source: Caselaw Access Project

author: Donahue, J.

license: Public Domain

text:
    In re Paul J. Poage.

      Citizen of Kentucky• — Indicted in Lawrence county, Ohio — For failure to provide for minor child — Then being in Lawrence county — Accused petitions for habeas corpus — On ground of non-jurisdiction of Ohio court — And without just cause resulting from facts in case — Held, court having jurisdiction in such offense — Will not inquire into innocence or guilt of accused — But may remand accused to custody of arresting court, when.

    1. A citizen and elector of the state of Kentucky was indicted in Lawrence county, Ohio, for failure to provide for his minor child then being in such county. In a petition filed by him in this court for a writ of habeas corpus he avers that he now is, and always has been, a citizen of the state of Kentucky; that he was married in that state and established a home for himself and his family in the city of Ashland, Kentucky, where he has . ever since resided and where the minor child named in the indictment was born; that without any just cause therefor and without his knowledge or consent and against his wishes and desire his wife abandoned their home taking their minor child with her and came into this state where she has remained and has ever since refused to return or to permit such minor child to return to him, although he has at all times maintained in Kentucky a home for her and said child and has at all times been ready and willing to receive them and provide them with a home, food, shelter and clothing.

      Held,' that where it appears that such child is receiving its support from the mother, or from any other person at her request, the mere failure and neglect of the defendant to assert his legal right to the custody and control of his minor child does not bring him within the operation of the laws of this state relating to the duties of parents to their minor children.
    2. Where it appears upon the hearing of a petition for writ of habeas corpus that an affidavit has been filed and indictment returned in a court having jurisdiction charging the petitioner with an offense against the law of this state, the court upon such hearing will not inquire into the guilt or innocence of the accused, but if it appear that the court issuing the capias or order of arrest has jurisdiction of the offense charged it will remand him to the custody of the officer of that court.
    (No. 13763
    Decided November 12, 1912.)

      Application for Writ of Habeas Corpus.
    The facts are stated in the opinion.

      Messrs. Johnson & Jones and Mr. C. R. I^evi, for petitioner.
    The state of Ohio has no jurisdiction or authority whatever to punish Poage for a failure to provide for such child in Ohio a home, care, food and clothing'. In other words, the courts of the state of Ohio cannot have extra-territorial force or dominion. Cooley’s Const. Lim. (7 ed.), 176; P. C. C. & St. L. Ry. Co. v. Naylor, 73 Ohio St., 123; 1 Bishop’s New Crim. Law, Sec. 152.
    Every proposition has been decided by the lower court in the case of Ex parte Wyant, 8 N. P., N. S., 207, which appears in this case.
    Other cases, from other states, bearing on the same point are: Jemmerson v. State, 80 Ga., 111; People v. Sagazei, 59 N. Y. Supp., 701.
    The case of State v. Sanner, 81 Ohio St., 393, cited by opposing counsel herein, is not applicable to the facts of the present case before this court.
    It is said that Poage’s child has lived in Ohio. This is not so. Living, when used in this and similar statutes, relates to the residence and domicile of the party, and does not relate to where the child happens to be. Hanson v. Hanson, 111 Mass., 158; Ross v. Ross, 103 Mass., 575; Pearce v. Atwood, 13 Mass., 324.
    Poage had a right to fix the domicile; he is the head of the family; he chooses the place of. abode. Section 7996, General Code; 10 Am. & Eng. Ency. Law (2 ed.), 30; Taylor v. Jeter, 33 Ga., 195; Hunt v. Hunt, 94 Ga., 257; Van Hoffman v. Ward, 4 Redf. N. Y., 244; Cannon’s Estate, 15 Pa. Co. Ct. Rep., 312.
    The admitted facts show that no crime was committed at all, and if no crime was committed at all, then any step looking to the prosecution of Poage, or of his restraint or imprisonment, was unconstitutionally unlawful, wrongful, null and void. In re Kelly, 46 Fed. Rep., 653; Ex parte Hays, 25 Fla., 279.
    In a proceeding by habeas corpus the court can always, and it is the duty to, inquire as to the jurisdiction of the court. This is expressly reserved in our General Code, Section 12165. Church on Habeas Corpus (2 ed.), Secs. 222, 356; United States v. Fowkes, 49 Fed. Rep., 50, 53 Fed. Rep., 13; United States v. Rogers, 23 Fed. Rep., 658; Ex parte Slauson, 73 Fed. Rep., 666; Ex parte Jones, 96 Fed. Rep., 200; Ex parte Jenkins, 2 Wall., Jr., 521; Ex parte Shaw, 7 Ohio St., 81; Prescott v. State, 19 Ohio St., 188; Ex parte Van Hagan, 25 Ohio St., 426; Wilcox v. Nolse, 34 Ohio St., 520; McGorray v. Murphy, 80 Ohio St., 413; In re George et al., 5 C. C., 207, 3 C. D., 104; Jones, Sheriff, v. Goode, 7 C. C., N. S., 589; Ex parte Morris, 8 C. C., N. S., 212; Lillibridge v. State, ex rel., 7 C. C., N. S., 452; In re Bachtel, 11 C. C., N. S., 537.

      Mr. J. C. Riley and Mr. A. C. Robison, for Thomas H. Neal, sheriff.

      Where a court of general jurisdiction, and legally competent to determine its own jurisdiction, has acquired jurisdiction, de facto, over person or subject-matter, it is a rule, founded upon comity between judicial tribunals, that no other court will interfere with, or seek to arrest, the action of the court in which, and while, the case is still pending and undetermined. Ex parte Bushnell, 8 Ohio St., 599; 11 Cyc., 1006, Sec. 5.
    Sections 13008 and 13011, General Code, clearly make the venue of the crime in the county and state where the child is living when the complaint is made. State v. Peabody, 25 R. I., 544, 56 Atl. Rep., 1028; State v. Sanner, 81 Ohio St., 393, 26 L. R. A., N. S., 1093; Lindsey v. State, 38 Ohio St., 507; Tutt v. Greenville, 142 Ky., 536, 33 L. R. A., N. S., 331.
    It is admitted that the petitioner was voluntarily within the state of Ohio when arrested. Molyneux v. Seymour, Fanning & Co., 30 Ga., 440, 76 Am. Dec., 662; Alley v. Caspari, 30 Me., 234, 6 Am. St., 178; Story’s Conflict of Laws, Sec. 581; 2 Wharton’s Conflict of Laws (3 ed.), Sec. 741; Barrell v. Benjamin, 15 Mass., 354; Roberts v. Knights, 7 Allen, 449; Peabody v. Hamilton, 106 Mass., 217.
    The crime of failure to provide is a continuing offense, consequently if the petitioner was within the county of Lawrence for any length of time, during the time laid in the indictments, then he is guilty in said county and can be punished in said county. Bowen v. State, 56 Ohio St., 235.

      That the contention of the petitioner that he is and 'has been a non-resident of Ohio is a matter of defense and not one to be raised on habeas corpus, see Burns v. Tarbox, 76 Ohio St., 520.
    That since the petitioner is and has been continuously at liberty on bond since his arrest, except for very short periods when he has been surrendered to the sheriff for the purpose of swearing out a writ of habeas corpus, he is not entitled to the benefit of the writ of habeas corpus. Ex parte Ford, 160 Cal., 334, 116 Pac. Rep., 757, 35 L. R. A., N. S., 882; In re Gow, 139 Cal., 242, 73 Pac. Rep., 145; Ex parte Schmitz, 150 Cal., 663, 89 Pac. Rep., 438.
   Donahue, J.

On the 6th day of August, 1912, Paul J. Poage filed in this court a petition for a writ of habeas corpus, averring that he was unlawfully restrained of his liberty by Thomas PI. Neal, sheriff of Lawrence county, Ohio. On this petition a writ of habeas corpus issued and pursuant to the command of the same Thomas PI. Neal, sheriff of Lawrence county, Ohio, produced the body of Paul J. Poage and at the same time filed an answer stating that his authority for restraining Poage of his liberty. This petition of Poage and the answer of the sheriff thereto raise the questions submitted to this court for determination, and therefore it is necessary to a discussion of these questions to quote largely therefrom.

Paul J. Poage was indicted by the grand jury of Lawrence county, Ohio, at the May term, 1912, of the court of common pleas of that county, for failing to provide his minor child, Sarah Eliza Poage, with a home, food and clothing. On this indictment a capias issued for the arrest of Poage and was placed in the hands of Thomas PI. Neal, sheriff of Lawrence county, who, in obedience to its commands, arrested the petitioner and now claims that he is legally in his custody as sheriff by virtue and authority of this warrant. The petition describes the indictment and the offense charged therein, and there is attached to the petition a copy of the capias issued thereon. The petition avers that the allegations and statements set forth in the' indictment upon which the order of arrest was issued are untrue in this:

“Your petitioner at all times prior to, as well as at this time, was and is a resident, inhabitant, citizen of and living in Ashland, Boyd county, and state of Kentucky, and at no time was your petitioner a resident, inhabitant, living in or a citizen of the state of Ohio, nor did your petitioner ever reside in or have his domicile in, or live in Lawrence county, or the state of Ohio, nor was he ever employed, nor did he ever stay in the state of Ohio, or within Lawrence county for any time at all other than a casual visitor to different portions of said state; and, that ever since your petitioner became of the age of 21 years, has been an elector of Boyd county, state of Kentucky, and is now and has been for more than two years last past the duly elected, qualified and acting clerk of the circuit court of said Boyd county, Kentucky.
“Your petitioner further represents that on the sixth day of July, 1906, at Catlettsburg, state of Kentucky, he was married to Margaret Lena Poage, and immediately thereafter went to housekeeping in the city of Ashland, county of- Boyd and state of Kentucky, and that of said marriage Sarah Eliza Poage was born in said Ashland, Boyd county, Kentucky, approximately four years ago, it being the same child that your petitioner is charged with failing to support, etc., in said indictment upon which said capias was issued and your petitioner was arrested as hereinbefore set out; that said Margaret Lena Poage and your petitioner continuously kept house, and resided in said Ashland, Boyd county, Kentucky, up until the thirteenth day of July, 1911, at which time Margaret Lena Poage went to Ironton, Ohio, upon a visit, taking along with her their said child, Sarah Eliza Poage; that on or about the first day of November, 1911, said Margaret Lena Poage not having returned to her home in Ashland, Boyd county, Kentucky, indicated that she was not going to return to the state of Kentucky, and has ever since kept said child in Ironton, Ohio, against the wish, will and desire of your petitioner ; that said child, Sarah Eliza Poage, is a resident, citizen and is domiciled at the home of jmur petitioner in said Boyd county, Kentucky, and is not, and never was a resident or citizen of, or domiciled in said Lawrence county nor the state of Ohio; that - the indictment upon which said warrant was issued recited that your petitioner was late of said Lawrence county, Ohio, which recital your petitioner avers is untrue in fact; that said indictment further recites that your petitioner did not furnish the necessary and proper home, care, food and clothing for said Sarah Eliza Poage, this allegation is also untrue in fact, as your petitioner has at all times had a home for said Sarah Eliza Poage in Ashland, Boyd county, state of Kentucky, and has at all times maintained a home, and has at this time such home, and is ready, willing and anxious to care for in every way, educate, clothe and rear said Sarah Eliza Poage in such a way as will be morally advantageous to said child, all of which he prepared to do at her home in Ashland, Boyd county, Kentucky.
“Your petitioner further says that the custody, care and control of said child, Sarah Eliza Poage, has never been taken from that of your petitioner, nor has there been any decree of any court separating your petitioner from Margaret Lena Poage, nor any decree of any court relating to the care, custody and control of said child.”

The petitioner claims that by reason of these facts the court of common pleas of Lawrence county has and had no jurisdiction over his person, and no right, jurisdiction or authority in law to arrest or permit the petitioner to be indicted for such offense, and that if any laws of the state provide for or permit such indictment, the same are unconstitutional.

For answer to this petition, the sheriff avers the finding of the indictment, the issuing of the capias, and the arrest of the petitioner thereon, and further alleges that:

“The said Paul J. Poage has been voluntarily in the state of Ohio, and in the county of Lawrence and in the city of Ironton, within the time laid in the indictment for the commission of this crime. And has within said time visited his child, Sarah Eliza Poage, at the home of William J. Bester, the grandfather of said child, in Ironton, Lawrence county, Ohio.
“The respondent further says that Margaret Lena Poage, wife of the said Paul J. Poage, together with Sarah Eliza Poage, daughter of the said Margaret Poage, were compelled by the said Paul J. Poage to leave his home in Ashland, Boyd county, Kentucky, on July 9, 1911, and the said Paul J. Poage refused at that time to longer support both Margaret Lena Poage and Sarah Eliza Poage, and by his actions and words compelled the said Marg'aret Lena Poage together with her daughter, Sarah Eliza Poage, to return to her fathér’s home in Ironton, Lawrence county, Ohio, where they have ever since resided. The respondent further says that on July 9, 1911, the said Paul J. Poage abandoned his child, Sarah Eliza Poage, and has ever since that date neglected and refused to furnish said child with a home, food, care and clothing.
“Your respondent denies that Sarah Eliza Poage is a resident, citizen and is domiciled at the home of your petitioner in the said Boyd county, Kentucky, and denies that the said child never was a resident or citizen of Lawrence county, state of Ohio, but says that since July 9, 1911, continuously until the present date the said Sarah Eliza Poage is and has been a resident citizen and domiciled at Lawrence county, state of Ohio, and that during the entire time laid in the indictment herein, was living with her mother at the home of her grandfather, William J. Bester, in Ironton, Lawrence county, Ohio.
“Your respondent denies that during the time laid in the indictment, the petitioner herein had a home for the said Sarah Eliza Poage in Ashland, Boyd county, Kentucky, or anywhere else, and denies that during the time laid in the indictment he was ready, willing and anxious to care in every way, educate, clothe and rear the said Sarah Eliza Poage in such a way as will be morally advantageous to said child or in any other way, either in Ashland, Boyd county, Kentucky, or any other place.”

These pleadings raise important questions of fact that this court is not now called upon to determine. In the case of State of Ohio v. Ewers, 76 Ohio St., 563, this court overruled the exceptions of the prosecuting attorney of Williams county to the ruling of the court of common pleas of that county, that the defendant was not guilty of an offense similar to the one charged in this indictment, because he had resided in the state of Indiana during all the time covered by the indictment. Following the decision in that case the law of this state was amended April 28, 1908 (99 O. L., 228). Section 2 of the amended act declared that: “The offense shall be held to have been committed in any county in this state in which such child or children or pregnant woman may be at the time the complaint is made.” Section 4 of the same act reads as follows: “Citizenship once acquired in this -state of any father or mother of any legitimate or illegitimate child living in this state, shall be deemed for ■ all the purposes of this act to continue until such child shall have arrived at the age of sixteen years, provided said child so long continues to live in this state.” Subsequent to this amendment William Sanner was indicted by the grand jury of Allen county for refusing, failing and neglecting to provide for his minor children living in Allen county. That case came to this court and is reported in 81 Ohio St., 394. The sole question there presented by the.record was raised by a demurrer to the indictment, it being claimed that the indictment was insufficient because it did not aver that the defendant was living in this state any part of the time covered by the indictment. Counsel for Sanner relied upon the case of State v. Ewers, supra. This court held that Section 2 and Section 4 of the amendment of April 28, 1908, materially changed the law of this state in that respect, and that such an averment is not now necessary. William Sanner had been a resident of the state of Ohio; his children were begotten and born in this state; he had abandoned his family and was then residing in Indiana. Section 4 of the amendment was passed to cover exactly such a state of facts. The syllabus in that case states the law of Ohio with reference to the facts upon which it is predicated. It must be remembered that every syllabus that is written must be read in view of the facts found in the case decided, for it is not possible for a court to comprehend in every syllabus all the many phases of facts that may arise in other litigations touching similar transactions. It is undoubtedly the law, as there held, that as to some crimes the physical presence of the accused at the place where the crime is committed is not essential to his guilt, and since the amendment of April 28, 1908, it is also the law of this state that a parent may be guilty of the crime of failing to provide for his minor children, although he is residing in another state during the time laid in the indictment and that the venue of the crime is properly laid in the county where the child is domiciled when the complaint is made. Because this is true it by no means follows that the legislature of this state has the power and authority to control the domestic relations of citizens of another state not residing in this state and who never have resided in this state, or to compel by law the performance of any duties and obligations of parents to their minor children arising from the laws of this state when the legal residence of both parent and child is in another state, and where the defendant is not responsible either by acts of commission or omission for the child being temporarily in this state. The decision in the case of State v. Sanner, supra, has no application whatever to the state of facts presented by this petition in habeas corpus, further than it determines that it is not necessary to allege in the indictment that the defendant was during the time covered by the indictment, or any part of it, a resident of this state.

Section 7996, General Code of Ohio, declares that: “The husband is the head of the family. ITe may choose any reasonable place or mode of living and the wife must conform thereto.” This statute means something, and all other legislation must be construed in the light of the rights, duties and authority of a husband so fixed and established by this law. If this defendant resided in Ohio, and if he had established a home for his wife and minor children, and his wife without any just cause therefor, and without his consent, and against his wishes and desires, abandoned this home, taking with her their minor children and refusing to permit them to return to the father and to the home provided by him for them, it is difficult to see how the father by mere neglect and failure to assert his legal right to the custody of his child or children would be guilty of an offense under this statute so long as the minor child is receiving from the mother, or ' from some other person at the request of the mother, all that a father is required to provide for it. Any such interpretation of this statute would make the provisions of Section 7996, General Code, absolutely nugatory and deprive the husband and father of all the right and authority given him thereby. If this is true with reference to a citizen of this state, it must follow that a citizen of another state who has never resided in this state, who was married and established a home for himself and family in such other state, and still maintains such home, whose children were born in the state of which he is a citizen and elector, and who never was subject to the laws controlling- the domestic relations of this state and who has not sent his child into this state, or consented to its being brought here, cannot upon such state of facts be convicted of an offense under this statute. This statement of the law, however, is not subject to the construction that the citizen of another state who has never resided in this state cannot be guilty of an offense under our laws requiring parents to support their minor children.

Notwithstanding that a parent may never have been a resident of this state, and that he has always been a citizen of another state, yet the circumstances might be such as to make him amenable to our laws. It is unnecessary to imagine such a state of affairs as would authorize the prosecution of a citizen of another state for failure to provide for minor children living and being in this state. It is sufficient to say that it must at least appear either that he has brought, or compelled them to come into this state and then abandoned them, or that having been brought into this state by others, even against his will, they were then abandoned and permitted to become homeless and unprovided for. Clearly, in such case it would be the duty of the father to assert his legal right to their care and custody, and provide them with a home, food, shelter and clothing, and his failure to do so would be an offense against our laws. This legislation is for the benefit of the child. It is passed for the purpose of enforcing the natural duties of parents to their children. This duty is owing to the child wherever the parent entitled to its control and custody places it, or wherever in disregard of his parental duty and obligation, he permits it to remain unprovided for. So that citizens of another state cannot permit their children to become objects of charity in this state and defend against a prosecution under our laws to compel parents to provide for their minor children by the plea that they are not citizens of this state; but where such child is brought into this state against the will and consent of the parent and is provided with a suitable home, food, shelter and clothing by those responsible for bringing it into the state, or by others procured by them to furnish the same, it is then no concern of our state and no offense against our laws. If the averments of this petition are true, the legal residence of this child named in the indictment is still Ashland, Kentucky, and this petitioner has neither by act of commission or omission offended against the law of this state. This court, however, is not the forum to hear and determine the truth or falsity of the averments of this petition. The common pleas court of Lawrence county has jurisdiction of the offense charged. In the case of Ex parte Bushnell, 8 Ohio St., 599, this court declared that: “Where a court of original jurisdiction and legally competent to determine its own jurisdiction, has acquired jurisdiction, de facto, over person or subject-matter, it is a rule, founded upon comity between judicial tribunals, that no other court will interfere with, or seek to arrest the action of the court in which, and while, the case is still pending and undetermined.” Section 12165, General Code, provides: “If it appears that the person alleged to be restrained of his liberty, is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process or render the judgment or make the order, the writ shall not be allowed.” The answer discloses just such a state of facts as are provided for by this section. If it were the law that no citizen of another state could be guilty of an offense under this act to compel parents to maintain their children, then the applicant would be entitled to his discharge, but if there are any circumstances under which a citizen of another state may be guilty of such an offense, that is the end of the inquiry, and the' defendant will be remanded to the court having acquired jurisdiction of the matter and compelled to make his defense in the usual and ordinary way. This same question was before this court in the case of Burns v. Tarbox, Sheriff, 76 Ohio St., 520. The facts in that case were very similar to the facts in the case at bar, and it was sought in that case to have the defendant discharged on a writ of habeas corpus upon allegations very similar to the allegations in this petition. In fact it involved the same principle and it was there held that: “The evidence offered was not competent to work the discharge of Burns on habeas corpus, the same being competent and appropriate as a part of his defense to the charge before said mayor.”

Therefore, the petition of the applicant is dismissed at his costs and he is remanded to the custody of the sheriff.

Petition dismissed.

Davis, C. J., Spear, Johnson and O’Hara, JJ., concur.

Shauck, J., concurs in the second paragraph of the syllabus and in the judgment.


author: Johnson, J.

text:
    McLarren v. Myers, Administrator.

      Issuing of summons — Must be prior to expiration of statutory period — Section 11231, General Code — -Request to clerk to issue ■ summons — Will not stop running of statutory limitations, when— . Application of Section 12270, General Code.

    1. The saving provisions of Section 11231, General Code, relate to the service of a summons, and before the diligent endeavor therein referred to can avail to avoid the bar of a statute of limitations, there must have been a summons issued prior to the expiration of the period fixed by the statute.
    2. The burden of causing a summons in error to be issued in an error proceeding is imposed by law on the plaintiff in error, and Section 12270, General Code, being a statute of limitations to be enforced as other similar statutes, the precipe of plaintiff in error and his request to the clerk to issue summons will not stop the running of the statute or avoid the bar thereof if summons which is served on defendant in error is not issued prior to the expiration of the time fixed, unless facts are shown which bring the case within some saving provision of the law.
    (No. 12944

    Decided November 12, 1912.)

      Error to the Circuit Court of Wayne county.
    Defendant in error recovered judgment in the common pleas of Wayne county. Plaintiff in error filed his petition in error and precipe for summons in the circuit court within four months after the date of the judgment, but no summons in error was issued until several days after the expiration of four months.
    Defendant in error moved to. dismiss the petition in error, and the circuit court sustained that motion. This proceeding is brought to reverse the judgment of the circuit court.

      Mr. Ross W. Funk and Mr. H. H. McMahon, for plaintiff in error.
    • In 1895 it was held that a proceeding in error was properly commenced in a case in which a summons in error, issued within the statutory period, was served after the expiration of that period, but before the return day of the summons. McDonald v. Ketchum, 53 Ohio St., 519.
    In 1896 it was held that a proceeding in error was properly commenced by the issue and service of a summons after the expiration of the statutory period. Ross, Sheriff, v. Willet, 54 Ohio St., 150.
    In the same year it was held that the mere filing of a petition in error with a precipe for a summons did not constitute an attempt to commence a proceeding in error within the rule laid down in Ross v. Willet, supra. Baltimore & Ohio Rd. Co. v. Ambach, 55 Ohio St., 553.

      In 1908, in a case reported without opinion, the supreme court, upon express authority of B. & O. Rd. Co. v. Ambach, supra, affirmed the decision of the circuit court of Putnam county. Andress v. Greenfelter, 77 Ohio St., 631.
    Legislation is enacted “to facilitate the acquisition of jurisdiction in the reviewing court and to prevent its failure.” Akron & Chicago Junction Rd. Co. v. Weedman, Exr., 83 Ohio St., 88.
    It is inconceivable that any legislative body ever intended to make the right to prosecute error dependent upon the will of a mere ministerial officer like the clerk. Brown, Assignee, v. Wallace, Assignee, 66 Ohio St., 57.
    The failure of the clerk to file the transcript in the circuit court within thirty days did not defeat the appeal. Hirsh v. Kilsheimer, 12 C. C., 291, 5 C. D., 551.
    The failure of the auditor to transmit the original papers and transcript in a road case did not defeat the jurisdiction of the probate court in appeal. Geddes v. Rice, 24 Ohio St., 60.
    It was held that the failure of the trial court to fix the amount of the appeal bond as requiréd by statute, could not defeat a party’s right-to appeal. Hubble v. Renick, 1 Ohio St., 171.
    It must be remembered, however, that in this case, the clerk did not refuse to issue the summons, but, on the contrary, assured counsel that he would attend to the matter. State, ex rel., v. Board of Elections, 4 C. C., N. S., 398.
    Moreover, it is contended that had no summons been issued and no service made, the defendant in error, Myers, by raising and arguing a question other than that of the jurisdiction of his own person, entered his appearance generally in the proceeding, waived the issue and service of summons in error, submitted to and called into exercise the jurisdiction of the circuit court, and thereby estopped himself to deny the jurisdiction of that court over his person. Elliott v. Lawhead, 43 Ohio St., 171; King v. Penn, 43 Ohio St., 57; C. C. & C. Rd. Co. v. Mara, 26 Ohio St., 185; C. & M. V. Ry. Co. v. Wick, 35 Ohio St., 347; Bowen v. Bowen, 36 Ohio St., 312.
    The sole purpose of the summons is to gain jurisdiction of the person whom it commands to be served. It is too clear for argument that the question of nonjoinder has nothing to do with the service upon the party raising the question. He thereby complains, not that the court has failed to acquire jurisdiction over his person, but that it has failed to acquire jurisdiction over the person of some other necessary party, and, therefore, has not acquired complete jurisdiction over the subject-matter.
    It was held in Smetters v. Rainey, 14 Ohio St., 287, that the failure of jurisdiction over the subject-matter was fatal and that omitted defendants could not be brought in after the lapse of the time limited, but in the case of Snider’s Exrs. v. Young, 72 Ohio St., 494, it was held that the omitted defendants' could be brought in by amendment.

      Mr. M. L. Spooner, for defendant in error.

      As to the question of jurisdiction, the court, to have the capacity to review a judgment of an inferior court, at least in Ohio, must have its power invoked within the statutory time limit, and in the method prescribed. Its jurisdiction, therefore, is not unlimited, but is specifically restricted by Section 12270, General Code, which definitely prohibits such actions not commenced within four months. Spoors v. Coen, 44 Ohio St., 497; Robinson v. Orr, 16 Ohio St., 288; C. & M. V. Ry. Co. v. Wick, 35 Ohio St., 251; Young v. Shallenberger, 53 Ohio St., 291; B. & O. Rd. Co. v. Ambach, 55 Ohio St., 553; Johnson v. Johnson, 10 C. D., 411, 19 C. C., 610; Connell v. Brumback, 10 C. D., 154, 18 C. C., 502.
    Plaintiff claims defendant in error appeared voluntarily, waived the failure to timely issue summons, and thereby consented to the court assuming jurisdiction herein; surely he must be under a misapprehension of the conditions, the facts and the law applicable herein.
    It will go without dispute as laid down in Smetters v. Rainey, 13 Ohio St., 568, Idem, 14 Ohio St., 287, and in many other cases, both before and since these, that all persons who are jointly interested in a judgment which is sought to be reversed or modified, must be made parties to the proceedings in error before the reviewing court can render a judgment reversing or modifying it. Snider’s Exrs. v. Young, 72 Ohio St., 508.
    The record shows that defendant at all times insisted upon the bar of lapse of time, as herein-before stated. King v. Penn, 43 Ohio St., 57;
      Bowen v. Bowen, 36 Ohio St., 312; C. C. & C. Rd. Co. v. Mara, 26 Ohio St., 185; Long v. Newhouse, 57 Ohio St., 348; Dowty v. Pepple, 58 Ohio St., 395; Heingartner v. McLean, 38 W. L. B., 182; Thompson v. Steamboat Morton, 2 Ohio St., 29.
   Johnson, J.

That the provision of the code, as to when an action shall be deemed commenced, applies to proceedings in error, has been settled by repeated decisions, as well as, that the summons which is served on a defendant in error must be issued, before the expiration of the time fixed by the statute of limitations governing the cause of action. Robinson v. Orr, 16 Ohio St., 284; B. & O. Rd. Co. v. Ambach, 55 Ohio St., 553.

In this case, the summons in error was not issued until after the four months’ limitation had expired.

Plaintiff in error, however, claims that he has brought himself within the saving provisions of Section 11231, General Code, and to this end, calls attention to an affidavit, filed in the circuit court, and included in the finding of facts by that court. The finding and record show, that the judgment was rendered April 23, 1910. The petition in error and precipe for summons in error were filed August 12th, the summons in error was-issued August 27th, served August 29th, and returned on same day. On August 19th, attorney for plaintiff in error, who lived at Columbus, called the clerk over long distance telephone and urged the issuance of the summons in error, as the time would expire in a few days, and the clerk said he would attend to the matter and let counsel know. On August 23d, the attorney went to Wooster, the county seat of Wayne county, saw that the petition in error, precipe and transcript, were filed, and told the clerk that the summons must issue that day. The clerk stated to him that he was busily engaged with other official work at that particular time, but assured him that he would attend to it. Relying on that assurance, the attorney for plaintiff in error returned to his home on that day. The summons in error was not issued until four days later.

Section 11230, General Code, provides, that an action shall be deemed to be commenced, at the date of summons, which is served on the defendant, and Section 11231, General Code, that an attempt to commence an action, shall be deemed to be equivalent to its commencement, when the party diligently endeavors to procure a service, if such attempt be followed by service in sixty days.

Did the filing of the petition in error, with precipe for summons, in connection with the action of the attorney for plaintiff in error as above stated, constitute an attempt to commence an action within the meaning of the above section?

The case of Ross, Sheriff, v. Willet, 54 Ohio St., 150, is cited by plaintiff in error in support of an affirmative answer to that question.

In that case a summons in error had been issued within the statutory time. It was served by an officer who was not qualified to make service. On motion, the service was set aside and another summons was, on the next day, issued and served. The latter one being after the expiration of the statute, but within sixty days after the first attempt.

The court held that the party had shown a compliance with the statute, because he “attempted to commence his proceeding, by filing his petition and causing a summons to be issued in proper time,” although the service proved ineffectual. It must be noted, that the saving provision in Section 11231 relates only to the diligent endeavor to procure service. The language of the statute is, “when a party diligently endeavors to procure service.”

If a party had caused a summons to be issued, there can be a diligent effort to procure its service, but, of course, there can be no such endeavor where no summons has issued.

In B. & O. Rd. Co. v. Ambach, 55 Ohio St., 554, no summons was caused to be issued before the expiration of the statute of limitations, and although a summons was issued within sixty days after the petition and precipe were filed, the court held that plaintiff in error did not bring itself within the saving provisions of Section 4988, Revised Statutes, now Section 11231, General Code.

So in the case at bar, no summons was caused to be issued at all, within the statutory time. The conversation had by the attorney of plaintiff in error with the clerk over the telephone and his visit on the last day within the statutory time, did not relate to the service, but to the issuance of a summons, and as the burden rested on him to cause the summons to issue, it would seem that he should have remained in the clerk’s office (under the urgent circumstances in which he was placed and which he stated to the clerk) and should have seen that the summons was actually issued. It is doubtless true that if plaintiff in error had remained he could and would have accomplished the object of his mission. The burden of causing a summons to issue rests on the plaintiff in error.

The right to prosecute error is statutory, and this court has uniformly held that the remedy to be effective must be pursued in the time and in the mode provided.

In Young v. Shallenberger, 53 Ohio St., 302, it is said: “The statute has declared, in explicit terms that ‘no proceeding to reverse a judgment shall be commenced unless within six months after the rendition .of the judgment,’ and the court is powerless to enlarge its terms if it desired to do so.” ■ .

■ A proceeding in error is of an adversary character, and the court can acquire no jurisdiction of the case until the defendant is brought before it. 'It is a substantial right of defendant, to insist that he must be brought into court within the time fixed by law as the limit for the. commencement of the suit, unless the running of the statute has been stopped in some manner, or for some reason, provided by law.

We are mindful that courts for the review of legal proceedings and for the correction of errors are an essential part of our judicial system, and the statutory right of every litigant to prosecute error in a proper case should be enforced. No purely technical or unsubstantial objection should be allowed to interfere with its exercise.

In the recent cases of Cincinnati Traction Co. v. Ruthman, 85 Ohio St., 62, and Pace v. Volk, 85 Ohio St., 413, we have held, that where a party has complied with the mandatory requirements of the statute, as to preparing and filing a bill of exceptions, the failure of the trial judge to sign it in the time fixed is not fatal, but that the judge may afterwards perform that ministerial duty. But the failure to issue summons under the circumstances shown here is of a different and a material character. As already shown the burden of causing the summons to be issued rests on the plaintiff.

Generally, and in fact in the vast majority of instances, the mere filing of the petition and precipe, is followed by the issuance of the summons in due course. But if a party chooses to allow his case to lie, until near the expiration of the time limit, which the law has put upon his right to bring his proceeding, any additional vigilance that may be necessary to cause summons to issue is imposed on him. To hold otherwise would be to make uncertain the operation and weaken the salutary efficiency of all statutes of repose.

It is also contended that defendant in error entered his appearance to tile proceeding in error and waived the issuance and service of summons.

This claim is based on the fact, that counsel for defendant in error, in his argument to the circuit court, after stating to the court that his first ground to dismiss was that the summons in error, was not issued until more than four months after the judgment was entered, also stated that another reason, was the failure to make a joint judgment debtor, Dunn, a party to the proceeding. No reference to such a ground, was contained in the motion to dismiss, and the court manifestly did not regard any such remark, or suggestion, as relevant, but confined itself to the consideration of the question of jurisdiction presented in the motion and on the record.

In the entry of the judgment of dismissal is the following: “And said court as its conclusions of law find that said proceeding in error was not commenced within four months after the rendition of the judgment sought to be reversed in this action, and for that reason the motion of the defendant in error to strike said petition from the files ought to be and the same is sustained.”

The motion of defendant in error directly and specifically challenged the jurisdiction of the court and the face of the record disclosed a state of facts which justified the conclusion of law found by the court. The judgment will be

Affirmed.

Davis, C. J., Shauck and Donahue, JJ., concur. Spear and O’Hara, JJ., dissent.


author: Shauck, J.

text:
    The Oakwood Street Railway Co. v. Marker.

      Employe in action to recover for injuries — Need not allege knowledge of employer’s negligence, when.

    In an action by an employe to recover from his employer on account of injuries resulting from the latter’s negligence the plaintiif need not allege that he did not have knowledge of such negligence unless the allegation is required to repel an inference of knowledge which would naturally be raised by the facts alleged in the petition. (Coal & Car Co. v. Norman, 49 Ohio St., 598, distinguished.)
    (No. 13035
    Decided November 12, 1912.)
    Error to the Circuit Court of Montgomery county.
    Marker brought suit in the court of common pleas to recover from the company on account of personal injuries sustained by him while in its service as a motorman operating a car upon the streets of Dayton. In his petition he alleged that he was engaged in operating one of the company’s cars which became disabled by the breaking of an axle; that he returned with the car to the barn where it was taken in charge by one Howard Denise, the car repairer of the company, who was alleged to be the plaintiff’s superior and to whose orders he was subject; that Denise ordered the plaintiff to couple the injured car to another by which it was to be pushed farther into the barn; that the plaintiff proceeded to make such coupling in full view of Denise and could have done so with entire safety if Denise, who was in charge of the second car, had exercised care, but that while plaintiff was crouched between the cars executing the order, Denise without warning and with gross negligence started the car in his control and ran it upon the plaintiff inflicting the injuries of which he complained. The petition contained the further allegation that the company was guilty of negligence in employing Denise and in retaining him in its service, because he was addicted to the excessive use of intoxicating liquors and often was so under the influence of .liquors as to be incapable of properly performing his duties, whereby the safety of other employes was endangered; that by reason of his excessive use of liquors his efficiency was impaired and he was incapable of handling electrical machinery with ordinary care and prudence.
    The company answering denied that it was negligent and alleged that if Denise was negligent it was the negligence of a fellow-servant of Marker, and that Marker was guilty of contributory negligence. Replying the plaintiff denied the allegation of contributory negligence.
    On the trial the plaintiff offered evidence in support of his allegations and the company in opposition thereto. At the conclusion of the evidence counsel for the company requested the court to direct the jury to return a verdict for the defendant, which request the court denied. The court did,'however, instruct the jury that upon the evidence offered Denise was not the superior of Marker: Upon the allegations that the' company wás guilty of negligence in employing Denise and retaining him in its-service in view of his habitual intoxication the court gave the special instruction requested by the company and other instructions of which no complaint is made. The jury returned a verdict for the plaintiff and the company’s motion for a new trial being overruled, judgment was entered upon the verdict. A petition in error was filed in the circuit court by the company, and in' that court it was held that the common pleas court had erred in overruling the motion of the company for a new trial, because the original plaintiff had neither alleged nor offered evidence to show that he did not have knowledge of the habitual drunkenness and the drunkenness of Denise. The company thereupon moved the circuit court for a final judgment in its favor, which the court refused for the reason that it further found that the trial court had also erred in directing the jury that Denise was not the superior of Marker, there having been in the opinion of the circuit court some evidence offered by the original plaintiff to show that such relation existed. It thereupon reversed the judgment of the common pleas and remanded the case to that court for a new trial. Counsel for the company excepted to the refusal of the circuit court to render final judgment in its favor and counsel for Marker excepted to its judgment reversing that of the common pleas. By petition and cross-petition in error both of these exceptions are presented here.

      Messrs. McMahon & McMahon, for plaintiff in error.

      The record shows plainly that if Denise had the habits complained of, as stated by plaintiff’s witnesses, it was impossible for Marker to have been ignorant of the fact. In fact, during the two trials he made no effort to establish his ignorance. And as to the issue of superior servant, no additional proof is within the reach of either party.

      Mr. Roy G. Fitzgerald, for defendant in error.
    We realize that there are circumstances which call for negative averments and proof. In cases involving contributory negligence or assumed risk when the petition or evidence of the plaintiff raises an inference against him, he must remove it.
    It is claimed by opposite counsel, that this is one of those cases, but the circumstances do not sustain the claim.
    Marker, the injured man, did not work with the drunkard, nor at the same place. Marker was a motorman and his duty was to run cars on the streets, while Denise was the car repairer in the shop at the company’s office. There was no occasion for them to meet except upon extraordinary occasions when something might happen to the running gear of the car, as on the night of the accident. Clark County Cement Co. v. Wright, 16 Ind. App., 630.
    Generally speaking, the servant assumes only the risks usually incident to the employment. He does not assume the risk of the master’s negligence. P. C. C. & St. L. Ry. Co. v. Henderson, 37 Ohio St., 552; Spring Valley Coal Co. v. Buzis, 115 Ill. App., 196.

      The exception to this rule is founded on the principle that although the master has been negligent, yet if the servant knows and understands the increased danger, he assumes the additional risk. If the danger is “apparent,” “patent,” “obvious” or “open to view,” there is a presumption that the servant knew and understood it, and the burden is upon him to remove the inference; otherwise it is a matter of defense. Lehman v. Bagley, 82 Ill. App., 197, 48 L. R. A., 753; 1 Labatt on Master and Servant, Chap. XXI; Dallemand v. Saalfeldt, 175 Ill., 310; Hoffman v. Dickinson, 31 W. Va., 142; Dowd v. N. Y. O. & W. Ry. Co., 170 N. Y., 459; Penn. Rd. Co. v. Jones, 123 Fed. Rep., 753; Shebeck v. Natl. Cracker Co., 120 Ia., 414; Montgomery v. Seaboard Air Line Ry., 73 S. Car., 503; Nord v. Boston, etc., Mining Co., 33 Mont., 464; I. & G. N. Ry. Co. v. Harris, 95 Tex., 346; Foley v. Pioneer Min. & Mfg. Co., 144 Ala., 178; City of Greeley v. Foster, 32 Col., 292; White v. Lewistown & Y. F. Ry. Co., 87 N. Y. Supp., 901, 94 App. Div., 4.
    Late cases holding no inference of knowledge if risk not obvious, are: Worden v. Gore-Meehan Co., 83 Conn., 642, 78 Atl. Rep., 422; Tennis Co. v. Davis, 46 Ind. App., 436, 92 N. E. Rep., 986; Duffey v. Consol. Block Coal Co., 147 Ia., 225, 124 N. W. Rep., 609.
    The fact of the habitual drunkenness of Denise having been proven by from eight to ten witnesses and express knowledge of it by the president shown, opposite counsel wants knowledge of this disputed fact imputed to Marker.
    Marker’s duties being upon the street with his car and the officers of the company having their duties at the barn with Denise, it is not logical to infer that Marker knew or had equal opportunity to know the habits of Denise. Valley Ry. Co. v. Keegan, 87 Fed. Rep., 849, 31 C. C. A., 255; Bailey on Master’s Liability, 59, 182.
   Shauck, J.

In the relation of these exceptions to the judgment which should be rendered here the question first in order is whether the circuit court erred in holding that the original plaintiff could not recover on account of the alleged negligence of the company in employing Denise and retaining him in its service in view of his habits and conduct without alleging that he was himself without knowledge respecting them. Upon that subject there was neither allegation nor evidence.

In the rational development of the law of negligence and its application to the relation of employer and employe, comprehensive views of the subject have been taken to the end that not only justice should be done between the parties, but. that such rules should be devised and applied as would contribute as effectively as possible to the prevention of injuries from negligence. Usually a carrier is a corporation without organs for observation. If a natural person, his opportunity for observation is limited. But his relations to patrons and the public require that he be charged with the consequences of the negligence of his employes. To enable him to meet the obligation which this imposes upon him there have become recognized the defenses of fellow-servant, assumed risk, and acquiescence with knowledge, if that differs from assumed risk. If the original plaintiff had knowledge that the defendant had negligently employed one whose habits and conduct would likely lead to the injury of others, or was retaining such employe in its service, the communication of that knowledge to the employer' was a duty which he owed not only to himself and the company, but to others, and failure in that regard would defeat his recovery. But we are to ascertain what inferences should be drawn from the absence of averment of either party respecting the knowledge of the plaintiff. An obvious and helpful analogy is found in the established rules respecting contributory negligence which is always a matter of defense except when the case made by the plaintiff starts an inference that his own negligence contributed to his injury, when it is incumbent upon him to avert the inference by averment and by proof if the averment is denied. This analogy seems to be clearly recognized in the cases upon the subject of assumed risk, and the plaintiff is required to allege his want of knowledge only when his own averments start the inference that he had knowledge of the source of danger. The rule upon the subject received the following clear statement by this court in the case of L. S. & M. S. Ry. Co. v. Knittal, 33 Ohio St., 468: “If such employe, with a full knowledge of an habitual and continued negligence of the company or his superior fellow employe in some particular matter, acquiesces therein and continues in the service of the company, without any objection or effort toward a correction of the neglect, he thereby waives his right against the company and takes the .risk upon himself.” The rule was applied to prevent recovery by a brakeman for injuries which he had received in making a running switch in which dangerous mode of making switches he had participated. The direct question was presented in the case of Coal & Car Co. v. Norman, 49 Ohio St., 598, where the relation of the injured employe to the negligence of which he complained was shown by his own case to have been within his knowledge. It is true that through inadvertence this condition was omitted from the syllabus in that case, but the condition was plainly present in the record. The subject was again considered in Coal & Mining Co. v. Admr. of Clay, 51 Ohio St., 542, where the same condition was presented, that is, the case made by the plaintiff showed such opportunity for knowledge of the dangerous condition from which his injury arose as to require him to negative the inference of knowledge. The same condition was presented in the case of Coal Co. v. Estievenard, 53 Ohio St., 43. In Hesse, Admx., v. C. S. & H. Rd. Co., 58 Ohio St., 167, a recovery was denied on account of injuries to a locomotive fireman resulting from defects in the locomotive upon which he was employed because of the absence of the allegation that he had no knowledge thereof. In all of these cases the rule applied in the present case by the circuit court was applied to cases in which the injured employe was shown by the averments of the petition to have been in a position to have knowledge of the sources of danger and in some of them to have peculiar opportunity to be informed respecting it. If the facts alleged in the petition should show inferentially that the plaintiff could not have had knowledge, certainly there would be no reason in requiring the formal allegation that he did not have knowledge. So in the absence of facts appearing in the plaintiff’s case to start the inference that he probably had knowledge, why should the averment that he was without knowledge be required? It would seem to be extending a rule beyond its reason to require an averment of want of knowledge when the cause of action alleged does not suggest the probability of knowledge. In the present case it does not appear from the averments of the petition that the plaintiff had any special opportunity to become informed respecting the habits or condition of the car repairer. The employment of the original plaintiff was wholly, so far as the case shows, in the operation of his car upon the streets of the city and that of Denise was at the barn or shop. Though they were in the service of the same employer, their duties were separate and their meetings would naturally have been so casual and infrequent that the knowledge which should defeat a recovery in the case would not naturally have been acquired, and consequently the plaintiff’s default in duty in the respect considered would not be suggested by the case. It appears therefore that to require the original plaintiff to allege that he did not have knowledge of the negligence which the jury found to have resulted in his injury would be to extend the rule beyond the reason by which it is supported and that the circuit court erred in reversing the judgment upon that ground. Since this ground of recovery is not affected by the relation of superior and subordinate in the service of the company, we need not consider the other question with respect to which the courts below have differed.

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

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.


author: Spear, J.

text:
    The Cincinnati, Hamilton & Dayton Railway Co. v. De Onzo.

      In action for personal injuries — Not error for court to admit in evidence photograph and diagram, when.

    1. It is not error for the court, on the trial of a cause, to admit in evidence a photograph which appears to have been accurately taken, and is proven to be a correct representation of the subject in controversy which cannot itself be produced, or of some subject incident to it, and is of such a nature as to throw light upon the disputed point.
    2. At the trial of an action for personal injuries wherein it becomes pertinent for the plaintiff, in order to make out his case, to prove his ability, prior to the accident which resulted in his injury, to perform certain difficult feats of personal agility and skill, and oral testimony has been given tending to describe such feats, it is not error for the court to admit in evidence pictures or diagrams which are proven to correctly represent the feats and are calculated to enable the jury more clearly to understand and apply the oral evidence.
    (No. 13302
    Decided November 12, 1912.)
    Error to the Circuit Court of Butler county.
    The action below was to recover for personal injuries claimed to have been sustained by the defendant in error, De Onzo, while a passenger on the railroad of the plaintiff in error by reason of the negligence of the Company. A verdict for De Onzo was returned by the jury, and a judgment thereon rendered which was affirmed by the circuit court. The Company asks a reversal.
    Facts are stated in the opinion.

      Messrs. Shotts & Millikin, for plaintiff in error.
    The photograph was used as primary evidence of the condition of the leg and tendon at the time of the alleged injury, and as a substitute for oral testimony, and was not used for any of the purposes for which photographs, maps or diagrams are usually competent.
    Photographs have been permitted to be used in evidence in the absence of the originals, and in case of the inability to produce the original, or as aids in the investigation, as a map or document, and when they serve to explain or illustrate and apply the testimony, and they are often useful to enable courts and juries to comprehend readily the question in dispute as affected by the evidence, but we think that the use of photographs has always been considered as secondary or demonstrative evidence, the latter ,in the sense that the photograph is competent whenever it is important that the place, object, person or thing be described to the jury. Gilbert v. West End St. Ry. Co., 160 Mass., 403; Dederichs v. Salt Lake City Ry. Co., 14 Utah, 137, 35 L. R. A., 805.
    It was not shown at the trial that oral evidence could not be produced to show the condition of the tendon prior to the accident, but we contend that even if oral testimony could not be procured that the photograph was not competent evidence. Baxter v. C. & N. W. Ry. Co., 104 Wis., 307.
    It was not necessary for the picture to be used as a non-verbal mode of expressing De Onzo’s testimony, because this could be shown by direct proof. It was not used, to more clearly convey to the minds of the jury a condition, nor was it necessary to use it to describe the condition of the tendon. Cirrelo v. Met. Express Co., 88 N. Y. Supp., 932.
    The condition of the leg at the time of the accident could be given by a verbal description, and there was nothing to justify the admission of the photograph, and the only purpose it subserved was to prejudice the jury. Selleck v. Janesville, 104 Wis., 570; 1 Wigmore on Evidence, Secs. 790, 792; State v. Matheson, 130 Ia., 440, 114 Am. St. 440, n.; Baustian v. Young, 152 Mo., 317, 75 Am. St., 474, n.
    The court of common pleas erred in admitting in evidence the different pictures or cuts marked exhibits 1 to 7, inclusive.
    Where a document taken from a book is introduced, the jury must not be told that it was found in any book, or was gotten out by a distinguished doctor or a man of science, for that will lead the jury to attach undue importance to it. Ordway v. Haynes, 50 N. H., 159.
    It is not error to exclude from the jury a document when no drawing is necessary to illustrate the fact ascertained. Thrall v. Smiley, 9 Cal., 529; 4 Ency. of Evidence, 638; Lake St. El. Rd. Co. v. Burgess, 13 Am. Neg. Rep., 507.
    If the pictures were used for the purpose of refreshing the memory, and they served that purpose, and recalled to his mind a description of his feats, we do not think it can be contended that the pictures could themselves be introduced in evidence. Jones on Evidence, Sec. 883.

      Messrs. Andrews, Harlan & Andrews and Mr. David Pierce, for defendant in error.
    Opposing counsel contend that photographs are not admissible in evidence. In their brief Ohio authorities on this point are conspicuous by their absence. We will cite some: Hohly v. Sheely, 21 C. C., 484, 11 C. D., 678; 1 Thompson on Trials (2 ed.), Sec. 869; Varner v. Varner, 16 C. C., 386, 9 C. D., 273; Tish v. Welker, 5 Dec., 725, 7 N. P., 472.
    Photographs properly verified are admissible to establish the identity of persons, etc. 9 Ency. of Evidence, 772.
    Photographs properly verified as correct representations are generally admissible to show the nature and extent of personal injuries. 9 Ency. of Evidence, 774; Toledo Trac. Co. v. Cameron, 137 Fed. Rep., 48; Miller v. Minturn, 73 Ark., 183, 83 S. W. Rep., 918; People’s Gas, Light & Coke Co. v. Amphlett, 93 Ill. App., 194; Reddin v. Gates, 52 Ia., 210, 2 N. W. Rep., 1079; Jameson v. Weld, 93 Me., 345, 45 Atl. Rep., 299; Cooper v. St. Paul City Ry. Co., 54 Minn., 379, 56 N. W. Rep., 42; Geneva v. Burnett, 65 Neb., 464, 91 N. W. Rep., 275; Carlson v. Benton, 66 Neb., 486, 92 N. W. Rep., 600; Alberti v. N. Y. L. E. & W. Rd. Co., 118 N. Y., 77, 23 N. E. Rep., 35, 6 L. R. A., 765; Davis v. Seaboard Air Line Ry., 136 N. Car., 115, 48 S. E. Rep., 591.
    The above authorities are all cited under note 13 in 9 Ency. of Evidence, 774.
    We claim that the admission of the photograph was within the discretion of the trial judge, and that the court’s action is not subject to exception.
    Plaintiff in error’s counsel make a second contention to the effect that the court erred in admitting cuts or diagrams, being exhibits 1 to 7, inclusive, which show and illustrate some of the feats William De Onzo performed, among them being his most difficult feats. The defendant reserved exceptions. These pictures were in a magazine. They were handed De Onzo and he described his feats from them.
    We cite 4 Ency. of Evidence, 638 et seq., and cases there cited, on the admission of diagrams as independent evidence.
   Spear, J.

Two questions only are presented by the record. They relate to alleged error in the admission of evidence, one respecting a certain photograph and the other certain pictures.

De Onzo is by profession an athlete or acrobat, his specialty being what he terms barrel jumping. His evidence given at the trial tended to show that he was a man at the time of the accident of about thirty-five years of age, a public performer in theaters, in perfect health and in every way capable of performing the feats upon the stage called for by his profession. He had performed successfully in the chief cities of the United States and of Europe, and before many of the members of the royal families of England and on the continent, and had received large pay. Since the injury he cannot perform any of the more difficult and attractive feats, and his earnings from such minor feats as he can perform are exceedingly small.

The accident occurred on December 26, 1901, by reason of a collision between a freight train and a passenger train on The Cincinnati, Hamilton & Dayton Railway, on which De Onzo was a passenger on his way from Hamilton to Cincinnati. The principal injury complained of was to his left leg. In examining the plaintiff at the trial respecting his injury, and after the witness had testified as to certain lumps. and swellings then appearing on the left leg and which he stated were not there before the accident, his counsel produced a photograph purporting to give an accurate representation of the plaintiff's legs before the accident. The plaintiff then testified that the photograph was a correct picture of himself before and at the time of the accident, and truly represented his legs. The photograph was then offered in evidence. Objection was made especially on the ground that counsel did not know when it was taken. The witness was then inquired of as to when the picture was taken, and after some answers indicating uncertainty of recollection, testified that it was taken at Kansas City in the year 1901, and close onto September, being about three months prior to the accident. The objection of counsel was overruled and the photograph admitted, to which counsel for the Company excepted. The special objection here urged is that the photograph was taken at too remote a time, and that the condition of the leg being a proper subject for oral description, and being of a nature easily described by oral testimony, a picture of it could not aid the jury nor for any purpose be competent.

We do not consider the objection well taken. The introduction of photographs in evidence at the trial of causes is quite familiar practice in Ohio courts and has been for many years, but we are not aware of any reported case in this court which undertakes to declare any principle of law upon the subject. This may be because no serious objection has been taken to that mode of making proof, the general practice having been acquiesced in. It has been thought proper for courts to take judicial notice that photography, being the art of producing and preserving representations of persons, places and things by the action of light upon a prepared surface, may become a valuable aid in the development of facts before our legal tribunals, and this rule generally prevails. From many authorities, decisions and textbooks, and from the practice of courts in this state and elsewhere, it may be stated as a general rule that photographs are admissible in evidence when they appear to have been accurately taken, and are proven to be correct representations of a subject in controversy, which subject cannot itself be produced, or of some subject incident to it, and also of such a nature as to throw light upon the disputed point. If the photograph has been verified as above indicated, it is a proper item of evidence to go to a jury. Necessarily some discretion is reposed in the trial court in passing upon the preliminary proof, and determining whether or not the photograph has been sufficiently verified and is pertinent to the issue, but such discretion is a reasonable one and not to be exercised arbitrarily. The record in this case indicates that the court’s discretion had been reasonably exercised.

Nor was the photograph used as primary evidence. The plaintiff had testified to the condition of his limbs prior to the accident, but the limbs themselves could not be exhibited as of that time. Hence the photograph served to corroborate the testimony of the witness and more fully show to the jury the contrast between the injured leg as it had been and as it then was shown to the jury.

As to the pictures. The pictures offered were in a magazine. While De Onzo was testifying as to the feats he performed he was shown the pictures and inquired of if they correctly represented the tricks he had described. The ability to perform such feats was of itself a valuable acquirement. It was not entirely easy to effectively describe b)'’ oral testimony the exact performance which De Onzo had been able to give, and these pictures afforded a representation of the difficult feats and tended to enable the jury more clearly to understand and apply the oral evidence; They were thereupon torn from the magazine and given in evidence. We do not think this was error.

Many authorities have been cited and consulted. They will be found, pro and con, in the reporter’s notes. We do not regard it necessary to repeat them here.

The judgments below will be affirmed.

Judgment affirmed.

Davis, C. J., Shaucic, Johnson, Donahue and O’Hara, JJ., concur.


author: Davis, C. J.

text:
    Levering v. The National Bank of Morrow County.

      Petition in error to review a judgment — Is separate and independent proceeding — Right to sue for malicious prosecution accrues, when.

    1. A petition in error to review a judgment or final order of an inferior court is a separate and independent proceeding.
    2. The right to sue for malicious prosecution of a civil action accrues upon the rendition in the trial court of a judgment for the defendant in the action complained of, and is barred by the statute of limitations if not brought within one year after such judgment, although a proceeding in error may have intervened.
    (No. 12983
    Decided November 12, 1912.)
    Error to the Circuit Court of Morrow county.
    This action was begun in the court of common pleas of Morrbw county, on January 4, 1909, by a petition by plaintiff in error against the defendant in error for an alleged malicious prosecution of a civil action in the court of common pleas of Franklin county. The plaintiff’s second amended petition sets forth in substance that the defendant obtained a judgment, on January 31, 1906, on a cognovit note, which had been paid and which defendant knew had been paid, and maliciously and without probable cause, caused an execution to be issued against the property of the plaintiff and caused the same to be levied on the lands of the plaintiff in Knox county, on February 1, 1906; that a motion to set aside said judgment was granted and leave given to plaintiff to answer on March 27, 1906; that a trial was had in said action to a jury, on October 28, 1907, and that a verdict by the jury was rendered in favor of the defendant in said action, plaintiff in error here, October 29, 1907; that a motion for a new trial in said action was overruled and judgment rendered on the verdict, in the court of common pleas of Franklin county, on December 3, 1907; that the plaintiff in said alleged malicious prosecution, the defendant in error here, filed a petition in error in the circuit court of Franklin county, and on March 26, 1908, that court affirmed the judgment of the court of common pleas of Franklin county. To this second amended petition the defendant in error demurred on two grounds: first, that the cause of action was barred by the statute of limitations; and, second, that the facts stated in the second amended petition did not constitute a cause of action in favor of the plaintiff against the defendant. The court of common pleas sustained the demurrer on the first ground and overruled the demurrer as to the second ground. Error being prosecuted in the circuit court of Morrow county, the judgment of the court of common pleas was affirmed. This proceeding is to reverse the judgment of the circuit court.

      Mr. P. O. Levering and Mr. T. B. Mateer, for plaintiff in error.
    It is a general principle in actions for malicious prosecution, that the litigation complained of must be fully terminated, and this doctrine has been laid down by the supreme court of Ohio in the case of Douglas v. Allen, 56 Ohio St., 156.
    This same doctrine has been announced by courts of sister jurisdiction, in some of which the question has been more clearly and 'fully announced.
    The statute of limitations in an action for malicious prosecution commences to run from the termination of litigation. Printup Bros. & Co. v. Smith, 74 Ga., 157; Morgan v. Duffy, 94 Tenn., 686.
    Before the statute of limitations commences to run in an action for malicious prosecution there must be a termination of the original proceeding upon which the action is based, rendering it incapable of being revived. Casebeer v. Drahoble, 13 Neb., 465; Spring & Stepp v. Besor, 12 B. Mon. (Ky.), 551; Marks v. Townsend, 97 N. Y., 590; Hartshorne v. Smith, 104 Ga., 235.
    The statute of limitations in an action for malicious prosecution does not commence to run until the proceeding upon which the same is based has been affirmed by the court of last resort, should the litigants follow litigation to that extent. Foster v. Dennison, 19 R. I., 351; 26 Cyc., 55.
    The prosecution of a proceeding in error is recognized by many courts as a new proceeding and is such a proceeding that a summons must issue, but notwithstanding that fact the effect of that proceeding does control the judgment rendered in the lower court and the judgment rendered in the court of review operates ex vi termini to vacate the judgment of the court below, without any action on the part of the latter court. 3 Cyc., 460.
    The court of review, having control over the case in the proceeding in error, it cannot be said that the litigation is fully terminated until judgment is rendered in the reviewing court. 2 Cyc., 891, 908.

      Messrs. Fiarían & Wood and Messrs. Mitchell & Bruce, for defendant in error.
    If we are correct in the proposition, that the acts complained of in the second amended petition would constitute abuse of process and not malicious prosecution, when, then, did the cause of action accrue to plaintiff in error by reason of the wrongful use of the courts? We think on March 27, 1906, the date that the Franklin county court sustained a motion setting aside the judgment in the malicious suit, which was a recall of the execution and levy. If the cause of action accrued on March 27, 1906, the commencement of this case on January 4, 1909, was two years, nine months and seven days after the cause of action accrued, and the limitations for this class of cases under Section 4983, Revised Statutes, being one year, the same would be barred by the statute. Fortman v. Rottier & Hoenig, 8 Ohio St., 555.
    Rendering judgment on the verdict in the malicious suit we think was a final determination of that case, although error was prosecuted therefrom to the circuit court of Franklin county, where the same was affirmed; but the error proceeding was a new proceeding, different in kind, providing for new and different service from the original action.
    Proceedings for the reversal, vacation or modification of a judgment are as truly adversary in their character as an original action; they constitute a distinct suit between the parties and result in a judgment of the court. Robinson v. Orr, 16 Ohio St., 287; Hammond v. Hammond, 21 Ohio St., 626; Charles v. Fawley, 71 Ohio St., 54.
   Davis, C. J.

The only question considered here is whether this action for malicious prosecution is barred by the statute of limitations. It is provided in the General Code, Section 11225, that an action for malicious prosecution shall be brought within one year after the cause of action accrued. The plaintiff in error contends that his right to sue the defendant in error did not accrue until the judgment of the court of common pleas was affirmed, that is, March 26, 1908; and that he was therefore within the time limited by the statute for bringing his action. The contention of the defendant in error, and the holding of both of the courts below, is that the plaintiff’s right to sue, if he had any right at all, accrued when the court of common pleas rendered judgment in his favor on December 3, 1907, and that this action, being brought more than one year thereafter, is therefore barred by the statute.

The general rule is that until the original suit between the parties has been legally terminated in favor of the plaintiff in the malicious prosecution action, the latter has no remedy, because until that point is reached no presumption of malice and want of probable cause arises. That presumption arises eo instante when the court which has jurisdiction of the original action renders judgment for the defendant, the plaintiff in the malicious prosecution case. A proceeding in error could not affect the right of the defendant to bring his action for malicious prosecution; because if the judgment in his favor should be affirmed by the reviewing court, the presumption in his favor continues, and if the judgment should be finally reversed, that may be pleaded as a defense to the pending action for malicious prosecution. The pendency of a proceeding in error may be a good reason for a stay of proceedings in the action for malicious prosecution until the error proceeding is disposed of, but it would be no reason for dismissing the petition for damages on account of malicious prosecution. This is, in substance, the doctrine of the court of appeals of New York, expressed in Marks v. Townsend et al., 97 N. Y., 590; and of the supreme court of Wisconsin, in Luby v. Bennett, 111 Wis., 613; of the supreme court of Tennessee, in Memphis Gayoso Gas Co. v. Williamson, 9 Heisk., 314; Sloan v. McCracken, 7 Lea, 627, and Swepson v. Davis, 109 Tenn., 99, 109; and of the supreme court of Rhode Island, in Foster v. Denison, 19 R. I., 351.

We may remark here that it is somewhat singular that counsel for the plaintiff in error should insist that Foster v. Denison, supra, settles, in favor of the plaintiff in error, the contention that the litigation in Franklin county was not fully terminated until the disposition of the case in the circuit court. The most significant part of the opinion in that case is the following paragraph: “We do not think that the present suit was prematurely brought. The action of ejectment complained of as malicious had resulted in a judgment in favor of the defendants in the Common Pleas Division, which was final. Though the defendant might, if reasons for a new trial existed, obtain a new trial by filing his petition under the statute within a year from the entry of the judgment, we do not think that this consideration would compel the plaintiffs to wait before bringing the suit until the expiration of a year from the entry of the judgment in the ejectment suit.” And again, speaking of the proceedings subsequent to the judgment in the common pleas division, the prosecution of a petition for a new trial in the appellate division, etc., it is said: “In all these acts the defendant was in the exercise of his legal rights. Such exercise affords no basis for an inference of malice or want of probable cause, as grounds of action.”

There is another road leading to the same end; and it is quite as conclusive as the first. Not only was the suing out of a writ of error regarded in this state before the Code, and is yet in other states, as not a continuation of the suit to which it relates, but as the commencement of a new proceeding to review and set aside the judgment of the court below, Lessee of Taylor v. Boyd, 3 Ohio, 337; 2 Cyc., 510, but in the adoption of the code of civil procedure, writs of error and certiorari to reverse, vacate or modify judgments or final orders in civil cases were abolished; General Code, Section 12282; yet the distinction between the original action and the proceeding to reverse, vacate or modify was retained in the statute. The Code provides that: “The proceedings to obtain such reversal, vacation or modification shall be by petition in error,” and that “a summons shall issue and be served or publication made, as in the commencement of an action.” General Code, Section 12259. Of course the requirement to file a petition and that summons must be issued and served or publication made, as in the commencement of an action, would be unnecessary and discordant, if the error proceeding were merely a continuation and transplanting of the original action in the reviewing court. A palpable illustration of this view is ' found in Charles v. Fawley et al., 71 Ohio St., 50, 54, where the distinction is clearly drawn between a proceeding in error and a statutory appeal, by which in certain cases the original case is brought up to the superior court for review de novo, upon the facts and the law, merely by giving notice to the adverse party and giving a bond, in the trial court.

Besides, the very definition of a judgment, as given in the Code, seems to be decisive of the contention here: “A judgment is the final determination of the rights of the parties in action.” General Code, Section 11582. It is one of the admitted facts in this case that a judgment was rendered in the original case in favor of the defendant, plaintiff in error here, upon the verdict of the jury in his favor.

We therefore hold that there was a legal termination in his favor of the action brought against the plaintiff, more than one year before the com- ■ mencement of this action, whereby the plaintiff’s cause of action became barred by the statute of limitations. The judgment of the circuit court affirming the judgment of the court of common pleas is

Affirmed.

Spear, Shauck, Joi-inson and O’Hara, JJ., concur. Donaiíue, J., having sat in the case in the circuit court, did not participate.


author: By the Court.

text:
    The State, ex rel. Buel, v. Joyce et al., Deputy State Supervisors, etc.

      Decision of secretary of state — Acting as supervisor of elections is final, when — Sections 5005, 5006 and 5007, General Code.

    The decision of the secretary of state, acting as state supervisor of elections, upon written objections to certificates of nomination and nomination papers or upon other questions arising in- the course of the nomination of candidates, as. provided in Sections 5005, 5006 and 5007, General Code, is final.
    (Decided November 5, 1912.)
    Motion for leave to file petition in mandamus.
    Under the provisions of Section 5005, General Code, objections were filed with the deputy state supervisors and inspectors of elections of Franklin county, to certain certificates of nomination and nomination papers. That board being unable to agree, the matter in controversy was submitted, under the provisions of Section 5007, to the secretary of state acting as state supervisor of elections, and his decision not being satisfactory to the relator and those whom he represents, this application for leave to file a petition in mandamus is made to this court.

      Mr. Thomas H. Clark; Mr. Karl T. Webber and Mr. R. W. McCoy, for the motion.

      Mr. George B. Okey and Mr. J. E\ Todd, contra.
   By the Court.

The sections of the election laws which are now numbered Sections 5005, 5006 and 5007, General Code, have been under consideration by this court several times; and it has been uniformly held that the decision of the secretary of state, when acting in the capacity of state supervisor of elections, upon written objections to certificates of nomination and nomination papers or upon other questions arising in the course of nomination of candidates, is final. Chapman v. Miller, 52 Ohio St., 166; Randall v. State, ex rel., 64 Ohio St., 57; State, ex rel., v. Stewart, 71 Ohio St., 55. The statute so declares; and as at present advised, this court is of the opinion that those matters are not per se the subject of judicial cognizance, but are matters for political regulation and well within the legislative power. This being an application for leave to file a petition in mandamus, the right to have the writ issue should clearly appear. Therefore, without entertaining an opinion as to the correctness of the ruling by the secretary of state, but regarding this application merely as presenting the question of the jurisdiction of this court to review such ruling,

Leave is refused.

Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur. Spear, J., not participating.


text:
    State of Ohio v. Gaskins. State of Ohio v. Habercorn.

      Leave of prosecuting attorney or attorney general — To Me petition in error — Not required by act of February 28, 1906 — Repealing Section 7306a, Revised Statutes — Section 13764, General Code.

    The act of February 28, 1906 (98 O. L., 33), repealing Section 7306a, Revised Statutes, and substituting Section 13764, General Code, does not require that leave of this court shall be obtained by the prosecuting attorney or the attorney general to file the petition in error which the section authorizes.
    (No. 7732
    (No. 7745
    Decided November 12, 1912.)
    Decided November 12, 1912.)
    Motion for leave to file petition, in error to the Circuit Court of Clermont county.
    Motion by defendant to strike petition in error from the files in cause No. 13834 on the general docket.
    Facts are stated in the opinion.
    No. 7732. Mr. D. W. Murphy, for the motion.

      Mr. Charles C. Kearns; Mr. Eli EL Speidel; Mr. O. P. Griffiths and Mr. C. B. Nichols, contra.
    Ño. 7745. Mr. J. G. Malone, for the motion.

      Mr. L. E. Laybourne; Mr. J. A. White and Mr. George W. Crabbe, contra.
   By the Court.

The motion lastly entitled is a-type of several motions which have been filed recently to dismiss petitions in error in cases on the general docket. In all the cases on the general docket, in the court of first resort an accused person had been convicted of an offense against the state and the judgment in favor of the state had been reversed by an intermediate reviewing court. In the group of cases represented by the motion lastly entitled the prosecuting attorney, without obtaining leave of this court for that purpose, filed a petition in error here for the reversal of the judgment of reversal rendered by. the intermediate court. All the motions are prompted by the view that in such cases a petition in error cannot be filed here except upon leave. Whether that view is correct or not is the only question presented.

The view that leave is required was properly overruled by this court in State v. Hervey, 59 Ohio St., 218, where a motion for leave to file was stricken from the files because it was not necessary. In that case first consideration was given to Section 7306a, Revised Statutes. It is said that a different conclusion is now required because on February 28, 1906 (98' Ohio Laws, 33), the general assembly repealed that section and by amendment substituted for it what is now Section 13764, General Code. The very obvious purpose of the amendment was to provide for proceedings in error in such cases in regular course from the trial court to “the next higher court,” the section having previously authorized only a proceeding in error to this court from a judgment of reversal rendered by the circuit court. Our attention is called to the substitution of the phrase “error may be prosecuted to review such judgment” for the phrase “the attorney representing the state may take proceedings in error.” But these appear to be equivalent phrases, and no reason is given why the change should be regarded as favoring the view that leave is to be required. It seems that the view taken in State v. Hervey is applicable to the present statute as well as to that which was there considered. The motions are

Overruled.

Davis, C. J., Spear, Shauck, Johnson, Donahue and O’Hara, JJ., concur.