author: By the Court. Minsharr, J.

text:
    State ex rel. v. Hahn.

      Life Insurance Companies—Foreign—Taxes on gross receipts— Mandamus.

    1. Under section 2745, Revised Statutes, as amended April 19, 1893, a regular mutual life insurance company, incorporated under the laws of another state, and doing business in this state, and having filed its sworn statement in the office of the superintendent of insurance, within sixty days after January first, 1893, as required by sections 3606 and 3608, is required to pay to the superintendent of insurance in the month of December, 1893, such sum, as added to the amounts paid to the different county treasurers, will produce an amount equal to two and one-half per cent of the gross premium and assessment receipts of such company for the year 1892, as shown by such statement filed in the department of insurance.
    2. Mandamus is not the proper remedy to test the question of the amount of taxes to be paid to the superintendent of insurance under section 2745, Revised Statutes, and to prevent the superintendent of insurance from revoking the license of an insurance company to do business in this state. Injunction is the proper remedy in such case.
    (Decided December 22, 1893.)
    The relator, The Penn Mutual Life Insurance Company, of Philadelphia, is a corporation organized under the laws of the state of Pennsylvania, having its principal office at the city of Philadelphia, and having complied with the laws of Ohio, has been permitted by the superintendent of insurance to do business in this state.
    It alleges that it is a regular company, wherein the policy holders participate in the surplus and savings of the company ; that its agents made returns to the various county auditors of this state on or before May 1, 1893, as required by section 2745, Revised Statutes, as amended April 19, 1893, vol. 90, Ohio Laws, 201, and that the relator has paid the taxes assessed in the different counties of the state, and has produced the tax receipts to the superintendent of insurance. Relator further avers that, within sijzty days after the 1st day of January, 1893, it filed in the office of the superintendent of'insurance, the annual statement required by sections 3606 and 3608, on blank forms, prepared and furnished by the superintendent of insurance, showing, among other things, the premiums collected or secured during the year 1892, in cash and notes or credits, without any deduction.
    Relator further avers that subsequent to the 19th day of April, 1893, it presented to the superintendent of insurance a supplement to its annual statement theretofore filed, setting out the deductions to which it claims to be entitled, under said section 2745, as amended April 19, 1893, to-wit: “Dividends or surplus from previous payments allowed and used iu the payment of current premiums, cancellations or surrender values, and commissions paid to citizens of this state,” for the year 1892, and also tendered and offered to pay to the superintendent of insurance the sum of $1,957, in full of the amount of taxes due to the state after payments made to the various county treasurers.
    Relator says that the superintendent of insurance refused to permit said supplemental statement, showing such deductions, to be filed and refused to accept the sum tendered, and demanded a much larger sum, towit: Such a sum, as added to the amounts paid to the county treasurers, would produce an amount equal to two and one-half per cent, of the gross premium and assessment receipts of said company, for the year 1892, as shown by the annual statement filed in the insurance department, within sixty days after January 1, 1893; and that the superintendent of insurance threatens to deprive the relator of its right to carry on its business of insurance in this state, unless the amount so claimed by him shall be paid in full. Relator avers that the state of Pennsylvania does not exact of insurance companies, organized under the laws of Ohio, more than two and one-half per cent, on net receipts.
    The prayer of the petition is that the superintendent be commanded to receive and permit the filing of said supplemental statement, and to accept said sum of $1,957, as payment in full of all demands on the relator.
    The superintendent of insurance, by his answer, admits most of the averments of the petition of the relator, but takes issue upon the construction of the statute, as amended April 19, 1898, and claims that the relator is liable to pay to the superintendent of insurance, such sum as added to the amount paid to the county treasurers, would produce an amount equal to two and one-half per cent, of the gross premium and assessment receipts of the company, for the year 1892, as shown by its original annual statement to the insurance department.
    To this answer there is a general démurrer by the relator.

      G. D. Robertson and Charles T. Greve, for the relator.

      J. K. Richards, Attorney-General and Cyrus Huling, for the respondent.
   By the Court.

The issue made by the demurrer raises the question as to whether the insurance company should pay a tax of two and one-half per cent, upon its gross receipts, or upon its net receipts, ■ for the year 1892. It is admitted that the agents in the different counties, returned the amount of the net receipts in such counties, for taxation therein in May, 1893, and that the company has paid taxes in such counties upon such net receipts. The company claims that the taxes to be paid to the superintendent of insurance, for the year 1892, are such an amount as, when added to the amount of taxes paid in the different counties, shall make a sum equal to two and one-half per cent, of its net receipts, for the year 1892; while the defendant claims that the company must pay a sum to the insurance department, which, when added to the amounts paid in the different counties, shall make a sum equal to two and one-half per cent, of its gross receipts, for the year 1892.

Section 2745 provides, among other things, that certain • dividends, cancellations, values and commissions, “shall be -deducted from such gross receipts and the net amount after •such deduction, shall be the basis of taxation, for such ■companies under this section.” This seems favorable to the claim of the relator, and, if it stood alone, would be con-clusive.

Further along in the same section it is provided that, “it shall be the duty of the superintendent of insurance, in the month of December, annually, to charge and collect from such companies or associations such a sum as, added to the amount paid to the county treasurers, will produce an ■amount equal to two and one-half per cent, on such receipts ■•of such companies and associations, as shown by their annual statements under oath to the insurance department.” It ■will be noticed that, by this latter provision, the two and one-half per cent, is to be calculated on such receipts of the company, as are shown by the annual statements under oath to the insurance department.

The only annual statement to the insurance department -of the relator, is the statement filed within sixty days after January 1,1893, which showed the amount of premiums, without deduction, that is the gross receipts. There is no sworn statement of the company in the office of the insurance department showing the net receipts or the various -deductions claimed, and there is no law requiring or authorizing the filing of such supplemental statement, as was presented by the relator to the defendant, and he therefore did right in refusing to allow the filing of the same. It follows that, as to the taxes to be paid for the year 1892, the superintendent of insurance is right in calculating the tax on the gross receipts of the company, as shown by its sworn statement filed within sixty days after January 1,1893. Whether the same rule would apply for the years following 1892, it is not now necessary to decide.

Another question arises in this case, and that is whether mandamus is the proper remedy.

By section 6741, Revised Statutes, mandamus is defined vto be a writ commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.

By section 2745, it is made the duty of the superintendent of insurance to charge and collect from insurance companies the taxes provided for in that section. No complaint is made that he refuses to perform this duty, but the complaint is that he is too vigorous and aggressive in its performance; that is, he has charged and is about to enforce collection of more than is due, and threatens to revoke the license of the relator, unless such taxes as he has charged shall be paid at once. Eor such a complaint the remedy is clearly by injunction and hot by mandamus.

If mandamus can be resorted to in cases like this, there is nothing to prevent every taxpayer who is dissatisfied with the amount of his taxes, to test the question of the legality of such tax by mandamus.

It is manifest that the real object of the relator is to prevent the superintendent of insurance from revoking its license to do business in this state.

The relator is not so concerned about the welfare of the state of Ohio, as to come all the way from Philadelphia to institute proceedings in mandamus to compel one of the officers of this state to receive money, which said officer does not clearly see his authority to receive.

Eet the relator be assured that its right to do business in this state will not be interrupted, and it will let the state look after the collection of its own funds, without the aid of the relator, so that its claim that it seeks to compel the superintendent to receive money due his department is only colorable, and the real object is to prevent a revocation of its permit to do' business in this state, and for such object the proper remedy is injunction.

Should the license be revoked, and the relator should comply in all respects with the laws of this state, and the superintendent of insurance should refuse to issue a new license, he could be compelled to do so by mandamus; but this is not such case. Here the object is to enjoin the superintendent from revoking the license.

True, the case of State ex rel. v. Reinmund, 45 Ohio St., 214, was a case like the one here under consideration, and the remedy was by mandamus; but the question as to remedy was not there fjjjised, and seems not to have been thought of by any one connected with the casé. It is, therefore, not an authority in favor of mandamus in such cases.

The demurrer of the relator to the answer of the defendant is overruled.

Minsharr, J.

This court has original jurisdiction in quo warranto, mandamus, habeas corpus, and procedendo, and none other. It has no original jurisdiction in matters of injunction, and none can be conferred by the legislature. To assume it, in any case, is simply judicial usurpation. This is a suit for an injunction in the form of a proceeding in mandamus. The form, however, is nothing; it is the substance that gives real character to the proceeding. Hence, this court has no jurisdiction of the subject matter of the suit, and it should be dismissed for want of jurisdiction. I should not, probably; differ from the construction placed on the statute by the majority, if the case were before us in a proceeding in error; but it is not, and the construction given can only be regarded as an extra judicial opinion.


source: Caselaw Access Project

author: By thr Court.

license: Public Domain

text:
    Biddinger et al. v. Pratt.
    Replevin— When action may be maintained on bond, in—Homestead— Who is an owner of.

    1. An action may be maintained upon an undertaking in replevin in which it is stipulated that the plaintiff will duly prosecute the action, notwithstanding the original action was dismissed, , on motion of the defendant, on the ground that the justice of the peace had no jurisdiction.

      2. An. owner of a life estate in lands occupied by him as a family residence, who has conveyed his interest to a creditor with an agreement for a reconveyance upon the payment of the debt, is the owner of a homestead within the meaning of section 5435, Revised Statutes, and is, therefore, no-t entitled to claim the exemption of personal property provided for by section 5441.
    (Decided December 22, 1893.)
    Error, to the Circuit Court of Hamilton countj^.
    On August 20, 1888, a judgment was rendered in favor of one Metier, for $224, against T. J. Biddinger. An execution issued to Jeremiah Pratt, constable, who levied upon certain goods. Biddinger brought replevin against Pratt before a justice of the peace of Cincinnati township, claiming that he was not the owner of a homestead, and was entitled to the goods in lieu thereof. The constable took possession of the property and delivered it to Biddinger, who executed a replevin undertaking, with sureties. Pratt filed a motion to dismiss the replevin suit, for the reason that the justice had not jurisdiction, as both parties and subject-matter were within the jurisdiction of Harrison township, which motion was sustained, and the cause dismissed. No other judgment was rendered by the justice, nor was any execution issued. The goods remained in the possession of Biddinger.
    Suit was thereupon instituted before a justice by Pratt against Biddinger, and his sureties on the undertaking, which was appealed to the common pleas, where the case was submitted on an agreed statement of facts. The court charged the jury that, on the agreed facts, Biddinger was the owner of a homestead, and not entitled to the propert3'levied upon in lieu thereof,, to which defendant excepted. Verdict followed for Pratt, and judgment upon it, which was affirmed by the circuit court.

      David Davis, for plaintiffs in error.

      T. C. Gaymond' and Geo. B. Goodhart, for defendant . in error.
   By thr Court.

One of the stipulations of the undertaking was that the plaintiff “would duly prosecute the action,” and this means prosecute it to effect. This he failed to do. True, the action was dismissed for want ot jurisdiction in the justice to try it, and on the motion of the defendant, But the plaintiff cannot be heard to complain of that because he elected to bring his action in that, court, and used its process to obtain possession of the property in dispute, which he still retained; neither can his-sureties, because, by signing the undertaking they agreed to make good the default of the principal, and whatever liability attaches to him by reason of the obligation, must equally bind them. The defendant is not at fault. He was given the choice either to challenge the jurisdiction, or, by silence, consent to have his rights adjudicated by a court which was'without jurisdiction. He should not be prejudiced by this effort to vindicate his rights.

The agreed statement of facts shows that the plaintiff had been the legal owner of a life estate in 142 acres of land, on which, with his family, he resided. He had no other real estate. Prior to the beginning of the suit in replevin, he had made a deed of this parcel of land to a creditor as security for a debt, with an agreement that when the debt should be paid the grantee would deed it back. In other words, Biddinger’s deed was but an equitable mortgage. Under the principle laid down in Bartram v. McCracken, 41 Ohio St., 377, he was the owner of a homestead, and therefore not entitled to hold exempt from execution personal property in lieu of a homestead.' There is no error in the charge.

Judgment affirmed.


author: By thu Court.

text:
    Kingman v. Williams.

      Partition fences— When one adjoining proprietor can compel another to contribute to expense of construction of.

    One adjoining proprietor can compel another to contribute to the expense of building or maintaining a partition fence between their lands, only, when the partition fence completes an enclosure which contains no other lands than those of the latter.
    (Decided December 22, 1893.)
    Error to the Circuit Court of Morrow county.
    The defendant in error began an action before a justice of the peace of Morrow county to recover of the plaintiff in error a sum of money which, with the costs of the proceedings had before them, the trustees of Eincoln township of said county had assessed against him as the just proportion of the expense of a partition fence that the defendant in error had built separating the adjoining lands of the parties. The cause was taken to the court of common pleas, where a trial was had to a jury, resulting in a verdict and judgment for defendant in error for the sum claimed by him, which judgment was affirmed by the circuit court; whereupon proceedings were instituted in this court to reverse the judgments of both the circuit and common pleas courts.
    N H. Kingman and B. Andrews, for plaintiff in error.

      T. S. White and Olds & Olds, for defendant in error.
   By thu Court.

One of the grounds upon which the plaintiff in error contested the right of his opponent to compel him to contribute towards the cost of the fence in dis-' pute was that his lands which lay adjacent thereto were not enclosed.

The record discloses that at the point in dispute the lands of the plaintiff in error lie between those of the defendant in error on the east and lands of Daniel Warner on the west, and that the fences of Warner, those of the plaintiff in error, and the fence, the subject of contention, when taken together, will enclose a body of land, part of which, belongs to Warner and part to plaintiff in error.

This is more clearly shown by the following plat of the premises:

But whether there was at the time of the award by the township trustees, a fence along the line (marked “no fence”) between Warner’s lands and those of the plaintiff in error, which, together with the disputed fence and other fences of the plaintiff in error, would inclose a part of the latter’s land separate from that of Warner, was a matter of sufficient contention between the parties as to make the following proposition which the plaintiff in error requested the court of common pleas to give to the jury, pertinent, to wit:

“1st. That at the time the trustees—in September, 1887 —made the assignment of the fence to be constructed or repaired, said fence in dispute must have made a complete enclosure of the wood-lot or lands of the defendant, King-man, and that an enclosure of said defendant, Kingman’s wood-lot or lands, with lands of an adjoining owner would not in law make an enclosure of the wood-lot or lands of the defendant, Kingman.”

The court refused to give this proposition to the jury, to which refusal the plaintiff in error excepted. This request and refusal raises the only question we find necessary to consider.

This proposition, we think, contained a correct exposition of the law in this connection, and, as the general charge of the court contains no substitute for it, to refuse to give it to‘the jury was error. An examination of sections 4239, 4240, 4241 and 4242, Revised Statutes, discloses a legislative purpose to impose a duty to build and maintain partition fences upon such land-owners only as have adjoining lands that will be inclosed by the partition fence, separate from those of other proprietors. The word “inclosure” in those sections should be held to mean inclosures that include only land of the party upon whom the duty to build the partition fences is enjoined. If the land of some other proprietor should be included in the inclosure there would be no equity in enforcing contribution against one thus situated, for he could not use the enclosure for his own animals, because they would tresspass upon the lands ■of the other proprietor within the enclosure. The present policy of the state is to require every owner to restrain his own animals; but where two adjacent proprietors have enclosed their respective lands on every side, except where their lands adjoin, and a partition fence, only, is wanting to secure to each of them a complete separate inclosure of his own lands, thus making them available for every purpose connected with farming and stock raising, it is manifestly just and fair that each should contribute thereto, and the sections of the statutes under consideration should be construed accordingly.

The judgment of the cb'cuit and court of common pleas reversed, and the catise remanded to the court of common pleas for further Proceedings,


author: By the Court.

text:
    Doerr v. Forsythe, Adm’x.
    Divorce— When does not affect dower rights.

    A divorce obtained by a husband from his wife in another state,, without service other than by publication, and she being at the time a citizen of and residing in this state, does not in any way affect her property rights in this state.
    (Decided December 22, 1893.)
    Error to the Superior Court of Cincinnati.
    The suit below was an action brought by Raura Ann Wood, then living, to recover dower in certain lands, owned by the defendant, and particularly described in the petition. The defendant answered denying the plaintiffs right on grounds, in substance as follows: That the plaintiff was not the widow of Isaac M. Wood at the time of his death, he having been divorced from her by the decree of an Indiana court; and,'also, that she and Isaac M. Wopd had, before that time, separated upon a written agreement by which, among other things, she had bound herself not to claim dower in his lands. Issues of fact were made upon these averments by a reply. The court upon the trial found the facts and its conclusions of law thereon separately as follows:
    “That the plaintiff Raura Ann Wood and Isaac M. Wood were intermarried on December 9, A. D. 1851, in the city of Cincinnati.
    “2. That at the time of said marriage the said Isaac M. Wood was in possession of the real estate described in the petition and was owner thereof in fee simple.
    “ 8. That afterwards, on May 31,1854, by reason of disagreements theretofore, a certain article of agreement oí separation was made in writing by and between them and one Robert M. Boal, a minister of the Presbyterian church in Cincinnati, who was nominated as trustee to receive and hold for said Raura Ann Wood certain real estate in the county of Hamilton, Ohio, to wit: Rots Nos. 17 and 18 in A. Rongshore’s addition in the town of Cheviot in Green township, also lots Nos. 15 and 16 in Isaac A. Rockenfeld’s subdivision of an addition to said town of Cheviot, also two lots Nos. 38 and 39 in Harry Morse’s subdivision in Millcreek township .of said county, and the said Robert Boal, as trustee was to receive from Isaac M. Wood, husband of said Raura Ann Wood, $500.00 in cash, and the note of Isaac M. Wood for $500.00 more, payable to the order of said Boal, trustee, in one year after said date of May 31, 1854. .
    “ And the court further finds that in and by said agreement of separation, it was provided further, to-wit:
    “‘That she, the said Raura Ann Wood shall and will sign all deeds of conveyance for the sale of her interest in the estate of her said husband, which he now owns and may hereafter acquire; she, the said Raura Ann Wood hereby agreeing to waive and release all right of dower and all interest whatever in all real or personal property now owned, or which may hereafter be owned and held by the said Isaac M. Wood,’ a true copy of which agreement is attached to the answer of the defendant, as “Exhibit A,” and is made a part of this finding.

      “4. The court further finds that there is no evidence tending to show that the provisions so made for the wife were fair, reasonable and just to her. That in fact she received little or nothing from the real estate, the cash and note mentioned. That the real estate described in the agreement was sold for taxes, that she got twenty dollars. ($20) of the cash and note referred to in said agreement.
    “ 5. The court further finds that Isaac M. Wood in the-year 1858 removed from the city of Cincinnati to the county of Franklin in the state of Indiana, and that the said Eaura Ann Wood removed to Dayton, Ohio.
    “That by the consideration of the circuit court of' Montgomery county, in the state of Indiana, a court, authorized by the laws of Indiana to grant divorces, in an action wherein Isaac M. Wood was plaintiff and Eaura Ann Wood was named as defendant, such proceedings were had that a publication of the pendency of said action was had in the form and for the time described by the statutes of the state of Indiana, and thereupon the said' circuit court, at its May term, A. D., 1859, made its certain order and judgment of divorce in words as follows, to-wit : It is therefore ordered, adjudged and decreed by the court that said Isaac M. Wood be and he is hereby divorced from Eaura Ann Wood.’
    “ 6. The court further finds that the records of the proceedings of said Circuit Court of Montgomery county, Indiana, do not disclose the grounds of divorce, except as heréin before shown.
    “7. This court further finds that Eaura Ann Wood knew nothing of the said proceedings of divorce until after the death of Isaac M. Wood, but that by the laws of the state of Indiana, then in force, said decree of divorce released both the husband and wife absolutely from the marriage contract, and dissolved the marriage relation.
    “8. The court further finds that after said judgment of divorce in Montgomery county, Indiana, the said Isaac M. Wood intermarried with Elizabeth McNeff, and that after1 said second marriage, the said Isaac M. Wood and Elizabeth C. Wood, under date of July 4, 1867, executed and delivered a deed in fee simple, the said Elizabeth C. releasing all her right and dower therein, by which the real ■estate in the petition was conveyed to John Meyers, in consideration of $9,000, then paid by Meyers, and subsequently under date of August 19, 1875, Meyers conveyed the said real estate to Anton Buening, and subsequeutly under date of August 25, 1875, Buening, in consideration of $13,300 conveyed the said real estate to Charles Doerr, the defendant herein.
    “9. That the original plaintiff, Laura Ann Wood, departed this life on November 23, 1886, and that on December 10, 1886, Josephine L. Eorsythe was duly appointed and ■qualified sole administratrix of her estate.
    “conclusions op law.
    “ And as separate conclusions of law the court finds:
    “1. That notwithstanding said agreement in writing of ■date May 31, 1854, and the decree of divorce rendered by the circuit court of Montgomery county, Indiana, the said Laura Ann Wood, at the time of the commencement •of this action and up to the day of her decease was entitled to dower in said premises.
    “2. That Josephine L. Forsythe, as administratrix of the said Laura Ann Wood, deceased, is entitled to recover of the defendant the value of the dower of the said Laura Ann Wood, from the date of the filing of this petition lerein to the date of the decease of said Laura Ann, to-wit, from February 29, A. D. 1884, to November 23, 1886, as by the statute in such cases made and provided.
    “To all of which findings of fact, and conclusions of law, the defendant excepted, and moved the court to set them aside, and for a new trial, upon grounds stated in the motion.”
    In substance, the grounds were, that the findings are not supported by the evidence, and that the court erred in its conclusions of law. The motion was overruled and judgment rendered according to the prayer of her petition, to all which the defendant excepted. This petition in error is prosecuted to reverse the judgment, on the ground that it is contrary to law.

      Kramer & Kramer and Lowery Jackson, for plaintiff in error.

      Wm. Disney, for defendant in error.
   By the Court.

The court below did not err in its conclusions of law from the facts as found. The decree of divorce granted the husband in the state of Indiana, acted only on the marital relation between the parties, and did not affect, nor purport to affect, the property rights of the wife in the state of Ohio. For aught that appears, the divorce may have been granted on some ground not recognized as a ground of divorce by the laws of this state; so that it cannot be said that it was granted for any aggression of hers, within the meaning of section 5700, Revised Statutes.

But if it were otherwise, as she had no opportunity to defend, all that can be claimed for that decree, is that it dissolved the marriage relation between the parties, and restored the husband to the status of an unmarried man. This the court could do; but, as it had no jurisdiction of the person of the wife, it was not competent to the Indiana court to affect such rights as she had acquired in the property of the husband under the laws of this state. Mansfield v. McIntyre, 10 Ohio, 27; McGill v. Deming, 44 Ohio St., 645.

Judgment affirmed.


author: Spear, J.

text:
    Rogers v. Rogers.

      Divorce — Custody of Children — ftirisdiction—Alimony—Appeal.
    1. The jurisdiction of the court of .common pleas over the subject of the custody of minor children in dfvorce cases is a continuing jurisdiction, and may, on proper application, be invoked to modify orders originally made in respect to the custody of children whenever changed conditions require it. Hoffman v. Hoffman, - 15-0faio-Str427, approved and followed. And the filing of a motion in the original cartse is a proper method of making application to the court for that purposé.
    2. An.order made by the common pleas in granting a motion to modify the original decree in a divorce case, as to the custody and maintenance of minor children, which requires the father to pay to the mother a monthly stipend for the support of the children of whom she is given the custody, is not an order for the payment of alimony, and no appeal can be taken from such judgment to the circuit court.
    (Decided January 28, 1894.)
    Error to the Circuit Court of Franklin county.
    At the January term 1889, of the court of common pleas of Franklin county, in an action therein pending wherein Anna Rogers (defendant in error) was plaintiff and John Rogers (plaintiff in error) was defendant, a decree was rendered granting divorce to plaintiff on account of the aggression of the defendant, and adjudging to her, as alimony, certain real estate therein described. The decree gave the custody of five of-the children of the parties to the defendant, and of the youngest child to the plaintiff, and further provided that the jurisdiction of the court, as to the custody of the children should be a continuing one, and that the order made should be subject to any modification in the future that the court, upon attention being called to the case, might see fit to make.
    On the 20th of October following the plaintiff filed a motion to modify the order as to the custody of the children upon grounds alleged to have arisen after the making of the first order. At the January term, 1890, this motion was heard in open court, both parties appearing, and the order so far modified as to take the custody of two of the children from the defendant and give it to the plaintiff, and ordering further that the defendant pay to the plaintiff the sum of $15.00 per month, for the support of said children until the further order of the court. To all which orders the defendant excepted, and gave notice of appeal. A bill of exceptions was taken, and bond for appeal duly given.

      At the September term, 1890, of the circuit court of Franklin county, the judgment of the common pleas, as to the order awarding the custody of the two younger children to plaintiff, was affirmed, and, on motion of the plaintiff, the appeal, as to order for payment of $15.00 per month for support of the children, was ordered dismissed. Error is now prosecuted to procure a reversal of both these judgments.

      Thomas E. Steele, for plaintiff in error.
    It is well settled by statute, as well as by uniform practice, that a judgment in Ohio cannot be vacated or modified at a subsequent term, upon motion merely.
    In the various suits brought at various times, to modify decrees for alimony, the continuing jurisdiction on that subject being analagous to the con-, tinuing jurisdiction which courts of equity retain over the custody of children, the same method has universally been followed in all cases reported by this court. Neil v. Neil, 38 Ohio St., 588; Olney v. Watts, 43 Ohio St., 499; Cox v. Cox, 19 Ohio St., 502; Peterson v. Thomas, 28 Ohio St., 596; King v. King, 38 Ohio St., 559.

      James A. Allen, for defendant in error.
    "The former decree may. be' modified upon motion in the original cause, stating such facts; or by supplemental petition, or answer, as the case maybe; or an original action may be maintained. Yaples Code Prac. Vol. 2, 1133; 15 Ohio St., 436; Bishop on M. & D., Sec. 530; 1 Am. and Eng. Ency., 481; Ryce v. Ryce, 52 Ind., 64.
   Spear, J.

It is contended that it was error for the common pleas to entertain the motion to modify the order as to the custody of the children at a subsequent term, because the order made at the time the divorce was granted was a final order, and a change of it could be effected only by the filing of a petition under the chapter relating to the modification of decrees by petition.

The authority of the court over the matter of custody of minor children of parties to divorce proceedings is probably inherent, but, it is in terms given by the divorce statute, section 5696, where it is provided that “the court shall make such order for the disposition, care, and maintenance of the children, if any there are, as is just and reasonable. ’ ’ That this jurisdiction is a continuing one, and that it “may, on proper application, be invoked to modify orders originally made in respect to the custody of children whenever the character and circumstances of the case or of the parties require it,’’was held in the case of Hoffman v. Hoffman, 15 Ohio St. 427, and affirmed in Neil v. Neil, 38 Ohio St. 558. But whether, in order to invoke the action of the court for the purpose of effecting a modification, it is necessary to proceed by petition, as in the commencement of a new action, or the same result may be secured by the filing of a motion, nas not been determined.

It is probable that even if the former course were regarded as the proper one, the plaintiff in error could not now be heard to complain of the irregularity, having tried the question on its merits, and submitted it to the decision of the court. But we are inclined to think that, although there is probably no objection to the method of procedure by petition, yet that, where the parties have due notice, and full opportunity to prepare and be heard, there can be no impropriety in the court acting on a motion duly filed in the original cause for the purpose. Indeed, it would seem to follow from the fact that the court retains jurisdiction by reason of the original proceedings, that the filing of a motion in that ease is the logical method, and it would seem to possess positive advantages. The persons whose interests are to be affected are wards of the court, and it is often important for their good that the court’s attention be early called to any changed condition which makes a.modification of the original order as to their custody and maintenance necessary. The process by motion is less likely to be attended with delays than where resort is had to petition and summons, and the speediest mode may, because of that fact, be the best mode. Ryce v. Ryce, 52 Ind. 64.

The claim that the order, requiring the payment of $15.00 per month for the support of the children is one from which an appeal may be taken must rest, for its support, if support it has, upon the proposition that it is, in substance, an order for the payment of alimony, for the statute relating to divorce and alimony provides (section 5706) that “no appeal shall be allowed from any judgment or order of the court of common pleas under this chapter, except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony.” But is the order one for alimony? As said by Dickman, J., in Pretzinger v. Pretzinger, 45 Ohio St. 459: “Alimony allowed by the court below is not to be construed into an allowance for the support, also, of the child. Alimony, in its proper signification, is not maintenance to the children, but to the wife. ”

We think the order was not an order for the payment of alimony, and hence, under the statute above quoted, no appeal would lie to the circuit court.

Judgments affirmed.


author: Burket, J.

text:
    Johnston v. Oliver et al.

      Estoppel — Interpleader—Election— Pract ice— Waiver.

    In an action upo'n the following bond: “Whereas, Isaac Gates, sheriff of the county of Ashland, has attached certain moneys in the hands of Barton Roseburgh on an order of attachment issued from the court of common pleas for said county of Ash-land, in an action wherein Sarah A. Johnston is plaintiff, and Martha DeHaven is defendant, as the property of Martha De Haven, and whereas said moneys, are now held by the said Barton Roseburgh by reason of said attachment so served upon him by said Sheriff of Ashland county, as aforesaid. Now, we, Martha DeHaven and Paul Oliver, do acknowledge ourselves to be bound to Sarah A. Johnston, plaintiff, in the sum of $2,500, that said moneys so attached, to-wit: money in the hands of Barton Roseburgh, being the sum of $3,200, shall be forthcoming to answer the judgment of the court in the said action, together with all costs. Martha DeHaven, Paul Oliver.” Held:

    1. That the signers of such bond are conclusively estopped from claiming that the money so attached belonged to some person other than the attachment debtor; and that an interpleader between plaintiff and a third person claiming to have been the owner of the attached money at the time of the attachment, should not be ordered or allowed.
    2. When the subject of the action by the plaintiff, as shown by his petition, is different from the subject of the action, as shown by the answer and cross petition of the third party who. has been brought m to interplead, no interpleader should be allowed; and the answer and cross petition of such third party should be stricken from the files, and the action should proceed between the original parties.
    3. A defendant can not be allowed to take issue with the plaintiff by answer, and at the same time have a third party brought in to interplead with the plaintiff, as to the subject of the action. He must elect between interpleader and answer. He cannot have both. An answer, with full knowledge of the facts, is a waiver and abandonment of the interpleader.
    (Decided January 23, 1894.)
    ERROR to the Circuit Court'of Richland county.
    The action below was commenced by Sarah A. Johnston against Paul Oliver and Martha DeHaven, in the Court of Common Pleas of Richland county, on a bond of which the following is a copy:
    “Whereas, Isaac Gates, sheriff of the county of Ashland, has attached certain moneys in the hands of Barton Roseburgh on an order of -attachment-issued from the court of common pleas for said county of Ashland, in an action wherein Sarah A. Johnston is plaintiff, and Martha DeHaven is defendant, as the property of Martha DeHaven, and whereas said moneys are now held by the said Barton Roseburgh by reason of said attachment so served upon him by said sheriff of Ashland county as aforesaid. Now, we, Martha DeHaven and Paul Oliver, do acknowledge ourselves to be bound to Sarah A. Johnston, plaintiff, in the sum of $2,500, that said moneys so attached, to-wit: money in the hands of Barton Roseburgh, being the sum of $3,200, shall be forthcoming to answer the judgment of the court in the said action, together with all costs.
    Martha DeHaven,
    Paul Oliver.
    “Above bond approved by me this 13th day of April, 1883.
    “Jabez Dickey, Judge.''

      An amended petition was filed, as follows:
    “Plaintiff, for cause of action against the defendant says, that prior to the 13th day of April, 1883, she; had commenced an action against Martha DeHaven which was. then pending in the court of common pleas of. Ashland county, Ohio, to recover the sum of thirteen, hundred and ninety-eight dollars and thirty-seven cents and costs of suit; .that in said suit she caused an attachment to be issued against said defendant, Martha De-Havenj and certain property and money were attached, said money being in the hands of Barton Roseburgh, and the said Martha DeHaven being desirous of procuring a dissolution and discharge of said attachment, executed and delivered her bond or undertaking to the said plaintiff, with Paul Oliver as surety, in the penal sum of $2,500, conditioned that the attached money, to-wit: $3,200, should be forthcoming to answer the .judgment of the court in said case, together with costs. That on the motion of said Martha DeHaven said bond was approved by said court and substituted for said attachment, and upon the filing of said bond, said attachment was discharged and released by order of said court. That a true copy of said bond is hereto attached and marked ‘Exhibit A,’ and made a part of her amended petition.
    “Plaintiff further says that in said action, at the February term, 1887, by the consideration of said court, she recovered a judgment in said action against the said Martha DeHaven in the sum of $1,398.67, and costs of suit, taxed at $58.67, which judgment bears interest from February 28, 1887.
    “Which judgment is unpaid and in full force and unsatisfied; that said Martha DeHaven is wholly insolvent and has no property out of which said judgment can be made; that plaintiff has demanded from defendant, Paul Oliver, the amount of said judgment and costs in satisfaction of said bond which he has refused to pay or any part thereof.
    “Wherefore plaintiff prays judgment against the defendants in the sum of $1,457.04, with interest from February 28, 1887.”
    The defendant, Oliver, filed an affidavit in due form, setting up that one Mary E. McClure made claim to the sum of money sued for in said petition, and asking that an interpleader between the plaintiff, Mrs. Johnston, and said Mary E. McClure be ordered. The defendant, Oliver, also filed an answer in which he admitted that plaintiff had commenced an action against Mrs. DeHaven in the court of common pleas, as averred in the petition, for the sum averred; and that she procured an attachment and attached the moneys as stated, and says that he was requested by said Mary E. McClure to sign a bond with her for the release of said money so attached; that he signed a bond in blank and left it with the attorneys of Mrs. McClure, and that if it was filled out as set forth in the petition, that it was contrary to his request, understanding and instructions, and without his knowledge. He admits the rendition of the judgment against Martha DeHaven and her insolvency, and that the plaintiff has demanded the money from him, and he denies each and every other allegation in the petition contained.
    He further says that he has been sued by Mrs. McClure, and says he has no interest in said property, and is ready and willing to deliver it to the person entitled thereto. To this there is a reply filed, in effect denying the averments of the answer, and denying the right of Mr. Oliver to an interpleader.
    An order was made to the effect that Mrs. Mc: Clure be made’ a party defendant, and that she have leave to file an answer and cross-petition by January 10, 1888. She failed to file such answer within the time allowed, but afterwards, on the 5'th day of July, 1889, she presented her answer and cross-petition to the court, duly verified, and asked leave to file the same, to which objection was made by plaintiff’s counsel, and the court refused to allow Mrs. McClure to file her answer and cross-petition, to which she, as well as Mr. Oliver, at the time excepted. The case was then submitted to the court upon plaintiff’s amended petition, exhibits and testimony, and judgment rendered in favor of Mrs. Johnston and against Mrs. DeHaven and Mr. Oliver, for the amount prayed for in the petition, with costs.
    A bill of exceptions was taken, setting out the affidavits for interpleader, and the answer and cross-petition offered to be filed by Mrs. McClure.
    A petition in error was filed in the circuit court of Richland county, and upon hearing that court reversed the judgment of the court of common pleas, on the ground that the interpleader ought to have been allowed, and remanded the case to the court of common pleas for further proceedings. . Thereupon Mrs. Johnston filed her petition in error in this court, to reverse the judgment of reversal of the circuit court.

      R. W. Johnson and D. Dirlam, for plaintiff in error.

      This bond is not in the exact language of the statute; but we contend that, by any fair construction, it is identical in effect. It is a promise to perform the judgment which is a monied judgment; a promise that money shall be forthcoming to answer the judgment, is equivalent to a promise to pay the judgment, and that means, perform the judgment. Secrest v. Barbee, 17 Ohio St., 425.
    Not only the language of the bond should be considered, but the provisions óf the statute are to be regarded as much a part of the bond as if written therein. Alexander v. Jacoby, 23 Ohio St., 384; Kelly, et al. v. State, 25 Ohio St., 567.
    Under our statute, which provides for an inter-pleader, a party cannot first claim an interpleader and then by answer litigate his liability to either of the interpleading parties on the instrument sued on.
    The definition of “interpleader” will be found in the American and English Encyclopedia, page 494.
    To entitle a party to an interpleader he “must be in danger of having to discharge his (single) liability twice over at least. ’ ’ ‘ ‘All parties against whom he seeks relief must claim of him the same thing, debt or duty, adversly to each other.” Ency., page 490 to 501. Farr v. Wood, 2 M. & W. 844; Insurance Co. v. Pingrey, 141 Mass. 411; Cochrone v. O'Brien, 2 Jo. & Lat., 380; Randall v. Lithgow, L. R. 12 Q. B. C., 525; Adams Equity, 204; Bisphams Equity, par. 421; Crashway, v. Thorton, 2 My. & Cr., 1; James v. Pritchard, 7 M. & W., 216; Patroni v. Campbell, 12 M. & W., 277; Couly v. Ala. G. C. I. Co., 67 Ala., 472; 56 Cal., 433; 24 Minn., 66; B. & O. Co. v. Arthur, 90 N. Y., 234; 45 N. Y., 580; 24 Vt., 639; 7 Sim., 383; 14 How. Pr., 505; 77 Ill., 139; 4 R. I. 313; Tucker v. Morris, 1 Dow, 639.

      Jenner, Tracy & Weldon, for defendant in error.
    This action is upon contract. We admit that Mary E. McClure was a stranger to the controversy between Sarah A. Johnston and Martha DeHaven, as claimed, by counsel for plaintiff in error, but they had her money tied up by attachment. The fact that the counsel of Mary E. McClure might have proceeded differently to have her money released, certainly does not deprive the defendant in error of his statutory rights to divest himself of this trust fund.
    The court of common pleas refused to consider any question save and except the execution of the bond. It refused to allow Paul Oliver to divest himself of the fund under section 5016, Revised Statutes, and refused to allow Mary E. McClure or Paul Oliver to show that this money attached was the money of Mary E. McClure, or that the bond as filled out was a fraud upon Paul Oliver.
    Counsel assume that this bond was given and intended to be given under section 5545, Revised Statutes, notwithstanding its denial by the record. This bond as- executed, although not filled out as directed by Paul Oliver, is in accordance with section 5529, Revised Statutes.
    As to the right of a trustee to divest himself of the trust fund.
    Oliver knew that the money he received was the money of Mrs. McClure, and this he alleges to be the fact in his answer. He had, before the commencement of this action been sued by Mrs. McClure, for this money, in Ashland county. He is but a trustee of this fund. He executed a bond in accordance with section 5529, Revised Statutes. He admits that he holds the money as trustee, and asks the court to determine to whom he may safely pay it. The money that was formerly in the hands of Roseburgh, and now in the hands of defendant in error, is certainly the subject of the action. Mrs. McClure denies the execution of the bond. Was not this a question for the court to pass upon? She says the money attached never was the money of Martha DeHaven, but belonged to her. Mrs. McClure has never had an opportunity in any court to establish her claim. Would not this have been a good opportunity for plaintiff-in error to disprove these claims of Mrs. McClure, if they were groundless, and was not this an issue tendered?
   Burket, J.

The only question here involved is, whether or not Mr. Oliver was entitled to have Mrs. McClure interplead with Mrs. Johnston in this case.

It is contended by plaintiff in error that the bond was given under section 5545, Revised Statutes, while the defendant in error contends that the bond was given under section 5529. The result of this case would be the same whether the bond was given under one or the other of these sections ; because the giving of a bond under either section, has the effect to place the property attached into the hands of the person in whose possession it was found by the- sheriff, and prevents the attaching creditor of the security afforded by the sheriff’s possession of the property, and substitutes therefor the security afforded by the bond.

Section 5545 goes farther than section 5529, and discharges, not only the attachment, but also the liability of all garnishees.

In this case it clearly appears that Mr. Rose-burgh did not deliver the money to the sheriff, and that he was garnisheed and required to answer as provided by section 5547.

Had Mr. Oliver kept out of the suit, and permitted the case to take its ordinary course, Mr. Roseburgh would have been compelled to answer under oath, and disclose whether or not he owed this money to Mrs. DeHaven. Had he denied owing it to her, the question could have been settled by Mrs. Johnston without delay, in the usual course of law.

Instead of allowing this course to be pursued, Mr. Oliver, by his interference and the giving of his bond, changed the course of the litigation, discharged the attachment and liability of the garnishee, prevented an inquiry as to the ownership of the attached money, and bound himself in the sum of $2,500, that the money should be forthcoming to answer the judgment in that action, which was, in legal effect, binding himself to pay the judgment, not exceeding the amount of his bond. Any arrangement thereafter made by Mr. Oliver, Mrs. McClure and Mr. Roseburgh, as to the money attached, could not affect the rig’hts of Mrs. J ohnston, nor the liability of Mr. Oliver on his bond. '

By some subsequent arrangement among these three parties, Mr. Oliver, Mrs. McClure and Mr. Roseburgh, the attached money was placed in the hands of Mr. Oliver, and he ever thereafter held the same; and then, when sued on his bond, he says that he cannot tell to whom the money belongs and that it is claimed by Mrs. McClure, and he asks an interpleader.

Under these circumstances Mr. Oliver is conclusively estopped, as between himself and Mrs. Johnston, from denying that Mrs. DeHaven was the owner of the money so attached; and he is liable on bis bond whether she was such owner or not. Having recited in his bond that the money was attached as the property of Mrs DeHaven, and bound himself that the money should be forthcoming to answer the judgment in the action, and having thereby discharged the attachment and garnishee and obtained and held the money himself, and changed the course of the litigation, he cannot now be heard to say that this money did not belong to Mrs. DeHaven at the time of the attachment. The authorities are clear, that in all such cases, the obligor on the bond is estopped from claiming the ownership of the property to be different from what is recited in the bond. He can neither claim the ownership to be in himself nor in any third person.

In the ease of Dezell v. Odell, 3 Hill, 215, the receipt was as follows:

“Received of H. Odell, constable, one bay horse, one sorrel mare, one double wagon, one bureau and one cow, which I agree to deliver to H. Odell on the 29th day of October on the premises of Alexander Dezell, at ten o’clock in the forenoon, in the town of Lisbon.
“James Dezell.”

In an action by Odell against Dezell for the conversion of the property mentioned in this receipt, the defendant undertook to claim that he was the owner of the property. The court held that he was estopped by his receipt from claiming the ownership of the property. Cowen, J., in delivering the opinion, uses this language: “It may be conceded that, had the defendant’s claim been interposed at the time of the levy, and he had signed the receipt in terms, without prejudice to his right, the question would have been open. The creditor would thus have been put upon his guard, and enabled to seek for- other property, on finding- that his debtor had no title to that in question. Indeed, here was a course of action on the part of the receiptor directly calculated to influence the conduct of the creditor in a way prejudicial to his interests, unless we hold the receiptor. The officer being-induced to part with the possession or to forebear taking- actual possession, by the receiptor recognizing his right and agreeing to take or hold for him, was itself an injury, if we now let the defenant go free. We then have a clear ease of an admission by the defendant intended to influence the conduct of the man with whom he was dealing, and actually leading him in a line of conduct which must be prejudicial to his interests, unless the defendant be cut off from the power of retraction. This I understand to be the very definition of an estoppel in pads. For the prevention of fraud, the law holds the admission to be conclusive. The principal is the same as that which prevails between landlord and tenant. The later must surrender the possession, simply because he has received it.”

In the case of Cornell v. Dakin, 38 N. Y. 253, the property levied upon by the sheriff as the goods of the defendant Dakin, was at the time of the levy claimed by a Mr. Crue. The levy was made in the presence of Crue, and entered on the back of the execution, and thereupon a receipt was written underneath the levy in the words following: “I hereby acknowledge that I have received the above described property, so levied upon by the sheriff of Rensselear county, from said sheriff, and hereby promise and undertake to return the same, and every part thereof to the sheriff, on demand, or pay the above judgment, and sheriff’s fees. Dated Troy, September 19, 1859. James F. Dakin.”

In an action by the sheriff on this receipt to recover the amount of the execution, the defendant offered to prove that he was not the owner of the property named in the receipt, and that it was owned by Mr. Crue. The court held, that he was estopped by his receipt. The syllabus on this point is, as follows: “A party, giving a receipt for property seized by an officer, upon an execution or attachment, is estopped from setting up against the officer, that the property was his own, or that of any person, other than the execution or attachment debtor.”

The court, in delivering the opinion say: “And first, on his offer to show, that the property receipted for was not the property of the execution debtor, but that of the witness Crue, in whose possession it was found; and that the sheriff was informed of the fact when the levy was made. In refusing’ to admit evidence of these facts, the court was certainly sustained by the amplest authority.” (Citing Acker v. Burrall, 21 Wendell, 605, and Dezell v. Odell, 3rd Hill, 215.) In The People v. Reeder, 25 N. Y. 302, where the offer was to show, that the receiptor, at the time of the levy, and again at the time of giving the receipt, protested that the property was his, the court, by Denio, Ch. J., say: “No point is better, settled than that a party giving a receipt for property seized by an officer, upon an execution or attachment, is estopped from setting-up against the officer, that the property was his own. ”

In the case of Bursley v. Hamilton, 15 Pick 40, the receipt was in the following form:

" Chatham, January 11, 1833. Then received of John Bursley the following goods and chattels, which were this day attached by said Bursley, a deputy sheriff, as the property of Isaiah Nye, of Chatham, taken at the suit of Isaac Averrell, of New Bedford, which goods and chattels I promise to deliver to said Bursley on demand, viz: consisting of broadcloths, etc. ’ ’

In an action of assumpsit upon the receipt, it was held that the receiptor was estopped from alleging that the goods were his own property. The syllabus on this point is as follows: “ Where an accountable receipt for goods attached, set forth that they were attached as the property of the debtor, but the g’oods in fact belonged to the receiptor, it was held, in an action brought by the attaching officer on such receipt, that it was not void as being given without a consideration, and that the receiptor was estopped from alleging, by way of defense, that the goods were his own property.”

The estoppel in the case of Kelly v. State, 25 Ohio St. 577, is founded on this same principle.

There is a line of cases, which hold that such receipt is not a conclusive estoppel, if the receiptor having knowledge as to the ownership informs the officer at, or before, giving the receipt, that he claims the property as his own, or that it belongs to some named third person. Blevan v. Freer, 10 Cal., 172, is the leading case in this line of authorities. But even that case would not aid the defendant in error, because he claims to have known that Mrs. McClure claimed the money attached, and yet he gave no information of that claim to the sheriff, the court or Mrs. Johnston. In the above case of Blevan v. Freer, the court say: “But if he fails to make his claim known, and thus influences the Conduct of the officer, he is estopped from afterwards asserting it.”

Mr. Oliver is, therefore, estopped by his bond, and is bound to pay the judgment recovered by Mrs. Johnston against Mrs. DeHaven, without reference to any obligations or liabilities he may have incurred with Mrs. McClure after the execution of the bond. He is therefore not entitled to an interpleader, unless Mrs. McClure claims this money from or through Mrs. Johnston, by assignment or otherwise. No such claim appears in the record.

Mr. Oliver is not entitled to an interpleader for another reason. The right of interpleader under section 5016, is confined to actions upon contracts, or for the recovery of personal property, and the right exists only when a third party, without collusion with the defendant, has or makes a claim to the subject of the action, and when defendant is ready to pay or dispose of the same, as the court may direct. In this case, the subject of the action was the liability of Mr. Oliver on his bond, or in other words, the bond was the subject of the action, and this suit was brought upon the bond, and a recovery thereon was sought.

Mrs. McClure disclosed, by the answer and cross-petition which she asked leave to file, that the subject of her action against Mr. Oliver, was a claim for money had and received to her use by Mr. Oliver. Mrs. McClure neither had nor made claim to the bond, the subject of Mrs. Johnston’s action, and therefore she had no right to inter-plead in that action, and the interpleader was properly refused.

The first affidavit filed by Mr. Oliver, made a prima facie caseg for interpleader, and thereupon the court ordered that Mrs. McClure be made a party and .have leave to answer. Failing to answer within rule, she came in later and presented her answer and cross-petition, and asked leave to file the same. Objection being made, and it appearing that she claimed no interest in the subject of the action — the bond — the court refused to allow her to file her answer and cross-petition. In this the court of common pleas was right.

An interpleader is allowed for the protection of a defendant who admits that he has the subject of the action, and makes no claim to it himself, and is ready and willing to pay or dispose of it as the court may direct, and says that a third party without collusion claims it. He cannot take issue with the plaintiff, and at the same time have the benefit of an interpleader. The two are inconsistent, and he must elect between them. He cannot have both. By filing his answer, the defendant in error waived and abandoned his interpleader.

For these reasons, it is clear, that the defendant in error was not entitled to an interpleader, and that the circuit court erred in reversing the judgment of the common pleas.

The judgment of the circuit court is therefore reversed, and that of the common pleas affirmed.

Judgment reversed.


author: Williams, J.

text:
    Crafts v. Prior.

      Justices of the Peace — Jurisdiction—Real Contracts — Common Pleas —Jurisdiction.

    1. Actions for the purchase price of real property, when founded on the contract of sale, are actions “on contracts for real estate,” within the meaning of section 591, of the Revised Statutes, and not within the jurisdiction of justices of the peace.
    2. The court of common pleas has original jurisdiction of such actions, though the amount claimed is less than one hundred dollars. ' ■ -
    (Decided January 23, 1894.)
    Error to the Circuit Court of Lake county.
    The original action was brought by Catharine Prior, against William H. Crafts, in the Court of Common Pleas of Lake county, to recover a balance of fifty dollars, alleged to be due the plaintiff, on the purchase-price of a farm sold and conveyed by her to the defendant.
    The petition avers, that in the month of November, 1881, the plaintiff “sold and conveyed to the defendant a farm, and as a part of the consideration therefor, the defendant agreed to deliver to her a certain horse and buggy within a reasonable time thereafter, at his option, or to pay to her the sum of fifty dollars. That a reasonable time has elapsed, and yet he has not delivered to her said horse and buggy, nor has he paid her said sum of fifty dollars, although often requested so to do. Wherefore plaintiff prays judgment against said defendant for said sum of fifty dollars and interest thereon from December 1, 1881.”
    The answer admits the sale and conveyance of the farm, but denies the other allegations of the petition.

      At the trial, the defendant objected to the evidence offered by the plaintiff to prove the issues ’ on her part, on the ground that the court had no jurisdiction of the action; and upon the same ground, at the conclusion of her evidence, moved to dismiss the action.
    The court held the action was within its jurisdiction, and overruled the defendant’s objection and motion, to which the defendant excepted.
    The plaintiff recovered judgment for the amount claimed, and the circuit court affirmed the judgment. The question upon which the case is reported, is whether the court of common pleas had jurisdiction of the action.

      Horace Alvord, for plaintiff in error.

      Osborne & Breed, for defendant in error.
   Williams, J.

It is claimed by the plaintiff in error that the court of common pleas could not take original jurisdiction of the action, because it was for the recovery of money, less in amount than one hundred dollars, and therefore within the exclusive original jurisdiction conferred on justices of the peace by section 585, of the Revised Statutes. That section provides that, “under the restrictions and limitations herein provided, justices of the peace shall have exclusive original jurisdiction of any sum not exceeding one hundred dollars, and concurrent jurisdiction with the court of common pleas in any sum over one hundred dollars, and not exceeding three hundred dollars.” Various restrictions and limitations upon the jurisdiction of justices of the peace, are imposed by section 591, of the Revised Statutes, one of which is, that they shall not have cognizance of “actions on contracts for real estate; ” and it is contended by defendant in error that the action below was of that character. Whether it was or not, is the question for decision here. It is said by the court in Bridgmans v. Wells, 13 Ohio, 43, that “a contract for real estate, in the sense in which the words are used in their ordinary acceptation, would mean some bargain or agreement for the purchase or conveyance of real property;” and, we think, the words are used in the statute in that sense. It is to be observed, .that the actions of which justices are. denied jurisdiction by the provision of section 591, alluded to, are those “on contracts for real estate.” These are not limited to actions to compel a' conveyance of the land, or for damages for the failure to execute the conveyance, or other breach of the contract by the seller; but include all actions founded on any stipulation of the contract, whether to be performed by the seller, or purchaser. An action for the purchase price of the land is, therefore, within the class of actions which the statute has excluded from the cognizance of justices, and is not taken out of the class by the fact that the seller has executed the conveyance, and fully performed his part of the contract; it is nevertheless necessary to resort to the contract for the terms of the purchaser’s obligation, which is the foundation of the action. We do not hold that actions on promissory notes given for the purchase-price of land are within the operation of section 591. On the contrary, we think they are not, for such action would be founded on the note, and not on the contract. And, as held in Bridgmans v. Wells, supra, contracts to construct or repair buildings, or clear land or leave it in a tenantable condition, and the like, are not.contracts for real estate, but for labor. The action of the plaintiff below was founded on a contract for land. The petition alleges the sale and conveyance of the land by her to the defendant under an agreement by which the latter bound himself to pay a specified consideration in the manner, and within the time averred, and seeks to enforce the contract against him, by a recovery according to its stipulations. The terms of the contract, and its breach, as alleged, were put in issue, and it became necessary for the plaintiff, tó prove them, in order to recover.

JThe action not being within the jurisdiction of a justice of the peace, the court of common pleas had original jurisdiction of it by virtue of section 456, of the Revised Statutes, which gives that court such jurisdiction “in all civil cases where the sum or matter in dispute exceeds the exclusive original jurisdiction of justices of the peace.”

Judgment affirmed.


text:
    Hanaghan v. State.

      Examining Magistrate — Jurisdiction—Party Injured— Who Is— Plea of Gtálty— When not a Waiver.

    1. An examining magistrate is not authorized to pass sentence upon the accused on his plea of guilty of a misdemeanor, except when the complaint is made by the party injured.
    2. By “the party injured,” as that phrase is used in section 7146, of the Revised Statutes, is meant the person who suffers some particular injury from the commission of the misdemeanor, as distinguished from that which results to the public, or local community where it was committed.

      3. A plea of guilty of such offense, though filed in writing with the magistrate, is not a waiver by the accused of his right to a trial by jury, and submission to be tried by the magistrate, within the purview of section 7147, of the Revised Statutes; and in such case, unless the complaint was filed by the party injured, it is the duty of the magistrate to recognize the accused to the proper court.
    (Decided January 23, 1894.)
    Error to the Circuit Court of Jefferson county.
    The plaintiff in error was arrested upon a warrant issued on a complaint charging him with having let his premises for purposes of prostitution, and permitting them to be so used, in violation of section 7025, of the Revised Statutes. He filed a plea of guilty, in writing, with the magistrate who issued the warrant, who thereupon sentenced him to imprisonment in the work-house at hard labor for sixty days, and imposed a fine of seventy-five dollars, with costs. The affidavit upon which the warrant was issued was filed by one Ramsey, who does not appear to have been injured otherwise than as a member of the community; and no waiver of a jury, or submission to be tried by the magistrate, was filed by the accused. The plaintiff in error, claiming that the justice had no jurisdiction to proceed to sentence on his plea, prosecuted error to the court of common pleas, where the judgment of the justice was affirmed, and then to the circuit court, where the common pleas was affirmed, and finally to this court.

      J. W. Jordan, for the plaintiff in error.

      Henry Gregg, for the defendant in error.
   Williams, J.

The magistrate was without authority to pass sentence upon the plaintiff in error, on his plea of guilty, unless it was conferred by section 7146, or 7147, of the Revised Statutes. Section 7146, is as follows: “When a person accused of misdemeanor is brought before a magistrate, on the complaint of the party injured, and pleads guilty to the charge, the magistrate shall sentence him to such punishment as he may deem proper, within the limits of the provisions defining the offense, and order the payment of costs; and if the complaint is not by the party injured, and the party accused pleads guilty, the magistrate shall require the party so accused to enter into a recognizance to appear at the proper court, as provided in case where there is no plea of guilty. ”

The question arising under this section is, who is meant by “the party injured?” If every citizen of the state, or member of the community where the offense is committed, is included in those descriptive words, this proceeding in error is without merit. But it is evident they were not used in the statute in that sense. They refer, we think, to the person who suffers'some particular injury from the commission of the offense, either in his person, property, or reputation, as distinguished from that which results to the general public, or local community. Otherwise, the authority of the magistrate to pass sentence, is pracically extended to all cases of misdemeanor brought before him, when there is a plea of guilty; and the last clause of the section is thus rendered nugatory. The legislative purpose in restricting the magistrate’s authority to pass final sentence on a plea of guilty, to those cases where the complaint is made by the person who sustained the injury, probably was to prevent collusive complaints, and insure adequate punishment. We do not doubt that the sentence pronounced by the magistrate was sufficient for the complete attainment of the latter result, in the present case; but in our view ■of the statute, the person who made the complaint against the plaintiff in error, was not “the party injured,” within the meaning’ of that phrase as used in the statute.

Section 7147, provides that, “When the accused is brought before the magistrate, and there is no plea of guilty, he shall as soon as may be, in the presence of the accused, inquire into the complaint ; and if it appears that an offense has been committed, and that there is probable cause to believe the prisoner guilty, he shall order him to enter into a recognizance, with good and sufficient surety, in such an amount as he may deem reasonable, for his appearance at the proper time, before the proper court; otherwise he shall discharg’e him from custody; but if the offense charged is a misdemeanor, and the accused, in writing subscribed by him, and filed before or during the examination, waive a jury, and submit to be tried by the magistrate, he may render final judgment.”

The claim made under this section is, that a plea of guilty, filed by the accused, in writing, is, in effect, a waiver of a jury, and submission to be tried by the magistrate, within the purview of the section, and authorizes him to render final judgment. Sections 7146 and 7147 are consistent with each other. The former prescribes, specifically, the proceeding’s of the magistrate upon a plea of guilty, and the latter those where there is not such a plea. It is obvious, that if -a plea of guilty were given the effect claimed for it under this section, the preceding section would be superseded, and its operation defeated; for then,- in all cases of misdemeanor, whether the complaint was filed by the party injured or other person, the magistrate, upon such a plea, could render final judgment on the ground that the plea was a final submission of the case to him; while the last clause of section 7146, makes it the duty of the magistrate to require the accused to enter into a recognizance for his appearance before the proper court, in all cases of misdemeanor, notwithstanding his plea of guilty, unless the complaint against him was filed by the party injured. The accused might choose to enter such a plea, and be recognized to the proper court for trial, in order to avoid the expense and vexation of the examination, or for other cause deemed sufficient by him, but be unwilling to'submit his case to the magistrate for final judgment. True, the plea may be used against him on the trial, but it is not conclusive evidence of his guilt. At all events, to authorize the magistrate to render final judgment under section 7147, the case, before him must be one which comes within its terms; that is, the accused must in writing*, subscribed by him, waive a jury and submit to be tried by the magistrate, which is essentially a different thing* from a plea of guilty. Such a plea may dispense with,the necessity of. an examination into the truth of the complaint against the accused, but it does not take away his fight of trial by jury. The statute has required his express waiver in writing to deprive him of that, and like other penal statutes, cannot be enlarged by construction. The magistrate therefore exceeded his authority when he passed sentence upon the plaintiff in error; he should have recognized him to the proper court for trial.

Judgment reversed.


author: Minshall, J.

text:
    Root & McBride Bros. v. Davis et al.

      Mortgagee of Personalty — Rights of — Liability of — Surplus—Attachment — Garnidhee—Proceedings of fustice — Collateral Attack.

    1. A mortgagee of personal property in possession after condition broken, is the legal owner entitled to retain the possession, subject to a liability to account for the surplus of its value after the satisfaction of his Qwn claim.
    2. The liability of the mortgagee in possession after condition broken to account for the surplus, is a credit of the mortgagor, and may be attached as such by the process of garnishment.
    3. In a proceeding in attachment, commenced by a plaintiff residing in one county against a defendant residing in another county, of this state, a debtor of the defendant residing in the county where the suit is commenced, may be garnisheed on the ground of the non-residence of the defendant, and required to pay the money owing by him to the defendant into court, although service by publication only has been made on the defendant.
    4. The proceedings of a justice of the peace after jurisdiction of the subject-matter has attached, are to be liberally construed. Therefore, an order made by a justice of the peace upon a garnishee, in a proceeding in attachment, after service of notice . upon him, and the rendition of judgment for the plaintiff, to pay the money owing by him to the defendant into court, presupposes a finding that the garnishee is so indebted, and cannot be collaterally attacked on the ground that the transcript fails to show that such finding had been made.
    (Decided January 23, 1894.)

      Error to the Circuit Court of Lucas county.
    The facts are stated in the opinion.

      Harris & Thurston, for plaintiff in error.
    A justice of the peace in this state has limited and inferior jurisdiction. The proceedings in the cases before the justice were special statutory proceeding’s.
    The necessary jurisdictional facts do not appear in the records of the justice.
    The record alone' must show jurisdiction, and cannot be aided by extrinsic evidence of any kind. Ohio & M. R. Co. v. Shultz, 31 Ind. 150; Benn v. Borst, 5 Wend. 292; Little v. Currie, 5 Nev. 90; Ricketson v. Richardson, 26 Cal. 149; McCleary v. McLain, 2 Ohio St. 368; Godfred v. Godfred, 30 Ohio St. 53; Robbins v. Clemmens, 41 Ohio St. 285; McCurdy v. Baughman, 43 Ohio St. 78.
    Proceeding’s in attachment and garnishment are special statutory proceedings. In the exercise of such powers the record must show affirmatively compliance with the statute, even if the court is one of general common-law jurisdiction. Otherwise the judgments will be void. Freem. Judgm. § 123, and notes 1, 2; Waples, Attachm. pp. 329-331, and note 1, p. 331; Thatcher v. Powell, 19 U. S. 6 Wheat, 119, 5 L. ed. 221; Owen v. Jordan, 27 Ala. 608; Gunn v. Howell, 27 Ala. 663, 62 Am. Dec. 785; Denning v. Corwin, 11 Wend. 647; Adams v. Jeffries, 12 Ohio 253, 40 Am. Dec. 477; Grieve v. Freytag, 31 Ohio St. 147; Robbins v. Clemmens, and McCurdy v. Baughman, supra.

    Recitals on the docket, such as “summons duly served,” “proof of publication duly made,” etc., are not sufficient. They are not the facts that are necessary to show jurisdiction. They are merely the conclusions or findings of the justice of the peace, which he has no authority to make. The facts must appear upon the record, and not conclusions. Freem. Judgm. §§ 517, 519, 527, also cases before cited.
    It is necessary that summons issue for the defendant and be returned' not served, etc., before any steps can be taken' to acquire or make constructive service, even if property is attached. Rev. Stat. 6496; Swan’s Treatise, 12th ed. pp. 49, 50.
    The justice has power — jurisdiction—to continue the cause for publication, and further proceed in the case, only on the concurrence of two conditions: (1) That the summons has not been and cannot be served on the defendant in the county; and (2) when property of the defendant has been taken under the order of attachment and these jurisdictional facts must appear of record.
    Without the concurrence of both of such conditions a continuance of the cause by the justice is unauthorized — a nullity. Myers v. Smith, 29 Ohio St. 120.
    If property or money in the hands of the garnish ee is relied upon as a ground of jurisdiction, that fact must appear of record, and there must be a finding of the justice that the garnishees had property of the defendants in their possession, etc.
    Without such finding no order can be made on garnishees, and no judgment can be rendered against defendants served only by publication, if the publication were sufficiently shown. Drake, Attachm. § 449, and notes 3, 5, § 461; Carleton v. Washington Ins. Co. 35 N. H. 162; Abbott v. Shepperd, 44 Mo. 273; Repine v. McPherson, 2 Kan. 340;
      Farwell v. Howard, 26 Iowa, 381; Nat. Bank of New London v. Lake Shore & M. S. R. Co. 21 Ohio St. 221; Myers v. Smith, supra.

    Liberality of construction and consideration does not apply to jurisdictional facts and matters. Bobbins v. Clemmens, supra.

    Property not within the jurisdiction of the court, nor within reach of its process, cannot be bound by notice of garnishment any more than it can be taken by manual attachment.
    If the property is not held by the garnishee within a jurisdiction where the process of the court may run, so that he may turn it out, if he shall so desire, to the officer holding the process, it is not bound, nor is the garnishee answerable for it, unless possibly by his own negligence or wrongful act. Kneeland, Attachm. pp. 335, 336, § 407; Drake, Attach. § 474, and note 3, p. 362, §§ 475, 477, 480-484; Wade, Attachm. § 344; Waples Attachm. pp. 194, 226-228; Sawyer v. Thompson, 24 N. H. 510; Young v. Ross, 31 N. H. 201; Jones v. Comings, 6 N. H. 497; Carleton v. Washington Ins. Co. supra; Taft v. Mills, 5 R. I. 393; Cronin v. Foster, 13 R. I. 196; Pennsylvania R. Co. v. Pennock, 51 Pa. 244; Wheat v. Platte City & Ft. D. R. Co. 4 Kan. 370; Illinois Cent. R. Co. v. Cobb, 48 Ill. 402; Plimpton y. Bigelow, 93 N. Y. 592; Straus v. Chicago Glycerine Co. 46 Hun. 216; Keating v. American Refrigerator Co. 32 Mo. App. 293; Lawrence v. Smith, 45 N. H. 533, 86 Am. Dec. 183; Nye v. Liscombe, 21 Pick, 263; Bates v. Chicago, M. & St. P. R. Co. 60 Wis. 296, 50 Am. Rep. 369; Southerland v. Second Nat. Bank of Peoria, 78 Ky. 250; Bowen v. Pope, 125 Ill. 28; Latimer v. Union Pac. R. Co. 43 Mo. 105, 97 Am. Dec. 378; Carr v. Lewis Coal Co. 96 Mo. 149.

      Clayton W. Everett, for defendants in error.
    The justice could not have made such an order as he made without finding there was property in the garnishee’s hands. This kind of order is all that was made, and all that was done in the case of National Bank of New London v. Lake Shore & M. S. R. Co. 21 Ohio St. 221.
    Acts done which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter. Ward v. Barrows, 2 Ohio St. 241.
    Every reasonable intendment should be made in favor of the record of the justice proceeding. Austin v. Hayden, 6 Ohio, 388.
    The question of jurisdiction of the justice of the 'peace on the motion of Stewart & Co. was determined and however erroneous cannot be impeached collaterally. National Bank of New London v. Lake Shore & M. S. R. Co. supra; Sheldon v. Newton, 30 Ohio St. 494.
   Minshall, J.

The action below was a suit in replevin brought in the common pleas of Lucas jeounty, by Root & McBride Bros, against Davis Bros, for the possession of certain specific personal property, described as twenty-three cases of merchandise and some other articles recently owned by A. J. Stewart & Co. of Clawford county. It appears from the answer and cross-petition of the defendants and the testimony, that on August 23, 1888, Stewart & Co., being then the owners of the property and residing and doing business at a town in Crawford county, this state, was indebted to Davis Bros, in the sum of $195.50, and, to secure this indebtedness, executed a chattel mortgage on the property, on which Davis Bros., made the proper affidavit, and duly filed it for record in the proper office; and on the same day, in pursuance of the provisions of the mortgage, took possession of the property. On August 28, Davis Bros, boxed up the goods, and on the 29th shipped the same to their place of business, in Toledo, Lucas county. Previous to this, on August 27, Luce & Co., commenced an action before a justice of the peace of Lucas county, against Stewart & Co., to recover a claim of theirs, and caused an attachment to issue, on the ground of the non-residence of the defendants, and caused notice of garnishment to be served upon Davis Bros., mortgagees. On August 28, Shaw & Co. commenced two similar actions against Stewart-& Co., before the same justice of the peace and like proceedings were had as in the case of Luce & Co.

On October 11, 1888, notice by publication having been given as required by law, the justice rendered judgments, in the several cases, and ordered the garnishees, Davis Bros., to deliver the property of the defendants held by them into court, and also to pay the money due from them to the defendants into court.

Before this, on August 29, after the goods had been delivered by Davis Bros, to the railroad agent at the depot in Crawford county, to be shipped to Toledo, but whilst still at the depot, Stewart & Co. made and delivered to Root & McBride Bros., a bill of sale of the property to secure a debt due them of some $800.00. On the next day they notified Davis Bros., of their bill of sale, offered to .pay the amount of their claim and demanded the property. This was refused by Davis Bros, because of the proceedings in garnishment against them. Luce & Co. and Shaw & Co. were made defendants and filed answers and cross-petitions. The court found for the defendants upon tho pleadings and evidence and rendered judgment in their favor for the value of the property taken under the writ; and, the claim of the defendants, Davis Bros., having been paid by the plaintiffs during the pendency of the action, ordered the amounts due Luce & Co. and Shaw & Co. to be paid them according to priority. The judgment was affirmed on error by the circuit court.

The principal question in the case is, whether the service of garnishment on Davis Bros, in Lucas county gave to Luce & Co. as well as to Shaw & Co., a lien upon the property covered by the mortgage to Davis Bros, or on any indebtedness of the latter to the mortgagor, Stewart & Co. — the property being at the time of the service in Crawford county, the residence of the latter. We think it did. At the time of the service of process on the garnishees, they had, as mortgagees, taken possession of the property under the provisions of the mortgage, so that, irrespective of its physical location, they were the owners of it, subject only to a liability to account to the mortgagor for the surplus of its value after satisfying their claim. In other words their relation had changed from that of creditor to that of debtor of the mortgagor for whatever this surplus might be. Robinson v. Fitch, 26 Ohio St. 659, 662; Carty v. Fenstemaker, 14 Ohio St. 457, 461; Lindemann v. Ingham, 36 Id. 1, 9; Morgan v. Spangler, 20 Id. 38; Wright’s R. 371; 2 Story Eq. § 1031. And this credit of the mortgagors was liable to be attached; and was attached by the service of the process of attachment upon the debtors, Davis Bros., and made them liable to the attaching creditors for whatever might be found due from them on the value of the property-after satisfying the amount of their own claim.

It is claimed, however, that without a physical seizure of the property in Lucas county, the magistrate had no jurisdiction to order the payment of the amount due from the garnishees into court, as no personal service was obtained upon the defendants in the action. A number of cases are cited in support of this proposition. But they are all cases where the defendant was a non-resident of the state in which the action was commenced. It may be conceded, that the credits of a non-resident debtor, without personal service upon him, cannot be attached in this state, by simply serving the process of garnishment upon his debtor residing within the jurisdiction of the court, issuing the process. That would be, as claimed, to give to the laws of a state an extra territorial effect. In Railroad Company v. May, 25 Ohio St. 347, it was held that the indebtedness of the company to a person residing in this state could be attached in.the courts of a sister state,, without personal service; but this, in the opinion of the author of a recent work, seems opposed to the decision of the Supreme Court of the United States. Reno on Non-Residence, section 140. A number of the state courts take the same view. Id., section 216. But as between citizens of the state subject to its laws, the case is wholly different. While the situs of a credit is generally regarded as that of the creditor, it would be quite as reasonable to treat it as that of the debtor; for the debtor is the. person from whom the money is derived that makes the credit available as a thing of value. So that there is nothing in the nature of things, forbidding the place of the debtor being regarded as the situs of a credit; and hence it is competent to the legislature to enact, as has been done in this state, that the property and effects of every kind of a resident of one county may be attached by. his creditor in another, on the ground of his non-residence therein, by serving the process of garnishment upon a person having possession of his property, or being indebted to him, in the county, and giving notice by publication of the proceeding; and such, was the proceeding in this case. Conceding- then that the transfer of the mortgagor’s interest in the goods by bill of sale to Root & McBride to secure a debt due to them, was good as against creditors, which may be doubtful under Section 4151, Revised Statutes, as it was not recorded as therein required, still it was subsequent in time to the liens created by the proceedings in attachment, and hence did not entitle them to recover the property in replevin against Davis Bros., who were bound by those proceedings to account to Luce & Co. and Shaw & Co. for its value over and above their own claim. The claim of the plaintiff being postponed to what might remain after payment of these claims and that of the defendant.

But it is further claimed that the attachments were void on the ground of irregularities in the proceedings had before the justice. In so far as this claim is based on the ground that there was no physical seizure of the property by the constable, it has been answered by what has been already said. The thing attached in this ease was not tangible but intangible property, a chose in action, which, under our law, may be attached by process ■of garnishment served on the debtor, where the defendant is a non-resident of the county in which the suit is commenced, service being made on him by publication.

The other objections are, at most, based upon such irregularities as can only be taken advantage of by a proceeding in error, and are not available in a collateral proceeding, as the justice had jurisdiction of the subject of the action, and power to issue a writ of attachment upon the affidavit that was filed therefor. ‘ ‘The rules, ’ ’ says Longworth, J., in Railway Company v. Cronin, 38 Ohio St. 122, “which govern pleading in courts of record at common law and under the code of civil procedure have never been strictly applied in. proceedings before justices of the peace. From the earliest days a very liberal practice has obtained in this state in reviewing proceedings had before these officers when the question of their jurisdiction is not involved.” Among the errors appearing, as claimed, upon the transcript of the justice, offered in evidence of the proceedings had before him, is its omission to show that he found from the answer of the garnishees, that they had property in their possession belonging to the defendants, or that they were indebted to them. The transcript does, however, show that on the day fixed for a hearing by the publication of notice, the justice, after rendering judgment for the plaintiffs, made an order on the garnishees “to deliver the property of the defendants in their possession to the court, and to pay the money due from them to the defendants into court.” This, we think, was sufficient. If a finding of the kind were necessary, the presumption from the order is that it was made; and an omission to enter such finding upon the docket, cannot be taken advantage of in a collateral proceeding. The garnishees were served; and, “the order of attachment hinds the property attached from the time of service, and the garnishee stands liable to the plaintiff for all property, moneys and credits, in his hands, or due from him to the defendant, from the time he is served with the notice. ” White, J., in Carty v. Fenstemaker, supra. See also, National Bank v. Railroad Company, 21 Ohio St. 221, 229. So that it is immaterial whether the garnishee answered, or, having answered, an order was made on him to pay any indebtedness disclosed by his answer into court, for, from the time of the service upon him, any indebtedness of his to the defendant was seized to the use-of the plaintiff and he was bound to account to him therefor.

Exception was also taken to the admission in evidence of papers in the ease, not entered upon the transcript of the justice. These simply showed that the statute regulating the proceeding had been complied with. Their entry upon the docket is not required, nor usual. The transcript in evidence showed all that is material to the validity of the liens of the attaching creditors; and, while the papers offered and received might have been dispensed with, their admission in evidence was not prejudicial to the plaintiff, and cannot be well assigned as error.

Judgment affirmed,

Dtckmah and Spear. JJ.. dissent.