author: Si-iaucic, C. J.

text:
    The State, ex rel. Chittenden, v. Harmon, Governor.

      Identity of court of appeals and circuit court — Sixth section of fourth article of constitution of state — Effective Jamiary i, 1913 — One elected circuit court judge entitled to serve as judge of court of appeals.

    The sixth section of the fourth article of the constitution of the state, effective January 1, 1913, although substituting the court of appeals for the circuit court, recognizes and preserves the identity of those courts to the extent that one who prior to that date had been elected a judge of the circuit court for a term of six years, beginning February 9, 1913, is entitled to serve as x judge of the court of appeals for the term to which he had been so elected.
    (No. 13947
    Decided February 11, 1913.)
    In Mandamus.
    The relator appeals to our original jurisdiction for a writ of mandamus requiring the governor to issue to him a commission as judge of the circuit court to which he alleges he had been elected on the 5th day of November, 1912, for the term of six years, beginning- on February 9, 1913, to serve in the sixth judicial circuit of the state. Confessedly his petition contains all the allegations that would have been necessary to entitle him to the commission if it were not for the privisions amending the judicial article of the constitution, ratified in September, 1912, to become effective January 1, 1913. The governor answering admits the allegations of the petition and submits to the court the questions arising thereon declaring his willingness to abide by the judgment.

      Mr. A. N. Summers; Mr. C. S. Northup and Mr. F. M. Hagan, for relator.
    We invite the attention of the court to some principles which have heretofore received its approbation as aids in constitutional construction. Cass v. Dillon, 2 Ohio St., 608; Platt v. Craig, 66 Ohio St., 77; Lehman v. McBride, 15 Ohio St., 602.
    An analogous case is presented in the construction of a statute in State v. General Fire Extinguisher Co., 20 Dec., 244, citing with approval Standard Oil Co. v. State, 117 Tenn., 618, 10 L. R. A., N. S., 1015; Holy Trinity Church v. United States, 143 U. S., 457.
    A public office is a right with the corresponding duty to exercise a public function or employment and to take the emoluments, if any, pertaining thereto. State, ex rel., v. Wilson, 29 Ohio St., 349.
    We contend that it was not the purpose of the Constitutional Convention to abolish the circuit court and to establish a new court, but the intention was merely to alter the jurisdiction of the intermediate court by conferring on courts of appeals the power to issue writs of prohibition, and by changing the name of the court to that of courts of appeals. That such was the intention clearly appears from a consideration of all the provisions of the amendments. State, ex rel., v. Brewster, 44 Ohio St., 589.
    It has been frequently held by this court that a “vacancy” to be filled by appointment does not result from the expiration of a term of office, but is the result of a mere fortuitous happening occasioned by death, resignation, or removal, in offices for which there has been provided an elected incumbent. State, ex rel. Kelly, v. Thrall, 59 Ohio St., 369; State, ex rel. Wilson, v. Pontius, 78 Ohio St., 353; State, ex rel. Hoyt, v. Metcalfe, 80 Ohio St., 244.

      Henry v. Trustees, 48 Ohio St., 675, was a case construing a statute, the construction of which is analogous to that of the constitution, except that the latter, in the light of the authorities, is to be more liberally construed than statutes. In that case it is held that the intent of the instrument must be determined, even though this may require a departure from the literal meaning of the words. Endlich on Interp. of Stats., Sec. 295; Terrill v. Auchauer, 14 Ohio St., 87; People, ex rel., v. State Treasurer, 23 Mich., 499; People, ex rel. Kennedy, v. Geis, County Treasurer, 25 Mich., 83; State v. Gardner, 3 S. Dak., 557; Hunt
      v. State, 7 Tex. App., 231; 1 Story on Constitution, Sec. 451; People v. Harding, 53 Mich., 485.

      Mr. Timothy S. Slogan, attorney general; Mr. J. M. McGillivray; Mr. George B. Okey; Mr. Thomas J. Keating and Mr. John A. McMahon, for respondent.
    The first step in the interpretation of a constitutional or statutory provision must be in the direction of a search for the intent. Primarily the intent must be sought in the language used. 8 Cyc., 732; State v. McGough, 118 Ala., 159, 24 So. Rep., 395; Newell, Auditor, v. People, ex rel., 7 N. Y., 83; Standard Oil Co. v. United States, 221 U. S., 1, 55 L. Ed., 619; Slingluff v. Weaver, 66 Ohio St., 621; Wilcox v. Nolze, 34 Ohio St., 523; Sipe, Auditor, v. State, ex rel., 86 Ohio St., 80.
    The extension, by construction, of the meaning of the phrase “the judges of the circuit courts now residing in their respective districts,” to include judges-elect to the circuit courts whose terms would have commenced, if the court had not been abolished, on February 9th, is sought to be reached by giving a supposed popular meaning of the word “judge” and striking out as surplusage the phrase “residing in their respective districts.”
    A judge-elect is not a judge within the recognized and ordinary meaning of the words. For definition of a judge, see Bouvier’s Dictionary, Anderson’s Law Dictionary, Century Dictionary, Wharton’s Law Lexicon. State, ex rel., v. Hidy, 61 Ohio St., 550.
    As against the claim that, because the candidates for judge last fall were chosen by the electors of districts which now correspond to the appellate districts, they are entitled to become judges of the courts of appeals, we call attention to the rule that constitutions can only speak from the time they become effective, and, unless otherwise provided, operate prospectively. 8 Cyc., 731; State, ex rel., v. Pattison, 73 Ohio St., 327.
    Although debates may be for some purposes, but in a limited degree, consulted in interpreting a doubtful phrase or provision of the constitution, they are, as a rule, deemed unsafe. Rasmussen v. Baker, 7 Wyo., 117; United States v. Trans-Missouri Freight Assn., 166 U. S., 318; Exchange Bank v. Hines, 3 Ohio St., 47.
    The books are full of illustrations of cases in which persons who have been elected by the people were not permitted to fill the positions for which they had been chosen.
    If there is no position to fill, that is, if the office is not vacant, if every voter in the state voted for another, the election is still invalid. Commonwealth v. Baxter, 35 Pa. St., 263; Sawyer v. Haydon, 1 Nev., 75.
    There is no implied power to hold an election, and if an election is held for a judge without authority of law, it is invalid. State v. Gardner, 3 S. Dak., 553; Matthews v. Commrs. of Shawnee, 34 Kans., 606.

      No election is valid unless it is authorized by some statute in force and applicable thereto. State v. Smith, 4 Ark., 613.
    The election of a judge, not authorized by the constitution is void. People v. Bangs, 24 Ill., 184; McKune v. Weller, 11 Cal., 60.
    We have here a designation or appointment of the circuit court judges to perform the duties of the judg'es of the courts of appeal “until the expiration of their respective terms of office.” But the vacancies arising by such expiration of terms can be filled only by the electors of the respective appellate districts. And the duty is imposed upon the law-making power to provide the machinery therefor by prescribing the “time” and “mode” of such election. The authorit}^ to so provide, while permissive in form, is mandatory in effect. C. S. & C. Rd. Co. v. Mowatt, 35 Ohio St., 288; 8 Cyc, 761; People, ex rel., v. Lawrence, 36 Barb, 186.
    The phraseology under consideration was, in effect, a command that such judges should continue to hold the office until, first, laws should be passed providing for the election, and second, the election and qualification of successors in pursuance of such laws.
    While the recent adoption of Section 6 of the constitution operated to repeal, as inconsistent therewith, Section 1514, General Code, so far as future elections are concerned, Section 8 is still in full force and unaffected thereby. State, ex rel., v. Howe, 25 Ohio St., 597; State, ex rel., v.
      McCracken, 51 Ohio St., 129; State, ex rel., v. Wright, 56 Ohio St., 553; 23 Cyc., 515.
    The principle was recognized and declared in Article XVII of the constitution, adopted in 1905, by the provision, applicable to incumbents in office at that time, that they should continue to hold their offices until their successors were “elected and qualified according to law.”
   Si-iaucic, C. J.

At the general election held on November 5, 1912, the relator was elected to the office of judge of the circuit court for the sixth judicial circuit for the term of six years to begin on the 9th day of February, 1913. It is admitted that there was at the time clear constitutional and statutory authority for that election. The doubts which justified the governor in withholding the commission of the relator until his right thereto should be determined by this department arise out of the amendments to the constitution of the state whose valid ratification on September 3, 1912, to take effect January 1, 1913, is admitted. By the amendment the circuit court is superseded by the court of appeals, and for the respondent it is contended that as there will be no circuit court in existence for the term to which the relator 'was elected, or any part thereof, the writ should not issue to require the respondent to do a vain thing. For the relator it • is insisted that although the court of appeals has superseded the circuit court, such relation between the two courts is established and maintained by the instrument by which the change was accomplished as to make the commission effective to authorize the relator to exercise the functions of a judge of the court of appeals for six years from February 9, 1913.

To support their view counsel for the relator quote at length from the debates in the convention which submitted the proposed amendments for ratification by the electors. But from both the nature of the subject and the adjudications respecting it we receive very impressive warnings against reliance upon that source of information. It is quite familiar that written contracts conclude all previous and contemporaneous stipulations, and that even as to statutes the views as to their meaning entertained by members of the bodies empowered to enact them and to give them full effect are not appropriate sources of information respecting their meanings. United States v. Trans-Missouri Freight Assn., 166 U. S., 318. In Exchange Bank v. Hines, 3 Ohio St., 47, Thurman, J., has pointed out that less consideration is due to the views of individual members of a convention which is not empowered to enact but only to suggest.

Propriety requires us to assume that the one-fourth of the electors of the state by whom the amendments were ratified fully appreciated the gravity of changing the organic law of a great state which had been formulated with great care and that they employed terms which they deemed appropriate to accomplish the changes which they intended to make. To the language which they used and to the purposes which they indicated we must resort to ascertain their intention. The provisions affecting the question to be determined are contained in Section 6 of Article IV. The material portion of the section is:

“Sec. 6. The state shall be divided into appellate districts of compact territory bounded by county lines, in each of which there shall be a court of appeals consisting of three judges, and until altered by law the circuits in which the circuit courts are now held shall constitute the appellate districts aforesaid. The judges of the circuit courts now residing in their respective districts shall be the judges of the respective courts of appeals in such districts and perform the duties thereof until the expiration of their respective terms of office. Vacancies caused by the expiration of the terms of office of the judges of the courts of appeals shall be filled by the electors of the respective appellate districts in which such vacancies shall arise. Until otherwise provided by law the term of office of such judges shall be six years. Laws may be passed to prescribe the time and mode of such election and to alter the number of districts or the boundaries thereof, but no - such change shall abridge the term of any judge then in office. The court of appeals shall hold at least one term annually in each county in the district and such other terms at a county seat in the district as the judges may determine upon, and the county commissioners of any county in which the court of appeals shall hold sessions shall make proper and convenient provisions for the holding of such court by its judges and officers. Each judge shall be competent to -exercise judicial powers in any appellate district of the state. The courts of appeals shall continue the work of the respective circuit courts and all pending cases and proceeding's in the circuit court shall proceed to judgment and be determined by the respective courts of appeals, and the supreme court, as now provided by law, and cases brought into said court of appeals after the taking effect hereof shall be subject to the provisions hereof, and the circuit courts shall be merged into, and their work continued by, the courts of appeals. The courts of appeals shall have original jurisdiction in quo ztr.arranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law, and judgments of the courts of appeals shall be final in all cases, except cases involving questions arising under the constitution of the United States or of this state, cases of felony, cases of which it has original jurisdiction, and cases of public or great general interest in which the supreme court may direct any court of appeals to certify its record to that court. No judgment of a court of common pleas, a superior court or other court of record shall be reversed except by the concurrence of all the judges of the court of appeals on the weight of the evidence, and by a majority of such court of appeals upon other questions; and whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination.”

A comparison of these provisions with the preceding constitutional and statutory provisions relating to the composition of the circuit courts, the selection of the judges, the boundaries of the circuits and districts, and the general character of the jurisdiction conferred, discloses a purpose to retain in our judicial system an intermediate court of errors and appeals sustaining a similar relation to the inferior courts and to the supreme court as did the circuit court, but designated by a different name. It is true that the language employed to confer appellate jurisdiction on the court of appeals differs widely from that previously employed by the statute to confer such jurisdiction upon the circuit court, but whether any substantial change in that jurisdiction was intended will be for determination in cases which may present the question. It is also true that with designated exceptions the judgments of a court of appeals are declared “final,” thus using a word which previously characterized judgments which were subject to review, but in a connection which may now require it to be construed as meaning that they are not subject to review. The comparison seems to justify the statement that no change whatever is effected which required a change in the constitution except in the name of the court and the addition of prohibition to the subjects of its original jurisdiction.

• Counsel for the relator call attention to some of the definite provisions of the section as supporting their view. One of them is: “judges of the circuit courts now residing in their respective districts shall be the judges of the respective courts of appeals in such districts and perform the duties thereof until the expiration of their respective terms of office.” The word “now” in this connection is properly said to refer to the first day of January, 1913, when the section, if ratified, was to take effect. However that may be, and however frequently the title of judge may be applied to persons who do not hold judicial stations, it is evident that the relator could not upon that day, with regard for the technical meaning of words, be said to have been a judge of the circuit court. This was expressly decided in State, ex rel. Savage, v. Hidy, Judge, 61 Ohio St., 549. But all the authorities admonish us that we are construing the language of the people and that we must not deny it an intended meaning because it would be technically incorrect. In view of numerous expressions used in this amendment special heed should be given to this admonition in the present consideration, for we find a number of these are used in obvious disregard of their technical meaning and some in like disregard of strict lexicology. While the provision quoted cannot be said to import, it does suggest that there was in mind the uninterrupted identity of the intermediate court.

Another provision is much more significant with respect to the question before us: “The circuit courts shall be merged into and their work continued by the courts of appeals.” While this form of expression would hardly be anticipated in an instrument of the character of this, it cannot be regarded as the mere equivalent of: “The circuit court shall be succeeded by the court of appeals.” It obviously denotes a more intimate relation between the circuit courts and the courts of appeals than would be denoted by the provision that the latter should succeed the former. It being clear that there was intended no such difference in the constitution or functions of the intermediate courts as would make an election to one court inconsistent with service in the other, there being expressed the practical functional identity of the courts in the provision that judges actually serving in one should serve in the other, and there being in the provision lastly quoted a characterization of the transition which clearly retains a more intimate relation than that of mere succession, we think the language employed, considered with the objects to be attained, properly leads to the conclusion that by virtue of his election the relator will be entitled to exercise the functions of a judge of the court of appeals for six years from February 9, 1913.

Peremptory writ allowed.

Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


source: Caselaw Access Project

author: Wilkin, J.

license: Public Domain

text:
    Senter v. Senter, Executor.

      Mortgagee purchaser of real estate — May not merge legal and equitable estates, when — Mortgagor discharged in bankruptcy— Bought back property from mortgagee — Release of mortgage by mortgagee — And conveyance of fee — Legal and equitable estates merged — Surety of mortgagor released, when — Interpretation of words "other considerations” — Unilateral instrument construed a bilateral contract, when.

    1. A mortgagee of real estate whose mortgagor had become bankrupt and who bought the mortgaged property at bankrupt sale and took a deed from the trustee in bankruptcy, “subject to the mortgage,” and entered into possession and received rents and profits, did not by these facts alone merge the legal and equitable estates.
    2. Later the mortgagor, having been discharged in bankruptcy from the debt secured by the mortgage, bought back the property from the mortgagee, then the owner of the legal estate, taking a deed in fee simple absolute, with covenants of warranty and seizin. Simultaneously with the delivery of the deed the mortgagee entered satisfaction and discharge of the mortgage upon the record. The mortgagee, having been advised by a counsellor at law that this would constitute a merger, did, by the release of the mortgage and the absolute conveyance of the fee, merge the equitable and legal estates.
    3. By thus merging the two estates, the mortgagee was disarmed of the right of foreclosure to subject the property to the payment of the debt, and thereby released a known surety for the debt, who had signed the mortgage notes jointly with the debtor as an accommodation maker.
    4. In the negotiation for buying back the property, the mortgagor stipulated for the surrender of the notes and the cancellation of the mortgage, and the mortgagee assented. The deed reads: “for the consideration of one and other valuable considerations dollars received to my full satisfaction.” The words “other valuable considerations” are to be interpreted as referring to the surrender of the notes and the cancellation of the mortgage, although they are inserted in the space left in the deed for naming the money consideration moving from the grantee to the grantor.

      5. An instrument unilateral in form, containing dubious or incongruous language, may nevertheless be construed to import a bilateral contract, where the relations of the parties, the nature of the transaction, and their conduct before and after the instrument is written, show that such a construction makes the confused verbiage intelligible and effects a just result.
    (No. 12893
    Decided February 25, 1913.)
    Error to the Circuit Court of Cuyahoga county.
    The defendant in error began this action April 1, 1908, by petition in the short form, upon three promissory notes of date June 3, 1899, for $500, each, payable at 12, 18 and 24 months, respectively, to the order of Sarah J. Hibbard, and signed by The Moline Refining Company, F. B. Senter and Kate Senter. Payments amounting to $356.53 were endorsed upon the first note in 1899, leaving a balance on the whole account of $1,153.55.
    The defendants, The Moline Refining Company and F. B. Senter, pleaded their discharge in bankruptcy on May 12, 1900, and they were let out of the case.
    Kate Senter answered that she signed the notes by way of accommodation only, as Sarah J. Plibbard well knew. Simultaneously with the notes a mortgage on certain real estate of The Moline Company was executed as security for the notes. Subsequently, in the bankruptcy proceedings against the company, Sarah proved the notes as a preferred claim by virtue of the mortgage, which was duly allowed; upon a sale of the mortgaged property under a decree of the court of bankruptcy, she bought the property for one dollar, subject to her mortgage, and the deed of the trustee in bankruptcy was made and confirmed in that form, August 24, 1900; she went into possession of the property and received the rents and profits till June 8, 1903, when she sold it to F. B. Senter by a deed in fee simple absolute, with covenants .of warranty and seizin, and received from F. B. Senter $775; the fair value was $2,500, and a part of the consideration of the conveyance was the surrender and the cancellation of the mortgage, and she entered satisfaction and discharge of the mortgage upon the record of mortgages, July 1, 1903. The defendant, Kate, claimed that the mortgage was security against her liability as an accommodation signer of the notes, that Sarah became a trustee of the mortgage under duty to apply the security to the payment of the notes for Kate’s benefit; when Sarah purchased the property from the mortgagor’s trustee in bankruptcy, subject to her mortgage, she took the property itself in the same trust, and when she conveyed it away and cancelled ■ the mortgage, she thereby deprived Kate of the right to have the security applied to the extinguishment of the debt, and Sarah is, therefore, estopped from asserting any claim upon the note against Kate.
    Replying, Sarah’s executor denied that Kate signed the notes as an acommodation maker and that she knew it, and that she assumed to pay the mortgage or any lien on the property when she accepted the deed from the trustee in bankruptcy “subject to the mortgage;” she admitted that she received rents amounting to $180, and averred that she paid off a tax lien of $255, for care of the property, $50, and for insurance, $30; that the property was worth only $775; the cancellation of the notes and mortgage was no part of the consideration of the sale to F. B. Senter, and that she did not agree to deliver up and cancel the same, but that she did cancel the mortgage without any consideration, but only to clear the title.
    The court of common pleas found the facts substantially as alleged in the answer, except the value of the property; also that Sarah was advised by her attorney, when she was about to convey the property to F. B. Senter, that the cancellation of the mortgage would “constitute a merger;” and that she intended to merge the legal and equitable estates. Whereupon the court found as matter of law that Sarah and her executor were estopped to deny payment of the notes and to assert any claim against Kate, who was, by the facts found, discharged- from liability on the notes; and judgment was rendered against the executor for costs.
    Error was prosecuted in the circuit court, which found that the common pleas had erred in three particulars: 1. In finding that “the other valuable considerations” mentioned in the deed from Sarah J. Elibbard to F. B. Senter were the surrender of the notes and the cancellation of the mortgage. 2. In finding that she intended to deliver up the notes. 3. In finding that when Sarah took the deed of the trustee in bankruptcy subject to incumbrances, she became estopped from collecting the debt. The circuit court reversed the judgment as contrary to law and the weight of the evidence, and remanded the cause; and then follows this clause in the entry: “Upon the new trial, unless the facts show that a part of the contract between Sarah J. Hibbard and F. B. Senter was that the money paid by him to her was paid and accepted as a full payment for the land and the notes which she still held, then the plaintiff will be entitled to recover * * * such amount as shall remain due upon the notes, after deducting the value of the land, at the time it was deeded to her by the trustee, less the amount she paid on the tax lien, deducting from such recovery, however, all dividends she received from both bankruptcy proceedings, if she received any.”
    The error assigned here is the failure to affirm the finding and judgment of the common pleas court.

      Mr. George W. Shaw and Messrs. Westenhaver, Boyd, Rudolph & Brooks, for plaintiff in error.
    We claim that the undisputed facts and circumstances disclosed by the record that Sarah J. Hibbard in her lifetime intended to merge and did merge both her legal and equitable title in and to the mortgaged premises, and thereby not only intended to extinguish but did extinguish the mortgage debt. Dickason v. Williams, 129 Mass., 182, 37 Am. Rep., 316.
    Whether or not a merger and an extinguishment of the mortgage debt takes place, depends to a very large extent upon the intention of the holder of a mortgage upon acquiring the legal title. 27 Cyc., 1379; Bell v. Tenny, 29 Ohio St., 240; Second Nat. Bank v. Ausperger, 5 O. C. D., 542, 12 C. C., 283; Lessee of Jennings v. Wood, 20 Ohio, 260; 20 Am. & Eng. Ency. Law (2 ed.), 1066, 1067.
    By the act of cancelling the mortgage, Sarah J. Hibbard solemnly declared that the promissory notes described in the mortgage had been “well and truly paid according to the tenor thereof.” This was the final act on her part in connection with the mortgaged premises, and we contend that it evidences conclusively an intention on her part to consider the mortgage debt as paid. In re Davis, 174 Fed. Rep., 556; Trimmier v. Vise, 17 S. Car., 499, 43 Am. Rep., 624; Pingrey on Mortgages, Sec. 1007; Lily v. Palmer, 51 Ill., 331; Shirk v. Whitten, 131 Ind., 455; Bassett v. Mason, 18 Conn., 131.

      Mr. Dorr E. Warner and Messrs. Musser, Kimber & Huffman, for defendant in error.
    We contend that whatever amount Sarah J. Hibbard realized from the sale of the mortgaged property which was given to secure the payment of the several notes in question, less the amount of the tax liens on said property, should be credited on the payment of said notes and whatever balance remained unpaid, the plaintiff in error, Kate Senter, is obliged to pay. We believe this to be just and in accord with the principles of law and equity governing such transactions. Post v. Tradesman’s Bank, 28 Conn., 420; Myers v. O’Neal, 130 Ind., 370, 30 N. E. Rep., 510; 27 Cyc., 1381, 1383; McClain v. Weise, 22 Ill. App., 272; Stearns on Suretyship, Sec. 98; Tetters v. Lamborn, 43 Ohio St., 144; Day v. Ramey & Co., 40 Ohio St., 446; Spencer v. Hartford’s Exrs., 4 Wend., 381; Thurston & Hays v. Ludzvig, 6 Ohio St., 1.
    The plaintiff in error has wholly failed to produce any evidence as a ground for estoppel in this case, although the law requires the evidence to be clear and unequivocal. Kroll v. Close, 82 Ohio St., 190.
   Wilkin, J.

The record shows that Kate Senter is the wife of F. B. Senter. The common pleas court found that she was only an accommodation maker of the notes; that Sarah J. Hibbard proved the notes against the bankrupts, The Moline Company and F. B. Senter, the principal makers, claiming a preference by virtue of the mortgage and filing a cross-petition for marshaling liens; that the property was appraised, subject to the mortgage and tax lien, as of no value, and that she bought it from the trustee in bankruptcy at one dollar, taking the title subject to the mortgage and tax lien; that she held the property from August 24, 1900, till July 1, 1903, and received income from it of $210, but paid $285 for tax lien and insurance; that she conveyed a perfect title in fee simple to F. B. Senter July 1, 1903, covenanting to warrant and defend it as indefeasible, and entered a discharge of the mortgage on the record, reciting that its conditions were satisfied; that “there was some talk of the delivery up of the notes” at the time of this transfer and cancellation, and the delivery of the notes and the cancellation of the mortgage constituted the other valuable consideration mentioned in the deed; that she was advised by her attorney, at the time of this transaction, that the sale of the property and the cancellation of the mortgage would constitute a merger, and that she intended to merge the legal and equitable estates, and is estopped to deny payment of the notes.

The determinative question which we have to decide is, did the circuit court err in overruling the last two findings of facts, viz.: (1) That the delivery of the notes was a part of the consideration of the sale, and (2) Sarah J. Hibbard intended to merge her equitable estate by the mortgage in the legal estate which she conveyed by the absolute terms of the deed to F. B. Senter.

On the first branch of the question, we find the reasoning of the circuit court in a copy of its opinion which is printed in the brief of counsel for the executor. “The consideration named in the deed being one dollar and other valuable considerations, the money consideration, however, being in fact $775, the court below held as a fact that the ‘other valuable considerations5 were the delivery up of these notes and the cancellation of the mortgage. This is really a contradiction of terms and should not have been so found. No part of the consideration passing to the grantor could consist of her releasing claims that she had against the grantee or anybody else. If she meant, for the $775, to convey this property, and in addition thereto to release these notes, then the releasing of the notes were considerations passing from her to the purchaser [grantee], who certainly would not be embraced in the term ‘other valuable considerations’ received by the grantor.”

We have the same transcript of the testimony and the same exhibits of documents that were submitted to the circuit court. Unfortunately the original deed is not attached to the record, but an abbreviated typewritten copy is substituted for it. The clause in which the dubious words occur is as follows: “I, Sarah J. Hibbard, the grantor, for the consideration of one and other valuable considerations -dollars, received to my full satisfaction from F. B. Senter, the grantee, do give, grant,” etc. It is conceded that this clause does not import the whole truth, and the grotesque form of the language suggests that the instrument was a printed blank form of deed and that the words in question were written in a blank space not appropriate for them; and it is apparent that those words taken in connection with the clause in which they are inserted, will not bear syntactic nor logical analysis. The learned circuit court, however, seems to have resolved the question of the meaning of the parties to the instrument by just that sort of dialectic discourse.

There is force in the learned judge’s logic, if the inquiry were confined to the writing. But the writing being equivocal, or, as the foregoing extract shows, absurd, we must inquire what was in the mind of the parties that moved them to insert in a perfect, formal clause of this deed an incongruous phrase. The province of legal interpretation is to discover, in this instance, the thought of two minds which suggested the use of this language. The mere accident that a purpose in which the minds coincided was set forth in the inducement instead of the granting clause or elsewhere, does not disprove that there was not an agreement of minds about something else than the sale of land.

The fact found by the common pleas court, about which there is now no dispute, and of which there is incontestible evidence in the record, is that “There was some talk of the cancellation of the mortgage and the delivery up. of the notes.” True, this refers to a consideration moving from the grantor to the grantee. True, also, the document before us is unilateral, and its normal form was composed to define only the consideration moving to the grantor from the grantee; but the grantor inserted “other valuable considerations,” and the finding last mentioned reveals to us the only “other considerations” that were in the minds of the parties.

If Sarah, the grantor, did not promise those “other considerations” she should not have put this useless language in her deed. The deed not having been reformed, the courts are compelled to interpret it as it stands. She did keep her promise as to one of those considerations; the conclusion is inevitable that she agreed to the other, and the evidence in the record is all that way.

This conclusion determines this case, by the very terms of the circuit court’s mandate for new trial, in the part which we have quoted at the close of our statement of the case — “unless the facts shall show that a part of the contract between Sarah J. Hibbard and F. B. Senter was that the money paid by him to her was paid and accepted as payment for the land deeded and the notes which she still held, then the plaintiff will recover against Kate Senter,” etc.

However, we will briefly pursue the second branch of the inquiry. Did the circuit court rightly overrule the common pleas court’s finding that Sarah intended to merge the legal and equitable estates? We would answer “yes,” if the common pleas had found that the merger took place at the time stated by the circuit court, viz., when she took the deed from the trustee in bankruptcy (subject to her mortgage). But the common pleas found that the merger took place when she made the deed to F. B. Senter and discharged the mortgage. That is an irrefragible proposition, and if the circuit court meant to overturn it, the latter court was in error. (The authorities are cited by counsel, supra.)

The documents in the case as well as the testimony of the witnesses show with unvarying certitude that Kate Senter was surety only for the debt, as the trial court found, and that Sarah Hibbard, who was Senter’s sister, knew that fact from the very inception of the debt of which the three notes in suit were renewals. The mortgage security belonged as much to Kate for her protection ’as to Sarah, and when Sarah released that security she also released Kate.

That the defendant in error is estopped from enforcing these notes against Kate Senter follows, as the judgment of the law, from what we have said.

Judgment of the circuit court reversed and that of the common pleas affirmed, and judgment here against the defendant in error for costs.

Judgment accordingly.

Shauck, C. J., Johnson, Donahue, Wanamakek and Newman, JJ., concur.


author: Newman, J.

text:
    The State, ex rel. Goodman, v. Redding, Justice of the Peace.

      Justice of the peace holding ofdce January i, 1913 — Entitled to serve until expiration of term of otñce.

    A justice of the peace, holding office January 1, 1913, is entitled to serve as such official until the expiration of the term of office to which he has been elected, and the adoption of the amendments to the Constitution, September 3, 1912, did not deprive him of that right.
    (No. 14023
    Decided February 25, 1913.)
    In Mandamus.
    The relator, a citizen and taxpayer of the city of Toledo, on January 18, 1913, filed a petition in mandamus in this court to compel the defendant, alleged to be a justice of the peace in Washington township, Lucas county, to issue a warrant for the arrest of the accused named in the affidavit filed with the said justice of the peace.
    The petition is as follows:
    “The relator says:
    “That he is an elector, citizen and taxpayer of the City of Toledo, Lucas County, Ohio.
    “That the defendant, Oscar Redding, was duly elected a justice of the peace in Washington Township, Lucas County, Ohio; upon receipt of his commission from the Governor, he duly qualified as required by law as justice of the peace; that his commission as such justice of the peace does not expire until the 1st day of January, 1915.
    “The relator further says:
    “That he made affidavit before one Frank A. Margrat, a Notary Public, duly qualified and acting, that one - Roberts did on the 1st day of December, 1912, commit a certain offense against this relator and against the peace and dignity of the State of Ohio, in this, to-wit, that the said- Roberts did steal, take and carry away a certain written order of the value of $16.80 belonging to said relator.
    “That said relator duly caused to be filed said affidavit before said Oscar Redding as justice of the peace aforesaid, and offered to procure a person to become liable for the costs if the complaint was dismissed; that said Oscar Redding as justice of the peace aforesaid has reasonable ground to and does believe that the offense charged has been committed.
    “That it is the duty of the said defendant, Oscar ■Redding, as justice of the peace aforesaid enjoined upon him by force of Sections 13496 and 13499 of the General Code of Ohio when an affidavit is filed as aforesaid and he has reasonable ground to believe that the offense charged has been committed, to issue a warrant for the arrest of the person accused.
    “That the said defendant, Oscar Redding, as justice of the peace as aforesaid, entertaining doubts with respect to his duty in the premises, neglects, declines and refuses to, and declares that he will not issue a warrant for the arrest of the accused.
    “The relator further says that by the ordinary course of the law he has no adequate remedy against the said defendant for so refusing.
    “Wherefore the relator prays that the defendant, Oscar Redding, justice of the peace as aforesaid, may be compelled to issue a warrant for the arrest of the accused in the affidavit named by mandamus from this Court; that an alternative writ of mandamus may first issue requiring the defendant to show cause, by a day to be named therein, why he does not issue said warrant, and that on final hearing a peremptory writ of mandamus may be awarded to compel the defendant to issue said warrant; and for such further relief as the nature of the case may require.”

      A demurrer was filed by the respondent upon the ground that the petition did not state facts sufficient to warrant the relief prayed for.

      Mr. P. J. Phelan; Mr. Timothy S. Hogan, attorney general, and Mr. I. M. McGillivray, for relator.

      Mr. Allen J. Seney and Mr. Roy R. Stuart, for respondent.
   Newman, J.

It does not appear in the petition when the affidavit was filed with the respondent, but as the purpose of this proceeding is to have this court determine the effect of the adoption of certain constitutional amendments at the election September 3, 1912, effective January 1, 1913, on the right of the respondent to hold and discharge the duties of the office of justice of the peace at the time the affidavit was filed, we can assume that the affidavit was filed subsequently to January 1, 1913.

The petition is challenged by demurrer upon the sole ground that the adoption of these amendments abolished the office of justice of the peace, that the same was eliminated from the judicial system of the state on January 1, 1913, and that the respondent did not have authority to act.

The Constitution of 1851 provides:

“article iv.
“Section 1. The judicial power of the state is vested in a supreme court, circuit courts, courts of common pleas, courts of probate, justices of the peace, and such other courts inferior to the supreme court, as the General Assembly may, from time to time, establish.
“Section 9. A competent number of justices of the peace shall be elected, by the electors, in each township in the several counties. Their term of office shall be three years, and their powers and duties shall be regulated by law.”

The amendment to the Constitution of 1851, adopted November 7, 1905, Section 2, Article XVII,• provides that the term of office of justices of the peace shall be such even number of years, not exceeding four years, as may be prescribed by the General Assembly.

Among the constitutional amendments adopted September 3, 1912, are the following:

“article iv.
“Section 1. The judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas, courts of probate, and such other courts inferior to the courts of appeals as may from time to time be established by law.
“Section 9. A competent number of justices of the peace shall be elected by the electors in each township in the several counties, until otherwise provided by law. Their term of office shall be for four years and their powers and duties shall be regulated by law: provided that no justice of the peace shall be elected in any township in which a court, other than a mayor’s court, is, or may hereafter be, maintained with the jurisdiction of all causes of which justices of the peace have jurisdiction, and no justice of the peace shall have, or exercise, jurisdiction in such township.”
“schedule.
“If the amendment to Article IV, Sections i, 2 ■ and 6, be adopted by the electors of this state and become a part of the Constitution, then Section 9 of Article IV of the Constitution is repealed, and the foregoing amendment, if adopted, shall be of no effect.”

Sections 1, 2 and 6 of the amendment to Article IV were adopted at the election on September 3, 1912, as was also Section 9, but, under the provisions of its schedule, Section 9 is repealed and is of no effect.

Sections 2 and 6 relate to the supreme court and the court of appeals, and, as their provisions do not aid in the determination of the question before us, the same are not set out here in full.

By the Constitution of 1851, the office of justice of the peace was created, and it was not necessary for the legislature to enact a law establishing this office. It was, however, incumbent upon that body to regulate the powers and duties of the same, and, under the amendment of November, 1905, to prescribe the term of office, and it has done this in the enactment of a number of statutes to which reference will be made hereafter.

It is claimed by counsel for the respondent that the office of justice of the peace, prior to January 1, 1913, was a constitutional office. “Omitting the words ‘justice of the peace’ from the constitutional amendments as recently adopted,” they say, “did not abolish the office of justice of the peace in Ohio.” It is urged, however, that, the amendment to Article IV, Sections 1, 2 and 6, having been adopted, the schedule to Section 9, by its provisions, repealed Section 9 and “there is nothing left in the Constitution to provide for the office of justice of the peace.”

It is conceded that the legislature, under the authority of Section 1 of Article IV of the recently adopted amendments, may re-establish this office, but, in the absence of such law, it is urged the office of justice - of the peace has no existence, and has had none since January 1, 1913.

Counsel for respondent, treating the office of justice of the peace, prior to January 1, 1913, as a constitutional office, insist that the same can be abolished before the term of the officer occupying the office has expired, by the power which created it — that the same could be and was abolished by the people of Ohio, September 3, 1912.

Proposal 41, “Schedule of Amendments,” voted on September 3, 1912, was adopted.

The schedule is as follows:

“The several amendments passed and submitted by this convention when adopted at the election shall take effect on the 1st day of January, 1913, except as otherwise specifically provided by the schedule attached to any of said amendments. All laws then in force, not inconsistent therewith shall continue in force until amended or repealed; provided that all cases pending in the courts on the 1st day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law. Any provision of the amendments passed and submitted by this convention and adopted by the electors inconsistent with, or in conflict with, any provision of the present constitution, shall be held to prevail.”

Our attention has been directed to this language contained therein: “All laws then in force, not inconsistent therewith, shall continue in force until amended or repealed.” This becomes important and material in the determination of the question before us.

There are, and were on January 1, 1913, a number of sections of the General Code relating to justices of the peace — Sections 1712 to 1746. They relate to the election, term, duties, jurisdiction and compensation of these officers. In Section 1713, it is provided, among other things, that all justices of the peace shall be elected for a term of four years. ■ Section 1715 was a part of Section 567 of the Revised Statutes, as amended March 31, 1906, after the adoption of the constitutional provisions relating to biennial elections and the terms of officers in November, 1905, and is as follows:

“At the next regular election for such office, a justice of the peace shall be elected in the manner provided by law, for the term of four years commencing on the first day of January next following his election.”

It is urged by the attorney general, on behalf of the relator, that, if the Constitution of 1851 were silent in respect to justices of the peace, and there were provisions authorizing the legislature to create inferior courts, and the legislature had passed only such sections of the General Code as we have in reference to justices of the peace, no one could question the creation or existence of the office, and when the legislature provides for the election or appointment of an officer, and prescribes his duties, fixes the term of office and provides for other things as contained in the General Code in reference to justices of the peace, it creates the office.

This view is not entertained by special counsel in the attorney general’s department, who also appeared on behalf of the relator. His contention is that the office of justice of the peace, under the Constitution of 1851, is a constitutionally created office, and that the legislature, by the sections of the Code referred to, did nothing more than provide for jurisdiction, election, compensation and the like; for, when the legislature established certain other inferior courts in Ohio, it did so in haec verba, and he calls attention to the establishment of the superior, municipal and insolvency courts, and to the fact that the sections providing for these courts read, “there shall be established,” etc. But he concludes that Proposal 41, to which we have referred, g'oes far enough, at least, to authorize the present justices of the peace to exercise their powers as provided by laws in force on January 1, 1913, until the expiration of their respective terms of office. Pie insists further that unless provision is made establishing justices’ courts, there will be no authority to elect, not because there is no statutory direction to do so, but because there is no such office to fill, either statutory or constitutional.

The office of justice of the peace, prior to January 1, 1913, was a constitutional office. Section 1, of Article IV of the Constitution of 1851, vests the judicial power in certain courts, among which are justices of the peace, and Section 9 of that article provided for a competent number of justices of the peace to be elected in each township in the several counties. Their term of office was fixed originally at three years, but by the provisions of the amendment of November, 1905, was extended to four years, so that this office derives its existence from the Constitution. By force of the constitutional amendments effective January 1, 1913, this office then ceased to be a constitutional one. It is not named in the amendment to Article IV, Section 1, which vests the judicial power of the state “in a supreme court, courts of appeals, courts of common pleas, courts of probate, and such other courts inferior to the courts of appeals, as may from time to time be established by law,” and Section 9 of the amendment to Article IV, relating to the office, having been repealed, and having become ineffective by reason of the adoption of Sections 1, 2 and 6, herein-before referred to, it is not created by that section. For the purposes of this proceeding, it is only necessary to ascertain whether the justices of the peace in office January 1, 1913, continue in office until the expiration of their terms of office. If they do, then the respondent in this case was with authority to act.

The question whether or not statutory enactment will be required to continue in office, by election or otherwise, justices of the peace, after the expiration of their present terms, is a matter which can be definitely settled by the general assembly under its authority to establish inferior courts.

In the case of Cass v. Dillon, 2 Ohio St., 607, in which case certain provisions of the Constitution of 1851 were before the court for consideration, Judge Thurman said:

“The State of Ohio is the same political state now that it was under the old constitution. The new constitution created no new state. It only altered, in some respects, the fundamental laws of a state already in existence; and even this was done pursuant to a prior constitution, under whose provisions the convention was called, and the new constitution framed. It follows, that all laws in force when the latter took effect, and which were not inconsistent with it, would have remained in force, without an express provision to that effect, and all inconsistent laws fell, simply because they were inconsistent; in other words, all repugnant laws were repealed by implication. If the laws of a conquered country remain in force until repealed, so far as they are consistent with ‘ the government of the conquerors, a fortiori, is it true that the laws of a state survive a peaceable change of its constitution, effected by its own people, and not varying the general structure of its government, to the full extent to which they are consistent with the new order of things.”

The sections of the General Code relating to the terms, duties and jurisdiction of justices of the peace are not inconsistent with any adopted amendment to the Constitution. As was held in Cass v. Dillonsuch laws would remain in force without an express provision. But we have an express provision in the amendments recently adopted that all laws in force January 1, 1913, not inconsistent with the amendments, shall continue in force until amended or repealed. We are of the opinion that this is effective to continue in office until the expiration of their terms justices of the peace who held the office on January 1, 1913.

The office of justice of the peace was established by the Constitution of 1802, and has existed for years in this state. Its work has been extensive and embraces important matters and transactions. It has exclusive jurisdiction in certain civil cases, including actions for the recovery of sums not exceeding one hundred dollars. The constitutional amendments did not provide another court to continue and carry on the work exclusively entrusted for years to justices of the peace.

As has been said by this court, “all the authorities admonish us that we are construing the language of the people, and we must not deny it the intended meaning because it would be technically incorrect.” It is not conceivable that the constitutional convention or the people intended that a citizen should be deprived of his rights and remedies in controversies exclusively within the jurisdiction of the office in question, or that a litigant should have no protection in matters concerning which he could look to the justice of the peace only for relief. Surely such was not the intention. Expressly continuing in force all laws not inconsistent with the provisions of the amendments is evidence of that fact.

The legislature is clothed with power to establish inferior courts, if it finds it necessary, with jurisdiction over matters which, for years, have been exclusively with justices of the peace. This it can do under the provisions of Article IV, Section 1, of the amendments.

The demurrer to the petition is overruled.

Peremptory writ allowed.

Shauck, C. J., Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.


author: Wanamaker, J.

text:
    Palmer v. Humiston.

      Issues of case confined to the pleadings — Plaintiff pleaded contract of defendant — To perform surgical operation — Involving use and removal of sponges — Custom or usage in particular business — Must be specially pleaded — Evidence as to care of nurse inadmissible, when — -No issue of agency — Charge of trial court as to defendant’s liability — Not prejudicial error, when — Law of pleadings.

    1. The issues of a case are defined by and confined to the pleadings.
    2. Plaintiff pleaded that defendant contracted to perform a certain abdominal surgical operation, and as a part of such operation, the surgeon used certain sponges and that there was negligence in the use and failure to remove one of said sponges. The answer admits the contract to perform said surgical operation and admits that “in the performance of said operation it was necessary that certain sponges be used.”

      Held: That under the pleadings of this case the use, care and removal of such sponges are a part of the operation contracted for.
    3. A special custom or usage in any particular trade, business, or profession, to be available to either party, must be specially pleaded.
    4. In the absence of any averment in the answer specially pleading a professional usage or custom as to the care and accounting of sponges by a nurse or other attendant, evidence for the purpose of showing such professional usage or custom is incompetent and inadmissible.
    5. In this case there was no issue of agency. The charge of the trial court in that behalf tended to relieve the defendant of liis full liability under his contract, therefore he cannot thereafter complain of it as prejudicial error.
    (No. 12888
    Decided February 25, 1913.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiff, Sarah V. Palmer, avers in substance in her petition that the defendant, William H. Humiston, was a physician and .surgeon in the city of Cleveland, county of Cuyahoga, state of Ohio; that she employed the defendant as such physician and surgeon to perform an abdominal operation to reduce a certain abdominal inflammation or remove certain internal organs as might be necessary to bring about the recovery of her health. She further says that the defendant accepted said employment and entered upon the discharge of his duties on or about the 30th day of September, 1907; that defendant ordered plaintiff to be removed to a hospital in the city of Cleveland for the purpose of performing upon her a surgical operation; that thereafter, on or about the first day of October, 1907, he undertook to and did perform a surgical operation upon the body of the plaintiff, opening by the use of surgical knives the abdomen, and, among other things, removed the ovaries and Fallopian tubes from her body.
    That defendant, while performing said operation, used and inserted in the opening of her abdomen so made, a gauze or cheese-cloth sponge, for the purpose of said surgical operation, which sponge was made up of and consisted of several layers of cloth gauze, or cheese-cloth; that it then and there became and was the duty of said defendant, in furtherance and performance of said employment, to remove said sponge from said opening and from said abdomen when the purpose for which it had been applied was accomplished.
    That the defendant, without the knowledge or consent of plaintiff, did carelessly and negligently, and in violation of the obligations and duties of said employment, leave said sponge in the opening so made and permitted the same to remain in the abdomen of plaintiff, after its use and purpose in said body had been fully served; that defendant continued to treat plaintiff for a period of about six months during which time he carelessly, negligently, and in disregard of his duties and obligations, failed to remove said sponge and permitted the same to be and remain imbedded in her said abdomen during said period of about six months; that by reason thereof she was subjected to and did suffer acute and intense bodily pain and mental anguish during the said period of six months; that said sponge had abraded, worn through, and severely ruptured her intestines, with which it came in contact, and caused her fearful pain and suffering, such as to compel her to suffer a second operation at the hands of another surgeon for the purpose of relieving her condition; that said second operation resulted in finding and removing said sponge; that as the direct result and consequence of defendant’s gross negligence and carelessness aforesaid, plaintiff has suffered intense physical pain and mental anguish and become a totally helpless invalid, and been wrecked and ruined physically and mentally, for the rest of her life, all to her damage in the sum of $25,000, for which amount she prays judgment.
    The defendant answered to such petition in the following words and figures, to-wit: “Now comes the defendant and for answer admits that at the times mentioned in the petition and for some time prior thereto, he resided and pursued his profession as physician and surgeon in the city of Cleveland, Ohio. That on or about the 23d day of September, 1907, plaintiff was ill by reason of the diseased condition of certain organs, and that on or about said date he was employed by plaintiff and her husband as such physician and surgeon to perform a certain operation upon plaintiff; that afterward, on or about the 30th day of September, 1907, plaintiff was removed to a hospital in the city of Cleveland for the purpose of performing said operation, and that thereafter, on or about the 1st day of October, 1907, said operation was by him performed; that in the performance of said operation it was necessary that certain gauge or cheese-cloth sponges be used; that said sponges consisted of several layers of gauze cloth or cheesecloth; that for a time after the performance of said operation he continued to treat plaintiff. Further answering, defendant denies each and every allegation of the petition, except such as are herein specifically admitted.”
    Upon these issues the case was tried to a jury in the court of common pleas of Cuyahoga county and a verdict returned in behalf of the plaintiff for the sum of $5,000. A motion for new trial was filed by the defendant, assigning some eleven separate grounds of error. This motion was overruled by. the trial judge, and proceedings in error were brought in the circuit court of Cuyahoga county to reverse the judgment of the court of common pleas. The circuit court, after carefully examining-all the errors complained of, including “the verdict of the jury herein is not sustained by sufficient evidence and is against the weight of the evidence,” found no error in the trial court save and except that “said court of common pleas erred in its charge to the jury concerning the ‘right of control as a test to establish agency.’ No other error appearing in the record, this cause is remanded to said court of common pleas for further proceedings.”
    Thereupon Sarah Y. Palmer prosecuted error to the supreme court to reverse the judgment of the circuit court and affirm the judgment of the court of common pleas.

      Mr. F. J. Wing and Mr. E. J. Thobaben, for plaintiff in error.

      Messrs. Cook, McGowan & Foote, for defendant in error.
   Wanamaker, J.

The pivot of this case is in the particular pleadings, especially the defendant’s answer wherein he admits and avers that, “on or about said date, to-wit, September 23, 1907, he was employed by plaintiff and her husband as such 'physician and surgeon to perform a certain operation upon plaintiff; that afterward, on or about the 30th day of September, 1907, plaintiff was removed to a hospital in the city of Cleveland, for the purpose of performing said operation, and that thereafter, on or about the 1st day of October, 1907, said operation was by him performed; that in the performance of said operation it zvas necessary that certain gauze or cheese-cloth sponges be used; that said sponges consisted of several layers of gauze or cheese-cloth; that for a time after the performance of said operation he continued to treat plaintiff.”

The plaintiff charges that defendant was employed as a physician and surgeon. His answer admits it. The plaintiff charges that pursuant to such contract of employment he undertook to perform the operation. The defendant admits it. The plaintiff charges that he caused her to be removed to a hospital for the purpose of performing said operation, and the answer admits it. The plaintiff charges that in connection with such operation and as a part thereof he used certain sponges and the defendant answers in the following language: “In the performance of said operation it was necessary that certain gauze or cheese-cloth sponges be used.”

Obviously, if he was to perform the operation and “in the performance of that operation it was necessary that certain gauze or cheese-cloth sponges be used,” the use of the sponge becomes a part of the operation as much as the use of knife or needle would become a part of this operation, and if the use of the sponge be a part of the operation, it must follow as a corollary that the .removal of the sponge at the end of its use becomes also a part of that operation.

By way of further illustration and argument, suppose that in the operation- a large number of instruments was used, and, in addition to keeping tab on the number of sponges, the head nurse or some third party had kept tab on the number of instruments used and placed within the body and had made an error in the count, whereby one of the instruments was left in the body, would it be seriously contended that this was not a part of the operation and that the surgeon was not liable but that the nurse alone was liable?

We are not without authority to sustain this contention. It is said in Akridge v. Noble, 114 Ga., 949, 41 S. E. Rep., 78: “It seems to us that the operation begins when the opening is made into the body and ends when this opening has been closed in a proper way after all appliances necessary to the successful operation have been removed from the body. From the time the surgeon opens with his knife the body of his patient until he closes in a proper way the wound thus made, the law imposes upon him the duty of exercising not only due care but due skill as well. During the entire time he must not only know what to do, but he must do it in a careful and skillful manner. * * * We do not suppose that anyone would contend for a moment that a surgeon would be authorized to leave this part of the work, even if not a part of the operation or necessarily incident thereto, to anyone who was not skilled in the science of surgery. * * * The removal of the sponges is a part of the operation; it is a part which requires the exercise of skill.”

In Gillette v. Tucker, 67 Ohio St., 106, Judge Price uses this language: “The facts in the case at bar show a continuous obligation upon the plaintiff in error, so long as the relation or employment continued, and each day’s failure to remove the sponge was a fresh breach of the contract implied by law. The removal of the sponge was a part of the operation, and in this respect the surgeon left the operation uncompleted.” While Judge Davis renders a dissenting opinion, it nowhere contradicts the doctrine in the last sentence.

The defendant, therefore, having admitted the contract to perform the operation and the use of the sponges as necessary thereto, has assumed the full measure of professional responsibility, which is the average care and skill of the profession at the time and in the place of the operation, which must include everything connected with the operation, the use of foreign substances and also the removal of those foreign substances when the operation is finished.

The • defendant undertook to excuse himself from that full measure of care and skill personally, by claiming through his counsel that in the performance of such operation it was necessary in careful and skilled surgery to secure the assistance of certain nurses, internes and associate surgeons in and about the hospital, and that included among these was one Miss Kelly, the head nurse, to whom he entrusted the duty of counting the sponges before putting them in the body and upon removing them from the body, and that he relied upon the accuracy of her count, and that if there was any error in her count, he, the surgeon was not responsible.

This is a hybrid sort of confession and avoidance, first confessing that he contracted to perform the operation and that in connection therewith and as a part thereof it was necessary to use sponges, etc., and then, for the purpose of avoiding his full measure of professional and legal liability, contending that if there, was any negligence in failing to remove any sponge such failure was the negligence of the nurse who did the counting, the adding and the subtracting of the sponges.

But no such issue is raised by the pleadings. The defendant cannot in his answer admit the employment to perform the operation and admit that in the performance of said operation it was necessary that certain gauze or cheese-cloth sponges be used, and then thereafter undertake to say that that particular part of the operation involving the use of those sponges was in somebody else’s hands or head, for whose negligence, if any, he, the operating surgeon, could not be held responsible.

It is an old elementary rule of pleading that the issues in each case are limited to those presented in the pleadings and that thereafter the evidence must be confined to the issues so raised; and the court’s charge likewise' must be confined to the issues so raised.

We need not discuss the great danger to the cause of justice that would follow from trying a case upon some other issues than those presented in the pleadings, especially in view of the fact that the courts allow amendments “upon application” at almost any stage of the proceedings, so that a party cannot be taken by surprise or suffer from mere inadvertence.

In this case there was no issue of agency whatsoever. The defendant must stand upon his contract of employment, and his negligence must be determined accordingly. If he is responsible for the proper use of the sponge, about which there can be no doubt under the pleadings and the inferences and deductions which must follow from them, he is likewise responsible for the proper removal of the' sponge. The one must follow the other in logical sequence and legal liability.

If one is pleading a defense to a contract set forth in the petition, he may, first, deny the contract, or, second, he may admit it and say its terms have been fully kept on his part; but if he admits the contract and avers that he has fully performed, he cannot thereafter claim that he secured a waiver of certain parts of it. In order that the waiver can avail him, he must plead it. Third, in order that he may stand upon a supplementary contract, he must plead it. Fourth, if he is relying upon a professional custom or usage obtaining among good surgeons at the time and in the place where the operation is performed, which would avoid the liability charged, he must specially plead that particular usage or custom, and his pleadings in general must be harmonious and consistent; that is, the particular custom or usage must not conflict with or contradict the remainder of the defendant’s pleading.

The rule is well settled by great weight of authority that evidence of any particular custom or usage in any special line of business is not admissible unless such usage or custom be specially pleaded. Gladstein v. Levine, 97 N. E. Rep., 184; Smith v. Stewart, 29 Okla., 26; Paine et al. v. Smith et al., 33 Minn., 495; Pittsburg Steel Co. v. Streety, 61 Fla., 393; Patton v. Tex. & P. Ry. Co., 137 S. W. Rep., 721; Consolidated Coal Co. v. Jones & Adams Co., 120 Ill. App., 139; Windland v. Deeds, 44 Ia., 98; McCurdy v. Alaska & Chicago Commercial Co., 102 Ill. App., 120; Oriental Lumber Co. v. Blades Lumber Co., 103 Va., 730; First Natl. Bank v. Farmers’ & Merchants’ Bank, 56 Neb., 149.

Evidence of such custom tending to vary and contradict the terms of the contract of employment is not admissible in the present state of the pleadings. Torpey v. Murray, 93 Minn., 482; Albany & Northern Ry. Co. v. Merchants’ & Farmers’ Bank, 137 Ga., 391; Western & Atl. Rd. Co. v. Ohio Valley Banking & Trust Co., 107 Ga., 512; Delaware & Hudson Canal Co. v. Mitchell, 113 Ill. App., 429; Cappell v. Weir, 45 Misc. Rep., 419; Menage v. Rosenthal, 175 Mass., 358.

We believe that the circuit court erred on the question of agency; that that issue was not in any form in this case under the pleadings; that in order to make such evidence available and to excuse the surgeon from any negligence on the part of the head nurse or any of his assistants, it was necessary to specially plead such usage or custom then generally in use at the time and place of the operation.

Therefore, there was no error in the failure to give defendant’s numerous requests to charge and especially those dealing with matters of agency.

As to the other errors complained of before the circuit court, we believe that court was right in its conclusions.

The record unmistakably presented the ghastly fact that a large gauze sponge, fourteen inches square, was left in the abdomen just under the abdominal wall for more than six months after the operation. Whether this fact was due to the negligence of the surgeon, whether it caused the plaintiff any of the great pain and suffering, physical and mental, set forth in the pleadings, what the amount, if any, was her damages, were all properly questions for the jury and the courts below. With these we have nothing to do. Accordingly the judgment of the circuit court is reversed and the judgment of the common pleas affirmed.

Judgment accordingly.

Johnson, Donahue, Newman and Wilkin, JJ., concur.


author: Donahue, J.

text:
    The Hocking Valley Ry. Co. v. White, Administrator de bonis non. Bradbury et al. v. White, Admr., etc., et al. Black v. White, Admr., etc., et al.

      Sole devisee appointed executor — Sells land in individual capacity— Must apply proceeds to pay debts of testator, when — Must account for full value of sale — ■Duty of personal representative of deceased executor to compel accounting — Law governing trust property.

    1. Where the sole devisee of lands is appointed executor of the will of the testator and sells such lands in his individual capacity as devisee, the proceeds of the sale come into his hands as executor, and where the personal estate is insufficient to pay the debts of the testator, he must apply the proceeds of the sale of such lands to the payment thereof.
    2. Where such lands are sold at private sale for their full value, the executor must account for the total amount of the purchase price received by him, if necessary for the payment of debts. If sold for less than the full value, he must, nevertheless, account for the full value thereof.
    3. Where the executor dies or resigns without filing any account of the administration of his trust, it is the duty of his successor in the trust to compel an accounting and payment to him of any balance due from such executor to said estate.
    4. Where an executor dies without filing any account of the administration of his trust, it is the duty of his personal representative to file an account for him and pay over to the successor in the trust any balance that may be found due the estate from the deceased executor.
    (Nos. 13609, 13610, 13611
    Decided February 25, 1913.)
    Error to the Circuit Court of Gallia county.
    These three proceedings in error arise out of the same litigation in the trial court, involve the same transaction, present the same questions, and seek the reversal of the same judgment.

      Charles W. White, as administrator de bonis non with the will annexed of Hiram Maxon, deceased, filed a petition in the probate court of Gallia county, Ohio, for an order directing him to sell certain real estate of which Hiram Maxon died seized, for the purpose of paying the debts of said estate. The petition is in the usual form; averring the representative capacity of the administrator, his appointment and qualification as such, that the estate is indebted in the sum of five thousand dollars; that the cost of administration will be about $350, and particularly is it averred, “that the total value of the personal estate and effects of said deceased is but - dollars, being wholly insufficient to pay the debts and costs aforesaid.” The petition then describes four separate tracts of real estate and avers that the same were appraised by the appraisers appointed by the probate court of Gallia county to appraise the personal property of said decedent, as follows: Tract No. 1, $4,400; tract No. 2, $650; tract No. 3, $4,800; tract No. 4, $900.
    The different plaintiffs in error in these several suits were made parties defendant to the action. The petition averred that these defendants claim some interest in the estate and asked that their interest therein might be fully determined, ad- ■ justed and protected, according to equity, and that petitioner might be authorized and ordered to sell said real estate according to law.
    William T. Minturn, as administrator of the estate of Nancy Maxon Gilman, who was the widow of Hiram Maxon, deceased, was also made party to the suit. During the pendency of the proceeding, T. E. Bradbury succeeded William T. Minturn as administrator of Nancy Maxon Gil-man’s estate and was substituted as a defendant in his place.
    Hiram Maxon died March 15, 1875, leaving no children, and leaving a widow, Nancy Maxon, who later intermarried with one Gilman; Hiram Maxon by will devised these several tracts of real estate to Nancy Maxon absolutely and in fee simple, and also devised to her certain other property of which he was the owner at the time of his death; Nancy Maxon was appointed executrix of this will, but she never advertised her appointment as such and never filed an account in the probate court of that county showing her administration of this trust.
    Nancy Maxon Gilman died March 5, 1908. Shortly prior to her death, the following writing was discovered: “Gallipolis, Ohio, July, 1873. One year after the death of Nancy Maxon and myself my estate will pay Henry Bailey, or his heirs, five thousand dollars for his services during my life. (Signed) H. Maxon.”
    This has been allowed as a valid claim against the estate of Hiram Maxon, and is, so far as the petition discloses, the only debt still owing by said estate.
    The Hocking Valley Railway Company filed a separate answer in which it is averred in substance that on the first day of September, 1880,' Nancy Maxon sold and conveyed tract No. 4 by deed duly executed and recorded in Gallia county, to one John A. Hamilton, and that it is now the owner in fee simple of tract No. 4 by and through mesne conveyances from said original grantee and that it and its predecessors in title have had open, notorious, exclusive and adverse possession of said tract for more than thirty-four years and have made large and valuable improvements thereon.
    Asa H. Bradbury, Gail Bradbury Comer and H. Poe Bradbury filed a separate answer averring, among other things, that on the 21st day of March, 1891, Nancy Maxon Gilman, for the consideration of $4,500, sold and conveyed, by deed of general warranty, tract No. 3 to Joseph C. Morris, who subsequently conveyed the same to Henry Gilman; that they purchased the same from the administrator of Henry Gilman, and that they are now the holders and owners thereof and have made large improvements thereon.
    Emma Mary E. Black and Samuel P. Black also filed a separate answer, averring, among other things, that on the 1st of September, 1893, Nancy Maxon Gilman, by deed of general warranty, sold and conveyed tracts Nos. 1 and 2 to one Samuel Silverman, and that these defendants are now the owners through mesne conveyances from the said Samuel Silverman of the said tracts 1 and 2-described in the petition. To these several answers the plaintiff filed separate demurrers.
    Asa H. Bradbury, Gail Bradbury Comer, H. Poe Bradbury, Emma Mary E. Black, Samuel P. Black, and The Hocking Valley Railway Company filed a joint cross-petition against T. E. Bradbury, executor of the last will and testament of Nancy Maxon Gilman, making her heirs also parties defendant thereto, averring the sale of tract No. 4 by Nancy Maxon to John A. Hamilton, as set forth .in the separate answer of The Hocking Valley Railway Company; that on the 21st day of March, 1891, in consideration of $4,500, Nancy Maxon Gilman sold and conveyed by deed of warranty tract No. 3 to Joseph C. Morris, who subsequently conveyed the same to Henry Gilman; that the defendants, Asa H. Bradbury, Gail Bradbury Comer, and H. Poe Bradbury, purchased this tract of land from the administrator of Henry Gilman, and are now the owners and holders of the same; that on the first day of September, 1893, Nancy Maxon Gilman, in consideration of $7,400, conveyed by deed of warranty tracts Nos. 1 and 2 of said real estate to Samuel Silverman; that the same were devised by the will of Samuel Silver-man to Caroline Silverman, who in turn devised the same land by her last will and testament to William Silverman, Simon Silverman, Leon Silver-man, Jennie Silverman, Lizzie Levi, Fannie Bamberger and Barbara Wallenstein.
    They further aver that if said real estate is ordered sold by the court, these cross-petitioners will then be compelled to bring three several actions against the estate of the said Nancy Maxon Gilman upon the warranties contained in the deeds of the said Nancy Maxon Gilman, as set forth hereinbefore; that all the parties in interest are parties to this action; that there is now in the hands of T. E. Bradbury, executor of the last will and testament of Nancy Maxon Gilman, deceased, personal property amounting to $1,000 or more; that the real estate of said Nancy Maxon Gilman will amount to $10,000 or more; that the costs and expenses in this litigation and the damages, costs and expenses in the three actions that will necessarily be brought by these cross-petitioners would be largely in excess of the total amount of the estate of Nancy Maxon Gilman and would cause loss to these cross-petitioners, thereby working irreparable injury to them; and pray that said T. E. Bradbury, as executor of the last will and testament of Nancy Maxon Gilman, deceased, be ordered to pay the debts and costs aforesaid existing against the estate of Hiram Maxon, deceased, and for such other relief to which they may be found entitled either in law or equity.
    To this cross-petition T. E. Bradbury, executor of the last will and testament of Nancy Maxon Gilman, deceased, filed a demurrer upon the grounds: First, that the court has no jurisdiction of the subject-matter set forth in said cross-petition; second, that the cross-petition does not state facts which show a cause of action; and, third, that there is a defect of parties defendant.
    The probate court sustained all of the demurrers to the several answers of the separate owners, but overruled the demurrer of T. E. Bradbury, executor of the last will and testament of Nancy Maxon Gilman, deceased, to the cross-petition of Asa H. Bradbury et al., and ordered and directed said executor to pay to Charles W. White, administrator, the sum of $6,300 to cover the debts, with interest of the estate of Hiram Maxon, and costs of administration, and also ordered said Charles W. White, as administrator de bonis non with the will annexed of Hiram Maxon, to sell the said several tracts of land at not less than two-thirds of the original appraisement thereof, for the purpose of paying the same debts.
    From this judgment of the probate court an appeal was taken to the common pleas court of that county, and that court also sustained the several demurrers to the answers other than the cross-petition of Asa H. Bradbury et al., and overruled the demurrer of T. E. Bradbury, as executor, thereto; and ordered and directed said executor to pay to Charles W. White, administrator de bonis non with the will annexed of the estate of Hiram Maxon, deceased, the sum of $6,400 to pay the debts and costs of administration of the estate of Hiram Maxon, and also found that it was necessary to sell the real estate in said petition described to pay said debts and charges of administration of said estate, and ordered that the same be sold for that purpose.
    To this judgment of the common pleas court Asa H. Bradbury, H. Poe Bradbury, C. A Bradbury, Gail Comer and The Hocking Valley Railway Company filed petitions in error in the circuit court of Gallia county.
    T. E. Bradbury, executor of - the last will and testament of Nancy Maxon Gilman, deceased, filed a cross-petition in error, as did also the heirs, legatees and devisees under the will of Nancy Maxon Gilman, and that court reversed the judgment entered in the common pleas court against T. E. Bradbury, as executor of the last will and testament of Nancy Maxon Gilman, deceased, for error of the court in overruling his demurrer to the cross-petition of Emma Mary E. Black, Samuel P. Black, The Hocking Valley Railway Company, Asa H. Bradbury, C. A. Bradbury and Gail Comer, and affirmed the judgment ordering the sale of said real estate.
    Error is now prosecuted in these three several proceedings in error to reverse the judgment of the circuit court in reversing the judgment against T. E. Bradbury, executor of the will of Nancy Maxon Gilman, deceased, and in affirming the judgment of the common pleas court ordering the sale of these lands.

      Mr. Hollis C. Johnston, for plaintiffs in error.

      Mr. 'C. H. D. Summers; Mr. R. M. Switzer; Mr. E. D. Davis; Mr. Roscoe J. Mauck; Mr. Hollis C. Johnston and Mr. T. E. Powell, for defendants in error.
   Donahue, J.

In the disposition of this case, it is hardly necessary to determine whether the probate court, or the common pleas court on appeal, had jurisdiction to order and direct the executor of the will of Nancy Maxon Gilman to pay out of her estate to the administrator of Hiram Maxon’s estate sufficient money to pay the debts of that estate and the costs of administration. It is undoubtedly true that Section 10783, General Code, does confer upon the probate court the right to determine the equities between the parties, yet, in the absence of the creditors of the estate of Nancy Maxon Gilman, it would be impossible to say that such an order would not materially prejudice their rights. At all events, it is not the proper way in which to compel her estate to pay over to her successor in trust as executrix of the will of Hiram Maxon, deceased, the money she received in such trust capacity.

Nor is it important to determine whether the demurrers to the several separate answers of the defendants should have been sustained. The record here does not show that Charles W. White, as administrator de bonis non with the will annexed of Hiram Maxon, deceased, is entitled to an order to sell this real estate to pay debts of his testator. He does aver in his petition that the personal estate and effects of said testator “is but - dollars, being wholly insufficient to pay the debts and costs aforesaid.” Conceding that this is an averment that there is no personal property whatever, yet the admitted facts in this case positively show that such an averment is not true. On the contrary, it does appear that some personal estate came into the possession of Nancy Maxon, for which she has not accounted. It further appears that the real estate of which Hiram Maxon died seized was sold by her and the proceeds of such sale came into the possession of the executrix of his last will and testament, and these proceeds have not been applied to the payment of the debts of the estate and no account has been filed thereof.

It is not the law of this state that the sole devisee of lands, who is also executrix of the last will and testament of a testator, can sell the land of which the testator died seized, pocket the proceeds and render no account thereof.

It is true that the record discloses no moral turpitude on the part of Nancy Maxon Gilman. She, undoubtedly, honestly believed that the debts were all paid, and that, being the sole devisee of the lands, she was entitled to deal with them as her own in her individual capacity and not in her trust capacity. But the fact now appears that the debts were not all paid, and that she was not entitled to this land, or the proceeds thereof, until the debts were paid. So that the rule of law is just the same as if she had purposely sought to obtain the property of this estate, under the will of her deceased husband, without paying his debts.

The will of Hiram Maxon devised all of his estate, personal and real, to his widow, Nancy Maxon, absolutely and in fee simple. This, of course, was necessarily subject to the payment of all his debts. Nancy Maxon was appointed executrix, but it does not appear that she ever performed any of the duties of this trust or ever paid any of these debts. It certainly does appear that she did not pay this debt or provide for its payment out of the estate of her testator. That she undertook to sell and dispose of this land as devisee thereof and not as executrix, does not release her from accounting for the proceeds thereof. If there was not sufficient personal property to pay all the debts of Hiram Maxon, in-eluding the indebtedness later discovered, then this land became subject to the payment thereof, and the purchase money that came into her hands was charged with a trust for that purpose. She cannot now, nor can her representatives, be heard to say that she received this purchase price in a personal capacity, for the presumption of law is that she received it properly and legitimately and should render an account thereof. She was entitled to receive as legatee and devisee only the excess over and above the debts owing by Hiram Maxon at the time of his decease; and before that could be ascertained she must file an account of her stewardship. She was entitled to take immediate possession of this real estate and to use and occupy the same as her own until it should be called upon to pay the debts of the estate. Occupying the dual capacity of executrix of the will of her husband, and sole devisee of that will, when she undertook to sell and convey that property, she must be held to have received the proceeds thereof as executrix and not as devisee, and she must account for it as such. The creditors of that estate are entitled to the application of that fund to the payment of their claims against the estate, and if she accounts as such executrix for the amount actually received therefor, or, in case that was not the full value of the land, then for the full value thereof, the creditors have received therefrom all they are entitled to receive.

In the absence of evidence to the contrary, and in view of the finding of the common pleas and probate court, the original appraised value of this real estate was then and there the full value thereof. True, if she received anything over and above this appraisement, she must account for it, but if she received less therefor at private sale, she must nevertheless account for the full amount of the appraisement. For the payment of this, not only her personal estate but her sureties upon her bond as executrix, if any, must respond.

It is not now important, nor even pertinent, to a discussion of the question involved here as to what may be the remedy, if any, of the creditors of the estate of Hiram Maxon in case his estate is unable to recover from the estate of Nancy Maxon Gilman, the amount of the personal property and the proceeds of the sale of the real estate that came into her hands while she was acting in a trust capacity as executrix of the will of Hiram Maxon. Nor is it important that in case it should be found that the creditors would still have the right to compel a sale of this land for the satisfaction of their debts, whether equity would subject the lands to the payment of these debts in the inverse order of their sale, as in other cases of liens. It does not now appear that these questions will ever arise in this case, and, if they do, it will be time enough to dispose of them when they are properly presented.

The first duty of this administrator de bonis non with the will annexed of Hiram Maxon, deceased, is to compel an accounting by the executor of Nancy Maxon Gilman of the administration of her trust as executrix of the will of Hiram Maxon, deceased. It now appears that when he has done this, there will be ample funds in his hands for the payment of all the debts of his estate. This administrator de bonis non succeeds to the trust of Nancy Maxon Gilman, executrix of the last will and testament of Hiram Maxon, deceased. He is in no different position and has no further rights than the original trustee, except the right to compel the executor of the will of the original trustee to file an account and pay over any funds received by her and unadministered. If she were still living and still executrix, how could she maintain a suit of this character? Upon the facts presented in this answer and admitted by the demurrer, she would be promptly ordered to apply the money already received from the proceeds of the sale of this land to the payment of her testator’s debts. She would not be permitted to appropriate the proceeds of the sale of this real estate to her own use, as devisee, until all the debts were paid, and any contention upon her part that, because she had sold the land in her individual capacity, as devisee, instead of in her trust capacity as executrix, she would not be required to account for the proceeds as executrix, would be too absurd for argument, and counsel would hardly make such contention. Of course, if the devisee and the executrix were different persons, then this plaintiff might well make the contention that the proceeds of the land had never been received by the executrix, but where they are one and the same person, the law will not permit the executrix to say that she failed in her duty or violated her trust by appropriating to herself, as devisee, the proceeds of the sale of this land before she had paid and satisfied all debts and costs of administration.. The same reasoning applies to her successor in trust. The allegation in this petition that there are no funds with which to pay these debts is not sustained by proof that ample funds for that purpose came into the hands of his predecessor in the trust for which that predecessor has not accounted.

In contemplation of law, these funds are still in her possession, as executrix, or rather in the possession of her personal representative, to be accounted for and turned over to her successor in the trust. If she has actually appropriated them to her own use, then her estate must restore the trust fund, and it is the duty of this administrator de bonis non to see that that is promptly done. The executor of her will should file an account of her administration of her husband’s, estate, and, in that account, she must be charged not only with the personal property that came into her possession, but with such sums as she received from the sale of this real estate, allowing to her estate proper credit for payments made by her, as such executrix, on behalf of said estate, and he must pay over to the administrator de bonis non the balance found due from her, as executrix, to the estate of Hiram Maxon, or' at least sufficient thereof to pay all debts and costs of administration. Anything over and above that amount, her estate would be entitled to receive under the will of Hiram Maxon, deceased. If the executor of her will fails and neglects to do this, then it is the duty of the administrator de bonis non to file a motion in probate court to compel this accounting.

This disposes of all the questions necessary to a determination of this case. The probate court and the common pleas court erred in granting the prayer of this petition and ordering the sale of this real estate to pay the debts of the estate of Hiram Maxon, deceased, and the circuit court erred in affirming the judgment of the common pleas court. Upon the admitted facts, the petition should have been dismissed and the administrator de bonis non required to proceed against the personal representative of his predecessor in trust to compel an accounting and payment to him of any balance in her hands as such trustee.

The judgment of the common pleas court, ordering the sale of these lands, and the judgment of the circuit court affirming that judgment, are reversed, and the petition of the administrator de bonis non with the will annexed of Hiram Maxon, deceased, is dismissed without prejudice.

Jtidgment reversed and judgment for plaintiff in error. 0

Shauck, C. J., Johnson, Wanamaker, Newman and Wilkin, JJ., concur.