text:
    Pratt v. Walworth, William C. Smith and Wilbert L. Smith, Partners Doing Business as the Smith Premier Typewriter Company.

      Plaintiff in error — Joined as defendant in error — Resorts to cross-petition — Must file brief, when — Supreme Court practice.

    Where one who would properly be a plaintiff in error is joined as a defendant in error and seeks by a cross-petition in error to accomplish the same purpose that is sought by the petition in error he is amenable to the rule which requires that his brief must be filed within five months of the filing of the petition in error.
    (Decided January 22, 1901.
    Error to the Circuit Court of Cuyahoga county.
    On motion to reinstate.
    Pratt brought suit in the common pleas court against Walworth, alleging that he and one Payne had been partners in business, and that upon their dissolution Walworth executed to him, Pratt, a written undertaking to indemnify him against all liability on account of the indebtedness of said firm to L. C. and W. L. Smith, partners as the Smith Premier Typewriter Company. That said obligation not having been discharged, the typewriter company recovered a judgment against Payne and Pratt for the amount thereof with interest. And the petition prayed for a judgment against Walworth for the amount of the judgment and costs. The Smiths as such partners filed an answer and cross-petition, but on motion of Walworth it was stricken from the files. Walworth having interposed an answer to Pratt’s petition, a final judgment was on the trial rendered in favor of Walworth. That judgment was affirmed by the circuit court. Pratt filed a petition in error here for the reversal of the judgments of the circuit and common pleas courts, joining the Smiths as defendants in error. They filed what they styled a cross-petition in error praying.for the reversal of the same judgment. No brief having been filed within five months after the filing of the petition in error as required by rule 2 of this court, the case was dismissed for want of preparation. The Smiths now move to reinstate.

      G. A. Neff, for plaintiff in error.

      Gilbert & Hills and Carpenter & Young, for defendants in error.
   By the Court :

The petition in error here filed by L. C. and W. L. Smith is not properly styled a cross-petition in error. There was no judgment below in favor of Pratt. The judgment rendered was entire and wholly in favor of Walworth; and what is styled a cross-petition in error was in fact a petition in error by which the Smiths sought precisely the same remedy that was sought by Pratt, and the relief which they seek is in Pratt’s right. Inasmuch as they relied upon Pratt’s petition in error and upon his counsel to comply with the rule, the case affords no ground for reinstatement.

Motion overruled.

Ale Concur.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    Sloane v. Clauss.

      Defense to action before justice of peace — Involving equitable relief — Including injunction against disposal of family heirlooms — Such equitable relief may be granted by court of competent jurisdiction — Action before justice of peace may be restrained by injunction — Equitable relief — Injunction.
    When a full and adequate defense to an action- for the recovery of money only, before a justice of the peace, involves equitable relief, including an injunction, against the disposal of family relics and heirlooms, the loss of which could not be compensated in damages, the redemption of the property pledged or mortgaged and such discovery and accounting as may be necessary to determine the actual amount due between the parties, such equitable relief may be granted in a separate action in a court of competent jurisdiction and the prosecution of the action at law before the justice of the peace may be restrained by injunction.
    (Decided February 5, 1901.)
    Error to the Superior Court of Cincinnati.
    The defendant, Emil Clauss, brought a suit against the plaintiff in error before a justice of the peace, for the sum of $86.50 and interest thereon alleged to be due on three promissory notes. The plaintiff responded to this by filing the petition in this case in the superior court, and obtained thereby a temporary injunction against the prosecution of the- ease before the justice and against the disposal of property- of the plaintiff held in pawn by Clauss. After an amended petition had been filed, the superior court, on motion by the defendant, dissolved the temporary injunction. The superior court in general term affirmed the judgment dissolving the injunction; and the plaintiff in error now seelcs to.reverse the judgment of the superior court in special and general term.

      In substance the amended petition sets out the following facts: That the plaintiff and the defendant as a pawnbroker had within three years preceding the filing of the petition mutual running accounts, the plaintiff receiving in small amounts, at different times, $166 and pawning and pledging with defendant, at different times various articles of wearing apparel and jewelry; and that to the best of her knowledge she had repaid him more than $113, interest and principal, the interest being at unlawful rates. That plaintiff pawned to defendant a sealskin coat worth $250, and paid him $50 as the same became due as he claimed; but when she failed for two weeks to make the last regular payment demanded by him, he refused to accept when tendered, the amount owing by her in redemption of the sealskin coat, and as the plaintiff is informed sold the coat and converted all of the proceeds to his own use. That she pawned with defendant a diamond stud worth $100 which she afterwards redeemed, a gold ring worth $10, a watch worth $150, a watch worth $30, a gift from her father, all of which are in his possession. As a further security for said loans she mortgaged to defendant a folding bed worth $15, a combination secretary worth $50, but which is an heirloom in plaintiff’s family, two vases worth $150, with decorations by plaintiff’s deceased sister, and various other articles of the value of $235. That the defendant threatens to sell and dispose of the mortgaged articles together with the pawned articles, which if done would be an irreparable loss to her, the said articles being her necessary household furniture and wearing apparel, and some of them being priceless to her, for the loss of which she could not be compensated in damages. That on the second day of May, 1899, plaintiff tendered to defendant all the money he had before that time claimed .on said mortgage, which he refused to receive, and that on the following day he instituted the suit before the justice of the peace, and plaintiff avers that the notes for which plaintiff is sued are forgeries, and that she is unable to state the true condition of accounts existing between her and the defendant, and an account will be necessary to ascertain the same. That, instigated by the defendant as plaintiff believes and charges, two individuals have sought entrance into her home, being unable to give warrant or authority therefor when demanded, charging plaintiff with removal of what he termed “Clauss’ furniture.” Tftat defendant’s license as a pawnbroker has been revoked because of illegal and dishonest practices, that he is not the owner of realty, is taxed on $600 personalty and that he is a married man.
    The prayer of the petition is for an accounting; for an injunction against the prosecution of the action before the justice of the peace; for cancellation of the notes and the chattel mortgage; that plaintiff may be allowed to redeem all the property so pawned and mortgaged; that defendant be restrained from selling or disposing of the pawns now held by him; and that upon the accounting the plaintiff recover of the defendant the amount which may be found to be due her.

      David Stuart Hounshell, for plaintiff in error.
    Maxwell on Code Pleading, p. 501; Jones on Pledges, Sec. 559; Brown v. Runals, 14 Wis., 755; White M. R. R. v. Iron Company, 50 N. H., 57; Merrill v. Houghton, 51 N. H., 61 Hart v. Peneyck, 2 Johns Ch., 62; Blodgett v. Blodgett, 48 Vermont, 32; Con Ingham’s Appeal, 57 Penn. St., 474; Kent v. Westbrook, 1 Ves. Sr., 278; Flanders v. Chamberlain, 24 Mich., 306; Suber v. McClintock, 10 W. Va., 236; Pomeroy’s Eq. Jurisp., Secs. 1230-1231; Story’s Eq., Jurisp., Sec. 1032; Story on Bailments, 9 Ed., Sec. 345; Ibid, Sec. 287; also Secs. 308 to 311 inclusive, and notes to Sec. 308; Jones v. Smith, 2 Ves. Jr., 378; Cortelyou v. Laming, 2 Cai. Cas. Err., 200; Sec. 245, Story.
    As to equity jurisdiction the learned author in Minor’s Institutes, Vol. 4, part 2, page 1219, makes seven divisions — the first, the fourth, the sixth and the seventh are applicable to the case at bar, and of those in their order:
    “Wherever the matter of account stands upon equitable claims, or has equitable trusts attached to it. 1 Story’s Eq., Sec. 454.”
    Note — For example: In the case of Taylor v. Benham, 46 U. S. (5 How.), 232, it is said:
    * “Every person who receives money to be paid to another, or to be applied to a particular purpose, to which he does not apply it, is a trustee, and may be sued either at law for money had and received, or in equity as a trustee, for a breach of trust.’ ” Keaton v. Greenwood, 8 Ga., 97.
    Whenever the liability is that of a bailiff, receiver, factor or agent to his principal. 3 Bl. Com., 437; 1 Story’s Eq., 453; Berkshire v. Coons, 4 Leigh, 223.
    Wherever in matters of accounts growing out of privity of contract, there are mutual demands, and a fortiori when the accounts are intricate. 2 Story Eq., 459; Hunter v. Spotswood, 1 Wash., 146; Smith v. Marks, 2 Rand., 449; Hickman v. Stout, 2 Leigh, 6.
    Where the accounts are all on one side, but a discovery is sought, and is material to the relief. 1 Stor. Eq., See. 459; Lyons v. Miller, 6 Grat., 427; Sturtevant v. Good, 5 Leigh, 83; Blodgett v. Foster, 114 Mich., 688; Appeal of Electric Brush Co., 114 Pa. St., 374; Society of Shakers v. Watson, 37 U. S. App., 141; Johnson v. Price, 172 Pa. St., 427; 3 Pomeroy’s Eq. Jur., 2d Ed., Sec. 1421; Mitchell v. Manf. Co., 2d Stor., 648; the federal judiciary act of 1789.
    Under this provision the test of equitable jurisdiction is that which existed when the act was passed, unless subsequently changed by act of congress. Beach’s Mod. Eq. Pr., See. 12; McConihay v. Wright, 121 U. S., 201; Gould and Tucker’s Notes to Sec. 723, U. S. Rev. Stat., p. 201.
    This enactment of congress is merely declaratory of the existing law. Boyce v. Grundy, 28 U. S. (3d Peters), 210; Bispham’s Principles of Equity, 4th Ed., 21, and note.
    The language, “plain, adequate and complete remedy at law,” has been held to refer to the common law, and not to the statutes of the states. Gordon v. Howbert, 2 Sumner, 401; Dodge v. Woolsey, 59 U. S. (18 How.), 331; Wright v. Ellison, 68 U. S. (1 Wall.), 16; Grand Shute v. Winegar, 82 U. S. (15 Wall.), 355; Hungerford v. Sigerson, 61 U. S. (20 How.), 156; Oelrichs v. Spain, 82 U. S. (15 Wall.), 211; Garrison v. Memphis Ins. Co., 60 U. S. (19 How.), 312; Field’s Fed. Courts, 433, Note; Book 4, part 1, page 346, Minor’s Institutes; 3d Bl. Com., 163; Adams Eq., 222; 1 Stor. Eq., Sec. 442 et seq.; 1 Pomeroy’s Equity Jurisprudence, Sec. 157.
    A bill in equity may be sustained solely on the ground that it is the most convenient remedy. Conimaugh Gas Co. v. Jackson Co., 40 Atl. R., 1,000; 186 Pa. St., 443.

      A complainant who seeks discovery, and also to establish a trust, has not an adequate remedy at law Shainwald v. Davids, 69 Fed., 687; 75 Mich., 274; Rowland v. Entrekin, 27 Ohio St., 47; Fleming v. Kerkendall, 31 Ohio St., 568; Alsdorf v. Reed, 45 Ohio St., 653; Black v. Boyd, 50 Ohio St., 46; Bricker v. Elliott, 55 Ohio St., 577; Grapes v. Barbour, 58 Ohio St., 669; Smith v. National Bank, 60 U. S. App., 431.
    In the case at bar, is clear, therefore, that the equitable is the only complete adequate remedy; that it avoids circtiity of action; that it is the more speedv remedy — indeed, the only complete and satisfactory remedy.

      Malcolm G. Davies, for defendant in error.
    The only question is: Has the plaintiff in error a right to an injunction to prevent the defendant in error from prosecuting his action at law?
    We hold that she has a complete and adequate remedy at law. That the defendant, in an action at law, has no right to an injunction unless it is clearly manifest that justice can not be obtained otherwise.
    The plaintiff in error could have defended in the ae tion against her and set up whatever claim she had and if not satisfied with the judgment of the court, she could have appealed to the common pleas.
    The record shows that plaintiff in error does not attempt to get her rights in the case in which she was sued. Her counsel cites the court to numerous cases to .the effect that a suit in equity wrould iie, but he has no case cited that shows that a court of equity has the right to take a cause from a court of law or to enjoin proceeding in a court of law, where there was a complete and adequate remedy in that court. Story, Sec. No. 896, p. 83, Eq. Jur.

      Proceeding at law not enjoined when defense may be made at law, nor when appeal lies. High on Injunctions, Sec. 89.
    General doctrine denying relief by injunction against action at law where defense can be made. High on Injunctions, Sec. 93.
    The principal case tried in this court governing the contention of plaintiff in error is Chapman v. Lee. 45 Ohio St., 356.
   Davis, J.

The defendant in error calls to his aid the general rule that an injunction will not be granted against an action at law, where full defense may be made in such action. High on Injunctions, Secs. 89, 93. This familiar rule, however, is general but not universal; and we think that the case at bar comes within a distinctly marked exception, namely, where a pledge is the subject of controversy and it is a family relic, ornament, or heirloom having a special value to the owner, and for the loss of which damages in money would not be an adequate compensation. In such case a tender having been made of the amount previously claimed to be due, and refused, as alleged in this case, and it appearing that an accounting may be necessary to determine the state of running accounts between the parties; and that the sale or disposal of the pawned articles either by execution or otherwise, may cause an irreparable loss to the defendant in the action at law, no good reason appears why equitable relief should not be afforded. Under our code of civil procedure a provisional injunction could be had in an action for the recoyery of money only, in the court of common pleas or superior court of Cincinnati, and a full and adequate defense could be there made without resorting to a separate action.

But the case here is different. The action is in a court of limited jurisdiction. A justice of the peace is not invested with the power to enforce equitable rights or to consider equitable defenses; so that the matters of account, fraud and oppression, irreparable injury and redemption of pledged and mortgaged property alleged here could not lawfully be heard and determined in the justice’s court. If adequate relief could be had by appeal from the judgment of the justice of the peace, there might,, perhaps, "be no ground for this proceeding; but during the time which is required to transplant the case from the justice’s court into the court of common pleas the apprehended loss or injury may take place; because on the theory of the defendant in error, equity cannot interfere. By the necessity of the case, then, there could not be a full and adequate protection of the defendant’s right before the justice of the peace; and the defendant had the right to resort to a court of general jurisdiction for redemption of the specific property pledged and mortgaged, for such discovery and accounting as may be necessary to determine the actual amount due; and for such restraining order, or orders, as the nature of the case might require.

The judgments of the superior court in general term and special term are

Reversed,

Shauck, C. J., Williams, Bukket and Speae, JJ., concur.


author: .Spear, J.

text:
    The Wabash Railroad Company v. Fox, Adm'x.

      Ohio courts may have jurisdiction over case of wrongful killing by railway corporation in another state, when — Section 6184a, Rev. Stat. — Enforcement of laws of one state by courts of another — Statutory rule as to use of evidence in such cases —Comity of laws.

    1. In order to give the courts of Ohio jurisdiction to adjudge a cause brought by an administrator of one who is alleged to have been in the employ of a railroad corporation and killed by its negligence in another state, it must, by force of section 6134a, Revised Statutes, be shown that such state allows the enforcement in its courts of the statute of this state of like character. It is not sufficient to show merely that the courts of that state entertain actions to recover for wrongful killing in another state.
    2. "Where an act of the legislature of a sister state gives the personal representative of one who has been killed by the wrongful act of another a cause of action to recover in all cases in which the deceased could have maintained an action had he lived, and a subsequent act by its provisions regulates the liability of corporations other than municipal for personal injuries to persons employed by them, fixes the rules of evidence which shall govern in such cases, and provides that the decisions or statutes of other states shall not be pleaded or proven as a defense, both acts are to be treated as in pari materia in determining whether, under section 6134a, Ohio Revised Statutes, the laws of such sister state allow the enforcement in its courts of the statute of Ohio of like character.
    3. The enforcement by the courts of such sister state of the acts relating to the liability of corporations for injuries received by employes of such corporations through their negligence, mentioned in the last preceding paragraph, is not the equivalent of the enforcement of the statute of this state of like character.
    4. The courts of Ohio have not jurisdiction to hear and determine a suit brought by the administrator of an employe of a railroad company to recover for the wrongful death oc curring from the negligence of the company in Indiana.
    (Decided February 5, 1901.)

      Error to the Circuit Court of Lucas county.
    The action below was brought in the court ¡of common pleas of Lucas by Mary J. Fox, as administratrix of Jesse F. M. Fox, deceased, against The Wabash Railroad Company, to recover for the death of the decedent alleged to have been occasioned by the negligence of the defendant Company. The accident occurred in the yard of the Company’s road at the city of Fort Wayne, in the state of Indiana. Upon trial a verdict and judgment were recovered in that court, which judgment was affirmed by the circuit court. Error is here prosecuted by the company to both judgments.

      Smith & Beckwith, for plaintiff in error.
    We submit:—
    First: That under the laws of Indiana and Ohio applicable to the case in hand this action cannot be maintained.
    We submit that the court erred in holding that the law of Indiana can be enforced in Ohio.
    Section 6134a, Rev. Stat. Ohio, was enacted in 1894. 91 O. L., 408. Prior to the enactment of this statute, it was uniformly held by our Supreme Court that the provisions of Sec. 6134, giving the action for wrongfully causing death, do not extend to cases where the wrongful act causing death was committed outside of this state, and that the action would not lie in this state in favor of an administrator appointed here on a cause of action arising under a similar statute of another state. Woodard v. R. R. Co. 10 Ohio St., 121; Hover v. Pa. Co., 25 Ohio St., 667; Brooks, Admr., v. Pa. Co., 53 Ohio St., 655.
    The question in this' case is, therefore, whether Indiana is a state which allows the enforcement in its courts “of the statute of this state of like character,” i. e., the statute giving an action for wrongfully causing death. This statute is Sec. 6134, Rev. Stat., and provides that the action for wrongfully causing death shall exist where the party would have been entitled to maintain an action and recover damages for the injury in case death had not ensued, and it is therefore obvious that the test for determining whether the action for wrongfully causing death can be maintained is, — would there have been a liability had death not ensued? This necessarily makes the rules of law determining the liability part and parcel of the act for wrongfully causing death.
    The Indiana act providing for actions for wrongfully causing death is correctly pleaded in the petition in this ease, and is substantially similar to the Ohio statute. But the rules of law determining whether a liability would have existed had death not ensued are contained in the Employers’ Liability Act of Indiana, upon which plaintiff relies, and which is necessarily a part of the “death statute” in that state. For there as here, the action for wrongfully causing death exists only in cases where a liability would have existed had death not ensued.
    If section four of the Indiana Employer’s Liability Act, means anything, it certainly means that in all cases where a citizen of Indiana, injured in another state, brings suit in Indiana against the offending railroad company, the rules for determining whether a liability exists or not are the rules prescribed by the statute itself, and that the rules of law ■ of the state where the accident occurred are to be entirely ignored by the courts of Indiana. In other words, it applies Indiana law instead of Ohio law in determining whether a liability exists or not. It is true that prior to the enactment of this statute the Supreme Court of Indiana held that it would enforce the statute of Ohio for wrongfully causing death, but it has not held since this Employers’ Liability Act was passed that it would apply the laws, whether statutory or judicial, of another state in determining whether a liability existed or not. To enforce the Ohio statute for wrongfully causing death and at the same time apply the Indiana law for the purpose of determining whether a liability would have existed if death had not ensued, is certainly not enforcing Ohio law at all.
    The vital thing about the statute giving an action for wrongfully causing death is the question of Low it shall be determined whether a liability would have existed if death had not ensued. Unless Indiana is willing to enforce the rules of law obtaining in Ohio for determining this, question, it is not enforcing the Ohio “death statute” at all.

      E. L. Twing and Marshall & Fraser, for defendant in error.
    Will the courts of Ohio entertain an action for death occurring in the state of Indiana?
    The great weight of authority now supports the view that if such an action is authorized by the law of the place where death occurred, then the courts of other states will entertain the action. Or in other words, that if the cause of action exists at the place where the accident occurs, then it is transitory in its nature and may be brought in any state where service can be had. Sherman and Eedfield on Negligence, Section 132 and cases cited; Burns v. Railway Co., 113 Ind., 169; Essenwine v. Pa. Co., 11 Dec. (Re.) 277, 25 Bull., 396; Higgins v. Railway Co., 155 Mass., 176; Dennick v. Railway Co., 103 U. S., 11; Texas & P. R. R. Co., v. Cox, 145 U. S., 593; Northern Pacific R. Co. v. Babcock, 154 U. S., 190; Weaver v. Railway Co., 21 D. C., 499; Railway Co. v. Nix, 68 Ga., 572; Railway Co. v. Swint, 73 Ga., 651; Shedd v. Moran, 10 Brad. (Ill.) 618; Hanna v. Railway Co., 41 Ill. App., 116; Railway Co. v. Rouse, 178 Ill., 132 (Construing this Indiana act.); Railway Co. v. Hosea, 152 Ind., 412; Morris v. Railway Co., 65 Iowa, 727; Bruce v. Railway Co., 83 Ky., 174; Railway Co. v. Graham, 98 Ky., 688; Railway Co. v. Boyle, 60 Miss., 977; Railway Co. v. Crudup, 63 Miss., 291; Railway Co. v. Lewis, 24 Neb., 848; Wooden v. Railway Co., 125 N. Y., 10; Knight v. Railway Co., 108 Pa. St., 250; Railway Co. v. Ayers, 16 Lea (Tenn.), 725; McLeod v. Railway Co., 58 Vt., 727; Nelson v. Railway Co., 88 Va., 971.
    We say, therefore, that irrespective of the statute the action is and should be maintainable in Ohio, according to the great weight of authority.
    The plaintiff in error claims that the Ohio courts will not entertain this action for the reason that under Sec. 7086, Indiana Rev. Stat., the courts of Indiana would not enforce our death statute.
    The wording of the statute substantially is that when suit is brought by a person, a citizen of Indiana, who is injured while in the employ of company, then in the suit for such injury the laws of Indiana, the place where the contract was made, shall govern whenever there is any conflict between those laws and the laws of the state where the injury occurred.
    This principle, is recognized at the present time by the laws of Ohio and other states. Pittsburg & Lake Erie R. R. Co. v. Blair, 5 C. D., 366. 11 C. C., 579, (affirmed by Supreme Court January 12,1897.) Alex

      ander v. Pa. Co., 48 Ohio St., 623; Railway Co. v. Ranney, 37 Ohio St., 665; Ott v. Railway Co., 10 C.D., 85, 18 C. C., 402; Knowlton v. Railway Co., 19 Ohio St., 260; Railway Co., v. Jackson, 31 L. R. A., 276.
    Actions for causing death are clearly controlled by the laws in force in the state where the accident occurred. They are not actions for breach of contract. Burns v. Railway Co., 113 Ind., 174; Railway Co. v. McMullen, 117 Ind., 439.
    We submit further that even admitting that the statute was passed for the express purpose of affecting the liability of railroad companies where they were sought to be held liable for the death of a citizen of Indiana which occurred outside of the state, then that fact would not prevent the Ohio courts from entertaining an action for death caused in Indiana.
    The substance of our statute, Sec. 6134a, as we read it, is that whenever a foreign state entertains an action for death occurring in our state, then the courts of Ohio will entertain like actions for death caused in such other state.
    We believe that another sufficient and conclusive answer to the contention of the plaintiff in error in this case upon this point is that if a citizen of Ohio in the employ of the Wabash Railroad Company, was killed in Indiana under the same circumstances as the decedent in this case, the Indiana courts would entertain the action and enforce the liability, precisely as would the Ohio courts. There is absolutely ■no difference between the laws of the two states as applied to this case.
    We must insist at the outset of the discussion of this question in all of its branches, that under Sec. 6710, Rev. Stat., and the decisions of this court, that the question the court is now asked to consider, to-wit: passing upon the weight of the testimony, is one that cannot be raised in this court. Woolley v. Staley, 39 Ohio St., 354.
   .Spear, J.

A question at the threshold of the case is raised respecting the jurisdiction of the Ohio court to entertain the action, objection being made that, by force of the statutes of this state and of Indiana, the courts of this state may not entertain an action by the personal representative of an employe against a rairoad company where the injury arose from the negligence of the company in the latter state and death has ensued. It being conceded that the right of action rests wholly upon statutory law, not being authorized by the common law, consideration of the question involved here requires an examination of the statutes of the two states bearing upon the subject.

Section 285 of the Revised Statutes of the state of Indiana reads as follows:

“Section 285. [Action for Death of Another, Limitation.] — When the death of one is caused by the wrongful act or omission of another, the personal rep-» resentatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. This action must be commenced within two years. The damages cannot exceed ten thousand dollars and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.”

The title of the Indiana act of March 4, 1893, known as the Employers’ Liability Act, is as follows:

“An act regulating liability of railroads and other corporations, except municipal, for personal injury to persons employed by them, fixing the rules of evidence which shall govern in such cases, and providing that the decisions or statutes of other states shall not be pleaded or proven as a defense in this state: Provided, further, that its provisions shall not apply to any injuries sustained before it takes effect, nor in any manner any suits or legal proceedings pending at the time it takes effect, and declaring an emergency. (Approved March 4, 1893.)”

Then follow provisions specifying the conditions under which the employe may recover of the company for injuries occasioned by its negligence, and among others where the injury is caused by the negligence of any person in the service of the company who has charge of a locomotive.

Sections three and four of the act are as follows:

“Sec. 3. The damages recoverable under this act, shall be commensurate with the injury sustained, unless death results from such injury, when, in sucli case, the action shall survive and be governed in all respects by the law now in force as to such actions: Provided, that where any" such person recovers a judgment against a railroad or other corporation, and such corporation takes an appeal, and, pending such appeal, the injured person dies, and the judgment rendered in the court below be thereafter reversed, the right of action of such person shall survive to his legal representative.
“Sec. 4. In case any railroad corporation which owns or operates a line extending into or through the state of Indiana and into or through another or other states, and a person in the employ of such corporation, a citizen of this state, shall be injured as provided in‘this act, in any other staté where such railroad is owned or operated, and a suit for such injury shall be brought in any of the courts of this state, it shall not be competent for such corporation to plead or prove the decisions or statutes of the state, where such person shall have been injured as a defense to the action brought in this state.”

Section 6134, Ohio Revised Statutes, is substantially similar to Section 285 of the Indiana statute, quoted above, and for that reason need not be reproduced here.

It is established law in Ohio, however, that section 6134 does not extend to wrongful acts causing death outside of this state, and that prior to the passage of section 6134a, Revised Statutes, no action by an administrator for such cause could be maintained in our courts. That section, which was enacted May 21, 1894, reads'as follows: “6134a. [Right by statute of other state, territory or country enforced.] Whenever death has been or may be caused by a wrongful act, neglect or default in another state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory, or foreign country, such right of action may be enforced in this state in all cases where such other state, territory or foreign country allows the enforcement in its courts of the statute of this state of a like character; but in no case shall the damages exceed the amount authorized to be recovered for a wrongful act or default in this state, causing death. Every action brought under this act where the death has already occurred shall be commenced within one year from the passage of this act; and in all other cases, within the time prescribed for the commencement of such action by the statute of such other state, territory or foreign country.”

It is apparent from this section that a condition to the right to maintain such action in this state, where the injury occurred in another state, is that such state allows the enforcement of the statute of this state of like character. That is, if by the laws of such foreign state our statute will be enforced in an action based upon alleged death from negligence occurring in Ohio, then a party may maintain an action of like character here where injury was received in such other state; otherwise not.

It is apparent, also, that if section 4 of the act of Indiana heretofore quoted (the act known as the Employers’ Liability Act), applies to this case, then the statute of Ohio would not be given force in Indiana, for the specific provision is that in a suit brought by a citizen of that state, an employe of a railroad company operating a line in that and another state, to. recover for an injury inflicted in such other state, the corporation shall not plead or prove the decisions or statutes of such state as a defense. No such limitation upon the right of defense is to be found in any statute of Ohio.

It is insisted that this section does not apply because it relates to suits for injury by the employe only, and not to suits for death by a personal representative, as the case at bar. That is, it applies only to a case of violation of contract by the employer, and hence is simply declaratory of the common law that the law of the place where the contract is made governs. But, it is further insisted, if this were not so, that the wording of our Ohio statute does not prevent our courts from taking jurisdiction because the. substance of it is that whenever a foreign state will entertain an action for death occurring in our state, then, by the clear provisions of section 6134a, the courts of our state will entertain like actions for death caused in such other state. And, inasmuch as section 285 of the Indiana statute and section 6134 of our statute, each providing for a case of death, are similar, it is clear that the courts of that state would entertain an action for death occurring in this state.

It is difficult to dissever these Indiana statutes. They both relate to a recovery for an injury to an employe arising from the negligence of the company. That which gives a right of action to the representative where the employe does not survive, gives such right under circumstances which would have given the employe such right had he survived, and in no other. That the right of the representative to maintain the action is predicated upon the right which the injured person would have had, and is no broader, is distinctly held in Helman v. The P. C. C. & St. L. Ry. Co., 58 Ohio St., 400. Hence, in order to determine whether the representative would have such right of action against the company, recourse must be had to the Employers’ Liability Act to determine what conditions must obtain before the employe could maintain an action, had he survived. The two, therefore, are in pari materia; they go together. This seems to have been the intention of the framers of the later act as expressed in section 3 by the provisions that the right of action, when death results, shall survive to the representative, and shall be governed in all respects by the law in force as to such actions which, of course, includes section 285. And, taking both the acts together, it seems plain that the test of liability against the company which the Indiana courts will recognize, is found in the Indiana statute, and not in any Ohio statute or decision. In other words, Indiana law prevails; Ohio law is not considered. If then the later act is to be regarded at all in arriving at an understanding of the law of Indiana in a case of death, what warrant is there for excluding section 4 from consideration? The “suit for such injury,” specified in the section, must mean any suit for such injury. It may be brought by the employe if he be alive, but if not, then his representative, under favor of section 285, may maintain the action; and if prosecuted by the injured employe to judgment, and that be reversed, and he die, then the action will survive to his legal representative. If the claim of defendant in error be correct, and this section is to be excluded from consideration in case death has ensued, let us see how it would result practically. A suit is brought direct by an employe injured in another state through which the inter-state line passes, and as to his cause of aetion the section will prevent the company from setting up any decision or statute of the state where the accident occurred as a defense. Another suit for an injury to another employe, who by the same negligence was killed, is brought by his representative, and, as to such cause of action no inhibition as to defenses exists. A similar condition would arise in case of a trial of a cause revived in the name of the representative after judgment in favor of the employe had been reversed. It seems not reasonable to conclude that the law-makers of our sister state intended any such discrimination as between one who is merely injured, and the widow and next of kin of one who was killed outright.

Nor is there ground for saying that our statute, section 6134a, is satisfied by the mere entertaining by the courts of another state of a cause of action for death occurring in our state. Such is not the language of the law. It is not the entertaining of the suit that is stipulated for, but enforcement of our statute of like character. This means that it is the law of Ohio which the sister state will enforce; not necessarily the law of that state, for where there is an essentiál difference as has already been pointed out, it cannot be said that by enforcing their own law the court of the other state is enforcing our statute. Our statute rests upon the ground of reciprocity which is based upon the idea of comity, and the very essence of reciprocity implies that each state, as to the subject matter, shall have and enforce indentical laws; not simply provisions which may be in many respects similar, but in all essential particulars the same. It seems to us clear that the laws of Indiana, while they permit the bringing of actions in the courts of that state to recover for death occurring in another state, require the determination of the rights of the parties by the provisions of their own laws, but do not enforce the laws of the state where the injury was committed.

Attention is called by counsel for defendant in error to the case of The P. C. C. & St. L. Ry. Co. v. Hosea, 152 Ind., 412. We are unable to see that the decision aids their contention. It is true the court sustained an action against the company for death occurring in Kentucky, but it is equally true that the court was guided by the law of Indiana and enforced that law. Indeed the reference to the subject of Kentucky law in the last paragraph of the opinion indicates that as the counsel had not argued in their brief whether the complaint should be determined by the laws of Kentucky or of Indiana they had waived it.

But if the later act is to be wholly excluded from consideration, a result would seem to follow entirely fatal to the action, although on a different ground. The negligence complained of is that of a locomotive engineer. The deceased was a brakeman of another train. By the law of Indiana as it stood before the passage of the Employers’ Liability Act, the engineer was a fellow-servant with the brakeman; hence there would be no liability on the company for his acts. Spencer v. The Railway Co., 130 Ind., 181. So it would appear that plaintiff below was compelled to rely upon the act referred to as a part of her cause of action, and it was relied upon, for we find parts of the act set out in the petition.

The question of jurisdiction was properly made at the trial. We are of opinion that, under the laws of the two states applicable to the cause of action of the plaintiff below, that action cannot be maintained in an Ohio court, and that the courts below erred in holding otherwise. This conclusion renders it unnecessary to determine the other assignments of error presented by the record and argued by counsel. The judgments below will be reversed, and, inasmuch as the court of common pleas had not jurisdiction to entertain the action, final judgment of dismissal will be entered here.

Reversed.

Shauck, C. J,, Burket and Davis, 33., concur.


author: Burket, J.

text:
    The Standard Home and Savings Association Company et al. v. Jones et al.

      Jurisdiction of action to set aside deed of' assignment for benefit of creditors — Belongs to court of common pleas and not probat-e court — Action by stockholders against building and loan association and its assignee — Cannot, be settled by association and its assignee unless stockholders consent, when — Jurisdiction—Assignment for creditors.

    1. The court of common pleas has jurisdiction of an action to set aside or vacate a deed of assignment for benefit of creditors, for fraud or other good cause, and the probate court has no jurisdiction of such action.
    2. When an action is brought by stockholders in a building and loan association against such association and its assignee for the benefit of creditors, to set aside the deed of assignment for fraud or want of power to make the deed, a settlement between the association and its assignee satisfactory to both, will not be a settlement as against the complaining stockholders, unless they consent to the same.
    (Decided February 5, 1901.)
    Error to the Circuit Court of Belmont county.
    On December 12, 1897, Fred B. Jones and three others filed a petition in the court of common pleas, against the above named plaintiff in error, and one Henry G. Pratt, and a demurrer to said petition having been sustained, said plaintiffs below, on leave, filed an amended petition, which is as follows, omitting caption and signatures:
    “Plaintiffs say that the Standard Home and Savings Association Company is a corporation, organized under the laws of the state of Ohio, to do business as a building and loan association in said state of Ohio, and its residence and place of doing business is at Martins Ferry, Belmont county, Ohio.

      “Said association began business as a building association in the year 1888, and has received dues, made loans and continued to do business as such association until October 29, 1897.
    “The plaintiffs' are all stockholders of said association, Fred. B. Jones owning twenty shares, David H. Souders five shares, Alexander Davidson six shares and Hiram Frazier five shares of stock therein, each share being of face value of $100.00
    “On the 29th day of October, 1897, a pretended assignment for the benefit of creditors was made of its property and assets to H. G. Pratt, and the same carried into execution by an order of a board of directors, who without notice to or the knowledge of the stockholders of said association, had, before the making of such deed of assignment, and in contemplation thereof, withdrawn or transferred all stock which each of them had owned when elected to said office.
    “The persons claiming to act as directors at the time of the ordering and executing of said assignment were J. P. Crowell, James A. Bayless, Jesse Selby, L. W. Inglebright, William Beall, Jeptha Reel and J. F. Blumenburg. For some time prior to said assignment the said James A. Bayless and J. P. Crowell had owned no stock in said association. That in contemplation of said assignment and immediately prior thereto. Jesse Selby and William Beall had sold all their stock. That immediately before the said assignment and in contemplation thereof all the other members of said board of directors, with the exception of Blumenburg, withdrew and transferred all unawarded stock held by them or secured adjustment of all loans made to them by said association, receiving in such withdrawals and adjustments the face value of all monies paid in by them. That all stock transferred by any of said directors was transferred to other members of said board and by them used in the adjustment of their loans, except a portion of the stock of said Jesse Selby, which was by him transferred to his wife, and said alleged board of directors caused a mortgage to be executed to her, to secure the payment of the value thereof, to-wit, $400.00 to her.
    “At the meeting at which said assignment was ordered to be executed, there were present and voting the said Japaes A. Bayless, J. P. Crowell, Jesse Selby, L. W. Inglebright-and William Beall. The vote on the motion to assign was yeas, Bayless, Inglebright and Beall; nays, Crowell.
    “Plaintiffs are informed and therefore allege it to be a fact that said meeting of said board of directors was a special meeting, and that no notice thereof, setting forth the time and place of meeting and the purpose for which the meeting was called was served upon said Blumenburg and Reel or for that matter on any of the members of said board of directors.
    “The said board of directors drew their money out of said association out of their order and in advance of other stockholders of said association, who had long before given notice of withdrawal under the rules, constitution and by-laws of said association. Said acts and official misconduct on the part of said board of directors was prompted and brought on by their belief that the capital and assets of said association had so far become impaired that upon winding up of its affairs by a proper proceeding, stockholders would not receive dollar for dollar of their contributions, but on the contrary, there would be considerable loss to stockholders; that said board of directors, acting under said belief, drew out what they had therein and made said adjustments aforesaid in order to prefer themselves and to avoid their liability and to escape sharing in the expected loss which they believed would fall upon all members of said association.
    “That the said H. G. Pratt, now assignee under tíre pretended deed of assignment, was, at the time of the execution of said assignment, and for a long time prior thereto, had been, the regularly elected attorney of said association, and legal adviser of said board of directors; that he advised, aided and abetted the said board of directors in their said misconduct, and that he knew of their withdrawal of stock, and adjustment of loans from said association, and the purpose for which the same had been effected as above set forth, and had advised them in regard thereto. That he had counseled and advised the said board of directors to order the execution of said deed of assignment to himself knowing that at the time of said deed of assignment was ordered executed, as well as when it was actually executed, each of said directors had ceased to-be members of said association. That said H. G. Pratt beside assisting said directors in withdrawing their stock and adjusting their loans, planned or assisted in planning said assignment; that before said meeting at which said assignment was ordered and before the same had been considered by said board of directors, he had prepared the deed of assignment and all other papers necessary to carry out said assignment.
    “Said plaintiffs, as well as the stockholders generally, had no knowledge or notice that said assignment was -contemplated, nor did they before its execution, „nor have they since, consented to said assignment.

      “Plaintiffs further say that said assignment of the property and assets of said association to the said H. G. Pratt was unnecessary, unwarranted and uncalled for, and that said association was not at the time of assignment in an insolvent condition under the laws providing for the assignment for the benefit of creditors, that on the 29th day of October, 1897, the assets of said association amounted to at least the sum of $23,256.92, that the total amount of debts due or to become due to outside creditors was $702.36; that except said sum of $702.36 there were no claims against said association except such as were based upon the ownership of stock therein. That the said H. G. Pratt had in his hands at the date of the making of his inventory and appraisement as such assignee of the moneys belonging to said association, the sum of $2,201.44
    “Plaintiffs say that said H. G. Pratt is proceeding to sell real estate belonging to said association and to convert securities of said association into money in spite of the facts as above set forth, that by such actions he is incurring unnecessary expense to the irreparable damage of plaintiffs as well as to the association itself.
    “The plaintiffs further say that the said wrongful assignment has deprived many members of said association of the right of paying their dues, and that many members paid dues up to the date of said assignment and still desire to pay the same and carry out their contract with the said association, but the said assignee is not receiving, nor has he any power to receive said dues, to the detriment and loss of the plaintiffs and to the association itself.
    “Wherefore plaintiffs ask.that the said deed of assignment be declared null and void, that an in junetion be granted restraining said Pratt from selling real estate of said association, and from further converting its assets into money, and for such further relief as is proper.”
    The cause was heard upon this amended petition and a motion for an injunction. The court held that it had no jurisdiction of the subject matter of the action, and therefore dismissed the petition, and struck the case from the docket, to all of which the plaintiffs below excepted.
    The circuit court reversed the judgment, and thereupon the plaintiffs in error came to this court, seeking to reverse the judgment of the circuit court.

      Henry G. Pratt and James G. Tollman, for plaintiff in error.
    There is no question that the act governing voluntary assignments, and- beginning, with Sec. 6335, is a special act, made especially applicable to assignments for the benefit of creditors; and being a special act, making special provisions for deeds of assignment to be controlled by the probate court, it becomes exclusive, and deprives all other courts of jurisdiction of such deeds. Wambaugh, Trustee, v. Insurance Co., 59 Ohio St., 228; Gilliland v. Administrator of Michael Sellers, 2 Ohio St., 223; Railway Co. v. Marshall, 11 Ohio St., 497.
    Now,, it being clear that in the matter of assignments, that the common pleas court would only have jurisdiction under Secs. 6344 and 6351, Rev. Stat., let us see whether either section would apply to this case.
    This is an action seeking to set aside a deed of assignment for benefit of all the creditors of assignor, on the alleged ground of want of power of assignor to execute same, etc.; in other words, defendants in error are asking the court to determine the legal effect of said deed.
    While Sec. 6343 provides a method for setting aside conveyances made with intent to hinder, delay or defraud creditors, which is an entirely different thing from this case, we never have been able to find where any court has ever held a deed of assignment made for the benefit of all creditors of assignor, to be a conveyance made to hinder, delay or defraud creditors; but, on the other hand, we find where courts have held just the opposite. Hoffman v. Mackall, 5 Ohio St., 124; Thomas v. Talmadge, 16 Ohio St., 434.
    The other section which the court refers to in the case in Second Nat’l Bk. v. Moderwell, 59 Ohio St., 221, 223, i. e., Sec. 6351, simply regards the settlement of questions of lien or title, or dower estate of wife may be settled by assignee in the court of common pleas, which has no application to a case like the present.
    Is it not rather strange to claim that the probate court is a mere machine, and that when a deed of assignment is filed in said court, that said court cannot have the right to say whether it is a deed or not?
    The deed of assignment, if it is valid, places the property' in the custody of that court (the assignee being merely the agent or hand of the court). Why then, would not the probate court have the exclusive right (subject to right of appeal and error) to determine whether the control of said property had been legally transferred by said deed into the custody of said court?
    Property in the hands of an assignee for creditors, who has duly qualified, is in custodia legis.

      See authorities collated in note to Hardy v. Tilton, 28 Am. Rep., 35, and in note to Pipher v. Fordyce, 22 Am. Law Reg. (N. S.), p. 666; Wait’s Actions and Defenses, Yol. 6, page 617.

      »T. W. Shreve and C. A. Mabon, for defendants in error.
    It is contended by defendants in error that the appeal is to the equity powers of a court of general equity jurisdiction and that the fact that the instrument attacked is a deed of assignment is not one of the most important facts in the case. Plaintiff in error contends that it is the controlling fact. It is not questioned herein, that the common pleas court is a court of general equity jurisdiction, and as such has jurisdiction of the subject matter of this action, unless taken away by statute.
    The jurisdiction of courts of equity or of higher courts proceeding according to the course of the common law, is never taken away except by plain words or equally plain intendment. Black on Interpretation of Laws, page 123.
    The probate court is of limited and statutory jurisdiction, with such auxiliary and incidental powers as are necessary and proper to carry into effect those expressly granted. Sayler v. Simpson, 45 Ohio St., 141; Clapp v. Banking Co., 50 Ohio St., 528.
    When a deed of assignment has been filed in the probate court in accordance with Sec. 6335, Ohio Rev. Stat.,' and the assignee has qualified, that court is clothed with jurisdiction to fully execute the trust. Havens v. Horton, 53 Ohio St., 342; Farwell v. Findley, 5 C. D., 303, 11 C. C., 100; McNeill v. Hagerty, 51 Ohio St., 255.

      We contend that when a deed of assignment is not obviously illegal, and to set it aside would require a hearing upon an issue to be made between the parties, that issue must be made and hearing had in a court of general equity jurisdiction. Preston v. Spaulding, 120 Ill., 208; Burrill on Assignments, 6th Ed., Sec. 451.
    We do not contend that the probate court has no equity jurisdiction or that exclusive jurisdiction in such a case as this could not have been conferred upon it by statute, but we do contend that all equity jurisdiction it has was conferred by statute, and that there is no statute expressly conferring power upon it to inquire as to the validity of any instrument, certainly not of a deed of assignment.
    The reasoning of the circuit court is sustained by the fact that property in the hands of an assignee under a voluntary assignment is not in custodia legis. Lapp v. VanNorman, 19 Fed., 406; Lehman v. Rosengarten, 23 Fed., 642; Powers v. Blue Grass B. and L. Association, 86 Fed., 705.
    Deed of assignment invalid:
    1. Because authorized at a special meeting of the board of directors, of Avhich an absent director did not have notice. 1 Beach on Priv. Corp., Sec. 273; 1 Morawetz on Priv. Corp., Sec., 532; 3 Am. & Eng. Ency. Law (2d Ed.), 24 n.
    2. Because the persons who were at said meeting and voted to assign had at that time ceased to be members of the corporation, of which fact H. G. Pratt had notice.
    Directors and other managers of a private corporation are merely agents, and the corporation can be charged with their acts only in accordance with the established doctrines of agency. Morawetz on Corp. Sec. 640.
    An agent whose authority has been terminated, cannot bind his principal in dealings with one having notice of such termination.
    Directors of corporations must be holders of stock in an amount to be fixed by the by-laws. Section 3248, Rev. Stat.
    The company is bound by what takes place in the usual course of business with a third person, where ■that third person deals bona fide with persons who may be termed de facto directors and who might, so far as he could tell, have been directors de jure. Morawetz, Sec. 637.
    The above proposition rests on the principle of estoppel, and with the limits of estoppel the scope of its application is determined. It is also held that the principle on which the validity of the acts of de facto officers is sustained against the corporation does not apply where all the persons affected have notice that the officers assuming to act were not legally chosen. Taylor on Priv. Corp. Sec. 190; State v. Curtis, 9 Nev. 325; Orr Water Ditch Co. v. Reno Water Co., 17 Nev., 166.
    3- Directors of an Ohio building association have no power to assign, especially where the association is not insolvent.
    Dissolution of an association must be by vote of stockholders. Sections 3836-3, Rev. Stat.
   Burket, J.

The substance of the petition is, that the persons who'assumed to act as directors of the association in the making of the deed of assignment, had ceased to be directors, and therefore had no power to make the deed, that they acted fraudulently, in bad faith and against the interests of the stockholders, and that the assignee had full knowledge of the want of power, and of the fraud and bad faith, and actively participated therein.

That such a deed should be set aside and vacated, at the suit of any party in interest, needs no argument and no citation of authorities; and the only question in the court of common pleas was, whether that court had jurisdiction of the subject matter. The court was of opinion that it had not jurisdiction, and that the probate court alone had such jurisdiction, and therefore it dismissed the petition and struck the case from the docket. The question is as to the correctness of this ruling.

When a deed affecting a right of property has been made by one having no power to make a valid deed, or is made fraudulently, and accepted by the grantee with notice of the fraud or want of power, such deed may be set aside and vacated by the party whose property is thereby affected, by proper action for that purpose in the court of common pleas. This is conceded to be so as to all deeds except deeds of assignment for the benefit of creditors; and as to such deeds the plaintiffs in error insist that the probate court has exclusive jurisdiction. Is this so? The court of common pleas has jurisdiction of the subject matter of setting aside and vacating deeds for fraud or want of power to make them, in all cases, unless such jurisdiction has been taken away by statute, and such statute would have to be express, a mere implication arising from conferring the same jurisdiction upon the probate court wou-ld not be sufficient. Sutherland on Statutory Construction, Secs. 395, 396.

But we need not resort to' this rule. Our statutes confer jurisdiction upon the probate court to carry the deed of assignment into execution; and while the same is being administered under the orders of the probate court, under and in pursuance of the trust created by such deed, it is clothed with all necessary equity powers to hear and determine all questions arising as to the property conveyed by the deed of assignment.

Taking the deed to be valid, the jurisdiction of the probate court extends only to causing the trust created thereby to be executed according to law; but it has no jurisdiction to set the deed aside, or vacate it for fraud, or other cause. The probate court has jurisdiction to act under the deed of assignment; but not in opposition to it. The full extent of the statute is that the probate court shall have jurisdiction to direct the execution of the trust under the deed, that is, “to qualify assignees, control their conduct and settle their accounts.” Section 524, Revised Statutes. But there is no statute prescribing that it shall have general equity power to set aside and vacate the deed of assignment; and such equity power is not implied from the power to act under the deed; and certainly no implication can arise from the granting of such power to act under the deed, that the court of common pleas is thereby deprived of its general equity jurisdiction as to setting aside and vacating deeds obtained by fraud.

It is therefore clear that the court of common pleas has jurisdiction in such cases, and that the probate court has no such jurisdiction. The judgment of the circuit court reversing the judgment of the common pleas, is therefore right and should be affirmed.

A showing is made in this court to the effect that said association and said Henry G. Pratt have, since this case has been pending in this court, made a settlement, and they plead that settlement, and ask this court to mark this case settled and dismissed. This cannot be doné. Mr. Pratt and the association are on one side of the controversy, and are charged in the petition with being in collusion with each other, and a settlement of their differences would not be a -settlement of the differences between them and the defendants in error. If the plaintiffs below proceed, as they have a right to do, after the case gets back into the court of common pleas (Moss v. Board of Education, 58 Ohio St., 354), and prosecute their action, and succeed in setting aside the deed of assignment, the assignee may learn that his settlements do not conclude the matter, and that the plaintiffs below have a right to be consulted and heard, before the matter is finally closed up.

It is further shown that a receiver has been appointed by the' court of common pleas since this case is pending here, and that he has now in his hands substantially all that is left of the estate of the association. When such an association becomes insolvent, it is best to wind it up through a receiver, rather than an assignee. In fact it has been doubted whether a building loan association can make an assignment for the benefit of creditors, under the statutes governing such corporations, but we do not find it necessary to decide that question in this case, as the question was not raised or relied upon in the petition, and was not passed upon by either of the courts below.

Judgment affirmed.

Shauck, C. J., Williams, Spear, and Davis, JJ., concurred.


author: By the Court :

text:
    The Board of Commissioners of Fulton County v. The Board of Commissioners of Henry County.

      ■County ditches — Amount to be paid by upper to lower county— Section JfSIO-S, Revised Statutes — Error will not lie to action of the probate court appointing freeholders, when.
    Error will not lie to the action of the probate court appointing freeholders, as provided by Section 4510-3 of the Revised Statutes, to estimate and report the amount which should be paid by the upper to the lower county, for the benefits of an outlet ditch.
    (Decided February 5, 1901 )
    Error to the Circuit Court of Henry county.
    On the 29th day of March, 1899, the commissioners of Henry county made an application to the probate court of that county, in the form of a petition against the commissioners of Fulton. county, under Section 4510-2 of the Revised Statutes. .The petition states, in substance, ,that proceedings had been commenced and carried on before the Henry county commissioners for deepening and straightening a watercourse known as Turkeyfoot creek, which furnished the only outlet for a drain and watercourse extending through certain sections of land in Fulton county, that county adjoining Henry, and being the upper county. It further states that the proposed improvement will furnish a better outlet for the Fulton county drain, and better drainage for the lands in that county; and, that the steps required by law had been taken to obtain a joint meeting of the commissioners of the two counties, in order that they might agree upon the amount- which should be paid by the commissioners of Fulton county for the benefit re-suiting to it from the improvement referred to, but that at the meeting held for that purpose there was a failure to agree. The' prayer of the petition is for the appointment by the court, as provided in Section 4510-3 of the Revised Statutes, of two disinterested freeholders, to act with a like number to be appointed by the probate court of Fulton county, as a committee to estimate and report to the court the amount that should be justly , paid by Fulton county for the use and benefit of the outlet ditch, and for further proceedings authorized by the statute. The commissioners of Fulton county were served with process, appeared and plead, and the court, after a hearing, made an entry on its journal appointing two disinterested freeholders to act on the estimating committee, in accordance with the provisions of the statute.' Without awaiting any further steps in the proceeding the commissioners of Fulton county instituted a proceeding in error in the court of common pleas to reverse the action of the probate court in making the appointment. The common pleas affirmed the probate court, and on error prosecuted to the circuit court, the common pleas was affirmed; from which latter judgment error is brought here.

      William H. Fuller and William II. Handy, for plaintiff in error.

      H. R. Ditmer and W. W. Campbell, for defendant in error.
   By the Court :

It is entirely clear that the record shows no judgment or final order of the probate court that can be reviewed on error. The statute provides for further proceedings subsequent to the appointment of the committee, which may result in the complete exoneration of the upper county and of the lands therein from any burden for the proposed improvement of the water course, or in a final order or judgment imposing such burden. If the former result shall be reached through the report of the committee that the upper county should bear no part of the burden, there can be no ground for a proceeding in error in its behalf, nor can there be until such burden is imposed by the judgment or order of the court.

Judgment affirmed.

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