author: Mjnshall, J. Spear, J.,

text:
    The State of Ohio v. Ransick.

      Bill of exceptions taken in trial before justice of peace — Not required to be entered on his docket: — Petition in error — Attachment of transcript — Section 7358, Rev. Stat. — Definition of oleomargarine — Act of May 16, 18(14 — 1-aw of adulteration.

    1. A bill of exceptions taken in a trial before a justice of the peace in a criminal case, is not required to be entered upon his docket. It is sufficient if it be allowed and signed by the justice and filed with the papers in the case, and an entry of these facts with the date thereof is made on his docket.
    2. The attachment of a transcript to the petition in error as required by section 7358, Revised Statutes, is not requisite to jurisdiction. The court has power in such case, where objection is made, to allow an amendment permitting the transcript to be attached. The requirement may be waived, and where no objection is taken in the first instance, it will be held to be waived.
    °3. Oleomargarine, as defined in section 4 of an act of May 16, 1894, (91 Laws, 274) does not include butter made from pure milk or cream, without any adulteration, though it may be deficient in butter fats. The law does not purport to regulate the sale or grade of butter.
    (Decided March 20, 1900.)
    Error to the Circuit Court of Hamilton county.
    Henry Ransick was prosecuted and convicted before a justice of tbe peace in Hamilton county, on the charge, supported by affidavit, of exposing for sale oleomargarine, without keeping a card where the same could be plainly seen that what he offered for sale was oleomargarine, as required by statute; the statute relied on being section two of the act of May 16, 1894 (91 Laws, 274.)
    The defendant, after a motion for a new trial had been overruled, took a bill of exceptions containing all the evidence, which was allowed and signed by the justice and filed with the original papers in the case, but not entered upon the docket; the fact, however, of the allowance and signing was noted thereon. Error was prosecuted by him to the court of common pleas; the assignments of error being that the justice erred in overruling his motion for a new trial, and that the judgment is against the law and the evidence. The common pleas affirmed the judgment without passing on the errors assigned, for the reason as held, that it could not regard the bill of exceptions, as it had not been entered upon the docket of the justice of the peace.
    On error the circuit court reversed the judgment and remanded the cause to the common pleas. The state prosecutes error here for the reversal of this judgment.

      0. J. Benner and Scott Bonham, for plaintiff in error.

      Tafel & Scott, for defendant in error. <
   Mjnshall, J.

Two questions are presented by the record. 1. Did the common pleas err in refusing to consider the bill of exceptions? And, 2. If it did, Is the judgment of the justice against the law and the evidence? These questions will be considered in their order.

By an amendment of section 6565, Revised Statutes, that took effect July 1,1893 (91 Laws, 358) the right is given to a party “In all cases before a justice of the peace, whether tried by a jury or by the justice of the peace,” among other things, to except to the decision of the court on a motion “for a new trial because the verdict, or if a jury is waived, the finding of the court is against the law and the evidence.” He is then required to reduce his exception to writing and present it to the trial justice, “and if the same is correct he shall sign said bill of exceptions and file the same with the papers in the case, and note such signing and filing in his docket, and transmit the same with the transcript of his docket and original papers, within ten days from the date of the signing, to the clerk of the court of common pleas, and by him filed and entered in his docket as in other cases.” The parts here quoted constitute the principal change made in the law by the amendment of this section. By the same act Sec. 595, Revised Statutes, was amended so as to dispense with the spreading of the bill of exceptions upon the docket, the requirement now being that he shall “simply enter on his docket the signing of the same with the date thereof.” It is then provided that “Such entries in a justice’s docket, or a transcript thereof, certified by the justice, or his successor in office shall be evidence to prove the facts stated therein.”

It is not disputed but that the practice adopted complied strictly with these provisions; but it is claimed that they apply only to cases within the civil jurisdiction of a justice of the peace; and that as to eases within his criminal jurisdiction, the law remains unchanged, and they cite and reply on these sections of the Revised Statutes:

Sec. 614. In all cases of summary conviction before a justice of the peace of any offenses punishable by fine or imprisonment, the party or parties defendant shall have the right to except, and to have a bill containing the exceptions signed by such justice of the peace, and made part of the record; and all such convictions may be reviewed by the common pleas court on proceedings in error, and reversed or affirmed as right and justice may require.

Sec. 7358. The proceedings to review any such judgment shall be by petition in error, to which shall be attached such transcript, and also any original papers received by the clerk, except that in cases of felony it shall not be necessary to include in transcript of the record any bill of exceptions, but the original bill of exceptions may be attached in lieu of the transcript of the record thereof. And the court in which the review is sought may, by summary process, compel a more complete record to be furnished, and such original papers to be forwarded.

We do not adopt this view. We concur in the opinion of the circuit court in this regard (15 C. C., 371; 8 C. D., 306.) The language of section 6565 is general. It embraces all cases before a justice of the peace — not merely civil cases. The object seems to have been economy and convenience in practice, and in reason, applies as well to criminal as to civil eases. By approving and filing a bill of exceptions and entering this fact on the docket with the date thereof, it becomes a part of the records in a justice’s court. Compliance with these requirements identifies the bill as a part of the proceedings before the magistrate as fully as if it were spread at large on his docket; and it cannot, therefore, be said that there is any room for uncertainty as to what was done in his court, in a review of his proceedings on .error. There was then no need for a change in section 614. By the amendment of section 6565, the bill became a 'part of the record in contemplation of law by the justice .making a memorandum on his docket that he had allowed and signed it; just as does a bill of exceptions in the common pleas, where it is allowed and signed by the trial judge and ordered to be made a part of the record, though not spread upon the journal. The bill in such case becomes a part of the record without more being done. Section 595, Revised Statutes, read in connection with the immediately preceding section, was the only one, that before the amendment of 6565, required a bill of exceptions to be entered upon the docket, and. by amendment this was changed, so as to dispense with it$ entry upon the docket; and this dispensed with the same requirement in criminal cases, since sectiAu 611, requiring a criminal docket to be kept by a justice of the peace, and directing what should be entered therein, provides that it shall be done “with the same particularity as is required in his civil docket as to civil actions.” In other words, the keeping of the criminal docket is made to conform to the keeping of the civil docket, and, as by the amendment, the entry of a bill of exceptions on the docket is now dispensed with in civil cases, it is likewise dispensed with in criminal cases.

It is also made an objection that the transcript -was not attached to the petition in error as required by section 7358. We do not think that this is a. prerequisite to jurisdiction. It could easily have been attached if required. But it seems that no such objection as this was made in the court below — the objection there was that the bill of exceptions had not been entered on the docket. The court would have had the power to have permitted it to be done (section 7358); and we can see no reason why it should have refused, had leave been asked on the objection being made. The objection must now be regarded as waived. The case of Stanley v. State. 23 Ohio St., 581, is cited in support of this contention. It is not in point. It was decided before writs of error in criminal cases had been abolished. The remedy now in criminal eases being by petition in error as in civil cases, the same practice obtains in this regard in both classes of cases. Section 7304 also shows that uniformity of practice is to be followed in the taking of bills of exceptions in civil and criminal cases.

We come now to the merits of the case: Was the conviction against the evidence?

It Avas shoAvn by the evidence that a sample of what was exposed for sale by the defendant was pure butter, Avithout any foreign admixture, containing seventy-three per cent, of butter fat; the expert testifying that he could not even designate it as butter of “Ioav grade,” but simply as containing too much water, the butter-milk not being properly worked out. There was no dispute about this. Did this constitute an offense against the statute? We think not. The ofíense charged against the accused was that of exposing for sale oleomargarine without keeping a white placard in a conspicuous place where it was sold, with the words printed thereon in black letters, “Oleomargarine Sold Here.” So that unless what the defendant exposed for sale was oleomargarine, he was not guilty as charged. The statute, section 4, defines it as follows:

“The word ‘oleomargarine’ as used in this statute, shall be construed to mean any substance not pure butter of not less than eighty per cent, of butter fat, which substance is made as a substitute for, in imitation of, or to be used as butter.”

The definition excludes pure butter. The article exposed for sale was pure butter, and so had not been made as a substitute for, or in imitation of butter. It may have been inferior butter; but this statute does not purport to regulate the grade of butter, or determine what per cent, of butter fat it shall contain. Whether it would be wise to have such a statute, the legislature must determine. It defines and regulates the sale of oleomargarine, and by its terms excludes pure butter without defining it. This, as shown, was made from pure milk, no adulteration was detected, and though not up to the standard in butter fats, a circumstance due to its manufacture, was nevertheless pure butter. It had not been made as a substitute for or in imitation of butter. It was made for butter and was butter.

Judgment affirmed.

Spear, J.,

dissents. Davis, J., dissents from the first and third paragraphs and both dissent from the judgment of affirmance.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    The Second National Bank of Sandusky v. Becker, et al.

      Imprisonment for debt forbidden in civil actions — Section 15 of Bill of Rights- — -Nature of money obligations — Enforcement of delivery of attached property — Section 5556, Rev. Stat.— Proceedings in contempt against sureties on undertaking — Cannot be imprisoned in default of payment, when — Judgment against sureties in action against principal, without due process of law, when.

    1. Money obligations arising upon contract, express or implied, and judgments rendered thereon, are debts within the purview of section 15 of the Bill of Rights, which forbids imprisonment for debt in civil actions.
    2. Section 5556, of the Revised Statutes, and the provisions therein referred to relating to proceedings in contempt, must be so construed, and restrained in their operation, as to avoid conflict with the inhibitions of the constitution, and, in so far as they are in derogation of personal liberty, should receive a strict construction.
    3. An order made in a proceeding in contempt against sureties on an undertaking for the redelivery of attached property by the principal, requiring'them to pay the judgment recovered against the principal, and directing that in default of such payment they shall be imprisoned in the county jail until they shall pay the judgment, is in contravention of their constitutional right of exemption from imprisonment for debt.
    4. Judgment rendered against the sureties in such summary proceeding, for the amount of the judgment recovered against the principal in an action to which they were not made parties, is without due process of law, there having been no suit brought against them on the undertaking, nor opportunity given them to plead or defend according to the usual course of legal proceedings.
    (Decided March 20, 1900.)
    Error to the Circuit Court of Erie County.
    The Second National Bank of Sandusky, Ohio, commenced an action in the court of common pleas of Erie county, against William Becker, on two n®tes made by him amounting to nearly nine hundred dollars, and at the same time sued out an attachment against his property. The writ was levied on certain chattel property of the defendant which Avas inventoried and appraised at $1,585.00. After the levy and appraisement, the property Avas delivered by the sheriff to the defendant, Avhen W. W. WoodAvard and John Iliest as his sureties, executed and gave to the sheriff the following undertaking:

      “Knoio all Men by these Presents, That we, W. W. WoodAAard and John Diest, are held and firmly bound unto the said The Second National Bank of San-dusky, Ohio, plaintiff, in the sum of three thousand dollars ($3,000.00), to the payment of which Avell and truly to be made, Ave do hereby jointly and severally bind ourselves, our heirs, executors and administrators. Signed by us and dated this 19th day of January, A. D. 1895.
    The condition of the above obligation is such: That, Avhereas, A. A. Magill, sheriff of Erie county, Ohio, has this day attached the folloAving goods and chattels found in the possession of William Becker, on an order of attachment issued from the court of common pleas for said county of Erie, in an action wherein the said the Second National Bank of San-dusky is plaintiff, and the said William Becker defendant, as the property of the said William Becker, to-wit: 2 wine presses, $100 each, $200; 11 wine casks, 1300 gallons each, $350; 4 wine filters, $75; 19 wine casks, 2,000 gallons each, $960; total, $1,585.
    And whatever goods are contained in premises hereinafter described in said premises, are situated in Kelly’s Island, county of Erie, and state of Ohio, and knoAvn as the property of William Becker. For a true inventory and appraisal of the within described property, see Schedule “A,” case No. 7122, Robert Hamilton v. William Becker, which is made part of this bond. Which said property has been duly appraised at the sum of $1,585. And, whereas, the said sheriff has delivered the said property to the said William Becker. Now if the said property so attached, or its appraised value in money, shall be forthcoming to answer the judgment of the court in said action, then, this obligation to be void; otherwise to remain in full force and virtue in law.
    W. W. Woodward,
    John Diest.
    Signed in my presence and approved by me this 19th day of January, A. D. 1895.
    A. A. Magill, Sheriff.”
    In that action, at the November term of the court in 1895, the plaintiff recovered a judgment against Becker for the amount of the debt, and obtained an order against him and the sureties on the undertaking, for the redelivery of the attached property to the sheriff for sale. This order required the parties against whom it was directed to make the redelivery within three days after its service upon them, and in default thereof to “forthwith pay to the sheriff the amount of the plaintiffs judgment with interest, and costs.” The parties having failed to comply with the order, the plaintiff instituted a proceeding in contempt against them, and obtained a rule requiring them, on a day therein named, to show cause “why they and each of them should not be punished as for contempt for disobedience and failure to comply with said order.” This contempt proceeding came to a hearing at the April term, 1899, and, at the conclusion of the hearing, the court found the parties guilty of the contempt charged, and made and rendered against them the following judgment and order : “It is therefore ordered, considered and adjudged that the said plaintiff recover from said defendants, William Becker, W. W. Woodward and John Deist, the sum of $867.92, with interest at 5 per cent, on &247.06 from the 4th day of November, 1895, and interest on $620.86 from the 4th day of November, 1895, being the amount of said judgment and interest and the costs of this action, together with all increase costs, to which defendants except. It “is further ordered and adjudged that the said defendants pay or cause to be paid said judgment against said William Becker, with interest thereon, as aforesaid, and the costs of this action, to the clerk of this court, within twenty-four hours from and after the date of this order, and execution is awarded therefor, and that in default thereof they and each one of them be committed to and imprisoned in the county jail of Erie county until said order is complied with, and that a warrant issue from the clerk of this court to the . sheriff of Erie county, Ohio, for said committment and imprisonment.”
    The parties against whom the foregoing judgment and order were entered, in due time filed their motion for a new trial, which was overruled, and they thereupon perfected a bill of exceptions, from which it appears, in addition to the facts already stated, that the amount of the undertaking in question could be made on execution against Woodward, who is solvent; that Becker, in 1898, made an assignment for the benefit of his creditors to George E. Reiter, who accepted the trust and took possession of all the property then within the control of Becker, and demanded of each of the sureties on the undertaking, all property of Becker’s in their possession; that none of the attached property had been lost or destroyed, but a portion of it, being perishable, was sold and has passed out of existence; that the parties were unable to comply with the order of the court requiring the delivery of the property to the sheriff; and, that they had no “intention to commit contempt of court, and were under the advice of counsel that if they were liable to any person they would be liable to no one but the assignee of William Becker.” The circuit court on error prosecuted there, reversed the judgment and order of the common pleas, and the object of the proceeding in error here is to obtain the reversal of the judgment of the circuit court, and an affirmance of that of the common pleas.

      King cG Guerin, for plaintiff in error.

      II. L. Peake, and George E. Reiter, for defendants in error.
   Williams, J.

The principal question which the record brings before us, is whether the judgment and order of the court of common pleas here under review are incompatible with section 15 of the Bill of Rights. The circuit court held them to be so, and on that ground, reversed them. That section of the constitution provides that: “No person, shall be imprisoned for debt in any civil action, on mesne or final process, unless in case of fraud.” The question here is not embarrassed by any feature of fraud, for it is disclaimed there was any fraud on the part of Becker in obtaining the delivery of the attached property to him by the sheriff, or any on the part of either of the defendants in error in incurring the obligation upon which the judgment and order in question were founded. The property was delivered by the sheriff in pursuance of a provision of the statute, upon the acceptance by him of the proper undertaking with sufficient sureties, as therein provided. No bad faith or fraud is imputed to any of the parties in the transaction. Nor, is it disputed that the judgment and order were rendered in a civil action. Imprisonment thereunder would be imprisonment on process in such action. The constitutional provision is not to be construed as confined to arrests upon writs. White v. Gates, 42 Ohio St., 109-110. The point in controversy is whether imprisonment under the order would be imprisonment for debt, within the purview of the constitutional provision referred to. The proceeding in contempt was founded on the order of the court entered as part of the judgment recovered by the Bank in its action against Becker on his two notes; and the primary object of that order was to procure the redelivery of the property attached in' that action, to the sheriff' for sale for the satisfaction of the Bank’s judgment. Notwithstanding the sureties on the undertaking given by Becker for the redelivery of the property were not parties to that action, the order ran against them as well as Becker. It directed that they all should “within three days from the service of the order redeliver to the sheriff all of said property, or in default thereof that they should “forthwith pay to the sheriff, the judgment recovered by the Bank against Becker, with interest and costs.” Upon the hearing on the rule issued in the contempt proceeding for failure to comply with that order, the court, presumably, was satisfied, as indicated in the bill of excejjtions, that the parties were unable to comply with that part of the order which required the redelivery of the property, for it simply rendered a general judgment against all of the parties for the amount of the judgment which the Bank had theretofore recovered against Becker, and entered an order against all of them, that if they did not pay the judgment within twenty-four hours, they should “be committed to, and imprisoned in, the county jail;” until they should pay it. It is this judgment and order which the circuit court reversed.

It seems indisputable that the money due the Bank on its judgment against Becker, is a debt. Payment of that debt was the only means, under the order complained of, by which the defendants in error could escape imprisonment in the county jail. The end sought by the order, and its sole purpose, was to coerce payment by imprisonment. The first judgment against Becker acquired no additional force by the rendition of the second one against him for the same debt, nor any additional means or remedy for the enforcement of its collection, except by his imprisonment for its non-payment; and the order against his sureties had no other object than to enforce performance by them of their obligation for the principal, by subjecting them to imprisonment for the principal’s default in making payment of the judgment against him. The observation is pertinent here that the obligation of the sureties on the undertaking is not to redeliver the attached property to the sheriff, nor that Becker should redeliver it. By its terms the undertaking binds the obligors for the payment of a sum of money to the sheriff, and the forthcoming of the property, according to its condition, to answer the judgment that should be recovered in the action, is merely a mode provided for discharging the money obligation. It is clear the sureties did not contract to undergo incarceration in prison for any default of the principal in the performance of the condition of the undertaking, and that their liability upon it is a debt arising upon contract. The constitutions of most of the states contain a prohibition against imprisonment for debt, substantially like that in ours, and the authorities hold with general unanimity that the word debt, within the constitutional inhibition, includes not only debts of record, judgments, and specialties, but generally all obligations arising upon contract, express or implied; and some of the courts give the word a still larger meaning.

The real contention of counsel for the plaintiff in error is, that the judgment and order under consideration are justified by section 5556, of the Revised Statutes, and other statutory provisions therein referred to. That section provides that “The court may compel the delivery to the sheriff for sale of any of the attached property for which an undertaking has been given, and may proceed summarily on such undertaking to enforce the delivery of the property or the payment of the money due upon the undertaking by rules and attachment as in cases of contempt.” And it is provided by sections 5640, and 5646, which relate to proceedings in contempt, that disobedience of, or resistance to, an order or judgment of a court may'be punished as for a contempt; and that when the contempt consists in the omission to do an act which is yet in the power of the accused to perform, he may be imprisoned until he performs it. It is unnecessary in this case to hold these statutory provisions, or any of them, unconstitutional; but to avoid that result, they should be so construed, and restrained in their operation, as not to bring them in conflict with the inhibition of the constitution; and their provisions, so far as they interfere with personal liberty, must receive a strict construction. Spice v. Steinruck, 14 Ohio St., 213. White v. Gates. 42 Ohio St., 109, 112. It is not in every case of contempt that imprisonment may be imposed as a punishment. There are many orders and commands of courts, other than those for the payment of a debt, or the enforcement of a judgment upon a money obligation, to which the statutes may have appropriate application. Of this class, it has been held, are orders to deliver property in the possession of a party, or turn over moneys in his hands, to a receiver. Re Milburn, 59 Wis., 24-31; orders not to transfer or dispose of property pending a litig'ation; Re Perry, 30 Wis., 269; and others of a like nature. But the order complained of in this case was not of that character. It was not to deliver any of the attached property then in the possession of the defendants; they had none in their possession. Nor was it to turn over any money in their hands belonging to the plaintiff; they were not the custodians of any fund. It was strictly an order for the payment of a debt, namely, for the payment of a specified amount of money in satisfaction of a judgment rendered against them, and. in default of such payment, to stand committed. This order was therefore erroneous, and was properly reversed. And, we think the judgment rendered against the sureties was also. As has already been noticed, they were not parties to the original action against Becker, nor before the court, either by process or appearance, when the order was entered in that action requiring them to redeliver the attached property to the sheriff or pay the judgment then rendered in favor of the Bank against Becker. The court was therefore without jurisdiction to make the order that was then entered against them. That order was the foundation of the subsequent proceeding for contempt. In that proceeding they were only notified to show cause why they had not redelivered the property in compliance with the previous order. No suit was brought against them on the undertaking, nor opportunity given them to plead or make defense to any claim of liability thereon, or be heard according to the usual course of legal proceedings. It can scarcely be claimed that this was due process of law.

Judgment affirmed.


author: Shauck, C. J.

text:
    The Lake Erie & Western Railroad Co. v. Falk and The Phoenix Insurance Co.

      Liability of railway company for loss from fire on adjacent property— Act of April 26, 1894 — Question of evidence as to cause of fire — Limitation of liability — Subrogation of insurer of property to rights of owner.

      1. In an action against a railroad company to recover the value of property destroyed by fire, the liability of the company is, under the provisions of the act of April 26, 1894, “making railroad companies liable for loss or damage by fire in certain cases, and prescribing rules of evidence,” (91 O. L., 187) established when it is admitted or proved that the fire which caused the destruction originated on the land of the company and was caused by the operation of its road.

      2. When the property so destroyed under circumstances which make the company liable therefor is insured, the right of the owner as against the railroad company and the insurer is limited to indemnity for his loás.
    3. The ultimate liability for such loss is upon the railroad company, and in an action brought for its enforcement, the owner and the insurer being parties, there should be a recovery for the value of the property destroyed without deduction on account of payments made to the owner by the insurer in discharge of-the obligation imposed by its policy.
    4. In an action brought by the owner against the railroad company to enforce such liability an insurer, having before the termination of the action, made payment to the owner on account of such loss, should intervene for the purpose of being subrogated to the rights of the owner to the extent of such payment, and the amount recovered from the railroad- company should be adjudged to the owner and the insurer according to their respective interests.
    (Decided March 20, 1900.)
    Error to the Circuit Court of Hancock County.
    Falk brought suit in the court of common pleas against the railroad company to recover the value of a grain elevator and chattel property within it, which were destroyed by fire on the 17th of August, 1895. He alleged that his said property was near the line of the defendant’s railroad and that the fire originated upon the land belonging to the railroad company and was caused by operating the road. He also alleged that the company negligently omitted to use a spark arrestor or other appliance to prevent the emission of sparks from the locomotive, from which negligence the fire originated. The value of the building was alleged to have been $2,100, the value of the chattels sufficient to increase his loss to $2,519.95, for which he prayed judgment.
    In its answer the Railroad Company admitted its corporate character and the destruction by fire of the plaintiff’s property on the day stated. It denied every other allegation of the petition. Its answer also contained the following allegations:

      Tlie defendant for further answer says, that the damage to plaintiff on the loss of said elevator by the fire set out in the petition was $1,437 34-100 and no more, and such loss to the amount of $1,200.00 was compensated and paid to plaintiff by the Phoenix Insurance Company of Brooklyn, New York, and the only loss on said elevator was tbe sum of $237 34-100 at the time this actipn was brought.
    Defendant says that all loss and damage to plaintiff by reason of the loss of grain by said fire was the sum of $264.95 and no more, and such loss and damage was fully and wholly compensated to plaintiff by the payment to him by The Phoenix Insurance Company of Brooklyn, New York, the sum of $264.95 in money.
    Such payments were made to plaintiff by said The Phoenix Insurance Company, of Brooklyn, New York, in the regular course of business of said company, for the consideration of a cash premium to said company, paid by plaintiff, in the sum of $29 75-10,0, for which consideration said company agreed in writing to make good to plaintiff such loss if it should occur.
    Defendant says that said The Phoenix Insurance Company, prior to the filing of said amended petition, has filed a written claim with defendant for the payment to said company of the value of the said buildings and property so by said fire destroyed, in the whole sum claimed by plaintiff, and claiming that they, said company, alone has the right to recover from defendant therefor under the terms of the said contract between plaintiff and said company.
    Defendant says that by the terms of the contract aforesaid, and by reason of the payment of said sums by The Phoenix Insurance Company to plaintiff, the plaintiff has no right to recover against defendant in this action.
    Defendant therefore prays that plaintiff be required to bring in said The Phoenix Insurance Company as a party to this action, and that said The Phenix Insurance Company be required to set up any claim they may have in the subject matter of this action within a time to be named by the. court, and that in default of such claim being set up herein by said company, said company be debarred from ever setting up such claim against defendant hereafter, and that on the trial of this action defendant may be dismissed hence with costs, and for all proper relief.
    Replying to the Railroad Company’s allegations as to payment made by the Insurance Company on account of said loss, the plaintiff made the following allegations:
    The facts as to the insurance of said property are as follows, not otherwise, to-wit: On or about June 15, 1895, for the consideration of $29.75 he purchased a policy of insurance from the Phoenix Insurance Company, of Brooklyn, New York. That he paid for said policy and contract of insurance, and thereby for said consideration said The Phoenix Insurance Company, of Brooklyn, New York, insured plaintiff against loss and damage by fire on his said elevator building in the sum of $1,200, and on his grain and seed therein the sum of $500, both said items being in said policy, the same being the only insurance he had on. any of said property.
    That said policy was in force at the time of said fire mentioned in his amended petition herein.
    After said fire said insurance company paid him under said policy on account of loss on said elevator building twelve hundred dollars, as it was bound by its contract to do, and at the time of said fire the grain and seed mentioned in said amended petition was in said building and was destroyed by said fire, and said insurance company paid him on account of loss to his said grain and seed, as it was bound to do3 the sum of two hundred and sixty-four dollars and ninety-five cents; in all said insurance company paid him $1,464.95 and no more.

      He says said insurance policy belonged to plaintiff, and said $1,464.95 so received from said insurance company also belongs to plaintiff, and said defendant railroad company is not entitled, as against plaintiff or at all, to credit for said insurance money or any part thereof against plaintiff’s said loss by said fire, or any part of said loss, and said railroad company is not entitled to offset any of said insurance money or any part of the amount thereof against plaintiff’s claim in his amended petition herein set forth, but he says lie is eneitled to recover from said railroad company the full amount of his said loss and damage in his amended petition herein set forth.
    The Phoenix Insurance Company, having been made a party, alleged that by its policy to Falk it had insured the building destroyed in the, sum of $1,200 and personal property within it for $500; that the fire occurred during the life of the policy and was caused by the negligence of the Railroad Company, and that it paid to the insured the full amount of the policy on the building and the further sum of $264.95 which, upon adjustment, was found to be the loss on chattels which were covered by the policy. It therefore prayed that by subrogation to the rights of Falk it might recover from the Railroad Company the money which it had so paid. There was further pleading, but of an argumentative character, by the Railroad Company as a part of its contention that it was liable only for the difference between Falk’s loss and the amount which the Insurance Company had paid. There was further pleading of a like character by Falk as a part of his contention that, notwithstanding the indemnity which he had received from the Insurance Company, he was entitled as against both it and the Railroad company to recover from the latter the entire value of the property destroyed. The pleading of this character did not at all affect the issues and they are therefore omitted from the statement. The allegation of the Insurance

      Company that it had paid Falk $1,464.95 on account of tbe loss was admitted by all tbe parties. Its allegation that tbe fire was caused by tbe negligence of tbe Railroad Company was denied by tbe latter.
    Upon tbe trial it appeared without contradiction that the fire originated upon the lands of tbe Railroad Company. Tbe court, not requiring proof of negligence, directed tbe jury to return a verdict in favoi of tbe plaintiff for 'the value of the property destroyed if they Avere satisfied from tbe evidence that tbe fire Avas caused by the operation of tbe railroad. Tbe jury returned a verdict for the plaintiff for $2,-394.94, being tbe estimated value of tbe property with interest thereon. Tbe Railroad Company filed a motion for a neAV trial, the material grounds being that tbe verdict Avas contrary to the law and tbe evidence and that tbe court erred in tbe charge, and the motion was overruled. Tbe court thereupon rendered judgment against tbe Railroad Company for tbe amount of tbe verdict and tbe costs of tbe suit and further adjudged that the Insurance Company was entitled to receive out of the judgment the sum which it had paid to Falk in discharge of its policy obligation and- ordered tbe clerk to pay that sum to it out of tbe proceeds of tbe judgment, and to pay the balance thereof to Falk.
    To tbe judgment so rendered both Falk and tbe Railroad Company excepted. On petition in error in the circuit court the judgment of tbe common pleas was affirmed.

      Jason Blackford; John B. Cockrum and A. Black-ford, for tbe Railroad Company.

      John Poe, for Falk. ,

      Burket & Burket, for the Insurance Co.
   Shauck, C. J.

It being conceded that tbe fire originated upon the land of the Railroad Company, tbe instruction that tbe jury should return a verdict against the Railroad Company for the value of the property destroyed, if satisfied by the evidence that the fire was caused by operating its road, was justified by the act of April 26, 1894, “making railroad companies liable for loss or damage by fire in certain cases and prescribing rules of evidence” (91 O. L., 1ST). That the act is valid and that it renders proof of negligence unnecessary in cases of fire so originating was decided in Lake Erie & Western Railroad Co. v. Kreager et al., 61 Ohio St., 312. The record shows that counsel for Falk contended below that, notwithstanding the previous payment to him of the larger part of his loss by the insurance company in discharge of the liability imposed by its policy on the. property destroyed, he is entitled to recover from the railroad company the full amount of his loss and to retain it against the insurance company’s assertion of a right of indemnification by way of subrogation. That point having been decided against him in the courts below we should perhaps infer from the absence of a petition in error by him here that that proposition is no longer .insisted upon. It is quite manifest that it could not be urged successfully, for although both companies had a liability with respect to the loss, his right was to recover only the value of the property destroyed. Good morals and important considerations of public policy forbid that conflagrations should be made profitable. This view of the subject has always been taken by the courts, and it has controlled all judgments which were not affected by statute.

The remaining questions arise upon the exceptions of the railroad company to the instruction that upon the condition named there should be a verdict for the value of the property destroyed without deduction on account of the payment made by the insurance company, and to the order permitting that company to plead in the action and to the judgment rendered in its favor. Upon these exceptions it is insisted that the insurance company is without right as against the railroad company, and that if a right exists, it can not be enforced in this action.

If we assume that the railroad company has an insurable interest in the property of others along the' line of its road because of the liability imposed on it by the statute referred to, it does not seem to aid the view of its counsel. The owner of such property retains his insurable interest therein, and be may desire indemnity as against loss or damage by fire not caused by the operation of the road as well as further indemnity against loss by fire for which the railroad company is liable. For one or both of these reasons Falk secured this contract of indemnity, the consideration therefor being a premium paid by himself. If the railroad company desires indemnity against its liability under the.statute it may, upon this assumption, secure it for a consideration by it paid. It can not claim any immunity because of the contract relations existing between the insurer and the owner. The rule that an insurer who has "paid the loss resulting from a peril insured against may be subrogated to all the claims which the insured may have against any person by whose negligence the injury was caused, was recognized by this court in the Globe Insurance Co. v. Sherlock, 25 Ohio St., 50. It is said that the rule cannot apply to the case under consideration, because here the injury was not caused by the negligence of the railroad company. It is true that, although such negligence-was alleged in the petition, the instruction given .to the jury permitted a recovery without a'finding'of negligence, unless it is included in the fact admitted, that the fire originated on the land of the railroad company, and the fact which the instruction required to be found, that it was caused by the operation of the railroad. The evidence upon which the jury found that the fire was caused by operating the road all shows that it was communicated by a passing.locomotive. The second section of the act referred to provides: “In all actions against any person or incorporated company for the recovery of damages on account of any injury to any property, whether real or personal, occasioned by fire communicated by any locomotive engine while upon or passing along any railroad in this state, the fact that such fire was so communicated shall be taken as prima facie evidence to charge with negligence the corporation or person or persons who shall, at the time of such injury by fire be in the use and occupation of such railroad.” The cases in which there may be recoveries under the statute are cases in which, without its aid, there might be recoveries upon plenary proof of negligence. The statute does not change the ground of the liability. In effect, it provides that the negligence which constitutes the ground of recovery is an inference of law from the facts which in this case were admitted or proved. There is, therefore, no ground for the insistence that the rule which was recognized in Insurance Co. v. Sherlock, is inapplicable here. The rule was there stated in language appropriate to the facts presented by the case which was under consideration. It was not intended to place an arbitrary restriction upon the doctrine of subrogation. Under that doctrine one is substituted for another as creditor or possessor of property or any other rightful claim.. When one is substituted to the rights of a creditor, it is to the end that a liability may be alleged and adjudged against him upon whom it should ultimately rest, and in favor of another by whom it has been discharged in the performance of any legal obligation. The right does not depend upon contract nor upon privity of obligation. The cases collected by Mr. Sheldon in his work on subrogation justify his statement that “The doctrine is broad enough to include every instance in which one party pays a debt for which another is primarily answerablec and which in equity and good conscience should have been discharged by the latter.” Of course the right does not belong to a mere volunteer who discharges an obligation for which he is in no sense answerable. But the qualification is not important here in view of the insurance company’s obligation to Falk by the terms of its policy. The cases in which the doctrine of subrogation has been recognized as applicable to cases not differing from this in any material aspect are very numerous. They are collected in the works on subrogation and insurance.

It is true that the insurance company did not allege either that Falk had assigned the policy to it, or that by the terms of the policy it had reserved the right, upon payment, to be subrogated to the right of action of the insured against the company. Neither averment is required by reason or authority. The right of subrogation arises out of the relation of the parties to the subject of the action. Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U. S., 397.

Notwithstanding the prayer of the railroad company that the insurance company should be brought into the action, it is now contended that it should not have been permitted to intervene and to assert its right of subrogation in the action brought by the owner against the railroad company. But the subject of the action was the loss sustained in consequence of the destruction of the property. The object of the suit was to recover the value of the property from the party ultimately liable, and to apportion the proceeds of the judgment recovered between the injured parties according to their interests in the amount recovered. The recovery sought was for a single wrongful act and the railroad company could have objected with more force if it had been subjected to two actions by those interested in the recovery. This mode of asserting the rights of parties in the subject of a single cause of action, all being brought into the same suit and each asserting his own interest, is in conformity with the requirements of modern procedure. Swarthout et al. v. Chicago & Northwestern Ry. Co., 49 Wis., 625; Insurance Company v. Frost, 37 Ill., 333.

Judgment affirmed.

Burket, J., not sitting.


author: By the Court : Davis, J.

text:
    The State ex rel. Brown v. Bellows.

      Coroner’s inquest — Section 1221, Rev. Stat. — Supposition as to death from violence.

    Within the meaning of section 1221, Revised Statutes, providing for inquests by the coroner, a dead body “is found within the county” when it is ascertained to be in the county; and death is supposed to have been caused by violence whenever the coroner from observation or information nas substantial reason for believing or surmising that death was caused by unlawful means.
    (Decided March 20, 1900.)
    Error to the Circuit Court of Franklin County.
    The relator is a taxpayer and the defendants are the commissioners, the coroner, the auditor and the treasurer, of Franklin county. The plaintiff brought suit in the court of common pleas to enjoin the payment to the coroner of the statutory fees for holding an inquest on the body of one Richard Claprood, who came to his death by violence. The ground upon ivhich the injunction was sought was that the case was not within the statutory definition of cases in which such inquests are authorized to be held at the expense of the county. After issues of fact joined the cause was tried in the court of common pleas and appealed to the circuit court. In the circuit court the cause was heard upon the pleadings and the evidence, and the following facts were found:

      First — The relator is a taxpayer having all the attributes and having performed all the conditions and requisites necessary to maintain this action and this cause is properly before the court.
    Second — That on September 5,1897, at about 2:30 o’clock p. m., in a public street in the city of Columbus, Ohio, one Richard Claprood was killed by one George Robinson.
    Third — That said killing was the result of a fight between said parties. In the beginning of said fight there were six or seven witnesses to the same, and this number was augmented by others attracted thereby, and when the killing occurred there were present and witnessing the same between twenty-five and thirty persons.
    Fourth — That policemen were on the scene within a few minutes after the killing, viewed the dead body and learned from the Avitnesses and bystanders of the circumstances of the killing and the name of the man who committed the deed.
    Fifth — That within about ten minutes after the killing, the police having pursued Robinson, had captured him, and said Robinson was locked up in the city prison by said police at 3:05 p. m. same day.
    Sixth — The dead body of Claprood was removed by the police at the same time the arrest was made.
    Seventh — That the coroner of Franklin county, J. W. Birmingham, on the afternoon of the killing was engaged in official duties near the village of Shade-ville, Ohio, about eight miles from Columbus, and returned to the city of Columbus about four o’clock that afternoon.
    Eighth — Said police officers informed said coroner apon his return to the city that said Robinson had been arrested and was in prison and that the dead body had been remoA-ed to the morgue, and that its death had been caused by unlawful means.
    Ninth — Said coroner thereupon went to the morgue and found there the dead body of said Clap-rood, whose body bore evidence of having come to his death by violence.
    Tenth — Said coroner on the next day as soon as his other duties would permit proceeded to the place where the killing ocurred, issued subpoenas for such witnesses as he deemed necessary and proceeded to hold an inquest and to inquire how the deceased came to his death; and as a result determined that decedent did come to his death by means of violence inflicted by said Robinson, and the proceedings in said inquest were returned to the clerk of the court of common pleas according to law.
    Eleventh — That said coroner acted in good faith, believing the circumstances were such as the law contemplated, and that the same warranted the holding of an inquest.
    Twelfth — The amount of the bill of the coroner for fees for holding said inquest is correct, if the inquest itself be lawful or authorized.
    Thirteenth — That if not .previously restrained in this case, the county commissioners would have allowed and paid said bill as in the petition alleged.
    Upon these facts the court dismissed the petition of the plaintiff below and rendered judgment against him for costs.

      Albery & Dillon and George D. Jones, for plaintiff in error.

      Dyer & Williams, for defendants in error.
   By the Court :

Whether the judgment of the circuit court was justified by the facts which it found is the only question before us. The duties of the coroner are prescribed in section 1221 of the Revised Statutes: “When information is given to any coroner that the body of a person whose death is supposed to have been caused by violence, has been found within the county, he shall appear forthwith at the place where such body is, shall issue subpoenas for such witnesses as he deems necessary, and administer to them tlm usual oath and proceed to inquire how the deceased came to his death, if by violence from any other person or persons, by whom, whether as principals or accessories before or after the fact, together with all the circumstances relating thereto: the testimony of the witnesses shall be reduced to writing and subscribed, and with the finding and recognizances hereinafter mentioned, if any, shall be by the coroner returned to the clerk of the common pleas court, and he shall, if he deems it necessary, cause the witnesses attending, as aforesaid, to enter into recognizances for their appearance at the succeeding term of the court of common pleas to give testimony concerning the matter aforesaid,” etc. Section 1222 provides for a finding of facts regarding “the subject of the inquiry to be made by the coronor, and that he shall cause the arrest of any person apparently guilty of causing death by violence.”

It is thus indicated that the inquest is intended to aid in the detection of crimes and in the punishment of those who perpetrate them. Construed with this purpose in view, and with reference to their natural meaning, the sense in which the words and phrases of the statute are used should not be the subject of serious doubt. A death “caused by violence” is a death caused by unlawful means, such as usually call for the punishment of those who employ them. A body “is found” within the county when it is ascertained by any means that it is within the county. “Death is supposed to have been caused by violence” whenever from such observation as he may be able to make, and from such information as may come to him, the coroner is for reasons of substance led to surmise or think that the death has been so caused. To hold that within the contemplation of the statute death cannot be supposed “to have been caused by violence” if persons other than the coroner may know that it was so caused, would defeat the purpose of the statute, since murderers and their accomplices always know that the death of their victims were so caused.

It is the duty of the coroner to hold an inquest and to perform the other duties enjoined upon him by these sections of the statute whenever a dead body is found within his county and he knows or may reasonably believe that death was caused by unlawful means. For such services he is entitled to the compensation which the defendants propose to pay.

These conclusions are well supported in the opinion of Shearer, chief justice,- when disposing of this case in the circuit court, 15 C. C. Rep., 504; 8 C. D., 376.

Judgment affirmed.

Davis, J.

I dissent from the judgment, being of the opinion that Section 1221 of Revised Statutes does not authorize a coroner to hold an inquest when the death is not “supposed” to result from violence, but is known to be the result of a murderous assault openly perpetrated in the presence of a number of persons. He can not take the place of a prosecuting attorney, examining court or grand jury, under the pretext of an inquest.


author: Spear, J.

text:
    Felch, Assignee v. Hodgman, et al.

      Bill of exceptions, allowance of — Presumption that bill was duly submitted to trial judges, when — Rule as to presumption of regularity of judicial proceedings.

    The rule that when any judicial or official act is shown to have been done in a manner substantially regular, it will be presumed that formal requisites for its validity were complied with, applies to the action of the trial judges in the allowance and signing of a bill of exceptions, and to similar action when shown to have been done by the court, and in its further action in ordering the same to be made a part of the record. Hence, where it appears by the bill of exceptions that the bill was duly allowed and signed by the trial judges within fifty days after the overruling of the motion for new trial given for that purpose, and by the journal entry that the bill was likewise presented to the court and upon examination iound to be true and correct, and by the court allowed, signed, and ordered to be made a part of the record, it will be presumed that the bill had been duly submitted to the trial judges not less than five days before the expiration of the fifty days.
    (Decided March 20, 1900.)
    Motion by defendant to strike bill of exceptions from the flies in cause No. 6778 on the general docket. On reconsideration.

      H. L. Peake and George E. Reiter, for tbe motion.

      G. S. Hubbard and G. P. & L. W. Wickham, contra.
   Spear, J.

This motion was considered by the court at the last term and was disposed of October 24, 1899, by an order sustaining the motion. A question of like character was involved in a motion recently presented. Upon a fuller consideration of the subject, the views of some members of the court have undergone a change, and the conclusion is reached by a majority that the motion ought to have been overruled; and, inasmuch as the cause itself is still undisposed of (although recently included in the list of those ordered dismissed for failure to file printed record), it seems proper now to overrule the former order sustaining the motion, and permit a printed record, including the bill of exceptions, to be fded, and the cause submitted on its merits.

The ground for striking off the bill, as stated in the motion, is “for the reason that said bill of exceptions is not a part of the record in this case, and were not presented to the circuit court of Erie county for signature till more than forty-five days after the overruling of the motion for a new trial in said circuit court.”

The journal entry of the circuit court of April 22, 1899 (the date of the overruling of the motion for new trial), shows that the plaintiff and The Second National Bank of Sandusky were given fifty days to prepare and have allowed, etc., etc., their bill of exceptions, and for that purpose the minutes of the court to be kept open, etc. Then follows the journal entry of the forty-eighth day, viz.: “Come now this 9th day of June, the plaintiff in the above entitled. cause and presents his certain bill of exceptions herein, which upon examination by the court is found to be true and correct, and is by the court hereby allowed, signed, sealed and ordered to be made a part of the record herein without entering at length, which bill of exceptions is herewith filed in said circuit court of Erie county, Ohio, by the plaintiff in error, Frank L. Felch, assignee, etc., this tenth day of June, A. D. 1899.” The bill of exceptions shows substantially the same.

And the question is, does this show a compliance with the statute so as to constitute the bill a part of the record?

The ground of objection urged in argument is that it appears by the record that the bill was not submitted to the trial judges within proper time. That is, there is no statement that the bill was submitted earlier than the forty-eighth day, and it is therefore to be inferred that the submission on that day was the first and only submission of the bill.

The provisions of statute are: Section 5301: “The party excepting must reduce his exceptions to writing and present the same to the trial judge or judges for allowance within fifty days after the overruling of the motion for a new trial, or the decision of the court where a motion for a new trial is not necessary;” and, clause sixth, of section 5302: “And unless the trial judge or judges shall be absent from the district or circuit court, as provided in section 5301, the same shall be submitted to him or them for his or their signature, not less than five days before the expiration of said fifty days.” It does not appear in this case that the trial judges were absent, and hence the duty devolved upon the complaining party to submit bis bill to them for signature not less than five days before the expiration of the fifty days, but the statute does not require that the time when the bill was in fact so submitted shall be noted in the bill or be shown by the record. The record being silent as to the time when the bill was submitted to the trial judges, the precise question is: What presumption follows the action of the court as shown by the journal entry of June 9, and of the judges of the same date, as shown by the bill?

It will contribute to clearness of understanding to keep in mind that the submission of the bill to the judges for signatures and its presentation to the court for its proper action, are not required to be done within the same time. That is, submission to the trial judges must be on or before the forty-fifth day after the overruling of the motion for new trial, but the presentation to the court, in order to have a proper entry made, need not be before the fiftieth day. The object in requiring the submission five days before the expiration of the fifty is manifestly to afford time for examination and correction of the bill before it must be allowed and signed; and it is to be specially noted that the allowance and signing by the trial judges is not required to be done earlier than the fiftieth day; it is the submission of the bill to them not less than five days before the expiration of the fifty, not their allowance and signing of it within that time, that is indispensable. Also, that while the allowance and signing is to be done only by the judges, their order that the bill be made a part of the record does not avail unless supplemented by a proper journal entry. This, though done by the clerk, takes effect, by force of the statute, as the act of the court, and is indispensable. It is thus apparent that the duty of the jiidges and that of the court are distinct duties. The duty of the judges is to allow and sign the bill. This can be done in court, or outside at chambers or their homes, and entirely irrespective of whether the court is in session or not. Their duty when performed perfects the bill as a bill of exceptions. Whether or not it becomes a part of the record depends upon whether it is duly presented and. an entry put on the journal ordering it to be made a part of the record. One special purpose of such action is to furnish a sure, unquestioned means of identification. To enter into an inquiry of review the bill must be a part of the record. It is true that this making of the entry, done by the hand of the clerk, is often done after the term has adjourned, but he acts as an officer of the court and his act is, for the purpose of completing the record, the act of the court. The force and meaning is that, upon presentation of a bill of exceptions within the fifty days, duly allowed and signed by the trial judges, the clerk shall enter the order making the bill a part of the record. True it is that the entry in this case reads that the bill was, by the court, allowed, signed and sealed. This form accords with that given by Judge Nash in his work on Pleadings and Practice, and by Mr. Wild in his Journal Entries. It obtained when the provisions of the statute were different from those now in force. The provision of the code (Sec. 291) S. & C., 1028, was that the party objecting must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term, and (Sec. 294) “where the decision is not entered on the record or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce the exception to writing and present it to the court for its allowance. If true, it shall be the duty of a majority of the judges composing the court to allow and sign it; whereupon it shall be filed with the pleadings as part of the record.” This manifestly contemplates action by the court. And, under this statute, it was held in Hill v. Bassett, 27 Ohio St., 597, that the presentation to the court within the proper time and the allowance, signing and sealing by the court, and its order entered on the journal making the bill a part of .the record, were indispensable in order to entitle the bill to be regarded by a reviewing court upon error. An amendment followed, in 1876, which permitted the bill to be perfected thirty days after term, and the journal to be kept open for that length of time for proper entry. By later statutes, however, and now, the time after term for such perfecting of the bill has been extended, and also the requirement of presentation for allowance to the court omitted; so that we look in vain through all the sections, from 5297 to 5304, for any language importing a duty on the part of the court, as such, to allow or sign a bill of exceptions. The plain distinction is that, while under the old statute the judges allowed and signed the bill as a court, now they allow and sign it as judges, and as judges only. True, the statute does require that there be an entry “of the allowance and signing of the same.” But this imports only that the entry must show a finding that the bill has been duly allowed and signed. It thus appears that the form of entry so long in use and appearing in this record, is not adapted to the present statute, but considered with the bill of exceptions, it meets all substantial requirements and is sufficient for the purposes of this case. A better form, it is suggested, is that sometimes followed (see R'y Co. v. Kernochan, 55 Ohio St., 306), to the effect that the party presents his bill of exceptions to the court, and the court finding that the same has been duly examined and found true, and duly allowed and signed, is ordered to be made a part of the record, for this in fact is just what is done.

But whether we treat the allowance and signing as the act of the judges, as such, or of the court, or a joint act, the same result, by force of the maxim omnia praeswnuntur rite et solemniter acta esse, folIoavs. The ordinary rule is that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. As expressed in Knox County v. Bank, 147 U. S., 91: “Where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of the prior act.” The principle Avas applied and enforced in Heddleson v. Hendricks, 49 Ohio St., 297. In the ^ase at bar the record showing the allowance of fifty days after the overruling of the motion for a new trial for the presentation and filing of a bill of exceptions, and showing also the due allowance, signing and filing of the same within the fifty days, the presumption attaches that the bill was duly submitted to the trial judges for signatures not less than five days before the expiration of the fifty days, notwithstanding the fact that the record is silent on that subject. We cannot presume that the trial judges would have approved, allowed and signed the bill unless the party excepting had complied with the statute, hut must presume the contrary. A like presumption follows, if the allowance and signing be treated as an act of the court. Our conclusion is in entire accord with Railway Company v. Kernochan, supra, and is not at variance with any other declaration of the court save that in the present case heretofore referred to. It will have the effect to require that objections of the character here considered must be presented and disposed of before the case reaches this court.

Motion overruled.