoff. It refers approvingly to Smetters v. Rainey, and two of the judges participated and concurred in that decision. Bradford v. Andrews, 20 Ohio St., 208, involved the action of the trial court in the making of parties in a will contest. The court held that although only a part of the persons interested in the contest were made parties thereto within the statutory period of limitation, the right of action is saved as to all who are ultimately made parties. Welch, J., in the opinion, speaking for himself, says he is aware that Smetters v. Rainey conflicts with the doctrine announced, and he regarded it as a departure from well established principles, and one that should be overruled when a proper case should be presented, but that it was not identical with the case at bar, and need not be passed upon. The judge regarded the plaintiff’s action as a right of action guaranteed by constitutional provision, while the right of limitation generally meets with more or less disfavor. I emphasize three points: 1. The judge was considering a constitutional right of action in a court of first instance; we are considering a right of appeal afforded only by statute, in a reviewing court. This distinction the learned judge fails to appreciate. In this connection he also falls into the apparent error of assuming that the statute of limitations was, as of old, a statute of presumptions, whereas, as we have seen, it is now a statute of repose. 2. No attempt was made by the court to overrule Smetters v. Rainey. 3. Two of the judges concurring (Brinkerhoff and Scott) united in the judgment in Smetters v. Rainey, and a third (Day) in Jones v. Marsh, 30 Ohio St., 20, quoted approvingly from Smetters v. Rainey. All of which shows that there was no understanding at that timé that the effect of the judgment was to overrule that case. Buckingham v. Bank, 21 Ohio St., 131, relied upon, also fails the plaintiff in error. The party sought to be brought in, the court held, was a party to the record at the commencement of the action. This opinion also is by Welsh, J. He takes much space to show that the party not served, although not named in the petition in error, was after all a party to the record, which would have been useless labor, if, in the judgment of the court, the service on one united in interest was sufficient to bring in the absent party irrespective of the fact of his being or not being a party to the record. Besides no reference to Smetters v. Rainey is made in the opinion, which is also concurred in by Judges Scott and Day. Other eases cited speak in the opinion disparagingly of Smetters v. Rainey, distinguish it, and limit it to the case made. This is all well described by the eminent counsel for defendant in error when he truthfully and graphically says that the case has been, on some points growled at in obiter dicta, as to its application to particular eases, but has never been overruled. Railway Co. v. Bailey, 70 Ohio St., 88, cited in the majority opinion, has no possible application to the point in contest here.

The understanding of the bar as to the status of the case is well put in the recent admirable Citation Digest, by Mr. Gilbert H. Stewart, of the Columbus bar, as follows: “Smetters v. Rainey, 14 O. S., 287-291. All defendants in joint judgment necessary parties to proceeding in error. Approved, Robinson v. Orr, 16 O. S., 228; Hammond v. Hammond, 21 O. S., 627; Jones v. Marsh, 30 O. S., 23. Distinguished, King v. Bell, 36 O. S., 468. All joint judgment debtors are necessary parties to a petition in error. Followed, Kries v. Drott, 67 O. S., 516; Sohn v. Loan Co., 67 O. S., 516; Abair v. Bant, 3 C. C., 290; Burk v. Taylor, 45 O. S., 444. Cited, Lowenstein v. Rheinstrom, 8 N. P., 236. Necessary parties in error proceedings must be brought in within statutory period. Q., Bradford v. Andrews, 20 O. S., 220; 5 Am. Rep., 647. Approved, Jones v. Marsh, 30 O. S., 23. Distinguished, Secor v. Witter 39 O. S., 227, 229; Bever v. Beardmore, 40 O. S., 77. Q., Bank v. Green, 40 O. S., 438. Followed, Burke v. Taylor, 45 O. S., 444. Distinguished, Wangerien v. Aspell, 47 O. S., 255. Followed, Abair v. Bank, 3 C. C., 290-304; 2 Cir. D., 165; Werk v. Christie, 9 C. C., 444; 6 Cir. D., 255; Page v. McConville, 10 C. C., 321; 6 Cir.D., 631; Lumber Co. v. Marcy, 14 C. C. 613; 7 Cir. D., 444. Right to several judgment in joint action only affects end of action. Approved, Hempy v. Ransom, 33 O. S., 319. A joint defendant cannot alone prosecute error. Cited, Kries v. Drott, 21 C. C., 790. Questions of practice are determined by code, when. Cited, Ry. Co. v. Bailey, 70 O. S., 90.

“Where Smetters v. Rainey is cited in foreign cases: 18 Fla., 158; 40 Fla., 152; 74 Am. St. Rep., 133; 20 Kan., 495; 21 Neb., 473; 28 Neb., 791; 29 Neb., 617, 619; 10 W. Va., 497; 5 Wyo., 421. ’ ’

It is my belief that tbe principal case has been followed in more cases than any other since I have been a member of the court. It is distinctly approved and followed in Burke v. Taylor, supra, a case presenting the precise question at issue here. But more to be emphasized is the report of- two cases in 67 Ohio St., 516. I quote: “Kries v. Drott et al. Error to the circuit court of Hamilton county. Judgment affirmed on authority of Smetters v. Rainey, 14 Ohio St., 287. Burlcet, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.” “Sohn v. Bldg. S Loan Co., same volume and page. Error to the circuit court of Hamilton county. Judgment affirmed on authority of Smetters v. Rainey, 14 Ohio St., 287. Burlcet, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.” May I add (using though reversing, the simile used by the present Chief Justice in State v. Yates, 66 Ohio St., 554), I would fain appeal from Phillip in his present condition to what I conceive to have been a more serious, not to say sober, condition at the time the above entitled cases were disposed of and the conclusions given to the public.

It must be apparent from what has preceded that the decision of the majority is inconsistent. It is also apparent that, in view of the previous holdings of the court, it is unnecessary, as the case at bar might well have been disposed of on the doctrine of stare decisis. To my mind, also, it seems very unfortunate. True, the doctrine of the principal case does not involve a rule of property, but it does involve an important question of practice. Notwithstanding the growling to which reference has been made, the ease in the 45th State, supra, and the two cases in 67th State, supra, taken in connection with many unreported eases involving the same question, have given the bar and litigants to believe that Smetters v. Rainey was to stand. Eights have been determined upon it. No change in the policy of the state has occurred; no special inconvenience has resulted.from adherence to the doctrine of that case, and the effect of this decision is to unsettle that which before was understood to be definitely settled, and, it seems to me, without sufficient cause. How can a court expect others to have respect for its decisions when it so lightly overturns them itself? How can the bar or the public, in the light of this departure, rely with any certainty on the court’s declarations of law however repeatedly declared'? With what assurance can lawyers advise their clients?

For the foregoing and other cognate reasons, I think the judgment of the circuit court should be affirmed.

Prigs, J., concurs in this dissenting opinion.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Farmer et al. v. The Columbiana County Telephone Company.

      Telephone companies obtain power — To construct lines, etc., from sections 8454-8471-8, Revised Statutes — Powers of municipal authorities in reference to telephone companies, defined — 1 Question of free service for city or citizens — City ordinance to receive free compensation not effective, when.

    Telephone companies organized in this state obtain power to construct their lines along the streets and public ways of municipal corporations from the state by virtue of sections of the Revised Statutes, 3454 to 3471-8, inclusive, and not from the municipal authorities. The latter have the power, under section 3461, to agree with such'companies as to the mode of use, and upon compensation for such use, but not beyond what may be necessary to restore the streets to former state of usefulness. They have not power to exact or receive compensation by way of free telephone service for themselves or for citizens, or to fix rates for telephone charges. Where such power to so obtain free service and fix rates is attempted to be exercised by the passage of an ordinance incorporating such provisions, the company will not be required to adhere to them by a court of equity by mandatory injunction, even though it be shown that the rates agreed upon and incorporated in the ordinance were so fixed at the solicitation of the company and that the company thereby obtained a benefit which it would not have otherwise obtained in a mode of use of the streets more beneficial to it and more inconvenient to the public.
    (No. 9004
    Decided June 27, 1905.)
    Error to the Circuit Court of Columbiana county.
    The action below, brought by the plaintiffs in error, Farmer & Getz, in the court of common pleas of Columbiana, was to obtain a mandatory injunction requiring The Columbiana County Telephone Company to place a telephone instrument in their place of business in accordance with the terms specified and at the rates fixed by an ordinance of the city of Salem, by which the Company was accorded its right to erect its poles, wires, et cetera, in the streets of the city. Among other provisions of the ordinance were the following:

      1 ‘ Section 3. Be it further ordained, that the said S. C. Thayer, his associates, successors or assigns, be and they are hereby limited in the price to be charged for exchange service within the corporate limits of said city of Salem, under the powers herein granted, as follows, to-wit: The charge for residence service shall not exceed eighteen dollars [$18.00] per annum, payable quarterly in advance; and the charge for business service shall not exceed twenty-four dollars [$24.00] per annum, payable quarterly in advance.
    “Section 4. Be it further ordained, that the said. S. C. Thayer, his associates, successors or assigns, under the powers granted herein, shall erect a line and furnish telephone service to any person residing within the corporate limits of said city, who shall desire to become a subscriber thereto and at the price hereinbefore mentioned; and said subscriber shall be entitled to free telephone service over the lines of the said S. C. Thayer, his associates, successors or assigns, with all their exchanges and subscribers, when connected, within the county of Columbiana, state of Ohio, but shall not be entitled to the use of said lines for such purpose for more than five minutes at any one time; and that the said S. C. Thayer, his associates, successors or assigns, shall permit the police and fire alarm wires and boxes of said city to be placed upon their poles within the corporate limits of said city, without charge therefor, if the city so elects.”
    The ordinance purported to give the grant to one S. C. Thayer, his associates, successors or assigns and the present Company acquired its rights by assignment from Thayer. It appears by the petition that the above sections of the ordinance were presented to the council by Thayer voluntarily, and were not required as a condition precedent to the passage of the ordinance, the said Thayer stating that the rates asked were ample for the service to be given, and he confidently expected that they might be reduced. The ordinance being accepted by Thayer a bond was duly given by him to well and truly comply with its provisions. The present Company built and operated the system of lines and a telephone exchange upon the terms provided, especially as to the price tó be charged subscribers, and said subscribers have received free telephone service over the lines of the defendant within the county of Columbiana, until the first of July, 1903, when plaintiffs applied for an instrument in their business place in Salem, tendering the proper amount as provided in the ordinance, which the Company refused, demanding a hig’her amount. The Company has also refused to continue service to any of its subscribers at the ordinance rate and will remove its instruments unless restrained by injunction. The Company is estopped to deny the terms of the ordinance, which remains in full force, constituting a binding* obligation upon the Company, and the plaintiff is entitled to all the rights, benefits and privileges granted by the ordinance.
    The city of Salem, by cross-petition, adopting the allegations of the petition, further alleged that if it had not been for the proposition made by Thayer to furnish service at the rates fixed by the ordinance, and the grant of the privilege to the city of county service without extra charge, the council would not have agreed on a mode of use or construction of the system and exchange as favorable to Thayer, or his assigns, as that fixed by the ordinance; that at the time of the grant of the ordinance an application had been made by another company, and a franchise ordinance was subsequently granted to it by which it was required to remove its poles from the streets and place its wires under ground, being a more expensive mode than that granted to Thayer; that many of the property owners of the city, relying on the terms of the ordinance granted Thayer and now enjoyed by the defendant Company, permitted defendant to erect poles and to string wires thereon over and across their premises, thus invading’ their rights in the streets and alleys, as abutting property owners, and permitted the defendant Company to cut and destroy portions of their buildings, to their great and irreparable injury; that at the time said franchise was granted to Thayer, another company was operating a system of telephone lines and exchange in the city and throughout Columbiana county, and furnishing county service to its city subscribers at a rate lower than the rate proposed to be charged by the defendant Company under which it now proposes to operate in disregard of the rights of its subscribers as fixed by the ordinance; that almost all of said subscribers who were then in the enjoyment of the privileges aforesaid, relying on the rates proposed by defendant Company and fixed by the ordinance, and on the contracts made by defendant Company with them at the ordinance rates, and on the representations of the officers and agents of defendant Company that it would continue during the term of the ordinance to furnish telephone service at the rates provided in the ordinance; that the county service would be without extra charge as provided by the ordinance, all of which was at a lower rate than that then being paid by said subscribers to the other company,for like service, said subscribers, almost without exception, can-celled their contracts with the other company, and they cannot now renew said contracts for local service, and county service, without extra charge at any rate; that had they not relied on said representations and cancelled the said contracts they would still be entitled to receive the same service and at the same price they were receiving at the time the franchise ordinance was granted to Thayer, as all subscribers at that time were given the option of continuing their original contracts; that by reason of the foregoing facts many of the then subscribers of the other company have suffered great loss, and will, unless the defendant Company be restrained as prayed, be required to pay the rates now demanded by the said Company, and in addition thereto, extra for county service. Then follows a prayer that defendant be enjoined from raising its rates and from refusing the benefit of free county service.
    Demurrers to these pleadings severally were sustained and judgment dismissing the petition and cross-petition entered. This being affirmed by the circuit court, the plaintiff below and the city bring error.

      Mr. Lewis P. Metzger, for plaintiffs in error.

      Messrs. Carey & Mullins, for defendant in error, submitted no brief.
   Spear, J.

One principal question, and another in the alternative, are presented. Was the contract as to rates within the power of the council to make, and; if not, is the defendant Company estopped now to set up as a defense that want of power? ;

The first question is answered by the statute itself. Sections 3461 and 3471, Revised Statutes, provide: :

Section 3461. “When any lands authorized to be appropriated to the use of a company are subject to the easement of a street, alley, public way or other public use, within the limits of any city or village, the. mode of use shall be such as shall be agreed upon between the municipal authorities of the city or village and the company; and if they cannot agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed along such street, alley or public way, so as not to incommode the public in the use of the same; but nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley or public way, beyond what may be necessary. to restore the pavement to its former state of usefulness.”

Section 3471. “The provisions of this chapter shall apply also to any company organized to construct any line or lines of telephone; and every such company shall have the same power and be subject to the same restrictions, as are herein prescribed for magnetic telegraph companies.” • . ,

It is further answered by the case of Macklin v. Home Telephone Company, reported by the circuit court in 24 O. C. C., 446, and affirmed in this court as City of Findlay v. same Company, 70 Ohio St., 507. A telephone company gets its right to go upon the streets, with its poles, wires, etc., from the state (sections 3454 to 3471-8 inclusive), and the power of the municipal authorities in the premises is to agree upon, not the right to use, hut the mode of use, and if no agreement as to mode shall be made within a reasonable time, the company may apply to the probate court, which court shall direct in what mode the line shall be constructed so as not to incommode the public in the use of the streets, etc. In other words, municipal authorities may do what the probate court may do when a proper ease is presented, and no other or different thing. One is a substitute in all respects for the other. Beyond this, the municipality is not permitted to demand or receive any compensation beyond what may be necessary to restore the streets to their former state of usefulness. In short, the right of the public to the free use of the streets, alleys, etc., is to be maintained and the general duty of the municipal authorities to keep the streets, etc., ■open, in repair and free from nuisance is to be performed. It follows that the council had no power to make an effective arrangement as to rates, and that the principal question will have to be determined against'the plaintiffs in error.

A majority of the court is of the opinion that the alternative question should, also, be determined against the plaintiffs in error. It follows from what has preceded that the municipality possessed nothing in the way of a valuable right to bestow upon the Company.' Hence the promises of the Company to do what it was not, and could not by the city be required to do, was a naked promise, without consideration. It therefore fails as a contract, and it is difficult to see how Farmer & Getz could take advantage of a nude pact to raise an estoppel, a pact to ■which they were in no wise parties, or privies in the eye of the law, and against a party with whom they had no contract or other legal relátions whatever themselves. It seems reasonably clear that the petition of plaintiffs below did not state a cause of action.

Is the City’s cross-petition in error in any better situation as matter of law? It is stated that but for the proposition as to rates incorporated in the ordinance, the city would not have conferred the mode of use which it did, but would have demanded and required a mode of use less beneficial to the applicant ; that he was saved delay and the necessity of going to the probate court; that it not only conferred upon h,im a more beneficial mode of using the streets than it otherwise would, or could have been compelled to under the statute, but a mode more inconvenient to the public, so that the City parted with something and the applicant received something in the way of benefit. But this view antagonizes the proposition already determined that the City had nothing in the way of rights or special benefits to give away, or barter away. Its plain and only duty was to insist upon and secure a mode of use entirely consistent with the full beneficial use by the public at large of the streets and alleys of the municipality. It had no authority to consent to an arrangement more inconvenient to the public in order to get gain to itself or to anybody else. It had no right, upon any consideration whatever, to incommode the public in the use of the streets. Any attempt to obtain advantage to itself, by free service or otherwise, or to such portion of the public as might want to avail itself of the telephone service, was manifestly against the letter as well as the spirit of the statute, and cannot in law, or in equity, constitute a predicate for an estoppel. It asks to stand upon its own illegal contract, and asks a court of equity to compel the other party to stand upon and perform it. In other words, the City asks a court of equity to decree specific performance, by mandatory injunction, of a contract which, admittedly, it had no power to make, and which the statute forbids. As it seems to a majority of the court, the proposition cannot be maintained upon any established rule known to courts of equity.

This is the court’s view of the cold law of the case. But before leaving the subject we feel impelled to express strong condemnation of the lamentable want of fair dealing shown on the part of [he defendant Company in its transactions with the municipal authorities. Of course, Thayer was a mere vehicle; the Company was and remains the power behind. If the pleadings truly state the situation the Company’s action was in a high degree reprehensible. Were there any ground which this court could regard as substantial for such action the court would take pleasure in .granting the relief asked and thus administer a deserved rebuke; but there seems none. Possibly a recognition of this phase of the case on the part of the learned and honorable counsel of record for the defendant Company may account for the absence of a brief from them in this court.

: The conclusion is that the cross-petition does not state a cause of action and that the demurrer to it was properly sustained.

Judgment affirmed.

Davis, C. J., Shauck and Summers, JJ., concur. - • ■ Price, J., dissents. ' ....


author: By the Court.

text:
    The Security Trust Company v. Root.

      Doctrine of Us pendens does not apply — To sales of land for taxes— Sections 2838 and 2880, Revised Statutes — State lien for taxes paramount to all other liens — Sale of land while foreclosure suit is pending — Lien laws.

    The doctrine of lis pendens does not apply to sales of land for taxes. By virtue of section 2838, Revised Statutes, the lien of the state for taxes is paramount to all other liens, and inasmuch as by force of section 2880, Revised Statutes, the lien of the state is transferred to the purchaser at a tax sale, the purchaser’s claim upon such lien is not affected by the fact that at the time of the sale a suit is pending to foreclose and extinguish the title of the owner, to which suit the purchaser is not a party.
    (No. 8740
    Decided June 27, 1905.)
    Error to the Circuit Court of Lucas county.
    The action below was brought in the common pleas of Lucas by the Security Trust Company against C. W. Root, to quiet title to certain lands situate in that county. It was shown by the petition that the title of plaintiff was acquired by sheriff’s deed made in pursuance of a judgment and decree in foreclosure of a mortgage made to the plaintiff by the then owner of the land, one Emrick. The suit was commenced December, 1902. The plaintiff herein was plaintiff in that suit. The judgment against Emrick was for $4,775.34, rendered February, 1903. The property was sold in March following for $4,001.00, and the sale having been approved the proceeds were applied first in payment of costs, and the balance upon the plaintiff’s judgment, leaving some $774.34 still due plaintiff;
    The defendant’s claim arose from a purchase by him at a delinquent tax sale inhde in January, 1903, by the county treasurer, the taxes amounting to $142.64, which sum the defendant paid and received from the county ■ auditor a certificate of purchase of the premises.
    A demurrer having-been interposed to this petition and sustained, judgment was rendered by the common pleas for the defendant. This judgment was affirmed by the circuit court and the plaintiff brings error.

      Mr. B. A. Hayes, for plaintiff in error.

      Mr. J. C. Munger, for defendant in error.
   By the Court.

The claim of the plaintiff in error is based upon the doctrine of lis pendens as expressed in section 5052, Revised Statutes, as follows: “When the summons has been served, or the publication made, the action is pending so as to charge third persons with notice of its pendency; and while pending, no interest can be acquired by third persons in the subject of the action, as against the plaintiff’s title.” Counsel argue that inasmuch as the purchaser under foreclosure proceedings takes the place of both mortgagor and mortgagee, and as the mortgagee was plaintiff in the foreclosure suit under which plaintiff acquired title, the defendant, who purchased at the tax sale while the action of foreclosure was pending, acquires no interest as against the title of the mortgagee in the premises involved in the foreclosure suit.

This is good doctrine as applied to interests in real estate generally, but the claim of defendant in error rests upon section 2880, Revised Statutes, which provides: “Upon the sale of any land or town lot for delinquent taxes, the lien which the state has thereon 'for taxes then due shall he transferred to the purchaser at such sale, ’ ’ et cetera. The lien of the state for taxes could not he ousted by a sale in foreclosure, and the state’s lien having been, by virtue of this statute, transferred to the purchaser at the sale, it was neither satisfied nor discharged by the decree in foreclosure and the sale thereunder. The taxes were a lien paramount to all other liens and claims when the foreclosure suit was commenced, and the taxes were then delinquent as shown by the treasurer’s duplicate, and before decree the auditor’s duplicate gave constructive notice that the defendant had purchased and had acquired a tax certificate. It was the duty of the plaintiff to take notice of these tax proceedings and govern itself accordingly. Not having done so it must, like other negligent parties, abide the result.

Judgment affirmed.

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


author: Summers, J.

text:
    Scott et al. v. McCullough et al.

      Special school district — Oannot he formed from centralised territory, when.

    No part of the territory of a special school district is subject to he taken to form another special school district.
    (No. 9527
    Decided June 27, 1905.)
    Error to the Circuit Court of Coshocton county.
    On the seventh day of November, 1904, a special school district known as the Adams Mills special school district, comprising parts of Cass and Madison townships in Muskingum county and part oí Virginia township in Coshocton county, was legally established by the probate court of Muskingum county.
    On the eleventh day of April, 1905, the special district known as the Virginia township special school district, comprising the whole of Virginia township in Coshocton county, including the part that was in the Adams Mills special district, was ordered and adjudged to he created by the probate court of Coshocton county.
    In the proceedings in the Coshocton probate court a remonstrance, signed by substantially all the male electors residing in that part of Virginia township included in the Adams Mills special school district, was filed. A demurrer to this remonstrance was filed and sustained. The remonstrators excepted to the order of the probate court sustaining the demurrer to their remonstrance and to its order including that part of the Adams Mills special school district in the Virginia township special school district.

      On error, the court of common pleas and the circuit court affirmed the judgment of the prohate court, and error is prosecuted to this court.

      Mr. John J. Adams and Mr. C. B. Hunt, for plaintiffs in error.

      Mr. Thomas C. Roche; Mr. F. H. Southard and Messrs. Voorhees & Voorhess, for defendants in error.
   Summers, J.

The question to be determined is whether territory already comprised in a special school district may be included in another special school district.

The civil township is the basis of our school system. Land in each township was donated by the national government to the inhabitants of such township for the use of schools. For surveying the Northwest Territory congress adopted a new system of surveying. This system may be briefly described as the rectangular system. The territory was surveyed into townships six miles square. Each township was divided into thirty-six sections one mile square, and, under the system of numbering, section sixteen was as nearly as any other in the center of the township.

By section 7 of the act of 1802, which authorized the people of the eastern division of the Northwest Territory to form a constitution and a state government, congress proposed that section 16 in every township “shall be granted to the inhabitants of such township for the use of schools. ’ ’ The proposition was accepted by a resolution passed November 29, 1802, by the constitutional convention, on condition that a like donation, amounting to about one thirty-sixth of the territory, be made in those parts of the state not surveyed, and this condition was complied with by an act of congress in 1803. And in that year the legislature provided for the leasing of the same in order that the proceeds arising therefrom might be applied to the support of the schools. By an act passed in 1806 the commissioners, as soon as there were twenty electors in any original surveyed township, or part or fractional township, upon application of the electors, were required to fix the time and place for the election of trustees, who were empowered to lay off the township into proper divisions for the purpose of establishing schools therein. These districts were subdistricts. Subsequently joint subdistricts and city and village districts were provided for, and our system of common schools comprised township schools and city or village schools. The township was or might be divided into districts, and the city or village district might include territory outside of the corporate limits of the city or village. Whether or not this donation by the national government originated or made necessary á system in which the civil township is the basis, it is not necessary to determine. The civil township and the original surveyed township are not always identical. The important thing is the fact that only territory forming part of the township school district was taken in creating other districts.

Special districts were established by vote of the people under legislative authority or by special legislation, and were governed by the provisions of the act under which they were created. But prior to the act of 1873 (70 O. L., 195), special school districts were not recognized as a part of the common school system. By that act they were included as a part of that system, hut it was not until the revision of the statutes in 1880 that provision was made for the establishment of such schools. Then section 3891 provided that: “Such districts may be established as provided in chapter five of this title.” Chapter five provided for the establishment of joint sub-districts, and that a joint subdistrict composed of parts of two or more townships might be established by the mutual agreement of the boards of education of the townships interested. Also that they might be so formed on petition of three or more qualified electors residents of the territory sought to be included therein, and that in the event such boards failed to do so within sixty days, three or more of such electors might file a petition therefor with the probate judge of the county, and it is made his duty to appoint three judicious, disinterested men of the county, not residents of either of the townships to be affected, to be commissioners, who were to meet at a time and place fixed by the probate judge, notice of which was to be given as therein provided, and there hear witnesses and consider and determine the question whether a joint subdistrict ought to be established. And if they reported in favor of the establishment of a joint subdistrict, it was the duty of the judge to make an entry confirming the same. It is apparent that it was the intention of the legislature that only territory in township districts not already forming a part of a city or village or special school district should be taken to form a joint sub-district. Territory included in a city or village or special school district was regarded as already preempted and not subject to be taken. And so far as we are advised it never occurred to any one that any part of such territory was subject to be taken, and when the legislature provided in section 3946 that a petition might in like manner be filed praying for the creation of a special school district, it contemplated its creation from like territory. And in section 3928 of the Revised Statutes, as enacted in the so-called Harrison school code (97 O. L., 334, 345) the same thing was contemplated. It is as follows:

“A special school district may be formed of any contiguous territory, not included within the limits of an incorporated city or village, which has a total tax valuation of not less than one hundred thousand dollars. To establish a special school district, a petition signed by not less than ten male citizens who are electors of the proposed special district shall be filed in the office of the probate judge of the county in which such special district is situated, or if said district is situated in two or more counties, then with the probate judge of the county having the greatest total tax valuation in said proposed district; said petition shall set forth the' desires of the petitioners, shall contain a description of the territory to be included in the proposed special district, and shall be accompanied by a statement giving the total tax valuation of said territory certified to by the county auditor or auditors and also an accurate map of the territory to be included in said district, the same to be prepared to the satisfaction of the probate judge; said petition shall also be accompanied by an undertaking of one or more of the petitioners, with security to the satisfaction of the judge, in the sum of one hundred dollars, conditioned that the parties entering into the undertaking shall pay all the costs of the proceedings if a special school district is not created, and in sueb case the probate judge shall render judgment against "the parties to the undertaking for all the costs of the proceedings. In case the petition is granted the costs shall be taxed against the special school district thereby authorized and shall be paid by the board of education of said special school district, thereafter elected, from any funds that may come into its possession. A remonstrance signed by one or more of the male citizens who are electors of the proposed district may be filed with the probate judge and shall be considered on the hearing of the petition.”

The section then provides that nothing therein contained shall be construed to abolish any special school district then in existence. Section 3929 of the Revised Statutes, as enacted in said code, is as follows:

“Upon the filing of a petition in the probate court for the establishment of a special school district, the judge thereof shall fix a time for the hearing of the same, which shall be within sixty days of the filing thereof; he shall thereupon cause to be published for four consecutive weeks, in two newspapers of opposite politics, printed and of general circulation in the county where the petition is' filed, notice of the filing of such petition and the time of the hearing thereon; such notices shall also be mailed to the clerk or clerks of the board or boards of education having territory in the proposed special school district. The probate judge is authorized to hear and determine the question of the establishment of such special school district, may subpoena and examine witnesses under oath, may change the boundaries of the proposed special school district, shall fix and determine the amount of money due and payable to said special district1 from the surplus money in the treasury or in process of collection in the district or districts from which it was formed, or in case of the indebtedness of snch district or districts, he shall determine the amount of money due and payable by the special school district to the district or districts from which it was formed, and in either case the amount so ‘found due shall be [a] valid and binding obligation upon the board of education of such district or districts. The fees in cases involving the establishment of special school districts shall be the same as in civil cases, and the jurisdiction of the probate court in such cases shall be exclusive. ’

The contention of defendants .in error is that section 3928 in express terms provides that a special school district may be formed of any contiguous territory, which has a total tax valuation of not less than one hundred thousand dollars, and is not included within the limits of an incorporated city or village, and that, as the act in terms exempts territory included within the limits of any incorporated city or village, any constructive exemption is precluded. But sections 3894, 3895 and 3935 are in pari materia with section 3928. Section 3894 provides that a part, or the whole, of any school district may be transferred to an adjoining school district by the mutual consent of the boards of education having control of such districts. Section 3895 provides that if the boards of education interested in the transfer of territory from one district to another fail or refuse to transfer territory by mutual consent, as provided for in section 3894, within sixty days after a petition therefor, signed by not less than one-half of the qualified male citizens who are electors residing in the territory sought to be transferred, is filed with the clerks of the boards, the petitioners may file a copy in the prohate court of the county in which such territory is situated, or if the territory he in two or more counties, in the probate court of the county containing the largest proportionate share of the territory to be transferred. And the probate judge is authorized to hear and determine the case, and give final judgment for or against such transfer. Section 3896 makes provision for a division of funds and indebtedness when territory is transferred or annexed, and section 3935 provides for abandonment or continuance of a special district. It specifies when and how the question shall be submitted to an election by the board of education of the district, and provides: “If more votes are cast for abandonment than against it, or against continuance than for it, said boards shall certify the result to the board or boards of education of the township or townships having territory in said special district and the territory of said special district shall thereby revert to the township school district or districts from which it was originally taken, except as hereinafter provided for in the case of indebtedness of the special district. Otherwise said district shall continue to be and remain and be recognized and regarded as a legal special school district as theretofore constitutedThat is to say, unless more votes are cast for abandonment than against it, or against continuance than for it, the district shall remain a special school district as theretofore constituted. These sections specify how a special school district may be discontinued and how territory may be transferred from it to another district, and by implication cover all the changes within the contemplation of the legislature. So that territory in a special school district is not open to be taken in whole or in part to form a new special school district.

If part of one district may be embraced in another, then part of the latter may be taken for another, and so on as long as other provisions of the statutes may be complied with, and with such consequences as make it unreasonable to assume that such a possibility was within the contemplation of the legislature.

The expediency of establishing the Adams Mills special school district and the alleged injustice of it to the remainder of Virginia township, are not questions for our consideration. The probate judge is authorized to hear and determine the question of the establishment of the district, and his- jurisdiction is made exclusive. If the results are not in but against the interests of the school system the remedy is with the legislature.

The judgments of the circuit court, of the court of common pleas, and of the probate court, are reversed.

Reversed.

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


text:
    Fulks et al. v. Wright.

      Special school district — Oannot he taken from, centralized territory, when.

    When the schools of a township have been centralized, no part of the territory comprised in such centralization is subject to be taken to form a special school district.
    (No. 9526
    Decided June 27, 1905.)
    Error to the Circuit Court of Coshocton county.
    The board of education of Washington township, Coshocton county, at a regular meeting of the board held January 23, 1905, decided by resolution to submit to the electors of said township, at an election to be held February 14, 1905, the question of centralizing the schools of said township under section 3927-2, Revised Statutes, passed and approved April 25, 1904 (97 O. L., 344). Notice was given as provided in section 3970-11 (97 O. L., 354), and such election was duly held on said February 14th, and at a meeting of the board, held on February 27, 1905, as provided in section 3970-10 (97 O. L., 354), the board canvassed the vote and entered upon its records the result, which was in favor of centralization by a vote of seventy-six for to sixty-three against.
    On the thirteenth day of February, 1905, the day preceding the day said election was held, the defendants in error, as petitioners, filed their petition in the probate court of Coshocton county for the establishment of a special school district comprising, with other territory, about one-fourth of Washington township within the boundaries of said district. The plaintiffs in error, male electors residing in Washington township, on March 15th, filed in said probate court a remonstrance against including part of Washington township in said special school district. A hearing was had in said court, and on March 22, 1905, the probate judge ordered that the district as petitioned for be established. •
    The remonstrators prosecuted error in the court of common pleas, where the order of the probate judge was reversed, and on error in the circuit court, the judgment of the common pleas court was reversed and the order of the probate judge was affirmed, and error is prosecuted in this court by the remonstrators, plaintiffs in error herein, against the petitioners, defendants in error herein.

      Messrs. Glenn & Stockum and Messrs. Voorhees & Voorhees, for plaintiffs in error.

      Mr. John C. Adams and Mr. Thomas C. Roche, for defendants in error.
   Summers, J.

The contention here on the part of the defendants in error is substantially the same as the contention of the defendants in error in the preceding case, Scott et al. v. McCullough et al. That is, that section 3928 (97 O. L., 345) in express terms provides that a special school district may be formed of any contiguous territory which has a total tax valuation of not less than one hundred thousand dollars and is not included within the limits of an incorporated city or village, and that, as the act in terms exempts territory included within the limits of an incorporated city or village, any constructive, exemption is precluded. But we are of opinion, for the reasons stated in the opinion in that case, that the words “contiguous territory” are to be limited to such territory as the legislature manifestly had in contemplation when the section was enacted, and that is, to territory that had not been pre-empted by being taken to form some other district, bnt snch as remained a township district or a part thereof. Many illustrations of such construction might be given. Two presently occur. Literally construed, the statutes providing for the organization of villages and hamlets would authorize their creation out of territory already forming a part of a village or hamlet. That would be absurd and manifestly was not intended. Again, prior to the adoption of the new ■municipal code, the statutes provided that in cities of the second class the council should organize at its first regular meeting after the second Monday in April in each year, by electing a president, a clerk, and other officers. The term of the clerk was for two years, so that, manifestly, it was not the intention that a clerk should be elected each year. Other illustrations no doubt might be readily found. Take section 3927-2, Eevised Statutes, passed and approved April 25, 1904 (97 O. L., 344). It provides : “A township board of education may submit the question of centralization and upon the petition of not less than one-fourth of the qualified electors of such township district, must submit such question to a vote of the qualified electors of such township district, and if more votes are cast in favor of centralization than against it, at such election, it shall then become the duty of the board of education, and such board of education is required to proceed at once to the centralization of (the) schools of the township.” Interpreted literally, centralization would include all the schools in the township, city, village, and special district, as well as township schools, which manifestly was not the intention of the legislature.

This section further provides: “When the schools of a township have been centralized, such centralization shall not be discontinued within three years thereafter, and then only by petition and election as required herein, and if at such election more votes are cast against centralization than for it, the division into subdistricts as they existed prior to centralization, shall be thereby re-established at the next regular election, and subdistrict directors shall be elected as provided in section 3921a of this act. ’ ’ This shows plainly that the legislature contemplated' only the centralization of subdistricts, and the provision that when the schools of a township have been centralized such centralization shall not be discontinued within three years thereafter, would seem to indicate clearly that the legislature did not contemplate that decentralization might be effected by the taking of the whole or a part of the territory of the township for the establishment of a special school district. Such being the intent of the legislature, and proceedings having been commenced for the centralization of the schools of the township prior to the filing of the petition in the probate court for the establishment of the special school district, the territory of Washington township, pending those proceedings was not subject to be taken for a special school district, and the probate judge was without jurisdiction to include in the special school district any part of the territory of Washington township.

Judgment of the circuit court is reversed and the judgment of the court of common pleas is affirmed.

Reversed.

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