author: Minshall, J.

text:
    The State ex rel. Richard Plimmer v. Poston et al.

      Election laws — Requirement of certified nominations of candidates— Validity of act of April 18, 1892 — Constitutional law.

    The requirement of section 6 (89 Ohio Laws, 434) that certified nominations of candidates for public offices must be made by ‘ ‘convention, caucus, meeting of qualified electors, primary election held by such electors or central or executive committee, representing a political party, which at the next preceding election polled at least one per cent, of the entire vote cast in the state” is not repugnant to any provision of the constitution.
    (Decided June 24, 1898.)
    In Mandamus.
    The defendants constitute the board of elections in the city of Columbus, Ohio. The plaintiff alleges that he is an elector of Franklin county ; that at a convention of electors of such county, held on the 29th day of March, 1898, he was nominated for the office of county commissioner on the ticket of the prohibition party and that other persons named, who were also electors of said county, were nominated for the other county offices to be filled at the November election, 1898 ; that on the 17th day of April, 1898, the said nominations were duly certified to the defendants, as required by law ; that they rejected said certificate and refused to file the same, and refused to print the names of said nominees on the ballots to be voted at said election, claiming that said prohibition party did not poll one per cent, of the vote cast at the last preceding election, as required by section 6 of the ballot act, and that said party failed and neglected to file with said board nomination papers, as provided by section 7 of said act. The petition contains no allegation as to the number of votes east by said party at- the last election, nor does it allege that any nomination paper,s were filed with said defendants or tendered to them, other than the certificate of the action of said convention. But the relator claiming that the statutory provisions, under which the defendants refused as aforesaid, are in conflict with section 1 of article 5, and section 26 of article 2 of the constitution, prays that a writ of mandamus may issue, commanding the defendants to receive and file said certificate and to print the names of said nominees upon the ballots to be voted at the next election.’

      C. T. Steioart; F. M. Mecartney and Mahlon Rouch, for the relator.
    Brief of F. M. Mecartney, for plaintiff.
    The parts of the act of the General Assembly brought in question by this proceeding are sections 6 and 7 of the act commonly known as the Ballot Laws.
    It is here held that the foregoing sections are in direct contravention of section 1, Art. V, of the Constitution of Ohio, as qualified and explained in section 1, Art. XIV and Art. XV, of the Constitution of the United States; and section 26, Art. II, of the Constitution of Ohio.
    The following provisions of the Constitution of Ohio also have a bearing upon the question before us: 1. Preamble; 2. Section2, Art. V; 3. Section 4, Art. V; 4. Section 5, Art. V; 5. Section 6, Art. V; 6. Section 4, Art. XV; 7. Section 2, Art. I; 8. Section 20, Art. I; 9. Section 1, Art. II.
    The duty of the judiciary. C. W. c& Z. Railroad Company v. Commissioners of Clinton County, 1 Ohio St., 81.

      There is perhaps no better established principle in our jurisprudence than the one which holds that, while the .duty of the courts to set aside an unconstitutional law as void, is clear, yet the conflict between the law and the constitution must also be clear.
    The legislature is, of necessity, in the first instance to be the judge of its own constitutional powers. Their manifest duty is never to exercise a power of doubtful constitutionality. Doubt in their case, as in that of the court, should be conclusive against all affirmative action. If a court in such case were to annul the law while entertaining doubts upon the subject, it would present the absurdity of one department of the government overturning, in doubt, what another had established in settled conviction; and to make the dubious constructions of the judiciary, outweigh the fixed conclusions of the general assembly.
    This principle is too well founded in sound reason and has been too well established by an unbroken line of decisions from the Supreme Court of the United States down through our state courts to need further amplification. Hylton v. U. 8., 3Dallas,371; Coopera. Telfair, 4Dallas, 14; Fletcher v. Peak, 8 C ranch, 87; McCormicJcv. Alexander, 2 Ohio, 65; Lehman v. McBride, 15 Ohio St., 573; 8tatg ex rel. v. Cincinnati, 20 Ohio St., 18; Walker v. Cincinnati, 21 Ohio St., 14; W. U. Telegraph Co. v. Mayer, 28 Ohio St., 521; Kendle v. State, 52 Ohio St., 346; Adams v. Howe, 14 Mass., 345; Wellington v. Petitioners, etc., 16 Pick., 95; City of Louisville v. Hiatt, 2 Mon., 178; Lexington v. McQuillan’s Heirs, 9 Dana, 914; Ohio ex rel. v. Dudley, 1 Ohio St., 441.

      The constitutionality of a law is determined by its application. State ex rél. v. Judges, 21 Ohio St., 1; State v. Iiip'p, 38 Ohio St., 199.
    In the discussion of the constitutionality of the acts before us, the authority of the legislature to pass the acts will be brought directly in question, and it may be well to determine what these powers are, and to what extent they may be used, before entering into the body of the argument. Section 1, Art. 2, of the Constitution of Ohio.
    The position that this general grant of legislative power is limited and qualified by the express inhibitions of the constitution will, doubtless, find no opposition, and needs no further argument for its support. But can it be maintained that these express inhibitions are the only limitations on the legislative power of the general assembly, and that there are no implied inhibitions? The idea has obtained some following that all the acts of the general assembly must be regarded as valid that are not expressly prohibited by the constitution. Bingham v. Miller, 17 Ohio, 445; Gass v. Dillon, 2 Ohio St., 607; Evans v. Dudly, 1 Ohio St., 437; Variola v. Smith, 5 Paoge, 137; Galder v. Bull, 3 Dallas, 386; Powers v. Bergon, 2 Seld., 358; Wilikinson v. leland, 2 Pet., 627; Rogers v. Bradshaw, 20 J. R., 735; People v. Platt, 17 J. R., 195; Peoples. Supervisors, etc., 4 Barb., 64; Benson v. Mayor of New York, 10 Barb., 223; People v. Edmunds, 15 Barb., 229; Hatch v. Vermont Gent. R. R. Go., 25 Vt., 49; R. R. Go. v. Davis, 2 Dev. and Bat., 451; Section2, Art. 1, of the Constitution of Ohio.
    The people added this last section to their fundamental law out of abundant caution, and as a constant reminder to their servants that they exercise only delegated power, and for security against the assumption of power not delegated.
    As an instance of the extreme care of the people to secure to themselves the sacred rights to “alter, reform, or abolish their government, whenever they might deem it necessary,” and to prevent the destruction of the exercise of this right in a peaceful and regular manner, Art. 5 of the Constitution was ordained as a safeguard against the violation of this right by the legislature, and its abuse by persons not properly qualified. Section 1, Art. 15 of the United States Constitution secures this privilege to the colored as well as the white male citizens. Section 4. 2 Am. Law Register, N. S., 470; lehman v. McBride, 15 Ohio St., 621; People v. Barber, 48 Hun., 198.
    There are many constitutional privileges, the free and full enjoyment of which are dependent on legislation, and in the case of the elective franchise, it is not only the right, but also the duty of the general assembly to pass laws securing the integrity of the ballot. Paine Elections, 301; Cooley on Const. Lim., 682, 752; State ex rel. Evans v. Dudley, 1 Ohio St., 450; Sender shot v. State, 44 Ohio St., 409.
    The qualifications of an elector and of those who are eligible to office, are set forth in the Constitu tion and in such laws as the legislature has received authority to pass by that instrument; and the necessary effect of this act of the legislature is to prescribe further qualifications and restrictions wholly unauthorized and clearly in contravention of section 1, Art. 5, of the Constitution. Cooley on Const. Lim., 753. In any case the fulfillment of the requirements of this act would be impracticable, and in most cases impossible. Cooley on Constitutional Limitations, page 775; Fort Dodge v. Dist. Twp., 17 Iowa, 85; Barry v. lanck, 5 Cold., 588.
    The question of the power of the legislature to regulate the manner and method of holding elections has been before our Supreme Court on several occasions. Monroe v. Collins, 17 Ohio St., 665; Daggett v. Hudson, 43 Ohio St., 548.
    The true line between laws which take away or abridge the right of suffrage, and those which may lawfully be enacted to regulate its exercise, is laid down by the Supreme Court of Massachusetts in Capen v. Foster, 12 Pick., 488.
    A construction would afford no warrant for such an exercise of legislative power, as, under the pretense and color of regulating, should subvert or injuriously restrain the right itself. Page v. Allen, 58 Pa. St., 345; Byler v. Asher, 47 111., 101; State ex rel. v. Baker, 38 Wis., 88; State v. Butts, 31 Kan., 554; Dells v. Kennedy, 49 Wis., 558; Attorney General v. Common Council, 78 Mich., 545; Davis v. School Dist., 44 N. H., 398; Cooley Const. Lim., 775.
    Again, the act requiring signers to pledge themselves to vote and support the candidates nominated in the petition is a flagrant violation of the secrecy of the ballot as guaranteed by section 2, Art. 5, of the Constitution, and for which the very subject of the act pretends to provide.
    Section 2, article 1, of the Constitution provides that “all elections shall be by ballot.” Cooley Const. Lim., page 760.
    We think the power affected to be used by the legislature in the passage of the act of April 18, 1892, and the act of April 8, 1898, is unwarranted by the general grant of legislative power in the Constitution. Both acts are not only clearly in conflict with section 1, article 5, of the Constitution, but they also contravene section 26, article 2, which provides that “All laws of a general nature, shall have a uniform operation throughout the state.” Brooke v. Hyde, 37 Cal., 375; Peoples. C. <& P. B. B. Co., 43 Cal., 432; Me Au nick v. The M.AM.B. B. Co., 20 la., 338; G B. c& Q. B. B. Co. v. Iowa, 94 U. S., 155; Leidy v. Grove, 53 Ohio St., 662; Gordon v. State, 46 Ohio St., 629.
    There is no uniformity in the operation of Sections 6 and 7 of the act passed April 18, 1892 (89 O. L., 434), as amended April 8, 1898 (93 O. L., 94), upon the constitutionally qualified electors of the state. It is a dangerous assumption of power, and sets a precedent, which, if allowed to stand, may be followed by a future legislature more boldly, and even less conscientiously, to establish the power of the dominant party which nothing but a revolution may be able to shake. Costello v. Wyoming, 49 Ohio St., 208; Bronson v. Oberlin, 41 Ohio St., 476.
    Brief of G. T. Stewart, for plaintiff.
    This seventh section in the act of April 8, 1898, is very partial, unreasonable and unconstitutional in many other respects. It requires all who sign nomination papers to thereby pledge themselves to support and vote for the candidates named in them. No such pledge is exacted from any voter of the major parties which are not required to produce such papers. Section 26 of article 2 of the Constitution.
    One of the unreasonable features of this peculiar legislation is exposed by its self-contradictions. It is entitled an amendment of “A.n act to provide for the mode of conducting elections, to insure the secrecy of the ballot, and prevent fraud and intimidation at the polls.”
    The same general assembly passed an act to authorize the use and purchase of voting machines for any and all elections, with the proviso that it must have a certificate from examining commissioners, ‘ ‘that it affords each elector an opportunity to vote in absolute secrecy.” (93 O. L., 277.)
    The two sections, six and seven, of the act for the conduct of election of public officers, are practically one, and are united in their aggressions on the constitution and the rights of voters, and mutually dependent on each other. The State ex rel. v. Commissioners of Perry County, 5 Ohio St., 497.
    There never was such an outrage attempted before, in the whole history of this state, when a majority of the two political parties forming the whole legislative branch of the state government, combined to abolish by act of the general assembly, six other political parties having no representation there; for to deprive them of their suffrage franchise is to destroy them; and not only to destroy them, but to practically disfranchise the citizens composing them.
    When the Constitution says: “All elections shall be by ballot, ’ ’ (Art. 4, section 2) it combines in these few words the two grand elements of a free choice, and a secret vote, between parties, candidates and principles, as vital to constitutional elections. When either of these are violated by any act of legislation, that act is plainly unconstitutional, null and void. Temple v. Mead, 4 Vermont R., 541: Williams v. Stein, 38 Ind. R., 90;
      People v. Pease, 27 N. Y. R., 81; People v. Cicotte, 16 Michigan, 283; High on Constitutional Limitations, 606.
    Section seven of the Ohio election law not only encourages all this “trickery and fraud” by systematic “espionage,” but publicly devotes the offices and officers of government itself, to promote that infamous wrong against the Constitution and the people.
    Next to the seal of secrecy which the Constitution imprints on every ballot as to the personal identity of the voter, it demands for him a free choice between the political parties and principles represented on the official ballot. As to the two major parties on the general ticket of last year, the names of the two parties and their candidates, with their emblematic devices, all appeared, first in order, on the general ticket. But how was it as to the six minority parties who were on that ticket merely by nomination papers? This Supreme Court gave construction to the sixth and seventh sections of the ballot law, as amended April 18, 1892 (89 O. L., 434), in the case of the State ex rel. Lewis v. Kinney, Secretary of State, 57 Ohio St., 221.
    Brief of Mahlon Pouch, for plaintiff.
    In the ease of Capen v. Foster, 12 Pick., 489, the supreme judicial court of Massachusetts expresses the true limits of the legislative power, in cases where the Constitution has conferred a political right or privilege. 118 U. S., 369.
    It was evidently in the mind of the legislators to provide for primaries for the two dominant political parties, only. If some election board should allow one of the minor parties to hold a primary to the exclusion of either dominant one, we could much better see the practical working of the law which likely would then be very unsatisfactory. This law gives the board arbitrary power, although it calls it discretionary. Tick- Wo v. Hopkins, 118 U. S. Rep., 356; City of Baltimore v. Radecke., 49 Md., 217.
    What benefit is the law of secrecy under the usages of the old parties requiring persons voting at primaries or in conventions or caucuses to pledge themselves to support the ticket nominated, and requiring the man who nominates by petition to pledge himself to do the same? These usages do away with all secrecy and this law 3s rapidly following in their wake.
    All laws must be of uniform effect in their operations. There cannot be one law for the republican party, and another for the democratic. Or there cannot be one law governing the republican and democratic parties in primaries and elections, and another to control the minor parties, whatever they may be. But that is the effect and operation of the statute as it now stands. This is certainly an unlawful discrimination.- Page v. Allen, 58 Pa. St., 338; Commonwealth v. Maxwell, 27 Pa. St., 444; 118 U. S. Rep., 369; Monroe v. Collins, 17 Ohio St., 665.
    The question whether persons voting at primaries, conventions, or caucuses, or filing a request by petition will support the ticket they thus aid to put in nomination can, among a free and intelligent people, be properly left to the individual voter.
    If parties are prohibited by these laws from getting a ticket on the official ballot they must either vote for’ the candidates cf one of the old, and as the vote last year (1897) stands, the republican or democratic parties, or, refrain from voting entirely. This is disfranchisement of the citizen. Daggett v. Hudson, 43 Ohio St., 548; 58 Pa. St., 338; 12 Pick., 485; 17 Ohio St., 666.

      Charles W. Vborhees, prosecuting attorney; F'lorizel Smith, assistant prosecuting attorney, and William J. Ford, for defendants.
    In the argument presented in the briefs filed on behalf of the relator, this question simply resolves itself into one touching the constitutionality of these two provisions of the statutes.
    Section 2966-18, Revised Statutes, and section 2966-20, Revised Statutes (as amended, 93 O. L., 94), are each reasonable and impartial, and calculated to facilitate and secure the constitutional right of suffrage and do not subvert or injuriously, unreasonably or unnecessarily restrain, impair or impede the right, and are therefore valid constitutional regulations.
    The election laws of Ohio do not have for their object the success or preferment of any political party or the defeat or annihilation of any party, no matter what its tenets may be; nor do these laws seek to restrain or inhibit the formation of any party for any purpose. It is suggested that a fair and candid consideration of the election laws of Ohio will result in the belief that the general assembly has, in good faith, attempted to make, and has made, it possible for each elector to east his vote as he will, and to have that vote counted when the polls are closed.
    The free and untrammeled right of suffrage is absolutely secured by the law — Section 2966-35, Revised Statutes.

      This provision of the law, securing, as it does, the unqualified freedom on the part of the elector to vote for whom he will, recognizing, as he does, the sacredness of each and every constitutional requirement touching the elective franchise, will completely answer the objections that have been made on behalf of the relator.
    These statutes are but regulations by the legislature and fall within its power.
    They are impartial, uniform and reasonable. No discrimination is shown between the political parties that now or that may hereafter exist in Ohio. If the democratic, republican, populist, prohibition, or any other party wish to make a nomination by a convention, the law says it can do so only if it “at the next preceding general election polled at least one per cent, of the entire vote cast in the state. ”
    If such party, whatever its name, at such next preceding general election did not receive such percentage of the vote cast, the only other method of getting its ticket printed on the official ballot is to go to the trouble of preparing nomination papers as the law provides.
    It is difficult to see in what way, under these statutes, the elective franchise itself is impaired or destroyed, or in what way the evolution of a better government is at all impeded, which regulations have been sustained by our courts, although throwing more or less restraint around the action of the individual elector. The question has always been, was the elector permitted to cast his vote so as to express his free choice?
    The constitutionality of a number of the provisions the general assembly has, from time to time, enacted, regulating elections and the method of ascertaining the will of the people as expressed at elections, have been passed upon by the supreme court of Ohio, and by the courts of other states. In these decisions by the courts have held that while electors are thereby put to some inconvenience, and while, perhaps, the electors do not stand upon the same equality in some ways, still the regulations are reasonable and tend to secure that equality that is the object of the provisions of the Constitution, namely, the absolute privilege of easting his ballot, and of expressing his free will in his vote, and of having such vote counted. JDe Walt v. Bartley, 146 Pa. St., 529; Ransomer. Black, 54N. J. L., 446.
    The amendment of section 2966-20, Revised Statutes (93 O. L., 34), requiring the insertion of the pledge in the nomination papers was made to prevent nominating ■ papers being made in bad faith upon the part of the signers. The court will readily recall the fact that in a recent election such nomination papers were said to have been made extensively in bad faith.
   By the Court :

Since no nomination papers were tendered under section 7 of this act, the only question is whether the requirement of section 6, that a certified nomination shall be by a political party which, at the last election, “polled at least one per cent, of the entire vote cast in the state” is valid.

Certainly, the right of a qualified elector to vote at all elections is secured by section 1 of article 5 of the constitution, but that the exercise of the right is subject to such regulations, looking to a fair election, as do not unreasonably or unnecessarily impair it, is a proposition too familiar to call for discussion or citation of authorities. Some restriction upon the right to have nominations printed upon the blanket ballot is necessary to render it practicable. In view of the small ratio of voters required to make a certified nomination, and in view of the right to.have nominations made by papers or petition signed for that purpose, and of the right conferred by the act upon every voter to supply the names of all persons for whom he may desire to vote, we cannot say that the exercise of the right is unreasonably impeded. In Dewalt v. Bartley, 146 Pa. St., 519, it was held that an act requiring that to entitle it to certify nominations, a party must have polled three per cent, of the largest vote cast at the next preceding election, is valid. In Ransom v. Black, 54 N. J. L., 446, the same conclusion was reached with respect to an act which required five per cent, of the entire vote, for that purpose.

The provision under consideration was enforced by this court in State ex rel. Lewis v. Kinney, 57 Ohio St., 221, though its validity does not then seem to have been doubted by any one.

Petition dismissed.

Spear, C. J. dissents.

Minshall, J.

(dissenting): It seems clear to my mind that sections 6 and 7 of the ballot law as amended April 18,1892, (89 Laws, 434,)and April 8, 1898, (93 Laws, 94)respectively, requiring a party to have polled a certain per cent, of the aggregate rate at the previous election, before it can have its nominees placed on the official ballot, or a petition signed by an equal number of electors, pledging themselves to vote for the nominees, impair the right secured by the constitution to every elector to vote at all elections, and to do so by ballot. Sections 1 and 2, article 5, Constitution. It is claimed that this right is not interfered with, because the right is given the electors to erase any name on the ballot, and insert that of the person of his choice. This is ing’enious but not ingenuous. It overlooks the object an elector has in casting his ballot. He does not cast it as a matter of amusement. His object is to secure the election of a person or persons who will best represent him in his own views on questions of public policy and the administration of public affairs. Hence it is of vital importance to him in the exercise of his right, that those for whom he votes, should have an equal chance at the polls of being supported by all in harmony with the policy they represent, and any regulation which interferes with this right, impairs his constitutional right as an elector. That this is done by the sections above referred to in the ballot law in all cases where a particular party failed at the previous election to secure a certain per cent, of the aggregate vote cast, or is a new party, should it seem be plain to any unbiased mind. For it seems too plain to require argument that where the nominees of a party must be written on the ballot by those who desire to vote for them, such nominees have not an equal chance of an election, whatever their character or political views may be, with those whose nam.es are printed on the official ballot, and may be voted for by the simple act of making a mark. No one will, I apprehend, deny that a party has an advantage where its nominees may be voted for on what is known as a “straight ticket” over one whose nominees cannot be so voted for. It was to deprive leading parties of this supposed unfair advantage that the original Australian ballot system was devised. It required all nominees for a particular office to be placed on the ballot under a proper designation of the office without reference to any party nomination, so that the electior would be required to select for himself the persons for whom he desired to vote. It is so done in Massachusetts and a number of the other states. But in this state we have simply adopted the name with hardly a trace of the system. The well understood advantage of a “straight ticket” is denied to all parties who cannot have their nominees placed on the official ballot, and electors who desire to vote for them must write the names on the ballot. This not only impairs the right, but places an unequal burthen on the voter against whom this discrimination is made; and must necessarily diminish the number of votes that would otherwise be east for such nominees. The advantage of printed ballots in securing results over such as must be written by the voter himself, is too apparent and well borne out by experience, to admit of denial.

This evident unfairness is sought to be justified on the ground that it is necessary to the adoption of the Australian system, as without such regulation there would be no limit to the extent of the ballot; or in other words in order to secure the supposed benefits of the system, the constitutional right of an elector to vote at all elections, must be pared down so as to secure an official ballot of moderate dimensions. This simply places the size of the ballot — a piece of paper — above the right of the elector secured to him by the constitution. I do not deny the power of the legislature to regulate the ballot and the casting of it; but all such regulations must be reasonable and not impair the right to vote. The regulation by which the nominees of one party are excluded from the official ballot, manifestly impairs this right. It measurably excludes all who support them from the polls, by excluding them from the facilities in voting enjoyed by all others. They are at least handicapped in the race. That the court of Pennsylvania or New Jersey may have sustained similar laws, is no reason why this or any other court should lend itself to a flagrant violation of the right to vote.

In State ex rel v. Kinney, Secretary, 57 Ohio St., 221, the only question' presented and considered, was the right of a party to have a device at the head of its ticket as provided for in section 12 of the law. This is not a constitutional right as is the right to vote; and depends upon a compliance with the law. The invalidity of the sections here in question, were not mooted in the case, and cannot control the judgment of the court in this case. Hence •the last clause of the majority opinion, referring to that case, has no pertinency in the present inquiry.


source: Caselaw Access Project

license: Public Domain

text:
    The State ex rel Renner v. Guilbert, Auditor of State.

      Dairy and food commissioner — Power to employ counsel — Only on recommendation of attorney-general — Interpretation of law.

    The dairy and food commissioner has no power to employ counsel and fix their compensation, except upon the recommendation of the attorney- general, and upon the written consent of the governor and auditor of state.
    (Decided June 24, 1898.)
    Petition in Mandamus.
    Otto J. Renner, an attorney, having been employed by the dairy and food commissioner under section 4 of the act of April 12, 1898 (93 Ohio Laws, 103), and having rendered certain services under said employment, presented his bill therefor to the auditor of state and demanded a warrant on the state treasury in payment. The auditor of state refused to issue the warrant, and thereupon Mr. Renner filed his petition in mandamus in this court to compel him to issue such warrant. The auditor of state refused to issue the warrant on the ground that Mr. Renner had not been employed upon the recommendation of the attorney-general, and upon the written consent of the governor and auditor of state, as required by section 202, Revised Statutes, as amended April 19, 1898.

      George R. Nash and J. L. Lott, counsel for relator,

      F. 8. Monnett, attorney-general, for defendant.
   By the Court.

By said section 4 of the act creating the office of dairy and food commissioner', such commissioner is empowered to employ such counsel as may by him be deemed necessary for the proper enforcement of the laws, the compensation to be fixed by the commissioner. But by section 202, as amended April 19, 1898, it is provided that “It shall not be lawful for any state board or state officer to employ any attorneys or counsel, except upon the recommendation of the attorney-general, and upon the written consent of the governor and auditor of state.” These two statutes in para materia, and should be read as one statute, and when so read, the provision is that the dairy and food commissioner, in the employment of counsel, and fixing their compensation, must act upon the recommendation of the attorney-general, and upon the written consent of the governor and auditor of state. And he has no power, without such recommendation and written consent, to employ counsel to transact any business for his department. While the attorney-general is to recommend, he has no power of appointment. The power to appoint rests in the dairy and food commissioner, but such appointment must be made by him upon the recommendation of the attorney-general and the written consent of the governor and auditor of state.

Writ refused and petition dismissed.


author: Bradbury, J.

text:
    The B. & O. R. R. Co. v. Lersch.

      Damages against railway company — Injury to property — Actton under section 8283, Revised Statutes — Averments necessary as to interest in property — Measure of damages — Evidence—Statute of limitations — Corporation law.

      1. When a railroad company has laid upon and along a street of a city, a railroad track and is running trains thereon, and the owner of abutting improved property, in an action brought under section 3283, Revised Statutes, to recover damages on account thereof, specifically alleges that the injuries of which he complains, were caused by noises, smoke, dust and sparks of fire, resulting from passing locomotives and cars, but does not set up any easement, fee or other interest in the street, or aver any injury thereto, he should not be permitted on the trial of the action, over the objection of the railroad company, to establish as the measure of his recovery, the difference between the value of the property before and after the track was laid.
    2. Where, in such case the trial court, over the objection of the railroad company, permits the plaintiff to offer evidence of damages that did not result from the causes so specifically alleged, or, if the court, over the objection of the railroad company, should instruct the jury to consider, in estimating damages, any impairment of the easement to his property ; each of such rulings will constitute prejudicial error for which a judgment for the plaintiff will be reversed.
    3. The provision of section 3283, Revised Statutes, by which an action brought under that section is required to be commenced within two years after the completion of the track, is a statute of limitation and a delay beyond that period does not extinguish the right of recovery. If the railroad company does not, either by demurrer or answer, interpose an objection on-account of the lapse of time, but proceeds to trial on the mer its, it will be deemed to have waived the benefit of the provision.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Richland county.
    This action was brought in the court of common pleas of Richland county by the defendant in error to recover of the plaintiff in error damages sustained by Mm on account of the railroad company having laid a railroad track along a street of the city of Mansfield, upon which the property claimed to be injured abutted. The defendant in error prevailed in the court of common pleas and the judgment there recovered was affirmed by the circuit court. Thereupon the plaintiff in error instituted proceedings in this court to reverse both judgments.
    The facts necessary to an understanding of the decision of the court will be found in the opinion.

      Cummings & McBride and J. H. Collins, for plaintiff in error.
    The evidence given, on the subject of loss of business, was wholly incompetent, because there were no allegations in the petition of such special injury. Am. & Eng. Ency. of Law, volume 5, page 51; Myers da Sons c& Co. v. Dawes, 17 111. App.; Frohrech v. Qauman, 28 Minn., 476; Wampach v. St. Paul da C. By. Co., 21 Minn., 364; Sutherland on Damages, volume 1, page 793; Tra/y da C. C. B. Co. v. N. Turnpike Co., 16 Barb., 100; Alexander v. Jacoby, 23 Ohio St., 358.
    The evidence as to the value was given by persons who were not qualified to testify. They simply gave what in their opinion the land was worth, not the market value. By permitting this evidence, these witnesses were permitted to say what the damages were, and to substitute themselves for jurors. This was clearly incompetent. Bail/way v. Gardner, 45 Ohio St., 309; A. da Q. W. B. B. Co. v. Campbell, 4 Ohio St., 595; C. <& P. B. B. v. Ball, 5 Ohio St., 573.
    The only case in which a person can recover under section 3283 of the Revised Statutes, is when there is proof of some substantial injury to the property not common to the community at large.
    In the case at bar the corner was occupied by a grocery, but no proof of special damage is attempted to be shown. They show no damage to the grocery stock, but all they seek to show is something this property sustains in common with the whole neighborhood. Railway v. Gardner, 45 Ohio St., 309.
    The damage for which compensation is recoverable must be same injury peculiar to the property in question, not suffered in common with other properties. Gulf da G. R. R. Go. v. Fuller, 22 Am. & Eng. R. R. Rep., 154; Railroad Co. v. Yeiser, 2 Pa., 366; Penna. Go. v. Lippineott et al., 1 Ry. Law Jour., 580; 30 Am. & Eng. R. R. Reps., 399 and note. The evidence viewed in the light of these authorities shows clearly that the defendant in error ought not recover. The railroad was properly authorized, and was not a private nuisance.
    The evidence shows that the track to the mill and concerning which the evidence was almost all offered, was built the last of August and the first of September, 1887. , The petition was not filed until September 15, 1889, after the two years had elapsed.
    The statute does not give a remedy for an existing right, but creates the right itself, which did not exist at common law, a provision that it shall be brought within two years, is not a statute of limitations, but a condition on the right to sue.
    The principle involved here is analogous to that in the ease of Bonte et al. v. Taylor et al., 24 Ohio St., 628; Section 5064, Revised Statutes of Ohio; Railroad v. Jline, 25 Ohio St., 629.
    The charge to the jury, taken as a whole, had no application to the facts in the case. It is made up entirely of definitions and abstract propositions of law without any application to the facts. Its whole tendency would be to mislead and confuse the jury instead of aiding and instructing them. It utterly fails to direct the minds of the jury to the controlling questions in the case. It does not discuss a single question at issue in the case. Lnswrance Go. v. Reed, 32 Ohio St., 283; Parmlee v. Adokph, 28 Ohio St., 10.
    The charge of the court to the jury should not be in the abstract, but the concrete, applicable to the particular facts of the case on trial. Bain v. Wilson, 10 Ohio St., 14; Goal Go. v. Estivenard, 53 Ohio St., 43.
    The jury are here told that they must find interest.
    The extent of the rule in Ohio is that the giving of interest in actions ex delicto is purely discretionary with the jury, and they shall be so instructed. Floyd v. Paul, 10 Bull., 14; 9 Dec. R., 7.
    In actions for torts, the jury may calculate interest on the damages actually sustained, and add it to their verdict. IJogg v. Zanesville Go., 5 Ohio, 410; Lawrence Railroad Go. v. Gobb, 35 Ohio St., 94.
    These authorities show clearly that the matter of allowing’ interest is discretionary, but the court required them to allow it. Again, no interest is asked for in the petition. It is a case of the court and the jury giving more than is asked for.

      Jabea Dickey, for defendant in error.

      Counsel for plaintiff in error, complain that the title to plaintiff’s premises was not properly proven. But it will be seen by reference to the record evidence, that plaintiffs in error conceded on the trial of the case to the jury, that Christian Lersch was the owner of the premises in question, which avoided the necessity of any further proof.
    All the facts, circumstances, and conditions in and surrounding the premises, before the tracks were laid, and put in use, and the same after the tracks were laid and used, we take it, are competent in evidence. All of these inconveniences, annoyances, and deprivations being such as are not suffered by the community at large. Railiuay Co. v. Gardener, 45 Ohio St., 309.
    It seems clear to us that the rule of recovery was within the legislative intent when it was provided that: “Every company which lays a track upon any such street, alley, road, or ground, shall be responsible for injuries done thereby to private or public property lying upon or near such grounds, etc.”
    This view is supported by Railroad Co. v. Ball, 5 Ohio St., 568; Hatch v. Railway Co., 18 Ohio St., 92; Dodson v. Cincinnati, 34 Ohio St., 276; Powers v. Railway Co., 33 Ohio St., 429; Railroad Co. v. Cobb, 35 Ohio St., 94; Railroad Co. v. Williams, 35 Ohio St., 168; Railroad Co. v. Mowatt, 35 Ohio St., 284; Railiuay Co. v. Lawrence, 38 Ohio St., 41; L. M. Railroad Co. v. Hambleton, 40 Ohio St., 496; Cohen v. Cleveland, 43 Ohio St., 196; Grafton v. B. <& 0. Ry. Co., 21 Fed. Rep., 309; Hadden v. White Mts. N. H. Rd., 55 N. H., 413.
    As has been already stated, these tracks were alleged in the petition, to have been laid in the spring of 1888. And the original petition was filed within two years of that date, the evidence developed the fact, that one of the tracks was laid in the fall of 1887 and that as the damages, relating to the tracks, are not claimed separately, that the plaintiff had no right of action for damages relating to the one track, and no proof of damages relating to the other, alone, this claim is made upon the assumption that section 3283, Revised Statutes, is not a statute of limitation, and in support of this theory it is claimed that the act of March 29, 1869, to limit the lien of assessments is analogous in principle, but the court will in a moment recognize the distinction; that act provided for the continuance of a lien. At the end of the time signified, the lien was extinguished.
    The lien would support ah action while it existed, but when it became extinct as a lien, there was nothing any longer remaining to support an action, in this respect it was entirely different from a statute of limitation.
    A party in order to avail himself of the benefit of the statutes of limitations must plead the same in bar to the action, and if this is not done the statute is waived Sturges v. Burton, 8 Ohio St., 245; Towsley v. Moore, 30 Ohio St., 184; Vbre v. Woodford, 29 Ohio St., 245; Boute v. Taylor, 24 Ohio St., 628.
    Coming now to the question of damages, the request of the plaintiff in error, refused by the court was properly so refused, for the reason that it limits the right of recovery to damages arising from “smoke, noise, and sparks of fire,” as seen by request on the record. This rule would exclude damages arising from any other facts or causes, although they might especially arise out of and bo connected with the laying and using of the tracks in controversy.
    The rule as laid down by the charge we think was in all respects correct, and was in accordance with the rules laid down by this court in cases of Railroad Co. v. Gardner, 45 Ohio St., 309, and Powers v. Railway Co., 33 Ohio St., 429.
   Bradbury, J.

The petition which is the basis of this action is in the following words:

Christian Lersch, Sr., plaintiff, v. The Baltimore & Ohio Railroad Company, defendant.

Petition.

Defendant is a foreign corporation duly organized under the laws of the state of Maryland, and in April, 1888, did; and yet does own and operate a certain railroad running through Mansfield, Ohio, and known as the Baltimore & Ohio Railroad.

That at the time of the grievances hereinafter complained of, the said plaintiff was and still is the owner of fifty-five feet off of the south side of in-lot number two hundred and eighty-seven (287), and by last numbering, No. 960, in Bentley’s addition to the town, now the city of Mansfield, Ohio. That said lot is situated on the northeast corner of the crossing of West Diamond and Bloom streets in said city of Mansfield, with fifty-five feet fronting and abutting on said West Diamond street, and one hundred and eighty feet bounding and abutting on said Bloom street.

That at the time of the grievances here complained of, there was situated on said plaintiff’s said lot, a certain two-story brick building, containing three business rooms on the ground floor fronting on said West Diamond street, together with a frame barn situated thereon.

That without the consent and against the will of the said plaintiff, the said defendant, The Baltimore & Ohio Railroad Company, wrongfully, about the month of April, 1888, built and extended its switch railroad track across said West Diamond street at its crossing of said Bloom street and east along Bloom street by the side of the flouring mill on the south side of said Bloom street and directly opposite to said plaintiff’s lot and buildings. And that said defendant at the same time, about the month of April, 1888, built and extended its branch line of railroad track across said West Diamond street, at its crossing of Bloom street and along said Bloom street, east, near by and past said plaintiff’s said lot and buildings. By reason of which said defendant runs its cars and locomotives along said switch track and along said branch railroad track close by said plaintiff’s said lot, business building and improvement, causing discordant noises and Ailing said premises with vapor, smoke and dust, and emitting sparks of fire, to the great damage and discomfort of its occupants, and whereby said premises were and are greatly diminished in value to the damage of the said plaintiff in the sum of eight thousand dollars.

Wherefore said plaintiff prays judgment against said defendant for said sum of eight thousand dollars and costs of suit.”

To this petition the railroad company interposed the following answer:

“The defendant, The Baltimore & Ohio Railroad Company, answering the petition of the said plaintiff, says that it admits chat it is a corporation organized as stated in the petition of the plaintiff, but it denies that it owns the railroad therein described. This defendant does not know whether the said plaintiff is the owner of the premises described in said petition or not, and the averment of said petition with regard to said ownership is therefore denied. And the defendant admits that it built and extended its switch across West Diamond street in said city of Mansfield at its crossing of Bloom street, and thence east along Bloom street by the side of the flouring mill on the south side of said street, and opposite the lot described in plaintiff’s petition. And the defendant admits that its purpose in building said switch was to switch cars from its main track over said switch to the flouring mill referred to in the said petition, and to other points for the purpose of being loaded with freight.

And the defendant denies each and all of the other averments contained in said petition.”

Upon the issues raised by the foregoing pleadings the parties went to trial. The plaintiff below sought to establish as the measure of his damages, the difference between the value of his property before the railroad track was laid and its value afterwards. To this course of the evidence the railroad company objected, and the objection being overruled it excepted. After the evidence had closed the railroad company requested the court to instruct the jury that: “It is not claimed by the plaintiff in this case in his petition that his access to the street from his property described has been obstructed or impaired by the location and construction of this railroad track in the street and no recovery can be had herein based on any such claim.”

This instruction was refused, to which refusal the railroad company excepted.

An inspection of the pleading will disclose that, while the plaintiff below set forth as a foundation for relief, his ownership of the premises and the construction and operation by the defendant, without his consent of a railway in and along the street upon which his premises abut, yet when he came to state the acts which injured those premises, and the injuries in fact suffered by them, he confines himself to such as result from “discordant noises, filling said premises with vapor, smoke, dust, and emitting sparks of fire, all of which are caused by passing cars and locomotives;” he makes no complaint on account of the street being occupied by the railroad track, nor of any obstruction or impairment of access to the premises, by reason of the existence of the railroad track in the street, or the running of cars and locomotives thereon, nor does he complain that such acts have affected or infringed upon any fee or easement he may have in the street, or even state his ownership of any such fee or easement.

The action was brought under section 3283, Revised Statutes, which reads: ‘ ‘If it be necessary in the location of any part of a railroad to occupy any public road, street, alley, way, or ground of any kind, or any part thereof, the municipal or other corporation or public officers, or authorities, owning or having charge thereof, and the company, may agree upon the manner, terms, conditions upon which the same may be used or occupied; and if the parties are not able to agree thereon, and it be necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals; but every company which lays a track upon any such street, alley, road, or ground shall be responsible for injuries done thereby to private or public property lying upon or near to such ground, which may be recovered by civil action brought by the owner, before the proper court at any time within two years from the completion of such track.”

This language is so comprehensive that, if alone considered, no violence would be done to it by a construction which would permit, in an action brought under the statute a full recovery for every injury inflicted to abutting property by the construction and operation of a railroad track along the street or other highway upon which the property abuts, including, if the averments of the petition are broad enough, not only damages for annoyance and injury resulting from smoke, sparks, dust, noises, cause by passing cars and locomotives, interruption of ingress and egress to the abutting property, but for appropriating to the use of the railroad whatever interest, whether a fee or easement, that the abutting owner might own in the street. If the law affords no other remedy than that provided by this statute, for such injuries, the inference might be very strong, perhaps irresistible, that full relief as above recited might be had in an action brought under it. This view of subject seems to have been taken by Owen, C. J., in Railway Company v. Gardner, 45 Ohio St., 322. And in such state of the law a petition in such action might be regarded as sufficient to authorize that full measure of relief, if couched in terms broad enough although failing to set forth specific injuries: where, however, the party injured, as in the present ease, specifies the injuries sustained, there seems to be no sound reason for affording him relief on account of other injuries of which he has not complained; and in this connection it is immaterial that the statute, or the rule of common law, under which the action was brought, authorizes a demand for more extended relief. The plaintiff by his own averments having limited his demand should be held to the claim he has made. The claim thus put forth is the only one of which the defendant has notice, or is presumed to have made preparation to contest.

To permit the plaintiff to recover the difference between the value of the property before the railroad track was laid, and its value afterwards, would be to allow a recovery not only for the injury he set forth, which was that which resulted from passing cars and locomotives causing “discordant noises and filling said premises with vapor, smoke, dust and emitting sparks” but in addition for such damages as the jury might have thought was caused by the railroad track, and passing trains, impairing access to and from his property, and also for the value of the fee or easement which he might own in the street as appurtenant to that property.

In so far as he possessed any property rights in the street which the railroad company had taken for its track, Chapter 8, of Title 11 of the Code of Civil Procedure would seem to afford an ample remedy. This chapter and title provides for the appropriation of private property, and section 6415, Revised Statutes, a part of that chapter, authorizes an appropriation of an easement in lands as well as the appropriation of the land itself.

In The Lawrence Railroad Co. v. Williams, 35 Ohio St., 168, this court held that “where a railroad company occupies a public highway for its track without appropriating or otherwise acquiring the right to do so an owner of abutting lands, having the fee in the highway may proceed under section 21 of the act of 1872 (69 Ohio Laws, 95) to compel the company to appropriate the right of way for its road. As section 6415, Revised Statutes, before referred to, in respect to proceedings in appropriation, places an easement upon the same footing with a fee, it would seem to follow from the above holding as to appropriating a fee in a highway, that an easement therein might also be the subject of such proceedings. An easement in a street or other highway, appurtenant to an abutting lot partakes of the nature of land, it is a part of the lot to which it is appurtenant, passing to a purchase with a conveyance of the lot, and descending to the heir on the death of the ancestor. Railway Co. v. Gardner, 45 Ohio St., 318; Railway Co. v. O'Harra, 50 Ohio St., 667; Crawfords. Village of Delaware, 7 Ohio St., 469. This being so, it is immaterial, as concerns his remedy, whether the plaintiff below had a fee or only an easement in the street occupied by the railroad track, for in either case his property therein'was a proper subject of proceedings in appropriation, and, for aught that appears in the record, may have been appropriated. And if appropriated for railroad purposes it would have been competent for the jury in assessing damages, to consider the extent to which ingress and egress to the abutting property would be affected by the laying of a railroad track in the street and operating a railroad thereon, and it must be presumed that such effect was considered and damages allowed accordingly.

Whatever effect this right to resort to appropriation proceedings may have upon the extent of the, recovery authorized by section 3283, Revised Statutes, under which this action was brought, the question is not before the court. It may be said, however, in passing, that considerations of considerable weight exist tending to the conclusion that the remedy provided by section 3283, supra, does not include that relief which may be had under the statutes pertaining to proceedings in appropriation. An action under section 3283, supra, must be commenced within “two years from the completion of such track, ’ ’ while twenty-one years are required to bar a proceeding to compel an appropriation of the soil or easement in a street that has been occupied by a railroad company for its track. Railroad Co.v. O'Harra, 48 Ohio St., 343. The damages recoverable under this section are personal and do not pass to a grantee, on conveyance of the property injured. Railroad Co. v. Campbell, 51 Ohio St., 328. While in the case of a fee or easement in a street appurtenant to abutting lands, it is quite clear that it would descend to the heir on the death of the ancestor, and pass to the grantee with a conveyance of the lands to which it is appurtenant. Railroad Co. v. O'Harra, 50 Ohio St., 667.

But whatever the extent of the recovery permissible under section 3283, supra, may be, where, as the case under consideration, the plaintiff in his petition sets forth specifically the acts which have injured his property and the particular injuries such property has sustained, his recovery should be limited accordingly. Taking this view of the matter as the correct one, it is manifest that the court of common pleas erred in permitting the plaintiff below to introduce, as the measure of damages, evidence of the difference between the value of the property before the railroad occupied the street with its track and its value afterwards. And, for the same reasons, it was error to refuse the request of defendant below. That, “It is not claimed by the plaintiff in this case in his petition that his access to the street from his property described has been obstructed or impaired by the location and construction of this railroad track and no recovery can be had based on any such claim.”

The plaintiff in error requested the court to instruct the jury, to the effect; that if two years had elapsed between the completion of the railroad track and the commencement of the action, the plaintiff could not recover.

This instruction was rightfully refused, the limitation of two years prescribed in section 3283, Revised Statutes, should be treated as any other statute limiting the time within which an action may be commenced. If the party entitled to its benefit does not plead it in some form, he waives his right to avail himself of its provisions. In this case plaintiff in error did not interpose, by plea or demurrer, any objection in respect to the time which had elapsed after the track had been completed, before the petition was filed. The first objection made on this ground was after the evidence had been submitted to the jury. It was then too late.

Judgment reversed.


author: Burket, C. J.

text:
    Brown v. Whaley et al.

      Deed, of real estate front parent to child — Is not deed by gift but■ by purchase, when.

    A deed of real estate from a father and mother to their daughter, “ in consideration of our love and affection for our daughter, and in consideration of the dutiful obedience and faithful services to us of our daughter and in further consideration of one dollar to us in hand paid by our said daughter, ” is not a deed of gift, and the title acquired under such deed came to the daughter not by deed of gift but by purchase.
    (Decided January 26, 1898.)
    Error to the Circuit Court oí Wyandot county.
    On the 21st day of November, 1860, John Carey and wife conveyed to their daughter, Cinderella, then of the age of thirty-four years, unmarried and residing at home with her parents, about five hundred acres of land situate in Wyandot county, near Carey, where the parents resided.
    Afterwards Cinderella became the wife of Edwin Brown, plaintiff in error, and years afterward died intestate leaving the plaintiff in error surviving her, and also leaving one brother and two sisters surviving her, but leaving no children or their legal representatives.
    John Carey died March 17, 1875, and thereafter in 1895, his children divided among themselves, the lands of which he was still seized at his death, and made deeds of quitclaim to each other, .some taking more and some less than the share of each, and the differences were settled in money as agreed upon.
    Excepting the description of the lands, the acknowledgment, signatures, etc., the deed from John Carey and wife to Cinderella, is as follows:

      “Know all men by these presents that we, John Carey and Dorcas Carey, wife of said John Carey, of the county of Wyandot, in the state of Ohio, in consideration of our love and affection for our daughter, Cinderella Carey, of the county of Wyandot, in the state of Ohio, and in consideration of the dutiful obedience and faithful services to us of our said daughter Cinderella, and in further consideration of one dollar to us in hand paid by our said daughter, CinderellaCarey, have bargained and sold, and do hereby grant, bargain, .sell and convey unto the said Cinderella Carey, her heirs and assigns forever, the following premises situate in Crawford township, Wyandot county, and state of Ohio, and described as follows, to-wit: * * * To have and to hold said premises 'with the appurtenances thereof, unto the said Cinderella Carey, her heirs and assigns forever. And the said John Carey, for himself and heirs, doth hereby covenant with the said Cinderella Carey, her heirs and assigns, that he is lawfully seized of the premises aforesaid. That the premises are free and clear from all incumbrances whatsoever, and that he will forever warrant and defend the same with the appurtenances thereof unto the said Cinderella Carey, her heirs and assigns, against the lawful claims of all persons whomsoever.”
    After the death of Cinderella, her husband, the plaintiff in error, continued in possession of all the lands of which she died seized, and claimed to hold the same in fee, under the statute of descents. Her brothers and sisters claimed that the plaintiff in error had only a life estate in the lands, and that after his death, they wonld be entitled to the lands in fee under the statute.

      Thereupon, the plaintiff in error filed his petition in the court of common pleas against the brother and sisters of the wife, seeking to quiet his title to all the lands.
    Upon trial on appeal in the circuit court, it was held that the plaintiff had only a life estate in the lands conveyed by the deed of John Carey and wife, to Cinderella, and that the brother and sisters had the fee after the expiration of the life estate, and judgment was entered accordingly. It was further held, that the plaintiff had the full title in fee to all the lands described in the quitclaim deed to his wife, and that the brother and sisters had no interest therein, and a separate judgment as to said lands was entered accordingly.
    The plaintiff filed a motion for a new trial, which was overruled and exceptions taken. A bill of exceptions was taken containing all the evidence, including an agreed statement of facts as to the deeds and conveyances above mentioned.
    Plaintiff in error filed his petition in error in this court, seeking- to reverse the judgment as to the lands described in the deed from John Carey and wife, to Cinderella, and as to which the court held that he had only a life estate.
    No cross-petition in error has been filed to reverse the judgment as to the lands described in the quitclaim deed, and as to which the court held the fee to be in Mr. Brown, and this last judgment is not in controversy in this case.

      Thomas Beer and T. E. Orisell, for plaintiff in error.
    If the deed from John Carey to Cinderella is a deed of purchase, then the estate passes under section 4159 to the plaintiff.

      We claim it to be a deed of purchase. It recites a valuable consideration.
    Services, faithful services, constitute a valuable consideration. The grantee could pay labor for land. Because she was a daughter it is not to be inferred that her services were gratuitous, or that she was to be, or was, compensated by being permitted to live in her father’s family. There is no evidence that he boarded, clothed or educated her. We are not bound to prove an express contract to compensate her. She rendered the services and her father executed the deed in consideration of the services. The recital of the deed raises the presumption that the services were rendered upon request. Where the act which is the consideration of a promise is founded upon a proceeding request it is sufficient. Doty v. Wilson, 14 Johns, 379; Hicks v. Burhans, 10 Johns, 244; 2 Pothier Ob., 19; Doran’s Ext. v. McQonologue, 150 Pa. 98 ; Worth v. Case, 42 N. Y., 362; Baker v. Pycatt, 6 West. Rep., 283.
    Cinderella Carey worked for her father for twelve years after arriving at full age. Her services were valuable as shown by the testimony. She served faithfully, so the deed says, and recognizing his obligation to compensate her therefor John Carey conveyed her the land described in his deed. 2 Black. Com., 444; Chitty on Contracts, 28.
    In addition to “faithful services to us” the deed recites the “further consideration of one dollar to us in hand paid by our said daughter Cinderella.” If the deed is a deed of gift, as claimed by the defendant in error, the foregoing recitals must be held to be surplusage.

      The rule is just to the contrary. Thornton on Gifts, 5; Worth v. Case, 42 N. Y., 362.
    It makes no difference that love and affection is named as part of the consideration. The naming of an additional consideration which is valuable, renders the deed one of bargain and sale. Spear v. Griffiths, 86 111., 552; Thornton on Gifts, 6.
    The recital that the grant is made upon the further consideration of one dollar to as in hand paid makes the deed one of bargain and sale, one dollar is a valuable consideration. Chitty on Contracts, 29; 10 A. & E., 320; Knoble v. Lindsay, 5 Ohio, 471; Withers v. Ewing, 40 Ohio St., 408; Judy v. Linderman, 48 Ohio St., 573; Steele v. Worthington, 2 Ohio, 182; Davenport v. Mason, 15 Mass., 85, Mason v. Mouldon, 58 Ind., 1; Chitty on Contracts, 11, Am. Ed., page 29; 2 Id., 1049; Wood v. Chapin, 13 N. Y., 517; 2 Devlin on Deeds, section 810; Boolffwell v. Brown, 54 N. Y., 210; Trafton v. Hawes, 102 Mass., 541; Lake v. Gray, 35 Iowa, 461.
    Where the deed is taken in good faith, the amount of the consideration paid is immaterial. Devlin on Deeds, section 814.
    A pecuniary consideration, however small, will support a deed of bargain and sale. Clark on Contracts, 161; Lawrence v. Me A Imerat, 2 How., 426; Fergoson’s Appeal, 117 Pa., St., 426; Bell v. Scammon, 15 N. H., 381; s. e. 41 Am. Dec., 706; 31 Am. St., 81, note.
    Where an attack is made upon an executed conveyance the fact that the consideration is grossly inadequate can be regarded only as evidence of fraud and of itself is not sufficient to set it aside. Davidson v. Little, 22 Pa. St., 24; s. c. 60, Am. Dec., 81; Lynch v. Livingston, 6 N. Y., 434; Webster v. Van Stra/wbw-g, 46 Barb.

      If a consideration is expressed, no proof of its actual payment need be given, and it is sufficient that the amount be merely nominal. Houston v. Blackman, 41 Am., 756; Belden v. Layman, 8 Conn., 304; Meeker v. Meeke/r, 16 Conn., 383 ; Or out v. Townsend, 2 Hill, 554; Goodspeed v. Fuller, 46 Me., 141; Souderbye v. Arden, 1 J. Ch., 240; Graves v. Graves, 29 N. H., 129; Worthingtons. Bullitt, 6 Md., 189; Newton v. Comers, 26 Ohio St., 619.
    The grantor was at liberty to determine for himself the value of the services. He says he conveyed the land in consideration of the services and one dollar. He was free to do as he pleased with his own, and he was the sole judge as to the benefit to be derived from his bargain. Winans v. Peebles, et al., 31 Barb., 371; 9 Ind., 323; 62 Mo., 267; 25 Ark., 225; 35 Iowa, 461; 19 Ind., 271; 13 Cal., 9; Wolford v. Powers, 85 Ind., 294; S. C., 44 Am. Rep., 16; Farl v. Peck, 64 N. Y., 596; 31 Am. Rep., 428.
    Courts of equity as well as courts of law act upon the ground that every person who is not from his peculiar condition or circumstances under disability, is entitled to dispose of his property in such manner and upon such terms as he chooses, and whether his bargains are wise and discreet or profitable or unprofitable, or otherwise, are considerations not for courts of justice, but for the party himself to deliberate upon. Story on Eq. Jur., section 244; 2 Bou. Inst., 390, section 2014; Scott v. Scott, 105 Ind., 586; Kimball v. Fenner, 12 N. H., 248; Douglas v. Scott, 5 Ohio, 194; Clark on Contracts, 80; Gully v. Grubbs, 1 J. J. Marsh, 387; Miller v. Egerton, 38 Kan., 36; Morses. Shat-tuck, 4 N. H., 229; Hatch s. Bates, 54 Me., 136;
      Gardner v. Lighfort, 71 Iowa, 580; Bigelow on Estoppel, 479.
    If a consideration of value be named, the consideration cannot be contradicted. Beach v. Cook, 28 N. Y., 537; 6 N. Y., 342; Touch., 219 ; 1 Co., 24; 40 Barb., 146; 46 Barb., 211; 13 N. Y., 509; 3 John’s, 484; 10 Id., 456; 16 Id., 47; Pom. Eq. Jur., section 1036; Moore v. Jordan, 7 Am. St., 6402.
    The recital in a deed that a pecuniary consideration has been paid so far as the legal effect of the conveyance as a deed of bargain and sale is concerned, is conclusive. Boclawell v. Brown, 54 N. Y., 210; Jones v. Dougherty, 10 Ga., 273; Trafton v. Hawes, 102 Mass., 541; Hartshorn v. Day, 19 How., 211.
    Evidence dehors the deed cannot be introduced to contradict the deed or to change its legal effect in the creation or modification of the estate. Hartopp v. Hartopp, 17 Ves., 192; Section 26, Greenleaf Ev., note; Burr age v. Beardsley, 16 Ohio, 442; Bteele v. Worthington, 2 Ohio, 182; 2 Phip. Ev., 353, note; Id., 369; Id., 228, page 384; 4 Phip. Ev., note 289, page 583; Id., 309, page 619; 2 Hilliard’s Real Prop., 310; 1 Rice on Ev., section 176; 17 Am. & Eng. Ency., 439; 79 Pa. St., 43.6; 1 Greenleaf on Ev., 285; 48 Pa. St., 491; 31 Cal., 472; 17 Am. & Eng. Ency., 439; 1 Pars. Cont., 355-356; Patterson v. Damson, 45 Ohio St., 77.
    Title by descent vests in a man by the single operation of law. It passes from an ancestor at his death to his heir-at-law. It is cast upon the heir immediately upon the death of the ancestor. 2 Black. Com., 201; 4 Kent’s Com., 373.
    Title by purchase vests in a man by the act or agreement of himself and his vendor. 2 Black. Com., 201; 4 Kent’s Com., 373; 17 Ohio St., 529.

      Cinderella acquired her title by agreement of herself and the defendants. Her title does not fall within any definition of title by descent, while it does fall exactly within the definition of title by purchase. The property was ancestral while the title was in the defendants. It did not descend or pass from them to Cinderella by operation of law. It did pass from them to Cinderella by the act of the parties. Hershiser v. Florence, 39 Ohio St., 516; Farmers Banh v. Wallace, 45 Ohio St., 152.
    The deeds were not mutual releases. The defendant shows Cinderella paid. She bought. She sold. It is no case of amicable partition, or any other partition.

      John D. Sears and G. IF. Kinney, for defendants in error.
    The circuit court held this to be a deed of gift, and in this holding we contend that they were clearly right. Under the circumstances of this case, the property therefore passed to this plaintiff in error, husband of Cinderella, during his natural life, and after his death would vest in the brother and sisters of Cinderella or their legal representatives. Revised Statutes, section 4158; Brewster v. Benedict, 14 Ohio, 385.
    Plaintiff in error' contends that “faithful services” and “$1.00” state a valuable consideration, and show that this deed was not one of gift. “Faithful services” when used in a deed from parent to child, do not import a valuable consideration. The law implies no obligation to pay for the services of a, child rendered his or her parents, while living with them. Where there is no agreement to pay for such services there is no obligation to pay. Lovett v. Price, Wright’s Reports,, page 89; Willis v. Dean, Wright’s Reports, page 134; Wait, on Fraudulent Conveyances, section 215; Ellis v. Casey, 17 Am. State Reports, 125; Pollock v. Pollock, 2 C. C., 143; 1 Giro. Dec., 411; Ilcmthorne v. McClure, 4 C. C., 11; 2 Circ. Dec., 390; Zimmerman v. Zimmerman, 22 Law Bulletin, 218.
    These words when used in a deed of this character, import nothing more than an acknowledgment on the part of the parent that the child has faithfully performed the duties imposed, upon him or her by the relationship. If it had been intended that this should not be a deed of gift, the “love and affection” would probably have been left out, and “faithful services” would have been changed to “valuable services.”
    The whole statement of the consideration in this deed shows clearly that it was understood by both the grantors and the grantee to be a purely voluntary gift. “One dollar” mentioned as consideration in a deed conveying hundreds of acres of land does not import a valuable consideration, especially when used in a deed from parent to child, and the deed recites “love and affection.” It is usual in deeds of gift to mention $1.00 as part of the consideration.- Indeed, it was formerly considered that it was necessary to state some valuable consideration to sustain a deed of gift. Walker’s American Law, 6th Ed., page 405; Thompson v. Thompson, 17 Ohio St., 650; Holmes v. Sullivan, 14 Weekly Law Bulletin, 167.
    Where a deed states a valuable consideration, parol testimony is admissible to show other valuable consideration, but where the consideration stated in the deed is simply a good consideration as distinguished from a valuable consideration, testimony will not be admitted to show a valuable consideration. Burrage's Lessee v. Beardsley, 16 Ohio, 438; Vail et al. v. MeMillen, 17 Ohio St., 617.
    It seems to us clear that this deed recites a good consideration only as distinguished from a valuable consideration, and that under the rules above stated no testimony is admissible to show a valuable consideration. But even if all testimony offered by plaintiff as shown by the bill of exceptions, should be considered, including that of plaintiff himself, whose testimony was excluded by the circuit court under section 5242, that the testimony does not in any degree tend to show a valuable consideration. There is no pretense of any contract existing at any time between John Carey and his daughter Cinderella, no hint in the testimony of any understanding that she should continue to live with her parents for any indefinite period after the execution of the deed; and absolutely nothing to show that Cinderella or John Carey ever thought of the deed in any other light then as a deed of gift. Patterson v. Lamson, 45 Ohio St., 77.
   Burket, C. J.

It is provided in section 4158, Revised Statutes, that real estate, the title to which came by descent, devise or deed of gift, from an ancestor shall, upon the death of the owner intestate without children or their legal representatives, pass to and vest in the' husband or wife-relict of such intestate during his or her natural life, and upon the death of such relict shall pass to and vest in the brothers and sisters of such intestate who are of the blood of the ancestor from whom the estate came. If the estate came not by descent, devise or deed of gift, then the husband or wife relict of such, intestate takes the real estate in fee as provided in section 4159, Revised Statutes.

The lands conveyed to Cinderella, in this case, by her father and mother, did not come to her by descent or devise, but by deed. If the deed which conveyed said lands was a deed of gift, then the judgment of the circuit court as to said lands is right, and should be affirmed; but if it is not a deed of gift, then the judgment is 'wrong, and should be reversed.

The matter of deeds and different conveyances, and their legal effect, is so fully and ably presented in the case of Thompson v. Thompson, 17 Ohio St., 649, that it would not be profitable to again go over the same ground here. It was held in that case, “that a good, as contra-distinguished from a valuable consideration, is sufficient to uphold a deed of conveyance in this state.

By the act of February 22, 1805, 3 O. L., 279, Chase 515, real estate, for the purposes of descent, was divided into two classes, such as came by descent, devise, or deed of gift from an ancestor, and such as came not by descent, devise or deed of gift, but was acquired by purchase by the intestate. This left property which came by deed of gift from one not an ancestor unprovided for.

By the act of February 11, 1824, 22 O. L., 132, Chase, 1313, the words, “but was acquired by purchase by the intestate” were omitted, and ever since that time, the statute in its classification of real estate, has remained as it now is; first, such as came by descent, devise, or deed of gift from an ancestor, and second, such as came not by descent, devise, or deed of gift.

Beginning with the act of 1805, and coming down to the present time, the general assembly has recognized in various statutes, that titles may be acquired by deed of gift; and it follows that as titles can be acquired by deed of gift, they can be transferred by such deed. By the act of April 13,1865, 62 O. L., 172, townships are authorized to acquire real estate by deed of gift. By section 4195, Revised Statutes, deeds of gift to the use of the person making the same, are declared void, clearly implying that other deeds of gift are valid. In Kent’s Commentaries, vol. 4, 463, it is said: “A consideration is generally held to be essential to a good and absolute deed; though a gift or voluntary conveyance will be effectual as between the parties, and is only liable to be questioned in certain cases, when the rights of creditors and subsequent purchasers are concerned. ”

The great weight of authority is, that as between the parties, a gift or voluntary conveyance is valid, and can only be questioned by creditors; and by the recognition given by the general assembly to deeds of gift, and the decision in Thompson v. Thompson, 17 Ohio St., 649, the question as to their validity seems to be fully settled in this state.

Title to real estate acquired by deed of gift from an ancestor, is classed with that which came by descent or devise, and all three are known as ancestral property, because the title comes from an ancestor, and comes without price; it costs nothing. In Walker’s American Law, Tenth Edition, 392, in treating of the rules of ancestral property, it is said: “In this country, or at least in this state, they have been so far altered, that ancestral property, as will be seen hereafter, in-eludes all realty acquired from an ancester, either by descent, devise or deed of gift, where blood is the only consideration; and purchased property includes realty acquired in any other way.” Further along on page' 418, the same author says; “Ancestral property is realty which came to the intestate by descent or devise, from a now dead ancestor, or by deed of actual gift from a living one; there being no other consideration than that of blood. Non-ancestral property is realty which came to the intestate in any other way.”

In providing as to deeds of gift in section 4158, Revised Statutes, regard is had to the title, which means the legal title, and not an equitable title. And in Thompson v. Thompson, 17 Ohio St., 659, the court say: “No question of equity arises in determining the effect of the deed. The question is purely a legal one. ’ ’ To the same effect is Patterson v. Lamson, 45 Ohio St., 77; Stembel v. Martin, 50 Ohio St., 495. While equities are inheritable, the course of descent is controlled by the legal title.

Looking now at the deed in question in this case, and having regard to the legal title, uninfluenced by equity, did the title come to Cinderella by deed of gift or by purchase? The deed says, that the consideration was love and affection for the daughter. If this was all, it would clearly be a deed of gift. But the deed further recites, that it is in consideration of the dutiful obedience and faithful services to us of our said daughter, and in further consideration of one dollar, to us in hand paid by our said daughter. Standing alone, these considerations of obedience, services and one dollar, would clearly make the title one by purchase. How then shall it be solved when the considerations are thus mixed. The title came either by deed of gift or by purchase. It could not come by both; and legally speaking, it could not come partly by deed of gift and partly by purchase. The law as above quoted from Walker solves the question. He says, that to make ancestral property — title by deed of gift — there must be no other consideration than that of blood. Here there was other and additional consideration, and therefore the title came not by deed of gift. As the title came not by deedofgift, it came by purchase, and at the death of Cinderella passed to and vested in her husband, the plaintiff in error, in fee.

The dutiful obedience and faithful services of the daughter may have been rendered under such circumstances as to create no legal obligation against the father to pay for the same even though of great value to him; yet when he voluntarily recognized their value by making them the consideration, in part at least, for the conveyance of a tract of land, he could not after the contract, as evidenced by the deed, was executed, and the deed delivered, annul the same by pleading that he was not legally bound to compensate her. He might well have interposed such plea while the matter was executory, but after being fully executed such plea can avail nothing. What he could not do while living, his heirs cannot do after his death. They stand in his shoes.

Moreover, the consideration of one dollar alone, is sufficient to support the deed as between the parties, and to give it the character of being upon a valuable consideration, as contra-distinguished from a good consideration.

Under the statute of uses, before the statute would execute the use, in bargain and sale, a valuable consideration had to appear, but one dollar was sufficient, no matter what the value of the estate. But a covenant to stand seized to the use of another, required, not a valuable, but a good consideration, such as blood or marriage. Blackstone, Vol. 2, page 338.

The legislature seems to have had these distinctions in mind in framing our statute of descents as to deeds of gift, and intended that a deed of gift from an ancestor should be supported alone, by a consideration of blood or marriage, and that a deed for a consideration other than blood, that is a valuable consideration, should be regarded as a purchase.

There is therefore a clear distinction between our statutes as to deeds of gift, and the statute of California as to gifts of real estate to a wife, and the decisions under the latter statute would not be applicable here. See Peck v. Vandenburg, 30 Cal., 11; Salmon v. Wilson, 41 Cal., 595 ; Bradley v. Love, 60 Texas, 472.

Prom the view thus taken, the other questions made in the record are of no importance, and nothing need be said as to them.

The circuit court erred in applying the law to the conceded and controlling facts, and the judgment complained of in the petition in error will be reversed and judgment entered for the plaintiff in error.

Judgment accordingly.


author: Shauck, J.

text:
    Grapes et al. v. Barbour et al.

      Foreclosure of mortgage — Also action for personal judgment— Mortgagor may appeal, when.

    If, in an action for the foreclosure of a mortgage and for a personal judgment for the money claimed to be due upon the demand which it secures, the journal entry in the court of common pleas shows that before the action is tried, the plaintiff, hy leave of court, withdraws the prayer for a personal judgment, and the court proceeds to find the amount due and to decree a foreclosure, the mortgagor may appeal to the circuit court.
    (Decided January 26, 1898.)
    Error to the Circuit Court of Seneca county.
    Anson C. Barbour brought an action in the court of common pleas against Selina A. Grapes and Frank* M. Grapes, counting in his first cause of action upon a promissory note alleged to have been executed by them to him, and in his second cause of action upon a mortgage alleged to have been executed by them to him upon lot No. 157, in the city of Tiffin, to secure the payment of said notes according to its terms.
    One Erwin Graves, was also joined as a defendant, the allegations as to him being, that he claimed to hold a prior mortgage upon said lot, and that his mortgage was also a lien upon lot No. 13, in said city. One Hiram W. Yeager was also joined as a defendant, the allegation as to him being, that he had purchased said lot No. 13, subject to the mortgage of Graves.
    As against Selina A., and Frank M. Grapes, the plaintiff prayed for a judgment on the note and for a foreclosure of the mortgage. As against the other defendants, he prayed that they be required by answer to set up their respective claims, and that the mortgage of Graves, if anything should be found due upon it, be paid out of the proceeds of lot No. 13.
    To the petition Selina A. and Prank M. Grapes, filed an answer and cross-petition, alleging that the note and mortgage had been signed by them and placed in the hands of one Gordon Barbour, to be by him delivered to the plaintiff after they had opportunity to test the condition and ascertain the value of a horse for which said note and mortgage were to be given, that they were by him delivered to the plaintiff in violation of said condition that the horse was unsound and not as represented to be by said plaintiff, and that a warranty of its soundness was false.
    They also alleged, that upon discovery of the unsoundness of the horse, they tendered it back and demanded said note and mortgage. They prayed that the note and mortgage be adjudged void, and that their title be quieted.
    The plaintiff replied, denying the allegations of the answer.
    After the filing of such answer, the following was entered upon the journal of the court:
    “This day came the parties with their attorneys, and on motion for that purpose, leave is granted to the said plaintiff to reply to the amended answer and cross-petition of the defendants, Selina A. Grapes and Prank M. Grape's, instanter, and which is accordingly done and thereupon on motion of the said plaintiff, leave is granted to him to withdraw from the petition the prayer therein contained for a personal judgment against the defendants, Selina A. Grapes and Prank M. Grapes, and which is done accordingly. Thereupon, this cause coming on for hearing, was submitted to the court upon the petition of the said plaintiff, the respective answers and cross-petitions of the defendants, Edwin Graves and Ira E. Strong, the amended answer and cross-petition of the defendants, Selina A. Grapes and Frank M. Grapes, the reply of the plaintiff thereto,” etc.
    The court thereupon found in favor of Barbour upon the issues joined, and that there was due to him from Selina A. and Frank M. Grapes, $156.10. It did not render a personal judgment against them for the amount so found due, hut ordered and decreed, that unless said sum should be paid by them within ten days, their equity of redemption in the mortgaged premises should be foreclosed, etc.
    Selina A. and Frank M. Grapes, gave notice of their intention to appeal the case to the circuit court and gave bond for that purpose. In the circuit court, Barbour moved for a dismissal of the appeal, upon the ground that either party was entitled to demand a jury upon the trial in the common pleas.
    The circuit court sustained the motion to dismiss the appeal, and a reversal of its order in that regard, is sought here.

      Brewer <& Brewer and A. SJcransewfky, for plaintiffs in error.
    The statement of the claims made will, we think, show clearly that the cause is appealable and'dlie circuit court erred in dismissing1 the appeal. 1

    First. Whilst Barbour, in his petition, asked for a personal judgment against Grapes and wife, he, on his motion, asked for and obtained leave to withdraw that claim, which was done before the hearing, leaving this cause strictly equitable, not only in substance, but in fact, and that journal entry was, of course, prepared by Barbour’s attorney.
    Second. The answer and cross-petition of Grapes and wife set out the execution and delivery of the note and mortgage to Gordon Barbour, the son, to be by him held until the return of A. C. Barbour, and if Grapes and Barbour could not then agree upon the pric.e of the horse, or if the horse then on trial by said Grapes should not prove sound in every particular, Grapes was to return the horse and Gordon Barbour was to redeliver the note and mortgage to Grapes, which condition was written on the back of the note.
    If the defense set up was found to be true, the right sought to be asserted by the plaintiff below did not exist, the note and mortgage would have no vitality, would have had to be cancelled and Grapes’ title quieted and the plaintiffs’ cause of action superseded or extinguished. This gave the plaintiffs in error the right of appeal. Bankin v. Hannan, 37 Ohio St., 113; Buckner v. Mears, 26 Ohio St., 514; Taylor v. Leith, 26 Ohio St., 426.
    ’When Barbour withdrew his claim and prayer for a personal judgment, it left simply a finding of the amount due upon the note with sale of mortgage premises, if Grapes failed in proof. This the entry shows was done and left this cause appealable. Ladd v. James, 10 Ohio St., 437.

      Lutes <& Lutes, for defendants in error.
    In order to determine whether the parties were entitled to a jury trial the court can look only to the issues made by the pleadings.

      The petition filed by Barbour in the common pleas sets forth two causes of action, separately stated and numbered. One upon the note, and one upon the mortgage securing the same, and asks for a personal judgment against the makers of the note for the money claimed to be due thereon, and for a foreclosure of the mortgage.
    That the ease thus made by the petition, upon any issue of fact therein stated, effecting the right to a judgment for the amount claimed to be due upon the note, is a case in which either party has the right to trial by jury, there can be no doubt, as it is especially made such by statute. Revised Statutes, section 5021; Ladd v. James et al., 10 Ohio St., 438; Scotty. Hexoett et al., 7 C. C., 5; 3 C. D., 635.
    And the fact that no personal judgment is insisted upon at the trial, or in fact taken, does not change the character of the action, or give a right of appeal. Keller v. Wenzell, 23 Ohio St., 579; Mitchell y. Drake, 7C. C., 308; 4 0. D., 609.
    If upon the case made in the petition either party is entitled to demand a trial by jury, appeal does not lie, though the defense may be a purely equitable one, unless upon the allegations of the answer, the defendant is entitled to affirmative relief. Smith v. Anderson, 20 Ohio St., 76; Coffin v. Marrata, 2 Bull, 273; 6 Dec. R., 379; Gunsaullus y. Pettit, 46 Ohio St., 27.
    That the journal of the court is not the place where issues are found, and cannot be looked to to determine what the issues are. The statute provides that the issues must be made by the pleadings. Revised Statutes, sections 5128 and 5129, and to the pleadings alone the court must look to determine what the issues are.
   Shauck, J.

Whether an appeal to the circuit court might be taken in this action, does not at all depend upon the prayer of the mortgagors that their title might be quieted as against the mortgage upon which the plaintiff below counted in his petition. That result would have been fully accomplished by a dismissal of the petition upon a finding that the mortgage had not been delivered; or, that it had been obtained by fraud, or without consideration. Such dismissal would have can-celled the apparent lien of the mortgage, leaving no occasion for a formal decree quieting title.

It is indispensable, under the provisions of section 5226, Revised Statutes, that an action, to be the subject of an appeal to ■ the circuit court, must be one in which the right to demand a jury does not exist. It is provided in section 5130, that “issues of fact arising in actions for the recovery of money only, or specific real or personal property shall be tried by a jury,” unless such trial be waived or a reference ordered. It is provided in section 5021, that “in an action to foreclose a mortgage a mortgage given to secure the payment of money, or to enforce a specific lien for money, the plaintiff may also ask in his petition, a judgment for the money claimed to be due; and such proceedings shall be had, and judgment rendered thereon, as in a civil action for the recovery of money only.” Counsel for the defendant in error, insist that notwithstanding the fact disclosed by the journal entry, that “on motion of the plaintiff leave is granted to him to withdraw from the petition the prayer therein contained, for a personal judgment against the defendants, Selina A. Grapes and Frank M. Grapes, and which is done accordingly,” that portion of the original prayer continues to be a part of the petition, making the case triable to a jury under the provisions of section 5021. This view of the subject is said to have been taken by the circuit court.

That issues are made by the pleadings, and that the action of the court is shown by the journal entries, are true as general propositions. Many exceptions, however, relating to matters occurring in the progress of trials are sanctioned by inveterate practice, and authorized by express provisions of the code. An offer, in open court to confess judgment, a consent to the reference of a cause, the dismissal of an action and notice of intention to appeal, though acts of a party, are evidenced by journal entry. So the withdrawal of one of several causes of action and the submission of the action upon the causes that remain, or the withdrawal of one of several defenses; or, the withdrawal of an answer or reply for the purpose of submission on demurrer to the petition or answer, are acts of the parties in open court, conclusively shown by entries upon the journal. The authority to withdraw a portion of the prayer, would seem to be embraced within the power to withdraw an entire cause of action.

Whether the cause is appealable is to be .determined from the nature of the issues when it was submitted in the court of common pleas. There being then no prayer for a personal judgment, it was an action for the foreclosure of a mortgage only; and in such action neither party is entitled to demand a jury.

Judgment reversed.