author: MinshaUj, O. J.

text:
    Board of Education of Hopewell Township, Perry County, v. Guy, County Auditor, et al.

      Levy or collection of tax — Action to enjoin — Gan only be by taxpayer.

    An action to enjoin the levy or collection of a tax can be maintained only by one who is a taxpayer.
    (Decided April 16, 1901.)
    Error to the Circuit Court of Perry county.
    The plaintiff below, the board of education of Hopewell township, Perry county, commenced an action in the common pleas against the auditor and treasurer of the county to enjoin the levy and collection of a tax, levied by the commissioners of the county for school purposes in a newly created joint subdistrict. The questions are presented on a demurrer to the petition which is as follows:
    “The said plaintiff says that Hopewell township, in Perry county, Ohio, is a school district duly organized under the laws of this state and the said plaintiff is the board of education thereof. Plaintiff further says that the defendant, Charles C. Guy, is the duly elected, qualified and acting auditor of Perry county, Ohio, and the defendant, William R. Calkins, is the duly elected, qualified and acting treasurer of said Perry county, Ohio. Plaintiff further says that on April 12, 1898, there was filed in the probate court of Perry county, Ohio, a paper called a petition, signed by C. E. Deffenbaugh and nine other persons praying for the establishment of a joint subdistrict, embracing the territory bounded as follows
    (The description being immaterial is omitted.)

      “The plaintiff says: That the description contained in said petition is as above set forth and said petition contains no other or further identification of the territory and no plat thereof was filed therewith. That Madison township in said Perry county is a school district and is four miles from east to west and six miles from north to south, that the said township lies in the northeast corner of said Perry county, that said Hopewell township is a full original surveyed township and adjoins said Madison township on the west side thereof. The plaintiff further says that the above bounded territory embraces a very large tract of territory in said Madison township; that on the filing of said alleged petition in said probate court said court appointed three commissioners to act in said pretended proceeding to establish a joint subdistrict and fixed a time and place for them to meet and published a notice thereof in two newspapers of opposite politics published at New Lexington in said county. That said commissioners at the time, which was June 1, 1898, and the place (which was said C. E. Deffenbaugh’s home) met and attempted to and went through the formality of establishing a joint sub-district and made a report to said court in writing, that they had established a joint subdistrict and gave in their report the same lines and description above set forth, copying the same identically from said alleged petition. That said commissioners occupied, and say they were four days in discharge of said duties, and on the fourth day of June, 1898, filed their report in the said probate court, and said court immediately entered an order on its journal approving and confirming the same, and offered no opportunity for objections or exceptions thereto. The plaintiff further says that there was no proceedings had or taken before the boards of education interested in said territory, as required by law, prior to the filing of said alleged pretended petition in said probate court. That the clerk of said Madison township had no notice whatever of any proceedings to establish said pretended joint subdistrict and. neither had the b.oard of education of said Madison township or any of its members, and did not, nor did any of them act in said pretended proceeding at any time. And no certified copy of the commissioners’ report, plat or court’s order was ever delivered to the clerk of the board of education of said Madison township. Plaintiff further says that said commissioners say in their .report in reference to school-house and site the following:
    “ ‘We further find and report that there is no suitable school-house within such boundaries, and we designate as a site therefor a piece of ground in the southeast corner of the northwest quarter of section two, Hopewell township, Perry county, Ohio, south of the public road, but as near said road and as near the east line of said quarter section as practical.’
    “Plaintiff says that the above is all that is said in said report as to school-house or site therefor, or either, and there is no designation therein or thereby of a site whereon to build a school-house if said district was otherwise legally established. Plaintiff further says that said probate court was wholly and entirely without jurisdiction in said proceedings and each and every act done or attempted by it was illegal and void, and further says that by including in a joint subdistrict the territory that it is claimed by said alleged boundaries is embraced therein, belonging to said Hopewell township, it destroys three sub-districts in said township and would afford the children of this alleged joint subdistrict no better school facilities than they already have and Avould put an unnecessary burden of taxation on the people of said toAvnship and impair their present school facilities, and schools which are noAv among the best in the state, and said pretended report of said commissioners is fraudulent and an injustice, fraud and wrong on the schools and people of said township and might and' could have been so shown. . And for each and all of the above enumerated reasons the said board of education of Hopewell township by the unanimous vote of its members refuse to levy a tax for the building of a school-house or any other purpose for said pretended joint school district.
    “The plaintiff further says that thereafter the said' C. E. Deffenbaugh and others made application to the board of county commissioners of Perry county', Ohio, to levy a tax upon the people of said Hopewell township and Bowling Green township in Licking county, to build a school-house, employ a teacher, purchase fuel, etc., for said pretended joint sub school-district named by thém No. 11, and the said board of county commissioners illegally and without jurisdiction or authority of law, and by reason of the aforesaid illegal and void proceedings, made said levy, Avhich is illegal and void, and on June 26, 1899, made the following entry thereof on their journal, to-wit:
    “ ‘ENTRY.
    “ ‘In the matter' of the application of O. E. Deffenbaugh et al. for a levy, etc., for joint subdistrict No. 11, HopeAvell township, Perry county, Ohio.
    “ ‘This matter came on for hearing on .the application of G. E. Deffenbaugh et al. for a levy for joint subdistrict number 11, HopeAvell toAvnship, Perry county, Ohio, Bowling Green township, Licking county, Ohio, and the evidence, and after hearing all the evidence we find: That all of the statements and allegations contained in said application are true; That the said joint subdistrict number 11 had properly, regularly and legally established and that the same is under the care, jurisdiction and control of the board of education of Hopewell township, said county and state, and that the said the board of education of Hopewell township, said county and state, did fail and neglect to provide and furnish sufficient school privileges for the youths of school age in said joint subdistrict number 11. Did fail to provide for the continuance of school in said district for at least six months in the said year. Did fail to provide said district an equitable share of school advantages, and did fail and neglect to provide a school-house for said district number 11. Wherefore we find that in order to secure the site heretofore selected and erect a school-house thereon it requires the sum of $1,500; for a teacher the-sum of $240.00, and $60.00 for fuel etc., which will be raised by levy of .0018 mills on the taxable property of Hopewell township, Perry county, Ohio, for said township proportion of funds for the support of said joint subdistrict. We further find that said township has a township high school and that the levy made by said board of education with the levy herein made does not exceed the levy authorized by law.' Therefore we hereby report said levy for said joint subdistrict at .0018 mills to the county auditor and instruct him to proceed with the same according to law. And the said county auditor is hereby authorized and instructed to notify the Auditor of Licking county, Ohio, that the said board has this day made levy of $460.00 on the taxable property of Bowling Green township, Licking county, Ohio, for the support and maintenance of the joint subdistriet No. 11, as said township proportion of the amount of funds to be raised for the support of said joint subdistrict.’
    “The said plaintiff further says that the said de-' fendant, Charles C. Guy will, unless restrained by the order of this court proceed to enter the tax levy above set forth upon the tax duplicate of said Hopewell township, and the said William R. Calkins as county treasurer of Perry county will proceed to collect the same unless restrained by the ordetr of this court. Wherefore the plaintiff prays that, the said Charles C. Guy, county auditor, be enjoined from placing said levy oh the tax duplicate of said Hopewell township, and said William R. Calkins, countv treasurer, be enjoined from collecting the same and for all other proper relief in the premises.”
    The grounds of the demurrer are, 1, that the plaintiff has no legal capacity to sue; 2, defect of parties plaintiff; 3, misjoinder of parties defendant; 4, defect of parties defendant, and, 5, the petition does not state facts sufficient to constitute a cause of action.
    The demurrer was sustained; and the plaintiff not desiring to amend, judgment was entered upon the demurrer dismissing the action. On error the judgment was affirmed by the circuit court; and error is prosecuted here for a reversal of the judgment in both courts.

      John Ferguson and James E. Johnston, for plaintiff in error.
    It was claimed by the defense in the courts below, and will therefore no doubt be claimed here, that the board of education of Hopewell township has no right to enjoin this levy, or in any case stop or interfere with the collection of the tax and building of a school house in its district, and within its territory.
    We ought not to be compelled to combat such fallacy, or to argue in favor of the right of plaintiff in error to maintain this action.
    The court Avill find by referring to Sec. 3971, Rev. Stat., that each board of education is made a body politic and corporate, and as such capable of suing and being sued, contracting and being contracted with, etc.
    The statutes also place all schools and school houses in the district in charge of the board of education of such districts and give the board the entire control and management of all schools and school houses in the district.
    They also require such board to make all provisions for schools and the education of all school youth within its territory. Sections 4007, 3987, Revised Statutes.
    The board of county commissioners in this case is an interloper and their acts and attempts to levy and collect tax and build a school house is no more than if an attempt were 'made by any other unauthorized board or person to do such an unauthorized and illegal act, and then claim that the plaintiff in error was bound to stand idly by and let them perpetrate their unlawful acts and inflictions ou their district, and after it was done claim and require the plaintiff in error contrary to its judgment to maintain and support its illegal and unlawful inflictions.
    The mode of establishing joint subdistricts is provided by chapter .5 of Title 3, Rev. Stat., commencing Avith Se,e. 3928.

      It will therefore be plainly seen that no such proceedings were had as authorized these electors to appeal to the probate court. The Madison township district clerk, it is alleged, had no notice of the preliminary proceedings. It is also alleged that there were none of the members of the board of education of that district had notice. That this should have been done and the action of said board taken, or its nonaction, was a prerequisite to the electors, right to appeal to the probate court, and without it, that court was wholly and entirely without jurisdiction of the proceeding, and each and every step taken and act done Avas void, and being void are subject to attack collaterally, and in every other way when the same is attempted to be enforced. It is a void proceeding and has no life or Adtality Avhatever. We have alleged and shown by our petition that these persons had no right to go before the probate court or to proceed in any respect therein whatever. We have shown that that court had no jurisdiction in the case, and that court like all other courts where no jurisdiction is obtained is powerless to act, and any attempted action, however apparently regular, is void.
    This question was carefully considered and all the cases in Ohio considered and referred to by this court in the case of Wehrle v. Wehrle, 39 Ohio St., 365.
    Again, section 3928 requires the commissioners, if there is no school house, etc., to designate a site. In this case, as we have shown, they say that the site shall be south of a public road in a named quarter section, and as near the road and east line as practicable, this is no designation.

      Moss v. Board of Education, 58 Ohio St., 354; Am. and Eng. Ency. Law, 643.

      Donahue, Spencer & Donahue and J. E. Powell, prosecuting attorney, for defendants in error.
    It is a universal principle based in reason and in the policy of all code procedure, that the real party in interest must be the plaintiff in the case. If one be not injured by the grievances complained of, or be not subject to any pecuniary loss thereby, he is not the real party in interest and can plainly bring no action in reference thereto. From these principles it is not only apparent but it is settled as a matter of law, that only a taxpayer, (that is a person who may be compelled to pay a portion of a tax), can enjoin the levy and collection of the tax. High on Injunctions, Sec. 573; McMahan v. Welch, 11 Kan., 280; Center Township v. Hunt, 16 Kan., 430; Nunda v. Crustal Lake, 79 Ill., 311; State v. McLaughlin, 15 Kan., 228; Ewing v. Board of Education, 72 Mo., 436; Trustees v. Thoman, 51 Ohio St., 285; Weir v. Day, 35 Ohio St., 143; Slavin v. Greene, 4 Dec., 99 (2 N. P., 39); Webb v. Ohio Gas & Fuel Co., 9 Dec. (Re.), 662, 16 W. L. B., 121; Buning on Behalf of Cincinnati v. Street Railroad, 1 Circ. Dec., 178, 1 C. C. R., 323; Moody v. Arthur, 16 Kan., 419.
    It is equally well settled on principle and authority that a pleading is demurrable if it fails to join necessary parties defendant without whose joinder the action can not be legally prosecuted. The petition of plaintiff in error, record pages 9 and 10, avers that a portion of Madison township, Perry county. Ohio, and a portion of Bowling Green township, Licking county, Ohio, were included within the boundaries of the joint sub-school district established by the probate court of Perry county, Ohio, and were parties to said proceeding in said court, the alleged irregularities of whose orders and judgment are the predicate of this proceeding to enjoin the tax. A portion of the tax levy must necessarily have been for the benefit and use of such portions of Madison and Bowling Green townships, as fell within the boundaries of said joint sub-school district, consequently the boards of education of said Madison and Bowling Green townships were necessary parties to this proceeding, even if the plaintiff had been a person with legal capacity to sue. Section 5849, Revised Statutes; Atchison, etc., R. R. Co. v. Wilhelm, 33 Kan., 206; Cooley on Taxation, page 76; 10 Ency. PI. and Pr., 911.
    The probate courts of this state are, in the fullest sense, courts of records. They belong to the class whose records import absolute verity; that are competent to decide on their own jurisdiction, and to exercise it on final judgment, without setting forth the facts and evidence on which it is rendered.
    The probate court of Perry county, Ohio, plainly had jurisdiction of the subject matter involved in the proceeding to establish the joint sub-school district named.
    It is ton late to question the validity of this proceeding in an action of the character of the one at bar, which is purely.collateral. The only remedy the plaintiff in error could have had if it was aggrieved, was a proceeding in error to have reversed the holding of the probate court in the original action itself, or to have caused the judgment thereof to have been set aside for fraud. The judgment of the probate court can not be collaterally attacked upon a state of facts such as are averred in the petition of plaintiff in error. Shroyer v. Richmond, 16 Ohio St., 455; Board of Education v. Stuck, 39 Ohio St., 259; Eckstein v.
      Board of Education, 4 Circ. Dec., 149, 10 C. C. R., 480; Lewis v. Laylin, 46 Ohio St., 663.
    The same rule is recognized in proceedings of township trustees in the establishing of ditches. Haff v. Fuller, 45 Ohio St., 495; Mills v. Board of Equalization, 1 C. S. & C. R., 566.
    The fact that a judgment of the probate court cannot be collaterally attacked and made the basis of an action to enjoin the collection of a tax, as is attempted in this proceeding, is too well established to be further questioned in this state. Sheldon’s Lessee v. Newton, 3 Ohio St., 494; Heckman v. Adams, 50 Ohio St., 305; Slagle v. Entrekin, 44 Ohio St., 637; Callen v. Ellison, 13 Ohio St., 446; King v. Bell, 36 Ohio St., 460, Lindeman v. Ingham, 36 Ohio St., 1; Railroad Company v. Belle Centre, 48 Ohio St., 273; Brown, Exr. v. Reed, 56 Ohio St., 264; Knapp v. Thomas, 39 Ohio St., 377.
    It is amply established by the authorities cited that, the judgment of the probate court of this state cannot be collaterally attacked in a proceeding analogous to the one at bar. The court had jurisdiction of the subject matter and of the parties, and its judgment is final and conclusive unless reversed on error or set aside for fraud.
   MinshaUj, O. J.

It appears from the record that the common pleas held that the demurrer was well taken on the ground that the petition does not state facts sufficient to constitute a cause of action, entitling the plaintiff to relief, and overruled it on the. other grounds. On error the circuit court simply affirmed the judgment. We are of the opinion that the judgment should be affirmed on the ground that the plaintiff has no right to maintain the action. It is. true that the board of education is made by statute a body corporate with capacity to sue and be sued; but capacity to sue is one thing, and right to maintain a particular action is another thing. The plaintiff has no right to maintain this action, and. the second ground of demurrer is well taken; and might probably have been raised without demurrer. See Buckingham v. Buckingham, 36 Ohio St., 68, 78, where it is said: “To warrant a recovery on the petition, it must show a cause of action in the plaintiff. If the petition fails to show such cause of action, the objection is not waived by a failure to demur, or to make the objection by answer.” It is said in High on Injunctions, section 573: “The governing rule, resting alike upon principle and authority, is that the action to enjoin the collection of a tax should be brought by the taxpayer, whose property and interests are directly affected by the tax which it is sought to enjoin, the same degree of interest being requisite as in all other cases where the extraordinary aid of equity is invoked.” A board of education is not a taxpayer; taxes may be levied for its benefit, but it pays none. Section 3973, Revised Statutes. It has then no interest in the subject of the action, nor is it any part of its duty to prosecute it. Thus it is said in Moody v. Arthur, 16 Kas., 419: “A township cannot maintain an action to enjoin an illegal tax on individual property; only the individual can maintain such action, each for himself or for himself and others with like interest. There is no law making a public corporation the guardian of private rights.” Trustees v. Thoman et al., 51 Ohio St., 285. Here it was held that the trustees of a township cannot sue to recover back taxes paid by its citizens on an illegal levy, the right of action being in the individual taxpayers; and by a parity of reasoning only a taxpayer' can enjoin the collection of an illegal tax.

It is not necessary to consider any of the other grounds, though it may be proper to say that if the suit had been brought by one having the right to maintain it, the demurrer should have been overruled; in other words the petition states a cause of action in favor of a taxpayer; as it appears therefrom that the probate court had not acquired jurisdiction of the matter; and the tax levied by the commissioners was therefore without authority of law. By recurring to the statutes prescribing how joint subdistricts may be formed, (section 3928, et seq.,) it will be observed that, aside from the mutual action of boards of education, they may be formed by petition to a board of education situate within any part of the territory to be included in the proposed district. If the proceedings had before this board are unsatisfactory “three or more electors of the territory sought to be included therein, may file a petition or remonstrance for or against the same,” ih the probate court, which, by the aid of a commission to bo appointed by it, may establish it or not, as is found best. It is evident that no proceedings can be instituted in the probate court, until after action had before the proper board of education. Such action is a prerequisite to the jurisdiction of the probate court, and where it has been omitted, the action taken by the court is of no force or effect whatever, and may be questioned collaterally or otherwise, as may the judgment of any court rendered without jurisdiction. Wehrle v. Wehrle, 39 Ohio St., 365. It is averred in the petition and admitted by the demurrer that no action had been taken before any board of education, prior, to the filing of the petition by Deffenbaugh and others in the probate court. The court then had no jurisdiction, and its action in the premises was a nullity. But, for the reason before given, the judgment must be affirmed. Neither this court, nor the court below, can render judgment on the merits of a case, in an action where there is in law no party entitled to the relief prayed for.

Affirmed.

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


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Newman v. Desnoyers et al.

      Vacation of judgment — Section 5360, Rev. Stat. — Order for vacation may be erroneous but not void, when.

    Although an order for the vacation of a judgment rendered at a former term without adjudging that there is a valid defense to the action in which the judgment was rendered is erroneous in view of the requirement of section 5360, Revised Statutes, it is not void.
    (Decided May 7, 1901.)
    Error to the Circuit Court of Cuyahoga county.
    The record before us was made in the circuit court where the case was tried on appeal. It was a suit brought by the defendants in error against Clara Newman et al., to quiet title to certain real estate, being a lot in the city of Cleveland. In her answer and cross-petition Mrs. Newman denied the title of the plaintiffs below and set up a lien by virtue of a mortgage executed to her by one Joseph Desnoyers, June 24, 1894, to secure the payment of his promissory note then executed to her, and she prayed for a decree of foreclosure upon her mortgage. The record admits that Joseph was the owner of the lot at the time of the execution of her mortgage unless his title was divested by a judgment of the court of common pleas entered on the 13th of November, 1893, in case No. 46212 brought by the plaintiffs below against said Joseph. The record in that case was introduced by the plaintiffs below upon the trial of the present case. From that record it appeared that the plaintiffs below brought suit against Joseph for the specific performance of his promise to convey the lot to them, and that on November 13, 1893, he being in default for answer, a decree in favor of the plaintiffs Avas entered in accordance with the prayer of their petition; and it was ordered that Joseph should, Avithin sixty days, convey the premises to them by good and sufficient deed. The decree also provided that if he failed to execute.-such deed the decree should have the force of such conveyance. The deed so ordered was never executed. Thereupon Mrs. Newman introduced the record in case No. 47950 of the same court in which Joseph Desnoyers filed a petition against the plaintiffs in the former case for the vacation of said judgment, alleging that it was obtained by fraud of said plaintiffs, allegations of material fraud being set out in his petition. His petition also alleged facts which, if true, would constitute a meritorious defense to the suit in which they had recovered their judgment against him. To this petition for the vacation of the former judgment these defendants in error answered by denying all of its material averments. On the 30th of March, 1894, the court disposed of the issues so joined by the following entry upon its journal: •
    “This cause came on to be heard on the pleadings and testimony, the same being duly advanced and on due consideration the judgment in said cause No. 46212 being Exilda Desnoyers et al. v. Joseph Desnoyers, is opened up and modified and the defendant in said cause No. 46212 has leave to plead therein by motion or otherwise by March 31, 1894. To all of which defendant herein excepts. Judgment is rendered against said Joseph Desnoyers for the costs of this action.”
    Joseph then filed a motion in case No. 46212 asking the court to strike from the petition redundant and irrelevant matter, and to require the plaintiffs to make said petition “more definite and certain” in material respects. This motion was sustained April 12, 1894. Thereafter, no amendment to the petition having' been made, Joseph filed a motion asking that the petition be stricken from the files. This motion was overruled, and the plaintiffs were given leave to file an amended petition by a day named by the court. On May 21, 1894, no amended petition having been filed pursuant to such leave, Joseph filed another motion to strike the petition from the files, of which motion the plaintiffs had notice. On May 24, 1894, the court sustained this motion, the following entry being made upon its journal:
    “The motion by defendant to strike the petition from the files is heard and granted at the plaintiff!» costs, for which judgment is rendered against said plaintiff. Said petition is stricken from.the files, to all which ruling and order said plaintiffs except.
    On the trial of the present case in the circuit court it was admitted by all the parties that no action was taken in the former case after the order striking the petition from the files. It was also admitted that Mrs. Newman, believing that Joseph was the owner of the lot in controversy, in good faith accepted the note and mortgage, in consideration of money loaned by ber to him. No other evidence was offered on the trial of the present case. The circuit court adjudged that Mrs. Newman’s mortgage be cancelled and that the title of the plaintiffs below be quieted.

      Fred E. Bruml and Oscar J. Horn, for plaintiff in error.
    This decree we c.ontend is erroneous and of no force for the following reasons:
    First. Said decree appears to be entered by consent of defendant’s counsel as it recites, although the language might be construed to be, that the counsel of the defendant consented only that the defendants should be in default of answer or demurrer, and that the consent of counsel did not extend to the further findings and decree of the court.
    Second. That the finding that the plaintiffs were entitled to the specific execution of the contract in their petition described to the amount of two thousand dollars, is of no force, for no specific performance of the contract can be awarded in damages without evidence as to the amount of the damage, which nowhere appears in the decree to have been had.
    Third. That the finding that the plaintiffs would be satisfied with the conveyance to them by a deed in fee simple of sublot No. 56, and the decree based thereon that within sixty days the defendant should convey to the plaintiffs said sublot No. 56, by deed of general warranty; and in default thereof that this decree should operate as, and have the full force and effect in law of such conveyance — is clearly void and of no effect, because no such relief is prayed for in the plaintiff’s petition, which prays for the conveyance of sublot No. 57, which was then encumbered by a mortgage of five hundred dollars, while said sub-lot No. 56 had no encumbrance thereon.
    Fourth. The further finding that this decree is made a lien on all the property described in the petition as defendant interest may appear is- not such a, decree as the court has jurisdiction to render, for if the prior finding is void then this finding as to a lien is also of no force, because a void decree can not be made a lien upon land.
    Fifth. That the counsel of defendant had no power to consent to such a decree, that the same is not a confession of judgment, but if it is anything it is a compromise of the rights of the defendant.
    3 Am. and Eng. Enc. Law (2 ed.), p. 358.
    Upon the point that the decree is invalid it is not responsive to the pleadings. Spoors v. Coen, 44 Ohio St., 497; Enc. Law, (1 ed.) p. 882.
    A decree can not be based on facts not in issue in the pleadings. Carneal v. Banks, 23 U. S. (10 Wheat.), 181; Gregory v. Powers, 3 Litt. (Ky.), 399.
    The finding of facts should follow the pleadings. Lipp v. Harsbach. 12 Neb., 371.
    Plaintiff’s relief is limited by the prayer of the bill. Ellis v. Sissons, 96 Ill., 105.
    A failure to answer admits the facts alleged in the petition only. Meux v. Anthony, 11 Ark., 411; 52 Am. Dec., 274; 47 Ill., 353.
    A void judgment is of no effect and this judgment being void because it decrees the transfer of the title of sublot No. 56 when the petition does not ask for it, may be disregarded. See Secs. 17 and 18, Freeman on Judgments.
    We call the attention of the court to the petition filed by Joseph Desnoyers in cause No. 47950 and to the subsequent decree where the court opened up and modified the decree in cause No. 46212.
    Section 5358, Rev. Stat., provides that “The proceedings to vacate * * * shall be by petition * * * setting forth * * * the grounds to vacate or modify it, and, if the party applying was a defendant, the defense to the action.”
    Section 5359, Rev. Stat. — “The court must first try and decide upon the grounds to vacate or modify a judgment before trying or deciding the validity of the defense.”
    This the court proceeded to do and both sides.appeared, went to trial, argued and submitted their case and the court upon due consideration opened up the judgment in 46212 and modified the judgment.
    The proceedings conclusively show that the court in fact did find that Joseph Desnoyers had a valid defense to the cause of action, although the journal entry fails to include all that the court did decide.
    This motion for a new trial was heard and submitted and overruled.
    As Sec. 5 must have been argued to the court, therefore in denying the motion for a new trial, the court again passed on the question of the validity of Joseph Desnoyer’s defense to the cause of action in the petition in No. 46212, and again by its action found the issues in his favor.
    The court have taken these several steps, complying with all the requirements of the statutes, in No. 47950, gave to Joseph Desnoyers, leave to plead, by motion or otherwise by March 31st in case No. 46212. Watson v. Paine, 25 Ohio St., 340; Evans v. Iles, 7 Ohio St., 233; Henry v. Jeans, 48 Ohio St.,443; section 5314, Rev. Stat., Sec. 5.

      We maintain that the action of the court granting the motion to strike from the files was equivalent to a judgment of dismissal without prejudice. Nash on Pleading. (4 ed.), p. 276; Frazier v. Williams, 24 Ohio St., 625; construes Secs. 5358-9-60, Rev. Stat.; Brundage v. Biggs, 25 Ohio St., 652; Braden v. Hoffman, 46 Ohio St., 639.
    In our case, hoAvever, while the journal entry of opening up and modifying the former decree does not show that the court found that there was a valid defense to the cause of the action, yet the motion for a neAv trial, which is a part of the record, shows that the court did so find, and therefore the authority above is not conclusive against us, but if anything, in our favor, for it indicates that if the court had found a valid defense and had modified the judgment, its order giving leave to answer would have been correct.

      Ralston v. Wells, 49 Ohio St., 298, decides: The proper proceeding to vacate a judgment of a former term is by petition under Sec. 5358, Rev. Stat., and not by motion under Sec. 5357 (p. 301, Sec. 3). If defendant slioAved ground to vacate, the court should have adjudicated no further than to determine that question, for there still remained to be heard and passed upon the further question whether the right judgment had not, after all, been rendered. The aboA’e case is not applicable to ours on the facts, for in our case the plaintiffs have by their own refusal to plead and by submitting to have their case stricken from the files, prevented this court from making a final finding upon the merits of the case; and the question of the validity of our defense has not, and cannot be any further determined, because the plaintiffs refuse to submit their case to the court for determination and refuse to make up an issue.

      W. H. Polhamus, for defendants in error.
    The court of common pleas had jurisdiction both of the subject of the action, and the parties thereto.
    That being so, its decree was binding on parties and privies, until regularly reversed, no matter how irregular or erroneous it may have been; and such errors are not available on collateral attack of the judgment or a title under it.

      Bigelow v. Bigelow, 4 Ohio, 138; Buell v. Cross, 4 Ohio, 327; Douglass v. McCoy, 5 Ohio, 522; Foster v. Dugan, 8 Ohio, 87, 107; Adams v. Jeffries, 12 Ohio, 253; Boswell v. Sharp, 15 Ohio, 447; Paine v. Moore-land, 15 Ohio, 435; Douglass v. Massie, 16 Ohio, 271; Cochran v. Loring, 17 Ohio, 409; Newman v. Cincinnati, 18 Ohio, 323; Reynolds v. Stanbury, 20 Ohio, 344; Fowler v. Whiteman, 2 Ohio St., 270; Moore v. Robison, 6 Ohio St., 302; Trimble v. Longworth, 13 Ohio St., 431; Callen v. Ellison, 13 Ohio St., 446; Hammond v. Davenport, 16 Ohio St., 177; Calkins v. Johnston, 20 Ohio St., 539; Spoors v. Coen, 44 Ohio St., 497.
    Decrees in chancery stand on the same footing as judgments at law, in respect to concliisiveness on parties and privies. Babcock v. Camp, 12 Ohio St., 11; Welsh v. Childs, 17 Ohio St., 319.
    Where a court of general jurisdiction is to exercise its powers upon a state of facts to be proved before it, the proof is presumed to have been made, and the existence of the fact cannot be collaterally denied. Pillsbury v. Dugan, 9 Ohio St., 117; Maxsom v. Sawyer, 12 Ohio St., 195.

      The decree was absolute as to the defendants in error when the petition to set aside was filed.
    The decree was never reversed. Hettrick v. Wilson, 12 Ohio St., 136.
    The power of the court to set aside or vacate its judgments, subsequent to the judgment term, is governed by settled principles, to which the action of the court must conform. Huntington v. Finch, 3 Ohio St., 445; Braden v. Hoffman, 46 Ohio St., 639.
    Court journal must show what the court really did. 2 Evans, Poth., 336.
    Whether it has been adjudged that there is a valid defense to the action, before setting aside a judgment rendered at a former term of the court, should not be left to mere presumption. Hettrick v. Wilson, 12 Ohio St., 136.
    In order that the validity of the defense may be adjudged, an issue or issues should be made up by proper pleadings.
    If the proceeding to vacate or modify be by motion, the defendant should be required to file his answer to the original petition, with leave to the plaintiff to reply. Was the application in this case by motion? Then defendant should have been required to file his answer. But no answer was filed. If the proceeding be by petition, in which the matters of defense are set forth in issuable form, it would be sufficient, no doubt, to take issue thereon by reply or demurrer. When the issue is thus made up, it should be tried as in other cases. Watson v. Paine, 25 Ohio St., 340, Frazier v. Williams, 24 Ohio St., 625.
   Shauck, J.

The view urged in support of the judgment of the circuit court is that the decree of the court of common pleas in favor of the defendants in error in their suit for a specific performance remains in force notwithstanding the .subsequent order of the same court for the vacation of that decree. This is said to be so because in its subsequent order for the vacation of that decree the court of common pleas did not expressly adjudge that Joseph Desnoyers had a valid defense to the suit in which that decree was entered. His petition filed for that purpose alleges fraud in the recovery of the judgment whose vacation he sought, as well as a valid defense to the suit in which it was recovered. It appears clear, and it is admitted, that his petition is in accordance with the requirements of section 5358 of the Revised Statutes. The jurisdiction of the court to vacate its judgment rendered at a former term was therefore properly invoked, and the parties in whose favor that judgment had been rendered were before the court upon the petition to vacate. The precise point made by counsel for defendants in error is that the court failed to exercise its jurisdiction in that behalf because its order for the vacation of the judgment did not comply with section 5360 of the Revised Statutes whose material provision is that “a judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment was rendered.” In support of the proposition that the adjudication with respect to the existence of such defense is indispensable to the validity of the order of vacation Hettrick v. Wilson, 12 Ohio St., 136, 138, and Braden v. Hoffman, 46 Ohio St., 639, are cited. Other decisions of this court of like purport with those might have been cited. They were proceedings in error to reverse orders vacating judgments rendered at former terms of the courts in which they were made, The cases establish the doctrine that an' order to vacate a judgment rendered at a former term without the required adjudication with respect to the existence of a valid defense is erroneous, and that such adjudication must affirmatively appear in the record. But none of the cases holds that such order without the required adjudication is void and subject to collateral attack. In the present case the parties joined issue upon the petition to vacate the judgment in their favor and offered evidence in support of their answer. When the order of vacation was entered they acquiesced by not instituting a proceeding for its reversal. They afterward appeared in the original case to contest the motion which was directed against their petition. That motion having been sustained, and another being made to dismiss the petition because of their failure to comply with the order of the court for the amendment of their petition, they contested that; and although excepting to the order sustaining the motion to dismiss, they acquiesced therein. All the issues involved were triable by the court without the intervention of a jury. At every step the court Avas engaged in the exercise of jurisdiction expressly conferred upon it by statute, and all parties affected by its orders Avere before it. NotAvithstanding the error in the exercise of its jurisdiction, when the court finally dismissed the original petition the original decree was as effectually annulled and the case disposed of as though it had been upon isues of fact joined. No reason appears for holding that the case should be regarded as an exception to the general rule that all judgments and final orders made by courts in the exercise of jurisdiction over the subject matter and jurisdiction of all persons whom they affect are valid until they are reversed. The common understanding that orders of vacation, defective as is this, are within that general rule, is indicated by the numerous proceedings instituted for their reversal.

Judgment reversed and judgment for plaintiff in error.

Mins hall, C. J., Williams, Burket and Spear, JJ., concur.

Davis, J., absent.


author: Davis, J.

text:
    The Wabash Railroad Company v. Skiles.

      Railway company liability for accident to passenger or employe —Passengers not held to degree of duty required of employes, when — Employe steps upon railway trade from platform — Guilty of contributory negligence, when — Extent of care required of ordinary person in attempting to pass over trade — Law of negligence.

    1. The rule of law which excuses passengers from the obligation to observe a strict lookout for trains and locomotives when alighting from or getting upon trains over the tracks of a railway company, does not apply to employes whose duties ■ may require them to cross the tracks in the yards or at the depots of the railway.
    2. Such employes will be held to the exercise of ordinary care in going from a place of safety upon or across railway tracks; and ordinary care requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a railroad track, should use them for the purpose of discovering and avoiding danger from an approaching train; and an omission to do so, without reasonable excuse therefor, is negligence which will defeat an action by such person to recover damages for an injury to which such negligence contributed.

      3. Where such an employe, without looking or listening, steps .upon a railway track from a place of safety on a platform, immediately after the passing of a train, and in front of and close to, a backing switch engine, so that he is immediately struck and injured by such engine, he is guilty of contributory negligence, and cannot recover for the injury thus received.
    (Decided May 7, 1901.)
    Error to the Circuit Court of Williams county.
    The defendant in error was the plaintiff below and complained of the defendant, The Wabash' Railroad Company, as follows:
    1. That defendant is now, and was when the cause of action hereinafter stated arose, a corporation for profit duly organized under and operating under the laws of Ohio as a, common carrier of freight and passengers, as a railroad company, and having a station and doing business as such at Montpelier, Williams county, Ohio.
    2. That for several months pri„or thereto and on April 16, 1899, plaintiff was employed in the car department of said defendant corporation, at and about the yards Of said company at the village of Montpelier ; that the duties of plaintiff, respecting his said employment, were to clean and replenish certain of the dining cars of said defendant company arriving at said station on its passenger trains, and to furnish said cars with coal and water and such other attention and care as might be found necessary; that in said employment plaintiff was at said time under the direction and subject to the-orders of a foreman, who had control of the employes of said company at said station who were in said car department; that plaintiff at said time, as compensation for his said services, received and was earning and was paid the sum of fifty dollars per month, and was of the age of forty-six years.
    3. That on said day the yards and tracks of said defendant company at said station were under the direction and control of a yardmaster whose duties were independent of the duties of said foreman of the employes of said defendant’s car department at said station, said yardmaster being charged with the duty of superintending switchmen, and’ switch engines, and the switching and disposition of trains, engines and cars over and' about the tracks of said company at said station; that on said day the position of yardmaster at said station was filled by one .Gilbert; that said yardmaster at said time had no control over the duties of plaintiff, the department whereof said yardmaster was then superintendent being entirely distinct and, separate from the car department whereto plaintiff belonged; nor had plaintiff any power to direct or control any employes in said car department, or said yardmaster.
    4. That on said day, by the rules of said company, and its practice at said station, all westbound passenger trains arriving at said station were held and stationed on the track immediately adjoining to and just south of the passenger platform at the passenger station of said company in said village, said track being known as the Chicago track, while eastbound passenger trains arriving at said station, especially, while said Chicago track was occupied by a passenger train, were stationed and held on a track immediately south of and next to said Chicago track known as the Peru track; that then the said defendant .company had constructed, and there was, no way or means of access to said Peru, track from said passenger platform save by passing directly over the rails and bed upon the bed of said Chicago track.
    5. That on said day it ivas the especial duty of plaintiff to look after and attend to the wants and needs for coal, water and otherwise of the dining car attached to an eastbound passenger train, which said east train, at the time of the accident and happening hereinafter described, came in upon and was standing on said Peru track, said Chicago track having been prior to the arrival of the said eastbound train and being at the time of its said arrival occupied by a westbound passenger train.
    6. That just immediately prior to the happening of the accident hereinafter described plaintiff, by the orders of his said foreman, was upon said passenger platform, with the said westbound train between him and said train on said Peru track whereon was the dining car which was the especial object at that time of plaintiff’s duty, that said westbound train was then in motion westward, and that plaintiff, as soon as the last car thereof had cleared the place on said passenger platform whereat plaintiff stood, being obliged to hasten to his duties towards said dining car before said eastbound train should move,, passed around the immediate rear of said departing train and upon said Chicago track for the purpose of crossing the same to his said car; that at said time there was in force a rule of said company that the switch engine of said company stationed at the yards of said company at said village and then and there under the direction and control of the yardmaster, should not pass along said Chicago track, as and when said Peru track was occupied by a passenger train, as was the ease at that time, unless said engine was preceded by some employe of the company whose duty it was to warn all persons off of said track until said engine-should have gone by, and unless a warning should'be continuously sounded by the bell of said engine; that it was on said day the particular duty of said yardmaster to enforce said rule; that plaintiff did not observe said switch engine but that the sa-me was then noiselessly, rapidly and closely and carelessly following said departing westbound train, advancing backward, and that there was no person preceding said engine, as required by said rule, to warn persons of danger, nor was said engine sounding any alarm by either its whistle or its bell or otherwise; that immediately and without warning of any sort plaintiff was struck by said engine and was crushed and injured as follows, viz.; his right leg was run over and crushed just below the knee, and his left foot was run over and crushed at the instep; that the plaintiff suffered this injury without fault of his own, but wholly through the negligence or default of said defendant company in this and in these particulars, viz.:
    7. That said switch engine, the; same being under the immediate control and direction of said yardmaster, who was riding thereon, was negligently and carelessly permitted to and did advance backward on said Chicago track, following said departing westbound train, so closely and so carelessly and rapidly and noiselessly as to greatly endanger all persons having lawful business to cross said Chicago track for the purpose of approaching said passenger .train on said Peru track, as plaintiff then had to cross said track for the performance of his duties with reference to said dining car; that by the negligence of said defendant company and its said yardmaster then riding thereupon-said switch engine was permitted to and did follow said departing passenger train backward so closely, noiselessly and rapidly, as aforesaid, but without some one preceding the same to sound the warning of its approach, as required by said rule; and that said switch engine was permitted to and then did carelessly and, by the negligence of said defendant company, noiselessly and rapidly proceed over said Chicago track in the immediate rear of said departing train without sounding a warning of its approach either by bell, or by whistle, or otherwise.
    8. Plaintiff says that at the time he stepped upon said track, under the circumstances aforesaid, for the purpose of attending to his duties with reference to said dining car on said Peru track, and at the time said switch engine struck him, as aforesaid, he was exercising care and caution, with full reliance that the way of access to said passenger train on said Peru track would be preserved to the safe passage of passengers and railroad employes having lawful business to cross the same, as plaintiff then had, and that he neither heard nor saw said engine or its approach, and was not aware of its proximity until it was upon him, and that it followed said departing westbound passenger train- so rapidly, closely, silently and carelessly that he had neither time nor opportunity to escape it.
    9. That as a result of said injuries plaintiff was confined to a hospital for five months, where he was necessarily subjected to two amputations of his said injured right leg, below the knee, and to an amputation of his left foot at the ankle, and he was otherwise painfully treated and operated upon; that as the result of said injuries plantiff for many months suffered very great bodily pain and distress and does still suffer great pain and distress; and is broken in health, and has become and is now greatly and permanently crippled; that since receiving said injuries plaintiff has been and is now wholly unable to perform any manual labor.
    10. Plaintiff says that he received each of said injuries and suffered said bodily pain and distress, and is now permanently injured and crippled without any fault of his own, but solely through the fault and negligence of said, defendant company, in the manner and way above set out, and while plaintiff was in the faithful performance of his duty toward defendant.
    Plaintiff says that because of the injuries by him sustained as aforesaid he has been damaged in the sum of twenty-five thousand dollars, for which sum he asks judgment against the defendant, The Wabash Railway Company.
    The railroad company answered as follows:
    It admits that it is now and was at the time when plaintiff’s alleged cause of action arose, a corporation for profit, duly organized under and operating under the laws of Ohio as a common carrier of freight .and passengers as a railway company, having a station and doing business as such at Montpelier, Williams county, Ohio.
    It admits that for several'months prior thereto and on April 16, 1899, the plaintiff was. employed in the car department of the defendant at and about the yards of said company in said village of Montpelier; and that the plaintiff’s duties respecting his said employment were to clean and replenish certain of the dining cars of said company, arriving at said station on its passenger trains, and to furnish said cars with coal and water and to give the same such other attention as might be needed; and that in said employment the plaintiff was, at . said time under the direction and subject to the orders of a foreman, who had control of the employes of said company at said station in said car department.
    The' defendant admits that on said day the yards and tracks of said defendant at said station were under the direction and control of a yardmaster, said yardmaster being charged with the duty of superin-% tending switchmen and the switching and disposition of trains, engines and cars over and about the tracks of said company at said station; and that on said day the position of yardmaster at said station was filled by one Gilbert, and that the plaintiff had no power to direct or control any of the employes in said department, or said yardmaster.
    This defendant admits that on said day the track immediately adjoining to and just south of the passenger platform at the passenger station c»f said company, in said village, known as the Chicago track, was occupied by a certain westbound passenger train; and that immediately south of said track and next thereto, was another track, known as the Peru track, and that it was necessary to cross the said Chicago track to get from the passenger platform of said station to said Peru track.
    This defendant admits that on said day it was the special duty of said plaintiff to look after the needs for coal, water and otherwise of a certain dining car attached to an eastbound passenger train, which said train at said time was standing on said Peru track.
    This defendant admits that plaintiff stepped on said Chicago track immediately in front of a certain switching engine of the defendant which was proceeding westward thereon a short distance in the rear of the said westbound passenger train, and that said plaintiff was struck by said engine and seriously injured and crippled.
    This defendant denies all and singular the allegations and averments of said petition not herein expressly admitted to be true.
    Further answering, this defendant says that it denies that said plaintiff at the time he stepped upon «aid Chicago track and was struck by said switching engine was exercising care and caution, but on the contrary alleges that said plaintiff was guilty of negligence directly contributing to his said injuries in stepping on said track immediately in front of said approaching engine, of whose approach he was well advised and knew, or might have known by the exercise of ordinary and reasonable care for his own safety, and in failing to keep a proper and reasonable lookout for his safety at the time he stepped upon said track; and ■ defendant alleges that if the plaintiff was injured in consequence of the negligence of any one, such negligence was that of plaintiff himself, and not of this defendant or any of its officers, servants or ebaployes.
    This defendant therefore prays that it may go hence, without day, and recover its costs.
    The plaintiff replied, denying each and every averment of the answer which was not an admission of the averments contained in the petition. A jury was impaneled and sworn and the cause proceeded to trial in the court of common pleas, and the plaintiff offered to introduce evidence in support of his petition, but the defendant, by its counsel, and before the introduction of such evidence, interposed an objection to the reception of any testimony for the reason thát the petition failed to state facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff, which objection the court sustained and refused to allow the introduction of testimony under said petition in support thereof. An exception was taken, an'd the plaintiff not asking to plead further, the defendant moved the court for judgment in its favor upon the pleadings, which motion the court granted, dismissed the cause and rendered judgment against the plaintiff for the eo>sts. On proceedings in error in the circuit court the judgment of the common pleas was reversed and the cause was re^ manded to the court of common pleas for further proceedings and trial. The railroad company prosecutes this proceeding in error to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.

      Smith & Beckwith, for plaintiff in error,
    cited the following authorities:

      State ex rel. v. Crites, 48 Ohio St., 142; Headington v. Neff, 7 Ohio (pt. 1), 229; Trott v. Sarchett, 10 Ohio St., 241; Hillier v. Stewart, 26 Ohio St., 652; 1 Samuel, 119, n. 7; Railway Co. v. Elliott, 28 Ohio St., 340; Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66; Railway Co. v. Crawford, 24 Ohio St., 631; Railway Co. v. Depew, 40 Ohio St., 121; Elliott v. Railway Co., 150 U. S., 245; Dakota, 41 N. W. Rep., 758; Aerkfetz v. Humphreys, 145 U. S., 418; Railway Co. v. Houston, 95 U. S., 697; Wilber v. Wisconsin Central Co., 57 N. W. Rep., 356; Loring v. Railway Co., 31 S. W. Rep. (Mo.), 6; McCadden v. Abbot, 66 N. W. Rep., 694; Tomko v. Railway Co., 37 N. Y. Sup., 144; Gardner v. Railway Co., 95 Mich., 240; Ritzman v. Railway Co., 40 Atl. Rep., 975; Railway Co. v. Pfuelb, 37 Atl. Rep., 1100; Carlston v. Railway Co., 120 Mich., 481; Railway Co. v. Baird, 94 Fed. Rep., 946;
      Railway Co. v. Moseley, 57 Fed. Rep., 921; Bailey Personal Injuries, Secs. 1270 to 1289; Warner v. Railway Co., 168 U. S., 339; King v. Railway Co., 99 Fed. Rep., 251; Railway Co. v. Freeman, 174 U. S., 379.

      John M. KilUtts, for defendant in error,
    cited the following authorities:

      Railroad Co. v. Margrat, 51 Ohio St., 130; Railway Co. v. Erick, 51 Ohio St., 146; Parsons v. Railway Co., 113 N. Y., 355; Snyder v. Railway Co., 60 Ohio St., 487; Railway Co. v. Keary, 3 Ohio St., 201; Berea Stone Co. v. Kraft, 31 Ohio St., 287; Railway Co. v. Lavalley, 36 Ohio St., 221; Railway Co. v. Henderson, 37 Ohio St., 549; Dick v. Railway Co., 38 Ohio St., 389; Railway Co. v. Murphy, 50 Ohio St., 135; Flike v. Railway Co., 53 N. Y., 549; Corcoran v. Holbrook, 59 N. Y., 517; Fuller v. Jewett, 80 N. Y., 46; Slater v. Jewett, 85 N. Y., 61; Crispin v. Barrett, 81 N. Y., 516; Sheehan v. Railway Co., 91 N. Y., 332; Dana v. Railway Co., 92 N. Y., 639; Railroad Co. v. Powers, 74 Illinois, 341; Railway Co. v. Kernochan, 55 Ohio St., 306; Pantzar v. Mining Co., 99 N. Y., 368; Benzing v. Steinway, 101 N. Y., 547; Railroad Co. v. Becker, 67 Ark., 1; s. c., 46 L. R. A., 814; Railway Co. v. Culpepper, 46 S. W. Rep., 922; Railroad Co. v. Bussey, 95 Georgia, 584; Helton v. Railway Co., 97 Alabama, 275; Hall v. Railroad Co., 46 Minnesota, 439; Sobieski v. Railroad Co., 41 Minnesota, 169; Railway Co. v. Crawford, 24 Ohio St., 631; Railway Co. v. Fleming, 30 Ohio St., 480; Railway Co. v. Picksley, 24 Ohio St., 654; Railway Co. v. Depew, 40 Ohio St., 121; Railway Co. v. Rathgeb, 32 Ohio St., 66; Railway Co. v. Whitacre, 35 Ohio St., 627; Beach, Contributory Negligence, Sec. 160, and cases cited; Parsons v. Railway Co., 113 N. Y., 355, 3 L. R. A., 683; Terry v. Jewett, 78 N. Y., 338; Brassell v. Railroad, 84 N. Y., 241; Betts v. Railroad, 191 Pennsylvania, 575, 45 L. R. A., 261; Murphy v. Railroad Co., 88 N. Y., 445; Betts v. Railway Co., 191 Pa., 575; Railway Co. v. Kernochan, 55 Ohio St., 306; Robison v. Gary, 28 Ohio St., 241; Kelley v. Howell, 41 Ohio St., 438; Gardner v. Railway Co., 97 Mich., 240; Wilbur v. Railway Co., 86 Wis., 535; Keefe v. Railway Co., 92 Iowa, 182; McCadden v. Abbot, 92 Wis., 551; Beach Con. Neg., Secs. 178-9; Railway Co. v. Bingham, 29 Ohio St., 364.
   Davis, J.

Whether the plaintiff has, or has not, the right to recover on the facts alleged in his petition, is a question which was fairly raised by the defendant’s objection to the introduction of any testir mony in support of the petition, and by the defendant’s motion for judgment in its favor, upon the pleadings. In seeking for the proper answer to this question, it may be assumed that the defendant was negligent in closely and rapidly following up the westbound train with a switch engine, without signals and without any one preceding it to give warning of its approach, as required by the defendant’s rule; for the inquiry which is raised by the averments of the petition is not so much whether the defendant was negligent, as whether the plaintiff’s own want of ordinary care was the proximate cause of his injury.

There is nothing clearer in the case stated in the petition than that the plaintiff was in a place of safety while he remained on the platform. However great was the negligence of the defendant, it was harmless to the plaintiff while he remained on the platform. 1-Iis act of stepping upon the track immediately in front of the backing engine was the proximate and concurrent cause of his injury. If he did this with the exercise of such care as a person of ordinary prudence would exercise under like circumstances, then he was legally without fault and is entitled to recover. If he stepped upon the track without such care, he brought his injury upon himself and is not entitled to a judgment against the defendant. If he had looked he could have seen the approaching engine, indeed must have seen it, for he avers in his petition that the “westbound train was then in motion westward, and that plaintiff, as soon as the last car thereof had cleared the place on said passenger platform whereat plaintiff stood * * * passed around the immediate rear of said departing train ■* * * and that immediately and without warning of any sort plaintiff was struck by said engine.” Yet he avers, that “he neither heard nor saw said engine or its approach, and was not aware of its proximity until it was upon him, and that it followed said departing west bound passenger train so rapidly, closely, silently and carelessly that he had neither time nor opportunity to escape it.” It is inconceivable that a man of ordinary prudence would under .such circumstances have failed to look or listen before stepping on the track, so as to have both seen and heard the engine which was so closely following the passing train. To an ordinarly prudent man a railroad track is itself a warning to be alert, to use his senses, to look and listen; and an ordinarily prudent man would not blindfold himself, nor stop his ears, when about to exercise his intention of leaving a place of safety on the platform to cross the track in the presence of moving trains. Practically this is just what the plaintiff did do; and he claims that he had the right to close his senses, because he was an employe of the railroad company, and had duties to perform, and was in a hurry. He claims the right to ignore the plainest and most ordinary dictates of prudence, in a full and implicit reliance on the diligence and faithfulness of the other employes of the company in performing their duties. It has been laid down as the law that passengers who are required to cross railroad tracks in getting upon or alighting from trains, have the right, from the nature of their contract, to expect a safe place for that purpose and may govern themselves accordingly; but such immunity has never been conceded to travellers upon a railroad crossing, having equal rights there with the railroad company, and still less to employes in the yards or depots of the company. The latter have no invitation or implied contract, as passengers do have, to perform their duties in a safe place. The very nature of employment about the tracks of a railroad involves notice of the danger of it, and nobody knows better than an employe that other employes are liable to be careless in the observance of rules- and lax in the performance of duty. Therefore he cannot be .permitted to shut his eyes to obvious dangers, and to act with “full reliance” that rules will be observed, and a safe passage kept for him whenever his duties call upon him to cross the tracks. He cannot be excused from the rule that ordinary prudence requires that a person in the full enjoyment of the faculties of seeing and hearing, should use them when about to pass over a railroad track, and that the omission to do so is' contributory negligence when it immediately re-suits in an injury which might have been avoided if the injured person had looked or listened. Railway Co. v. Elliott, 28 Ohio St., 340; Railway Co. v. Crawford, 24 Ohio St., 631. The plaintiff in this case Avas in a place of safety. He was not bound to go upon the track in front of an advancing engine, even in the urgent performance of his work. In doing so without looking or listening, he was clearly guilty of negligence proximately contributory to his injury. The views which we have here expressed are not only implied in previous decisions of this court, but they have been very plainly defined in the following cases: Loring v. Kansas City, etc., Railway Co., 128 Mo., 349; Elliott v. Railway Co., 150 U. S., 245; Aerkfetz v. Humphreys, 145 U. S., 418; Chattanooga, etc., Railway Co. v. Downs, 106 Fed. R., 641.

The case of Snyder v. Railway Company, 60 Ohio St., 487, does not apply. Snyder was on the track, engaged upon a duty which required' him to be there, and could have been seen by the train men in time to have avoided the injury. It was not a/case in which the inference of contributory negligence necessarily arose. In this case, the plaintiff was in a place of safety, and in blind reliance upon his assumption that no engine Avould be following the westbound train and that nobody else would be guilty of negligence, left the safe place and stepped upon the track immediately in front of the backing engine, without looking, and was injured. In this case the inference that the plaintiff Avas himself negligent and that his negligence directly contributed to his injury is unavoidable. If all the material facts are undisputed, and admit of no rational inference but that of negligence, the question becomes a question of law. Rail way Co. v. Crawford, 24 Ohio St., 631; Railway Co. v. Rathgeb, 32 Ohio St., 66. The judgment of the court of common pleas was right, and it follows that the judgment of the circuit court must be reversed and that of the common pleas affirmed.

Btjrket, Spear, and Shauck, JJ., concur.

Minshall, O. J., dissents.


author: Spear, J.

text:
    Theobald et al. v. Fugman et al.

      Heir at law, how designated — Section ig.82, Rev. Stat — Adopted heir not one of issue under section 5915, Rev. Stat. — Charitable bequests, lotthin one year of death of testator — Rot invalid as to adopted heir, when — Legacies not specifically charged upon realty become a lien thereon, when — Law of inheritance — Law of toills.

    1. One, not of the blood of the testator, who has been designated an heir under favor of section 4182, Revised Statutes, is not issue of the body of such testator within the meaning of section 5915, Revised Statutes. Hence bequests in the will to benevolent, religious, educational or charitable purposes, are not rendered invalid, • as respects such heir, by reason of the fact that the will was executed within one year of the decease of the testator.
    i!. Legacies not specifically charged upon real estate will, nevertheless, be held to be charged upon such real estate, and be a lien thereon, - where it appears that the testator, at the time the will was made and at his decease, had no moneys or personal estate of any kind out of which such legacies could be paid, unless a contrary intention is manifest from the whole will.
    (Decided May 7, 1901.)
    Error to the Circuit Court of Hamilton county.
    The controversy had its origin in a suit to quiet title to certain lands situate in the city of Cincinnati brought by the defendants in error, Frank Fugman and Katie Margaretha Fugman against Chrysosto: mus Theobald, as pastor of St. Francis Seraphicus Roman Catholic Church, and others. Issue was made, up by answer and cross-petitions and replies, and a trial had, which resulted in a judgment in favor of the plaintiffs in part and in part in favor of defendants, from which appeals were taken by the several parties to the circuit court. That court made the same findings and rendered the same judgment as that of the court below, and the contestants come here by petition in error on the part of Theobald et al., defendants below, and by cross-petition in error on the part of Frank and Katie Margaretha Fugman. Facts necessary to an understanding of the points decided follow:
    In the year 1891, one Margaretha Fugman filed in the probate court of Hamilton county her written application designating and appointing Frank Fugman and Katie Margaretha Fugman, plaintiffs below, as her heirs at law under section 4182, Revised Statutes, and the court thereupon made and entered its proper order thereon. On April 8,1894, the said Margaretha Fugman died at Cincinnati, seized in fee simple of the real estate the subject of 'the action, and the plaintiffs below were, at the time of the filing ’of the petition, in actual possession of the same. The deceased also left a last will dated February 21, 1894, which was duly admitted to probate and record April 23, 1894. She left no issue of her body. She was possessed, at the time of the making of the will, and at the time of her decease, so far as could be ascertained, of no personal property excepting household goods and furniture, and no moneys or other personal property came into the hands of her executors. The saying of mass for the dead is one of the religious services or ceremonies of the Catholic church. The clauses of the will involved in this litigation are the following:
    Item 1. It is my will that all my debts and funeral expenses be paid.
    Item 2. I give and bequeath to Frank Fugman, for-, merly Held, who has lived in my family and who has had his name changed to Fugman by act of legislature of Ohio, whom I have designated as my heir at law by proceedings in the probate court of Hamilton county. O., in accordance with a mutual understanding between myself and my husband during his lifetime, the sum of one hundred dollars ($100), he having received during the lifetime of my deceased' husband the sum of five hundred dollars ($500), and during the lifetime of myself the sum of two thousand dollars ($2,000).
    Item 3. I give and bequeath to Katie Margaretha Fugman, formerly McGovern, who has lived in my family and has had her name changed to Fugman by act of legislature of Ohio, and whom I have designated as my heir at law by proceedings in the probate court of Hamilton county, Ohio, in accordance with a mutual understanding between myself and my husband during his lifetime, all household goods and furniture left by me.
    Item 4. I also give and bequeath to Katie Margaretha Fugman, formerly McGovern, the sum of three hundred dollars ($300).
    Item 5. I also give and bequeath to Katie Margaretha Fugman, formerly McGovern, the sum of one thousand dollars ($1,000) to hold in trust by my appointed executor until she reaches the age of thirty years.

      Item 6. I give and bequeath to the pastor of St. Francis Seraphicus Roman Catholic Church, at the northwest corner of Liberty and Yine streets, Cincinnati, Ohio, and his successors, the sum of three hundred dollars ($300) for the saying of masses for the repose of my soul and the soul of my deceased husband.
    Item 7. I give and bequeath to the pastor of St. Clement Roman Catholic Church, at St. Bernard, Hamilton county, Ohio, and his successors, the sum of one hundred dollars ($100), for the saying of annual masses on All Souls Day of each year for the repose of my soul and that of my deceased husband.
    Item 8. I give and bequeath to the St. Francis Hospital, on Queen City avenue, Cincinnati, Ohio, the sum of one hundred dollars ($100).
    Item 9. I give and bequeath to Joseph Wiemann, my brother, of the city .and state of New York, the sum of three hundred dollars ($300).
    Item 10. I give and bequeath to my niece, Katie Hollerman (daughter of my brother Joseph), of Jersey City Heights, Jersey City, New Jersey, the sum of three hundred dollars ($300).
    Item 11. I give and bequeath to my nephew, Joseph Wiedenborn (son of my sister Catherine by her first marriage), of the city and state of New York, the sum of one hundred dollars ($100).
    Item 12. I give and bequeath to my nephew, Bernard McGovern (son of my sister Catherine by her second marriage), of the city and state of New York, the sum of one hundred dollars ($100).
    Item 13. I give and bequeath to my niece, Rosa Brauer (daughter of my sister Rosa), of the city and state of New York, the sum of two hundred dollars ($200).

      Item 14. I give and bequeath to widow Katie Burckhardt (daughter of my sister, Rosa Baumart) the sum of’two hundred dollars ($200).
    Item 15. I give and bequeath to my niece, Anna Picker, of Cincinnati, Ohio (daughter of my sister Catherine), the sum'of one hundred dollars ($100).
    Item 16. I give and bequeath to Andrew Fugmann and Philip Fugmann (brothers of my deceased hus band), of Wappinger Falls, New York, each, the sum of three hundred dollars ($300).
    Item 17. I give and bequeath to Christina Singer (sister of my deceased husband), of Cincinnati, Ohio, the sum of two hundred dollars ($200).
    Item 18. I give and bequeath to the Catholic St. John Cemetery, at St. Bernard, Hamilton county, the sum of one hundred dollars ($100), interest of same to be used to keep our graves in good order.
    Item 19. I give and bequeath to the Catholic Church at Burgkindstadt, Koenigreich, Bayern. Landgericht, Weizmann, Ober Franken, Germany, the sum of three hundred dollars ($300) to provide a fund for clothing for poor children at communion.
    ■Item 20. I also give and bequeath to the above-named church as described in Item 19 the sum of two hundred dollars ($200) for Ablas and to pray and say masses on the day of my death and husband for the repose of my soul and soul of deceased husband. The name of said chapel being Fuenf Funden Kapelle.
    Item 21. I give and bequeath to Kate Melzer, of Reisbach Nieder, Bayern, Germany, the sum of one hundred dollars ($100).
    ■ Item 22. All the rest and residue of my estate, wherever situate, and. be the same real, personal or mixed, I give and bequeath unto the pastor of the St. Francis Seraphiciis Roman Catholic Church, or his successors, at- the northwest corner of Liberty and Vine, Cincinnati, Ohio, for the saying of masses on the day of my death and that of my husband.

      Ledyard Lincoln; Henry Baer and Frederick G. Roelker, for plaintiffs in error. .

      Goebel cG Bettinyer and Arnold Speiser, for defendants in error.
   Spear, J.

Two questions arise upon the record: (a) Are the bequests for religious and charitable purposes, and the residuary devise in the will, void as against the rights of Frank and Katie Margaretha Fugman, the will having been executed within one year of the testatrix’s decease? (b) Are the general legacies a lien and charge on the real estate, there being no personal property, and no provision in the will making such legacies a direct charge upon the real- estate?

The elaborate and very learned arguments of the counsel invite an extended discussion of these questions. But, while they are important, they appear to us, in view of previous holdings, not difficult of solution, and may with propriety be treated briefly. Indeed but little more is required than a statement of the conclusions to which the court has arrived.

1. In a word, if Frank Fugman and Katie Margaretha Fugman stand with respect to this property the same as though they were heirs of the body of the testatrix, then the charitable and religious bequests and the residuary devise, are, as to them, void. It Avas the opinion of the courts below, and is contended here, that they do sustain that position. This conclusion, it is claimed, results from a proper construction of sections 4182 and 5915 of the Revised Stat-7}tes. The former, which was enacted April 29, 1854, is as folloAvs:

“Section 4182. [Heir at law; how designated, etc.] A person of sound mind and memory may appear before the probate judge of his county, and in the presence of such judge and two disinterested.persons of his or her acquaintance, file a written declaration, subscribed by him, which declaration shall be attested by such disinterested persons, declaring that, as his or her free and voluntary act, he or she did designate and appoint another, naming and stating the place of residence of such person specifically, to stand toward him or her in the relation of an heir at law in the event of his or her death; thereupon the judge, if satisfied that such declarant is of sound mind and memory, and free from any restraint, shall enter that fact upon his journal, and make a complete record of such proceedings; thenceforward the person thus designated shall be deemed and held to stand.in the same relation, for all purposes, to such declarant as he or she could, if a child born in lawful wedlock; and a certified copy of such record shall be prima facie evidence of the fact stated therein, and conclusive evidence, unless impeached for actual fraud, or undue influence.”

The latter, which was enacted in 1874, is as follows :

“Section 5915. [Any bequest or devise to charitable purposes, if any issue of testator living, void, unless made one year before his death.] • If any testator die leaving issue of his body, or an adopted child, living, or the legal representative of either, and the will of such testator give, devise, or bequeath the estate of such testator, or any part thereof, to any benevolent, religious, educational, oí charitable purpose, or to-this state or (to) any other state or country, or to any county, city, village, or other corporation or association in this or any other state or county, or to any person in trust for any of such purposes, or municipalities, corporations, or associations, whether such trust appears on the face of the instrument making such gift, devise, or bequest or not; such will as to such gift, devise or bequest, shall be invalid unless such will shall have been executed according to law, at least one year prior to the decease of such testator.”

The latter section is an amendment to the wills act. The provisions of statute relating to wills, and authorizing and recognizing the right to make the same, had their origin at the formation of the territory northwest of the river Ohio, and of which the present state of Ohio is a part, in the year 1787, by provision of the ordinance for the government of that territory. The first section of that memorable document (1 Laws of Northwest Territory, 3), provides that, until the governor and judges adopt laws on the subject, estates in the territory may be devised or bequeathed by wills in writing, duly signed, sealed and witnessed. Conformably to the authority given in the ordina.nct the governor and judges of the territory, June 19, 1795 (same vol., 148), at Cincinnati, adopted from the Pennsylvania code and published, a law concerning the probate of wills, written or nuncupative, and providing for the execution, proof, and record of the same. This remained in force until 1805, when, on January 5, of that year, (3 O. L., 173), the first general assembly of the state enacted the first state law on the subject entitled “An act directing the manner of executing, proving and recording wills and codicils,” and recognizing the right of competent persons to-convey tlieir estates by will. With various amendments this statute has been in force ever since. And whether the right to dispose of property by will is regarded as a natural right, inhering in the ownership of property, or as resting wholly on these ancient statutes, it is entirely clear that the right thus created is of a. high order, not to be denied or materially qualified except upon the clearest declaration of law to that effect. To maintain the action of the courts below it must appear that the right to thus dispose of the property is, as applied to the defendants in error, modified so that the right does not exist unless exercised within a period of more than one year prior to the testator’s death. That this modification applies to such heirs as are of the “issue of the body” of the testator, and to adopted children, (that is to those adopted under section 3137 and following, of the Revised Statutes), the language of the section (5915) very clearly establishes. But does it apply to heirs designated under section 4182? The section does not in terms include such heirs. Should the language of section 4182 that such declared heir “shall be deemed and held to stand in the same relation, for all purposes, to such declarant as he could if a child born in lawful wedlock, be held to constitute such child “issue of the body?” That is, in law iu such declared heir “issue of the body?” If not, then the contention in support of the judgments below on this part of the case must fail.

The legal effect of the word “issue” was considered by this court in Phillips v. McConica, 59 Ohio St., 1. In that case one Madden died leaving a will by which he made a bequest to one Wilbert McConica. This legatee died after the making of the will but before the decease of the testator. During his life he (the legatee) adopted, by force of section 3137 and following, one Mary McConica, and the question was whether or not the child so adopted was, under section 5971, Revised Statutes, entitled to inherit. That section provides that Avhen a devise of real or personal estate is made to any child or other relative of the testator, and such child or other relative shall die after the making of the will leaving issue surviving the testator, such issue shall take the estate. The court held: “The Avord ‘issue’ in this section means child of the body, or heir of the body, of the deceased relátive of the testator, and does not include a child adopted by such decedent. The issue in such case must be of the blood of the testator and of the deceased child or other relative by birth. Adoption docs not make the adopted child of the blood of its adopter, nor of the blood of his ancestors. True, section 3140, Revised Statutes, provides that such adopted child ‘shall be to all intents and purposes the child and legal heir of the person so adopting him, or her, entitled to all the rights and privileges, and subject to all the obligations of a child of such person, begotten in laAvful wedlock.’ But this is far from providing that such adopted child shall be the issue of the adopter, and of his blood and of the blood of his ancestors. * * * The statute enables the adopted child to inherit from its adopter, but not through him. The statute does not make the adopted child the heir of the ancestors of its adopter, and the right of the adopted child to inherit cannot be extended beyond Avhere the statute has fixed it.”

It is difficult to perceive any real difference, in legal effect, between the language of the quotation given above, from section 3140, arid the clause declaring the status of designated heirs found in section 4182, and if they arc1 in legal effect the same, then this case is ruled in favor of plaintiffs in error by the Phillips case. We think it is so ruled. See, also, Upson v. Noble, 35 Ohio St., 655; and Quigley v. Mitchell, 41 Ohio St., 375.

The further consideration of the several sections referred to makes this conclusion clear. Both sections 3140 and 4182 were in force, and had been for years, when section 5915 was adopted. The legislature thus found, besides blood relations capable of inheriting from an ancestor, two classes having certain statutory rights of inheritance, viz.: adopted children and designated heirs. With these two conditions before the law makers they chose to expressly include within the effect of section 5915 one of those classes and omit the other. If we apply the well known rule of construction e.rpressio imius est exelusio alterius. the inevitable result is that designated heirs are not within the. statute. Other considerations tend to the same conclusion, but we content ourselves with those stated. We hold that heirs designated under favor of section 4182 are not within the purview of section 5915. It follows that, in holding, as the circuit court did,, that the legacies set forth in items 6, 7, 8, 19, 20 and 22 are invalid under section 5915, Revised Statutes, that court erred.

2. The circuit court held that the. legacies mentioned in items 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 21,are valid money legacies, and were intended to be charged upon the real estate, and are valid liens thereon. This holding is complained of as erroneous by the cross-petition in error of Frank and Katie Margaretha Fugman. A controlling fact bearing upon the effect to be given these items of the will is that the testatrix had, at the time of the making of the will and at her decease, no personal property out of which these legacies could be paid, and this fact, it must be presumed, was known to her. To conclude that she did not intend to charge payment of the legacies upon the real estate, is to conclude that she did not. intend they should be paid at all, and would make the will, in those particulars, an idle ceremony. We think there is no error in the holding of the circuit court in this respect. Clyde v. Simpson, 4 Ohio St., 445; Moore v. Beckwith, 14 Ohio St., 129.

It is further contended by plaintiff in error that a petition to quiet title is not the proper action to determine the questions which arise upon the admitted facts of the case. We do not find it necessary to consider the proposition.

The judgment of the circuit court will be reversed as to its holding respecting items 6, 7, 8, 19, 20 and 22 of the will, and otherwise affirmed.

Reversed.

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

Williams, J., concurs in the second proposition.