text:
    No. 10668.
    Goddard v. McGrew et al.
    Decided June 9, 1908.
    Error to Superior Court of Cincinnati.

      Mr. W. J. Davidson and Mr. Otis LI. Fisk, for plaintiff in error.

      Mr. Harry Hess, for defendants in error.
   Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    No. 10669.
    The East Ohio Gas Co. v. Warren.
    Decided June 9, 1908.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Kline, Tolies & Goff, for plaintiff in error.

      Messrs. Hart, Canñeld & Croke and Messrs. Blandin, Rice & Ginn, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed on authority of The L. S. & M. S. Ry. Co. v. Andrews, Admr., 58 Ohio St., 426.

Price, C. J., Sitauck, Summers and Davis, JJ., concur.


text:
    No. 10376.
    The City of Mansfield v. Maxwell.
    Decided June 16, 1908.
    Error to Circuit Court of Richland county.

      Mr. G. M. Cummings, city solicitor, for plaintiff in error.

      Mr. H. L. Peeke, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10395.
    Bowers et al. v. The Board of Education of Fulton Township et al.
    Decided June 16, 1908.
    Error to Circuit Court of Fulton county.

      Messrs. Ham, Ham & Ham and Messrs. Files & Paxton, for plaintiffs in error.

      Messrs. Handy & Wolf, for. defendants in error.
   Judgment affirmed.

Price, C. J., Crew, Sumj mers and Davis, JJ., concur.


text:
    No. 10396.
    Bowers et al. v. The Board of Education of Fulton Township et al.
    Decided June 16, 1908.
    Error to Circuit Court of Fulton county.

      Messrs. Flam, Ham & Ham and Messrs. Files & Paxton, for plaintiffs in error.

      Messrs. Flandy & Wolf, for defendants in error.
   The amount of money involved in this proceeding having been voluntarily paid, the petition in error is dismissed.

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


text:
    No. 10419.
    The Reaugh Construction Co. v. The City of Mansfield.
    Decided June 16, 1908.
    Error to Circuit Court of Richland county.

      Mr. A. E. McKisson and Messrs. Kerr & La Dow, for plaintiff in error.

      Mr. Glenn M. Cummings, city solicitor; Mr. L. H. Beam and Mr. Lewis

      Brucker, for defendant in error.
   Judgment modified as stated in journal entry.

It is hereby ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, affirmed in all respects except as to the claim of $36.00 for lumber left in the sewer trench, and as to this item the judgment of the circuit court is reversed and that of the common pleas is affirmed at the costs of the defendant in error.

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


text:
    No. 10422.
    In re Petition for the Formation of a Special School District at Coal Run. Story et al. v. Dixon et al.
    Decided June 16, 1908.
    Error to Circuit Court of Washington county.

      Mr. J. C. Preston, for plaintiffs in error.

      Mr. Ralph Starling, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10652.
    Hoffmaster v. Richards et al.
    Decided June 16, 1908.
    Error to Circuit Court of Mahoning county.

      Mr. R. B. Murray and Mr. S. M. Thompson, for plaintiff in error.

      Mr. D. J. Hartwell; Mr. Horace T. Smith; Mr. George Edwards and Mr. C. D. Hine, for defendants in error.
   Judgment affirmed.

Si-iaucic, Crew and Summers, JJ., concur.


text:
    No. 10659.
    The Brokensword Stone Co. v. The Board of Township Trustees of Monroe Township.
    Decided June 16, 1908.
    Error to Circuit Court of Licking county.

      Messrs. Finley & Gallinger and Messrs. Kibler & Montgomery, for plaintiff in error.

      Messrs. Smythe & Smythe, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Summers, JJ., concur.


text:
    No. 10664.
    O’Connell, Admx., v. Hazen et al., Partners, et al.
    Decided June 16, 1908.
    Error to Superior Court of Cincinnati.

      Messrs. Shay, Cogan & Williams, for plaintiff in error.

      Messrs. Cohen & Mack and Mr. Louis A. Ireton, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10667.
    Stroud et al. v. The West Huron Sporting Club.
    Decided June 16, 1908.
    Error to Circuit Court of Huron county.

      Mr. George A. True and Mr. John McCrystal, for plaintiffs in error.

      Mr. E. B. King; Mr. Charles W. Sadler; Mr. Malcolm Kelly and Messrs. King, Williams & Ramsey, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10688.
    The Cincinnati Traction Co. v. Miller, by etc.
    Decided June 16, 1908.
    Error to Superior Court of Cincinnati.

      Messrs. Outcalt & Hickenlooper, for plaintiff in error.

      Messrs. Hoffman, Bode & Lc Blond and Mr. B. JJ. Stites, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10937.
    Judson v. Zurhorst.
    Decided June 16, 1908.
    Error to Circuit Court of Erie county.

      Mr. H. L. Peeke, for plaintiff in error.

      Mr. H. C. De Ran, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10346.
    Hieatt v. Simpson et al.
    Decided June 23, 1908.
    Error to Circuit Court of Hamilton county.

      Mr. W. T. Porter, for plaintiff in error.

      Messrs. Worthington & Strong and Messrs. Outcalt & Foraker, for defendants in error.
   On rehearing.

Former judgment modified as per journal entry.

And now, on this 23d day of June, 1908, the parties appear by counsel and this cause is reheard upon the transcript of the record of the Circuit Court of Hamilton county, and on the application of the defendants in error heretofore made to the court for a modification of the journal entry made in this case on the 15 th day of October, 1907, entered at page 21 of Journal Number 22 of this court, and of the mandate to the circuit court predicated thereon.

On consideration whereof it is considered and adjudged by the court that the said journal entry be modified in this, to-wit: That the portion thereof finding and adjudging that plaintiff in error is entitled to the relief prayed for and directing the circuit court to render final judgment be set aside.

This court being of opinion that the construction of the will of William Hieatt, Sr., given by the circuit court is not the. true construction of said will, and hence that the judgment of the circuit court in favor of defendants in error ■ is erroneous and should be reversed.

It is considered and adjudged that said judgment of the Circuit Court of Hamilton county, be, and the same is, reversed for error in the particular above' stated. It is further adjudged that the mandate heretofore issued to said court be returned, and that this cause be remanded to said circuit court for further proceedings according to law. It is further ordered that plaintiff in error recover of defendants in error her costs herein. .

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


text:
    No. 10443.
    Mass, Admr., v. The Lake Shore & Michigan Southern Ry. Co.
    Decided June 23, 1908.
    Error to Circuit Court of Lake county. Messrs. Bosworth & Hammar, for plaintiff in error.

      Messrs. Hoyt, Munsell & Hall, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10451.
    Drew v. White et al.
    Decided June 23, 1908.
    Error to Circuit Court of Hocking county.

      Mr. John C. Pettit, for plaintiff in error.

      Mr. Edzvin D. Ricketts and’ Mr. S. H.' Bright, for defendants in error.
   Judgment vacated and case remanded with direction to consider all errors assigned.

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


text:
    No. 10582.
    Willis, Admr., v. Jones, Admr., de bonis non, etc., et al.
    Decided June 23, 1908.
    Error to Circuit Court of Fayette county.

      Mr. John J. Lentz; Mr. Joseph H. Harper and Mr. George H. Jones, for plaintiff in error.

      Mr. John Logan; Mr. W. C. Tanzey and Mr. Humphrey Jones, for defendants in error.
   Judgment affirmed.

Price, C. J., Si-iauck, Crew and Davis, JJ., concur.


text:
    No. 10682.
    Baker v. Leffler et al.
    Decided June 23, 1908.
    PJrror to Circuit Court of Marion county.

      Mr. Thomas E. Powell and Mr. L. B. McNeal, for plaintiff in error.

      Messrs. Mouser & Quigley; Messrs. Crissinger & Guthery and Mr. W. E. Scofield, for defendants in error.
   Judgment affirmed.

Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, affirmed for the reason that upon the undisputed facts of this case the plaintiff is found to be guilty of negligence contributing to his own injury. But in affirming this judgment the court does not desire to be understood as approving the charge to the jury on the trial of this case in the court of common pleas.

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


text:
    No. 10686.
    The Standard Distilling & Distributing Co. v. Block et al.
    Decided June 23, 1908.
    Error to Superior Court of Cincinnati.

      Mr. William Worthington; Mr. Levy Mayer; Messrs. Worthington & Strong and Messrs. Moran, Mayer & Meyer, for plaintiff in error.

      Mr: Thornton M. Hinkle, for defendants in error.
   Judgment reversed and judgment for plaintiff in error.

Shauck, Summers, Spear and Davis, JJ., concur.


text:
    No. 10690.
    Byers et al. v. The Cincinnati Railway Supply Co. et al.
    Decided June 23, 1908.
    Error to Circuit Court of Franklin county.

      Mr. I. C. Burns; Messrs. Crum, Raymond & Hedges and Messrs. Arnold, Morton & Irvine, for plaintiffs in error.

      Messrs. Addison, Sinks & Babcock, for defendants in eror.
   Judgment affirmed.

Shauck, Crew, Summers, Spear and Davis,’ JJ., concur.


text:
    No. 10694.
    Engel v. Abbott.
    Decided June 23, 1908.
    Error to Circuit Court of Defiance county.

      Messrs. Henry & Robert Newbegin, for plaintiff in error.
    ' Mr. Henry B. Harris, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10893.
    Rason v. The State of Ohio.
    Decided June 23, 1908.
    Error to Circuit Court of Defiance county.

      Mr. Henry B. Harris and Messrs. Winn & Hay, for plaintiff in error,
    Mr. D. F. Openlander, prosecuting attorney, and Messrs. Ansberry & Farrell, for defendant in error.
   Judgment reversed.

Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for error in affirming the judgment of.the court of common pleas. And this court proceeding to render the judgment which the circuit court should have rendered, reverses the judgment of the court of common pleas for error in admitting evidence of alleged unlawful acts of said David Rasor with the prosecuting witness which were claimed to have been committed after the commission of the offense charged in each count of the indictment; and for the further error committed in refusing to give request five (5) asked by the accused after the general charge.

It is, therefore, considered by this court that the verdict be, and the same is, set aside and a new trial granted at the costs of the defendant in error, and that plaintiff in error recover of defendant in error his costs made in this court and the circuit court, to be taxed..

This cause is remanded to the court of common pleas for further proceedings according to law.

Price, C. J., Siiauck, Crew, Summers, Spear and Davis, JJ., cohcur.


text:
    No. 10990.
    Eyler v. The State of Ohio.
    Decided June 23, 1908.
    Error to the Circuit Court of Greene county.

      Mr. H. C. Armstrong, for plaintiff in error.

      Mr. William F. Orr, prosecuting attorney, and Messrs. Maxwell & Maxwell, for defendant in error.
   Judgment reversed on the insufficiency of affidavit and defendant discharged.

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


text:
    No. 11010.
    The State of Ohio v. Marsh.
    Decided June 23, 1908:
    Exceptions to the Court of Common Pleas of Marion county.

      Mr. John H. Clark, prosecuting attorney; Mr. Wade H. Ellis, attorney-general, and Mr. Clarence D. Laylin, for plaintiff in error.

      Messrs. Mouser & Quigley and Messrs. Scoñeld, Durfee & Scofield, for defendant in error.
   Exceptions overruled.

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


text:
    No. 11027.
    The State, ex rel. Village of McConnelsville, v. The County Auditor of Morgan County.
    Decided June 23, 1908.
    Error to Circuit Court of Morgan county.

      Messrs. Ivers & Danford, for plaintiff in error.

      Mr. Alfred H. Mercer, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11028.
    The State, ex rel. Trustees of Malta Township, v. The County Auditor of Morgan County.
    Decided June 23, 1908.
    Error to Circuit Court of Morgan county.

      Messrs. Ivers & Danford, for plaintiff in error.

      Mr. John Q. Lyne, for defendant in error.
   Judgment affirmed.

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


text:
    No. 11041.
    Stewart v. Gardner et al.
    Decided June 23, 1908.
    Error to Circuit Court of Lucas county.

      Mr. Orville C. Bramback and Mr. Malcolm McAvoy, for plaintiff in error.

      Mr. Lewis W. Morgan; Mr. W. P. Duffy; Mr. Lawrence F. Conway and Messrs. Mallahan & Conway, for defendants in error.
   Judgment affirmed.

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


text:
    No. 10496.
    Kale, Admx., v. The South Palmyra Coal Co.
    Decided June 26, 1908.
    Error to Circuit Court of Portage county.

      Mr. W. H. Woolf and Mr. J. H. Dussel, for plaintiff in error.

      Messrs. Cushing & Siddall, for defendant in error.
   Judgment affirmed.

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


text:
    No. 10661.
    The Mt. Vernon Electric Light Co. v. The Knox County Oil & Gas Co.
    Decided June 26, 1908.
    Error to Circuit Court of Knox county.

      Mr. F. V. Owen and Mr. L. B. Houck, for plaintiff in error.

      Mr. F. O. Levering; Mr. FI. C. Devin-; Mr. R. M. Greer and Messrs. W(light & Moore, for defendant in error.
   Judgment affirmed.

Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 11348.
    The State, ex rel. Votava, v. Brown.
    Decided June 26, 1908.
    Error to Circuit Court of Cuyahoga county.

      Mr. Harry F. Payer, for plaintiff in error.

      Messrs. Blandin, Rice & Ginn, for defendant in error.
   Judgment affirmed on grounds stated in the opinion of circuit court.

Crew, Summers, Spear and Davis, JJ., concur.


text:
    No. 11349.
    The State, ex rel. Davio, v. Morrow.
    Decided June 26, 1908.
    Error to Circuit Court of Cuyahoga county.

      Mr. Harry

      F. Payer, for plaintiff in error.

      Messrs. Blandin, Rice & Ginn, for defendant in error.
   Judgment affirmed on grounds stated in the opinion of circuit-court.

Crew, Summers, Spear and Davis, JJ., concur.


author: Davis, J.

text:
    Stuard, Guardian, v. Porter, Administrator.

      Action against insane person for'wrongful death — May be brought, where — Guardian may be joined — Service on insane party— Error to quash service, when.

    1. An action against an insane defendant to recover damages for wrongful death may be brought in the county where the insane defendant has his legal residence; and his legally appointed guardian may be joined with him as a party defendant.
    2. Where in such case the guardian waived the issue and service of process and entered his appearance, and summons was issued to another county for the insane defendant and the same was personally served upon him by the sheriff of such county, and subsequently the plaintiff dismissed the action as to the guardian only, it is error for the court to quash the service on the insane defendant and to dismiss the action for want of jurisdiction over his person.
    (No. 10487
    Decided November 10, 1908.)
    Error to the Circuit Court or Morgan county.
    The facts are stated in the opinion.

      Mr. George W. Barry; Mr. L. J. Weber and Mr. Charles H. Fonts, for plaintiff in error.

      Messrs. Ivers & Danfort*, for defendant in error.
   Davis, J.

On December 2, 1905, the defendant in error filed his petition in the court of common pleas of Morgan county against Wood Stuard and Dal. P. Stuard as guardian of said Wood Stuard, praying for judgment in damages against the defendants for the wrongful death of the plaintiff’s decedent. On the same day summons for the defendant, Wood Stuard, was issued and directed to the sheriff of Athens county. On December 4, 1905, Dal. P. Stuard, as guardian of Wood Stuard, waived, in writing, the issue and service of summons in said action and entered his appearance thereto. On the same day, December 4, 1905, the sheriff of Athens county served the summons on Wood Stuard and also on the superintendent of the Athens State Hospital for the Insane, having the custody of said Wood Stuard, by personally handing to each of them a certified copy of the summons with all the endorsements thereon.

On December 30, 1905, the guardian of Wood Stuard demurred to the plaintiffs petition, maintaining that there was a misjoinder of parties defendant and that the petition did not state facts sufficient to constitute a cause of action; and thereafter, on February 19, 1906, the plaintiff dismissed, without prejudice, the action as 'to the guardian only. Subsequently, March 22, 1906, the guardian again appeared in court and asked leave to withdraw the demurrer, which leave was granted; and on the next day the guardian filed a motion-to quash the service of summons which had been made upon Wood'Stuard, December 4, 1905, by the sheriff of Athens county, which motion was sustained by the court of common pleas. Thereupon a summons was issued to the sheriff of Morgan county for Wood Stuard, which was served upon Wood Stuard at the Athens State Hospital in Athens county, by the sheriff of Morgan county. A motion to quash that service was sustained by the court of common pleas and on motion by .the guardian of Wood Stuard the petition of plaintiff was dismissed by- the court. On a petition in error the circuit court, sitting in and. for Morgan county, reversed the judgment of the court of common pleas and remanded the cause for further proceeding's. It is now claimed here by the plaintiff in error that the judgment of the circuit court should.be reversed and the judgment of the court of common pleas affirmed.

The question to be determined is whether there was a legal service of summons upon the insane defendant, Wood Stuard, or if not, whether the court had obtained jurisdiction of his person through the guardian.

Two facts must be, and practically are, conceded, viz.: that Dal. P. Stuard is the legally appointed guardian of Wood Stuard and that at the time of the appointment of his guardian both Wood Stuard and his guardian were residents of Morgan county. It cannot be presumed, from the circumstances of this case, that when the ward was removed to the state hospital in Athens county, there was any intention on the part of himself or anybody else to change the place of his legal residence. In fact, the change of location was involuntary and for a temporary purpose and he was in law incapable of making a voluntary change of residence. In case of his recovery it is made the duty of the officers of the law to return him to his home in the county from which he was sent. (Sections 7243 and 709, Revised Statutes.) These considerations lead to the conclusion that Wood Stuard not only was, but now is, a legal resident of Morgan county.

The statutes of this state do not specifically prescribe any particular method for service of summons upon an insane defendant. Ordinarily the service of summons upon a defendant would be by leaving a true copy of the writ at his usual place of residence or by delivering a copy to the defendant in person. Neither of these modes of service was adopted in this case and we are thus led to the inquiry, whether the court of common pleas has acquired .jurisdiction of the person of Wood Stuard in any other manner.

Waiving consideration of the proposition that the guardian of an insane person is not a necessary party defendant in an action of this kind, it seems to us very clear that he is at least a proper party. Our code of civil procedure, in the chapter entitled “Parties to Actions,” provides that “the defense of an insane person must be by his legally appointed guardian,” or in certain cases by a trustee for the suit appointed by the court. (Section 5000, Revised Statutes.) Elsewhere our statutes (Sections 6304, 6269, par. 5, Revised Statutes) make it the duty of a guardian for a lunatic “to appear for and defend, or cause to be defended, all suits against such ward.” Not only is the duty to appear for and defend distinguished by the statute from causing a defense to be made, but it would seem that the very act of appearing and' defending would involve the necessity of filing all necessary pleadings in the case, and to do any of these required things implies notice to the guardian. No mode of notifying the guardian is provided. Can it be said to be illegal to serve him as a party with summons along with his ward? The guardian cannot be a merely nominal party, lacking anv substantial interest, in a controversy of this kind. His ward’s estate is not bound by a debt or lien existing before the guardianship. The liability for a tort becomes a lien only from the date of judgment; and the plaintiff was not an ascertained creditor whom the guardian, was bound to recognize in the administration of his ward’s estate. Evans et al. v. Lewis, 30 Ohio St., 11. The guardian was therefore not merely required by law to see that a defense was made, but he was interested as a trustee to the extent that it was his duty to see that the trust estate was not unduly burdened. Hence, if .he was not a necessary party to the action he was at least a proper party defendant; and so the authorities seem to hold.

In 22 Cyc., 1224, the law is stated thus: “An insane person may be sued the same as a sane person. At common law the rule was the same after inquisition of lunacy and the appointment of a guardian or committee; but. now if there be a committee or guardian it is generally necessary to join him as a party defendant.”

In 10 Ency. PI. & Prac., 1228, we find this: “If the party be under the management of a committee or .guardian, service of process should be upon the committee, or upon • both the committee and the lunatic.”

In 9 Ency. PI. & Prac., 935, yve read the following: “Although it may not be necessary in all cases to make the guardian a party to an action or proceeding affecting the ward solely, yet it is usually proper to do so, that he may protect the ward’s interests.” In Carter v. Burrall, 80 N. Y. App. Div., 395, the court held that the committee of a lunatic, if he so elects, is entitled to come in and defend an action against his ward, and if he declines to do so, the plaintiff may apply for leave to make him a party defendant.

The Supreme Court of Massachusetts, in Whitcomb v. Jacobs, 9 Gray, 255, said that a guardian should be made a party to proceedings against the ward; but the same court in Taylor v. Lovering, 171 Mass., 303, remarked that “this is not strictly true; he should have notice of the proceedings.5'’ This is in effect saying that it is not necessary to make the guardian a formal party, but the court does not go to the extent of saying that he would be an improper party. However, the court did hold that the court below, “on being informed that the defendant was an insane person, under guardianship in this commonwealth, properly ordered notice of the pendency of the action to be given to the guardian, and if the guardian had appeared in the action in the name of the defendant, this probably would have cured the want of service on the defendant.55 We shall refer to this further on.

The Supreme Court of Illinois impliedly held that the guardian of an insane person,- who had been made a defendant and served with process, was a proper party; because it held that, being made a party he might take an appeal for the ward, notwithstanding the cause had been defended by a guardian ad litem who might also have appealed. Sill v. Sill, 185 Ill., 594.

Both the lunatic himself and his legally appointed guardian being residents of Morgan county and the latter being a proper party to the action, this action against both was rightly brought in that county (Section 5028, Revised Statutes), and the mode of service is clearly provided for in Section 5035, Revised Statutes. Jurisdiction of the person of the guardian was obtained by waiver of process and entry of appearance by him. Possibly, as suggested by the Supreme Court of Massachusetts, Taylor v. Lovering, supra, this may have cured a want of service on the insane defendant himself; but we need not resort to that extremity in this case. Under the statute, summons was properly directed to the sheriff of Athens county, which was personally served on the insane defendant in that county. The court had jurisdiction of the person as to both the ward and the guardian from that time until the dismissal without prejudice as to the guardian, a period of more than two months. The dismissal from the case of the guardian, if he was a proper party in the first instance, could not affect the jurisdiction over the person of the ward already properly acquired. Its only effect would be to dispense with the presence of the guardian as a party until, at some future stage of the action, the court should find it necessary to bring him in again.

It follows that the judgment of the court of common pleas quashing the service made on Wood Stuard by the sheriff of Athens county and the judgment of that court dismissing the plaintiff’s petition for want of jurisdiction over the person of the defendant were erroneous; and the judgment of the circuit court is therefore

Affirmed.

Price, C. J., Shaück, Crew, Summers and Spear, JJ., concur.


author: Spear, J.

text:
    Pierce et al. v. Hagans

      A resident taxpayer — Of incorporated village — Having no official legal counsel — May enjoin municipality from expenditure of funds.

    A resident taxpayer, owning property within an incorporated village subject to be taxed for the support of the revenues of the village, in which village there is no solicitor nor other legal counsel whose duties require him, in the name of the corporation, to apply to a court to restrain the illegal use of the funds of the corporation, is not without legal capacity to maintain, for himself and on behalf of the village, an action against the municipal authorities to enjoin the unauthorized expenditure of the funds of the village.
    (No. 10490
    Decided November 10, 1908.)
    Error to the Circuit Court of Pike county.
    The action below was brought by the defendant in error, G. S. Hagans, a taxpayer, against the plaintiff in error, A. C. Pierce, as clerk of the village of Piketon, and Samuel F. Hunter, in injunction, to prevent an alleged misapplication of the corporate funds of the village.
    In substance the amended petition of the plaintiff below set forth that he is a resident taxpayer of the incorporated village of Piketon, Ohio, the owner of property on the tax duplicate of the village, which property has heretofore been and will hereafter be taxed for the revenues of the village; that the village has not now and never has had a village solicitor or other legal counsel whose duty requires him in the name of and in behalf' of the village to apply to a court for an injunction to restrain the misapplication of funds of the corporation or the abuse of corporate powers, and for such, reason the plaintiff, as a resident taxpayer of the village, brings this action on behalf of said municipal corporation.
    April 16, 1906, the council of the village passed the resolution which follows:
    “Whereas, the incorporated village of Piketon is about to become involved in litigation, and it will be necessary to retain counsel to maintain the rights of said village; therefore, be it resolved by the village council of the incorporated village of Piketon, Ohio, that a committee of one be appointed to look after said matter, and that there be set aside of the general funds of said village the sum of seventy-five dollars, and that the clerk is hereby ordered to issue on the treasurer of said village, payable to said committee of one, to be appointed at once by the mayor, and that said committee of one is hereby instructed to report to council his proceedings in this behalf.”

      The mayor thereupon appointed the defendant Samuel F. Hunter as a committee of one to receive said order, said Hunter being at the time a member of said council. It is not true that the village is about to become involved in litigation and that it will be necessary to retain counsel to protect its rights, but the resolution is nothing more than a subterfuge, and is a scheme to obtain seventy-five dollars from the village treasury with which to pay the- obligations of said Hunter and others, as members of the council in a certain proceeding in mandamus wherein-said Hunter and others were respondents, and in which proceeding, by the decision of this court, a judgment was rendered, against the said respondents in their individual capacity, which judgment at the time of the passage of said resolution, had been paid. The resolution is without legal effect because the fund from which the proposed money was to be drawn was at the time largely overdrawn, and the clerk of the village had not, before the passage of the resolution, nor since, certified to the clerk that the money required was in the treasury of the village to the credit of the fund from which it was to be drawn and not appropriated for any other purpose; nor did the clerk certify that a levy had been made by the council and placed upon the tax duplicate and the money provided by the resolution in process of collection. Said Hunter will demand from the clerk an order for said sum and said clerk will issue to him such order unless enjoined, and plaintiff is without any remedy at law to prevent such misapplication of corporate funds. Plaintiff prays injunction.

      To the amended petition a demurrer was sustained by the court of common pleas on the ground that the plaintiff was without legal capacity to maintain the action, and rendered judgment for defendant below. This judgment was reversed by the circuit court for error in sustaining the demurrer, and the cause remanded to the common pleas for further proceedings.
    The defendants below now seek a reversal by this court of the judgment of the circuit court and an affirmance of that of the common pleas.

      Messrs. Eylar & Douglas, for plaintiffs in error, cited and commented upon the following authorities:

      Gas Light Co. v. Findlay, 2 C. C., 237; Wood v. Pleasant Ridge, 12 C. C., 180; Hensly v. Hamilton, 3 C. C., 201; Commissioners v. Pargillis, 10 C. C, 378; Hallock v. Columbus, 1 N. P., N. S., 205; Kissell v. Columbus Grove, 34 Bull., 50, 11 Dec. Re., 501, 53 Ohio St., 650; Herrick v. Cleveland, 7 C. C., 478; Brundige v. Ashley, 62 Ohio St., 527; Landis v. Commissioners, 32 Bull., 313; High on Injunctions, 471; 10 Ency. Pl. & Prac., 897, 899, 901; 21 Ency. Pl. & Prac., 470, 473; Armstrong v. Treasurer, 10 Ohio, 235; People v. Ingersoll, 58 N. Y., 1, 17 Am. Rep., 195; Doolittle v. Supervisors, 18 N. Y., 155; Roosevelt v. Draper, 23 N. Y., 318; Davis v. Mayor, 14 N. Y., 506., 67 Am. Dec., 186; State, ex rel., v. Lord, 31 L. R. A., 473; Males v. Murray, 10 Ohio Dec., 379; Platt v. Colvin, 50 Ohio St., 703; State, ex rel., v. Zumstein, 4 C. C., 269; Sections 1777, 1778, 5848 and 5849, Revised Statutes.

      Messrs. Dougherty & Moore, for defendant in error, cited and commented upon the following authorities:

      Railroad Co. v. Smith, 29 Ohio St., 303; Richmond v. Davis, 3 N. E. Rep., 130; Hanson v. Hunter, 86 Ia., 722; Paterson v. Bowes, 4 Grant (Can.), 170; Crampton v. Zabriskie, 101 U. S., 601; Stetson v. Kempton, 13 Mass., 272; Douglass v. Placerville, 18 Cal., 643; 1 Pomeroy on Eq. Jur., 277; Kissel v. Village of Columbus Grove, 34 Bull., 50, 53 Ohio St., 650; Wood v. Village of Pleasant Ridge, 12 C. C., 177; Cincinnati v. Ferguson, 12 O. D., 500; Smith v. Village of Rockford, 4 N. P., N. S., 513; Weir v. Day et al., 35 Ohio St., 143; Landis v. Commissioners, 32 Bull., 313; Sections 1777 and 1778, Revised Statutes.
   Spear, J.

The only question presented by the record is as to the capacity of the plaintiff in the common pleas to maintain his action. It is insisted, as against the judgment of the circuit court, that the action below cannot be maintained because the statute (sections 1777 and 1778, Revised Statutes), expressly forbids it, and because the common law affords no authority for its prosecution. Pertinent provisions of those sections (1 Bates, pp. 959, 960), are: “Section 1777: He (the city solicitor) shall apply in the name of the corporation, to a court of competent jurisdiction for an order of injunction to restrain the misapplication of funds of the corporation, or the abuse of its corporate powers, or the execution or performance of any contract, made in behalf of the corporation in contravention of the laws or ordinance governing the same, or which was procured by fraud or corruption.”

“Section 1778: In case he fail upon the request of any taxpayer of the 'corporation to make the application provided for in the preceding section, it shall be lawful for such taxpayer to institute suit for such purposes in his own name, on behalf of the corporation; provided that no such suit or proceeding shall be entertained by any court until such request shall have been first made in writing; and, further, provided that no such suit or proceedings shall be entertained by any court until such taxpayer upon motion of the solicitor or corporation counsel shall have given security for the costs of the proceeding.”

It seems fairly clear that these sections cannot have application to the case at bar. They treat of a situation which is essentially different. Their terms presuppose the presence of a solicitor, an officer on whom the request to begin a suit can be made; the petition shows that the village of Pike-ton had no solicitor. It was impossible, therefore, to comply with that requirement. . The inhibition that no such suit shall be entertained by any court until a request shall have been first made upon the solicitor in writing, and until the taxpayer shall have given security for costs, necessarily, we think, means a suit brought .by favor of those sections, one in which it is possible to make an effort to invoke the action of a law officer representing the corporation, and not a suit brought without relying upon the statute and one in which such request is impossible. The restrictions here imposed may well be treated as provisions to regulate the practice in cases where reliance is had upon the statute, to prevent the inconsiderate bringing of actions by dissatisfied taxpayers, and the consequent piling up of costs against the municipality in cases of doubtful merit. It may perhaps be matter of surprise that this effort at regulation did not go farther and cover the entire ground of actions by taxpayers to prevent illegal expenditures by municipalities of all grades, but that omission does not afford ground for the conclusion that these enactments were intended to cover cases not necessarily within their terms. These provisions first appear in our statutes by the act of March 3, 1860, entitled: “An act relating to cities of the first class having a population exceeding eighty thousand inhabitants,” 57 Ohio Laws, 16. The natural inference would seem to be that, in the judgment of the general assembly, such regulation . as is by these sections provided did not then appear to be necessary in the municipalities of the state having a population of eighty thousand or less. It may be added that the case of the plaintiff below does not purport to be brought under the sections of the statute quoted.

We come now to a consideration of the claim that the plaintiff below had at common law no legal capacity to sue either on his own behalf or on behalf of the corporation. This proposition implies that, until the act of March 3, I860, there was no power on the part of taxpayers residing and owning property subject to taxation within any muncipality of the state who could have a standing in any court to ask such court to restrain the unlawful expenditure of corporate funds by the municipal authorities, or the incurring illegally of corporate obligations by them necessarily resulting in increased burdens of taxation, and that after the date above stated, and until the amendment enacted some years later, resident taxpayers of all municipalities of a population of not over eighty thousand were lacking in such right. The proposition is at least a startling one, and as a first inquiry occurs the question why such resident taxpayers should not have such standing? They are members of the corporation itself, units making in the aggregate the entire corporation and thus necessarily possessing an interest in the corporate funds and property; their individual items of property situate therein are units of the whole and together constitute a large integral part if not the entire body on which the burdens of taxation are imposed. Speaking in the enlarged sense the corporation is the trustee and the inhabitants the cestuis que trust. If the corporation were a private one there could be no doubt of the power to sue. Can any situation involving only property be imagined where a stronger claim for relief can be made upon a court of equity? It is not easy to suggest one.

Nor is the question a new one in this state. It is observed by Gilmore, J., in Cincinnati Street R. R. Co. v. Smith, 29 Ohio St., 291, treating of the sections of the statute hereinbefore referred to, that: "The sections do not provide remedies that were previously unknown. Courts of equity had long taken jurisdiction and granted injunctions in such cases when properly presented by interested individuals, whose rights were put in jeopardy by the illegal or unauthorized acts, or threatened acts, of municipal corporations.”- And in Weir v. Day, 35 Ohio St., 143, a suit involving the right of a resident taxpayer to enjoin an alleged illegal use of a schoolhouse by a board of education, Mcllvaine, J., observes: “It is also suggested that the plaintiff has not shown an injury to himself. As a resident taxpayer in the district, and hence a quasi corporator, it is his legal right to have the corporate property used solely for corporate purposes; and any diversion of the property to other uses is an injury to him in law. And in addition to this, the unauthorized use to which this property was devoted, necessarily results in damage to a greater or less degree, to say nothing of the risks.”

We think, also, that the general trend of judicial opinion in this state is consistent with the proposition that Sections 1777 and 1778 do not apply where there is no solicitor, and that a resident taxpayer may, for himself and the corporation, seek to enjoin the illegal use of corporate funds and property, and cite in support thereof the following cases: Hensly v. City of Hamilton, 3 O. C. C., 201; Cope v. Village of Wellsville, 25 W. L. B., 250; Kissel v. Village of Columbus Grove, 34 W. L. B., 50, affirmed 53 Ohio St., 650; Wood v. Village of Pleasant Ridge, 12 O. C. C., 177; Hallock v. City of Columbus, 1 N. P., N. S., 205; Smith v. Village of Rockford, 4 N. P., N. S., 513. See, also, dissenting opinion of Dempsey, J., in City of Cincinnati v. Ferguson, 12 O. D., 488, 500. Young v. Wilson ct al, a case disposed of by the Brown county circuit court in the year 1893, holds the opposite doctrine. The decisions of that court are deserving of high respect, but they are persuasive only. A case from the Pike county circuit court is also cited as sustaining the contention of plaintiff in error. It seems not to do so. The point of the capacity of the plaintiff to maintain the action does not appear to have been passed upon by either the common pleas or circuit court.

The general right of the resident taxpayer to maintain an action of this character is recognized by a number of decisions of courts in other jurisdictions. Bromley v. Smith, 1 Sim., 9; Paterson v. Bowes, 4 Grant’s Ch., 170; Hanson v. Hunter, 86 Ia., 722; City of Richmond v. Davis, 103 Ind., 449; Crampton v. Zabriskie, 101 U. S., 601. In the case last cited, opinion by Mr. Justice Field, it is held that: “Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property-holders ■ of the county may otherwise be compelled to pay, there is at this day no serious question. The right has been recognized by the state courts in numerous cases; and from the nature of the powers' exercised by municipal corporations, the great danger of their abuse and the necessity of prompt action to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere upon the 'application of the taxpayers of a county to prevent the consummation of a wrong, when the officers of those corporations assume, in excess of their powers, to create burdens upon property-holders. Certainly, in the absence of legislation restricting the right to interfere in such cases to public officers of the state or county, there would seem to be no substantial reason why a bill by or on behalf of individual taxpayers should not be entertained to prevent the misuse of corporate powers. The courts may be safely trusted to prevent the abuse of their process in such cases. Those who desire to consult the leading authorities on this subject will find them stated or referred to in Mr. Dillon’s excellent treatise on the Law of Municipal Corporations.”

■ The principle is also recognized by a number of text-book authors of acknowledged authority, and by a number of digests. 1 Pomeroy’s Eq. Jur. (2d Ed.), Sec. 273; 2 Dillon’s M. C. (4th Ed.), Sec. 914; 21 Ency. of P. & P., 471; 20 Am. & Eng. Ency. of Law, 1231; Ellis’ Munic. Code, 343. Counsel on both sides have been diligent in bringing to our attention many authorities, all of which we have examined. A further review, however, does not seem called for. A class of cases seems to support the contention of counsel for plaintiff in error, but many of them are cases where a taxpayer sought wholly in his own name, and without assuming to represent others, or the corporation itself, and where his interests were not distinct from those of all other taxpayers of the municipality or district. The distinction between such a case and the one at bar is manifest. And, as between the cases which seem to deny the resident taxpayer the right to sue, and the holdings in our own state and elsewhere which sustain that right, it is clearly our duty to follow the latter. If the resident taxpayer may not maintain such an action then no one can, and the municipal authorities may plunder- to their hearts’ content so long as they observe legal forms and escape the clutches of the criminal law, and nobody shall say them nay. This right is not better stated than by Judge Dillon in the section before cited:

“In this country the right of property-holders or taxable inhabitants to resort to equity to restrain municipal corporations and their officers from transcending their lawful powers or violating their legal duties in any mode which will injuriously affect the taxpayers — such as making an unauthorized appropriation of the corporate funds, or an illegal or wrongful disposition of the corporate property, or levying and collecting void and illegal taxes and assessments upon' real property under circumstances presently to be explained — has, without the aid of statute provision to that effect, been affirmed or recognized in numerous cases in many of. the states. It is the prevailing, we may now add, almost universal doctrine on this subject. It can, we think, be vindicated upon principle, in view of the nature of the powers exercised by municipal corporations and the necessity of affording easy, direct, and adequate preventive relief against their misuse. It is better that those immediately affected by corporate abuses should be armed with the power to interfere directly in their own names than to compel them to rely upon the action of a distant state officer. The equity jurisdiction may, in such cases, usually rest upon fraud, breach of trust, multiplicity of suits, or the inadequacy of the ordinary remedies at law. * * * The doctrine * * * is supported by an analogy supplied by a settled rule of equity applicable to private corporations. In these the ultimate cestuis que trust are the stockholders. In municipal corporations the cestuis que trust are in a substantial sense the inhabitants embraced within their limits. In each case the corporation, or its governing body, is a trustee. If the governing body of a private corporation is acting ultra vires or fraudulently, the corporation is ordinarily the proper party to prevent or redress the wrong by appropriate action or suit in the name of the corporation. But if the directors will not bring such an action, our jurisprudence is not so defective as to leave creditors or shareholders remediless, and either creditors or shareholders may institute the necessary suits to protect their respective rights, making the corporation and the directors defendants. This is a necessary and wholesome doctrine. Why should a different rule apply to a municipal corporation? If the property or funds of such a corporation be illegally or wrongfully interfered with, or its powers be misused, ordinarily the action to prevent or redress the wrong should be brought by and in the name of the corporation. But if the officers of the corporation are parties to the wrong, or if they will not discharge their duty, why may not any inhabitant, and particularly any taxable inhabitant, be allowed to maintain in behalf of all similarly situated a class suit to prevent or avoid the illegal or wrongful act ? Such a right is especially necessary in the cáse of municipal and public corporations, and if it be denied to exist, they are liable to be plundered, and the taxpayers and property-owners on whom the loss will eventually fall are without effectual remedy.”

A very learned discussion of the subject is given in 38 Cyc., pp. 1732 to 1738, and a large number of decisions of state courts are cited some of the older cases of which seem to restrict the right of a taxpayer to maintain an action to situations where he is injuriously affected in some way different from taxpayers generally; others holding that as against municipal corporations the right of action is confined to instances where the municipal authorities have neglected to act and then only after request to do so, unless the circumstances show that such a demand would be unavailing, but many cases are cited to the effect that, while taxpayers cannot contest municipal ordinances or acts merely upon the ground that they are unauthorized and invalid, they may judicially contest the validity of any official act which directly affects prejudicially their rights as taxpayers by increasing the burden of taxes or otherwise, and the great weight of authority, says the commentator, “is that if such action be illegal or unauthorized taxpayers may sue to restrain it without showing any special injury different from that sustained by other taxpayers.” The later ■ cases seem to tend to the more liberal doctrine, and, taken as a whole, we do not regard the discussion as at war with the conclusions we have reached in the present case, but rather affording support to them.

Our holding is that a resident taxpayer of a village having no solicitor, who owns property within the village subject to taxation may maintain, for himself and the village, an action to restrain the misapplication by the municipal authorities of the funds of the corporation.-

The plaintiff below had legal capacity to maintain the action. His amended petition states a cause of.action. The sustaining of the demurrer to that pleading was erroneous, and the judgment of the circuit court reversing that holding will be

Affirmed.

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