author: Crew, J.

text:
    Dungan v. Kline et al.

      Entailments — Section 4200, Revised Statutes- — -Issue of donee in tall — No interest in lands entailed, when.

    Under Section 4200, Revised Statutes, the issue of a donee in tail, during the life of such donee, has no estate or interest in the lands entailed which he can alienate.
    (No. 11433
    Decided January 18, 1910.)
    Error to the Circuit Court of Pickaway county.
    On October 27, 1906, Etta Kline commenced an action in the court of common pleas of Pickaway county against the plaintiff in error, Harriet Dungan and others, asking for the partition of certain real estate in her petition described. Thereafter, to-wit: on November 22, 1906, Adolph G. Wilson also brought suit in said court of common pleas against said Plarriet Dungan and others, asking partition of the same lands. On motion these cases were consolidated and tried as one case. The lands of which partition was asked consisted of three tracts, two of which, by the will of Titus Dungan, had been devised to “Elizabeth Wilson and the heirs of her body,” and the other tract had been devised to said “Elizabeth Wilson and the heirs of her body” by one Mary Ann Kirkendall.. The devisors Titus Dungan and Mary Ann Kirkendall both died prior to June 18, 1883, and the will of each had been duly admitted to probate prior to that time. The devisee Elizabeth Wilson had seven children, among whom were two sons, William T. and George H. Wilson. William T. Wilson died on January 16, 1887, his mother Elizabeth Wilson surviving him. She died October 27, 1906. On July 4, 1878, during the lifetime of his mother, William T. Wilson deeded to one George Dungan an undivided one-seventh interest in the premises which had been devised to Elizabeth Wilson and the heirs of her body, and thereafter said George Dungan deeded the same to the plaintiff in error, Harriet Dungan. On June 18, 1883, George H. Wilson, his mother being then in full life, also deeded an undivided one-seventh interest in said lands to George Dungan, which interest was subsequently deeded by said George Dungan to one John Schleyer and • by the latter to Harriet Dungan, the plaintiff in error. George H. Wilson died in October, 1896, ten years prior to the death of his mother Elizabeth Wilson. The deeds of William T. and George H. Wilson, although containing no covenants of general warranty, contained recitals that would perhaps estop each of them, if living, from asserting title to the property therein described. The controversy in this case is between the children of William T. and George H. Wilson on the one side, and Harriet Dungan the plaintiff in error on the other side. .The children of William T. and George H. Wilson claim to be the owners of, and entitled to such interest in the real estate to be partitioned, as would have descended to their fathers William T. and George H. Wilson respectively, if they had survived their mother Elizabeth Wilson, the first donee in tail. Harriet Dungan, plaintiff in error, claims title to the same premises under and by virtue of the alleged conveyances made as aforesaid by said William T. and George H. Wilson in their lifetime, and she further contends that the children of the said William T. and George H. Wilson, because of the recitals in said conveyances, are now estopped from claiming any interest in or title to the premises sought to be partitioned. In both the court of common pleas and the circuit court — to which latter court the case was taken on appeal — -this claim of Harriet Dungan was determined against her. She now prosecutes error to this court asking a reversal of the judgment of the circuit court.

      Mr. Clarence Curtain and Mr. E. A. Brown, for plaintiff in error.
    It can not be presumed that the testators intended to adopt the rules of the common law for the construction of their wills and thereby postpone the vesting of the fee simple title in the issue of Elizabeth N. Wilson until the' time of her death. The only presumption that can be indulged is that the testators by devising to Elizabeth N. Wilson an estate in fee tail intended thereby that such estate should “be and remain an absolute estate in fee simple to” her “issue.” Phillips v. Herron, 55 Ohio St., 489.
    We think our supreme court in Pollock v. Speidel, 27 Ohio St., 86, has given to Section 4200 the construction for which we contend.
    In New York estates tail have been abolished entirely and converted into estates in fee simple in the hands of the first taker, while in Ohio the estate is preserved as an estate tail in the hands of the first taker, but vests a fee simple in his issue. Van Rensselaer v. Kearney, 11 How., 325.
    It would seem, therefore, that the grandchildren of Elizabeth N. Wilson are by virtue of the statute prohibited from claiming any interest in the estate in controversy from either Titus Dungan or Mary Ann Kirkendall; if they are entitled to any interest in said estate it must-be by direct descent from their respective fathers; to hold otherwise, would, as we have already seen, be obnoxious to the plain language of Section 4200.
    If, therefore, George H. Wilson and William T. Wilson, if now living, would be estopped by their deeds, their children, defendants in error in this case, are bound by the same estoppel. That they would be estopped, we think, is settled by this and other courts. Magruder v. Esmay, 35 Ohio St., 221; Van Rensselaer v. Kearney, 11 How., 325.
    That the language contained in the deeds in question in this case is sufficient to create an estoppel is supported by the following cases decided in other states than Ohio: Bridge & Terminal Railway Co. v. Whitney, 99 N. W. Rep., 530; Wells v. Steckelberg, 72 N. W. Rep., 866; Hagensick v. Castor, 73 N. W. Rep., 932; Lindsay v. Freeman, 18 S. W. Rep., 727; Scates v. Fohn, 59 S. W. Rep., 838; Garrett v. Christopher, 12 S. W. Rep., 67; Balch v. Arnold, 59 Pac. Rep., 436; Habig v. Dodge, 25 N. E. Rep., ,182.

      Mr. Barton Walters; Mr. John P. Phillips; Mr. Charles H. May and Mr. James I. Boulger, for defendants in error.
    A careful analysis of Section 4200 will show that its object and meaning have been wholly misconceived by counsel for plaintiff in error and that no view of it can be taken which will in any way aid their contention. At the outset it must be noted that this section is twofold in its character. On the one hand it is designed to prevent perpetuities, and on the other to restrict the entailment of estates to the issue (not immediate issue) of the first donee in tail.
    It will be noted that in their argument counsel seem wholly to ignore the presence of the word “descendants” in this statute. Turley v. Turley, 11 Ohio St., 173; McArthur v. Scott, 113 U. S., 340.
    We very much doubt if it can be plausibly urged that estates tail per se' infringe the rule against remoteness; for, it is remoteness rather than perpetuities that are dispensed with under the rule against perpetuities, (Gray on Rule Against Perpetuities, Sec. 91) because the rule at common law was only directed against future “contingent interests” and not against vested interests.
    For the extent to which remoteness is tolerated under the Ohio statute see Gibson v. McNeely, 11 Ohio St., 131.
    It will be noted that the word “immediate” does not precede “issue” in the second clause of Section 4200, and this is a very significant fact when we consider that in the same section of the statutes this word is used to modify “issue” when the latter word is used in what we regard as an entirely different connection. There must have been some reason for its omission, and we think that it was intended that issue should, where it appears in the last clause, include lineal descendants indefinitely. It should really be treated as synonymous with the words heirs of the body. Holland v. Adams, 3 Gray, 193; Weybright v. Powell, 39 Atl. Rep., 421; Hertz v. Abrahams, 36 S. E. Rep., 409; 11 Am. & Eng. Ency. Law (1 ed.), 869; McCann v. McCann, 80 Am. St. Rep., 846; 2 Jarman on Wills, 636; Turley v. Turley, 11 Ohio St., 179; Adams v. Law, 17 How, 421; Dexter v. Inches, 147 Mass., 324.
    To show that this is the view of the courts of Ohio we need only to refer to the case of King’s Heirs v. King’s Admr., 12 Ohio, 390.
    In Harkness v. Corning, 24 Ohio St., 416, the court in effect hold that the estate tail is not enlarged into an absolute estate in fee simple until the termination of the interest of the first donee in tail. Richardson v. Stockyards Co., 8 N. P., 219; Pollock v. Speidel, 17 Ohio St., 447, 27 Ohio St., 94.
    It must not be forgotten that the statute de donis did not at common law grant the estate, but it did create the fee tail; that is to say, while the donor carved out a certain estate, the statute gave it its attributes. Instead of á conditional fee it became a fee tail, and the first donee took as purchaser and all the others by descent. The donor gave or granted nothing but a fee tail, and that to no one but the first donee; then the statute directed the manner it should go. Pollock v.
      Speidel, 17 Ohio St., 449; Perry v. Kline, 12 Cush., 127; Darling v. Hippel, 12 O. C. D., 754, 60 Ohio St., 591; Cruise’s Digest (3 Am. ed.), 68; Williams on Real Property, *522; Washburn on Real Property, Section 198.
    The whole question has been decided by the supreme court of Connecticut under a statute identically similar with the statute in question here. In Harkness v. Corning, supra, 426, it is said that the Ohio act 'was copied substantially from a statute of Connecticut passed in 1784. Dart v. Dart, 7 Conn., 250.
    In addition to all this we. also claim that the only interest which it might be possible to urge existed in the children of Elizabeth Wilson during her lifetime was a contingent remainder. No title was to vest in them if they failed to survive their mother. The remainder comes within Fearne’s fourth clause of Contingent Remainders. 22 Am. & Eng. Plncy. Law (2 ed.), 397; 2 Washburn on Real Property (6 ed.), Sections 1557, 1562; Spear v. Fogg, 32 Atl. Rep., 791; Hunt v. Hall, 37 Me., 363; Richardson v. Wheatland, 7 Metc., 169; Putnam v. Gleason, 99 Mass., 454; Johnson v. Jacobs, 11 Bush, 646; Feltman v. Butts, 8 Bush, 115; Emmerson v. Flughes, 19 S. W. Rep., 979; Mudge v. Hammill, 43 Atl. Rep., 544; Moore v. Littel, 40 Barb., 488.
    Even if it should be admitted, however, that the interests should be regarded as vested, as claimed, they were subject to be divested upon the failure of the contingency, viz^: that the said children should outlive their parent, Elizabeth Wilson, and having been divested by the death of the children before Elizabeth Wilson, the grantees of the children were divested of their interests. Bank v. Ballard’s Assignee, 4 Am. St. Rep., 160; L’Etourneau v. Henquenet, 28 Am. St. Rep., 310.
    We think we have shown that estoppel can not be invoked here, but we also wish to say that even if our foregoing argument should not have been correct, nevertheless the deed of Wm. T. Wilson, which the record shows was merely one of quit-claim, would not estop his daughter Florence Emma Wilson. Hanrick v. Patrick, 119 U. S., 156; White v. Brocaw, 14 Ohio St., 339; Locke v. White, 89 Ind., 492; Bryan v. Uland, 101 Ind., 477; Hart v. Gregg, 32 Ohio St., 502; Boyd v. Longworth, 11 Ohio, 253; Kinsman v. Loomis & Wood, 11 Ohio, 475.
   Crew, J.

If the estate tail devised to Elizabeth Wilson was not alienable by the issue in tail during her life, subject to her tenancy therein, then the grants made by William T. Wilson and George H. Wilson, who both died before their mother, were wholly void and no estoppel thereunder can be invoked ag'ainst their children. Therefore the decision of this case, upon the facts as presented by the record herein, depends primarily upon whether or not William T. and George H. Wilson during the lifetime of their mother, were severally seized of a fee simple estate in the premises which they respectively assumed to convey to George Dungan. That under the wills of Titus Dungan and Mary Ann Kirkendall, Elizabeth Wilson, as devisee, took an estate tail in the premises in controversy, is conceded, and the contention of Harriet Dungan, plaintiff in error, is, that under the devises therein made to Elizabeth Wilson and the heirs of her body, that William T. and George H. Wilson as her children, upon the death of said testators, each immediately, by force of the provisions of Section 4200, Revised Statutes, became entitled to and vested with an absolute estate in fee simple to a one-seventh part of the premises so devised to their mother, Elizabeth Wilson, as first donee in tail. On the other hand, it is 'claimed by the children of William T. and George H. Wilson, all of whom are defendants in error herein, that their fathers, during the lifetime of Elizabeth Wilson, had no estate or interest in said premises which they of right could alienate or convey, that until the death of said Elizabeth Wilson, the interest of William T. and George H. Wilson in said premises was that of a mere possibility or expectancy which could ripen into title and become a vested estate or interest, only in the event that they survived their mother, Elizabeth Wilson, the first donee in tail. In both the court of common pleas and in the circuit court, the contention of Harriet Dungan was held to be erroneous and was determined against her, and in this we think there was no error. Section 4200, Revised Statutes, provides as follows: “No estate in fee simple, fee tail, or any lesser estate, in lands or tenements, lying within this state, shall be given or granted, by deed or will, to any person or persons but such as are in being, or to the immediate issue or descendants of such as are in being at the time of making such deed or will; and all estates given in tail shall be and remain an absolute estate in fee simple to the issue of the first donee in tail.” Counsel for plaintiff in error, in discussing the effect of this statute, say in their brief: “The first part of the section, preceding the semi-colon, permits the granting of a limited estate tail and it forbids the granting of the same to persons who are in fact more remote than the immediate issue of persons in being at the time said grant is made.” This claim, ignoring as it does the word “descendants” found in the statute, is in part at least clearly erroneous. It will be observed that by the language of the first clause of this section the entailment by deed or will, is not restricted to persons in being, or to the immediate issue of such as are in being, but the limitation is, to persons in being, “or to the immediate issue -or descendants of such as are in being at the time of making such deed or will.” In Turley v. Turley et al., 11 Ohio St., 173, this court, when interpreting the language of this statute, after setting out a copy thereof, say: “What is to be understood by the terms, ‘immediate issue/ and ‘immediate descendants/ as employed in the above recited act?

“The counsel for the plaintiff insists that both terms indicate only one and the same class of persons; that is, living children of Mrs. Turley, and that neither include living children of her predeceased children.

“The presumption always is, that every word in a statute is designed to have some effect, and hence the rule, that ‘in putting a construction upon any statute, every part shall be regarded, and it shall be so expounded, if practicable, as to give some effect to every part of it.’ Commonwealth v. Alger, 7 Cushing, 89.

“The word ‘issue/ without the qualifying word, ‘immediate/ would, undoubtedly, include grandchildren and great-grandchildren of the person -to whose issue the bequest is made. 2 Williams on Ex., 252; 2 Jarman on Wills, 255, note. But we incline to the opinion that the qualifying word ‘immediate’ prefixed to it in the clause referred to, limits the phrase to the children merely of the person in being, etc.; and we do this the more readily, as we are satisfied that the remoter lineal descendants, if living at the death of the person in being when the will was made, are included in the phrase,- ‘immediate descendants.’

“In order to determine whether the words, ‘issue,’ and ‘descendants,’ used in the act, refer only to one and the same class of persons, or whether the one is more extensive than the other, we may very properly look to the entire law and its title, as well as the mischief or defect it was designed to remedy; and also to the other statutes in relation to the inheritance and transmission of estates. * * *

“But there is a plain and broad distinction between the terms ‘children’ and ‘descendants,’ the one indicating only lineal descendants, while the other includes both lineal and collateral relations — all, in short, that would then take the estate under the statute of descents. * * * All such persons may not be in fact, but they are in law, the descendants of the person from whom they receive the estate.” This interpretation of the statute was followed and approved by the supreme court of the United States in McArthur et al. v. Scott et al., 113 U. S., 340. In support of their contention that the statute forbids devises to persons more remote than the children of the first donee in tail, counsel for plaintiff in error seem to place much reliance upon the following expression found in the opinion of Shauck, J., in Phillips et al. v. Herron et al., 55 Ohio St., 489, where it is said: “It (Section 4200) forbids devises to persons who are in fact more remote than the immediate issue of persons in being at the time of the testator’s death.” While this lang-uage perhaps sufficiently defines the rule of the statute as applicable to the facts of that particular cas.e,' it is not, as clearly appears from the foregoing cases, a correct and accurate statement of the general rule and scope of the statute. And it obviously was not so intended by the author of that opinion, else he would hardly have cited in support of such statement, Turley v. Turley, and McArthur v. Scott, supra.

That, during the life of Elizabeth Wilson, first donee in tail, her children William T. and George H. Wilson had no estate or interest in the premises devised to her which they of right could alien or convey, while not heretofore directly decided by this court has, we think, by necessary implication, been so determined in several cases, In Pollock v. Speidel, 17 Ohio St., 448, in discussing the scope and effect of the act of 1811 (now Section 4200, Revised Statutes), Scott, J., says: “The statute recognizes the first donee in tail as holding an estate for life only, as tenant in tail; and does not convert the estate into a fee simple till it reaches the hands of his issue.” While it would seem to be, and was, incorrect to speak of the first donee in tail as holding an estate for life, as tenant in tail, this apparent inaccuracy of statement is sufficiently, and we think correctly explained in Harkness v. Corning, 24 Ohio St., 428, where the court say:, “A somewhat similar expression is used by the learned judge delivering the opinion of this court in Pollock v. Speidel, 17 Ohio St., 447. The controversy in that case was between the issue of the donee and the defendant, claiming under a conveyance from the donee, and the question was as to the quantity of interest conveyed. The judge said the 'statute recognizes the first donee in tail as holding an estate for life only, as tenant in tail.’ The idea intended to be expressed was that the donee, holding only as tenant in tail, could not convey an estate that would endure beyond his own life. To give to the expression the meaning claimed by plaintiff’s counsel, that the donee took a mere life estate, would render the opinion not only inconsistent with itself, but with the fourth proposition of the syllabus.” This case of Harkness v. Corning, supra, is also decisive of the proposition, that the statute does not become operative until the estate passes by the first donee in tail and reaches the issue of such donee, when, as said in the opinion at page 426, on the determination of the interest of such donee and of such rights as the law annexes to his interest while held by him, the*^ statute then enlarges the estate tail in the hands of such issue into an absolute estate in fee simple. When the case of Pollock v. Speidel, supra, was a second time before this court, 27 Ohio St., 86, the court, in considering and discussing the effect of 'the last .paragraph of the statute which reads, “and all estates given in tail shall be and remain an absolute estate in fee simple to the issue of the first donee in tail,” say that the issue of a tenant in tail ‘‘has no leg-al rights in the premises during the tenant’s life. The issue takes', if at all, by descent as heir of the body, and the maxim is nemo est hares viventis.’ ” The action was one in ejectment, and was brought by the children of one James Pollock, who was the son of John Pollock, Jr., first donee in tail, against the defendant to recover possession of certain real estate of which they claimed to be seized in fee simple as heirs of said James Pollock. The defendant denied the title of plaintiffs and alleged title in himself under a conveyance from said James Pollock by deed of general warranty executed June 30, 1831. While it does not positively and affirmatively appear at-what time John Pollock, Jr., the first donee in tail died, and the court in the opinion so sta,te, yet it -does appear from the agreed statement of facts therein: “III. That John Pollock, Jr., left some five children besides James Pollock, the grantee in the deed dated June 30, 1831.” We therefore conclude that the fair and reasonable inference is, and that the fact was, that John Pollock, Jr., the father of James, died before he did, and as, upon the death of his father, James as issue in tail would, thereupon take, by force of the statute an absolute estate in fee simple, with full power of alienation, he would of course, as would also his heirs, be estopped by his deed of June 30, 1831, which was a deed of general warranty, and this would be so, as said by the court in that case, even though John Pollock the first donee in tail was living at the time of its execution. Upon no other theory, than that James survived his father, can the decision in this case be reconciled with other decisions of this court, or be supported and upheld. Our statute of entailments, Section 4200, substantially in its present form, was copied from the statute of Connecticut, and the precise question we are now considering was decided *by the supreme court of that state in Dart v. Dart, 7 Conn., 250, where it is said by Peters, J.: “2. What estate passed from the plaintiff, by his deed to the releasees? By the common law, a release is a secondary conveyance, and is a discharge of a man’s right in land or tenements to another, who hath some former estate in possession. Shep. Touch., 318, 2 Bl. Com., 328. But in this state, a release is considered as a primary conveyance, and passes all the right of the releasor to the releasee, provided no other person be in possession adversely; and operates as a conveyance without warranty. 1 Sw. Dig., 133. But if he have no right, nothing passes, not even a chose in action. What estate, then, had tjie issue of the first donee in tail, during his life? My answer is, none. The plaintiff could, therefore, convey none. Such issue is only an heir apparent or presumptive. His title is the bare possibility, or mere chance, of becoming eventually the heir in tail; for the maxim is, (nemo est hceres viventis.’ And it is a well settled rule, that a mere possibility can not be released or conveyed; and the reason thereof is, that a release supposes a right in being. Shep. Touch., 319, Bac. Abr. Tit. Release. H.” It follows from the foregoing, we think, that the judgment of the circuit court in the present case was right and should be affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Summers, C. J.

license: Public Domain

text:
    The Northern Pacific Railway Company v. Baum.

      Suits before justice against railroad company — Section 6478, Revised •Statutes — Does not apply to attachment proceedings, when— Justice has jurisdiction in levy, when — Section 64^6, Revised Statutes — Publication of notice.

    Section 6478, Revised Statutes, does not apply to proceedings in attachment before a justice of the peace, and a justice of the peace may acquire jurisdiction in attachment against a foreign railroad corporation by levy, and publication of notice as provided ,in Section- 6496, Revised Statutes.
    (No. 11846
    Decided January 18, 1910.)
    Error to the Circuit Court of Hamilton county.
    Jacob Baum, doing business as J. Baum Safe & Lock Company, at Cincinnati, Hamilton county, Ohio, filed a bill of particulars before a justice of the peace of one of the tqwnships of that county, to recover the sum of twenty-four dollars from the railway company for the value of an iron safe that had been delivered by the railway company contrary to the contract of shipment; he also filed an affidavit in attachment on the ground of non-residence. A summons and an order of attachment were issued. The constable served the summons and order of attachment on an agent of the company in the township and attached certain office furniture, in the township, belonging to the company. The company moved to set aside the service of summons and the levy of attachment on the ground that the justice was without jurisdiction. The justice set aside the service of summons, but refused to dissolve the attachment. The plaintiff filed an affidavit for service by publication and the case was continued. The defendant took a bill of exceptions and prosecuted error to the court of common pleas, where the iudgment was affirmed (opinion by Swing, J., 7 N. P., N. S., 265), and on error the circuit court affirmed.
    The railway company is a corporation foreign to the state of Ohio; it is organized under the laws of Minnesota, and it has no line of railroad owned or leased by it in the state of Ohio, nor does its president reside in this state. It has an office in Cincinnati where business is solicited, and it was upon the agent in charge of that office upon whom service was made.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

      Mr. Jos. B. Derbes and Mr. Victor Abraham. for defendant in error.
   Summers, C. J.

Section 6478, Revised Statutes, reads as follows:

“Suits may be brought before a justice of the peace against any railroad company, in the township in which the president of the company may reside, or in any township into or through which the road owned or leased by said company may be located, whether such company be foreign or created under the laws of this state, and whether the charter thereof prescribes the place where suit must be brought against it, or the manner or place of service of process thereon.”

Counsel for the railway company contend that-this section fixes the venue of actions against railway companies before justices of the peace, and that an attachment can not be levied excepting in such cases. In other words, that the jurisdiction in attachment against a railway corporation can not be acquired before a justice of the peace unless the president of the company resides in the township of the justice, or the road owned or leased by the company is located in such township.

Proceedings in attachment originated in the necessity of providing tradesmen a means of satisfying their debts from the property of debtors, whom they could not serve with process, and it would be a strange omission in our statutes if, as to railroad companies, a writ of attachment is provided only in cases where it is least likely to be needed.

Prior to the adoption of the justices’ civil code in 1853, the writ of attachment in proceedings in attachment before justices of the peace was not ancillary to the original process; no summons issued, but notice of the taking out of the writ was given by posting and by advertisement in a newspaper. The only grounds for the writ were that the debtor had absconded or was a non-resident of the county. It was not contemplated that service of summons could be made, and notice could be just as well given by publication of the writ as of the summons. Swan’s Statutes (1841), 79.

It follows that the provisions of Section 6478, Revised Statutes, when originally enacted in 1850 (2 Cur wen, chapter 996), were not intended to, and could not áffect proceedings in attachment.

This is made still more evident by reference to an act passed at the same session of the legislature (2 Curwen, chapter 965), by which it was provided fhat if any creditor shall make oath that any foreign corporation (incorporated by the law of any other of the United States), is his debtor, and shall file the same with a justice of the peace, he “shall be entitled to the like remedy, process and proceedings in all respects against such corporation, as are provided by the said acts respectively (or any acts amendatory thereof), against absconding or non-resident debtors.”

The purpose of the statute fixing the venue of actions against railway corporations before justices of the peace was not to limit the jurisdiction of justices in such cases, but to facilitate the bringing of the railway company into court, by providing' that it might be sued in the township in which the president of the company resided, or in which its principal office was located, or into or through which the road of the company was located, and prescribing a mode of service of summons.

This statute (6478) was not made a part of the justices’ civil code, adopted in 1853 (51 Ohio Laws, 179), but first appeared as part of that code in the Revised Statutes of 1880, and its' appearance there does not indicate any intention to change the operation of the statutes.

The act enacting the justices’ civil code repealed the attachment statutes, to which reference has been made, but carried those provisions into the code, and there is nothing to indicate a change, unless it be that the making of the writ ancillary instead of the original process was so intended.. Section 6496, Revised Statutes, reads: “If the order of attachment is made to accompany the summons, a copy thereof and the summons shall be served upon the defendant in the usual manner for the service of a summons, if the same can be done within the county; and when any property of the defendant has been taken under the order of attachment, and it shall appear that the summons issued in the action has not been, and can not be sérved on the defendant in the county, in the manner prescribed by law, the justice of the peace shall continue the cause for a period not less than forty, nor more than sixty days; whereupon the plaintiff shall proceed for three consecutive weeks to publish in some newspaper printed in the county, or if none are [is] printed therein, then in some 'newspaper of general circulation in said county, a notice, stating the names of the parties, the time when, by what justice of the peace, and for what sum said order was issued, and shall make proof of such publication to the justice; and, thereupon, said action shall be proceeded with, the same as if said summons had been duly served.”

This provides substantially the same manner of giving notice, when service can not be made within the county, as was provided when the writ of attachment was the original process, and there is nothing in the code making necessary the implication that the legislature intended to' narrow the jurisdiction of justices of the peace in attachment respecting railway corporations. The evident intention was, as respects railway corporations as well as other defendants, that service should be made by publication when a summons could not be served in the county.

The case of Arial M. North, v. The Cleveland & Mahoning Railroad Company, 10 Ohio St., 548, cited in support of the contention of' counsel for plaintiff in error, does not appear to be a case in attachment.

A conclusion similar to that in the present case was reached in Herndon v. Givens, 16 Ala., 261. Collier, C. J., says: “The act of 1807 enacts, that ‘no freeholder of this state shall be sued out of the county of his permanent residence, provided the same be within this state, unless it be in the actions enumerated in the last section; nor shall any person, who may reside in this state, be held to bail, if sued out of the district or county of his residence and freehold/ Clay/s Dig., 342, Section 163. This enactment does not apply to suits commenced by attachment, but only to those instituted in the ordinary mode of process against the person of the defendant. The attachment is an extraordinary remedy, justified by the exigency of the case, and supposes that the seizure of the defendant’s property by the initiatory process is most probably essential to the recovery of the plaintiff’s demand. If the creditor was always compelled to sue it out in the county in which the debtor may be a ‘freeholder’ and have a ‘permanent residence,’ it would sometimes be ineffectual, and the debt might be lost. Thus, where the freehold was of much less value than the amount of the debt, or was encumbered, and the creditor might meet the debtor in another county removing all his personal estate beyond the limits of the state: if the creditor in such case were required to sue his attachment in the county of the debtor’s residence, before it could be levied, the latter might transfer his property to another jurisdiction. We cannot think the legislature ever contemplated á restriction of the remedy by the act cited. This conclusion is indicated not only by the liberal extension of the attachment law, but also by the terms of the act, which seem to refer to process against the defendant himself, and not against his estate.”

In Atkinson v. Wiggins, 69 Ala., 190, it is held: “Section 3606 of the Code of 1876 requiring suits before justices of the peace to be brought in the precinct of the defendant’s permanent residence, or in the precinct in which the debt was created, or in which the cause of action arose, is confined in its operation to suits commenced by summons, and has no reference to suits by attachment of goods, which are in their nature proceedings in rem.”

And in McPhillips v. Hubbard, 97 Ala., 512, it is held: “Section 2640 of the Code, requiring that suits on contracts must be brought in the county in which the defendant or one of the defendants reside, if he have a permanent residence .in the state, does not apply to suits commenced by attachment although it is served by summoning a garnishee.”

The judgment is affirmed.

Judgment affirmed.

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


author: By the Court :

text:
    The State of Ohio v. Sanner.

      Presence of one accused of crime — At place of crime — Not essential to guilt, when — Fadhire of parent to provide for minor children —Interpretation of Act of April 28, ipo8 — Criminal law.

    1. As to some crimes, the physical presence of the accused, at the place where the crime is committed, is not essential to his guilt.
    2. A parent may be guilty of the crime of failing to provide for his minor children, defined by the act entitled an act to compel parents to maintain their children, passed April 28, 1908 (99 Ohio Laws, 228), although he is a resident of another state during the time laid in the indictment, and the venue of the crime is in the county where the child is when the complaint is made.
    (No. 11796
    Decided January 18, 1910.)
    Exceptions to the decision of the Court of Common Pleas of Allen county.

      JANUARY TERM, 1910 Opinion of the Court. [81 O. S.
    ■The grand jury of Allen county indicted one William Sanner, late of said county, for refusing, failing and neglecting to provide for his seven minor children, under sixteen years of age, living in said county, with the necessary and proper home, care, food and clothing, he being well able to furnish the same by reason of having means and by personal service, labor and earnings.
    The defendant demurred to the indictment on the .ground that it does not charge an offense, nor does it charge the defendant with the commission of a crime or misdemeanor provided for in the” statutes of Ohio. The court sustained the demurrer, and discharged the defendant. The prosecuting attorney took a bill of exceptions, and on application obtained permission to file it for the decision of this court on the questions therein' presented.

      Mr. B. F. Welty, prosecuting attorney, for plaintiff in error.

      Mr. W. W. Sutton, for defendant in error.
   By the Court :

Section 1 of an act entitled ah act to compel parents to maintain their children, passed April 28, 1908, 99 Ohio Laws, 228, reads as follows: “The father, or when charged by law with the maintenance thereof, the mother, of a legitimate or illegitimate child or children, under sixteen years of age, or the husband of any pregnant woman, living in this state, who being able either by reason of having means, or by personal services, labor or earnings, shall neglect or refuse to provide such child or children or pregnant woman with necessary or proper home, care, food and clothing, * * * shall, upon conviction, be deemed guilty of a felony.” “Section 2. If the offense charged is abandonment or neglect or refusal to provide such child or children or pregnant woman with the necessary and proper home, care, food and clothing the offense shall be held to have been committed in any county of this state in which. such child or children or pregnant woman may be at the time such complaint is made.” “Section 4. The 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 has arrived at the age of sixteen years, provided said child so long continues to live in this state.”

The implication from the brief of the prosecuting attorney is, that the defendant was a non-resident of the state of Ohio during the time laid in the indictment and that the court sustained the demurrer on that ground. How- the court on a hearing on demurrer could be advised of the place of residence does not appear, however, the .question is raised by the record whether it is necessary to charge in the indictment that the defendant was “living in this state.”

The prior act, Section 3140-2, Revised Statutes, (94 Ohio Laws, 105) did not contain provisions like those of Sections 2 and 4, and this court in a case reported without opinion, State v. Etvers, 76 Ohio St., 563, overruled the exceptions of the prosecuting attorney of Williams county • to the ruling of the court of common pleas of that county, that a defendant was not guilty óf the offense, who resided in the state of Indiana during the time laid in the indictment.

Subsequently the act of 1908 was passed, and it cannot be doubted in view of the provisions of Sections 2 and 4 that the legistature intended the words “living in this state” to qualify the person to whom the duty is owing.

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 is well settled. Burton v. United States, 202 U. S., 344-387; Norris v. State, 25 Ohio St., 217; Lindsey v. State, 38 Ohio St., 507; 12 Cyc., 237.

Exceptions sustained.

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


author: Price, J.

text:
    The State of Ohio v. Rhoads.

      Transcript of private interview with one — Later a witness in indictment proceedings — Transcript delivered to prosecuting attorney for his use in trial — Error for court to order prosectitor — To deliver transcript to defendant or his counsel — One charged with crime — Not entitled to minutes of evidence before grand jury.

    1. Where a person conducts a private interview with one who after-wards is called and examined as a witness before the grand jury, which found an indictment against the defendant concerning some matters disclosed in said interview, which interview was stenographically taken, written out -and subsequently delivered to the prosecuting attorney for his use, and on the trial the person interviewed is called, and testified for the state in support of the indictment, it is error for the court, on request of defendant, to order the prosecuting attorney to deliver the transcript of said interview to defendant or his counsel, or to order the prosecuting attorney to allow either of them an inspection of the same.
    2. A person charged with crime is not entitled, ,before, or at the time of trial, to the minutes of the evidence taken before the grand jury, on which the indictment was found against him, nor to an inspection of a transcript of such evidence, and it is error for the court to order the prosecuting attorney to deliver said minutes, or a transcript of said evidence so taken, to the defendant or his counsel, or to order the prosecuting attorney to permit either of them to make an inspection thereof.
    (No. 12113
    Decided February 23, 1910.)
    Exceptions to decisions of the Court of Common Pleas of Franklin county.
    The case is fully stated in the opinion.

      Mr. Harrison Wilson; Mr. D. F. Pugh and Messrs. Webber, McCoy, King & Game, for the exceptions.
    The court in effect ordered the prosecuting- attorney to assist counsel for the defendant to try their side of the case.
    We conceive that in the trial of criminal cases, it is the business of the prosecuting attorney to act as attorney for the state and present its case, leaving to the defendant’s counsel the duty of looking after the interests of the defendant. Perhaps in some far off Utopia the day may come when counsel for the state and counsel for the defendant engaged in the trial will co-operate in a spirit of mutual fairness and candor to assist each other in presenting their respective sides of the case. Until that day comes, however, the trial courts should be limited to their legitimate province of administering and announcing the law as it is, and not as each individual judge may fancy the law ought to be.
    The right to an inspection of such papers is not conferred upon the defendant in a criminal case by either constitutional or statutory enactment. The trial judge in this case based his order on what may be designated his new rule of evidence “for the development of truth,” and obligatory only on the prosecuting attorney. We submit, however, that the principle, if it be a rule of evidence at all, is applicable alike to both civil and criminal cases and to counsel on both sides, in the absence of the intervention of some constitutional or statutory provision enacted for the protection of the accused in criminal cases. Summons v.
      State, 5 Ohio St., 352; Ex parte Schoepf, 74 Ohio St., 1; Jenkins v. State, 35 Fla., 737, 48 Am. St., 267; Glenn v. State, 46 Ind., 368; Railroad Co. v. Wood, 72 Ala., 451; Reid v. State, 81 Ga., 760; State v. Freidrich, 4 Wash., 204; State v. Hayden, 45 Ia., 1; State v. Thomas, 99 Mo., 235; Nelms v. State, 53 Am. Dec., 94; Olds v. Powell, 10 Ala., 393; Commonwealth v. Brown, 90 Va., 671.
    There is neither expressed nor implied legislative intent in Section 7195, Revised Statutes, that the transcript may be used by an accused person to make out his defense.
    The right of a defendant to inspect the evidence before the grand jury has been denied in Illinois, Kentucky and Arkansas, but in New York it is held discretionary with the court. 6 Ency. of Evidence, 260. In support of the text where the right of inspection was denied, are cited Cannon v. People, 141 Ill., 270; Franklin v. Commonwealth, 105 Ky., 237; Hofler v. State, 16 Ark. 534.
    The New York cases, in which it is held that the right of the defendant to inspect the minutes of the grand jury is a matter of discretion with the trial court, turn upon the construction of the New York statute, 2 Cumming & Gilbert’s N. Y. Statutes (1901), 1548.
    It will be observed that under this statute authority is given to the court to order an inspection of the testimony before the grand jury but that there is no such provision in the Ohio statute. State v. Haugh, 4 N. P., N. S., 79, affirmed 76 Ohio St., 582.
    This same question was before Judge Phillips in the common pleas court of Huron county, in seven cases reported under State v. Elnen, 20 Dec., 23, in which cases a motion was made for an order on the official stenographer for a copy of the testimony of the accused before the grand jury. It was held that the motion could not be granted. Merrick v. State, 63 Ind., 327; Havenor v. State, 125 Wis., 444; State v. Wallahan, Tappan, 48; 3 Wigmore on Evidence, 2407, 2437, 2438, 2440, 2441.

      Mr. Smith W. Bennett and Mr. Henry A. Williams, against the exceptions.
    Right of defendant to inspect minutes of testimony taken before grand jury. Eighmy v. People, 79 N. Y., 546; People v. Diamond, 72 App. Div., 281, 175 N. Y., 517; People v. Molineux, 27 Misc., 60; People v. Foody, 38 Misc., 357; People v. Proskey, 32 Misc., 367; People v. Naughton, 38 How. Pr., 430; People v. Bellows, 1 How. Pr., N. S., 149; People v. Klaw, 53 Misc., 158.
    Minutes of testimony taken before grand jury and delivered to district attorney are public papers and part of the records of the court. In re Osborne, 117 N. Y. Supp., 169; Matter of Gardiner, 31 Misc., 364; State v. Little, 42 Ia., 51.
    Grand jury is a constituent part of the court and its minutes are under the control of the court. People v. Thayer, 115 N. Y. Supp., 855; United States v. Kilpatrick, 16 Fed. Rep., 765; State v. Cowan, 1 Head (Tenn.), 280.
    The prosecuting attorney is a quasi judicial officer, an officer of the court, and should be impartial. State v. Henning, 33 Ind., 189; Griffith
      v. Slinkard, 146 Ind., 117; Farrar v. Steele, 31 La. An., 640; Engle v. Chipman, 51 Mich., 524; Fellows v. Mayor, 8 Hun, 484; State v. Yates, 66 Ohio St., 547; State v. Commissioners, 28 C. C., 170; In re Leaken, 137 Fed. Rep., 681; People v. Fielding, 158 N. Y., 542; People v. Greenwall, 115 N. Y., 520; Commonwealth v. Nicely, 130 Pa. St., 261; Brown v. Swineford, 44 Wis., 282.
    Duty of prosecuting attorney not to withhold evidence favorable to defendant. People v. Vanderoof, 71 Mich., 158.
    Members of grand jury and prosecuting attorney may disclose in court testimony of witnesses given before grand, jury. Murphy v. State, 124 Wis., 635; Baum v. State, 6 C. C., N. S., 515.
    The prosecutor was laying the foundation, to impeach the testimony of Maetzel; and to have permitted the prosecutor to have kept the transcript from defendant’s counsel, that is exactly what he could have done. For looking to Maetzel’s testimony, in part, before the grand jury, and that given by him on direct examination on trial, it would have appeared to have been contradictory. But looking to all his testimony before the grand jury, there was no contradiction.
    Members of grand jury may disclose in court testimony of witnesses given before the grand jury. Hinshaw v. State, 147 Ind., 334; State v. Benner, 64 Me., 267; Commonwealth v. Mead, 12 Gray, 167; State v. Wood, 53 N. H., 484; DeVeaux v. Clemens, 17 C. C., 33; 12 Cyc., 543; Kirk & Son v. Garrett, 84 Md., 383; State v. Broughton, 29 N. Car., 96, 45 Am. Dec., 507; Bressler v. People, 117 Ill., 422; State v. Moran,
      15 Ore., 262; Jones v. Turpin, 53 Tenn., 181; State v. Putnam, 100 Pac. Rep., 2; Burnham v. Hatfield, 5 Blackf. (Ind.), 21; Gordon v. Commonwealth, 92 Pa. St., 216; Section 7191, Revised Statutes.
    We are of the opinion that the propriety of the order of the court is fully sustained, not only by the constitutional privileges extended to the witness, but also because the grand jury itself is a part of the court, and in .the administration .of the criminal law a very essential part. Therefore, the proceedings of that body should be, as they always have been held to be, open to inquiry by the court. The transcript of the testimony taken before that body may be used as an aid to the court as well as to the prosecuting attorney, and fully as much for the purposes of the accused when the cause of justice so demands. Denning v. State, 22 Ark., 131; Wyatt v. People, 17 Colo., 252; State v. Ellsperman, 16 Ohio Dec., 590.
    In presenting the prosecutor’s view, denying the accused’s counsel the right to inspect the transcript of Cannon’s statement made out of court before the city solicitor, dependence seems to be placed upon the statement that süch transcript was the prosecutor’s private paper.
    Accepting, for the sake of the argument, the' “private papers” view of the prosecutor’s contention, can that view place the owner of this transcript beyond the commands of the court to produce it for the purposes of justice? State v. Farnum, 73 S. Car., 165, 53 S. E. Rep., 83; Pinckney v. Henegan, 2 Strob. (S. C.), 250, 49 Am. Dec., 592; Maha Rajah Nundocomar, 20 How. St. Tr., 1057; People v. Lyons, 49 Mich., 78; Mfg. Co. v. Platt, 83 Mich., 419; Wharton on Crim. Evidence (1884 ed.), Section 654; 8 Ency. Pl. & Pr., 121; State v. Wallahan, Tappan, 48; United States v. Burr, 25 Fed. Cases, 3.
    It may be pertinent to inquire, why is not that “far off Utopia” and “the day” here and now? May it be that it has been somewhat obstructed by' the office of the prosecuting attorney? Is it not a goal toward which we, as members of the bar and officers of justice, should set our faces, “a consummation' devoutly to be wished”? These things may sometimes be said with regard to the profession of the law, when in heated discussion, but never have we seen them deliberately written out and subscribed by attorneys-at-law. Commonwealth v. Nicely, 130 Pa. St., 261; People v. Clark, 8 N. Y. Crim., 169; Article 2, Par. 5, Canons of Ethics adopted by the American Bar association, as well as by the Ohio State Bar association. Burdick v. Hunt, 43 Ind., 381.
   Price, J.

The defendant R. Stanley Rhoads was indicted by the grand jury of Franklin county at the January term for the year 1907, and charged with the crime of giving a bribe to Charles B. Burr, while he, Burr, was a member of the board of public service of the city of Columbus. The accused entered a plea of not guilty, and on trial to a jury was acquitted, but during the progress of the trial, several controversies arose over the admission of evidence, and over the rulings of the trial court as to the right of the accused and his counsel to inspect the stenographic statement of evidence taken before the grand jury that found the indictment; also over the demand of such counsel for an inspection of a stenographic report of an interview or private inquisition had by George Marshall, then city solicitor of the city of Columbus, with one Nelson Cannon, who was afterwards called and examined by the state as a witness in the trial of Rhoads, and who g'ave evidence tending to his conviction. This demand was made in connection with his cross-examination, The court made certain orders, relating to the right to such inspections, sustaining the demand, to which counsel for the state excepted, and notwithstanding the acquittal of Rhoads, a bill of exceptions was taken and allowed, which contains the several points decided by the trial court, and enough of the evidence relating to such decisions to show their materiality in the case. On motion leave was obtained to file the bill in this court. This practice is authorized and regulated by Sections 7305, 7306 and 7307, Revised Statutes. Section 7308, Revised Statutes, provides that, “the judgment of the court in the case in which the bill was taken shall not be reversed nor in any manner affected; but the decision of the supreme court shall determine the law to govern in any similar case.” By this course of procedure, the decisions complained of have been brought into the record and heard on oral argument, and also considered on extended briefs of counsel.

Three decisions of the trial court have been selected for our investigation, and after we state each of them with its appropriate settings, we will discuss them as a whole, because the exceptions must stand or fall as tested by the same law.

First. The inquisition conducted by Solicitor Marshall seems to have occurred on or about February 18, 1907, at his office. How Nelson Cannon happened to be at this office, we are not informed, and we need not inquire. It was a personal, private inquiry, and did not assume any official character. It was not a court proceeding in any sense, and when the disclosures were taken by the stenographer and written out, it was not officially filed in any court or office, for there is no provision of law for the custody or lodgment of such a paper.

We are informed by the record sufficiently to state, that Cannon in this private inquiry made disclosures relative to several bribery transactions, and the complicity of various persons involved in the charges of bribery of the members of the board of public service in connection with a contract for the re-surfacing of part of East Broad street. The Cannon statement was delivered by the city solicitor to the prosecuting attorney for his use in the prosecution of the bribery cases of which there were several, including the case against Rhoads now under consideration. At the trial of Rhoads, the prosecuting attorney had with him a transcript of the Marshall inquiry. .Cannon was a witness for the state and testified concerning the acts and statements of Rhoads respecting the alleged bribery of Burr. He was cross-examined as to what he had told Solicitor Marshall in the interview, but witness seemed unable to give the specific questions by Marshall and the answers thereto. On re-examination, the prosecuting attorney, using the said transcript of what occurred at the inquiry conducted by Marshall, to get the questions and answers put and made, propounded to witness several of such questions. This transcript was not read to the jury, but used by the prosecutor to reproduce the questions and answers, no doubt to refresh the memory of the witness as to what did occur on that occasion. This course of re-examination was contested, and many ruling's made not now important. Finally the counsel for Rhoads requested the prosecuting attorney to let them have the transcript. This was refused and then application was made to the court to compel its delivery, and the court ordered the prosecutor to deliver to the counsel for Rhoads all that part of the transcript regarding which Cannon had been examined. The state excepted and still excepts.

Second. Henry Maetzel was a witness called by Rhoads and he testified in his behalf. He had been a witness before the grand jury that indicted Rhoads, on which indictment he was being tried. On cross-examination, Maetzel was asked several questions by the prosecuting attorney as to statements he had made as a witness before the grand jury which was investigating the Rhoads case and claimed to be at variance with his evidence in chief. In conducting the cross-examination. the prosecuting attorney had in his possession an unsigned stenographic report of the evidence given by Maetzel as a witness before the grand jury and was using the same as a memorandum to aid in such cross-examination.

The counsel for Rhoads asked for the possession and inspection of the transcript, and on the refusal of the counsel for the state, the court was moved to order the prosecutor to deliver it as requested. The court ordered the transcript of all that part of the testimony of Maetzel given by him before the grand jury in respect to which he had been cross-examined, to. be delivered to the defense. The counsel for the state protested and refused to comply with the order, and the court assessed a fine of $100 for contempt of court. Exception was taken. Subsequently the counsel for the state complied with the order and the assessment of fine was vacated. Before these orders were made for the inspection, the prosecuting attorney had submitted to the court for its inspection and' information a transcript of the testimony before the grand jury referred to, and also a copy of inquisition of Cannon conducted by Solicitor Marshall.

Third. The defendant Rhoads testified in his own behalf, fie had also testified before the grand jury that indicted him, having appeared there voluntárily after asking and obtaining permission of the prosecuting attorney to make such appearance. He was cross-examined relative to his testimony before the grand jury. The prosecuting attorney did not use the transcript of the grand jury evidence as memoranda in conducting the cross-examination, but framed his questions with the aid of the notes made from the transcript. On objection of the accused, the court ruled that using such notes was an evasion of its rulings and opinions, and on request of counsel for accused, the court ordered the prosecuting attorney to turn over to them the transcript of the testimony of Rhoads before the grand jury. This order was excepted to, but the transcript was delivered accordingly and used by counsel and client before his re-direct examination.

In considering what we may denominate as the Marshall-Cannon inquisition or interview, it would seem quite sufficient to observe again that the transcript of the same which had been delivered to the prosecuting attorney by Marshall, and was being referred to as an aid in the examination of Cannon, a witness at the trial for the state, had no public characteristic whatever. It was not an official or public record or document, and had not been filed with anyone as such. The city solicitor .no doubt had gained some intimation from some source of what Cannon knew and might disclose as to the corrupt practices of some of the city officials. He turned the inquisition or interview, which had been taken steno-graphically and afterwards typewritten, over to the prosecuting officer of the proper court in which to institute a thorough legal inquiry with a view to indictment and prosecution of such officials, should the evidence warrant that action.

This transcript was not evidence, and of itself could never become such under any circumstances of which we can have any present conception, certainly not independent evidence. If the witness Cannon had been using the transcript from which to testify, or to refresh and aid memory in giving testimony on the issue between the state and Rhoads, it might have been entirely proper and justifiable on the part of counsel for the accused to ask on cross-examination the opportunity to inspect the paper being referred to. by the witness. In that situation, the witness may be interrogated as to the character of the paper being used or referred to, and it became a subject of examination in connection with the cross-examination.

But that was not the situation we are reviewing. The prosecuting attorney, in preparing for an important trial, may in the seclusion of his study prepare notes of the facts which he expects to present at the trial; the names of witnesses and sketches of the evidence of each, and the order in which he desires to examine them. In such memoranda he may note precautions to be taken on this or that stage of the trial. Has the court authority to compel counsel, on request of his adversary to deliver this prepared memoranda for his inspection? Could such a practice of search and seizure be justified by.the law, or any reasonable rule of procedure? If so, an attorney’s private papers and his written data — his private notes made to aid memory on the trial — are no longer safe or sacred, and their possession may be ordered given over to one who has no legal claim to or upon them. Such an order would very much resemble the order under review. We, cannot accord to one accused of crime what could not be awarded to the law-abiding citizen in a court of justice.

The trial court erred in making the order complained of and exception thereto is sustained.

Our next subjects for consideration are the transcripts of evidence given before the grand jury by Henry Maetzel and the defendant Rhoads. As before stated Rhoads asked and obtained permission to go before the grand jury and his appearance there was voluntary.

Some preliminary considerations are appropriate here in order to a full understanding of what will follow. What is the source of the transcripts of the evidence before the grand jury? Before the days of official stenographers, the. grand jury might make one of their number a clerk for the purpose of having minutes of the proceedings. This was not required by the statute, but wás a matter of convenience in the discretion of the grand jury. With or without the service of a stenographer, the prosecuting attorney may take such notes of the evidence as he desires to assist him in the prosecution if an indictment should be found. These would be his own personal and private memoranda. By the provisions of Section 7195, Revised Statutes, touching the privileges of the prosecuting attorney, we see that he may interrogate witnesses when he or the grand jury deem it necessary. The official stenographer of the county “shall, at the request of the prosecuting attorney, take shorthand notes of the testimony and furnish a transcript of the same to the prosecuting attorney, and to no other person, but such stenographer shall withdraw from the jury room before the jurors begin to express their views, or give their votes on any matter before them. Such stenographer shall take an oath to be administered by the court after the grand jurors are sworn, imposing an obligation of secrecy upon- such stenographer to not disclose any testimony taken down or heard except to the jury, or to the prosecutor, unless called upon in a court of justice to make disclosures.” The prosecutor, under his oath of office and a proper sense of official duty and propriety is also expected to observe the rule of secrecy. He and the stenographer and the witness being examined are the only persons allowed by law to be present in the jury room during its investigations.

While at this point, it is well to notice the law concerning the organization of the 'grand jury. Section 7190, Revised Statutes, provides that when it is impaneled, the court shall appoint one of the number foreman. The next section prescribes his oath as follows: “Saving yourself and fellow jurors, you as foreman of this grand inquest, shall diligently inquire and true presentment make, of all such matters and things as shall be given you in charge, or otherwise come to your knowledge touching the present service; the counsel of the state, your own and your fellows, you shall keep secret, unless called on in a court of justice to make disclosures; and you shall present no person through malice,” etc. After this oath of the foreman, comes that of his fellows, to-wit: “The same oath which A. B. your foreman hath now taken before you on his part, you and each of you, shall well and truly observe and keep on your respective parts.”

We assume that both Maetzel and the. defendant Rhoads, respectively, gave evidence before the jury after it was so organized, and that the official stenographer took shorthand notes of their testimony, and further, that he furnished the prosecuting attorney with a transcript of the same at his request as required by the statute quoted. The transcript lawfully passed into the possession of the prosecutor, and he received it impressed with the seal of secrecy, and he is the only custodian mentioned, for there is no provision, as there is in some states, that it be ' filed with the clerk of the court. It does not become a part of the files of the case if an indictment is found, and there is no provision, authorizing its inspection by any person other than the prosecuting attorney. It is not constituted evidence in the case for any purpose. The proceedings before the grand inquest is not a trial. As yet it has no adverse parties before it, and the person whose conduct is being investigated has no right to appear there except by permission, and then not as a party, but as a voluntary witness. He cannot take his attorney with him before the inquest, nor has he a right to interview grand jurors touching what is\ said or transpires there. Therefore, the grand jury room is a secret chamber where, independent of fear, favor and affection, and unmoved by malice, hatred or ill-will, charges against persons may be investigated and indictments presented, if the facts warrant such presentment. Where then, does one indicted obtain his right to inspect the testimony given at such inquest, or the transcript of such testimony? , If it is answered, that in a case where the right is asserted, there was no arrest and hearing before a magistrate preliminary to the meeting of the grand jury, and therefore the nature of the accusation and the names of witnesses to support it could not be known to the accused, we reply, that under our system of laws adopted to regulate criminal proceedings and the rulings of the court, the indictment is required to allege in clear terms the offense or crime with which he is charged. As held in Dillingham v. State, 5 Ohio St., 280, the indictment must aver all the material facts which it is necessary to prove to produce a conviction, and with such reasonable certainty as to advise the accused what he may expect to meet o'n the trial. Under our practice, Section 7244, Revised Statutes, the accused ’ must be furnished with a copy of the indictment at least one day before he can be required to plead. And as to witnesses against him, the list will appear upon the proper record kept by the clerk to which the accused and his counsel have access.

It appears that the rights of accused persons are thus safeguarded, and they are not forced to trial unaware of what may be developed.

With this, we recur to the direct question respecting the right to inspect the transcripts in the possession of the prosecuting attorney. As before remarked, they are not evidence in and of themselves, and never can be, except under certain conditions, and then they are not evidence, but may be used by the prosecuting attorney merely as reference memoranda in laying the foundation for showing that a witness on the trial testified at variance with his testimony before the grand jury. These shorthand notes taken by the stenographer in the grand jury room are not signed by the witnesses, nor is the transcript of the same. Hence they are not evidence. If we need concurring authority, we find some in State v. Ostrander, 18 Ia., 435. In that case the opinion of the court was rendered by Dillon, J., of whom all lawyers have heard, for he adorned the supreme bench of Iowa at that time. One of the questions in the case was the right to introduce at the trial minutes of the grand jury. The syllabus on that subject is: “The minutes of a witness’ evidence before the grand jury cannot be introduced on the trial for the purpose of impeaching him, without giving him an opportunity to deny their correctness, or state what he did testify to before the grand jury. When it is claimed that there is a conflict between the evidence of a witness before the grand jury and his evidence before a traverse jury, his attention must be drawn to his former testimony, and the foundation for his impeachment laid in the usual and regular manner.”

In course of the opinion, on page 455, the court says: “On the trial, the defendant offered to read to the jury the minutes of the testimony taken before the grand jury, for the purpose of showing that the witnesses had made different and contradictory statements from those made before the court on the trial, and for the purpose of making the said minutes evidence. * * * For the same purposes, the defendant offered to read in evidence the notice served by the district attorney under Section 4786, Revised Statutes, upon the defendant, of the introduction of the testimony of Sarah Sawyer, to prove the facts stated in the notice. The court excluded both of these items of evidence. The right to read in evidence the notice is destitute of plausibility. There is more color for claiming under the revision (Sections 4624-4629, etc.,) that the minutes of the testimony taken before the grand jury might be used as evidence for some purposes and in some events. In the case at bar, the minutes were offered by the defendant as independent evidence in his'own favor. For this purpose they were incompetent. This testimony is taken ex parte It cannot be used by the state against him. 'Minutes’ only of the testimony are required to be taken. It would be unjust towards the witness to hold that these minute, could be used to contradict him without giving the witness an opportunity to deny their correctness before the trial jury, or to state to them what he did testify to before the grand jury.” Then follows the language of the syllabus.

In the State v. Hayden, 45 Ia., 11, it is ruled, that “the minutes of evidence given before the grand jury, or that submitted on preliminary examination, are not admissible upon the trial for the purpose of impeaching the witness.” And. on pages 13 and 14 the court gives the reasons for the ruling. Such minutes are not independent evidence, yet the court say, on page 15, “excluding the written minutes or substance of the evidence from being introduced, does not prevent an impeachment. The grand jury may be required by the court to disclose the testimony of a witness examined before them,” etc. The court so held, notwithstanding we find on examination of the statutes of Iowa as to grand jury proceedings, that the minutes taken of testimony before the grand jury in that state are required to be filed with the clerk of the court and attached to the indictment. See Sections 5257-8-9 of code of 1897; and we think from a cursory examination of prior statutes and the tone of the decisions above quoted, there was a similar provision when State v. Ostrander, supra, and State v. Hayden, supra, were decided.

If such minutes or report of the grand jury testimony could be considered as evidence, our statutes and rules of practice prescribe the method to obtain its inspection, and the method is not a “short order” of the court at. or before the trial, that the prosecuting attorney deliver it to the defendant or his counsel. By Section 7289, except as otherwise provided, “the provisions of the code of civil • procedure relative to compelling' the attendance and testimony of witnesses, their examination, and the administering of oaths and affirmations, and proceedings for contempt to enforce the remedies and protect the rights of parties, shall extend to criminal cases, so far as in their nature applicable.” If the grand jury transcript is evidence, independent evidence, notwithstanding the cases first cited herein, and if the provisions of the civil code as to the inspection of documents, etc., can be extended to criminal cases, we may turn to Sections 5290, 5291 and 5292, Revised Statutes, as the guide. Section 5290 provides, “either party or his attorney, may also demand of the adverse party an inspection and copy, or permission to take a copy, of a book, paper, or document in his possession, or under his control, containing evidence relating to the merits of the action or defense, which demand shall be in writing, and shall specify the book, etc. If this is refused, the court or judge, may on motion and on notice, order the party in possession to give the other an inspection and copy or permission to take a copy of such book, paper or document, and on failure to comply with such order, the court may exclude the paper or document from being given in evidence, or if wanted as evidence by the party applying, may direct the jury to presume it to be such as the party, by affidavit alleges it to be * * * Section 5291 provides for a master to make the inspections in certain events. If these provisions do not extend to criminal cases, then we find no statute for such inspection, copy, etc., pertaining to a criminal case. But if they do apply to the criminal practice, the paper or document of which inspection and copy are desired, must be such as contain evidence relating to the merits of the action or defense. We repeat, that the transcript of the testimony given before the grand jury is not evidence, and never can be, except under exceptional conditions which we do not now recognize. Therefore the provisions of the civil code could not be invoked to gain an inspection or copy of -such a transcript.

In addition to the foregoing decided cases, we cite a few covering the subject generally, and which hold against the right asserted by Rhoads and his counsel. There are many s’uch authorities. Except in states where statutory provisions control to the contrary (and these are very rare) the authorities are remarkably uniform.

In Hofler v. The State, 16 Ark., 534, it is held that, “on the trial of an indictment for assault with intent to murder, the counsel for the prisoner has no right to inspect the minutes of the testimony taken before the grand .jury who found the indictment.” According to the practice in that state, it is the duty of the grand jury to preserve the minutes of their proceedings and of the testimony given before them, which shall be delivered to the attorney for the state. This is much like our statute. At the trial a motion was made to permit counsel for the prisoner to inspect the minutes of the testimony taken before the grand jury and. which was delivered to the attorney for the state. The motion was refused, and the supreme court in that case affirmed that ruling and said on page 535-6: “The indictment, a copy of which he was entitled to, advised him of the nature and cause of the accusation against him. This.he had a right under our bill of rights, to be informed of; but he was not entitled to demand an exhibit of the testimony by which the state expected, at the trial, to sustain this accusation.”

In Merrick v. The State, 63 Ind., 328, it is held: “The prosecuting attorney cannot be compelled to furnish the defendant with a copy of the evidence given against him before the grand jury in finding the indictment.” In that case a stenographer acting under the statutes had taken shorthand notes of the evidence, as' was done in the case before us.

In Cannon v. The People, 141 Ill., 270, the supreme court held: “A person charged with the crime of murder is not entitled to the minutes of the evidence taken before the grand jury, before or at the time of the trial, and there is no error in the court’s refusing to require the state’s attorney to furnish defendant’s counsel with the same.” On page 276, speaking to this point the court say: “Numerous errors are assigned. The first is, the refusal of the court to require state’s attorney to furnish the defendant’s counsel with the minutes of the testimony taken before the grand jury. We have been referred to no authority sustaining the practice insisted upon. Indeed the practice in this state has been uniformly the reverse.” That case was decided' in May, 1892.

One of the leading cases on the question before us is Havenor v. State, 125 Wis., 444, and was decided in 1905. The following points are made in the syllabus:

(1) “The minutes of the clerk of a grand jury of their proceedings kept under the provisions of chapter 90, laws of 1903, are not a public record open to the inspection of all persons.

(2) “The record of the proceedings of a grand jury is secret, and such secrecy must be maintained and kept inviolate within the bounds prescribed by the statutes and the decisions of the supreme court.

(3) “One accused of a crime is not entitled to an inspection of the records of the grand jury, in so far as they relate to the testimony given by him before the grand jury concerning the transaction involved upon his trial.

(4) “One accused of crime is not entitled to the inspection of the records of a grand jury, either before or at his trial, for the purpose of preparation for trial, or for laying the foundation for the impeachment of witnesses whose testimony may have been different on the trial from that-given before the grand jury.

(5) “The records of a grand jury proceedings as kept by the official stenographic reporter, are not official statements which in themselves constitute proof of the acts thus reported, but are memoranda made by the official in the course of his official duties, and.can only be used in evidence when the official can testify that at or about the time the records were made he knew their contents and the accuracy thereof.

(6) “Such records may, however, when proper, be used either to aid the witness in his present recollection or in his past recollection of their contents.”

The third proposition specially fits the refusal of the demand of inspection of evidence given by Rhoads before the grand jury in his case. The opinion cites other cases which we need not notice here, but they support one or more of the above propositions.

Many other cases of like import are collated’ in the brief of exceptor.

The counsel defending against the exceptions cite some cases decided by courts of New York,_ but, as we remember, none determined by the court of appeals. The statutes of that state respecting grand jury proceedings materially differ from ours. The duties of the stenographer before the grand jury are like the duties imposed here, with the addition, that when he has delivered the stenographic report of the evidence to the district attorney, he “shall not permit any other person to take a copy of the same, or of any portion thereof, nor to read the same nor any portion thereof, except upon a written order of the court duly made after hearing of the said district attorney. All of the said original minutes shall be kept in the custody of said district attorney, and neither the same nor a copy of the same or of any portion of the same shall be taken from the office of said district attorney, excepting as above provided.” This statute is quoted in In re Montgomery, appellate division of supreme court of New York, found in 110 N. Y. Supp., 793. It seems that in the cases where the inferior courts of that state indulged the accused in his motion for inspection, it was as a general rule, for an inspection relating to his contemplated attack on the validity of the indictment, or to aid him in procuring its dismissal; or to obtain names of witnesses for the prosecution, and we find no case where such inspection was ordered by the court on or before the trial, in order to aid the defendant in preparing for trial on the general issue — a plea of not guilty.

Clark, J., in the case last referred to, laid down the following proposition: “An examination of the minutes of the grand jury cannot be had for the purpose of assisting defendant in his preparation for the trial or of putting the state’s testimony in the hands of defendant, and the sole purpose for which such examination may be had is to enable defendant to move to set aside the indictment on the ground that it is not properly found, indorsed and presented, or that an improper person was present during the session of the grand jury, or where his- constitutional rights have been invaded; and such examination is not a matter of right and does not depend upon whether there had been a preliminary examination, but depends in each case upon the determination by the court to which the application is made that such examination is necessary to enable defendant to move to dismiss the indictment upon the grounds provided, and in such case the motion should be granted.” The court there cites and reviews the various decisions in that state and the right to such inspection and confines it to the limit stated. To this extent it is an authority in this case, and it is interesting as giving the rise and progress of the disposition to seek knowledge of what transpired in the grand jury room and how the different inferior courts regarded it.

The case of Eighmy v. The People, 79 N. Y., 546, cited against the exceptions, shows that when the case was moved for trial, the prisoner’s counsel, before the jury was empaneled, moved the court to order the district attorney to disclose what evidence was produced before the grand jury, and whether any other evidence was produced, save such as had been furnished the prisoner, with -a view of moving to quash the indictment, on the ground that there was not sufficient evidence before the grand jury to justify it. The motion was denied by the trial court and this was affirmed, the reviewing court stating, that granting or refusing the motion was a matter of discretion — discretionary where the purpose was the quashing of the indictment. Our canvass of the authorities has been carefully made, and we find no important case where such a motion has been granted in order that the inspection might be used on the trial or in preparation for the same.

In the case at hand, the quashing or dismissing of the indictment was not contemplated in the .use of the grand jury testimony, had it been turned over to the defense. No particular purpose or use was disclosed to the trial court in the application for the inspection. Yet the court made the broad order of delivery.

We are not disposed to follow the New York practice even as limited by the decisions of the inferior courts of that state, for it is easily gathered from the various cases in which the question arose, that embarrassing conditions followed the enforcement of such a rule of practice, which' it seems, received its' particular impetus in the case of People v. Molineux, 27 Misc. Rep., 60. While certain advantages may accrue to a defendant by disclosing the state’s testimony, there are higher considerations to be weighed — the public peace and welfare. As said in Thompson & Merriam on Juries, latter part of Section 623: “If the state had a right to a new trial, or any means of vacating verdicts of acquittal obtained by fraud or perjury, the reasons in justification of a rule which exposes the state’s evidence to the accused in advance of the trial would be more clear.” On page 662 (Section 608) of the . same authors, it is said concerning disclosure of the state’s .evidence in a preliminary examination: “Besides the advantages which we have enumerated as accruing to the accused from a preliminary examination, there is another and very considerable advantage which is the necessary result of this proceeding. The prosecution is obliged to disclose the evidence to the accused before he is put on trial for the charge. There is no doubt that the generality of accused persons are justly accused. Persons who have committed grave offenses do not hesitate at subornation of perjury, and serviceable persons are seldom found wanting to counteract the evidence of the prosecution by false swearing.”

In quoting this language, we disclaim any imputation' of bad motives or evil design to either the defendant or his counsel in this case. We are dealing here with principles rather than persons.

Another argument advanced is, that the prosecuting attorney represents the public of which Rhoads is one, and that he acts in a semi-judicial capacity in discharging his duties, and that he should aid the defense when aid is needed. We agree that this officer should not endeavor to convict an innocent person, and he should not suppress or conceal evidence that might tend to acquit the prisoner. But that he should assist in the defense, we deny. The state furnishes counsel to indigent prisoners and pays them. The trial, when the issue is joined, is not a friendly recitation, but a real trial. No morbid sentiment or sympathy for one charged with crime should overshadow the rights of the public. In these days criminals are both skilled and cunning, and it is a contest between the people and the criminals for the' mastery. Neither the rules of courtesy, or supposed equitable considerations should be allowed to subvert the practice sanctioned by long experience.

The state cannot compel the prisoner at the bar to submit his private papers or memoranda to the state for ■ use or even examination, for he cannot be required to testify- in the case, nor to furnish evidence against himself. Then why should the accused be allowed to rummage through the private papers of the prosecuting attorney? Neither the sublime teachings of the Golden Rule to which we have been referred, nor the supposed sense of fair play, can be so perverted as to sanction the demands allowed in this case.

The exceptions are sustained.

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


author: Shauck, J.

text:
    The Maumee Valley Railways & Light Company v. Montgomery et al.

      A common carrier, owner of its tracks — Liable to passenger injured in collision — Between its car and car of another company— Admitted to joint use of track — Liability of each company — May be enforced in samé action, when.

    1. A common carrier, being the owner of its track, is liable to its passenger for an injury received in a collision between its car and the car of another carrying company which it admits to the • joint use of its track, though the collision may result wholly from the negligence of the latter company.
    2. In such case the liability of the owning company for the breach of its contract of carriage, and that of the other for its negligence may be enforced in the same action, and the facts should be so determined by interrogatories or special findings that liability for ’compensation to the injured passenger may ultimately rest upon the company whose negligence occasioned the injury.
    (No. 11760
    Decided February 23, 1910.)
    Error to the Circuit Court, of Lucas county.
    Montgomery brought suit in the court of common pleas against The Maumee Valley Railways & Light Company and The Toledo Urban & Interurban Railway Company to recover on account of personal injuries sustained by him while a passenger on a car owned by The Maumee Valley Company, the injury being occasioned by a collision between two electric cars, one owned and operated by each of the companies, upon a track owned by The Maumee Company and used by both companies in the operation of their traction cars under a running arrangement which we do not find stated in detail in the record. In his petition the plaintiff charged that both cars were operated negligently, and that that negligence combined to cause the collision in which he was injured. Both companies in their separate answers admitted the joint use of the track owned by The Maumee Company; that a collision between their cars occurred and that the plaintiff sustained some injuries. Each denied the allegations of negligence against it. On the trial, evidence was introduced tending to show negligence of both companies. The jury returned a verdict in favor of Montgomery against the Urban and Interurban company but in favor of The Maumee Valley Company. Motions for a new trial were filed and overruled and judgment was entered upon the verdict. On petition in error, as shown by its record, the circuit court reversed the judgment of the court of common pleas for error in refusing to give the following instruction which was requested: “If the jury find from the evidence that The Toledo Urban & Interurban Railway Company ran its car over the tracks of The Maumee Valley Railways & Light Company with the permission or the knowledge of The Maumee Valley Railways & Light Company, then the said The Maumee Valley Railways & Light Company would be responsible for accidents caused to passengers which it itself carries, by the. negligence of the servants or agents of the other company so running its cars over its track by its permission or with its knowledge.” The circuit court also specified as error, on account of which it. reversed the judgment, the following portions of the instructions given. by the common plea© judge to the jury: “The servants of The Maumee Valley Railways & Light Company, in operating the car upon which, plaintiff was riding, were not bound to foresee or anticipate any negligent act on the part of the employes of the car of The Toledo Urban & Interurban Railway Company, and if the jury find that the car of The Maumee Valley Railways & Light Company had come to a stop before the collision, and the jury shall further find that the collision so occurred by reason of a failure on the part of an employe or employes or The Toledo Urban & Interurban Railway Company to use that degree of care which ordinarily prudent persons under like or similar circumstances would have used, then you are instructed that your verdict should be in fayor of the defendant, The Maumee Valley Railways & Light Company.” “The jury are instructed as a matter of law that, in determining your verdict in this case you should not hold the defendant, The Maumee Valley Railways & Light Company, liable, for any acts of negligence which you may find have been committed by the defendant, The Toledo Urban & Interurban Railway Company. You should not charge the defendant The Maumee Valley Railways & Light Company, in this case with any act or omission or any mistake, which you find from the evidence was committed by the defendant, The Toledo Urban & Interurban Railway Company, or its servants.” The same view of the liabilities of the companies is expressed in other portions of the charge because of which the circuit court reversed the judgment. The circuit court upon reversing the judgment remanded the cause to the court of 'common pleas for a new trial.

      Messrs. Smith & Baker, for plaintiff in error.

      Mr. John R. Kelly and Mr. Ashton H. Cold-ham, for Montgomery.

      Messrs. Lloyd & Rettig and Messrs. King, Tracy, Chapman. & Welles, for the Interurban Company.
   Shauck, J.

The view which the trial judge consistently presented to the jury, both in giving instructions and refusing instructions requested, was that each of the companies was liable to the plaintiff,- Montgomery, if his injury was caused by its negligence or the negligence of its servants, but that neither company was liable on account of the negligence of servants of the other. With respect to The Maumee Company it is to be observed that it was the carrier of Montgomery at the time of the collision which resulted in his injury, and it was the owner of the track upon which the collision occurred. According to the view which led to the judgment in its favor in the court of common pleas, it is without liability to its own passenger on account of injuries which he sustained in a collision which resulted wholly from the negligent operation of a car belonging to, and operated by, another carrier which it had admitted to the joint use of its track. That view is not consistent with either the considerations involved or the adjudicated cases. The elements of care involved in the contract of carriage embrace all conditions which affect the passenger’s safety. They extend to the permitted use or occupation of the carrier’s track, not less distinctly than to the condition of .the track, or to the operation of the carrier’s own cars. No principle is suggested which would afford immunity to the owning carrier from the liability for the negligence of its licensee in a case of this character. That there is no such immunity has been held in numerous cases, among which are Railroad Company v. Barron, 5 Wall., 90; Delaware, Lackawana & Western Railroad Company v. Salmon, 39 N. J. L., 299; Jefferson v. Railway Company, 117 Wis., 549; and Pennsylvania Company v. Ellett, Admr., 132 Ill., 654. The case under consideration, and the cases cited, are quite readily distinguished from those cases in which a- company owning a track and leasing it to another company for the exclusive operation of trains and cars thereon, itself wholly ceases to operate cars and trains. In such a case the question here presented could not arise.

It is urged upon our attention that the petition does not allege, and the evidence does not tend to show,, any act of negligence participated in by both of the companies joined in the action. But the companies voluntarily entered into such relations that the negligence of either might have caused the collision in which Montgomery was injured, or it might have been caused by the negligence of both. It might have resulted from the sole neglig'ence of the Interurban Company with a liability against it upon that ground with a concurrent' liability of the Maumee Company because of the breach of its contract of carriage. Such relations are alleged in the pleadings and they appear in the evidence. The original plaintiff was wholly without fault contributing to his injury. His right to recover against one, or both of the companies, is entirely clear. If the collision resulted solely from the negligence of the Interurban Company the liability should ultimately fall upon it. But that liability may be enforced in the same action as the liability of The Maumee. Company for the breach of its contract. The original plaintiff was obliged neither to waive his right of action against either company, nor to choose at his peril against which company he would bring his action. We are aware of no rule of law which requires several actions to determine the rights, and liabilities of the parties in such a case. That they may be determined in one action appears from Morris v. Woodburn, 57 Ohio St., 330; Chicago v. Robbins, 2 Black, 418; City of Rochester v. Campbell, 123 N. Y., 405.

The original plaintiff, upon the principles already stated, may be entitled to judgment against both companies, though of course he is entitled to but one satisfaction. It will be proper upon a re-triai of the cause, as it would have been upon the original trial, by special interrogatories to the jury and the action of the court upon its answers thereto, to determine, if • such shall appear to be the truth, • that the Interurban Company ' is liable because of its sole negligence, and The Maumee Company because of its breach of contract, the execution to run firstly against the former company, and if it be not satisfied, then against the latter.

The circuit court properly reversed the judgment and remanded the cause for a new trial, and its judgment will be affirmed.

Judgment affirmed.

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