author: By the Court :

text:
    State of Ohio ex rel. Hygea Medical College v. Coleman et al., as the Ohio State Board of Medical Registration and Examinations.

      Writ of mandamus — Will not issue to compel State Registration Medical Board— To recognize college as medical institution in good standing — Nor compel board to issue certificates to holders of diplomas.

    The writ of mandamus will not issue, on the relation of a medical college, to compel the State Board of Medical Registration and Examination to recognize the college as a medical institution in good standing, nor to compel the board to issue certificates to practice medicine in this state, to holders of diplomas from such college.
    (Decided March 26, 1901.)
    Mandamus.
    This action is brought to compel the State Board of Medical Registration and Examinations to recognize the relator as a “legally chartered medical institution in good standing,” and to issue to its graduates who may hereafter apply to the Board for that purpose, certificates authorizing them to engage in the practice of medicine in this state. The petition is as follows:
    “The plaintiff says: That the defendants constitute the Ohio State Board of Medical Registration and Examination, under the provisions of section 4403, Revised Statutes of Ohio, as amended February 27, 1896, 92 Ohio Laws, page 44.
    “1. Plaintiff further says that the relator was duly incorporated under the laws of the said state of Ohio, on the 4th day of October, 1893, as a medical college, at Cincinnati, Ohio, and thereafter at once fully perfected its organization, acquired property, and on the 6th day of November, 1893, its trustees filed in the office of the secretary of state of Ohio, a schedule of the kind and value of a part of its property in value over five thousand dollars ($5,000), which schedule was verified by the oaths of its trustees,- and thereupon said trustees appointed a .president, professors, tutors, and other agents and officers, as provided in section 3726, Revised Statutes of Ohio, which was then and is now, as follows:
    “Sec. 3726. ‘The trustees of a college, university, or other institution of learning incorporated for the purpose of promoting education, religion, morality, or the fine arts, which has acquired reál or personal property of the value of five thousand dollars, and which has filed in the office of the secretary of state a schedule of the kind and value of such property, verified by the oaths of the trustees, may appoint a president, professors, and tutors, and any other necessary agents and officers, and fix the compensation of each, and may enact such by-laws, not inconsistent with the laws of this state or of the United States, for the government of the institution, and for conducting the affairs of the corporation, as they may deem necessary ; and may, on the recommendation of the faculty, confer all such degrees and honors as are conferred by colleges and universities of the United States, and such others having reference to the course of study, and the accomplishments of the student as they may deem proper.’
    “That thereupon this relator became vested with the certain rights granted in said section, and has sought to enjoy the same ever since as it lawfully might. That among said vested rights is the right to carry on a medical college; and the right to grant diplomas to, and confer the degree of doctors of medicine upon its regular graduates; and the right to enter into various contracts necessary and proper for such purposes, which said relator has done. That said law of February 1896, 92 O. L., 44 [Sec. 4403c. Rev. Stat.], under which said board was organized required a graduate of medicine, or surgery, before practicing either, to present his diploma to said board Tor verification.’ That said law further provided ‘accompanying such diploma the applicant shall file his affidavit, duly attested, stating that the applicant is the person named in the diploma and is the lawful possessor of the same, and giving his age and the time spent in the study of medicine. If the board shall find the diploma to be genuine, and from a legally chartered medical institution in good standing, as determined by the board, and the person named therein be the person holding and presenting the same, the board shall issue its certificate to that effect, signed by its president and secretary.’ That the provision of said law ‘in good standing as determined by the board’ ‘gives to said board an unlimited power and discretion by adverse action to render totally useless and valueless the valuable franchises granted by the state to this relator, which impairs and destroys its vested rights aforesaid, imposes new and unreasonable burdens upon it, puts within the uncontrolled power of said board, without the right of appeal to this relator, its very existence, and is, therefore, in this particular in conflict with section 28, article 2 of the constitution of Ohio as being retroactive, and impairing the obligation of contracts; and in conflict with section 10, article 1 of the constitution of the United States, and also the fifth and fourteenth amendments thereto, as impairing the obligation of contracts and depriving the relator of its property without due process of law.
    “2. Plaintiff further says that said lav7 of February 27, 1896, recognized all schools of medicine then existing in this state, of which this relator was one, and provided for their proportionate representation on said board, but that this relator was ignored in the formation of said board, because of the unreasonable antagonism and prejudice against it, as a new school of medicine, by the older school followers, and graduates, who secured all the appointments thereon, as was arranged by them while the law was pending, and before its final passage. That this relator was organized, and has been conducted as, in effect, a new school of medicine, along progressive, modern, and logical lines of thought, involving in brief, the treatment of diseases by the use primarily of strictly hygienic measures, and discouraging and minimizing the use of drugs, especially those of a poisonous character, although fully teaching in the regular way their uses and abuses, and in this it was, and is, the only school of its kind in Ohio, and has received at the hands of other schools and their graduates and adherents, the usual unfair, one-sided, and sometimes malicious treatment accorded a new school, by those that are older, and established upon different lines of thought and practice. That the members of said board are adherents and graduates of other schools of medicine, and are not free from the prevailing prejudice existing among them against this relator as a new school, and that the president of said board has been especially hostile, illiberal, and arbitrary towards this relator, without cause therefor.

      “That the first session of this relator commenced on the 4th day of January, 1894, and that regular sessions have been held each year since up to the time of the first adverse action of said board hereinafter set forth, and since then in all classes having students in attendance. That in length of sessions, number of years for graduation, curriculum, equipment, entrance qualifications, final examinations, recommendation of faculty to graduate, and in all other essential matters connected with the conduct of a medical college, this relator has always conformed to the law, 'the practice of reputable medical colleges in Ohio, and the suggestions of the American Association of Medical Colleges of the United States. That its students have been fully and carefully prepared and instructed in all the branches of medical study, by able and competent professors and teachers, with facilities ample for that purpose, and have been given diplomas only when thoroughly qualified for the responsible duties of doctors of medicine, and that this relator is now, and since its first incorporation has been, ‘a legally chartered medical institution in good standing’ in this state.
    “That said board in 1896 adopted resolutions defining what medical colleges .must teach in order that they might be recognized by the board as fin good standing,’ and that this relator has at all times taught its students all and more than the terms of said resolutions expressed, and in every respect has not been deficient thereunder. That full information of the work and purposes of this relator have been from time to time furnished said board, and that nothing has been misrepresented or concealed. That since 1896 the faculty of the relator has been composed of reputable physicians, in-active practice, duly registered by said board, except as to a small minority thereof who resided in Kentucky and Indiana, who- were reputable, in full practice, and registered in their respective states. That the board of trustees of the relator are well known business men in Cincinnati, who have confidence from actual experience in the school of medicine adopted by the relator, as said defendants have been repeatedly informed. That said defendant board has never made a full, careful, and impartial investigation of this relator, has never by committee or otherwise attended any of its lectures, but has simply contended itself with a show of fairness to cover a tacitly predetermined adverse decision. That in the summer of 1896 said board examined under oath certain of the then faculty of this relator, whose testimony clearly affirmed its good character, and plainly described its policy .as a school. That at about the same time said board appointed a committee of Cincinnati physicians, not on said board, to examine and report upon the equipment of this relator, and that said committee did examine the same, and reported the relator as well equipped for a small college. That this plaintiff is informed and believes the members of the board at the same time, and at other times, did covertly and secretly, without notice to, or the knowledge of this relator, interview and examine other witnesses as to the character of this relator, who were prejudiced against it, thus depriving the relator of the opportunity to know and rebut the evidence against it. That after this hearing the board decided that this relator was not a 1 legally chartered medical institution in good standing,’ and so notified it, whereupon the relator requested said board to specify in what particulars it was deficient, which specifications the board declined to give. That said board has never given this relator a fair hearing with knowledge of what was claimed against it, nor an opportunity to hear, know, and rebut, evidence adverse to it, nor has said board ever advised the relator of its objections, and given an opportunity to fairly hear and overcome the same. That three (3) members of the board in 1896, being the president thereof and the two (2) members from Cincinnati were connected with and interested in competing medical colleges, and endeavored to prevent, and have prevented, physicians from accepting places on the faculty of the relator, and have discouraged and dis countenanced those already serving in that capacity, and that three (3) members of said board are a controlling number thereof, under the terms of said law making the concurrence of five (5J out of the seven (7) members thereof necessary for legal action.
    “That in July 1898 the relator filed an application with said board for a reversal of its previous action, and recognition of the relator as ‘ in good standing, ’ and at the same time four (4) of its five (5) graduates of 1898 filed in due form of law with said board applications for certificates to practice medicine, and pending these various applications the trustees and faculty of the relator presented to said board a statement in writing of its proper conduct in the past, and a pledge of its future adherence to reputable methods and work. That said board filed said application, and seeking to harass, vex, and delay, and thus destroy the relator, inspired a suit in quo warranto in this court No. 6199 against the relator, without probable cause, and with malice, to oust it from its franchises, which suit was promptly dismissed on hearing. That in July 1899, after a full year of unnecessary and vexatious delays, the relator meantime urging fair hearing and action, said applications were rejected on the sole ground that the board had found that the relator was not ‘a legally chartered medical institution in good standing,’ and again no specifications Avere furnished against the relator, nor any fair and impartial hearing had thereon, although often requested, and that in the various particulars aforesaid said board has acted in gross abuse of the discretion vested in it by the law of its creation.
    “That the turning down of this relator by said board Avas given by it to the public press, and heralded to the world, and resulted in crippling and practically destroying the business of the relator since 1896. That only five (5) persons have graduated and received diplomas since 1896, being those of 1898 aforesaid, and that others who had matriculated have dropped out by reason of the action of said board aforesaid, so that only two (2) of its many students now remain with the relator. That some years since 1896 have been entirely without a class, and the growing classes and patronage with which it was favored up to 1896, have been swept away by the adverse actions-of said board, to the damage of this relator in the sum of $25,000.00.
    “Wherefore plaintiff prays a writ of mandamus requiring said board to recognize the relator as a ‘legally chartered medical institution in good standing,’ and to issue its certificates to the holders of diplomas from this relator, who may apply to it in proper form of laAv, and that this relator may recover damages in the sum of $25,000.00, and costs.”
    The defendants have filed a general demurrer to the petition, upon which the cause is submitted to the court for final disposition.

      A. M. Warner, for plaintiff in error,
    cited the following authorities :

      State ex rel. v. Moore, 42 Ohio St., 103; Merrill on Mandamus, Secs. 40, 41.

      F. S. Monnett and R. E. Westfall, for defendant in error,
    cited the following authorities;

      State ex rel. v. Henderson, 38 Ohio St., 644; State v. Haben, 22 Wis., 660; Stoddard v. Benton, 6 Col., 508; Am. & Eng. Ency. of Law, Vol. 14, p. 19; Ency. Plead. & Prac., Vol. 13, p. 637; France v. State, 57 Ohio St., 1; Spelling on Extraordinary Relief, Vol. 2, paragraphs 1384, 1394, 1433, 1459, 1467, 1476, 1483, 1519, 1556 and 1577; Ohio Revised Statutes, Sec. 6742; Ex parte Black, 1 Ohio St., 30; State v. Governor, 5 Ohio St., 528; State v. Nash, 23 Ohio St., 568; Commissioners v. Commissioners, 24 Ohio St., 401; State v. Commissioners, 31 Ohio St., 211; Rutter v. State, 38 Ohio St., 496; State v. Crites, 48 Ohio St., 460; State v. Commissioners, 49 Ohio St., 301; State v. Gregory, 83 Mo., 123; State v. McGrath, 91 Mo., 386; People v. Dental Examiners, 110 Ill., 180; Ex parte Black, 1 Ohio St., 30; State v. Benton, 25 Neb., 834; Davis v. Connurs, 63 Me., 396; Vincent v. Bowes, 78 Mich., 315; 25 Me., 333; Moses on Mandamus, 19; High on Mandamus, 536; 7 East., 345; 12 Ill., 254; 9 Neb., 92; McKenzie v. Ruth, 22 Ohio St., 371; 15 Barb., 607; Kinkead Code Plead. Yol. 2, Sec. 800 (2nd Ed.); Black v. Auditor, 26 Ark., 237; People v. Chicago, 25 Ill., 483; Potts v. State, 75 Ind., 336.
   By the Court :

The two specific acts, performance of which the court is asked to require of the board of medical examinations^ are- (1) the recognition, by the board, of the relator as a legally chartered medical institution in good standing, and (2) the issuance of certificates to practice medicine to holders of diplomas from the relator, who may hereafter make application to the hoard for that purpose.

One of the grounds upon which this relief is sought is, that the provision of section 4403c, of the Revised Statutes, as amended February 27, 1896, (92 O. L.. 44-5), which confers on the state board the power to determine whether a diploma, presented for its action, is one issued by a legally chartered medical institution “in good standing,” and, if determined not to be so, to refuse to the holder of the diploma, a certificate to practice medicine, is in conflict with section 28 of article 2 of the constitution of this state, and of section 10 of article 1 of the federal constitution, being, it is claimed, retroactive in its operation, and in impairment of the obligation of contracts; and also in conflict with the fourteenth article of amendment to the federal constitution, in that it denies to parties due process of law7. It would seem to be a sufficient answrer to this ground of complaint that, if the statutory provision w7hich confers on the state board the power to determine whether a medical institution w7hose diploma is presented for its action, is of good stand, is repugnant to so many constitutional inhibitions, it w7ould be highly improper for the- court to compel the board to exercise that power by recognizing the relator as a medical institution of the character required by the statute.. How7ever, it was held in France v. State, 57 Ohio St., 1, that the statute was not .obnoxious to the constitutional provisions referred1 to.

The other ground on which the writ demanded'is sought is, briefly stated, that, the refusal of the medical board to recognize the relator as an institution of the réquired standard, is purely arbitrary and the result of prejudice because the system taught by it is new and different from that adopted by other medical colleges. This does not appear to be a sufficient ground for granting the writ at the relator’s instance. The proper scope of a proceeding in mandamus against an official board, is to command the performance of acts which the law has specifically enjoined upon it as a duty resulting from the office. Section 6741, Revised Statutes. Unless the duty is so enjoined, the remedy is inappropriate. A careful examination of the statutes fails to discover any provision authorizing an application to the board by a medical institution to obtain official recognition of its good standing, or any provision requiring of the board any official action in that behalf upon such an application. And such official action not being enjoined by statute, cannot be required by writ of mandamus. Nor, do we find any provision which makes it the duty of the board to determine in advance of an application for a certificate to practice medicine, whether a person holds a diploma from a medical institution of the proper standing. It is only when a diploma is presented upon such application, that the action of the board can be invoked. Whether, upon the refusal of the board to grant a certificate to an applicant, mandamus will lie on his relation, must depend upon the facts of each case. Such cases cannot be covered by a general order to grant certificates to the graduates of any particular college or institution, for, until an application is actually made, by one who then shows himself entitled to a certificate, the duty of the board to grant it does not arise. And then, for a refusal to perform that duty, the remedy belongs to the applicant, as the party directly interested, and not to the college on whose diploma the application was made, and whose interest is only remotely affected.

The statute, does not define what shall constitute a medical institution “in good standing.” Its .language is that, “if the board shall find the diploma to be genuine, and from a legally chartered medical institution in good standing, as determined by the board,” etc., thus leaving the standing of the institution whose diplpma is presented by an applicant, to be determined according to the best judgment of the board.

, It is unnecessary to inquire here whether there may be cases in which the courts would undertake to correct. or control the judgment of the board on this question. . It is clear that the' standing of a medical college within the meaning of the statute, is not to be.determined alone from the:course of study it has prescribed for graduation. The statute imports, at least, that the institution shall be one which has. established a favorable reputation among members of the medical profession; and the board should not be required to recognize one, that, from the brief period of its existence, or the novelty of its system of treatment has not yet acquired such reputation, but might, in the judgment of the board, be considered as still in an experimental state. The statute has undoubtedly left much in this respect to the sound discretion of. the members of the board, who, in passing upon the various applications presented to them, it must be assumed, will act as their official position requires, fairly, impartially, and justly to all. concerned. .

■Demurrer sustained and petition dismissed.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    The City of Toledo v. Buechell et al.
    “Interest” to Be excluded from amount of judgment under section 6710, Rev. Stat., defined.

    Under Section 6710, Eev. ■ Stat., as amended April 25, 1898, 93 Laws, 255, the “interest” that is to' he excluded from the ' amount of the judgment in ascertaining the jurisdiction of the court, is the interest that may have accrued on the judgment, and not that which may have been included in it at the time it was rendered.
    (Decided March 26, 1901.)
    Motion to dismiss for want of jurisdiqtion.
    The plaintiff below brought suit against the city of Toledo to recover the amount of certain alleged unlawful exactions made of him by the city, and Avhich he paid under duress. The amount claimed Avas $294.50, with interest thereon from January 1, 1897. A judgment was rendered in his favor for $332, which included the interest as claimed.. On error the judgment was affirmed by the circuit court; and error is prosecuted here for the reversal of the judgment in both courts. The motion is on the ground that the amount involved, exclusive of interest and costs, is less than $300.

      M. R. Brailey, city solictor, for plaintiff in error.

      Wertman & Raymond, for defendants in error.
   By the Court:

It will be observed that section 6710, Revised-Statutes, conferring appellate jurisdiction on this court, as amended April, 25,1898 (93 Laws, 255), with certain exceptions, limits its jurisdiction to the review of a judgment in which is involved a sum or value greater than $300, exclusive of interest and costs. This exclusion, however, as we construe the statute, relates to the interest that may have accrued on the judgment since, and not to any sum that may have been included in the judgment when rendered. Thu latter is merged in and becomes a part of the principal for which the judgment is rendered, and this amount determines the jurisdiction of the court. In this case the amount claimed on account of the alleged illegal exactions was $294.50, which, with interest to the time of the rendition of the judgment, amounted to $332, and for which judgment was rendered. The amount then involved in the judgment sought to be reviewed is greater than $300.

Motion overruled.

Shauck, Davis, Spear, Burket .and Williams, JJ., concur.


author: Shauck. J.

text:
    The Cleveland & Elyria Electric Railroad Company v. Hawkins.

      Instructions of trial judge to jury — Sections 5190 and 5201, Rev. Stat. — General or special verdict — Submission to jury of questions to test their finding and conclusion of fact — Trial proceedings.

    1. The seventh subdivision of section 5190 of the Revised Statutes requires the trial judge to give general instructions to the jury after the arguments of counsel are concluded.
    2. The purpose of section 5201 of the Revised Statutes is to elicit from the jury such special findings of fact as will test the correctness of the general verdict, if a general verdict is returned; and it requires the court, upon request, to direct answers to be returned to such questions, 'stated in writing, as will elicit from the jury a finding of any fact whose legal effect may be, when considered with other facts admitted or to be found, to show whether or not the general verdict results from an erroneous application of the law; but it does not require the submission to the jury of questions whose purpose is only to ascertain the mental processes by which the jury may arrive at conclusions of fact.
    (Decided April 16, 1901.)
    Error to the Circuit Court of Cuyahoga county.
    Miss Hawkins brought her action in the court of common pleas to recover of the company for personal injuries alleged to have been sustained by her while a passenger on one of its cars, the injuries resulting from the negligence of its servants. She alleged that she took passage on the car at Cleveland to go to her home, about five miles distant in the direction of Elyria; that she had frequently been a passenger on the company’s cars; that its servants had been accustomed to stop at a suitable and safe place in front of her residence to permit her to take or quit the car; that upon this occasion she gave timely notice of her desire to quit the car at the usual place, but that the motorman pegligently failed to stop the car until it had reached a point sixty feet beyond the usual stopping place where, owing to the presence of a ditch, it Aims unsafe for her to alight; that upon reaching the platform she hesitated to alight Avhen the conductor leaped to the ground and extended his arm toward her and she, relying upon his judgment and his ability to protect her from injury, stepped from the car resting her weight upon his arms, and that ■the conductor gave her no support or assistance, but negligently permitted her to fall to the ground and receive serious injury.
    The answer denied the negligence alleged against the company’s servants, and alleged that if the plaintiff sustained injury, it Avas entirely due to her-want of care. Upon the trial conflicting evidence Avas offered with respect to all the allegations of negligence. At the conclusion of the evidence the company’s counsel presented to the court numerous special instructions in writing with the request that they be given to the jury before argument. Some of the- instructions so requested were given in the general charge and others were refused. At the same time, before the argument, the. court of its own volition, and against the objection of the company’s counsel, gave to the jury its general instructions in the case.
    Before the argument was begun counsel for the company presented several questions of fact stated in Avriting and requested the court to instruct the jury, if it should return a general verdict, to find specially upon said questions and to direct a written finding thereon. These requests were all refused, and to each refusal there was an exception. Among said questions Avas the folloAving: “Was the place that the motorman selected for her to alight on the occasion of her injury a reasonably safe place for her to alight from that car with the assistance of the conductor?” In the court of common pleas there was a verdict for the plaintiff followed by a judgment and that judgment was affirmed by the circuit court.

      Wilcox, Gollister, Hogan & Parmley, for plaintiff in error. ,
    O. L. Neff and W. G. Rogers, for defendant in err - ror.
   Shauck. J.

It is said that in giving his general instructions to the jury before the argument against the objection of counsel for the plaintiff in error the trial judge erred. The reliance of counsel is upon the 7th subdivision of section 5190 of the Revised Statutes. The opposing view is that with respect to the time of giving general instructions, whether before or after the argument, the trial court, is vested with a discretion by the introductory provision of that sec-, tion. Since its amendment March 3, 1892 (89 O. L., 59), the section reads as following:

“When the jury is sworn the trial shall proceed, except, as provided in the next section, in the following order, unless the court for special reasons otherwise direct:
“1. The plaintiff must briefly state his claim, and may briefly state the evidence by which he expects to sustain it. . .
“2. The defendant must then briefly state his de-, fense, and may briefly state the evidence he expects to offer in support of it.
“3. The party who would be defeated if no evidence were offered on either side must first produce iiis evidence, and the adverse party must then produce his evidence.
“4. The parties shall then be confined to rebutting evidence, unless the court, for good reasons, in the furtherance of justice, permit them to offer evidence in their original case.
“5. When the. evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.
“6. The parties may then submit or argue the case before the jury; the party required first to produce his evidence shall have the opening and closing argument, and if several defendants, having separate defenses, appear by different counsel, the court shall arrange their relative order.
u7. The court, after the argument is concluded, shall, before proceeding with other business, charge the jury; any charge shall be reduced to writing by the court, if either party, before the argument to the jury is commenced, request it; * * * .”

Prior to the amendment of the 5th subdivision the section provided that: “When the evidence is concluded either party may request instructions to the jury on matters of law which shall be given or refused by the court.” It was then clearly competent for the court to give such requested instructions either before or after the argument, but to hold that such discretion remains would be to deny all effect to the amendment whose terms clearly require such requested instructions to be given before the argument, if that is desired by the party making the request. That the amendment foreclosed discretion in that respect was decided in the Village of Monroeville v. Root, 54 Ohio St., 523. By the amendment the giving of such requested instructions before the argument is required by the same imperative language which is employed in the 7th subdivision of the section to enjoin upon the court the duty of giving its general instructions after the argument is concluded. The 5th and 7th subdivisions of the section relate to the same general subject, the instructions to be given to the jury, and no reason appears why the same language should be regarded as mandatory in the former and directory in the latter.

Counsel for the defendant in error urge the view that while the section prescribes the mode of conducting trials generally, it is qualified by the phrase: “unless the court for special reasons otherwise direct.” This language is appropriate to confer upon the court authority to direct, for special reasons, the order of the statement of the claims of the parties, the introduction of the evidence and the arguments, because parties and their counsel are subject to the direction of the court. But the language is not appropriate to vest in the court a discretion with respect to its own conduct. A consideration of all the terms of the section leads to the conclusion that the requirement of the 7th subdivision, as well as that of the 5th, is imperative. Reasons for such a provision are not wanting. While the arguments which counsel address to juries relate to questions of fact they frequently proceed upon conflicting views of the rules of law applicable to the case, and there is obvious propriety in the requirement that their contentions shall be followed by an authoritative statement of the legal prineiples by which, the jury should be guided. The conflicting views of counsel cannot be anticipated by the court nor settled in a charge given before the argument.

It is further insisted that the trial judge disregarded the requirement of section 5201 of the Revised Statutes, in refusing to direct the jury to find specially upon questions of fact stated in writing and submitted with a request for such direction. The questions submitted were so numerous that it is not practicable to consider them separately. In determining the propriety of the rulings of the court upon these questions it is helpful to bear in mind that the proceedings were conducted in a court of law and not in a school of logic. The section of the statute relied on is as follows: “In all actions the jury, unless otherwise directed by the court, may, in its discretion, ■render either a general or a special verdict; but the court shall, at the request of either party, direct them to give a special verdict in writing upon all or any of the issues; and in all cases, when requested by either party, the court shall instruct the jurors, if they render a general verdict, to find specially upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon, and the verdict and finding must be filed with the cleric and entered on the journal.’’

The character of the questions which may be propounded is determined by the purpose for which they are authorized. Information touching that purpose may be derived from reliable sources. By the terms of the section the jury need not find specially upon such particular questions unless a general verdict is returned. The object of the association of these special findings with a general verdict is disclosed in the section following which provides: “When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.” In Morse v. Morse, 25 Ind., 156, decided in 1865, the character of the questions to be propounded under a like statute was considered, and the conclusion reached is in accordance with the provisions of the statute. It was again considered by the same court in Todd et al. v. Fenton et al., 66 Ind., 25. The purpose is to obtain findings upon all such particular questions of fact, and upon such only, as will test the correctness of the general verdict which such findings accompany. It is to provide means of- ascertaining whether in the general verdict the jury have erred in the application of the law to their conclusions of fact.' The court is accordingly required, if it be requested, to propound such questions as will elicit special findings upon questions of fact which are legally involved in and determined by the general verdict. This-will extend the inquiry to every fact which is of such legal import that, when considered in connection with other facts, admitted or to be found, it may show that the general verdict results from an.errpneous application of the law. But the statute does not contemplate that by means of such questions the jury may be quizzed respecting the mental processes by which they arrive at conclusions of fact. Its object is to enable the court to determine as a matter of law whether the general verdict is right in view of the jury’s conclusions upon questions of fact, not to aid the court in determining whether the verdict is contrary to the weight of the evidence. Most of the questions stated in this record are of the latter character and they were therefore properly rejected. But the 4th question which is set out in the statement of the case, is an example of those which the section contemplates, and the trial judge erred in refusing to propound it.

Judgments- of the circuit and common fleas courts reversed.

Minshall, C. J., Williams, Burket, Spear and Davis, JJ., concur.


author: Davis, J.

text:
    Hecker v. Mahler.

      Promissory note — Signer appearing as original promissor — May, as. between other signers, show he was guarantor or surety —Liability of other signers to surety signing without their knowledge.

    1. Where a party to a promissory note so signs the same as to indicate, prima facie, that he was an original promissor, he may, as between himself and the other parties bound for the payment of the note, show that he was in fact a guarantor or additional surety.
    2. When it is proved that one who is ostensibly a joint maker of a note, signed the same after the other makers as surety for them, or as guarantor, the principal makers will not be released from liability to indemnify the surety, or guarantor, who has paid the note, because such suretyship, or guaranty, was made without their knowledge or consent. A fortiori when made at the request of an agent of the principal makers, in order to make the paper acceptable for discount.
    (Decided April 16, 1901.)
    Error to the Circuit Court of Montgomery county.
    The defendant in eror wag plaintiff in the court of' common pleas; and in his petition alleged that tire defendants, William C. Mahler, John Cox, Lemuel E. Heckler, Edwin H. Park and William J. Kronauge, with himself as surety, executed and delivered to the City National Bank the following promissory note:
    “$500.00:
    Dayton, Ohio, Sept. 28, 1894.
    Six months after date we promise to pay to the order of City National Bank, Five Hundred Dollars.
    At ............................................
    Value received.
    W. C. MAHLER.
    J. C. COX. WM. MAHLER.
    L. E. HECKER, M. D.
    E. H. PARK.
    WM. J. KRONAUGE.”
    That at the maturity of the note the defendants did not pay the same, in consequence of which the plaintiff was compelled to and did pay it, and he prayed for judgment for the amount so paid. None of the defendants answered, except the defendant, Lemuel C. Hecker, who denied the allegations of the petition and averred that William Mahler signed the note without the knowledge or consent of Hecker; and all of the defendants signed the note as sureties for the Co-operative Publishing Company, which received the money thereon. The plaintiff replied denying that he signed the note without the knowledge and request of the defendants and averred that he signed the same at their request; and he denied that the Co-operative Publishing Company was in any way a party to the transaction. The verdict was for the defendant, Lemuel E. Hecker. A motion for new trial was overruled and a bill of exceptions taken, from which it appears that the. defendants were directors and stockholders in the Oo-operative Publishing Company ; that the company was “hard pushed for money” and “had to have it or be closed up;” that the defendants made and signed the note and put it into the hands of two of their number, William C. Mahler and Kronauge, and they went to the bank to get the money on it; that the bank refused to accept the note, whereupon the note was taken by Kronauge to the plaintiff, who, according to his own undisputed testimony, thereupon at Kronauge’s request, signed the note as “security for them five — for the five to get the money out of the bank;” but Kronauge then went back to the bank with the . note which was again refused ; and that plaintiff afterwards went to the bank with Kronauge and put up his building association book as collateral security and thereupon the note Avas accepted by the bank and the money paid over. At the maturity of the note the defendants did not pay it and the bank served notice on the plaintiff, and collected the money due to the plaintiff from the building association, kept so much thereof as paid off the note and turned over the surplus to the plaintiff. It does not appear that the defendant, Hecker; had any actual lcnoAvledge, before the final delivery of the note to the bank, of the signing of the note by the plaintiff. It also appears that in the charge to the jury the trial judge said: “I charge you that if Dr. Hecker — L. E. Hecker — defendant in this case, had no knowledge and it was without his consent prion to the discounting of that note at the City National Bank, that there is no liability on his part to Mr. Mahler.” On proceedings in error, the circuit court reversed the judgment of the court of common pleas, for error in the charge to the jury. Hecker now seeks to reverse that judgment of reversal.

      Young ct- Young, for plaintiff in error.
    The following facts constitute important distinctions between this and many of the reported cases.
    1. The note is joint in form, not several, or joint and several.
    2. All parties signed on the face of the paper as makers under the words “we promise, etc.” — none signed on the back.
    3. Mahler executed no separate contract of guaranty or suretyship. He became a party to the contemporaneous contract of all the makers.
    4. The suit is not to enforce the note. It is to recover money which Mahler claims he paid as surety to the use of the defendants as principals.
    The material alteration of a bill by a party discharges all parties not consenting to it. 3 Randolph, Com. Taper, Sec. 1742; 2 Daniel, Neg. Inst., Sec. 1373; Wallace v. Jewell, 21 Ohio St., 163; Boalt v. Brown, 13 Ohio St., 364; Patterson v. McNeely, 16 Ohio St., 348; Bery v. Railway Co., 26 Ohio St., 673; Harsh v. Klepper, 28 Ohio St., 200; Jones v. Bangs, 40 Ohio St., 139; Wardlow v. List, 41 Ohio St., 414; Thompson v. Massie, 41 Ohio St., 307; Franklin v. Baker, Extr., 48 Ohio St., 296; Carlile v. Lamb, 9 Circ. Dec., 70, 16 O. C. C., 578; Newman v. King, 54 Ohio St., 273; Pigot’s Case, 11 Coke, 26; Master v. Miller, 4 Term R., 320; 5 Term R., 367; Woodworth v. Bank, 19 Johns., 391; Davidson v. Cooper, 11 Mees. & Wells., 778; Clark v. Blackstock, Holt N. P., 474; Ex parte White, 2 Dec. and Ch., 334; Bank v. Finney, 5 Mon., 25; Pulliam v. Withers, 8 Dana, 98; Note to Holes v. Trumper, 7 Am. Rep., 669; Fay v. Smith, 1 Allen, 477; Draper v. Wood, 112 Mass., 315; 2 Parsons on Notes and Bills, 556-7.

      Under the settled law of Ohio, the addition of the name of another maker to a joint or joint and several note after it has once been completed in accordance With the intention and agreement of previous signers, avoids the note as to them. Wallace v. Jewell, 21 Ohio St.,163; 3 Randolph Com. Paper, Sec. 1744; Gardiner v. Walsh, 5 El. and Bl., 83; Shipp’s Adm’r. v. Suggett’s Adm’r., 9 B. Mon., 5, 7, 8; Hamilton v. Hooper, 46 Iowa, 515; Dickerman v. Miner, 43 Iowa, 508; Henry v. Coates, 17 Ind., 161; Byles on Bills, 3 Am. Ed., p. 371. Story on Promissory Notes, Sec. 408a.
    Counsel for defendants in error cite Brownell v. Winnie, 29 N. Y., 400, and McCaughey v. Smith, 27 N. Y., 39 and 41. These cases are not authority in Ohio. The former case is opposed to Wallace v. Jeioell, supra, in the construction placed on the note in controversy, and is expressly repudiated as authority by the Supreme Court of Ohio.
    The conclusion of the New York court is based upon the premise that the note before it is a several note. McVean v. Scott, 46 Barb., 380.
    The law on the subject in New York state is found in Chappel v. Spencer, 23 Barb., 584; Card v. Miller, 1 Hun. (N. Y.), 504.
    Mahler’s name, it is true, was added before final delivery to the bank. The note had been once offered as a completed note, and rejected. Mahler’s name was then obtained at the instance of the bank, without Hecker’s knowledge, after which the paper was discounted. In some of the cases the alteration has resulted from a change in terms or parties after delivery to the payee. This however is not essential to .the release, nor is it necessary that the payee should know of the alteration. Jones v. Bangs, 40 Ohio St., 139.
    It will be conceded that the guaranty of a third party may be endorsed upon or appended to a note without releasing previous parties. This is so because a guaranty is a separate, collateral contract, merely ancillary to the principal contract. A guarantor does not, as Mahler did in this case, force himself into and become a joint party to a contract already completely executed by other parties. The distinction for which we contend will appear from the following: Deming v. Board of Trustees, 31 Ohio St., 41; Tenney v. Prince, 4 Pick., 385; 26 Mich., 251; Cliitty on Bills, 1854 Ed., p. 915; McCaughey v. Smith, supra; Sullivan v. Rudisill, 63 Iowa, 158.
    Properly speaking, none of the parties were principals. The money was borrowed for and paid to a stock company — the Co-operative Publishing Company. Mahler, if he became surety at all, became co-surety with the five original makers for the real beneficiary, the Co-operative Publishing Company.
    Suit might have been brought by the bank for the recovery of the money loaned against the Co-operative Publishing Company as undisclosed principal. Merchants’ Nat’l Bank v. Little, Assignee, 2 Circ. Dec., 496, 4 O. C. C., 195.
    If Hecker was a co-surety with Mahler, the decisions which hold one co-surety released by the signing of the name of another without his consent, apply in his favor.
    A material alteration will work a discharge whether it be prejudicial or beneficial to the party asserting the defense. The theory of the law is that the alteration changes the identity of the contract, and hence the release.

      The addition of the name of William Mahler to the note (whether added as a surety or a principal) did materially change the way in which the contract might operate under the laws of Ohio upon the five original makers.
    Under the authorities, a change which may affect the question of- jurisdiction in case of a suit on the note, is a material alteration. 3 Randolph Com. Paper, Sec. 1744; Bowers v. Briggs, 20 Ind., 139.
    In Ohio the addition of the name of William Mahler to the note as a joint maker with the other parties, whether added as a surety or a principal, had the effect to render it possible for the payee or any subsequent holder to bring a suit on the note in any county in Ohio in which Mahler might reside or be summoned — -whereas previous to his signature the original five signers had the power to restrict the jurisdiction to the courts of counties in which they themselves resided or might be summoned. McArthur v. Ladd, 5 Ohio, 514; Higdon v. Gardner, 1. Circ. Dec., 519, 2 O. C. C., 340; Stokes v. Lewis, 1 Term R., 20; Sections 5031, 5038, Revised Statutes.
    Mahler was never requested by Hecker to sign the note as a surety, either expressly or impliedly.
    Mahler says he signed as surety, but so far as Hecker is concerned this was a mere statement by Mahler of his own intention in signing, and was incompetent. The testimony shows no contract relation and no privity between them. As between Hecker and Mahler the latter signed and paid the note as a volunteer merely. This being so, the cases are uniform to the effect that after paying the note Mahler could not maintain an action at law against Hecker for the. money so paid. Osborn v. Cunningham, 4 Dev. & Bat., 423; Carter v. Black, 4 Dev. & Bat., 425; Talmage v. Burlingame, 9 Barr. Pa., 21; 2 Am. L. C, 407.
    A surety, though a volunteer, may be subrogated in equity to securities held by the creditor, but this is not the relief sought in this case. Carter v. Jones. 5 Iredell (Eq.), 196; 49 Am. Dec., 425, and note.
    Mahler, though a stranger to Hecker, was bound to the bank even though Hecker were released. Hamilton v. Hooper, 46 Iowa, 515.
    When Mahler paid the bank, therefore, he only did Avhat he had voluntarily agreed to do.
    If Mahler could maintain a suit at laAV at all, it Avas against Kronauge.
    The note was entrusted to Kronauge as a complete note to have it discounted. He had no authority to obtain other names, and none is shown. Mechem on Agency, Sec. 276.
    The application of this rule to the unauthorized alteration of a complete note by one of tAvo promisors before delivery, and Avithout the knoAvledge of the other, is expressly denied in McGrath v. Clark, 56 N. Y., 34, and Aetna National Bank v. Winchester, 43 Conn., 391.

      E. H. Kerr and L. B. McTlhenny, for defendant in error.
    The judgment of the court below should be affirmed and should be for the defendant in error for the following reasons:
    Because the undisputed facts show that the defendant in error signed the note as surety. Signing a note as surety is not a material alteration of the note. Miller v. Finley, 26 Mich., 249; 27 N. Y., 39; 29 N. Y., 400; Mersman v. Werges, 112 U. S., 139; Deming v. Trustees, 31 Ohio St., 41.

      The case of Wallace and Park v. Jewell, 21 Ohio St., 163, does not attempt to hold that the signing of a surety is a material alteration, as appears from the opinion of White, J., p. 172, citing Ex parte Yates, 2 De Gex and J., 191. The case of Wallace and Park v. Jewell, supra, merely holds that the signature of another maker constitutes a material alteration. The testimony shows in this case' that the defendant in error did not sign as maker but as surety.
    In principle this case is the same as the erasure of the name of a surety, which is held not to be a material alteration. Huntington v. Finch, 3 Ohio St., 445.
    While he did not agree to become a joint maker he did agree to become responsible to the payee for a default of payment by the makers at maturity. This makes defendant’s contract one of conditional guar-, anty. This is what defendant intended his contract to be and just what he understood, it to be. When ■plaintiffs did not keep their contract defendant kept his and paid the note accordingly.
    When a person not a party writes his name in blank on the back of a note at the time of its execution and delivery the prima facie presumption is that he is the maker of the note and he may accordingly be treated as a surety. This presumption may be rebutted by parol evidence of a different intention and agreement of the parties. When the design is to give additional surety only, parol evidence tending to limit the liability will be construed to effectuate such intention. He will be treated at least as a conditional guarantor. Seymour & Co. v. Mickey, 15 Ohio St., 515.
    Endorsement by a stranger is a guaranty. Champion v. Griffith, 13 Ohio, 228; Robinson v. Abell, 17 Ohio, 36.

      Endorsement before negotiation may be treated as an endorsement and not as a making. Greenough v. Smead, 3 Ohio St., 415.
    Presumption that endorsement before delivery is a making may be rebutted.
    The guaranty of the payment of the debt of another made at the time the debt is contracted and without the knowledge of the principal debtor does not alter his contract as to discharge him from liability. A party has the right to make his own contract. Deming v. Board, 31 Ohio St., 41.
    The mere endorsement upon a note of a stranger’s name in blank is prima facie evidence of guaranty.
    Signing as surety makes an immaterial alteration ; especially is this true where there is no fraud and the liability is not changed. Justice says so. 2 Dan. Neg. Inst., Sec. 1389 and N. 1.
    The jury should find whether or not Hecker did not assent to or authorize the addition of another maker or a surety by leaving the note in the hands, of Kronauge to get it discounted, and whether or not he did not ratify the action of Kronauge in getting Mahler to sign the note by subsequent acts, etc. Tiernan v. Fenimore, 17 Ohio, 545.
    The contract between the principal and surety, though it may be inferred from the nature of the surety given the contract is not contained therein nor evidenced thereby, but is a collateral contract usually parol, one which may be shown by any competent or satisfactory evidence. McKee v. Hamilton, 33 Ohio St., 7.
    Parol evidence of declaration of intentions made at the time of signing before delivery of the paper are part of the res gestae admissible to establish an agreeulent where they do not contradict or vary the rights of prior parties. Oldham v. Broom, 28 Ohio St., 41;
    The holder might recover on the original cause, of action. 2-Dan. Neg. Inst., Secs. 1411-1413.
    Presumption is that the alteration was made with an honest motive. Franklin v. Baker, 48 Ohio St., 296.
    Right of restoration of instrument innocently made is recognized and within the jurisdiction of a court of equity. 2 Dan. Neg. Inst., Sec. 1414; 2 Parsons N. & B., 570; Shepherd v. Whitstom, 51 Iowa, 457; 2 Dan. Neg. Inst., Sec. 1415.
    Kronauge was an agent of his company — makers coupled with an interest, and his authority to procure indorsers may he inferred from circumstances and subsequent conduct of principal. Dan. Neg. Inst., Sec. 289; Wilson v. Forder, 20 Ohio St., 89.
    The doctrine that a material alteration beneficial to the holder null vitiate the instrument is founded upon a presumption of fraud, and the alteration to have such effect must be such as to effect some change in the'meaning or legal operation of the instrument.
    The erasure of the name of a surety on a note by-agreement between surety and payee is not such an alteration.
    The- spirit of decisions is against the release in a case like at bar. 2 Dan. Neg. Inst., Sec. 1389.
    The benefit cannot be taken without the burden. Weeden v. Railway Co., 14 Ohio, 563; Winpenny v. French, 18 Ohio St., 469; Dan. Neg. Inst., Sec. 322; Woodward v. Suydam, 11 Ohio, 360.
    Relates back and binds from inception, Pollock v. Cohen, 32 Ohio St., 514; Holland v. Drake, 29 Ohio St., 441.

      Principal must elect within a reasonable time otherwise he affirms. Rolling Stock Co. v. Railroad, 34 Ohio St., 450.
    No new consideration is required to support the ratification. Drakely v. Gregg, 75 U. S. (8 Wall.), 242; Brooks v. Hook, 24 L. T., 34; Grant v. Bond, 50 N. H., 129; Pearsoll v. Chapin, 44 Pa. St., 17; Huston v. Railroad Co., 21 Ohio St., 235; Brandt on Suretyship, Sec. 334.
    Acceptance of the benefit of a loan or of the. benefits thereof, though made without authority, has been held sufficient ratification. Union Gold Mining Co. v. Rocky Mountain Bank, 96 U. S., 640; Taylor v. Agricultural Co., Ala., 229; Weeden v. Railway Co., 14 Ohio, 563; Dan. Neg. Inst., Sec. 362; Lorie v. Railway Co., 32 Fed. R., 270; Smith v. Sheeley, 79 U. S. (12 Wall.), 358; Frank v. Jenkins, 22 Ohio St., 597; Woodward v. Suydam, 11 Ohio, 360.
    Authority of the agent may be inferred from the circumstances of the case. These circumstances, which give rise to the implication, are for the jury to consider. 1 Dan. Neg. Inst., Sec. 289.
    Stockholders of a corporation liable for its debts are not its sureties — they are principals. Hager v. McCullough, 2 Denio, 119; Taylor v. Wheel Co., 6 Dec. (Re.), 947 (9 Am. Law Rec., 28); Moss v. McCullough, 7 Bank (N. Y.), 279; Morawetz Pri. Corp., Sec. 879.
    The liability of stockholders under statutes imposing personal liability is not that of guarantors, but it is an original liability. 1 Lawson Rights, Rem. & Pr., Sec. 498; Green v. Beekman, 59 Cal., 547; Corning v. McCullough, 49 Am. Dec., 287; Moss v. Averill, 10 N. Y., 459; Jones v. Barlow, 62 N. Y., 210; Wiles v. Suydam, 64 N. Y., 176; Chase v. Ford, 77 N. H., 33. Extension of time does not release stockholders. Taylor v. Wheel Co., 6 Dec. (Re.), 947 (9 Amr. L. Rec., 28).
   Davis, J.

It has been settled, in this state, that a promissory note in the form of the one involved in this case is'joint and several; and that after the delivery of a joint and several note the addition of the name of a third person, as maker, with the privity of the holder, but without the consent of the original signers, vitiates the note as to the latter; but that it is otherwise, if the new party, through inadvertence or mistake, signed so as, prima facie, to indicate that his name was added in the character of maker, when in fact such was not the intention. Wallace et al. v. Jewell, 21 Ohio St., 163. In the opinion in the case cited, White, J., says: “If the object had been to guaranty payment, or to furnish additional security, otherwise than by becoming or assuming to become a joint maker, there could be no objection to the accomplishment of such object. The new agreement in such case, would be a collateral one, and it would leave the integrity of the original note unaffected. Nor do we suppose the case would be altered, if, in giving such security, the new party should, by mistake or inadvertence, sign the note in such way as to indicate, prima facie, that he was an original promissor, the real intention being otherwise. Such a case would1 fall within the .principle decided in Ex parte Yates, 2 De Gex and J., 191.”

In the present case it was competent for the plaintiff below to show, and he did show, that as between him and the other signers of the note,'he was not a joint maker. He testified, and it is not disputed, that he “signed the note for the five to get the money out of the bank” — “for security for them five.” It is conceded that the money which was obtained on the discount of the note went to the benefit of the Co-operative Publishing Company; but that company was in no sense a party to the note and in no way connected with the transaction of obtaining the money. That was the act of the five original signers of the note who had already signed it, and, through the agency of William C. Mahler and Kronauge, presented it at the hank for’ discount where it was rejected. The five signers, up to this point, were indisputably principals; for the fact that they intended to apply, and afterwards did apply, the money obtained by discount of the note for the benefit of the publishing company, did not make them sureties. So that the claim that they and the defendant in error were co-sureties of the publishing company is not sustainable. The ehfendant in error “signed the note for the five to get the money out of the bank,” — “signed as security for them” — and still the note was not accepted by the bank. He then pledged his building association book, which meant that if the note should not be paid at maturity, his funds in the building association should be applied to the payment of it. By his agreement to sign as security for the five original signers and by his pledge of collateral he made himself a guarantor for them, as distinctly as if he had written above his name these words: “For value received I hereby guaranty the payment of this note at maturity,” and so the bank treated the paper. The note not being paid at maturity, notice thereof was given to the defendant in error, who paid it out of the building association fund which had been pledged. The case is therefore clearly referable to the exception stated in Wallace et al. v. Jewell, 21 Ohio St., 163, and Deming v. Trustees, 31 Ohio St., 41. The defendant in error was not a joint promissor with the plaintiff in error; but was bound by a separate and collateral agreement. This view of the case eliminates the question of fact whether the name of the defendant in error was written upon the note with the consent of Hecker or any other of the original signers. The original makers were bound to reimburse the defendant in error, whether they Avere, before the delivery of the note to the bank, without knowledge that the defendant in error had signed it as security or guarantor for them, or Avhether they had such knoAvledge. The note was in fact signed by the defendant in error at the request and with the knowledge of Kronauge, the agent of the five original signers, and so was signed at the request and with the knoAvledge of all. Qui facit per a,Hum, fcieit per se. But in the view Avhich we take of this case that is not essential. The instruction to the jury in respect to knowledge and consent by Hecker was erroneous. The circuit court properly reversed the judgment of the court of common pleas, and, on the facts before it, might have gone further.

.4)(firmed.

Minskatx, C. J., Williams, Bukket, Speae and Shauck, JJ., concur.


author: Spear, J.

text:
    Hutchinson, Assignee, v. Straub et al.

      Bents accruing in hands of assignee — Go to mortgagee as pledgee, instead of assignor's creditors, when — Filing by building association mortgagee, of answer, etc. — In assignee’s sale of land — -Not forfeit of stock of member, when.

    1. Rents of land accruing after an assignee for the benefit of creditors has taken possession of the assigned property, belong, as between general creditors and a mortgagee, claiming under a mortgage which pledges the rents, issues and profits of the land, to the latter when necessary to fully pay the obligation secured by the mortgage.
    2. The filing by a building association, mortgagee, of answer and cross-petition in a proceeding brought by an assignee _ for authority to sell land, is not such an election to forfeit' the stock of the member as will estop the association from claiming fines for non-payment of dues accruing after the assignment.
    (Decided April 16, 1901.)
    Error to the Circuit Court of Warren county.
    The plaintiff is the assignee for the benefit of creditors of Katie W. Straub, insolvent. The principal defendant in error is The St. Bernard Loan and Building Association Company. The controversy had its origin in the probate court of Warren, by the filing by the assignee of a petition to sell lands, to which the company, as mortgagee, ivas made defendant and answered. A sale was ordered, the land sold and an order of distribution entered. From this judgment and order appeal was taken by the assignee to the court of common pleas where a like judgment and decree was entered. Error ivas prosecuted by the assignee to the circuit court where the judgment of the common pleas was affirmed, and the assignee brings error. Further facts are stated in the opinion.

      Frank Brandon and George A. Burr, for plaintiff in error.

      Gorman & Thompson, for defendants in error.
   Spear, J.

It is conceded that the mortgage of the assignor and her husband to the Company is a valid lien and is the first lien. The question is simply one of amount. The controversy centres about the claim of the Company for rents of the property accruing and received by the assignee after the assignment and prior to the sale, and to fines for non-payment of dues and premium up to the date of the sale. From the record it appears that the mortgage is of the usual building association form. It contains the following provision, viz.:

“Katie i\i. Straub and John W. Straub, in consideration of three thousand, five hundred dollars, the value of seven shares of its capital stock to them paid by the St. Bernard Loan & Building Association Company, a corporation under the laws of Ohio, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey to the said The St. Bernard Loan & Building Association Company, its successors and assigns the following real estate, viz.: (description of property same as in petition) and all estate, right, title and interest of the said Katie M. Straub and John W. Straub, either in law or in equity, of, in and to the said premises, together with all the privileges and appurtenances to the. same belonging, and all the rents, issues and profits thereof. Provided, nevertheless, that if said Katie M. Straub, who has become a member of said Company, and has subscribed for-share therein, to be paid in weekly installments of fifty cents per share, and has received in advance from said Company, said sum of three thousand, five hundred dollars, the value of said shares, shall pay or cause to be paid to the said The St. Bernard Loan and Building Association Companv, according to its constitution and by-laws, and without demand therefor, the • following sums of money from the date hereof, until such time as thcdues paid in, together with dividends credited, shall amount to said sum of thirty-five hundred dollars, in the following mannerThen follow stipulations for payment of weekly dues, for interest on the loan payable weekly, for premiums on the shares payable weekly, and payment of fines, assessments and penalties incurred or levied in accordance with the constitution and by-laws.

It was held by the court below that the rents collected by the assignee should be paid, so far as necessary to satisfy it, upon the mortgage, and that the Company was also entitled to collect fines to the day of sale, and these conclusions are assigned as error.

1. As to the rents the contention is based upon the proposition that the mortgagee’s interest is personal merely, the mortgagor remaining the real owner of the property and entitled to possession subject only to the mortgagee’s right to foreclose, and hence the mortgagee is not entitled to rents and profits until he has taken actual possession himself, or constructive possession by a receiver, and an assignee is not such receiver; that the Company’s case is not helped by the fact that the mortgage included the rents as well as the land because the assignment carried the right to rents to the assignee for the benefit of general cred itors, and the only way the Company could have reached the rents was by the commencement of a foreclosure suit, and the appointment of a receiver, and that it could not do after the assignment since the probate court acquired exclusive jurisdiction over the land.

The contention' is plausible, but we think it is not sound. To assume that the assignment carries to the assignee the right to future rents as against the mortgagee is to take for granted the very matter in controversy. It is to ignore an essential, and, as we think, a controlling condition of the mortgage, viz.: the pledge of the rents, issues and profits. True it is, that, ordinarily, the mortgagor has the right to receive as his own the rents of the real estate so long as he remains in possession. But the mortgagor in this case yielded possession to one who took the property burdened with the duty to administer it for the benefit of creditors, and then the question ceased to be one between the mortgagor and the mortgagee exclusively, and became a question between creditors themselves. The question then is who, among the creditors, has the first right? Those who have general claims only or one Avho has not only a general claim but a specific lien upon the thing assigned, and upon whatever issues out of. it? Manifestly in equity the mortgagee had the right, by virtue of the stipulations in the mortgage, to sequester the rents, and the only question remaining is as to the manner of enforcing such right. Ordinarily the method Avould be by the appointment of a receiver auxiliary to a foreclosure suit. But Avhy should that be held to be the only Avay? That holding would make it impossible for the mortgagee to avail himself of his right, for the estate having passed into the exclusive jurisdiction of the probate court, no other court could interfere with the probate court’s control of the property, and the effect Avould be to put it in the power of the debtor to defeat, by assignment of his property, the enforce,ment of a just and legal lien upon it. That a debtor possesses no such right is elementary.

We think it clear that the right of the mortgagee to proceed against the land for the satisfaction of his mortgage was transferred to the fund arising out of the land, whether from the rents or the sale, or both, and the fund being thus in the custody of the court its distribution should be determined on equitable principles. Nor can it make any difference that the fund was acquired through the process of assignment rather than by the appointment and action of a receiver, for, to all intents and purposes obtaining in the present case, there is no essential difference between the two. Each is an arm of the court for the purpose of working out the rights, equitable as well as legal, of the parties. And the mortgagee having the right to resort to the rents as well as to the land itself for the satisfaction of its debt, a refusal to make such application of the fund would have been a denial of that right. There is no error in this particular. Bausman & Herrs App., 90 Pa. St., 178; Wolf's App., 106 Pa. St., 545; First Nat'l Bank v. Ill. Steel Co., 72 Ill. App., 640.

2. As to the matter of fines, the claim of the plaintiff in error is that the right to them terminated with the assignment; that the effort now is in effect to collect of the assignee; and that, when the Company filed its cross-petition, it elected to forfeit the stock for non-payment and declare the debt due, which action terminated Mrs. Straub’s membership in the Company, and she was no longer obliged to pay dues, and that obligation having terminated,- the obligation to pay fines was at an end.

This proposition also assumes that the mortgagor could relieve herself of the obligations imposed by her contract by an assignment. It is not tenable. The assignment could have no such consequence. And, whatever might have been the effect upon the contract of the commencement by the Company of a foreclosure suit, had it resorted to such action, we are of opinion that the filing of its answer and cross-petition did not impair its right to fines, at least to the date of sale, the sale having-been ordered prior to the decree finding the amount due the mortgagee. It did not seek the forum, but became a party in invitum, and could not do less than assert its claim when thus .brought in. Otherwise its rights would have been lost. See Hagerman v. Ohio B. & S. Assn., 25 Ohio St., 186.

Judgment affirmed.

Minshall, C. J., and Burket, Davis and Shauck, JJ., concur.

Williams, J., concurs in the judgment as to rents only.


author: Burket, J.

text:
    The State of Ohio ex rel. v. Matthews, Superintendent of Insurance.

      Securities deposited by insurance company with Superintendent of Insurance — In trust to protect policy ■ holders — Can only be recovered by assignee of company, when — Duty of insurance superintendent in distributing such deposit.

    1. Where securities have been deposited with the Superintendent of Insurance, by an insurance company, to be held by such superintendent in trust for the benefit and protection of, and as security for, the policy holders of such company, the assignee of such company, under our insolvent laws, cannot recover such securities from such superintendent without first showing that such company is no longer liable to any of its policy holders.
    2. It is the official duty of such superintendent, in the event that such company becomes insolvent, to act, vand perform his trust, by distributing the funds so deposited with him, pro rata among the several policy holders, and when their just claims shall all be satisfied, to pay the balance, if any, to the company, or its assignee or other successor.
    (Decided April 16, 1901.)
    Petition in Mandamus.
    The Cincinnati Life Association doing a life insurance business on the assessment plan, deposited securities to the amount of $5,000.00, with the superintendent of insurance of this state under section 3631 — 25, Bates’ Bevised Statutes.
    The association having become insolvent, made a general assignment of its assets for the benefit of all its creditors, and thereupon the assignee applied to the court of insolvency of Hamilton county for an order requiring the superintendent of insurance to turn over the $5,000.00 of securities to such assignee, to be by him distributed among the policy holders pro rata according to the amount due to each one. there being no other kind of indebtedness. The court granted the order as prayed for by the assignee, but the superintendent of insurance was no't made a party, and he refused to obey the order, and refused to turn over the securities upon demand of the assignee. Thereupon the assignee caused a petition in mandamus in due form to be filed by the state upon his relation, to compel the superintendent of insurance to turn over the said securities to the assignee. The superintendent of insurance demurred to the petition, on the ground that it does not state facts sufficient to constitute a cause of action against him.

      Robertson & Buchioalter, for plaintiff.

      J. M. Sheets, attorney general, and J. E. Todd, assistant attorney general, and S. TT. Bennett, for defendant.
   Burket, J.

The statute under which the securities were deposited with the superintendent of insurance provides: “The securities deposited with the insurance department pursuant to this section shall be held by the superintendent in trust for the benefit and protection of and as security for the policy holders of such corporation, their legal representatives and beneficiaries.”

There is no provision in this statute for turning the securities over to an assignee or receiver in case of insolvency. On the contrary the securities are required to be held by the superintendent in trust for the benefit and protection of, and as security for, the policy holders. This evidently means that the policy holders are to be protected and secured by the superintendent himself, and not through an assignee or receiver. The duty of the superintendent to secure and protect the policy holders in their rights is, by this statute, made a part of his official duties, and he must discharge that duty himself, and cannot shift it upon an assignee or receiver. The appointment of an assignee or receiver by a court cannot have the effect to relieve the superintendent of insurance of a part of his official duties. He is a trustee of the securities for the policy holders, and as such trustee obtained possession of the fund, and holds the same in his official trust capacity, and the appointment of an assignee— another trustee — cannot authorize such later appointee to compel the earlier trustee to surrender such trust fund. The trust adheres to the office of the superintendent of insurance, and its proper administration is a part of the official duties of the office, made so by the general assembly, and a court cannot change those duties, and relieve the superintendent of duties which the general assembly has imposed upon him. The following cases are more or less in point: Ruggles v. Chapman, 59 N.Y., 163, and 64 N.Y., 557; Cooke v. Warner, 56 Conn., 234; Beach on Insurance, Sec. 82; Joyce on Insurance, Sec. 3593.

The assignee stands in the shoes of the company, the assignor, and has the powers only of the assignor as to the collection of outstanding funds. And it is perfectly clear that the assignor, the insurance company, could not recover the securities in question from the superintendent of insurance without first showing that all its policies had been taken up, and that it-was no longer liable to any policy holder. So with the assignee, he must first show that the company is no longer liable to any policy holder before he can recover the securities from the superintendent of insurance.' As was said by the court in Falkenbach v. Patterson, 43 Ohio St., 359, on page 369: “The superintendent of insurance should act and perform his trust, * * * and when the trust is fully performed the remainder of the deposit, if any, should be properly disposed ofthat is, it should then, and not till then, be paid over to the assignee.

We think it clear that the assignee is not entitled to the securities held by the superintendent of insurance, upon the facts disclosed in the petition, and the demurrer to the petition will therefore be sustained and the writ refused.

'Writ refused.

Min,shall, C. J., Williams, Burket, Spear, Davis and Shauck, JJ., concurred.


author: Williams, J.

text:
    Oil Well Supply Company v. Koen et al.

      Plea of former recovery — Not available as bar to actionwhere court was without jurisdiction — Action to enforce collection of debt — By attachment of property of non-resident — Judgments in rem and in personam — Section 5555, Rev. Stat.— Proceedings after judgment for plaintiff— Attached property not enough to satisfy judgment — Section 5355, Rev. Stat. —Service by publication.

    1. A plea of former recovery on the demand in suit, is not available as a bar to the action, where the court was without jurisdiction to render the judgment.
    2. An action to enforce the collection of a debt by attachment of the property of a non-resident of this state who has not been summoned nor entered his appearance, is essentially a proceeding in rem; and the judgment rendered therein can have no effect beyond the appropriation of the attached property to the satisfaction of the debt and costs.
    3. In such action no valid judgment in personam can be rendered, on which an execution can issue for the collection of any balance remaining unpaid on the debt after exhausting the attached property, nor which can operate as a bar to a subsequent suit for the collection of such balance, although service was made by publication in conformity with the statute.

      i. The provision of section 5555, of the Revised Statutes, ,that “if there be not enough” (of the attached property) “to satisfy the same, the judgment shall stand, and execution may issue thereon for the residue, in all respects as in other cases,” cannot, consistently with constitutional guaranties, have application to cases where the defendant in attachment is a resident of another state, over whom the court has obtained no jurisdiction otherwise than by publication of notice according to the statute.
    5. A judgment in such case acquires no additional force from the provisions of section 5355, of the Revised Statutes, which authorize a party upon whom service has been made by publication to have the judgment opened up, nor from his failure to pursue that remedy.
    (Decided April 16, 1901.)
    Error to the Circuit Court of Monroe county.
    Action on account for goods sold. Plea of former recovery. Reply that the judgment was against a non-resident of the state, on constructive service only. Bemurrer to reply sustained, and action dismissed. Reversed.
    The action below was brought in the court of common pleas of Monroe county, by the Oil Well Supply Company against O. N. Koen and Charles Barrows, on an account for merchandise sold and delivered by the plaintiff to the defendants, amounting to the sum of fl.574.51. The defendant Koen alone answered, pleading in bar of the action, a former recovery on the same cause of action, in the court of common pleas of Washington county. The plaintiff replied that, when the former action was brought, the defendant Koen was a non-resident of this state, and on that ground a writ of attachment ivas issued in the action, under which certain chattel property of the defendant then in the jurisdiction of the court was attached, and afterward sold, and the proceeds, amounting to the sum of $714, was applied, by order of the court, on the costs, which amounted to $49.50, and the balance of $664.50 was paid on the plaintiff’s claim; which last amount the plaintiff admits should be credited on the account sued on in this case. The reply also avers that “no summons ivas served on the defendant in said action, nor did he appear therein, nor was jurisdiction over the person of said defendant otherwise acquired therein;” but, “service by publication of notice to said defendant was duly made according to law, under clause 3, of section 5048, of the Revised Statutes.” A general demurrer was sustained to the reply, the petition dismissed, and judgment rendered against the plaintiff for costs; and from the affirmance of that judgment by the circuit court, error is prosecuted to this court.

      Newell K. Kennon and John C. Nichols, for plaintiff in error.
    It seems that there is no case decisive of this question reported in our Ohio reports, but in the case of' Leonard v. Lederer, 8 Dec., 711, 10 W. L. B., 450, error to the district court of Cuyahoga county, decided by this court, this question was presented and the court held with the plaintiff in error herein.
    (Mr. Kennon then proceeds to give in full the unpublished opinion of Judge Okey in the case of Leonard v. Lederer. We give the citations from that opinion. — E. O. R. Reporter.)

      Voorhees v. Bank U. S., 35 U. S. (30 Pet.), 449; Cooper v. Reynolds, 77 U. S. (10 Wall.), 308; 3 Bl. Com. Chs., 18; Crawford v. Chapman, 17 Ohio, 449; Drake v. Rogers, 13 Ohio St., 21; Murray v. Hoboken L. & I. Co., 59 U. S. (18 How.), 272; Davidson v. New Orleans, 96 U. S., 97; Cooley’s Con. L. (5th Ed.), 431; 1 Swan & Cr., 779; 3 Curwen, 2061; 75 O. L., 718; Rev. Stat., Sec. 6507; 2 Swan & C., 1010; 3 Curwen, 1972; Rev. Stats., 5555; 2 Chas., 1324; D’Arcy v. Ketchum, 52 U. S. (11 How.), 165; Webster v. Reid, Ib., 437; Cooper v. Reynolds, 77 U. S. (10 Wall.), 308; Maxwell v. Stewart, 89 U. S. (22 Wall.), 77; Pennoyer v. Neff, 95 U. S., 714; Brooklyn v. Insurance Co., 99 U. S., 362; Empire v. Darlington, 101 U. S., 87; Pana v. Bowler, 107 U. S., 529; and see Cooley’s Con. L. (5th Ed.), 498; Drake on Attach., Sec. 5449a; Smith v. Griffin, 59 Iowa, 409; Armstrong v. Harvey, 11 Ohio St., 527; Skinner v. Moore, 3 Dev. & Bat., 138; Loan Association v. Topeka, 87 U. S. (20 Wall.), 655; Weyer v. Zanes, 3 Ohio, 305; Adams v. Jeffries, 12 Ohio, 253; McRae v. Mattoon, 13 Pick., 53; Cooley’s Con. L. (5th Ed.), 498; Pemberton on Judgments, 4, 5; Dan. Ch. P., Ch., 8; 3 Pomeroy’s Eq., Secs. 1345, 1362, 1398; Freeman on Ex., Ch., 29; 3 Wait’s Act. & Def., 758; Gifford v. Morrison, 37 Ohio St., 502.

      Mr. Nichols, in his brief,
    cited the following:

      Pelton v. Platner, 13 Ohio, 209; Wood & Pond v. Stanberry, 21 Ohio St., 142; Arndt v. Arndt, 15 Ohio, 33; Cooper v. Reynolds, 77 U. S. (10 Wall.), 308; Freeman v. Alderson, 119 U. S., 185; Sugg v. Thornton, 132 U. S., 524; Bartlet v. Spicer, 79 N. Y., 78; McKinney v. Collins, 88 N. Y., 216; Needham v. Thayer, 147 Mass., 536; Eliott v. McCormick, 144 Mass., 10; Martin v. Kittredge, 144 Mass., 13; Shumway v. Stillman, 6 Wend., 447; Kenney v. Georgen.
      36 Minn., 190; Downer v. Shaw, 22 N. H., 277; Morse v. Presby, 25 N. H., 299; Galpin v. Page, 85 U. S. (18 Wall.), 350; Rubber Company v. Goodyear, 76 U. S. (9 Wall.), 807; Bischoff v. Wethered, 76 U. S. (9 Wall.), 812; Barber v. Morris, 37 Minn., 194; Heffner v. Gunz, 29 Minn., 108; Cleland v. Tavannier, 11 Minn., 194; Bell v. Olmstead, 18 Wis., 75; Jarvis v. Barrett, 14 Wis., 591; Morgan v. Avery, 7 Barb., 656; Picquet v. Swan, 5 Mason, 35; Harding v. Alden, 9 Me., 140; Price v. Hickok, 39 Vt., 392; Gibbs v. Insurance Company, 63 N. Y., 114; Drake on Attachment, 7th Ed., Sec. 5; 12 Enc. PI. and Pr., pp. 143-144, and authorities there cited.

      Pearson & Okey, for defendant in error.
    If said Washington county judgment is not absolutely void, then the courts below did not err in sustaining the demurrer.
    If the common pleas court of Washington county, had jurisdiction or power to render the judgment, then the same is not void. No question can be made in this case as to the regularity of the proceedings of that court. If it had jurisdiction of the subject matter or of the defendant, then the judgment is not void and the demurrer to the reply was properly sustained.
    Service by publication is authorized by section 5048, Revised Statutes of Ohio.
    The action in Washington county, on which said judgment was obtained, was for the recovery of money and jurisdiction of the defendant may be acquired by service by publication, when the action is brought against a non-resident of the state having-property in this state sought to be taken by process of attachment. Bank v. Railway Company, 21 Ohio St., 221; Sections 5560, 5555 and 5855, Rev. Stat.
    No attempt has been made by either of said defendants in error to open said Washington county judgment, but the same still stands in full force and effect. Pelton v. Platner, 13 Ohio, 209.
    The court acquires jurisdiction in attachment, by the issuing of process, predicated upon the requisite affidavit and the attaching of the property; and if, after thus obtaining jurisdiction, the court proceed to render judgment, without the publication of notice, such judgment is not void, and cannot be impeached collaterally. Paine v. Mooreland, 15 Ohio, 436.
    See dissenting opinion rendered by Judge Thurman, in Moore v. Starks, 1 Ohio St., 369.
    If, as we think, the court had jurisdiction, the Washington county judgment is not void although the court may have exercised its power or jurisdiction wrongfully or irregularly. “The distinction is between the lack of power or want of jurisdiction in the court, and a wrongful or defective execution of powers. In the first instance all acts of the court not having jurisdiction or power are void, in the latter voidable only. A court, then, may act: 1. Without power or jurisdiction. 2. Having power or jurisdiction, may exercise it wrongfully; or, 3. Irregularly. In the first instance, the act or judgment of the court is wholly void, and is as tliougji it had not been done; the second is wrong, and must be reversed upon error; the third is irregular, and must be corrected by motion.”
    We know of no case decided by the Supreme Court of this state, or of the United States, in which it was held that such judgment as was rendered by the court of common pleas of Washington county, against the defendants in error, is void.
    It will be observed that there is no kind of claim made here that the judgment in Washington county is void as to the defendant in error Barrows, or that he was not duly served with summons, and yet plaintiff in error seeks by this action to obtain a judgment in Monroe county common pleas court against said defendant in error — Barrows-—for the same cause of action as that for which it already has a judgment in Washington county.
    We think the common pleas court in Washington county had jurisdiction or power to render the judgment which it’ rendered against both defendants, that said judgment is still in full force and effect, and must so remain, until said defendants seek to set it aside or have it reversed, and this they can only do, by virtue of section 5355, Revised Statutes of Ohio, and in the mode therein prescribed.
   Williams, J.

If the court in Washington county had jurisdiction to render the judgment set up in the answer, this action, obviously cannot be maintained. It is fundamental that a valid judgment rendered on a demand establishes it in the most authentic form known to the law, and the demand so merged in the judgment cannot be made the basis of another action between the same parties; thereafter the judgment is a new debt of a higher nature which may itself be the foundation of an action. But it is equally clear that the judgment, to have that effect, must be one rendered by a court having jurisdiction of the parties, as veil as of the subject matter; and if the court was without such jurisdiction, its judgment is as unavail-' ing as a defense to a suit on the original demand, as it would be in'support of an action founded on the judgment. Tlie demurrer to the reply admits that in the former action no summons was served on the defendant, who, during its pendency, was a non-resident of this state, and that no jurisdiction was obtained by the court otherwise than by the seizure of his property on the attachment, and service by publication as authorized in such cases. Jurisdiction, upon such service, to subject property within the reach of the court’s process to the satisfaction of the debts of its non-resident owner, is not questioned, nor is the power of the state to confer such jurisdiction on its courts. But a proceeding of that nature is essentially one in rem, and the jurisdiction is acquired only where property of the defendant is brought within the control of the court, and is exhausted by the appropriation of the property on the plaintiff’s demand. The judgment rendered as the basis for the distribution of the attached property to its payment will not support an execution against other property of the defendant for the collection of any balance then remaining unpaid. There is an entire lack of power in the court to render a valid judgment in personam against a resident of another state, who has neither been summoned nor voluntarily entered his appearance. Constructive. service has no further effect than to give regularity to the proceedings for the proper application of the attached property. This was substantially held in Pelton v. Platner, 13 Ohio, 209; and the principle has been repeatedly maintained by the Supreme Court of the United States. The extent of the court’s jurisdiction in such cases, is clearly defined by Mr. Justice Field in Freeman v. Alderson, 119 U. S., 188, as follows: “The state has jurisdiction over property within its limits owned by non-residents, and may, therefore, subject it to the payment of demands against them of its own citizens. It is only in virtue of its jurisdiction over the property, as we said on a former occasion, that its tribunals can inquire into the non-resident’s obligation to its own citizens; and the inquiry can then proceed only so far as may be necessary for the disposition of the property. If the non-resident possesses no property in the state, there is nothing upon which its tribunals can act. Pennoyer v. Neff, 95 U. S., 714, 723. They cannot determine the validity of any demand beyond that which is satisfied by the property. ' For any further adjudication, the defendant must be personally served with citation or voluntarily appear in the action. The laws of the state have no operation outside of its territory, except so far.as may be allowed by comity; its tribunals cannot send their citation beyond its limits and require parties there domiciled to respond to proceedings against them; and publication of citation within the state cannot create any greater obligation upon them to appear. Ib., page 727. So, necessarily, such tribunals can have no jurisdiction to pass upon the obligations of non-residents, except to the extent and for the purpose mentioned.”

And in Cooper v. Reynolds, 10 Wall., 308, where it became necessary to declare the effect of a personal action against an absent party without the jurisdiction of the court, and not served with process or voluntarily appearing in the action, and whose property was attached, and sought to be subjected to the payment of the demand of the resident plaintiff, Mr. Justice Miiler, after stating the general purpose of the action, and the inability to serve process upon the defendant, and the provision of law for attaching his property in such cases, said: “If the dofendant appears, the cause becomes mainly a suit in personam, with the added incident that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But if there is no appearance of the defendant, and no service of process on him, the case becomes in its essential nature a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is the nature of this proceeding in- this latter class of cases is clearly evinced by two well established propositions: First, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in that suit. No general execution can be issued for any balance unpaid after the attached property is exhausted. No suit can be maintained on such a judgment in the same court, or in any other; nor can it be used as evidence in any other proceeding not affecting the attached property; nor could the costs in that proceeding be collected of defendant out of any other property than that attached in the suit. Second, the court, in such a suit, cannot proceed unless the officer finds some property of defendant on which to levy the writ of attachment. A return that none can be found is the end of the case, and deprives the court of further jurisdiction, though the publication may have been duly made and proven in court.” Page 318.

It is sought to establish a different operation for the judgment plead in bar in this case, by an observation of the court in Pelton v. Platner, supra, and the statutory provision there referred to. That case involved the judgment of a justice of the peace, in attachment, and Wood, J., in the opinion, page 219, remarked that in regard to “such judgments rendered in the common pleas, our statute has made express provision that the judgment shall stand, and execution issue thereon as in other cases.” That provision, now contained in section 5555, of the Revised Statutes, is that: “If judgment he rendered for the plaintiff, it shall be satisfied” out of the attached property, which shall be sold by order of the court for that purpose, etc.; and “if there be not enough to satisfy the same, the judgment shall stand, and execution may issue thereon for the residue in all respects as in other cases.” This last clause evidently has reference to those cases in which the defendant has been served with summons or appeared in the action, and in which, therefore, a personal judgment is properly rendered against him. Many, if not a majority of cases under our attachment laws are of that nature, and to them this provision of the statute may have full and proper application. But to extend its application to cases against non-residents of the state who have not been summoned or appeared, though its language be broad enough to admit of that construction, would bring it into conflict with the constitutional guaranty of due process of law. Pennoyer v. Neff, 95 U. S., 714; Freeman v. Alderson, supra; Kingsborough v. Tousley, 56 Ohio St., 450, 459.

For a like reason a personal ’judgment in such cases derives no force, as counsel seem to contend, from the provision of section 5355, of the Revised Statutes, which authorizes a party against whom a judgment has been rendered without other service than by publication in a newspaper, to have it opened up and be let in to defend, on his application within a specified time. That remedy is available when the proceedings are regular and the judgment is one which the court had jurisdiction to render; and could be pursued to obtain the vacation of the judgment appropriating the attached property to the satisfaction of the plaintiff’s demand. But neither the remedy, nor the failure to pursue it, can supply the want of jurisdiction to render a personal judgment on such constructive service.

We are thus brought to the conclusion that, upon the facts appearing in the pleadings, the balance remaining unpaid on the plaintiff’s claim after the application of the proceeds of the property attached in the Washington county case, was not merged in the judgment therein rendered, and that judgment is not a bar to the present action.

Judgment reversed.

Minshall, C. J., Burket, Speak, Davis and Shauck, JJ., concur.