author: Price, J.

text:
    Dorsch v. The Beaumont Glass Company.

      Vacation or establishment of street or alley — Section 1536-1J$, Revised Statutes — Common pleas may vacate but not narrow street, when.

    The provisions of section 1536-148, Revised Statutes, which empower a court of common pleas to establish or vacate a street or alley, do not authorize such court to narrow the same.
    (No. 9314
    Decided May 1, 1906.)
    Error to the Circuit Court of Belmont county.
    On the ninth day of September, 1901, The Beaumont Glass Company, a corporation and defendant in error, filed its petition in the court of common pleas of Belmont county, addressed to one of the judges of said court, of which the following is a copy, omitting caption and signature:
    “The Beaumont Glass Company, a corporation, duly incorporated and organized under the laws of the state of West Virginia, respectfully represents that it is the owner of lots numbers 202 and 203 in the city of Martins Ferry, Belmont county, Ohio, formerly known as lots 227 and 228, and a piece of ground east thereof and between said lots and the Ohio river, and known as lots III and IV; that all said lots are in the immediate vicinity of the part of Clay street in said city hereinafter described, the said lot No. 202 and said lot III abutting upon the north line thereof, between the points hereinafter described and the portion of said street hereinafter asked to be vacated.
    “The said Beaumont Glass Company respectfully requests that that part of Clay street along the south side of said lot 202 and said lot III, hereinbefore mentioned, between Front street and the Ohio river and for the width of fourteen feet between said Front street and the Ohio river, be vacated, for the reasons that the same is no longer of any public use whatever; and that the same never has been and never will be used by the public; that it will not be detrimental, but will conduce to the general interest of said city, that the said portion of said street be vacated.” Notice of the filing and pendency of the petition was given by publication in a newspaper of general circulation in the county as the law directs.
    The plaintiff in error, George Dorsch, who owns lot 2 abutting on that part of Clay street sought to be vacated, filed a motion to strike the petition from the files, because it was not verified. His motion was overruled and the court permitted the petition to be verified. He then filed a demurrer to the petition on two grounds: (1) the court has no jurisdiction of the subject-matter of the petition; (2) said petition does not state sufficient facts to authorize the court to grant the relief prayed for.
    The demurrer was overruled and exception taken.
    Dorsch answered, alleging in substance, his ownership of lot 2 in said city, giving its boundaries by different streets, and that it abutted on that part of Clay street sought to be vacated; that Clay street is sixty-six feet in width, and that to vacate the fourteen feet along one side thereof would narrow the street to fifty-two feet between Front street and the Ohio river.
    He further alleges that, if said strip is vacated, the petitioner will take possession thereof, and that if the same is vacated he will be damaged in the sum of one thousand dollars. There is another paragraph in the answer, not material to the consideration of the case here.
    The petitioner demurred to the answer, and the demurrer was overruled. The reply denies all the averments of the answer, except that Dorsch owns lot 2 and that it is hounded as described in the answer. The court heard Evidence on the issues joined, found for the petitioner and ordered vacation as prayed for, awarding to Dorsch damages in the sum of one dollar. A bill of exceptions was taken and error prosecuted in the circuit court where the judgment was affirmed. Error is prosecuted here to reverse both judgments.

      Messrs. Briggs & Heinlein for plaintiff in error.

      Mr. George Duncan for defendant in error.
   Price, J.

The petition filed in the court of common pleas, did not ask for the vacation of Clay street between Front street and the Ohio river, but of a strip fourteen feet in width on one side of Clay street between Front street and the Ohio river. The evident effect of granting the prayer of the petition was to narrow said- street between those points, from sixty-six to fifty-two feet in width, and the question is, had the court authority to make such an order*? This question was raised by demurrer to the petition, and the ruling upon it by the court of common pleas was assigned for error in the circuit court, and its judgment upon the question is now challenged in this court. If we decide that the demurrer should have been sustained, other matters in the record and discussed by counsel need not be considered.

The only authority conferred on the court of common pleas, to either establish or vacate a street or alley, within a hamlet or municipal corporation, is found in section 1536-148 (section 2655), Revised Statutes, which reads:

‘ ‘ On petition filed in the court of common pleas by any person owning a lot in any city or in an incorporated or unincorporated hamlet or village, for the establishment or vacation of a street or alley in the immediate vicinity of such lot, the court upon hearing, and being satisfied that it will conduce to the general interests of such city, hamlet or village, may declare such' street or alley established or ■vacated; but the remedy shall be in addition to those prescribed in this title.”

The nest section prescribes the character of notice to be given of the filing and pendency of the petition; and provides for the right of any person other than the petitioner, who owns a lot in the immediate vicinity of the street or alley prayed to be vacated or established, to claim damages, and that on such claim the court may hear proof in reference thereto and render judgment against the petitioner for such damages as it may thinh just, and that a jury may be demanded as in other cases, etc.

It is well enough to trace this legislation, as it will afford aid in its construction when compared' with other legislation authorizing the councils of municipal corporations to establish, vacate or narrow streets and alleys.

The first provision on the subject to which we have access, was made in 1828, in “an act to provide for the vacation of town plats, and for other purposes.” This was amended March 5, 1839, to read in part as follows:

“Section 1. That on petition filed in the court of common pleas of any county in this state by any person or persons owning any lot or lots in any town or city in the said county, praying that any alley or alleys, street or < streets, in the immediate vicinity of such lot or lots, may be established or vacated, the said court may, and they are hereby authorized, upon hearing and being satisfied that it will conduce to the general interests of such town or city, to declare such alley or alleys, street or streets, established or vacated.” See 37 O. L., 44.

The next section (2) provides for the mode of procedure, the right of another lot owner to claim damages, etc., in all respects similar to the mode prescribed in the present statute. Omitting a few surplus words, the act of March 5, 1839, above quoted is present section 1536-148 (2655), Revised Statutes, except that its last clause, “but the remedy shall be in addition to those prescribed in this title,” was not in the old act.

The act'of March 5, 1839, was carried into Swan & Critchfield Statutes, word for word, as found in Volume 2, page 1487.

In 1878 (see 75 O. L., 161) the statutes relating to municipal corporations were revised and amended so as to form a code of municipal law, and section 15, page 391, of that revision is precisely the same as our present statute on the subject, and there, for the first time appears the clause, “but the remedy shall be in addition to those prescribed in this title.” There is significance in this fact when it is seen that the three preceding sections provide “for vacation of streets by council,” thus bringing into juxtaposition the different provisions respecting the vacation of streets and alleys. See sections 12, 13, 14 and 15 of 75 O. L., 390-391.

In 1879, section 15 of the code of 1878 was slightly amended, bnt the change is of no importance here. See 76 O. L., 25.

The same provision, omitting surplus words, is found in the revision of all our statutes in 1880. Thus we have the history of the jurisdiction of the court of common pleas over the establishment or vacation of streets and alleys, and in none of the stages of the legislation in all its past history, do we find authority given the court to narrow a street or alley, unless that authority is included in the word “vacate.” In each was given the power to establish and vacate streets and alleys, and that is the only power vested in the court by the statute on that subject. However, there is authority for narrowing streets and alleys, and it is conferred on the council of a city or village by section 1536-145 (section 2652), Eevised Statutes, which reads in part: “The council of any city or village, on petition by any person owning a lot in the corporation praying that a street or alley in the immediate vicinity of such lot may be vacated or narrowed, or the name thereof changed, may upon hearing and being satisfied that there is good cause for such change of name, vacation or narrowing, that it will not be detrimental to the general interest, and that the same should be made, declare by ordinance such street or alley vacated, narrowed, or the name thereof changed, etc. * * *.”

The next section provides for notice of the filing and prayer of the petition .by six weeks publication.

And section 1546-147 provides that “the order of council vacating or narrowing any street or alley which has been dedicated to public.use by the proprietor, shall to the extent to which the same is vacated or narrowed, operate as a revocation of the acceptance thereof by the council; but the right of way and easement therein of any lot owner shall not be impaired thereby.”

It is sufficient for the purposes of this case, that we trace the principal features of the above sections back as far as 1853 and to the act of the legislature passed March 11, 1853, and which was amended by section 13 of an act passed April 29, 1854. See 52 O. L., 75. By the original and the amended section, “the city council of any city or incorporated village of this state, on petition filed by any person or persons owning any lot or lots, in any such city or incorporated village, praying that any street or streets, alley or alleys, in the immediate vicinity of such lot or lots, may be vacated or narroived, may, and they are hereby authorized upon hearing and being satisfied that there is good cause for such vacation or narrowing, and that it will not be detrimental to the general interest, and that the same should be made, declare such, street or streets, alley or alleys vacated or narrowed. * * *.”

There was a provision for notice by publication for a certain time before the hearing on the petition. The above section is found in exact terms in the revision by Swan & Critchfield, volume 2, page 1531. It was a part of “ an act to provide for the organization and government of municipal corporations,” passed May 7, 1869, and known therein as section 491. Several sections of that act, including 491, were amended April 18, 1870. See 67 O. L., 78. In the amendment the power to change the name of a street or alley was added. As such, it was carried into the revision of 1880. We find it again with a slight amendment made in 1893. See 90 O. L., 350. In substance, if not literally, we so find it now.

In their origin, and in the different revisions and amendments, the statute authorized the council on proper petition and notice to vacate or • narroiv streets or alleys, and when codification of the statutes for the organization and government of municipal corporations took place, the statutory authority for councils to vacate and narrow streets and alleys was brought in close relation to the statute authorizing a court of common pleas to establish or vacate, streets and alleys. They were kindred provisions from their first inception, and have long ago been brought together as they are now found.

"What is the fair inference to be drawn from the comparison we have made? It is, that from the very first Creation of the authority in the court and in the council of the city or village, to deal with streets and alleys, each tribunal must follow the language. of the statute pertaining to it. One cannot borrow from the other. Nor can authority not expressly conferred be derived by implication. The jurisdiction conferred on the court, is special and the act conferring the jurisdiction must be strictly followed. It is quite clear that if the general assembly ever intended to empower the court of common pleas to narroiv a street or alley, it would have so expressed itself at some time during the past three quarters of a century or more; especially, when it had knowledge that it had given municipal councils that power. It has not been a matter of oversight, but on the contrary it has been, the steady, consistent pursuit of an original purpose. There are some apparent reasons which might be furnished for this, but the statutory reasons alone are sufficient.

It has been suggested, that because the court has power to vacate a street or alley, it may vacate a strip along one side of a street, on the theory that the greater includes the lesser. That axiom is sometimes convenient in summing up mathematical calculations in matters of space or quantity; but it would not be a safe rule to adopt in ascertaining legislative intent, or in measuring the jurisdiction of a court in a special proceeding. If the word alley had been left out of the court section, would it be claimed that the court could vacate an alley, which is less than a street, because the court is authorized to vacate a street. Or, if the word alley had been omitted, would it be claimed that the court could establish an alley, because it can establish a street which is a larger thoroughfare?

We believe the power to narrow a street is left alone with the council because it is entrusted with the care and control of the streets and alleys and other public ways of the city or village, and it is better qualified locally to determine when it is proper to narrow an existing street. Its action in so doing, leaves to the abutting owner his easement in the vacated portion, while the narrowing by the court, if it had such power under the guise of vacating, would take the easement from him by assessing damages.

Therefore, when the court orders vacation of a street or alley, it must be from side to side, or the width of the street. This does not mean that the street or alley must be vacated its entire length, but the entire width, of such part of the street as should be vacated, under the terms and prayer of the petition.

Applying our meaning to this case, the court was empowered to vacate Clay street between Front street and the Ohio river, bnt not empowered to narrow the street by vacating a strip along one side of the same.

Counsel for defendant in error cite and rely on Matter of Henry Street, 123 Pa. St., 346; In re Swanson Street, 163 Pa. St., 323; City of Mt. Carmel v. Shaw, 155 Ill., 37. In the matter of Henry Street, supra, the proceeding was to vacate a street, not to narrow one. The petitioners asked vacation of the street in its entirety and the question here was in no way involved. The same may be said of In re Swanson Street, supra, except that the petition asked to vacate a part of a certain street (Swanson street) in Philadelphia lying between Washington avenue and Prime street. The question raised was, whether under a statute authorizing the vacation of a street or road, a part of the same may be vacated, and it was held that the part between said avenue and Prime street could be vacated. On • page 326 in the opinion of the court, the statute of that state is quoted as follows: “Whenever any private or public lane, alley, road or highway shall, by reason of forming town plats or otherwise, become useless to the public, etc. * * * And upon hearing all parties interested, it shall be lawful for the court to decree the vacation of any such lane, alley, street or highway.” Continuing, that court said: “But it does not follow from this that a power to vacate part of a road cannot be deduced from legislation which gives power to vacate the whole of it. In all ordinary circumstances the power to do a.greater act includes the power to do the lesser act, which is part of the greater. * * * The statutory condition upon which the power is conferred is the same in both cases, to-wit ‘whenever the same shall become useless to the public and those having lands bounding thereon.’ This condition may become true of a part, as well as of the whole of a long public road; .or a long street of a city. When it occurs in a city, the vacation of the useless portion may be accomplished with little or no inconvenience to the property owners on the remaining portion of the principal street, because there are always crossing streets at short distances apart, through which free communication can be had with all the streets. ’ ’

It is plain that the right to narrow a street was not involved. The holding is that under the statute of Pennsylvania quoted above, the court could vacate a part of a street between cross-streets. We have said as much for our statute, that it was within the statutory jurisdiction of the court of common pleas on a proper petition, to vacate Clay street its entire width between Front street and the Ohio river, but that the power to narrow as prayed for in this case, did not exist.

The City of Mt. Carmel, supra, presents a very different case. It involved the narrowing and changing of a street by the municipal authorities, and the supreme court of Illinois held on that subject, that, “under the power given by a statute to a city to vacate streets, it may vacate a strip upon each side of a street so as to narrow it, where the purpose of narrowing is not to benefit private owners, but because it is deemed that so great a width of street is not required for public use.” The powers conferred upon the municipal authorities of that state, in reference to streets, are also very broad; but in this state the legislature has expressly authorized councils to narrow streets and alleys, and the ■decision is not relevant here where we are considering the limited jurisdiction of .the court of common pleas.

The demurrer to the petition should have been sustained.

The judgments of the circuit and common pleas courts are reversed and the original petition is dismissed.

Reversed.

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


source: Caselaw Access Project

author: Shaucb:, C. J.

license: Public Domain

text:
    City of Tiffin et al. v. Griffith et al.

      Longworth bond act — Limitation upon municipal indebtedness — • Act of April 29, 1992 — Municipal corporation not to assume indebtedness~In excess of eight per cent, of total value of property, wherk — Act has only prospective operation — Municipal law — Taxation.
    'The limitation upon municipal indebtedness prescribed by the act of April 29, 1902, ,(95 O. L., 321), being “that no municipal corporation shall hereafter create or assume an aggregate indebtedness of outstanding and unpaid bonds under the authority of this act in excess of eight per cent, of the total value of all the property in it as listed and assessed for taxation,” has only a prospective operation, and indebtedness created or assumed prior to the passage of the act may not be considered in ascertaining whether the prescribed limit . of indebtedness has been reached.
    (No. 9743
    Decided May 1, 1906.)
    Error to the Circuit Court of Seneca county.
    The defendants in error, as taxpayers,of the city •of Tiffin, brought suit in the court of common pleas to enjoin the city from' issuing certain bonds described in their petition. In that court a demurrer to their petition was sustained and the petition dismissed. On petition in error the circuit court affirmed the judgment as to eleven of the causes of action but reversed it as to the twelfth. As to the twelfth cause of action the circuit court overruled the demurrer. The propriety of the latter ruling presents the only question which is to be considered here. The material averments of the twelfth cause of action are that the original defendants are about to issue bonds of the city of Tiffin in the sum of thirteen thousand dollars and unless restrained will do so although the value of all the property within the city as listed and assessed for taxation is only four million, six .hundred and ninety thousand dollars and its total bonded indebtedness as now existing is six hundred and twenty-five thousand dollars.

      Mr. R. 8. DeRan, city solicitor; Mr. Wade IT. Ellis, attorney general; Messrs. Squire, Sanders & Dempsey; Mr. Newton D. Baker and Mr. Hiram D. Peck, for plaintiffs in error,
    cited and commented upon the following authorities:

      Buning v. Street Railway Co., 1 C. C. R., 323; Fosdick v. Perrysburg, 14 Ohio St., 472; Shunk v. Bank, 22 Ohio St., 508; State v. Kelley, 25 Ohio St., 29; State v. Newton, 26 Ohio St., 200; Commissioners v. Board of Public Works, 39 Ohio St., 628; Ruffner v. Hamilton County, 12 Dec. Re., 473; 1 Disn., 39; Cincinnati v. Connor, 55 Ohio St., 82; Cincinnati v. Guckenberger, 60 Ohio St., 353; 1 Cooley on Taxation, 494; Griffith v. Tiffin, 27 C. C. R., 626; O. L. B., Nov. 27, 1905; Kelley v. Kelso, 5 Ohio St., 199; Goodale v. Fennell et al., 27 Ohio St., 426; Story on Const., secs. 1380, 402; Cooley on Const. Law, 285; Sedgwick on Stat. and Const. Law, 603; Van Hoffman v. City of Quincy, 4 Wall., 535; Sutherland on Statutory Con., secs. 464, 475; Wesson v. Mt. Vernon, 39 C. C. A., 301; 98 Fed., 804; Cadillac v. Woonsocket, 16 U. S. App., 545; Gunnison County v. Rollins, 173 U. S., 255; Hackett v. Ottawa, 99 U. S., 86; Allen v. Parish, 3 Ohio, 193; Patton v. Sheriff, 2 Ohio, 398; Riddle v. Bryan, 5 Ohio, 48; Howland v. Carson, 28 Ohio St., 628; Elliott v. Shaw, 32 Ohio St., 434; Bruner v. Briggs, 39 Ohio St., 484; secs. 1536-210, 1536-213 (sec. 53, Municipal Code), 1536-280, 1773 (sec. 1536-668, Municipal Code), 1778 (sec. 1536-667, Municipal Code), 2701, 2835 to 2838 and 5083, Rev. Stat.; secs. 95, 96, 97 and 99, Municipal Code.

      Mr. W. S. Wagner and Mr. W. D. Pence, for defendants in error,
    cited and commented upon the following authorities:

      Bloom v. Xenia, 32 Ohio St., 465; Cincinnati v. Guckenberger, 60 Ohio St., 353; Markley v. Village of Mineral City, 58 Ohio St., 439; Newton v. Toledo, 8 Circ. Dec., 607; 18 C. C. R., 756; s. c. Toledo v. Newton, 52 Ohio St., 649; Tracy v. Card, 2 Ohio St., 431; Henry v. Trustees, 48 Ohio St., 671; art. XIII, sec. 6, Const. of Ohio; Lancaster v. Miller, 58 Ohio St., 575; State ex rel. v. Jones, 66 Ohio St., 453; McKibben v. Lester, 9 Ohio St., 627; Black on Interpretation of Law, 257, 204; 23 Am. & Eng. Ency. Law, 285; 1 Cent. Dic. & Cyc., 351; Rairden & Burnet v. Holden, Admr., 15 Ohio St., 210; art. II, sec. 28, Const. of Ohio; Wellston v. Morgan, 65 Ohio St., 229; secs. 1536-213, 1536-281, 1536-282, 1536-283, 1536-289, 1536-290, 1536-291, 1536-291, 2701, 2835, 2836, 2837 and 2838, Rev. Stat.
   Shaucb:, C. J.

Some questions of pleading discussed in the briefs are immaterial in the view which we take of the meaning and effect of section 2837, Revised Statutes, regulating the issuing of municipal and other public bonds and limiting the amount of such issues. It is conceded in the petition that all the required steps have been taken for the issuance of the contemplated bonds in accordance with the provisions of the section, but claimed that the amount of the bonded indebtedness created and so to be created will exceed the maximum limit which the proviso of that section of the statute permits to be created or assumed for that purpose. The proviso by which the general assembly has limited the amount of bonds to be issued is as. follows: “Provided, however, that no * * * municipal corporation shall hereafter create' or assume an aggregate indebtedness of outstanding and unpaid bonds under the authority of this act in excess of eight per cent, of the total value-of all the ’ property in such corporation as listed and assessed for taxation.”

The section containing this limitation upon the municipal authority to issue bonds was enacted April 29,1902. The petition does not allege that the contemplated issue of bonds if added to all that have been issued by the city of Tiffin since the passage of the act will exceed eight per cent, of the value of all the property within the city as listed and assessed for taxation. It is conceded that it will not. The. view urged by counsel for the defendants in error and taken by the circuit court is stated by it as follows: “In determining whether a municipal corporation has reached or exceeded the limit of its bonding capacity, the statute contemplates the aggregate bonded indebtedness whether issued before or since said enactments, and if such aggregate equals or exceeds the extreme eight per cent, limit above noted, then no further bonds may be issued until said aggregate has been'reduced below said limit.”

This view is stated at length in the opinion and it is said that the limitation cannot be confined to bonds to be issued after the passage of the act because of the necessity imposed by a familiar canon of interpretation of giving effect to all the terms employed in the act, and that however clearly a prospective operation only might be indicated by the words “hereafter create,” former issues of bonds must be taken into account because the provision is that no municipality may “hereafter create or assume an aggregate indebtedness,” etc. Lexicography is invoked to show that within the authorized meaning of the word “assume” its use in the connection requires that previously created indebtedness should be taken into consideration in determining whether the authorized limit has been reached. This is said to receive support from the'consideration that a liability .may not be incurred by a municipality for any but municipal purposes. In the opinion it is said that “the word ‘assume’ cannot mean to create a new debt for it is used in the alternative with the word ‘create,’ to-wit, ‘create or assume.’ It may not mean to adopt or take up the debt of some other person or corporation for that does not come within the scope of the powers Conferred upon municipalities by law. It must, therefore, if it means anything, have reference only to the indebtedness of the corporation itself existing prior to the enactment of the eight per cent, limitation. ” We are not likely to ascertain the intention of the legislature if we assume that it used the word in an occult or obscure sense though with reference to a very familiar subject and in a very familiar connection. In the sense of the word with which daily use has made us familiar the debt which one assumes was contracted by another. One may continue to owe a debt which he has previously created but he does not assume it. Nor is the conclusion of the circuit court supported by the proposition that a municipality may not assume a debt which another has created. It may for municipal purposes acquire lands which are subject to mortgage or other liens and assume a valid obligation to discharge them. In the provisions of the municipal code relating to the annexation of adjoining villages there is the express provision that the debt of the annexed territory shall be ascertained and apportioned and the proper proportion thereof “shall be assumed and paid by the city on the annexation of the territory aforesaid.” Ellis’ Municipal Code, page 39. We do not find in brief or opinion any reason for regarding the words of the statute as used in any but their ordinary sense. Thus regarding the words used at the date of the act we are not permitted to conclude that the indebtedness theretofore created or assumed was intended to be considered as a part of an indebtedness which might thereafter be created or assumed.

If the language of the statute were so doubtful as to make it a proper subject of interpretation, a very suggestive consideration favoring the conclusion reached by the court of common pleas would be found in the fact, shown by public records and doubtless known by the members of the general assembly, that at the time of the passage of the act many municipalities of the state had an outstanding and unpaid bonded indebtedness exceeding eight per cent, of the total value of all the property within their limits as listed and assessed for taxation.

Judgment of the circuit court reversed and that of the common pleas affirmed.

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


author: Davis, J.

text:
    The Cleveland City Railway Company v. Conner.

      Passenger on street car — Given wrong transfer by conductor— Second conductor ejects passenger — For nonpayment of fare —Liability of railroad — Effect of explanation by passenger —Evidence—Agency—Question of damages.

    1. A passenger on a street railway, who has paid fare and is entitled to ride over another line belonging to the same company, and who, having asked for a transfer ticket over such other line, is given, by mistake of the conductor, a transfer which is not good over such other line, may nevertheless,, if he has exercised such care about the receiving and making use of the transfer ticket as persons of ordinary prudence are accustomed to exercise under the same or similar circumstances, lawfully insist upon being carried over such other line without further payment of fare; and if such passenger, without fault on his part, is ejected from a car for refusing to pay fare other than by such transfer ticket, he may recover damages for the tort and cannot be restricted to damages for breach of the contract to carry him.
    2. A failure by the plaintiff to make a statement or explanation before he was put off the car, would not of itself defeat his right to recover; but such fact is admissible in evidence as part of the res gestáe as bearing upon the question of the plaintiff’s good faith in accepting and using the erroneous transfer and as affecting the amount of damages.
    (No. 9162
    Decided May 22, 1906.)
    Error to tbe Circuit Court of Cuyahoga couuty.
    The case is stated in the opinion.

      Messrs. Squire, Sanders & Dempsey, fox* plaintiff in error,
    cited and commented upon the following authorities:

      Railroad Co. v. Gants, 38 Kan., 608; Railroad Co. v. Skillman, 39 Ohio St., 444; Shelton v. Railway Co., 29 Ohio St., 214; Pennsylvania Co. v. Hine, 41 Ohio St., 276; Dixon v. Railway Co., 179 Mass., 242; Townsend v. Railway Co., 56 N. Y., 295; Frederick v. Railway Co., 37 Mich., 342; Railway Co. v. Pierce, 47 Mich., 277; Thomas v. Railway Co., 72 Mich., 355; Keen v. Railway Co., 123 Mich., 247; Brown v. Railway Co., 130 Mich., 483; Railway Co. v. Griffin, 68 Ill., 499; Pullman Palace Car Co. v. Reed, 75 Ill., 125; Railway Co. v. Connell, 112 Ill., 295; Kiley v. Railway Co., 189 Ill., 384; McKay v. Railway Co., 34 W. Va., 65; Yorton v. Railway Co., 54 Wis., 234; Peabody v. Oregon Railway & Navigation Co., 12 L. R. A. (Ore.), 823; Railway Co. v. Reynolds, 55 Ohio St., 370; Bradshaw v. Railroad Co., 135 Mass., 407; Murdock v. Railroad Co., 137 Mass., 293.

      Messrs. Smith, Beardsley & Morgan, for defendant in error,
    cited and commented upon the following authorities:

      Railway Co. v. Reynolds, 55 Ohio St., 376; Fetter on Car., sec. 317; Nellis on Street Railways, 440; Smith v. Johnson, 16 Dec., 43; 3 N. P. (N. S.), 8; Railway Co. v. Lohe, 27 O. C. C., 138; Smith v. Railway Co., 23 Ohio St., 10; Railroad Co. v. Slusser, 19 Ohio St., 157; Railroad Co. v. Dunn, 19 Ohio St., 162; Lucas v. Railroad Co., 98 Mich., 1; Hamilton v. Railroad Co., 53 N. Y., 23; Kiley v. Railway Co., 189 Ill., 384; Railroad Co. v. Stallman, 22 Ohio St., 1; Baldwin v. The President, Directors, etc., 1 Ohio St., 141; Jones v. Bangs, 40 Ohio St., 139; Insurance Co. v. Reed, 33 Ohio St., 83; Railroad Co. v. Wetmore, 19 Ohio St., 111; Railway Co. v. Krause, 30 Ohio St., 222; Townsend v. Railroad Co., 56 N. Y., 295; Hufford v. Railroad Co., 64 Mich., 634; McKay v. Railroad, 34 W. Va., 65; Yorton v. Railway Co., 54 Wis., 234; Railway Co. v. Barnett, 34 S. W. Rep., 449; Railroad Co. v. Rogers, 28 Ind., 1; Lawshe v. Tacoma Ry. & P. Co., 29 Wash., 681; Memphis St. Ry. Co. v. Graves, 1 St. Ry. Rep., 760; Eddy v. Syracuse R. T. Co., 50 App. Div. (N. Y.), 109; Muckle v. Railway Co., 79 Hun, 32; Ray v. Cortland & H. T. Co., 19 App. Div. (N. Y.), 530; Jenkins v. Railway Co., 29 App. Div. (N. Y.), 8; Hayter v. Brunswick T. Co., 49 Atl. Rep., 714; Carr v. Toledo T. Co., 10 C. D., 296; 19 C. C. R., 281; Vining v. Detroit, Y. & A. A. Ry. Co., 80 N. W. Rep., 1080.; Rouser v. North Park St. Ry. Co., 97 Mich., 565; Laird v. Pitts. T. Co., 166 Pa. St., 4; Vicksburgh, etc., v. Marlett, 29 So. Rep., 62; Perine v. North Jersey, etc., 1 St. Ry. Rep., 525; O’Rourke v. Citizens, etc., 103 Tenn., 124; Jacobs v. Third Ave., etc., 71 App. Div. (N. Y.), 199; Indianapolis St. Ry. Co. v. Wilson, 66 N. E. Rep., 950; The St. Louis, etc. v. Mackie, 71 Tex., 491; Erie Ry. Co. v. Winter, 143 U. S., 70; Murdock v. Railway Co., 137 Mass., 293; Ellsworth v. Railway Co., 95 Ia., 98; Railway v. Olds, 77 Ga., 673; Cherry v. Kansas City, etc., 22 Mo. App., 499; Railway Co. v. Cates, 14 Ind. App., 172; Callaway v. Mellett, 15 Ind. App., 366; Watkins v. Railway Co., 21 D. C., 1; Gulf C. & S. Ry. Co. v. Barnett, 34 S. W. Rep., 449; Railway Co. v. Pauson, 70 Fed., 585.
   Davis, J.

The defendant in error was a passenger on a Franklin avenue street car, which belonged to the plaintiff in error. Just before arriving at the corner of Pearl and Detroit streets he asked the conductor for a transfer to the St Clair street line, also owned by plaintiff in error, and received the same just as he was leaving the Franklin avenue car at the corner of Pearl and Detroit streets. It was 7:30 o ’clock in the evening in the month of December, 1900. By mistake the conductor gave to the defendant in error a transfer to the Woodland avenue line, also owned by plaintiff in error, instead of a transfer to the St. Clair street line. The defendant in error got on the St. Clair street car at the corner of Pearl and Detroit streets, as he had intended, and he claims that he did not know of the mistake in the transfer until the conductor on the St. Clair street car refused to accept the transfer and demanded payment of the fare, which the defendant in error refused to make. He was forcibly ejected from the car and brought this action to recover damages for the refusal to carry him and for ejecting him. Upon the trial of the case in the court of common pleas, the jury was instructed that if it should be found that the defendant did exercise the care in giving the transfer that it should have exercised under all the circumstances, and that the plaintiff did exercise the care that he should have exercised in receiving the transfer, and that the defendant had not been wrong in any other respect, then the verdict should be for five cents and no more; because, as was said to the jury, the only damage done to a passenger by giving him an improper transfer is to compel him to pay five cents for his subsequent transit and therefore that is the measure of his damage. The jury ■were also specifically instructed that when the attention of this passenger was called to the fact that the transfer did not entitle him to ride on the St. Clair street line, it was his duty to pay, for his transit ; and that if he refused to pay, the company had a right to remove him from the car, using no more force than was necessary. The verdict was for the defendant company. Judgment was entered upon the verdict, which judgment was reversed by the circuit court for errors in charging the jury and in refusing to charge as requested bys plaintiff. This proceeding in error is prosecuted to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.

It appears to have been the opinion of the court of common pleas that, because the conductor on the St. Clair street line was strictly within the line of his duty as between him and his employer, therefore the plaintiff has no cause of action against the employer for putting him off the car. The premise is palpably correct; and the conclusion is just as clearly incorrect.

This is not a controversy between the master and the servant; nor between the passenger and the conductor; nor yet between the carrier and the passenger solely in regard to the act of the carrier’s servants in ejecting the passenger from the car; but it is an action against the carrier for the wrongful and negligent act of giving the transfer, as the proximate cause of the resulting injury, which was the refusal to carry the plaintiff as he had the right to be carried and putting him off the car. Since the complaint is against the company itself, it can avail the defendant nothing to show that one of 'its servants obeyed a reasonable rule of the defendant in putting the plaintiff off of the defendant’s car, when the defendant itself, through the agency of another servant, created the conditions which caused him to be put off. Qui facit per alium, facit per se. It is as though a single individual had first agreed to carry the plaintiff by the St. Clair street line and by mistake had given a ticket over the Woodland avenue line, and then, when he came to take up the ticket, taking advantage of his own mistake or wrong, refused to honor it and forcibly ejected the plaintiff. The defendant, plaintiff in error here, is the actor throughout this transaction; although it acted through different agencies in giving and refusing to accept the transfer, and ejecting the plaintiff. It is therefore not sound reasoning to argue that this company is not liable in tort for refusal to carry the plaintiff and ejecting him from the car, upon the theory that the conductor, who removed the passenger from the car under a rule of the company, is personally without blame in the matter. The common pleas court therefore erred when it instructed the jury that when the plaintiff was informed that the transfer did not entitle him to ride on that car, it was his duty to pay-fare and if he did not do so, the company had the right to remove him; and that if the company was guilty of no other wrong than giving the wrong transfer the plaintiff could recover five cents, the fare for one trip, and no more.

It would be unprofitable to review and discuss irreconcilable decisions in other jurisdictions. In every essential feature this case is controlled by the reasoning in P., C., C. & St. L. Ry. Co. v. Reynolds, 55 Ohio St., 370, which we see no reason to overrule or qualify.

It is conceded, however, that, in order to recover, the plaintiff must be without, fault in receiving and making use of the erroneous transfer; and the court of common pleas very properly instructed the jury in effect that the plaintiff in receiving, examining and using the transfer, must exercise such care as ordinarily prudent persons are accustomed to exercise concerning that matter under the same or similar circumstances. In Railway Co. v. Reynolds, supra, it .appeared in an agreed statement of facts that the plaintiff was without fault in getting on the wrong train; but in this case, in the absence of the evidence, we cannot even conjecture what the jury might have found upon the issue, if the court had not practically directed a verdict for the defendant upon the theory which we have considered.

There is a degree of insistence in the argument for the plaintiff in error, that the record discloses a failure on the part of the plaintiff below, to make a statement or explanation of the facts to the conductor of the St. Clair street car; and that the plaintiff was thereby precluded from the right to recover. The bill of exceptions does not bring before us the evidence which was adduced on the trial; and for that reason we cannot determine whether the defendant in error, plaintiff below, did or did not make such a statement. Whether or not the making of such a statement is a necessary ingredient of the plaintiff’s right to recover for the tort, or whether or not the failure to make such a statement would constitute a complete defense to the action, are questions which are not without difficulty; but with the best consideration which we have been able to give the subject, we have not discovered any substantial reason, nor has any been stated to us, for adopting the affirmative proposition involved in either question. We can conceive, however, that a failure by the passenger to explain how he came into possession of the transfer and that he was without fault in getting on the car without a proper transfer, might under some circumstances, very much mitigate the damages; and we can conceive a condition of facts under which the making of such an explanation by the passenger would even tend to enhance the damages. That is as far as we feel inclined to go; and therefore the ■ failure to make such a statement or explanation, if there was any such failure, would not of itself justify a reversal of this judgment. The judgment is

Affirmed.

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


author: Spear, J.

text:
    Uihlein et al. v. Gladieux.

      Bill of particulars before justice of peace — Stating that first name of defendant is unknown — Is allegation that real name is unknown — Sections 5118 and 6415, Revised Statutes — Question of proper service — Leaving summons at usual place of residence — Gives no jurisdiction, when — Justice’s record must affirmatively show fact, when — Question of continuance “by agreement" — Transcript of judgment filed in office of clerk of common pleas — Does nor constitute lien, when.

    1. A statement In a bill of particulars filed by tbe plaintiff in a suit before a justice of the peace that the first name of one of the defendants is unknown, is in effect an allegation that the real name is unknown.

      2. In such ease it is, by section 5118, Revised Statutes, made the duty of the plaintiff to allege that he could not discover the true name of such defendant, and the service must be made by serving a copy of the summons containing the words “real name unknown” upon such defendant personally. If the return of the summons shows that it was served only by leaving copy “at the defendants’ usual place of residence, they being absent,” no jurisdiction by reason of such service is acquired over the defendant whose name is unknown.
    3. The record of a justice of the peace must affirmatively show facts which give the justice jurisdiction over the person of a defendant, and where, in the case stated, the suit is brought against two parties, and the record shows that the case was continued “by agreement,” such entry does not import that both parties were present assenting to such continuance, and the defect in the manner of service is not cured so as to give the justice jurisdiction of the party not personally served.
    4. An action brought before a justice of the peace against Wm. Rogers, and Mrs. Wm. Rogers whose first name is unknown, is, as to the latter, an action against one whose real name is unknown, and brings the case within the purview of sections 6475, and of 5118, Revised Statutes, requiring personal service.
    5. A transcript of the judgment rendered in such action against Mrs. Wm. Rogers, whose first name is unknown, filed in the office of the clerk of the court of common pleas of the county wherein such judgment was rendered, does not constitute such judgment a lien on the lands of Lucy Rogers, although she may in fact be Mrs. Wm. Rogers.
    (No. 9495
    Decided May 22, 1906.)
    Error to the Circuit Court of Lucas county.
    George Gladieux (defendant in error) commenced an action in the common pleas of Lucas against August Uihlein and The Joseph Schlitz Brewing Company, seeking to enforce an alleged lien against lot 577 in the Birmingham Addition to the City of Toledo, by reason of an alleged judgment rendered by a justice of the peace in favor of Gladieux against one Lucy Rogers. It was averred that judgment was rendered against the defendant Lucy Rogers under the name by which she was usually known in the community, to-wit:Mrs. Wm. Rogers, July 2, 1896, for $150.25 and costs; that a transcript of such judgment was, on October 6, 1896, filed with the clerk of the court of common pleas of Lucas county, and on December 24, 1897, execution was issued and thereupon levied upon the lot above described; that no part of the judgment has been paid; that the defendants claim interest in the real estate hostile and adverse to the rights of plaintiff therein, but that any rights of defendants therein are subject to the rights of plaintiff.
    The defendants by answer took issue with the averments of the petition, and further alleged in substance that on March 21, 1895, Lucy Rogers, being then the owner of said lot 577, mortgaged the same to The Peoples Savings, Loan & Building Company for $700.00 to secure a loan of money then made, which mortgage was then duly filed for record and recorded; that on December 2, 1896, being indebted to The Joseph Schlitz Brewing Company in the sum of $900.00, upon a note then executed and delivered for money loaned, she mortgaged the lot to that Company, which mortgage was on that date duly filed with the recorder, and duly recorded; that said Company had not then, nor for a long time afterwards, any knowledge or notice of any claimed lien of plaintiff; that in September, 1901, the Brewing Company brought action to foreclose; that such proceedings were had that November 23, 1902, the sheriff of Lucas county delivered to defendant August Uihlein a deed of said lot, he being the purchaser thereof; that at the sale he paid the sheriff $900.00, which sum was paid out by said officer in taxes and costs, $98.73; to the said Building Company $431.89, and the balance was credited on the claim of the said Brewing Company;- that the defendant Uihlein was, by order of court, subrogated to all the rights, liens and securities of said lienholders, but that he purchased for said Company, and had no interest in said lot except only the legal title. It was further alleged that defendants knew said Lucy Rogers by the name of Lucy Rogers and no other; that she bore that name and no other; that no transcript was filed in the. office of the clerk against the said Lucy Rogers; that the transcript which was filed was not entered on the execution docket, nor indexed in the index of the execution docket but was entered in the appearance docket and so indexed, and not otherwise, and that said judgment and transcript was ^against Mrs. "Win. Rogers and did not purport to be against Lucy Rogers.
    By reply the plaintiff took issue with all the allegations of the answer save as to the title and ownership of Lucy Rogers.
    Trial was had in the common pleas which resulted in a dismissal of the petition. Plaintiff appealed to the circuit court. That court on trial found for the plaintiff and established the lien of his judgment as against the mortgage of the Brewing Company and the title of Uihlein. That Company and Uihlein bring error:

      Messrs. Seney, Johnson S Seney, for plaintiffs in in error.
    Was the judgment of the justice of the peace attempted to be rendered against “Mrs. Wm. Rogers, whose first name is unknown,” valid or void?
      We contend that the judgment was void, because the justice was without jurisdiction as to such defendant. This court has decided what is also well established as elementary law, that the jurisdiction of the justice of the peace must appear and be shown by his record. Robbins v. Clemmens, 41 Ohio St., 285; Edmiston v. Edmiston, 2 Ohio St., 251; Jones v. Railroad, 10 Circ. Dec., 789; 20 C. C. R., 63.
    Section 594, Revised Statutes, provides as to what the civil docket of a justice of the peace must contain.
    The transcript does not show that the defendant “Mrs. Wm. Rogers, first name unknown,” appeared in court. It distinctly shows that she was not present when judgment was entered.
    When the name of a party is unknown, provision is made by statute as to what the summons shall contain and as to how the same shall be served. Swan’s Treatise (19 ed.), pages 55 and 56.
    The provisions of the statute appear to have been entirely ignored in the proceedings before the justice of the peace.- The return of the summons affirmatively shows that the writ was not served personally. The allegation in the bill of particulars and the finding of the justice conclusively establish the fact that the name of the person sought to be charged, was unknown. Jurisdiction to render a judgment against the person of the unknown name, could be obtained only by summons issued and served pursuant to the statute. The judgment as rendered was against an alleged defendant, not by the true name, but expressly finding the name of this defendant to be unknown. The magistrate therefore acquired no jurisdiction to thus render judgment.

      The name of an individual is the appellation or cognomen by which he is 'distinguished or designated among his fellows. See Century Dictionary definition of “name.”
    At common law the name of an individual consists presumptively of one Christian, baptismal, or given name and one family name, surname, or patronymic. 21 Am. & Eng. Ency. Law (2 ed.), p. 306, title “Name.”.
    The statute requires that the title of the cause be set forth on the docket of the justice. See code provisions with respect to pleadings. Sections 594, 5056 and 4972, Revised Statutes.
    The summons issued by the justice of the peace was not such as to confer jurisdiction, because it did not contain either the name of the defendant or a description. Section 6475, Revised Statutes.
    The transcript shows that the name of one of the defendants was unknown. The transcript also shows that this defendant was not sued by a fictitious name, but merely by an abbreviation of a fictitious name. The judgment against the defendant of unknown name gives neither fictitious names nor description. The name, therefore, could not have been upon the summons.
    The judgment asserted by the defendant in error is not aided by the fact that the title “Mrs.” is added to designate the defendant sought to be named and charged. In the first place the title is affirmatively alleged not to be her name. Again, the term is not a name, but a title or character. Am. & Eng. Ency. Law (2 ed.), title “Mrs.;” sec. 5188, Rev. Stat.
    The claim, therefore, that these terms were used as description, would itself defeat the jurisdiction and avoid the judgment because the record affirmatively shows that the defendant of unknown name was not personally served but was absent when the summons was left at the residence. The direct provision of the statute re-enforces and gives construction to the other sections of the code and confirms the common law rule requiring a complete name. Section 5010, Revised Statutes; Elberson v. Richards, 42 N. J. Law, 69; Enewold v. Olsen, 39 Neb., 59.
    The transcript in the case of Gladieux v. Rogers, even if the judgment was valid, did not confer a lieu in favor of Grladieux upon the property of Lucy Rogers.

    This is so for several reasons. The records and entries required by law to constitute a judgment lien were not made; a judgment against one denominated “Mrs. Vm. Rogers, whose first name is unknown,” can not in law constitute a lien upon real estate of Lucy Rogers, and a judgment against “Mrs. ¥m. Rogers,” whose first name is unknown, can not by parol be varied and the party identified by éxtraneous evidence with Lucy Rogers and a lien be thereby established. The requisite legal steps to constitute the judgment a lien upon land were not taken. Sections 5377 and 5378, Revised Statutes.
    It appears thus that a party seeking a lien in behalf of a justice judgment, must (1) file in the office of the clerk of the common pleas court, a transcript; (2) the clerk must then enter the case on the execution do diet, together with a. statement of the amount of the judgment and time of filing of transcript. This done, the judgment constitutes a lien. The clerk of the common pleas court is required by law to keep certain books. Sections 4957, 4958, 5339 and 5423, Revised Statutes.
    Section 4958 prescribes tbe entries which may be made by the clerk on the appearance docket. An unauthorized entry upon the appearance docket is a nullity and notice to no one. This was substantially held by this court in Miller v. Railway Co., 60 Ohio St., 374, where an unauthorized entry was held to be notice to no one.
    The first objection was to evidence to the effect that Lucy Rogers was the same as Mrs. Wm. Rogers.
    The record by which a lien is claimed must, as we contend, be such of itself as to inform the world as to the identity of the parties. The court allowed the plaintiff to show by evidence outside the record, that Lucy Rogers was as well known by the name of Mrs. Wm. Rogers. To do this, the court assumed of course that “Wm.,” which the record showed, was “William,” as shown by the evidence. The purpose of this proof was to establish the allegation of the petition of a judgment against Lucy Rogers and thus by parol complete the lien which was claimed.
    Evidence for that purpose can not be received and considered. Godfred v. Godfred, 30 Ohio St., 53.
    Proof of a judgment against Mrs. Wm. Rogers, even if she be Lucy Rogers, can not support a lien on land of Lucy Rogers.
    There is no lien, because section 5377, Revised Statutes, as heretofore shown, requires that the names of the parties be entered upon the execution docket, and only such judgments as are thus entered, obtain a lien. Section 5378, Revised Statutes.

      Without the given and the surname, our records become an impenetrable maze. Bank v. Wallace, 45 Ohio St., 152; Johnson v. Hess, 126 Ind., 298; Pomeroy on Equity Jurisprudence, 311.

      Messrs. Rhoades S Rhoades, ■ for defendant in error.'
    The judgment rendered by the justice against Mrs. Wm. Rogers was and is a valid judgment.
    She entered her appearance in the cause, and failing to object to any misnomer or irregularity in the service thereby waived any and all such irregularities. Mrs. Rogers was properly sued by the name Mrs. Wm. Rogers.
    'Mrs. Rogers was properly served with summons under the provisions of section 5118, Revised Statutes, providing for service upon parties whose names are unknown.
    As to the matter of “agreement” and “continuance” see Vol. 2, Am. & Eng. Ency Law (2 ed.); secs. 6534, 6535 and 6536, Rev. Stat.; Swan’s Treatise (20 ed.), 95; Dunlap v. Robinson, Admr., 12 Ohio St., 530.
    Moreover, if we assume that Mrs. Rogers did not consent to the continuance (which we are not warranted in assuming), then the justice lost jurisdiction as to her and must have proceeded to render a judgment against her, knowing that he had no jurisdiction to do so.
    Unless Mrs. Rogers consented to these continuances then the justice twice made false entries on his docket and in addition thereto proceeded to render judgment against her in defiance of the known law of the state that he had lost jurisdiction by an unauthorized continuance.

      The jurisdiction of the justice must appear from his record and from the transcript; but there is no law that would raise a presumption that the justice made false entries and that would presume the judgment to be void.
    A continuance by agreement is tantamount to a general appearance. 2 Ency. Pleading and Practice, pp. 633 and 634,-and cases there cited.
    Having appeared in the action, any irregularity in the service or misnomer is waived because she did not object thereto in that action. 2 Ency. Pl. & Prac., pp. 646-647; State ex rel. v. Telephone Co., 35 Ohio St., 296; 11 Ency. Pl. & Prac., p. 954; 14 Ency. Pl. & Prac., p. 298; Lindsey v. Delano, 78 Ia., 352; Freeman on Judgments, sec. 154; Bank v. Jaggers, 31 Md., 38; Bloomfield Ry. Co. v. Burress, 82 Ind., 83; Lafayette Ins. Co. v. French, 18 How., 404.
    Lucy Rogers was properly sued as “Mrs. Wm. Rogers” and the judgment rendered against her in that action was and is a valid judgment. A name is simply a means of identification, and it is proper to sue a party by the name in which he or she is usually known in the community. It is the person that is sued and not the name.

    It is found as a fact in this action that Lucy Rogers was equally well known by the name of Mrs. William Rogers. 14 Ency. Pl. & Prac., 278; Parry v. Woodson, 33 Mo., 347; Bell v. State, 25 Tex., 574.
    The name is simply used to designate the person, and when it does so it is sufficient. Carroll v. State, 73 N. W. Rep., 939; Peterson v. Little, 74 Ia., 223; Hibernia Ins. Co. v. O’Connor, 29 Mich., 242; Lintan v. Bank, 10 Fed., 894; Lindsey v. Delano, 78 Ia., 350; Bank v. Jaggers, 31 Md., 38; Railway Co. v.
      Burress, 82 Ind., 83; Clark v. Clark, 19 Kan., 522-525; Cooper v. Burr, 45 Barb., 9; Gillespie v. Rogers, 146 Mass., 610; Insurance Co. v. Lee, 19 S. W. Rep., 1030; Donaldson v. Donaldson, 1 Dec., 289; 31 W. L. B., 102; Goodenow v. Tappan, 1 Ohio, 61.
    His point is not well taken. True, some cases do hold that initials are not a name — plaintiff in error has been able to cite two such cases.
    But Wm. is not an initial — it is a well-known and exceedingly common contraction of the name “William,” and courts take notice of such common and ordinary abbreviations of the Christian names. 21 Am. & Eng. Ency. Law (2 ed.), p. 309. Among the large number of cases there cited are the following few: Arch as abbreviation for Archibald, in Rupert v. Penner, 35 Neb., 587; Barna and Barney for Barnabas, in McGregor v. Balch, 17 Vt., 562; Dan for Daniel, in Sparks v. Sparks, 51 Kan., 195; Eliza for Elizabeth, in Goodell v. Hall, 112 Ga., 436; Hen. for Henry, in People v. Ferguson, 8 Cow., 106; Jas. for James, in People v. Tisdale, 1 Dougl., 59.
    Moreover in this state a party to an action may be designated by initials, independent of any statute on the subject. Smith v. State, 8 Ohio, 295.
    In other words, such a judgment is not void, as plaintiff in error contends. Lasure v. State, 19 Ohio St., 43; State v. Miller, 7 Circ. Dec., 552; 13 C. C. R., 67; Miller v. State, 55 Ohio St., 685.
    Even conceding, for the sake of argument merely, that “Mrs. Wm. Rogers” was not her name; still she was properly served within the meaning of section 5118, Revised Statutes, quoted by plaintiff in error. “Mrs. Wm. Rogers” Vas certainly a description of the defendant, and she was personally served within the meaning of section 5118.

      Broadly speaking the code provides two methods of service, (1) that by which the defendant receives actual personal notice of the proceeding against him; and (2) that by which he is constructively served, i. e., is presumed to have notice of the proceeding against him.
    We contend that the personal service required by section 5118 means actual service as distinguished from constructive — not personal service as distinguished from service by leaving a copy at the usual place of residence. This construction fully accomplishes the purpose of the act and a similar statute of the state of Indiana has been so construed. Dunkle v. Elston, 71 Ind., 585; Nysewander v. Lauman, 124 Ind., 585.
    The jurisdiction of the justice of the peace both as to subject matter and to the parties is shown, and the judgment cannot be collaterally attacked in this action by any party hereto. Paine v. Mooreland, 15 Ohio, 435; Gaw v. Glassboro N. G. Co., 11 Circ. Dec., 32; 20 C. C. R., 416.
    Transcript of the judgment having been filed, this judgment became, and still is, a valid lien upon said lot. It is true that judgment liens are created by statute, and their extent and duration are such as the statute prescribes. It is equally true that only the essential facts required by statute are necessary to render the judgment a lien. Pierce, Jr. v. Wimberly, 78 Tex., 187; Gin Co. v. Oliver, 78 Tex., 182; secs. 4957, 4958 and 5423, Rev. Stat.
    The book kept by the clerk contained all that the law required of an appearance docket and of an execution docket. Section 4948, Revised Statutes, above quoted, says that section 4957, Revised Statutes, shall be liberally construed to promote justice.

      Thé lien of the judgment is not dependent upon any entry upon the docket or any indexing, but became complete upon the filing of the transcript. That this is unquestionably true appears from— (1) The Ohio statutes and the decisions upon the subject; (2) Analogous provisions relating to the filing, recording, and indexing of deeds and mortgages.
    (1) Ohio statutes and the decisions upon the subject. The Ohio statutes relating to the filing of transcripts for lien and the lien secured thereby are sections 5377, 5378 and 5379, Revised Statutes. Green v. Garrington, 16 Ohio St., 548; McComb v. Thompson, 42 Ohio St., 139; Hesse v. Mann, 40 Wis., 560.
    We submit that this is the law unless the statute expressly requires that the instrument be recorded before the lien attaches, as was the case with the Ohio statute as to deeds, etc., when the case of Jennings v. Wood, 20 Ohio, 261, (which is quoted by plaintiff in error) was decided. Gillespie v. Rogers, 146 Mass., 610; Ouimet v. Sirois, 124 Mass., 162.
    This question as to the' lien acquired by filing, independent of any subsequent act of the officer with whom filed, is very lucidly set forth in Jones on Chattel Mortgages (4 ed.), secs. 271 and 272. Tousley v. Tousley et al., 5 Ohio St., 78; Brown v. Kirkman, 1 Ohio St., 116; Smith v. Smith, 13 Ohio St., 523.
    Plaintiff in error had such notice of the judgment prior to paying out the money on its mortgage as to make it take subject thereto.
    (a) Constructive notice.

      It is a well-settled rule that where a purchaser has knowledge or information of facts which áre sufficient to put an ordinarily prudent man upon inquiry, and the inquiry, if followed with reasonable diligence would lead to the discovery of defects in the title or of equitable rights of, others affecting the property in question, the purchaser will be held chargeable with knowledge thereof, and will not be heard to say he did not actually know of them. 23 Am. & Eng. Ency. Law (2 ed.), p. 495; Pomeroy on Equity Jurisprudence, sec. 587. ■ ■
    Measured by this standard what notice had plaintiff in error of this judgment? ■ ■
    The records of the clerk’s office showed a judgment against “Wm. Rogers and Mrs. Wm. Rogers” in. favor of Gladieux, defendant in error herein.
    It was taking a mortgage on the land owned by Lucy Rogers. It knew that her husband’s name was William Rogers. It knew that Gladieux had a claim against Mrs. Rogers for drilling a well on this very property, and it was notified by the record of a judgment in favor of Gladieux and against “Mrs. Wm. Rogers.”
    Beyond all question it had sufficient information to put any reasonable person, or even a corporation, upon inquiry, and the very slightest inquiry would have disclosed all the facts. Jenny v. Zehnder, 101 Pa. St., 286; Green v. Meyers, 72 S. W. Rep., 128; Hibberd v. Smith, 50 Cal., 511; Mack v. Schlotman, 7 Dec. Re., 737; 3 W. L. B., 737.
    •(b) Actual notice and knowledge.
    Thus it will be seen that after the payment of $115.00 the Brewing Company had actual knowledge of the filing of this transcript and of the whole. proceedings. 23 Am. & Eng. Ency. Law (2 ed.), 520; York Bank’s Appeal, 36 Pa. St., 458; Cushing v. Edwards et al., 68 Ia., 145; Hamilton v. Whitney, 19 Neb., 303; Gillespie v. Rogers, 146 Mass., 610; Bank v. Wallace, 45 Ohio St., 152.
   Spear, J.

In its findings the circuit court found that the allegations of the petition respecting the suit and judgment before the justice and the filing of a transcript thereof with the clerk of the common pleas court, and the issue and levy of the execution on lot 577, were substantially true as stated. Also that the allegations of the answer respecting the origin, character and amount of the debt of Lucy Rogers to the Building Company, and the origin, character and amount of the debt of Lucy Rogers to the Brewing Company, and with respect to the notes and mortgages given the respective companies, and the filing and recording of said mortgages, and also with respect to the-proceedings in foreclosure brought by the Brewing Company, and the disposition of the money arising from the sale of lot 577, were also true. Also that Gladieux (defendant in error) was not a party to the above described foreclosure suit. It was further found, as shown by the transcript of the justice’s' docket, that the bill of particulars was filed June 15, 1896, summons returnable June 18, 9 a. m. ; that the parties defendant were described in the bill as “Wm. Rogers and Mrs. Win. Rogers, whose first name is unknown;” that the summons was returned June 16, showing service on the defendants by copy left at usual place of residence; they being absent, that June 18 at 9 a. m. the cause was continued to June 25, at 9 a. m. “by agreement;” that June 25, 9 a. m. the cause was continued to July 2d, 9 a. m. “by agreement;” that July 2d, 9 a. m. the plaintiff and defendant, Wm. Rogers, appeared, and Wm. Rogers then confessed that he was .indebted to plaintiff in the sum claimed and asked that judgment be entered against him, but the defendant, Mrs. Wm. Rogers, whose first name is unknown, did not appear, nor for one hour thereafter; trial was then had. George Gladieux was sworn and examined on plaintiff’s behalf, .and upon consideration the justice found for the plaintiff, and rendered this judgment, viz.: “It is thereupon considered by me this second day of July, 1896, that the plaintiff have and recover of the defendant, Mrs. Wm. Rogers, whose first name is unknown, the sum of $150.25 and costs herein taxed at $5.60. ’ ’

It is apparent from these findings that the initial question to be determined is with respect to the legal validity of this judgment as a judgment against Lucy Rogers. Coming to the direct question, did the justice of the peace acquire jurisdiction over Lucy Rogers? She was sued as Mrs. Wm. Rogers whose first name is unknown, and the judgment was rendered with the same designation. Was it her name in law? The meaning of the word, name, is given as the distinctive appellation by which a person or thing is designated or known; or, as better given by another lexicographer, that by which an individual person or thing is designated and distinguished from others. The law recognizes one Christian name or given name and one family surname. Bouvier’s Law Diet., 467; 21 Am. & Eng. Ency. Law, 306. At marriage the wife takes the husband’s surname, and, to distinguish her from the husband, is called Mrs. or Mistress, not as a name but as a mere title; but otherwise her name is not changed. This person’s real and legal name, therefore, was Mrs. Lucy Rogers, and not Mrs. Wm. Rogers. True, the allegation is that she was then usually known in the community as Mrs. Wm. Rogers, hut the hill of particulars, the docket entries and the judgment itself all show that her real name was unknown to the plaintiff in the action before the justice and to the justice himself, for, since the first name was part of the actual name, and since they did not know that first name while stating that she had a first name, they did not know her name. She was, therefore, in the class of defendants whose real name is unknown, being sued by a name which was in effect fictitious. What, then, follows from this situation? Section 6475, Revised Statutes, provides that the summons “must contain the name or names of a defendant or defendants, if known; if unknown a description of him or them, and command the officer * * * to summon the defendant or defendants to appear before the justice,” etc. The summons does not appear in the record, but it could not have contained ' the name of the defendant, Lucy Rogers, for that was not known, and the attempted description (Mrs. Wm. Rogers), is at most exceedingly meagre. But passing that, what sort of service was necessary? Section 5118, Revised Statutes, (made applicable to this case by force of section 6705) provides that “when the plaintiff is ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name and description, and when the true name is discovered the pleading or proceeding may be amended accordingly; and the plaintiff, in such case, must state, in the verification of his petition, that he could not discover the true name, and the summons must contain the words ‘real ■ name unknown,’ and a copy thereof must be served personally upon the defendant.” The constable’s return shows service of the summons by leaving copy “at the defendants’ usual place of residence, they being absent.” There was, therefore, as it seems to us, no service such as is required by statute upon the defendant against whom judgment was rendered and unless this defect was cured it is. fatal to the validity of the judgment.

But it is claimed by defendant in error that this fault, if fault it was, was cured by the appearance of the defendant. Does the record show that there was such appearance? It shows by the transcript that there were two continuances “by agreement.” It is shown, also, that the defendant Wm. Rogers appeared in person; no such entry is made as to Mrs. Wm. Rogers. We are asked to draw the inference that, because the cause was continued “by agreement” Mrs. Rogers must have been present in court. Perhaps this might reasonably follow in support of a judgment of a court of general jurisdiction, but a justice’s court is not "such a court. The facts upon which its jurisdiction depends must be shown affirmatively. Robbins v. Clemmens, 41 Ohio St., 285. What is required with respect to entries, in a justice’s docket is prescribed by section 594, Revised Statutes. Among other things it must show which of the parties, if either, appears at the trial; also must show every adjournment, stating on whose application, whether on oath or consent, and to what day. The transcript fails to show affirmatively that Mrs. Wm. Rogers, first name unknown, appeared at any time, and is entirely consistent with the supposition that of the defendants Wm. Rogers only appeared, and that he only was a party to the agreements to continue. She did not appear at the time of trial as the transcript affirmatively shows. We think the conclusion inevitable that the justice did not acquire jurisdiction of the person of Lucy Rogers, and if this be so the conclusion also follows that the judgment has no legal validity.

Attention is called to the finding of the circuit court to the effect that the Brewing Company learned of the claim of Grladieux, and of the filing of his transcript in the clerk’s office, at a time when only $115.00 of the $900.00 agreed to be loaned, had in fact been turned over to Lucy Rogers, and the claim is made that the Brewing Company should at most be protected to the extent only of said amount of $115.00. But the party at that time had taken its note and mortgage, the latter being filed and of record, and was obligated by its contract to complete the agreement, and it is not perceived how, in the absence of misrepresentation or fraud on the part of the borrower (and none appears), the Company could have avoided completing its contract. At all events it has a legal right to stand on its mortgage.

Another question is pressed by counsel for plaintiffs in error. The record shows that the clerk did not enter the transcript upon a docket known exclusively as the execution docket, but upon a docket which was a sort of combination of appearance -and execution. Section 5377, Revised Statutes, makes it the duty of the clerk, upon the filing of a transcript from a justice’s docket, to enter the case on the execution docket,' etc., with proper indexes, etc., and the proposition is that the clerk having failed to perform this duty no lien could be acquired. The question is of importance, but as its determination is not essential to a disposition of the present case, we express no opinion upon it.

The conclusion hereinbefore announced with respect to the effect of the proceeding before the justice finds support when we consider the purpose of our registry and recording laws. They are intended, among other things, to facilitate operations in real estate by affording to purchasers record evidence of titles and encumbrances. It is the duty, therefore, of one who desires to obtain a lien upon 'land to comply with reasonable fullness and accuracy with all the steps required of him by the statute, in order to afford notice of his claimed lien to all who may be interested in the property and themselves use reasonable diligence. This general subject is treated at some length in Bank v. Wallace, 45 Ohio St., 152, and in Coe v. Erb, 59 Ohio St., 259, and repetition is not needed here. In the case at bar it would have been entirely easy for the plaintiff before the justice to comply with the statute as to the real name of the party whose land he desired to subject to his claim, and as to service, and, having amended the bill by correcting the name, thus making proper parties, and then obtain judgment accordingly. It was not reasonable to expect that the judgment against Mrs. Wm. Rogers, even if it had been lawfully rendered, would be supposed by an abstractor of titles to create a lien upon the real estate of Lucy Rogers.

The judgment of the circuit court will be reversed and final judgment entered by this court for the in error. '

Reversed.

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


author: Summers, J.

text:
    Cooley et al. v. The State ex rel. Village of Bay.

      Division of township — Section 1877, Revised Statutes — Township erected or boundary changed — New township 'not entitled to portion of original township’s money, when.

    In case of the division of a township and the establishment of a new township, the new township, under section 1377, Revised Statutes, is entitled not only to its portion of the money in the treasury of the original township, at the time the nev township is established, but also to money thereafter in the treasury, to the extent the same was collected from the territory established into the new township.
    (No. 9435
    Decided May 22, 1906.)
    Error to the Circuit Court of Cuyahoga county.
    The village of Bay is and, in September, 1903, was a municipal corporation in Dover township, Cuyahoga county, and at that time, by ordinance of its council, petitioned the county commissioners to change the limits of the township so as to establish a new township out of a portion of it by the name of the township of Bay, with.its boundaries coterminous with those of the village.
    The township of Bay was so established by the commissioners on November 4, 1903.
    In May, 1903, the trustees of Dover township had made a levy of taxes on all of the taxable property in the then limits of Dover township.
    In March, 1904, the county treasurer paid over to the treasurer of Dover township the money received. on collection of the first half of said levy. Thereafter the relator demanded of the trustees and the treasurer of Dover township that they apportion the money so received to Dover township and the village of Bay in the proportions it had been collected from the taxable property in their respective limits, and, upon refusal, a petition in mandamus was filed in the court of common pleas to compel such apportionment, and also payment, by the treasurer of the township of Dover.
    An alternative writ of mandamus was allowed.. The defendants filed a general demurrer, which was overruled, and they not 'desiring to plead further, and no sufficient cause being shown to the contrary, the peremptory writ prayed for was allowed. On error the circuit court affirmed and error is prosecuted in this court.

      Messrs. Stage, Armstrong & Cannon, for plaintiffs in error,
    cited and commented upon the following authorities:
    Bouvier’s definition of “funds;” Black’s Law Dictionary definition of “funds;” Abbott’s Law Dictionary definition of “treasury;” Century Dictionary definition of “treasury;” 14 Am. & Eng. Ency. Law (2 ed.), 563; Davis v. Gelhaus, 44 Ohio St., 69; Fulton County v. Commissioners, 2 Ohio St., 508; Beach on Public Corporations, sec. 457; Reeves County v. Pecos County, 69 Tex., 177; Hampshire v. Franklin, 16 Mass., 86; Board of Education v. Board of Education, 3 Circ. Dec., 603; 6 C. C. R., 597; secs. 816, 1377, 1513, 1514, 1532, 1536-205 (sec. 45, Municipal Code), 2834b and 3946, Rev. Stat.

      Mr. William O. Mathews, for defendant in.error,
    cited and commented upon the following authorities:

      Miller v. Bradish, 69 Ia., 278; United States v. Greve, 65 Fed. Rep., 490; Marrow v. Marrow, 45 N. C., 148; Easton v. Easton, 29 N. Y., 98; In re Tatum, 70 N. Y. Supp., 635; Galveston, H. & S. A. Ry. Co. v. State, 77 Tex., 419; Lane v. Magdeburg,
      51 N. W. Rep., 562; Terrill v. Auchauer, 14 Ohio St., 87; Moore v. Given, 39 Ohio St., 661; Corwin v. Benham, 2 Ohio St., 43; McCormick v. Alexander, 2 Ohio, 74; Township v. Township, 47 Ia., 183; Webster’s Dictionary definition of “revise;” Vinsant v. Knox, 27 Ark, 272; 24 Am. & Eng. Ency. Law (2 ed.), 938; Attorney General v. Parsell, 100 Mich., 173; Cortesy v. Territory, 32 Pac. Rep., 505; Hamilton v. Rathbone, 175 U. S., 414; Commissioners of Fulton County v. Commissioners of Lucas County, 2 Ohio St., 508; Gilford v. Munsey, 68 N. H., 609; Ramsey v. Cox, 28 Ark, 368; Baldwin v. Howell, 45 N. J. Eq., 533; secs. 1377, 3946a, 7437, 7438 and 7439, Rev. Stat.
   Summers, J.

Section 3 of the municipal code (section 1536-3, Revised Statutes, Bates’ 5th edition) provides that when the corporate limits of a village become identical with those of a township all township officers, excepting justices of the peace and constables, shall be abolished and the duties thereof thereafter be performed by the officers of the village, and that all rights, interests or claims in favor of or against the township may be enforced by or against the corporation. If mandamus is the remedy appropriate to the relief sought in the present proceeding then it is properly instituted by the village and since it is not questioned it is not considered.

The question presented involves the interpretation of section 1377, Revised Statutes, which provides: “And in case of division * * * of any township, the funds in the treasury of such township shall be apportioned * * * to the new township * * * established, to the extent the same were collected from the territory * * established into a new township. ’ ’

The cash in the treasury on November 4, 1903, at the time the new township was established, was divided, and the village now claims its proportion of the cash now in the treasury from the December, 1903, collection of taxes, levied in May, 1903. The contention on the part of the village, briefly stated, is that the word “funds” does not mean money, merely cash, but all the existing means or resources of the township for the° payment of its debts and the carrying on of its government. That a levy can be made only yearly, that nearly a year will pass* after a levy before the money will be available and that thus nearly two years might pass after the establishment of the new township before it would be able to exercise its functions and that such a result could, not have been intended by the legislature. On ’the part of the township the contention is that the word * ‘ funds ’ ’ means money and, conceding that the legislature did not intend that the new township should wait two years before exercising its powers, that the new township, in the absence of statutory provision therefor, is entitled to no part of the property or resources of the old, and that if any such consequences follow it is a casus improvisus on the part of the legislature that cannot be cured by judicial interpretation, since the words of the statute clearly do not provide for a division of funds arising from taxes levied but not collected at the time the new township is established, and that this is made certain by reference to the statute as it read before the revision of the statutes in 1880, and finds support in the fact that section 3946a, Revised Statutes, relating to newly created school districts, provides for a division not only of money in the treasury but also of the levy or levies, and that in 97 Ohio Laws, 333, it is provided that when territory is transferred from one school district to another there shall be a proper division of funds in the treasury or in process of collection; and that at the last session of the legislature it was enacted by section 1565a, Revised Statutes, (98 O. L., 129), that a proper division shall be made of the funds for towhship purposes in the treasury or in process of collection.

The part of section 1377 under consideration was first enacted as section 2 of an act passed February 20, 1865 (62 O. L., 18), and read as follows: “The funds in any township treasury at the time of said division or partition shall be apportioned to the township to which the same may be attached in proportion to the amount thereof collected from such attached portion.”

If the word “funds” as used in section 2 means money, then perhaps the new township would not under its provisions be entitled to any of the money thereafter coming into the treasury, but assuming that it does mean money, and that the same meaning must be given to it in section 1377, it does not follow that the provision in section 1377 must receive the same interpretation as section 2. Section 2 in the revision of the statutes of 1880 was carried into that revision as the provision of section 1377 already quoted. The omission in the revision of the words “at the time of said division or partition” indicates an intentional change in the statute. Omitting them, the provision is, that the funds in the treasury of the township, to the extent the same were collected from the territory established into a new township, shall be apportioned to the new township.

Prom obvious considerations of convenience the means of collecting the funds into the treasury are not changed, but the funds in the treasury of the old township at any time after the establishment of the new township to the extent they were collected from the territory of the new aje to be apportioned to the new. The funds in the treasury are to be divided. They were not in the treasury until they were collected, and the past tense has reference to the existence of the fund and not to the time of the establishment of the new township. The meaning of the section is made apparent by the transposition of one clause, and may be read, “and in case of division * * * of any township, the funds in the treasury of such township to the extent the same were collected from the territory * * * established into a new township, shall be apportioned . * * * to the new township * * * established.”

The other sections referred to are not in pari materia, and the fact that in them provision is made for a division of the levy, or of money in process of collection, is not .persuasive that the absence of such provision in section 1377 necessarily indicates a different legislative intent, but only that some one has grown wise.

To rule that every amendment must be interpreted to add substance as well as light to a statute would discourage clarification for then it could be done only at the expense of what originally was intended. The judgment is

Affirmed.

Síiatjck, C. J., Price and Davis, JJ., concur.