source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    The State ex rel. v. Ellet et al.

      Constitutional Law — Laws of a General Nature.

      The act entitled “ an act to require the county commissioners in any county having a population at the census of 1880, of 43,78S, and containing a city of the second class, third grade, to provide a depositary for the county funds, and for other purposes,” (86 Ohio Laws, 70,) is a law of a general nature, applicable only to Summit county, (there being no other county having the specified population and containing a city of the designated class and grade,) and is in conflict with section 26 of article 2 of the constitution of this state, which requires that “all laws of a general nature, shall have a uniform operation throughout the state.”
    (Decided Jan. 21, 1890.
    Quo Warranto.
    The petition charges, that the defendants, claiming to be commissioners of Summit county, have since the. 2d day of September, 1889, usurped, assumed, and exercised the power and franchise to award and loan, at a rate of interest not less than two per centum, the moneys that are, or may be in the county treasury of that county, “ to such banks situated in said county, and duly incorporated under the laws of this state, or of the United States, as they may select, that offer the highest rate of interest therefor, and such moneys to take, and the same to withhold from the custody of the treasurer of said county;” and prays that they be required to show by what right they claim to hold and exercise such power and franchise, and for the proper judgment of ouster there-, from. -The defendants, by their answer, admit that they are' the commissioners of Summit county, and allege that they are exercising the power and franchise referred to in the petition, under and by virtue of the authority of the act of the general assembly, entitled “ an act to require the county commissioners of any county having a population at the census of 1880, of 43,788, and containing a city of the second-class, third grade, to provide a depositary for the county funds, and for other purposes,” passed March 11, 1889, and which took effect on the 1st day of September, 1889.
    The state demurs to the answer, claiming that the statute is unconstitutional.
    Such provisions of the statute as are deemed material to the decision' of the case are referred to in the opinion.

      D. K. Watson, At’y Gen’l, Oviatt Allen and Voris cf Voris, for plaintiff.
    It being admitted in the record that the county of Summit is the only county in the state having, or that can have, the exact population of 43,788, at the census of 1880, and containing a city of the second class, third grade, the conclusion necessarily follows that the act set up by the defendants in their answer in bar of this action, is local in its operation. The law is of a general nature and the inhibition of the constitution makes the act void so far as it confers special powers upon the commissioners of Summit county. Constitution, Sec. 26, Art. 2; State v. Mitchell, 31 Ohio St., 607; State v. Pugh, 43 Ohio St., 98; State v. Anderson, 44 Ohio St., 247; State v. Covington, 29 Ohio St., 102; Lehman v. McBride, 15 Ohio St., 605; Atkinson v. Railroad Co., 15 Ohio St. 85.
    The principle by which we may determine what is and what is not a general law, may be found in the following cases: Kelly v. State, 6 Ohio St., 269; McGill v. State, 34 Ohio St., 238; State v. Pugh, 43 Ohio St., 98; State v. Hipp, 38 Ohio ' St., 199; 34 Ohio St., 440.

      George W. Lieler, Prosecuting Attorney, and Powell, Owen, Rickets $ Black, for defendants.
    The first question — the first test is — is the act a general one ? This is settled by the pleadings. They present the act to the court as a local and special one. This entirely removes it from the operation of the provision which it is claimed has inhibited it, unless it is so far of a general nature that it must be uniform in its operation or fail. There is nothing in the constitution which stands in the way of local and special legislation. This is within the general grant of legislative power. Some of the wisest, most useful and most necessary legislation of our state has assumed a local and special form.
    If we correctly interpret the argument of counsel for the relator, they stand upon the proposition that if the act in question is upon a subject-matter which has been made the subject of a general act, it is an act of a general nature; and not having a uniform operation throughout the state, it is within the inhibition of Sec. 26, Art. 2, of the constitution. Whatever may have been said by judges of this court upon this question, it is now thoroughly well established that such is not the law of Ohio. 29 Ohio St., 102; 38 Ohio St., 54, 455; 43 Ohio St., 111; State v. Shearer, 46 Ohio St., 275; State v. The Judges, 21 Ohio St., 1; State v. Covington, 29 Ohio St., 102; McGill v. The State, 34 Ohio St., 228. We respectfully refer the court to the cases cited in McGill v. State and State v. Shearer.

    If the act should be held to operate upon the school funds by reason of this constitutional objection, there is no reason shown in the act itself why the entire act should perish. Cooley’s Con. Lini. sec. 212, page 178.
   Williams, J.

The particular provision of the constitution with which the statute is claimed to be in conflict, is section 26 of article 2, which requires that “ All laws, of a general nature, shall have a uniform operation throughout the state.”

This provision of the constitution, it has been uniformly held by this court, is mandatory and not directory merely. State v. Kelly, 6 Ohio St. 269; Falk, Exp., 42 Ohio St. 638; State v. Powers, 38 Ohio St. 54, 63. In the language of Scott, J., in Kelly v. State, 6 Ohio St. 269, it is “ a general, unqualified and positive prohibition or limitation of legislative power, forbidding the giving of a partial operation to any law of a general nature — or in its own affirmative terms, requiring that a uniform operation throughout the state shall be given to all laws of a general nature.”

The purpose of the provision, and the evils intended to be remedied by it, have been repeatedly declared, and pointed out in the decisions of this court. In Lehman v. McBride, 15 Ohio St. 605, it is said that, “ Under the former constitution, laws having a general subject matter, and therefore, ‘ of a general nature,’ were frequently limited expressly, in their operation, to one or more counties, to the exclusion of other portions of the state. As a consequence, on the same subject, there might be one law for Hamilton county, another for Franklin, and still a third for Ashtabula. This naturally led to improvident legislation, enacted by the votes of legislators who wore indifferent in the premises, because their own immediate constituents were not affected by it. To arrest, and, for the future, prevent this evil, the provision in question was inserted in the present constitution.” Upon this subject it was said, by Boynton, J., in McGrill v. State, 34 Ohio St. 228, that “ A general law, that land should not be sold upon execution for less than two thirds of its appraised value was excluded - from operation in several counties by local enactment. There were different laws in different counties respecting the descent and distribution of intestate property. Some statutes defining legal offenses were excluded' in their operation from a large part of the state; and different penalties for a violation.of the same act, were, in some instances, provided for different localities. These are examples of the legislation, to prevent which in the future, and the mischief resulting from it, this provision of the constitution was adopted.” And see Falk, Exp., 42 Ohio St. 638.

Whether a statute be a law of a general nature or not, depends, it is conceded, upon its subject matter, and not upon its form; and, hence, to come within this constitutional inhibition, it is not necessary that the statute be general in form. Nor, can it be maintained that because the act is local in form, it must be presumed that there was some sufficient local necessity for its enactment; for this would totally defeat the provision of the constitution. If it must be assumed, merely because the statute has been enacted, that the legislature had information showing that there was a necessity for such legislation with respect to the particular locality, it would follow that all legislation, local in form, must be upheld, however general the nature and subject matter of such legislation might be. Speaking upon this subject, Okby, J., in the opinion in Falk, Exp. supra, says: “We are not willing, nor are we permitted, to adopt any such rule of construction; and, indeed, to do so would be in effect to unsay what we have deliberately said as to the mandatory character of the constitutional provision we are considering.”

The statute in question, purports to be general, applying to all counties of a designated class, and to establish for them a general system of law regulating the custody, investment and disbursement of their public funds and revenues. But it is admitted by the answer, that Summit, is the only county in the state coming within the description of the statute, and hence, the only one to which it can apply. And, inasmuch, as no other county can ever come within the operation of the statute, there is no ground for the application of that rule of classification, under which, legislation applicable to classes of municipal corporations, into which others may enter, or be admitted bjr the increase of population, has been frequently sustained by this court. Slate v. Anderson, 44 Ohio St. 247.

The act, in substance, provides that the county commissioners shall, in a specified mode, contract with one or more banking institutions, incorporated under the laws of this state, or of the United States, for the loan of the public money in the county treasury, at a rate of interest not less than two per centum, and that the county treasurer, upon receiving written notice from the commissioners, that such contract has been awarded, naming the bank selected as such depositary, shall deposit in such bank to the credit of the county, all moneys in his possession ; and, thereafter, daily, in like manner, deposit all moneys received by him, on the preceding business day. These contracts for loaning the money, are required to be renewed, or new ones made, every six months, and provision is made for removing the money from the possession of the last to that of the succeeding borrower. The money so deposited, shall bear interest at the rate agreed upon, to be computed on the daily balances, “and such interest shall he placed to the credit of the county on the first day of March and September each year, or at any time when the account may be closed.” The act then points out in detail, the mode of disbursing the funds by the depositary upon checks drawn by the treasurer, the duties of the auditor and treasurer with respect thereto, and prescribes an elaborate method for keeping the fiscal accounts and preserving the vouchers. Under one of its provisions, the treasurer majr retain in his custody, funds not exceeding five thousand dollars, with which to pay jurors and witnesses their fees, and warrants payable from the soldier’s relief fund.

The subject of the statute, is the custody, safe-keeping and disbursement of the public revenues, and the duties of public officers concerning them. Included in these revenues, are the moneys collected on the levy for the payment of the interest and principal of the public debt of the state, the general revenue fund, the state common school fund, money collected from the tax on the business of trafficking in intoxicating liquors, a portion of which goes into the revenues of the state, taxes levied for defraying county expenses, repairing roads and bridges, and keeping the poor, as well as those collected upon special levies for school, county, township and municipal purposes, and all other public money, from whatever source derived, coming to the hands of the county treasurer. In the safekeeping and proper disbursement of these funds, are involved, the credit of the state, the due administration of the state government, the efficiency of the common school system, the proper maintenance and management of the benevolent- and penal institutions, and other matters of public concern, in which the tax-payers and people of the state at large, have important, if not equal interests.

Hitherto the whole subject of keeping and disbursing, as well as raising the public .revenues, has been regarded of such common interest to all the people of the state, that it has been regulated by a general law operating uniformly throughout the state. County treasurers are required to be elected in the several counties, and they hold their office, for the same terms. They are, in their respective counties, made the collecting and disbursing officers of the public revenues. The same general duties are enjoined upon them, in the discharge of which, the same legal machinery is employed, and the performance of which, are secured and enforced in the same manner. The county commissioners are “required to provide all such rooms, and fire and burglar proof vaults and safes, and other means of security in the office of the county treasury, as are necessary for the perfect protection of the public moneys and property therein.” Rev. Stats., sec. 859. The treasury is subject to frequent examinations, with or without notice to the treasurer, and severe penalties and forfeitures are imposed for his delinquency or malfeasance. He is required at prescribed periods to make settlements with the state auditor, and pay over to the state treasurer, all money belonging to the state.

It is claimed, however, that statutes, local in their application, are not necessarily invalid because there is a general statute in force, under the provisions of which, the same object may be accomplished that is sought by the local statute, and embracing the same subject matter. This may undoubtedly be true, but the local statute must be upon a subject in its nature local, as well as local in its operation. Such was the statute under review in State v. Shearer, 46 Ohio St. 275.

That act was one to establish a special school district comprising certain described territory in a specified township. The general statutes in force at the time, provided a mode for the creation of special, districts. The decision of the case is placed upon the ground that the subject matter of the statute was local in its nature, and was so treated by the general legislation pertaining to the subject.

With respect to the general statute upon the subject, Speak, J., in the opinion, says: “ The idea pervading the statute, as to this feature is, that the needs of the people of the different townships will be different; that, while in one the education of the youth may be reasonably attained by constituting the whole territory into one district, in an adjoining township the same object can be better attained by dividing the territory into subdistricts, or by carving out of the territory of the township a portion into a special district, or, by reason of changed conditions, by the consolidation of subdistricts. This implies that the question of whether territory in a given locality shall be formed into one kind of a district, or another, will be determined by considerations of local convenience, and that no division by a rule which shall be fixed, arbitrary and uniform, will meet the requirements of all sections. It is foreseen that changes will be necessary from time to time, and power is given to boards of education to initiate such changes, and the same may be brought about in any of the several localities without reference to, or disturbance of, neigh: boring districts not geographically affected, or the schools within them. Clearly, then, in the judgment of the framers of the general law, divisions of territory into districts is matter of local concern.” In the same opinion it is further said, “the question of division of territory, like that of the erection of school houses, and the procuring of apparatus and other property necessary for the nse of the schools, would seem to be so far of local concern merely that special necessities might safely be left to be provided for by special enactments.”

It is apparent that the general statutes relating to the custody and disbursement of the revenues, do not contemplate any local conditions permitting the removal of the public moneys from the custody of the county treasury, as the place of their deposit, and safekeeping; ifor, that they should be held and paid out otherwise than by the treasurer. These regulations are not founded upon any considerations merely local, nor is the subject local in its nature, but as we have already seen, is of general public interest. What local circumstance, or condition can there be with respect to the subject, in any county, that does not also exist in every other county? Or what considerations are there, rendering the application of this particular statute, adopting such radical changes, necessary or advisable in Summit county, that do not make it equally necessary or advisable in each of the counties of the state ? It is not contended that there are any, and none are perceived. If it be said, that a safe place of deposit in the county treasury has not been provided, or that it has become temporarily unsafe, or that the incumbent of the office is incompetent or unfaithful, the same condition of things is liable to occur in other counties, and as much so in one, as another; for, the same requirements are made by law for providing Summit county with a safe place for the deposit of the public money in the treasurer’s office, as are, for every other county, and in each county, the same regulations are in force,- for choosing the officer, securing and enforcing the performance of his duties, detecting and punishing his defalcations, and for removing him from office and filling the vacancy. If such conditions should exist in any county, they must in their nature be temporary. In view of the law, it can hardly be supposed that the treasurer’s office has not been furnished with the necessary vaults, or places for the safe deposit of the public funds; and, if such vaults or places have been destroyed, or become unsafe, the duty of the county commissioners is imperative, to at once restore them, and make them safe. Unfaithfulness on the part of public officers is exceptional, integrity and competency the rule. Official misconduct is, therefore, not to be presumed, and generally, when it occurs, measures are promptly taken to prevent its continuance or recurrence. Obviously, the statute which the defendants claim confers upon them the'powers and franchises they are charged with exercising, was not adopted to meet merely temporary or local emergencies or conditions. It enacts for Summit county a permanent and comprehensive system of law, relating to the custody and disbursement of the public funds, not only essentially different from that established for the remainder of the state by the general statutes, but directly at variance with it. It is the experiment of a new scheme, general in its nature, and local only in its application. It strips the present, and each succeeding county treasurer, of many of the important functions of his office, and makes him little more than a mere conduit for the transmission of the public moneys from the hands of the taxpayers, and other sources of-revenue, to the bank selected as the depositary. It changes the place of their safe keeping, removes the safeguards provided for their security and the protection of the public, and substitutes for them others wholly different, and changes the whole method of disbursement, and the system of fiscal accounts.

We are not to be understood as calling in question the wisdom or policy of the statute. The system it provides for the safe keeping and disbursement of the public money of Summit county, may be, in every way a better one than that established by the general statute. But if it be so for Summit county, it must likewise be so for every other county, for the conditions that make it so, exist in each alike.

Then, the effect of this statute, if valid, is to give partial operation to the criminal laws, and prevent their uniform operation throughout the state.

The criminal code, Rev. Stats., sec. 6841, makes it a felony for any person charged with the collection, receipt, safe keeping, transfer, or disbursement of the public money or any part thereof, belonging to the state, or to any county, town* ship, municipal corporation, or board of education in this state, to loan, with or without interest, to any company, corporation or individual, or to deposit with any company, corporation, or individual, any portion of the public money, or any other funds, property, bonds, securities, assets, or effects of any kind, received,’ controlled, or held by him for safe keeping, transfer, or disbursement, or in any other way or manner, or for any other purpose. And the offender may be imprisoned in the penitentiary for. a term of years, and heavily fined.

Any county treasurer who should deposit the public moneys in any bank, with or without interest, and whether so directed by the county commissioners or not, would be guilty of a violation of this section, and subject to the punishment it prescribes. And if the county commissioners should advise and direct such deposit to be made, they would be equally guilty. It is sought to take Summit county and its officers, out of the operation of this section, and relieve the latter from the consequences of its violation, by sec. 18 of the statute in question, which enacts that “ Any provision of the statutes of this state in force when this act takes effect, which conflicts with any provision of this act, shall be held to be superseded by the latter, as to the matter of inconsistency, and not otherwise, in counties to which tins act relates.”

The penal part of that statute is contained in sec. 17, which provides that “ An officer of any such county who willfully violates any provisions of this act, or willfully neglects or refuses to perform any duty thereby imposed upon him, shall upon conviction thereof in the court of common pleas, be fined in any sum not exceeding ten thousand dollars, for the use of the county, or be imprisoned in the penitentiary not more than ten years nor less than one year, or both, at the discretion of the court.”

Thus it appears, if effect be given to this statute, that while it is a felony for the treasurer of any county, except Summit, to deposit the public moneys in a bank, or for the commissioners to advise or direct such deposit to be made, it is perfectly lawful for the treasurer of Summit county to deposit the public moneys of that county in banks, and for the commissioners to advise and direct the same to be done. Not only so, but in that county the refusal of the treasurer to make the deposit, or of the commissioners to select the bank and direct the deposit, is made a felony. In other words, under the operation of this statute, acts, which in one county are innocent, and the faithful performance of official dnty, are made grave crimes if done in any other county; and, on the other hand, that which is innocent and the faithful performance of official duty in the latter is a crime of equal gravity in the former. It cannot be claimed that these highly penal provisions are merely police regulations. Whether, therefore, the same act be lawful, or criminal, is made to depend upon the boundary of a county line. This would be a somewhat singular state of tire law; at least, it is that state of legislation, which, as already seen, according to the former decisions of this court, the particular provision of the constitution we have been considering, was designed to interdict.

We are therefore of opinion that the statute, upon which the defendants rely, as the source of their authority for the powers and franchises they have assumed to exercise, is a law of a general nature, applicable only to Summit county, there being no other county having the specified population and containing a city of the designated class and grade, and is in conflict with section 26 of article 2 of the constitution of this state, which requires, that “ All laws of a general nature shall have a uniform operation throughout the state.”

Demurrer to answer sustained, and judgment of ouster.


author: Bradbury, J.

text:
    The State v. Brown.

      Incest — Requisites of an Indictment for, under Section 7019, Revised Statutes. — Practice in Criminal Cases. .

    1. (a). In a prosecution instituted and conducted under section 7019, Revised Statutes, it is not necessary to aver or prove more than a single sexual act.

      (b) . The. kinship of the parties sufficiently appears by an averment that the sexual act was committed by persons who bore the relation of uncle and niece to each other; that kinship being, by law, nearer than that between cousins, it is unnecessary to expressly allege that it is so.
    (c) . An averment that the parties were not husband and wife, is not necessary, for the statute (section 7019) prohibits sexual commerce between persons “nearer of kin.....than cousins,” whether .they have gone through the form of marriage or not.
    2. Where the evidence is excluded from the jury, upon a motion of the defendant in a criminal trial, on the ground that the indictment charges no offense against him, the jury should be discharged without rendering a verdict, there being no offense of which to acquit him, and no evidence for them to consider.
    (Decided January 21, 1890.)
    Exceptions to the Court of Common Pleas of Lake county.
    At tbe May term, 1886, of said court, an indictment was found against the defendant Brown, charging him, in five several counts, with incest, committed with Rose Cramer; his niece; each count charging the act to have been done on a different day from that named in the other counts. ■ In the first and second counts the defendant is' alleged to be unmarried, and the act denominated fornication, while in the third, fourth and fifth counts, he is alleged to be married, and the act is called adultery. None of the counts aver that Rose Cramer was not the wife of the defendant, when the sexual intercourse was had, nor does it appear whether or not she was then the wife of any one.
    A motion to quash the indictment was interposed upon the grounds, among others, that the indictment did not state whether or not, Rose Cramer was married, and did not state that she was not the lawful wife of the defendant, when the alleged acts of sexual intercourse occurred. A general demurrer was also filed by the defendant, on the ground that the indictment did not charge an offense. The motion and demurrer were both overruled.
    The prosecuting attorney then, pursuant to an order of the court, made at the request of defendant, elected to proceed to trial on the second and fifth counts of the indictment, and a nolle prosequi was entered as to the other counts thereof. Upon the jury being empaneled and sworn, the state proceeded to offer its evidence, to which counsel for defendant objected, upon the ground that no offense was charged by either of the counts upon which the state had elected to proceed; and on that ground the court refused to permit any evidence to be given by the state, and, upon motion of defendant, ordered the jury to return a verdict of not guilty, which was done, and the defendant discharged. To all which action and rulings of the court, the prosecuting attorney excepted, and embodying the proceedings in a bill of exceptions, has brought them to this court for review.

      Homer Harper, Prosecuting Attorney, for the state.
    No counsel appeared for the defendant.
   Bradbury, J.

The counts of the indictment held to be insufficient to charge an offense, read as follows:

Second count — The jurors of the grand jury of the state of Ohio, within and for the body of the county of Lake, impaneled, sworn and charged to inquire of crimes and offenses committed within said county of Lake, in the name and by the authority of the state of Ohio, on their oaths, do further find and present that Benjamin Robert Brown, late- of said county, on the eighth day of November, in the year of our Lord one thousand eight hundred and eighty-five, with force and arms, in said county of Lake, and state of Ohio, being then and there an unmarried man, did commit fornication with Rose Cramer, by then and there unlawfully and feloniously having sexual intercourse with the said Rose Cramer, the said Benjamin Robert Brown being then and there the uncle of the said Rose Cramer, and the said Rose Cramer being then and there the niece of the said Benjamin Robert Brown, and the said Benjamin Robert Brown and the said Rose Cramer then and there having knowledge of their relationship, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.

Fifth count — The jurors of the grand jury of the state of Ohio, within and for the county of Lake, impaneled, sworn and charged to inquire of crimes and offenses committed within said county of Lake, in the name and by the authority of the state of Ohio, on their oaths, do further find and present that Benjamin Robert Brown, late of said county of Lake, on the sixth day of January, in the year of our Lord one thousand eight hundred and eighty-six, with force and arms in said county of Lake and state of Ohio, being then and there a married man, did commit adultery with Rose Cramer, by then and there unlawfully and feloniously having sexual intercourse with said Rose Cramer, the said Rose Cramer being then and there the niece of the said Benjamin Robert Brown, the said Benjamin Robert Brown and the said Rose Cramer being then and there persons nearer of kin by consanguinity than cousins, the said Benjamin Robert Brown and the said Rose Cramer then and there having knowledge of their relationship, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.

The offense intended fcrbe charged by each of these two counts is a violation of section 7019 Rev. Stats. That section provides; sec. 7019, “Persons nearer of kin by consanguinity or affinity than cousins, having knowledge of their relationship, who commit adultery or fornication together, shall be imprisoned.....”

The court of common pleas held that neither count charged an offense under tins section. The particular averment, or averments, the omission of which, in the opinion of that court, ■were fatal to these counts, have not been pointed out to this court, no brief having been filed in support of the rulings of which complaint is made; but we are not left to conjecture, wholly, respecting them, for the propositions combatted by the prosecuting attornej' in his brief indicate at least his understanding of what they were, though he fails to state them in direct terms.

However, after a careful examination of this brief and the record in the case, we yet have some doubts respecting the particular defects or omissions, which the court of common pleas held to be fatal, and therefore have carefully examined the two counts in question, with a view to ascertain what, if any, necessary averment or averments were omitted. From the argument submitted by the prosecuting attorney, it seems some doubt was entertained by the court of common pleas respecting the sufficiency of a single adulterous act to constitute the offense of incest, one act only, being charged in each of the counts. That one such act is sufficient, is established, we think, by the case of Barnhouse v. The State, 31 Ohio St. 39. It is true the statute in force, when that case arose, prohibited “ sexual intercourse ” between parties within certain degrees of kinship (S. & C. 405, sec. 8), while the statute in force when the offense charged against the defendant was committed, prohibits “ adultery or fornication ” within the prohibited degrees (sec. 7019 Rev. Stats.). But there is nothing in this change of phraseology to indicate a purpose to require a series of acts, of cohabiting together, to constitute incest. A single act of unlawful sexual intercourse falls within the definition of “ adultery ” or “fornication,” according as the party is married or not. ’ Bouvier, 92, 606; 1 Am. & Eng. Encyclopedia of Law, 209, and cases there cited. And that the words were used in this sense by the legislature in declaring what should constitute incest, clearly appears, when sec. 7019 is compared with sec. 7020. The latter section prescribes in direct terms that the party shall “cohabit” with another in a state of adultery or fornication to constitute an offense under it; but in the section now under con sideration (7019) no such, word is found. The two sections are in immediate juxtaposition, were passed at the same time, and are nearly allied. This makes the omission of the word “ cohabit” from the section under consideration the more significant. It evinces a purpose to prohibit in the one case an act, in its very nature repulsive and shocking to every sense ■ of decency, while by the other section a demoralizing condition, a living together in an unlawful connection, is the thing to be prohibited; and appropriate language was adopted by the legislature, in each section, to attain the object in view.

The first count under consideration (No. 2 in the indictment), avers that the defendant and Rose Cramer, with whom he committed the sexual- act, were uncle and niece, respectively, to each other, but does not aver in direct terms that that relationship is nearer than that between cousins, nor does it show whether they were related by blood or affinity.

Is it necessary to aver in express terms that the kinship is nearer than that between first cousins, or will it suffice if the degree of it is averred, and it is one necessarily nearer than cousins? While the statute (section 7019), in general terms, prohibits the sexual act between persons “ nearer of kin.....than cousins,” it may well be doubted whether a general averment, in .the words of the statute, would be definite enough to satisfy the rules of criminal pleading. It would remain uncertain which of the several degrees of kinship, nearer than that between cousins, .was intended to be charged. Where, however, the precise degree of kinship is averred, all indefiniteness disappears. Nor is it for the jury to determine, in each particular case, whether the kinship between the parties to the act, be they father and daughter, brother and sister, or uncle and niece, is, or is nob, nearer than that between cousins. This is matter of law determinable by fixed principles applicable alike to every case. The kinship being averred to be that of uncle and niece, it was unnecessary to aver in addition, that which was matter of law, that they were nearer of kin than cousins. The authorities in support of this principle are innumerable; one only will be referred to. Bishop says, quoting from Buller, J.: “It is one of the first principles of pleading, that you have only occasion to state facts, which must be done for the purpose of informing the court whose duty it is to declare the law arising upon those facts, and apprise the opposite party of what is meant to be proved in order to give him an opportunity to answer or traverse it.” 1 Bishop Crim. Procedure, § 329.

That the kinship between an uncle and his niece is nearer than that between cousins, within the Meaning of this statute, is clear, notwithstanding, that by the rules of the common law both were considered as standing in the same degree. The rule of the common law which accomplishes that result, relates to the descent of property, only; for, notwithstanding this rule of the common law, sexual commerce between uncle and niece in England is incestuous, while that between cousins is not. The law respecting incest, from the nature of the mischief to be prevented, necessarily regards the actual kinship of the parties as the predicate for its prohibitory enactments. Griffith v. Reed, 1 Hagg. Ecc. 195; Woods v. Woods, 2 Curt. Ecc. 516; Story on Conflict of Laws, §.§ 114 and 208. And the kinship between an uncle and niece is double that between cousins.

We hold, therefore, that within the meaning of sec. 7019, the kinship between uncle and niece is nearer than that between cousins.

While the question whether kinship by affinity should be protected, equally with that by consanguinity, is one about which different opinions may be held, (Story on Conflict of Laws, §§ 114, 115,) yet it falls within the province of the legislature to determine it; and that body having, in the same section and by the same words, prohibited the sexual act and prescribed the same penalty for its commission, whether the kinship be of the one class or the other, it is evident that no distinction was intended to be made between them, and that under the statute (see. 7019,) if the parties are nearer of kin than cousins, it is immaterial whether it be by consanguinity or affinity. Stuart v. The State, 39 Ohio St. 152. The supposed hardship of the law is much mitigated by the circumstance that kinship by affinity of the husband and wife. respectively, with the family of the other terminates with the dissolution of the marriage. Noble v. The State, 22 Ohio St. 541.

The count now under consideration avers that the defendant is not married, so that, if the indictment must show affirmatively that he and the woman with whom the sexual act was committed were not husband and wife, it sufficiently does so; not, it is true, by a direct averment, but by one from which the fact appears by necessary implication. The averment that he was unmarried is equivalent to one that she was not his wife.

The fifth count of the indictment differs from the second, in that it avers the defendant to be married, and the sexual act to be adultery; and in addition to averring that the defendant and Rose Cramer were uncle and niece to each other, directly averred that they were “nearer of kin by consanguinity than cousin.”

The only question necessary to be determined in connection with .this count, that has not been decided in passing upon the sufficiency of the second count, is the necessity of the count negativing the marriage of the defendant and Rose Cramer.

By referring to the statute, section 7019, it will be 'observed that it contains no exception in favor of parties who are intermarried; the language is general, and comprehends them as well as the unmarried. Upon what principle, then, can an exception be engrafted in this section by judicial construction? We know of none. By the law of England the intermarriage of the parties did not render the connection any less incestuous. Blackmore v. Brider, 2 Phillimore 359; Woods v. Woods, 2 Curt. Ecc. 516. Bishop defines it as follows: “ Incest, where statutes have not modfied its meaning, is sexual commerce, either habitual or in a single instance, and either under a form of marriage or without it, between persons too nearly related in consanguinity or affinity to be entitled to intermarry.” Bish. St. Cr. §727. The act is little, if any, less repulsive to a correct sense of decency, and no less a violation of sound public policy, because it is perpetrated by persons living together publicly under the form of marriage, than if done by them clandestinely and occasionally only. We hold, therefore, that by sec. 7019, Rev. Stats., sexual commerce, as between persons nearer of kin than cousins, is prohibited, whether they have gone through the form of intermarriage or not; nor is it material that the marriage was celebrated in a country where it was valid, for we are not bound, upon principles of comity, to permit persons to violate our criminal laws, adopted in the interest of decency and good morals, and based on principles of sound public policy, because they have assumed, in another state or country where it was lawful, the relation which led to the acts prohibited by our laws.

After the jury was empaneled and sworn, and the trial begun, the defendant’s counsel objected to the introduction of any evidence by the state, on the ground that the counts of the indictment upon which the state had elected to proceed, did not charge an offense. The court, adopting that view, refused to permit any evidence to go to the jury, and, upon motion of defendant’s attorney, ordered the jury to return a verdict of not guilty, and, thereupon, discharged him from custody. To all which, the prosecuting attorney excepted.

If the view taken by the court was correct, and no offense was charged, there was nothing of which he could be acquitted, and the verdict would be of no benefit to him. He could not plead it in bar of a subsequent prosecution. It would only benefit him in case the court had erred, and the indictment did charge an offense. As the case stood upon the holding of the court, no offense was charged against the defendant, and under those circumstances, the state had a right to require the jury to be discharged. There was nothing for them to do; the defendant was not charged before them with any offense, nor had any evidence against him been submitted for their consideration. The party was liable to be re-indicted, and again put upon trial, and if, upon the subsequent trial, the first indictment was held good, upon a plea of former acquittal, the verdict would be an absolute bar. True, the defendant, upon the subsequent trial, if the jury had been discharged at the first one without rendering a verdict, might plead his former jeopardy; and if, upon that plea, the former indictment should be held good, it might avail him as effectually as a verdict of not guilty. Of this we express no opinion; for, whether the discharge of a jury, so made necessary by a ruling of the court, had on the defendant’s own motion, would, in case the first indictment upon a plea in bar should be held good, be a bar to a subsequent prosecution, it was the right of the state, under the circumstances, to prevent the rendition of a verdict of not guilty, which would be an undoubted bar, whatever effect might be given to the other.

Exceptions sustained.


author: Speajr, J.

text:
    Miller v. Cincinnati.

      Bills of Exceptions — When must be taken — Sections 5298, 5301 and 5302, ¡Revised Statutes, construed — Practice in Civil Cases.

    Under sections 5298, 5301 and 5302, of tlie Revised Statutes, as now in force, a bill of exceptions, if not taken at the time the decision objected to is made, is required to be taken within thirty days after the term at which the verdict of the jury is rendered, or the cause is decided when tried to the court, except that, if the trial judge or judges be absent from the district when the bill is prepared for allowance, the same may be deposited with the clerk and signed, sealed and allowed by the judge or judges on or before the first day of the term next ensuing.
    Hence, where a motion for a new trial upon the ground that the verdict is not sustained by sufficient evidence, or is contrary to law, is filed in proper time after the verdict is rendered, but is not disposed of at that term, nor at a term within thirty days thereafter, a bill of exceptions to the overruling of the motion cannot be taken, and it is not error for a reviewing court in such case to dismiss a petition in error on the ground that there is no valid bill of exceptions in the case.
    (Decided January 21, 1890.)

      Motion for leave to file petition in error to the Superior Court of Cincinnati.
    The action below was to recover damages against the city of Cincinnati for personal injuries sustained by the defendant in error, Miller, by reason of a street of the city being permitted to become and remain out of repair and in a dangerous condition. The case was tried in the superior court at special term, December 24, 1888, and a verdict for plaintiff on that day rendered. On the same day the city filed its motion for a new trial, alleging, among other grounds, that the verdict was against the weight of the evidence. The term closed without disposition of this motion. Counsel for the city called the court’s attention to the motion, and requested that it be disposed of during the term, but took no exception to the court’s failure to do so. On the 16th of May following, and more than thirty days after the adjournment of the term at which the verdict was rendered, the motion was heard, overruled, and a judgment on the verdict entered. To the overruling of its motion, and rendition of judgment, the city excepted and tendered its bill of exceptions setting out all the evidence introduced at the trial, which on the 3d day of June following, was allowed, signed, and ordered made a part of the record. Thereupon the city filed its petition in error in the superior court, general term, which, upon hearing at the November term, 1889, was ordered dismissed on the ground that there was no legal bill of exceptions in the case. The city now asks leave to file in this court a petition to reverse that holding and judgment.
    Horstman, Hadden, Galvin Van Horne, for the motion.

      Beach, & Johnson, contra.

   Speajr, J.

The objections to the bill of exceptions are: 1. That it was not taken at the proper time ; 2. That it is rendered invalid because of the absence of a seal to the judge’s signature. If either objection is well taken the motion should be overruled.

The subject is covered by the provisions of ■chapter 4, division 8, of title 1, of the statutes. As this chapter stood at the taking effect of the Revised Statutes, January 1, 1880, section 5298, which was a re-enactment of section 291 of the code, reads as follows: “ The party objecting to the decision must except at the time the decision is made; and time may be given to reduce the exception to writing, but not beyond the term.” Sections 5301 and 5302, which were revisions of sections 294 and 693 of the code, as amended April 8, 1876, read as follows: “Sec. 5301. When the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, or the exception is to the opinion of the court on a motion to direct a nonsuit, to arrest the testimony from the jury, or for a new trial for misdirection bjr the court to the jury, or because the verdict, or, if a jury was waived, the finding of the court, is against law or the evidence, the party excepting must reduce his exception to writing, and present it to the court for allowance.” “ Sec. 5302. If the exception be true, or, if it be not true, then after it is corrected, a majority'of the judges composing the court must allow and sign it before the ease proceeds, or, if the party consent, within thirty days after the term; the bill of exceptions shall be filed with the pleadings, and, if the party require it, made a part of the record, but not spread on the journal; and if it is to be signed after the term, the journal must be kept open, and the allowance and signing thereof entered thereon as of the term.”

By authority of these sections it was the practice, sane tioned by this court in' numerous decisions, to take a bill of exceptions upon the overruling of a motion for new trial, though after the term at which the verdict was rendered, and thereby raise for review the question whether or not the verdict was sustained by the law and evidence. In such case a bill of exceptions taken at the term at which the motion for new trial was overruled and judgment entered, was taken at the proper .time because the overruling of the motion and the entry of judgment was the decision objected to, and the exception to the decision was reduced to writing, allowed and filed during that term.

But material changes in the sections referred to have been made since the date of the revisions. Section 5298, as amended March 11, 1887, (2 Smith & Benedict’s Revised Statutes, 1543,) reads as follows: “ The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not more than thirty days beyond the term at which the verdict of the jury is rendered, or the cause is decided when tried to the court.” Section 5301, as amended April 11, 1888, (same vol. p. 1544,) reads as follows: “ When the decision is not entered on the record, or grounds of objection do not sufficiently appear in the entry, or the exception is to the opinion of the court on a motion to direct a non-suit, to arrest the testimony from the jury, or for a new trial for misdirection by the court to the jury, or because the verdict, or if a jury is waived, the finding of the court is against the law and the evidence, or the omission or rejection of evidence, the party excepting must reduce his exceptions to writing, and present the same to the trial judge or judges for allowance, within thirty (30) days from the end of the term at which the verdict is rendered or the finding of the court is made; provided, further, that in case the trial judge or judges be absent from the district when such bill of exceptions is so prepared for allowance, then the same may be deposited with the clerk of the court for the examination and allowance of such trial judge or judges, who shall be required to sign and seal said bill of exceptions on or before the first day of the next ensuing term of court.” And section 5302, as amended same date, reads as follows: “ If the exception be true, or if it be not true, then after it is corrected, the trial judge, or a majority of the judges composing the court, must allow and sign it before the case proceeds, or if the partjr consents, within thirty days after the term, or in case of the absence of the trial judge or judges from the district, as provided in the preceding section, then on or before the first day of the next ensuing term. The bill of exceptions shall be filed with the pleadings, and if the party request it, made part of the record but not spread upon the journal; and if it is to be signed after the term, the journal must be kept open and the allowance and signing thereof entered thereon as of the term.”

These three sections embrace the whole law upon the subject of the time of the taking, allowance, and filing of bills of exceptions. Their import is clear. There is an entire absence of authority warranting the practice referred to. On the contrary, a bill of exceptions, in order to present the objections of the objecting party for review, must be reduced to writing and presented to the trial judge or judges for allowance within thirty days from the end of the term at which the verdict is rendered or the finding of the court is made, and it is then the duty of the trial judge or judges, if true, or after it is corrected, within the thirty days, to allow and sign it; save only that, in case the trial judge or judges are absent from the district when the bill is so prepared for allowance, the bill may be deposited with the clerk, and then it becomes the duty of the judge or judges to sign and seal the bill on or before the first day of next tqrm of the court. So that, where a motion for a new trial, upon the ground that the verdict is not sustained by sufficient evidence, or is contrary to law, is not disposed of at the term at which the verdict is rendered, nor at a term within thirty days thereafter, a bill of exceptions to the overruling of the motion cannot be taken. It follows that the bill of exceptions in this case was not taken at the proper time, and therefore that the petition in error to the Superior Court at general term, was properly dismissed.

• Had the city’s counsel pressed their motion at the trial term, and, failing to get it disposed of, excepted to the court’s neglect to pass upon it, a different question would be presented.

As this holding disposes of the case we do not deem it necessary to consider the other point made.

Motion overruled.


author: By the Court.

text:
    Strauss v. Cooch.

      Attachment — Proceedings before Justices of the Peace.

    Error to the Circuit Court of Butler county.
    This action was brought by Strauss against Cooch, constable, to recover possession of two horses. Enger, being the real party in interest, intervened, was made defendant, and by answer disclosed that he had brought an action against Strauss before a justice of the peace in which he caused an attachment to issue, upon which the two horses in controversy in this action were taken by Cooch, as constable, as the property of Strauss; that the affidavit upon which the attachment issued stated that the property sought to be attached was not exempt from execution; that Strauss appeared before the justice and moved the discharge of the attachment on the ground that the property seized under it, being the two horses involved in this suit, was exempt to him under section 5441 Rev. Stats.; that the motion was heard by the justice on affidavits and overruled, after which ■judgment was rendered on the merits of the action in E'nger’s favor for $300 and costs, and that the proceedings ■and judgment aforesaid remain in full force.

      Granger & Hunt and Gideon C. Wilson, for plaintiff in error.
    . Thomas Mililcin and Doty f Todhunter, for defendant in qrror.
   By the Court.

The justice of the peace having, by section 6522 Rev. Stats., jurisdiction to hear and determine • the motion, his decision, while unreversed, was conclusive between the parties. Strauss, by invoking the action of the justice upon the motion, waived' any right that he might otherwise have had to a trial of the question by a jury.

Judgment of the Circuit Court affirmed.


text:
    Henry v. Jeanes et al.

      Railroad Company — When Stock-holders may appeal from judgment against — Section 5226, Revised Statutes, construed.

    Error to the Circuit Court of Jefferson county.

      Hoadly, Johnson and Oolston, for plaintiff in error.

      Rufus P. Ranney and J. M. Estep, for Samuel Jeans et al.

      J. Twing Brooks and Harrison, Olds $ Marsh, for defendants in error.
   By the Court.

• A judgment ordering the cancellation of the lease of a railroad, executed by its owner to another company, is a judgment directly affecting the stockholder of the lessor; and when the company refuses to appeal from the decree, any one of the stockholders on behalf of himself and other stockholders, may appeal therefrom under the provisions of § 5226, Rev. Stats., as a “person directly affected’’.thereby, when there is reason to believe that the officers of the company have an interest in common with the plaintiffs in the case, and that in refusing, or neglecting, to appeal, they are acting in, and controlled by, that interest. And it is the duty of the court to which an appeal has been taken, under such circumstances, to hear the case upon its merits, allowing additional pleadings to be filed as the justice of the ease may require, and should not dismiss the case otherwise than upon it merits.

Judgment reversed, and cause remanded for further proceedings.


author: Dickman, J.

text:
    Benton et al. v. Shafer.

      Lis Pendens.

    1. A mortgagee of real property not part of an entire tract situate in more than one county, will not be charged with constructive notice of an action for the recovery of such property, pending in a county other than that in which the property is situated.
    2. The doctrine of lis pendens does not apply, unless the court has acquired, in some manner, jurisdiction of the subject-matter involved in the suit. Where, therefore, in an action to recover real property which is not an entire tract situate in more than one county, but a separate tract lying wholly in one county, the action is not brought in the county where the subject of the action is located, a bona fide purchaser of the property for a valuable consideration, without actual notice, and residing in the county where the property is situated, will not be charged with constructive notice of the pendency of such action at the time of his purchase, so as to prevent his acquiring a valid interest in the property.
    3. The heirs of P. brought an action in the Court of Common Pleas of Union county to partition two tracts of land situated repectively in Union county and Delaware county, and also, to set aside a deed, duly recorded, from P., to D. and L., of the Delaware tract, and to recover the same. The land in Union countv ivas not an entire tract with the land in Delaware county, but the two were separate tracts, one situated entirely in Union county, and one entirely in Delaware-county. While the action was pending in the court of common pleas, and before the rendition of final judgment in the case, D., one of the defendants, mortgaged his interest in the Delaware tract to M., who was, at the date of the commencement of the action, and ever since has been, a resident of Delaware county, M. had no actual notice of the pendency of the action, at the time of taking the mortgage; was not a party to the action; and the final judgment rendered in the action was never recorded in Delaware county.

      Held: That under sections 5055 and 505(5 of the Revised Statutes, M. was not charged with constructive notice of the pendency of the action, so as to be prevented from acquiring an interest in the subject-matter thereof covered by the mortgage, as against the title of the parties to the pending litigation.
    (Decided March 4, 1890.)
    Error to the Circuit Court of Delaware county.
    The defendant in error, Mary J. Sbafer, filed her petition in the Court of Common Pleas of Delaware county, against Daniel S. Benton, and the plaintiffs in error, Lewis Benton, Aaron Clover and Nancy Clover, asking for the foreclosure of a mortgage made to her October 28, 1882, by Daniel S. Benton, on the one undivided fourth part of 122| acres of land in Delaware county, Ohio, described in a deed dated August 9, 1878, from Phebe Benton to Lewis Benton and Daniel S. Benton, in which she conveyed to them the undivided half part thereof. The mortgage was given to secure the payment of Daniel S. Benton’s note for $571.28, dated October 17,1882, payable one year after date, with interest at eight per cent, per annum, and was duly recorded in Delaware county, November 23, 1882, in Yol. 28, page 149, of the records of mortgages.
    Daniel S. Benton was in default for answer and .demurrer.
    The defendant, Lewis Benton, set forth in his answer to the' petition, that Daniel S. Benton was not the owner of the one fourth part of the real estate described in the petition* but, as one of the heirs-at-law of Phebe Benton, was the owner of only one forty-eighth part thereof, that in January, 1880, the heirs-at-law of Phebe Benton instituted proceedings in the Court of Common Pleas of Union county, Ohio, for partition of the premises described in the petition ; and that at a public auction in partition, he, Lewis Benton? became the purchaser of the premises, and afterwards sold them to Aaron Clover, who entered into possession of the same.
    Aaron Clover and Nancy Clover, by their joint answer to the petition, set up the purchase from Lewis Benton, and prayed that their title might be protected.
    The court of common pleas found that the mortgage from Daniel S. Benton to Mary J. Shafer was the first and best lien on an undivided forty-eighth part of the 122| acres of land; that Daniel S. Benton did not have any title to the premises in the petition described, by virtue of the deed from Phebe Benton to Daniel S. Benton and Lewis Benton, but owned in fee-simple the undivided forty-eighth part of the premises, as heir-at-law of Phebe Benton, at the time he executed the mortgage to Mary J. Shafer; that the condition of defeasance in said mortgage had been broken, and that Mary J. Shafer was thereby entitled to have the defendants’ equity of redemption foreclosed.
    The plaintiff excepted to the judgment of the court of com- - mon pleas, and appealed to the circuit court. In the circuit court the cause was submitted on the pleadings, and the evidence embodied in an agreed statement of facts; which is as follows:
    “ It is agreed by the parties in this action :
    That a case was commenced and prosecuted in Union county, Ohio, in which Stephen Cranston and others, heirs-at-law of Phebe Benton, deceased, were plaintiffs, and Orson Benton, Daniel S. Benton, Lewis Benton and others were defendants, by petition filed January 17,1880, in which the plaintiff sought to set aside the deed of conveyance made by Phebe Benton to said Daniel S. and Lewis Benton of the tract of land in Delaware county, Ohio, upon which Mary J. Shafer holds the mortgage which she seeks to foreclose in the action at bar, and also to recover the said real estate situate in Delaware county, Ohio, and the partition of the same among the heirs of said Phebe Benton, deceased. Also in the same action was sought the partition of another tract of land in Union county, Ohio, among said heirs. And that the land in Union county, Ohio, is not a continuous or entire tract with the said land in Delaware county, Ohio, but are separate and independent tracts several miles apart.
    The land in Delaware county is in Virginia Military Surveys Nos. 2546 and 2897, and the land in Union county in Virginia Military Survey No. 4404.
    That Mary J. Shafer was not a party to said action in Union county.
    That the suit in Union county was pending when Daniel S. Benton executed and delivered the mortgage to Mary J. Shafer on the lands in Delaware county, but the final decree in said action was not rendered until March 10, 1883, in tire District Court of Union county, on appeal from the decision of the court of common pleas where judgment had been rendered in favor of said Lewis and Daniel S. Benton, sustaining the validity of said deed from Phebe Benton to said Daniel S. and Lewis Benton, of the said land in Delaware county. The decision of said common pleas court was rendered May 13, 1881, and on appeal from said common pleas court the district court rendered the following decision March 10,1883, viz.: “ On consideration whereof the court do find that the equity of the case is with the plaintiff and cross-petitioners, and that the deeds of conveyance mentioned in the pleadings from Phebe Benton to Orson Benton, Lewis Benton and Daniel S. Benton, dated August 9,1878, should be set aside and held for naught, and therefore it is ordered, adjudged and decreed by the court that said deeds of conveyance be and they are hereby set aside and held for naught, and said estate of Hiram and Phebe Benton is hereby ordered to be partitioned and settled the same as if said deed had never been made.”
    And finding and decreeing among other things that the interest of Daniel S. Benton, as one of the heirs of said Phebe Benton in the land in Delaware county, was one forty-eighth part which amounted to $84.73, net proceeds, and ordered that partition be made of said premises.

      Which judgment was affirmed by the supreme court and certified to the court of Union county, and the commissioners of partition in said case, appointed by said court, having reported the premises not susceptible of division, the court thereupon ordered said premises to be sold by the sheriff, which was accordingly done, and Lewis Benton became the purchaser at said sale of said tract of land in Delaware county, consisting of 122| acres, and received his deed for the same, and afterward conveyed the same to Aaron Clover, defendant, and the proceeds of the sale, by the sheriff aforesaid, were distributed according to the order of the Union county court to said heirs of Phebe Benton, deceased, and as one of said heirs, to Daniel S. Benton, one forty-eighth part.
    The above record of facts is admitted so far as the record thereof may be competent evidence in the trial of this case.
    And it is further admitted as a fact in this case that Phebe Benton is the person who made the deed of conveyance of the undivided one half of said land in Delaware county, Ohio, of which she had the title in fee simple, and that she died August 26,1879.
    And it is admitted as a fact that the deed made by said Phebe Benton to Daniel S. Benton and Lewis Benton is a general warranty deed, purporting to convey the undivided one half of said land in Delaware county, to said Daniel S. and Lewis Benton, their heirs and assigns in fee simple, and that the date of said deed is August 9, 1878, and the same was filed in the recorder’s office of Delaware county, and recorded in volume 72, pages 38 and 34, August 27, 1878, Record of Deeds of Delaware county, and under which deed Lewis and Daniel S. Benton went into possession, and under which title Mary J. Shafer claims her rights in this action as well as to whatever title the said Daniel S. Benton had as one of the heirs of Phebe Benton, deceased.
    It is further admitted as a fact that the record of the pendency of said suit in Union county, or the proceedings or decree rendered therein, are not recorded in Delaware county, Ohio.

      Mary J. Shafer’s mortgage, it is agreed, is dated October 28, 1882, filed for record November 11, 1882.
    It is also agreed that it is a fact that the plaintiff, Mary J. Shafer, was, at the date of the commencement of the action in Union county, and ever since has been, a resident of Delaware county, and never a resident of Union county.
    And that she had no actual notice in fact, other' than the notice which is presumed in law, of the pendency of said suit in Union county, or of the proceedings therein, when Daniel S. Benton executed and delivered to her the note and mortgage in suit.”
    Upon the foregoing agreed statement of facts, the finding and judgment of the circuit court was as follows :
    “ The court find on the issue joined between the plaintiff and the defendants that the equity of the case is with the plaintiff. And the court find that the defendant, Daniel S. Benton, has been duly served with notice by publication, according to law, of the pendency of this action, and is in default for answer and demurrer, and that the allegations of the petition as to him are thereby confessed by -him to be true. And the court do further find all the other issues between the plaintiff and said defendants, Lewis Benton and Aaron and Nancy Clover, in favor of the plaintiff and against the said defendants. And that there is due the plaintiff from the defendant, Daniel S. Benton, on the promissory note set forth in the petition, with the interest thereon to the first day of this term, to wit: December 14, 1886, the sum of $761.44, with interest at 8 per cent, from said date.
    The court further find that in order to secure the payment of said note and interest, the said Daniel S. Benton executed and delivered to said Mary J. Shafer, plaintiff, his certain mortgage as in the petition described, and on the premises therein described. That said mortgage was duly recorded in volume 28, page 149, November 23, 1882, of the Records of Mortgages of Delaware county, Ohio, and is a valid lien on the premises in the petition described, and that the conditions in said mortgage have been broken and said deed has become absolute.
    It is therefore adjudged and decreed by the court that unless the defendant, Daniel S. Benton, shall, within five days from the entry of this decree, pay or cause to be paid to the clerk of the court of common pleas, to which this case is remanded for further proceedings, the costs of 'this case, and to the plaintiff herein the sum of $761.44, so found due as aforesaid, with interest at 8 per cent, from the 14th day of December, 1886, the defendants’ equity of redemption be foreclosed and said premises be sold, and that an order of sale issue therefor to the sheriff of Delaware county, Ohio, directing him to appraise, advertise and sell said premises as upon execution, and report his proceedings to the Court of Common Pleas of Delaware county, Ohio.
    It is further ordered that this cause be remanded to the Common Pleas Court of Delaware county, Ohio, to carry this decree into execution and for all further proceedings.”
    To all of which findings, rulings and judgment, the defendants did, at the time, by their counsel, except, and thereupon the defendants filed a motion for a new trial, for reasons set forth in said motion, which motion was overruled by the court, to which the defendants did at the time except.
    This proceeding in error is prosecuted to reverse the judgment of the circuit court.

      Jones $ Lytle, for plaintiff in error.
    The doctrine of lis pendens is fully shown, by the following authorities, to apply in this case. Wells’ Res Adjudicata and Stare Decisis, sec. 32; Shirley v. Fearne, 33 Miss. 666; Commonwealth v. Diffenback, 3 Grant 375; Bank v. Sprague, 11 N. J. Eq. 535; Walker’s Am. Law, p. 419 and note c; Story’s Equity, § 405 and authorities cited, note 1 (a); Green v. Rick, 121 Pa. St. 130; Bishop of Winchester v. Paine, 11 Ves. Jr. 197; Newman v. Chapman, 14 Am. Dec. 774-779 (note); Bennett's Lessee v. Williams, 5 Ohio 462; Hamlin's Lessee v. Bevans, 7 Ohio, pt. 1, 161; Follerton v. Willard, 30 Ohio St. 192; Rev. Stat., sec. 5055.

      J. Hippie, for defendant in error.
    We claim that the court in Union county had no jurisdiction to recover the real estate in Delaware county, because it was not an entire tract, and lis pendens does not apply, and the adjudications of the court are simply void. Partition does not affect the title or liens of third persons; it only partitions to each claimant his part in severalty. Tabler v. Wiseman, 2 Ohio St. 207; McBain v. McBain, 15 Ohio St. 337. Sec. 5023, E. S., also limits the jurisdiction, when the action involves the recovery of title, to the county in which the land is situated, except where the property is an entire tract.
    Jurisdiction of parties is not necessarily jurisdiction of the subject matter. Rohn, Admr., v. Dunham, 13 Ohio St. 572. Failure to plead it. Steamboat v. Long, 18 Ohio St. 521. Judgment without jurisdiction may be attacked collaterally. Gilliland v. Sellers, 2 Ohio St. 223; Buchannon v. Roys, Id. 251; Evans v. Iles, 7 Ohio St. 233; Waits’ Actions and Defenses, 196; Van Dusen v. Sivert, 51 N. Y. 378; Jolly v. Folty, 34 Cal. 321; Spier v. Carll, 32 Ohio St. 236; Pennywitt v. Foote, 27 Ohio St. 615; 23 Cal. 401; 193; 23 Ill. 574; 35 Conn. 351.
    Persons having an interest in land must be made parties to suit to divest such interest. McArthur v. Porter, 1 Ohio 99; Frische v. Cramer's Lessee, 16 Ohio 139; Lessee of Irwin v. Smith, 17 Ohio 226; Lessee of Frimble v. Boothly, 14 Ohio 109.
    Secs. 5055 and 5056, Eev. Stats., construed together, determine this question in favor of the defendant in error.
   Dickman, J.

The object of the suit in Union county was, to set aside the deed of conveyance, executed by Phebe Benton to Daniel S. Benton and Lewis Benton, of the tract of land in Delaware county, upon which Mary J. Shafer holds the mortgage in controversy, also, to recover the real property embraced in the mortgage, and to cause partition of the same to be made among the heirs of Phebe Benton. In the same suit, partition among the same heirs was sought of another tract of land, situated in Union county. The land in Union county is not a continuous and entire tract with the land in Delaware county, but the two are separate and independent tracts, several miles apart.

Although when the estate is situated in two or more counties, proceedings for partition may be had in any county wherein a part of such estate is situated, and also in actions to recover real property when the property is an entire tract, yet, in partition, each tenant in common, coparcener, or other interested person, is entitled to be named as defendant therein ; and in an action to recover real property in an entire tract and situate in more than one county, all persons claiming title to, or an interest in the property, may be made defendants.

Conceding that all the proper parties were before the court at the commencement of the action in Union county, and up to the time when Mary J. Shafer received her mortgage from Daniel S. Benton, the question arises, whether upon the agreed facts in the present case, she is to be concluded by the judgment rendered in the Union county action. To that action she was not a party; at the date of its commencement and ever since she has been a resident of Delaware county; and she had no actual notice of the suit in Union county, or of the proceedings therein, when Daniel S. Benton executed and delivered to her the note and mortgage in litigation. She took her mortgage after searching the records of Delaware county, where she found the deed from Phebe Benton to Daniel S. Benton duly recorded, and no record of any lien or pending suit affecting the title of the Delaware county land.

The decision of the Court of Common Pleas of Union county was rendered May 13,1881, and the final decree in the action was rendered on appeal, March 10,1883, by the district court. The mortgage to Mary J. Shafer bears date October 28, 1882, and was filed for record November 11,1882. It is contended therefore, that notwithstanding the facts in the case, as the suit in Union county was pending when Daniel S. Benton executed and delivered to her the mortgage on the lands in Delaware county, she acquired no interest in the subject matter of the suit, as against the title of Lewis Benton, the purchaser at the partition sale, and the other plaintiffs in error.

The rule concerning the effect of Us pendens, unmodified by statute, would seem in some instances stern and inequitable in its operation. In Bellamy v. Sabine, 1 De. G. & J. 566, it was said by Turner, L. J.: “ Ic is not correct to speak of Us pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party.” And yet, the doctrine of notice has not been eliminated in determining the effect of alienating property in dispute, pending the litigation.

But, the rule concerning constructive notice by lis pendens, has always been regarded by the courts as a harsh one in its application to bona fide purchasers for value.. In Hayden v. Bucklin, 9 Paige, 512, Chancellor Walworth said: “ This common law rule of requiring purchasers at their peril to take notice of the pendency of suits in'courts of justice, for the recovery of the property they are about to purchase, although it is nearly impossible that they should actually know that such suits have been commenced, has always been considered a hard rule, and is by no means a favorite with the court of chancery.” The stringency of the rule has led the English Parliament and the legislatures of many states to interfere, resulting in most material statutory modifications and restrictions. An example of such legislation is found in the English statute which provides that, a pending suit will not affect a purchaser foi’ value and without express notice, unless a notice of Us pendens has been properly registered in compliance with the statutory directions. Stat. of 2 and 3 Yict. Ch. 11, § 7; Pom. Eq. Juris. §§ 639, 640.

Our own statutory provisions are found in sections 5055 and 5056 of the Revised Statutes. Section 5055 reads ás follows: “ When the summons has been served or publication made, the action is pending so as to charge third persons with notice of its pendency; and while pending, no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff’s title.”

Under this section, if the land mortgaged to Mary J. Shafer had been situated in Union county instead of Delaware county, she would have taken the mortgage with constructive notice of the pending litigation, and would have acquired no interest in the property, as against the title of the plaintiffs in the action. The general rule is, that, as to real property located within the jurisdiction of the court where its judgments and decrees may become or be made liens upon the property, all men must take notice of and be bound by the pending litigation without regard to residence. But a mortgagee of real property, not part of an entire tract situate in more than one county, will not be charged with constructive notice of an action for the recovery of such property, pending in a county other than that in which the property is situated.

Section 5056 of the Revised Statutes, on the subject of Us pendens as to suits in other counties, provides as follows: “ When any part of real property, the subject-matter of an action, is situate in any county or counties other than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the recorder’s office of such other county or counties, before it shall operate therein as notice so as to -charge third persons, as provided in the preceding section; but it shall operate as such notice, without record, in the county where it is rendered.”

By this section of the statutes, where part of the real property in litigation is located in the county where the action is brought, and part in another county, the judgment, in the county where it is rendered, is. made to operate as notice of the pendency of the action, without record. In the county where the action is brought and judgment rendered, and the real property or a part thereof is situated, it is presumed under the statute, that a purchaser of the. subject-matter of the suit situated in that county, has knowledge of the prior proceedings upon which the judgment is founded, without regard to its record. But in a county where the action is not brought, and the judgment is not rendered, and the title to real property therein located is sought to be changed or affected, a purchaser is not presumed to have such knowledge of the pending action or proceedings leading to the judgment, and hence, the statute requires the judgment to be recorded in such county before it can operate therein as notice to a purchaser, as provided in the preceding section 5055 of the Revised Statutes. In the case at bar, it is among the agreed facts, that the proceedings, or decree rendered, in the suit in Union county, have not been recorded in the county of Delaware.

If the purchaser of a tract of land situated entirely, in the county of his domicil, who has no actual notice or information of any judicial proceedings in any county in reference to such land, searches the records of the county where the land is located, and finds no pending proceedings, judgment liens or other incumbrances affecting the title to the same, it is not the intent of the statute, that such purchaser shalL be compelled to examine the records of the courts of every county in the state, to find whether a suit is pending that would affect the title. And the section of the statute, now under consideration, in the protection of the innocent purchaser for value and without actual notice, accordingly provides, that a judgment rendered in a county other than that in which the purchased part of the land lies, shall^ be recorded in the county where such land is situated, before it shall operate therein as notice of the pendency of an action hr the county where such judgment was rendered.

But the doctrine of lis pendens which has been invoked in behalf of the plaintiffs in error, rests upon the jurisdiction of the court over the subject matter involved in the suit. “ To make the pendency of a suit notice, so as to affect the conscience of a purchaser, it is essential that the court have jurisdiction over the thing.” McLean, J., in Carrington v. Brents, 1 McLean, 167. In Jones v. Lusk, 2 Met. (Ky.) 356, it is said by Dubaxl, J.: “ Unless the petition shows unAn its face a case for the jurisdiction of the chancellor, the proceedings cannot operate as a lis pendens, even from the date of the service of process, so as to affect the property sought to be subjected, or to overreach a subsequent sale or other disposition of it.” See also, Fonbl. Eq. B. 2, ch. 6, sec. 3, note n.; Sorrel v. Carpenter, 2 Peere Wins. 482; Worsley v. Earl of Scarborough, 3 Atk. 392; Bishop of Winchester v. Paine, 11 Ves. Jr. 194; Murray v. Ballou, 1 Johns. Ch. 566; Bennett on Lis Pendens, secs. 98, 99, 100.

It is true, that the action in Union county was, to have partition of lands lying in that county, and also in Delaware county; and when tbe estate to be partitioned is situated in two or more counties, the proceedings, as before observed, may be had in any county wherein a part of such estate is situated. But, the purpose of that action, as appears from the agreed statement of facts, was also to set aside the deed of conveyance made by Phebe Benton to Daniel S. Benton and Lewis Benton, of the tract of land in Delaware county mortgaged to Mary J. Shafer, “and to recover the said real estate situated in Delaware county.” By section 5023 of the Revised Statutes, “ When the property is situated in more than one county, the action may be brought in either; but in actions to recover real property, this can only be done when the property is an entire tract.” The mortgaged real property situated in Delaware county was not part of an entire tract situate iii more than one county, but was a separate and independent tract of land located entirely in Delaware county. As the action to recover the real property was brought in Union county, where <no part of the land embraced in the mortgage was located, the defendant in error, Mary J. Shafer, cannot be held chargeable with constructive notice of the pendency of the action.

Judgment affirmed.