author: Price, C. J.

text:
    The State of Ohio v. Mattingly.

      Circuit court’s jurisdiction — Review of judgment of mayor — Section 7356, Revised Statutes — Leave to Ale petition in error— May be granted to convicted party — Act of February 23, ipo<5— Local option lazv.

    1. Under the provisions of Section 7356, Revised Statutes, it is competent for the circuit court in the first instance to take and entertain jurisdiction of proceedings in error to review the judgment of the mayor of an incorporated village convicting the defendant of a crime.
    2. For the purpose of such review, under the provisions of Section twenty (20) of the act of the General Assembly entitled, “An act to provide for the enforcement of local option laws prohibiting the sale of intoxicating liquors as a beverage,” ' passed February 23, 1906, (98 O. L., 12), the circuit court may grant leave to the convicted party to file a petition in error therein to review the judgment of conviction.
    (No. 11374
    Decided November 10, 1908.)
    Error to the Circuit Court of Licking county.
    The case is stated in the opinion.
    Mr. Wade H. Ellis, attorney general; Mr. W. H. Miller, assistant attorney general; Messrs. Wheeler & White and Messrs. Kibler & Montgomery, for plaintiff in error.

      Messrs. Smythe & Smythe, for defendant in error.
   Price, C. J.

On the 23d day of December, A. D. 1907, a local option election was held in the village of Johnstown, Licking county, Ohio, at which the electors of said village, by a majority vote decided against the sale of intoxicating liquors as a beverage therein, of which election and its result due record was made by the clerk of said village.

On the 23d day of January, 1908, certain persons, of which J. M. Wright was one, filed with the mayor of that village an affidavit against the defendant in error, Bernard J. Mattingly, charging, in substance, that on the 23 d day of January, 1908, - intoxicating liquors, to-wit: distilled, malt and vinous liquors, with the vessel in which they were contained, and implements and furniture used m connection with the illegal selling, furnishing and giving away of said intoxicating liquors, were kept in the village of Johnstown, in said county of Licking' and state of Ohio, on the premises and in the building thereon located. Then follows a description of the place formerly occupied by B. J. Mattingly on Main street, as a saloon, and that said intoxicating liquors were kept for the purpose of being sold, furnished and given away as a beverage in said village, in violation of the municipal local option law, and that said building is not a bona fide private residence.

The affidavit proceeds to charge that said intoxicating liquors are still concealed and said vessels, implements and furniture were then kept in said place for the purpose aforesaid. The record recites that the proceeding was being instituted under the Woods law, passed February 23, 1906, for the purpose of obtaining a warrant to search said premises and seize the contraband property, as well as the arrest of Mattingly. Service of the warrant was made and he was taken before the mayor for trial. He was found guilty and ordered to pay a fine of $200 and the costs of the prosecution, and that he stand committed until said fine and costs should be paid. Bond was given for a suspension of the sentence until the accused could obtain leave of the proper court to. file a petition in error. A bill of exceptions was taken by Mattingly, containing the evidence adduced on the trial, which was allowed and signed by the mayor as required by statute, on the 16th day of March, 1908

On the 2d day of April, 1908, Mattingly through his attorneys, and after due notice to the state of the intention to do so, presented to the circuit court of Licking county a motion asking leave of that court to file therein a petition in error to review and reverse the judgment of said mayor. Leave was granted and the petition in error and said bill of exceptions and original papers were filed. The state took exception to the granting of the leave

The case on error was heard by the circuit court, and it reversed the judgment of the mayor for error, to-wit: “that the judgment of the said mayor is not sustained by sufficient evidence and is against the clear weight of the evidence.” The case was remanded to the mayor’s court for further trial according to law. To this judgment of reversal the state of Ohio excepted, and error is prosecuted in this court to obtain a reversal of the judgment, of the circuit court.

The state challenges the jurisdiction of the circuit court to entertain the proceeding in error to review the judgment of the mayor, and of course denies the authority of the circuit court to grant leave to file therein a petition in error for such purpose. It is claimed that if Mattingly desired to prosecute error to the judgment of the mayor, he should have first knocked at the door of the court of common pleas, and if his suit failed there, he might then, and only then, be heard in the circuit court. This is an important question in our criminal procedure, and its solution involves a consideration of Section 7356, Revised Statutes, which is:

“In any criminal' case, including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer inferior to the common pleas court may be reviewed in the common pleas court; and a judgment or final order of any court or officer inferior to the circuit court may be reviewed in the circuit court; and a judgment or final order of the circuit court or the common pleas court in cases of conviction of a felony or a misdemeanor, and the judgment of the circuit court in any other case involving the constitutionality or construction of a statute, may be reviewed by the supreme court; but the supreme court shall not in any criminal cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of the evidence.”

This is not a new provision, for its central rule is found in the Revised Statutes of 1880, in a section bearing the same number, where it was provided that; “In any criminal case, including a conviction for a violation of an ordinance of a municipal corporation, a judgment of a court or officer inferior to the court of common pleas, may be reviewed in the court of common pleas; judgment of any court (or officer omitted) inferior to the district court may be reviewed in the district court; and the judgment of any court inferior to the supreme court may be reviewed in the supreme court.” The section (7356) was amended April 18, 1883, by adding the words, “and the judgment of the district court in any other case involving the constitutionality or construction of a statute, may be reviewed in the supreme court; but in the supreme court only errors of law occurring at the trial or appearing in the pleadings or judgment can be reviewed.” See 80 O. L., 170 And so the law stood until the advent of the circuit court, which supplanted the district court, and by virtue of the constitutional amendment under which the circuit court was organized, it took over the former powers and jurisdiction of the district court. The section was again amended February 7, 1885, leaving out the words, “but in the supreme court only errors of law occurring at the trial, or appearing in the pleadings or judgment can be reviewed,” and substituting, “but the supreme court shall not in any criminal cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of the evidence.” See 82 O. L., 39.

After undergoing the foregoing changes, we have our present section, which seems to be free of ambiguity and readily comprehended. Does the case at bar come within the provisions of the section ?

The affidavit before the mayor charged Mat-tingly with a violation of a criminal statute of the state. The village of Johnstown, at the date named therein, was what is called dry territory, because of an election there held on the 23d day of the preceding December, when a majority of the electors of the village voted “against the sale of intoxicating liquors as a beverage.” As a result of that election it became unlawful for anyone engaged in the retail of intoxicating liquors as a beverage to continue said business after the period of thirty days from the date of said election. It was charged that Mattingly had the contraband goods on hand after the time expired at his former usual place of business, and the complainants before the mayor availed themselves of. the provisions of an act entitled “An act to provide for the .enforcement of local option laws prohibiting the sale of intoxicating liquors as a beverage,” passed February 23, 1906. See 98 O. L., 12. This act is sometimes called the search and seizure law, the provisions of which are very stringent in order that the will of the majority may be carried out. Suspected places may be searched, property taken and the owner arrested and punished, as was done in this case, and by Section 20 of the act it is provided that, “no petition in error shall be filed in any court to reverse any conviction for violation of any law prohibiting the sale of intoxicating liquors in any territory or district, or to reverse any judgment affirming such conviction, except after leave granted by the reviewing court, and no such leave shall be granted except after good cause shown at a hearing of which counsel for the complainant in the original case shall have had actual and reasonable notice.”

Section 21 limits the time to file such, petition in error to thirty days from date of conviction, and the case must be heard in the reviewing court within thirty court days from the filing of the petition in error.

Therefore it was a criminal case that was presented to the circuit court, and which it admitted to its docket and afterwards reversed.

It is true that the petition in error might have been presented to the court of common pleas for leave to file the same, if such court was accessible during the thirty-day period of limitation; but it may be that a common pleas court was not open in lucking county during that period, and the leave to file the petition cannot be given by a judge of such court. It can be obtainéd only from the reviewing'court.

In the case at hand the circuit court heard the application after lawful notice had been given, and granted it. Now -according to Section 7356, Revised Statutes, “in any criminal case * * * a judgment or final order of any court or officer inferior to the circuit court may be reviewed in the circuit court.” This does not mean that before you can enter the circuit court you must enter and pass through the court of common pleas. The clause last quoted would be superfluous if such restriction prevails, because without it error could be prosecuted in the circuit court to review the judgment of the court of common pleas. The jurisdiction of the circuit court in criminal cases is not confined to a review of judgments, of the court of common pleas, but includes the power to review the judgment or final order of any court or officer inferior to the circuit court. So says the statute in plain words. Of course the circuit court may review the judgment of the court of common pleas in a criminal case. So can this court, but its jurisdiction does not end there, and for obvious reasons, one of which may have existed in the present case, namely, the absence of a court of common pleas from, and the presence of the circuit court in, Licking county during the thirty-day period of limitation.

The plaintiff in error cites Burrows v. Vandevier et al.; 3 Ohio Rep., 383; Bartlett v. State, 22 Ohio St., 205; and State v. Rouch, 47 Ohio St., 478-481. The plaintiff in error is not benefited by Burrows v. Vandevier, supra; in fact it is an authority against its contention. The headline is, “writ of certiorari lies from the supreme court direct to inferior jurisdictions, but will be sustained only in extraordinary cases.” The writ of certiorari was addressed to the commissioners of Warren county, requiring them to certify to the court their proceedings in a certain road case, which was done. It was objected that the writ ought to be dismissed because it was not a case in which the exercise of a sound discretion requires that it should be allowed. The court said in that case: “It is admitted that the court possesses jurisdiction to award it in a case like this; but urged that it ought not to be sustained, because the plaintiff is certiorari had a more easy and expeditious remedy in the court of common pleas. We assent to the justness of this argument, but under existing circumstances we have concluded to sustain the writ in question. As the jurisdiction is conceded, and no rule had been laid down with respect to cases in which it would be exercised, we are not willing to turn the party out of court in whose case a rule is first to be made known to operate in other cases. Hereafter we shall not sustain a writ of certiorari direct to any inferior jurisdiction where the court of common pleas have power to act, unless the case be attended with some extraordinary circumstances.”

Bartlett v. State, supra, also fails to support the plaintiff in error. The case is disposed of in the following per curiam: “This is an application for the allowance of a writ of error to the police court of Cincinnati. We refuse to allow the writ for the reason that the application can be made as well to the court of common pleas. Were we to establish the practice that all such applications are to be made to this court, without first going to the common pleas, we should be utterly unable to dispose of the business of this court. Necessity, therefore, compels us to confine the hearing of such applications to exceptional cases, where the special circumstances render it necessary.”

In that statement the jurisdiction of the supreme court to hear an application for the review of the judgment of the police court is not questioned, but held to be ample; yet for the reason stated, this court would, except in special cases, remit the party to a lower court in the first instance. The case announces that under the rule then prevailing, it was a matter of discretion in this court whether it would permit a party to come' directly from the police court, or court of common pleas, to this court. We think the rule is the same now, and the circuit court might have refused leave to file a petition in error in this case, but it did not do so.

When we examine State v. Rouch, supra, we find that the case is likewise unfavorable to plaintiff in error. The syllabus contains nothing upon the subject, and there is nothing in the opinion that comes to the support of the claim made here.

Content with the plain language of the section (7356) under consideration and believing the circuit court had jurisdiction in this case under its provisions, we will not prolong this opinion.

One or two other questions are argued in briefs of counsel, but their decision involves the weighing of the evidence, and we are not required to do that.

The judgment of the circuit court is affirmed.

Judgment affirmed.

Crew, Summers and Spear, JJ., Concur.


source: Caselaw Access Project

author: Davis, J. Price, C. J.,

license: Public Domain

text:
    The Union Savings Bank & Trust Co., Executor, v. The Western Union Telegraph Co.

      Recovery of damages for injury to real estate — Death of plaintiff— Action may be revived by executor — Appointment of executor — By probate court without jurisdiction void, when.

    1. In a suit to recover damages for injuries to real estate by a trespass, the cause of action survives the death of the plaintiff; and the action may be revived in the name of the executor or administrator of the deceased plaintiff.
    2. An order of the probate court appointing an executor, if made without jurisdiction, is void, and it may be disregarded in any other court; but if made in the exercise of proper jurisdiction over the subject-matter and estate, although based upon erroneous conclusions of law or fact, it cannot be collaterally attacked.
    (No. 10540
    Decided December 1, 1908.)
    Error to the Circuit Court of Clark county
    Rehearing.
    Adolphus H. Smith recovered a judgment in the court of common pleas against the defendant in error in the sum of twenty-three hundred and fifty dollars, for damages accruing by unlawful and unauthorized cutting of the limbs and branches of an avenue of trees situated on the farm of the plaintiff. This judgment was affirmed by the circuit court and thereafter was reversed and remanded by the supreme court to the court of common pleas for a new trial. Before the retrial of the case, the plaintiff died, being a resident of Clark county. His will was duly presented for probate in the Probate Court of Clark county, and The Union Savings Bank & Trust Company, which was named in his will by the testator as executor, was appointed and qualified as such executor, and has ever since acted as such. The said trust company is a corporation organized under the laws of Ohio. On application therefor, the common pleas court made a conditional order of revivor of the action in the name of said trust company, as such executor. Thereafter, the defendant, The Western Union Telegraph Company, filed an answer objecting to such revivor for the reason .that The Union Savings Bank & Trust Company was not the duly appointed and qualified executor of the last will and testament of the decedent and that it had no authority to act as executor for said decedent, was not the legal representative of the same and could not prosecute this action for or on behalf of the decedent or his estate. Other objections against the conditional order of revivor being made absolute were asserted in said answer, but are not material here. The Union Savings Bank & Trust Company, for reply to the answer of The Western Union Telegraph Company, with other allegations and denials, alleged that it was the duly appointed and qualified executor and trustee under the last will and testament of the decedent. On full hearing the court of common pleas ordered that the case be revived in the name of The Union Savings Bank & Trust Company, as executor as aforesaid. The circuit court reversed the order of the common pleas court and proceedings thereunder, upon the ground that 'it erred in ordering the revivor of the action in the name of The Union Savings Bank & Trust Company, as executor as aforesaid. This proceeding is prosecuted to reverse the judgment of the circuit court.

      Mr. Charles L. Spencer and Mr. Edwin S. Houck, for plaintiff in error.
    The probate court has exclusive jurisdiction: first, to probate wills, etc. ;■ second, to grant and revoke letters testamentary and Of administration; third, to direct and control the conduct of executors, etc., and settle accounts. Sections 524 and 5995, Revised Státutes; Art. IV, Section 8, Constitution.
    The orders of a probate court are even more conclusive than those of a common law court; for they bind the world and not merely parties and privies. Railroad Co v. Belle Centre, 48 Ohio St., 273; Lessee of Swazey’s Heirs v. Blackman, 8 Ohio, 5; Hoffman, Admx., v. Fleming, 66 Ohio St., 143.
    A settled axiom of the law furnishes the governing principles by which these proceedings are to be tested. If the probate court had jurisdiction of the subject-matter and the parties, it is immaterial how grossly irregular or manifestly erroneous its proceedings may have been; its final order cannot be regarded as a nullity and cannot, therefore, be collaterally impeached. The power to hear and determine a cause is jurisdiction. It is “coram judice” whenever a case is presented which brings this power into action. Sheldon’s Lessee v. Newton, 3 Ohio St., 494; Railway Co. v. Beard, Admr., 20 C. C., 681; Railway Co. v.
      Gilday, Admx., 16 C. C., 649; Carr, Gdn., v. Hull, 65 Ohio St., 394; Van Fleet on Collateral Attack, paragraphs 540 and 619.
    At the time of the application for the order of the Probate Court of Clark county, appointing The Union Savings Bank & Trust Company the executor of Smith, that court had full jurisdiction to pass upon the question whether the trust company was legally competent to act as such executor— whether it was competent to receive such appointment. At that time Sections 3821c, 382Id, 3821c, and' 3821f, Revised Statutes, authorizing the appointment, by the probate court, of trust companies as executors, were in full force, and the decision in Schumacher v. McCallip, 69 Ohio St., 500, had not been rendered.
    We submit that under Section 5149, Revised Statutes, the allowance of the revivor of the action is entirely within the discretion of the court; and that its order, allowing such revivor, will not be reversed except upon clear showing of an abuse of such discretion. No such abuse of discretion appears from the record. There was none.
    That the action, at the death of Smith, passed to his personal representative and not to his heirs or devisees, is fully supported in McPherson v. Seguine, 14 N. Car., 153; Dobbs v. Gullidge, 20 N. Car., 68; Clark’s Admx., v. Railroad Co., 36 Mo., 202; Musick, Admr., v. Railway Co., 114 Mo., 300; City of Seymour v. Cummins, 119 Ind., 148.

      Mr. Lawrence Maxwell; Mr. Andrew Squire and Mr. Drausin Wulsin, also argued orally in behalf of the plaintiff in error.

      Messrs. Martin & Martin; Mr. Robert S. Al-corn and Mr. Edward Barton, for defendant in error.
    After the appointment, the Supreme Court of Ohio held that the act which authorized the corporation to act as executor was not constitutional, and that trust companies were without “capacity to receive and exercise appointments as administrators of the estate of deceased persons.” Schumacher v. McCallip, 69 Ohio St., 500.
    If the action is one which should be revived, then it should be revived in the name of the heir or devisee, and not the executor. The action in this case is one which relates to real estate and is for an injury to realty which passes to the heir or devisee of the decedent and not to the personal representative.
    At common law, an action of this kind, if-it was for injury to the person and not to the real estate, would have abated. 1 Cyc., 60; Johnson v. Elwood, 82 N. Y., 362; Harris v. Crenshaw, 3 Rand. (Va.), 14; Little v. Conant, 2 Pick., 527.
    Under these authorities, and upon principle we submit that this action, if it can survive at all, can only be revived in the name of the heirs or devisees under the will of said decedent. Sections 5154 and 5256, Revised Statutes.
    The action was in effect an illegal appropriation of the trees to the use of the defendant. Telegraph Co. v. Smith, 64 Ohio St., 106.
    This brings the case within the ruling of the supreme court, in a proceeding to condemn land for the right of way of a railroad, in which it was held that the right of the owner of the land to the damages which accrued by the location of the road through the property passed to the heirs or devisees of the defendant owner. Railway Co. v. Bohm, 29 Ohio St., 634.
    The probate court had no power to appoint The Union Savings Bank & Trust Company, a corporation, as executor. Schumacher v. McCallip, 69 Ohio St., 500.
    The probate court did not have the power to hear and determine that a corporation which was not legally competent and had not the capacity to act. as such executor, could be appointed. The probate court, having only statutory power, it follows that it is a court of limited and restricted jurisdiction. Therefore its decrees do not stand in the same category as those of a court of general jurisdiction. There is this vital distinction between the two. The general rule is that the jurisdiction of a court of general jurisdiction will be presumed, and cannot be collaterally attacked, but even to this general rule there are exceptions, one of which is that even a court of general jurisdiction is recjuired to proceed in such manner as .provided by statute, or where the mode of acquiring and exercising jurisdiction is special and statutory, no such presumption will prevail. Work on Courts and Their Jurisdiction, 120, 156, 435.
    Where a statute prescribes the qualifications of administrators or executors and in the appointing order is a finding that the party appointed does possess the statutory qualifications, then the order would be conclusive against a collateral attack. Work on Courts and Their Jurisdiction, 455.
    Does it not conclusively follow, if the statute does not designate the qualifications of an executor, and the finding would show upon its face that the appointee did not possess the statutory qualifications, that it would be void?
    Apply now, this principle to the statute (5995), under consideration. Two conditions confront the probate court when it attempts to act under this statute: it must ascertain before it can exercise its power of appointment of'an executor, that there is: first, an executor named in the will; second, that such executor is legally competent to act.
    Both of these are jurisdictional facts which precede the right of the probate court to act.
    We also call the attention of the court to the fact that when the record contains no finding of facts expressly showing jurisdiction, the jurisdiction of the court rendering the judgment is a matter into which inquiry may be made, within any collateral proceedings. Scobey v. Gano, 35 Ohio St., 553; Gazette Co. v. Dean, 25 W. L. B., 250; Lessee of Maxom v. Sawyer, 12 Ohio, 195; Lessee of Moore v. Starks, 1 Ohio St., 369; Buchanan v. Roy’s Lessee, 2 Ohio St., 252; Callen v. Ellison, 13 Ohio St., 446; Pennywit v. Foote, 27 Ohio St., 615; Spier v. Corll, 33 Ohio St, 236; Work on Courts and Their Jurisdiction, 120.
    Cases in which record has been collaterally attacked: Rammelsberg v. Mitchell, 29 Ohio St., 58; Sheldon’s Lessee v. Newton, 3 Ohio St., 494.
    In Hoffman, Admx., v. Fleming, 66 Ohio St., 143, the supreme court say that the probate court has power to appoint executors and had made an appointment in this case, and, therefore, its record could not be impeached.

      But it first examined the record, not to see whether the probate court had the power to appoint executors generally, but had it the power to appoint the executor in the case under consideration, just as we insist that the question here is, had the court power to appoint the executor in this case?
    The order appointing the trust company executor is subject to collateral attack for the reason that it was null and void.
    If it is true that a corporation has not the capacity to act as an executor, and cannot comply with the statutes as to rendering an account, under oath, of the proceeds of an estate, it would seem necessarily to follow that it should not be permitted to assume the custody of those proceeds. The plaintiff seeks, in this action, to get into its own possession assets, for which it cannot be required to account in the mode provided by law. It certainly would seem that those who are interested in the estate should have the right to demand that its funds be paid to one whom they may call to account, and that those who are debtors of the estate should not be required to pay their debts to a legally irresponsible person.
    The general rules relating to this subject and the decisions of the Ohio courts have been fully presented in the briefs of the original hearing, and it is unnecessary now to do more than cite some additional authorities supporting our claim as to collateral attack. Manuel v. Manuel, 13 Ohio St., 458; McNeal v. Ross, 58 Ohio St., 707; Trust Co. v. Peterson, 76 Neb., 411; United States v. Walker, 109 U. S., 258; Carpenter v. Sloane, 20 Ohio, 327; Hatch v. Ferguson, 68 Fed. Rep., 43, 15 C. C. A., 201.
    The rule is general that although a probate court has power to appoint a testamentary trustee or guardian, upon the giving of a bond, yet, notwithstanding the general jurisdiction of such a .court in such matters, the appointment is an utter nullity and may be attacked by any one against whom the supposed guardian may bring an action, if, in fact, no bond has been given. Aldrich v. Willis, 55 Cal., 81; Murphy v. Superior Court, 84 Cal., 592; Poe, Admr., v. Schley, 16 Ga., 364; Wadsworth v. Connell, 104 Ill., 369; Verret v. Aubert, 6 La., 350; Mitchell, Tutor, v. Cooley, 12 Robinson (La.), 636; Railway Co. v. Schmidt, Admr., 8 C. C., 355; Wuesthoff v. Insurance Co., 107 N. Y., 580, 14 N. E. Rep., 811.
    If the court cannot dispense with the statutory requirement of a bond, where is the power to be found that will enable it to dispense with the statutory requirement of competency, so as to prevent the appointment from being open to collateral attack ?
    The exercise by a court, in purely statutory proceedings, of a power not authorized by the statute, is null and void, and may be collaterally attacked. Murray v. Surety Co., 70 Fed. Rep., 341, 17 C. C. A., 138.
    If it appears from the record that the court did not have jurisdiction to enter the decree and the particular judgment thereon that it did enter, then that decree and judgment may be collaterally impeached. Ritchie v. Sayers, 100 Fed. Rep., 520; Ex parte Lange, 18 Wall., 163; Windsor v.
      McVeigh, 93 U. S., 274; Ex parte Rowland, 104 U. S., 604; Hans Nielsen, Petitioner, 131 U. S., 175; Cuddy, Petitioner, 131 U. S., 280; Scott v. McNeal, 154 U. S., 34.

      Mr. Oscar Martin and Mr. Edzvard Barton also argued orally for defendant in error,
   Davis, J.

This suit is brought to recover damages for a trespass. It did not abate by the death of the plaintiff; and it was proper to revive it in the name of the decedent’s personal representative. Sections 4975, 5144 and 5148, Revised Statutes; Dobbs v. Gullidge, 4 Dev. & Bat. (20 N. Car.), 68; McPherson v. Seguine, 3 Dev. (14 N. Car.), 153; City of Seymour v. Cummins, 119 Ind., 148; Conklin v. Keokuk, 73 Ia., 343; Clark’s Admx. v. Railway Co., 36 Mo., 202; Upper Appomattox Co. v. Hardings, 11 Gratt. (Va.), 1; Darling, Admr., v. Blackstone Mfg. Co., 16 Gray (Mass.), 187. “It is now the general American doctrine that all causes of action arising from torts to property, real or. personal — injuries to the estate by which its value diminishes — survive and go to the executor or administrator as' assets in his hands.” 1 Cyc., 52.

It is not disputed that the plaintiff in error was appointed by, and gave bond in, the probate court as executor of the deceased plaintiff and has ever since acted as such; bút it is contended here that such appointment is invalid for the reason that the plaintiff in error is legally incompetent to be an administrator or executor. This contention may be entertained here, if the order of the probate court may be collaterally attacked in this action by showing that it was made erroneously or without jurisdiction; otherwise it cannot be considered, for it is admitted that no direct attack has been made on the order appointing the executor, in the probate court, or by appeal or error, and it stands unreversed and unmodified to this time.

The probate court is a court of record and its jurisdiction in matters testamentary and in the appointment of administrators and guardians has been broadly given by the Constitution of this state, Article IV, Sections 7 and 8. The jurisdiction is plenary and it may well be doubted whether the legislature, if it chose to do so, could in any respect limit it. But for every purpose of this case, we may assume that the legislature has constitutionally limited the power of appointment to such persons as are “legally competent,” Section 5995, Revised Statutes; and that the jurisdiction of the probate court is thereby restricted to the appointment of such persons only as are designated by the legislature to be “legally competent.”

When the plaintiff died, being at that time a resident of Clark county, and' left a will nominating- the plaintiff in error to be executor of the will, and the will was offered, for probate in the probate court of that county, it was within the jurisdiction of the court, and it became its duty, to appoint the person named in the will to be executor, if there were no obstacles thereto in the law as it then existed. Upon the assumption which we have made, this necessarily involved an inquiry by the court into the legal competency of The Union Savings Bank & Trust Company to be an executor. This was eighteen months before the decision in Schumacher v. McCallip et al., 69 Ohio St., 500, and at a time when, as appears from the statément of facts in that case, probate courts, common pleas courts and circuit courts were entertaining a contrary view of the law. The Probate Court of Clark county, having jurisdiction of the subject-matter and of the estate, had the right and duty to inquire into the legal competency of the trust company: the presumption is that it did so and its judgment in that regard, however- erroneous it might thereafter be found to be, was not void. It was no more void than the judgments of the several courts which decided the same way in Schumacher v. McCallip, supra. It could not, therefore, be ignored in any collateral proceeding and could not be reviewed or set aside in any other way than in a direct proceeding for that purpose. The defendant, if - it had such an interest in the estate as would- give it the legal standing to do so, might have attacked the appointment in the probate court, or by appeal or error. It did not do so and cannot .complain if it now finds itself bound by the presumptions which arise upon the record. Moore v. Robison, 6 Ohio St., 302; Shroyer, Gdn., v. Richmond, 16 Ohio St., 455; Caujolle v. Ferrie, 13 Wall., 465.

The counsel for the defendant in error seem to have misunderstood the court in regard to its decision in Hoffman, Admx., v. Fleming, 66 Ohio St., 143. The plaintiffs in error in that case insisted that it clearly appeared on the face of the record that the probate court did not have jurisdiction to make the appointment. The court went into the inquiry only far enough to show that this proposition was not correct. Of course, if it had affirmatively and conclusively appeared that the court had acted without jurisdiction, the order making the appointment would have been entirely void, and not merely erroneous, as it may have been in this case.

The former judgment of this court is vacated and the judgment of the circuit court is reversed and that of the court of common pleas

Affirmed.

Shauck, Crew, Summers and Spear, JJ., concur.

Price, C. J.,

dissenting. I think it exceedingly unfortunate that the court has not decided the main question in this case, which is, — has the trust company legal capacity to act as executor under the appointment made in the will of Adolphus H. Smith, deceased? This question was fully argued in the briefs on the first submission of the case to this court, and on the recent rehearing it was fully argued orally. Eminent counsel, not of record have been heard on the subject, but the case is now disposed of — not on that question, which is of state-wide importance — but on the other point, that the judgment of the circuit court is a collateral attack upon the order made by the probate court appointing the trust company executor. The doctrine of collateral attack occupies a vast field and from its almost infinite resources, enough has been gathered to wean the majority away from the main issue, upon which it now expresses no opinion. I presume that under these circumstances it is not proper to define or express my own opinion about the capacity of the trust company to serve as executor, although that question is paramount and must soon be met in the courts.

I cannot consent that the judgment of the circuit court is a collateral attack on the order of the probate court. The testator Smith died during the pendency of his suit against the telegraph company. The proceedings to revive the action disclosed the name of the trust company as successor to Smith in the action. Who or what is this trust company that asks the place of successor? That question was no doubt answered in the court of common pleas to the effect that it is an Ohio corporation, having a certain place of residence. Its name, and thereby its character, was made known to that court. In short, the action was revived in the name of a corporation and that fact stands out on the record of that proceeding.

If the trust company was legally incompetent to take the appointment made in the will, it was likewise incompetent in the proceedings to revive the action. If there was no legal authority to act under the appointment made in the will, there was absolutely no authority to revive the action in the name of the disqualified corporation. It being wholly a question of law and not of fact, and that question of law being apparent of record, the order of the court of common pleas could not give life and authority to the trust company. If the appointment of the corporation as executor was illegal in the first instance, the order of revivor was illegal, and if illegal on its very face, it was void because illegal, and could be so treated in a court of review.

The state of the law is a matter always to be reckoned with.

It is not necessary to multiply words, but I believe the doctrine of collateral attack as applied to this case, has been greatly overwrought.


author: Spear, J.

text:
    McMahon, Admr., v. Ambach & Co. et al.

      Settlement of estate of decedent — Allowance to administrator — For extra services — Part of account — Cannot take effect until court acts after notice — Exceptions to allowance — Constitutes direct attack — Subject to review.

    1. The statutes of the state bearing upon the settlement in the probate court of the estates of deceased persons, taken together, show that the allowance to an administrator for extraordinary services in the settlement of the estate is part of the statement of his account, and is to be considered by the court accordingly.
    2. Whether the allowance is in fact made at the time of or prior to the filing of a settlement account, such allowance cannot take effect as prejudicing the rights of others interested in the settlement of the estate who have not had notice until the court, after legal notice, acts upon the settlement account itself.
    3. Exceptions to such allowance in the account by creditors constitute a direct attack on the allowance, and not a collateral attack, and the allowance is then subject to review upon the exceptions the same as any other disputed item of the administrator’s account.
    (No. 10736
    Decided December 1, 1908.)
    Error to the Circuit Court of Franklin county.

      Facts necessary to an understanding of the question decided are stated in the opinion.

      Mr. H. H. McMahon, for plaintiff in error.
    An examination and comparison • of Sections 6188 and 6165 show that there is no intention to confine the making of an allowance to the settlement of an account.
    In some states it is expressly provided by’ statute that “upon the final settlement” or “upon any settlement” the court may make allowances; in Ohio, however, no such restriction is placed upon the power of the court.
    It is well settled that these costs, expenses, compensation and charges of the administrator are “to be first paid” before applying the balance to the payment of liens or unsecured claims. Stone v. Strong, 42 Ohio St., 53.
    If allowances were exclusively a matter of accounting it would be impossible to apply the rule declared in Stone v. Strong. As a matter of fact, the order of confirmation and distribution fixes the amount of costs, expenses, compensation and charges to be paid and orders their payment before the payment of liens.
    It has been held that the probate court can make an allowance to the attorney of a deceased assignee in insolvency and order the same paid by the trustee for creditors upon an application made for that purpose. Kittridge v. Miller, 12 C. C., 128, 56 Ohio St., 779.
    The circuit court of the first circuit suggested the same practice for fixing an allowance for the attorney of an administrator. Mellen v. West, 5 C. C., 89.
    This court has held that until allowed by the probate court, the compensation of an administrator or executor to which he may be entitled in the settlement of. an estate, cannot be attached, or by any similar process, appropriated to the payment of his claim by any creditor of such executor or administrator. Overturf v. Gerlach, 62 Ohio St., 127.
    The making of an allowance is not an adversary proceeding; it is an ex parte proceeding in rem; special notice to interested parties is not required.
    In Ohio, probate procedure, except where it has been expressly modified by statute, is procedure in rem; and orders of the probate court are binding upon the whole world. The administration of an estate is a proceeding in rem; as is the grant of probate, the grant of letters testamentary, of administration and of gxiardianship. Until changed by statute the sale of decedent’s real estate to pay debts was in rem. The making of allowances is in rem.

    Unless the statutes expressly require special notice to interested parties of any particular step in the administration, no such notice is necessary. St. Clair v. Morris; 9 Ohio, 16; Heck v. Heck, 34 Ohio St., 369; Railway Co. v. Beard, Admr., 20 C. C., 681; Rockel’s Probate Practice, Section 543; Shroyer, Gdn., v. Richmond, 16 Ohio St., 455; Bensen v. Cilley, 8 Ohio St., 604; Sheldon’s Lessee v. Newton, 3 Ohio St., 494; Robb v. Lessee of Irwin, 15 Ohio St., 689; Johnson, Exr., v. John

      son, 26 Ohio St., 357; Thompson v. Steamboat, 2 Ohio St., 27.
    A proceeding in rem cannot be rendered adversary except by legislative act.
    It has never been claimed that the statutes expressly required special notice of an application for an allowance; the contrary is apparent. It has, however, been urged that the making of an allowance is a matter of accounting and that notice of the settlement of an account is required; that because notice of the settlement of an account is required, the necessity of notice of an allowance will be inferred; and that common justice demands that interested parties shall have notice of the making of an allowance.
    From time to time, it has seemed wise to the legislature to transform some of the probate proceedings; to change them from ex parte proceedings in rem to adversary proceedings; to require notice to interested parties and even to make notice jurisdictional. Without legislative action, however, no change is possible and until legislative action probate proceedings remain ex parte and in rem.

    To transform a proceeding in rem into an adversary proceeding, it is essential that the statute, making the change, should give to the proceeding every element of adversary character. It is not sufficient to require the making- of parties, or to require special notice to parties, but the notice must expressly be made jurisdictional. If such notice is not exnressly made jurisdictional, failure to give notice will not render the order void, but only erroneous.

      The proceeding by an executor or administrator to sell real estate to pay debts was in its origin and nature a pure probate proceeding in rem, ex parte and summary; to-day that proceeding is fully adversary. The steps by which this change has been effected illustrate and conclusively establish the propositions above stated. Ewing’s Lessee v. Higby, 7 Ohio, part 1, 198; Ewing v. Hollister, 7 Ohio, part 2, 138; Lewis v. Lewis’ Admx., 15 Ohio, 715; Lessee of Snevely v. Lowe, 18 Ohio, 368; Act of 1831, 3 Chase, 1782, Section 31; Holloway v. Stuart, 19 Ohio St., 472.
    The probate court is a court of record competent to decide on its own jurisdiction and to exercise it to final judgment without setting forth the facts and evidence on which it is rendered. Rockel’s Probate Practice, Section 22, note 13; Shroyer v. Richmond, 16 Ohio St., 465; Railroad Co. v. Belle Centre, 48 Ohio St., 273; Heckman v. Adams, 50 Ohio St., 305.
    The records of the probate court import absolute verity; its judgments and orders are conclusive upon the whole world until vacated or reversed for error in direct proceedings instituted for that purpose. They are not subject to collateral attack, and, in a collateral inquiry, it will be conclusively presumed that the order was made upon a proper showing, by the proof of all the facts necessary to authorize it and parol evidence cannot be received to disprove the facts necessary to sustain the order. Lessee of Swazey’s Heirs v. Blackman, 8 Ohio, 5; Shroyer v. Richmond, 16 Ohio St., 455.
    Orders of allowance are subject to direct attack by appeal and error. Kittridge v. Miller, 56 Ohio St., 779; Stone v. Strong, 42 Ohio St., 53; Ballard v. Mack, 3 O. L. R., 249.
    An ex parte allowance to' the attorney of a receiver made upon the application of the receiver is not void, and the regularity of such allowance cannot be inquired into upon, the settlement of the receiver’s account. In re Commonwealth Fire Ins. Co., 32 Hun, 78.

      Mr. lohn R. Horst and Messrs. Huggins, Huggins & lohnson, for defendants in error.
    It is contended that allowances of compensation to administrators are necessarily a part of the account; that the probate court is without jurisdiction to make such allowances ex parte; and that, if so made, they are not binding upon persons interested in a 'settlement of an estate. Such allowances to be binding must be made upon the settlement of the account of the administrator, and after due notice of such settlement as is required by law.
    Article IV, Section 8, Constitution of Ohio, fixes the jurisdiction of the probate court in the settlement of the accounts of executors and administrators.
    Section 524, Revised Statutes, provides that the jurisdiction of the probate court shall be exclusive in certain matters therein stated.
    Section 6175, Revised Statutes, provides for the filing of an account by an executor or administrator.
    Provision for notice to interested parties is found in Section 6402, Revised Statutes. This section also recognizes the right of such interested parties to file exceptions to the account.
    A trial of exceptions to an account of an executor or administrator is provided for in Section 6168, Revised Statutes.
    Section 6407, especially provides that a decision of the probate court in the settlement of an account of an executor or an administrator may be appealed to the common pleas court.
    See paragraph three in Sections 5996 and 6006, Revised Statutes, relating to the bonds of executors and administrators, and especially providing when no compensation may be allowed to executors and administrators.
    Compensation to executors and administrators is provided for in Section 6188. This section provides for both legál and extraordinary compensation.
    The importance of notice of the settlement of an account is recognized by Section 6187, Revised Statutes, in that this section provides that the account may be opened within eight months after a settlement, if the settlement be made in the absence of any person adversely interested and without actual notice to him.
    Failure to serve notice on beneficiaries under the will of the pendency of a motion to fix the amount due the executor and trustee for extraordinary services, deprives the court of jurisdiction to hear and determine the motion. Ballard v. Mack, 3 O. L. R., 240.
    If jurisdiction of the subject-matter of the proceedings is acquired on the filing of an account the court had none prior thereto. In re Morrison, 8 N. P., 385.
    The legislature has laid down and provided a method by which extraordinary compensation can be allowed and it necessarily follows that that negatives any other method. To invoke the juris-, diction of the probate court over the subject-matter, the accounting, and that it is necessary to file an account in the probate court, is sustained by the following decisions: Jones, Admr., v. Green, 21 C. C., 96; In re Baker et al., 47 W. L. B., 559; Smith v. Rhoades & Wilt, 68 Ohio St, 500; Raab’s Estate, 16 Ohio St., 274.
    The reports are full. of litigated cases relating to executors’ compensation, and in almost every case the contention is brought, into court by exceptions to his account. Campbell, Admx., v. McCormick, 1 C. C., 504; Cairns, Exr., v. Hedges, 2 C. C., 103; In re Estate of Johnson, 4 N. P., 156; In re Estate of Wolfe, 4 N. P., 336.
    It is incumbent upon the administrator to produce evidence to prove that the extraordinary services were performed and that they were reasonably worth the amount asked. If he fails to make this proof, this court cannot allow him the compensation asked. Section 6188, Revised Statutes; In re McAlpine, 38 W. L. B., 231; Rockel’s Probate Practice, Sections 508 and 659; Chatfield & Wood v. Swing & Mellen, 7 Am. L. Rec., 326; Thomas, Admx., v. Moore, etc., 52 Ohio St., 200; Woerner on Administration, Section 515.
   Spear, J.

The circuit court’s judgment was an affirmance on error of the judgment of the court of common pleas. The latter judgment was rendered upon a trial on appeal from the judgment of the probate court of Franklin county in the matter of certain exceptions by the defendants in error, Ambach & Co., and others, to the second partial account of the plaintiff in error, Flarry H. McMahon, as administrator of the estate of Robert F. Burt, deceased. The exceptions which require consideration here relate wholly to an allowance by the probate court of fifteen hundred dollars to the administrator for extraordinary services claimed to have been rendered by him in the settlement of the estate, and it is not necessary to set out the minutiae of the record beyond a sufficient statement to show how the legal question involved in the controversy here arose.

The account to which exceptions were taken by the creditors, defendants in error, was filed in the probate court June 28, 1901. The fifteen hundred dollar allowance appears as the last item of the account in these words and figures, viz.:

“To FI. H. McMahon, administrator, allowance on account of extraordinary services fixed by the court, $1,500.”

This charge against the estate is without date, and the printed record nowhere distinctly shows when the allowance was made, although the inference is justified that it was made sometime prior to the filing of the second account.

The exceptions were filed in the probate court July 19, 1901, and were heard and overruled by that court January 7, 1902, and the account approved. Thereupon the cause was appealed by the exceptors to the court of common pleas.

Long after the appeal was effected, to-wit, July 1, 1905, there was filed in the coúrt of common pleas by the administrator a motion setting out the allowance of the fifteen hundred dollars to him by the probate court as of June 28, 1901, but that no entry of such allowance was made on the journal of the probate court and asking an order of the common pleas nunc pro tunc • to require such entry as of the date named to be entered on the journal of the probate court. This motion was resisted by the exceptors, but the' motion was sustained and the order made and an entry of the character desired was placed on the journal of the probate court as of June 28, 1901.

At the trial of the case upon the exceptions in the court of common pleas, January 27, 1906, the plaintiff in error, the administrator, in support of the allowance- by the probate court, gave in evidence a duly attested copy of the said journal entry so made nunc pro tunc in the probate court by order of the common pleas, as of June 28, 1901, in substance showing that, on an application made by said administrator for extraordinary services in the settlement of the estate, from the time of his appointment to that date, in addition to such extra compensation as had been heretofore allowed, and as further part payment for such extraordinary services so rendered, the probate court allowed, for such extra services, the sum of fifteen hundred dollars and authorized and allowed the administrator to pay to himself out of the funds in his hands belonging to said estate the said sum of fifteen hundred dollars as further partial compensation for said extraordinary services.

No other testimony was offered by the administrator to support his claim for said fifteen hundred dollars for such extraordinary services,. but he rested his side of the case wholly on the said record of the probate court. It appeared by the cross-examination of the administrator that the application was a verbal one, not in writing, and that no notice was given to any creditor, or other person interested in the estate, of said application or said hearing, nor was any creditor, or other interested party, present or cognizant of said proceeding, but the same was wholly ex parte. No testimony was offered by the exceptors.

The court of common pleas thereupon found and held that the claimed allowance of fifteen hundred dollars so made by the probate court ■ is not conclusive upon the excepting creditors, or upon this court, and the same-being found by the court to be excessive is vacated and set aside, and the exception to said second account so far as it refers to the fifteen hundred dollar item is sustained. Thereupon judgment followed from which, as'before stated, the administrator prosecuted error to the circuit court, and failing there brings error in this court.

The record, athough somewhat involved, presents but a single question, viz.: was the allowance of fifteen hundred dollars by the probate court for claimed extraordinary services by the administrator conclusive as against parties interested in the estate, or could the creditors, by excepting to the settlement account of the administrator in which the charge against the estate appeared, have the same reviewed?

It is the .contention of plaintiff in error that there having been no attempt made to attack the allowance by direct proceedings instituted for that purpose, the said allowance and order of the probate court still standing upon that court’s journal unreversed and unmodified, the same is conclusive, and cannot be attacked by exceptions to the account, that being a mere collateral attack. This claim rests upon the further proposition that the allowance was a judicial act of a court having full jurisdiction to pass upon and make such allowance; that such application for allowance is an ex parte proceeding in rem of which no notice to creditors or others is necessary, and that the action of the court thereon does, and necessarily must, bind the whole world; and further, that a proceeding in rem cannot be rendered adversary except by express legislative act, and our statutes show no such change of the rule.

It is not doubted that the probate court has power, in the proper way and at the proper time, to make allowances for extraordinary services by an administrator, nor that, speaking in the general sense, the proceedings in the settlement of estates by the probate court are not inter partes, or adversary in character, but are proceedings in rem. This because the estate itself, the res, is committed to that court, and on that court is devolved the duty of determining its status and disposing of its' corpus. But it does not follow that every matter connected with the settlement of an estate is strictly in rem, and therefore binding on everybody without notice, for we find provision for notice in many matters which in their nature may be considered in rem. As observed by Okey, J., in Heck v. Heck, 34 Ohio St., 369: “While obviously many acts may be performed in the administration of the estate without notice (as in 5 Ohio, 200), others cannot be properly performed in the absence of it, though the statute be silent. Of the latter class are proceedings to appoint new appraisers, and the act of such appraisers in making allowance to a widow for a year’s support. True, the statute did not, in terms, require notice to the executor, much less notice in any prescribed form; but the executor represents the estate and in a sense the creditors, and upon the plainest principles of justice, he is entitled to notice of these proceedings.”

Whether or not the action in making the allowance taken by the probate court in this case should be regarded as in rem or adversary must therefore necessarily depend upon the proper construction of our statutes relating to the settlement of estates in the probate court taken in connection with the clause of the constitution, section 8, article IV, giving jurisdiction to that court. The constitutional provision relating to this subject is: “.The probate court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts ' of executors, administrators and guardians.” Statutory provisions are: By section 524, Revised Statutes, exclusive jurisdiction is given “to direct and control the conduct and to settle the accounts of executors and administrators, and to order the distribution of estates.” Section 6175 imposes the duty on an'administrator to render account of his administration at times as therein stated. B}r section 6006 every administrator is required before entering on the execution of his trust to give bond with condition among other things, to render upon oath a true account within eighteen months and at any other times when required by the court or the law, and failing so to do for thirty days after he shall have been notified of the expiration of the time by the probate judge he shall receive no allowance for services unless the court shall enter upon its journal that such delay was necessary and reasonable. The same provision as to allowance for services is found in section 5996 as applicable to executors. Section 6402 makes it the duty of the probate judge to cause notice for not less than three weeks of the filing of accounts by administrators, etc., to be published in some newspaper of the county, specifying the time when such accounts will be heard, and recognizing the right of interested parties to interpose exceptions. By section 6186 authority is given the court to refer the account and exceptions to a special master commissioner. Special provision is given by section- 6407 to appeal to the court of common pleas “from any order, decision or judgment of the probate court in settling the accounts of an executor, administrator,” and also in a large number of controversies growing out of the settlement of estates, “and the cause so appealed shall be tried, heard, and decided in the court of common pleas in the same manner as though the said court of common -pleas had original jurisdiction thereof.” Section 6187 provides for the opening up of an account by any one adversely interested within eight months where the account has been settled in his absence and without actual notice to him. Also that upon every settlement of an account former accounts may be opened to correct mistake or error therein save where the dispute had been previously heard and determined. And finally, the provision specifically made for compensation for extraordinary services, section 6188, affecting commissions and allowances provides: “Executors and administrators may be allowed the following commissions upon the amount of the personal estate collected and accounted for by them, and of the proceeds of the real estate sold under an order of court for the payment of debts, or under directions of the will, which shall be received in full compensation for all their ordinary services,” etc., * * * “and in all cases such further allowance shall be made as the court shall consider just and reasonable for actual and necessary expenses, and for any extraordinary services not required in the common course of his duty,” etc.

We are unable to agree with counsel that proceedings which grow out of jurisdiction in rem cannot be rendered adversary except by express legislative act, but are of opinion that statutes affecting jurisdiction must be tested as to their proper meaning by the ordinary rules of construction. What, taking all the provisions’ together, and applying them to the subject-matter, did the general assembly mean by the language of the provisions as enacted? At the threshold we find that the subject of the settlement of the accounts of administrators, etc., has been deemed of so much importance as to call for a special constitutional provision. Why? Because the matter relates to the proper and lawful devolution of vast amounts of property, and affects the rights and interests of a great many people, of widows, adult heirs, children, and creditors. To make this power effective there has been enacted, as the epitome hereinbefore given shows, laws specifically providing for its exercise, and surrounding it as we think, with safeguards intended to insure a fair hearing and due consideration of the rights of all parties interested. These various sections clearly imply that the specified compensation of the administrator is to be'ascertained by the court when he shall have exhibited to the court by a settlement account the amount of the personal estate which he has collected and thus accounts for, and the amount of compensation for extraordinary services not required in the common course of his duty to be determined by the court on a showing to be made when the account is passed upon. This feature of the administrator’s compensation relates to the settlement of his account as fully as any other and is just as essential to a full statement of his account with the estate as any other item in it. If the probate judge may properly allow a claim for extra services ex parte and in advance of settlement, no reason is apparent why he may not in like manner allow every other item which properly belongs in an account, and thus practically defeat the plain justice and purpose of the statute. But, beside this, when analyzed, the position of the administrator is in essence and spirit adversary to the estate. He .charges, as in this specific instance, the amount of the allowance to the estate. Then for the first time in the record of the probate court’s doings does the matter of extraordinary compensation make its appearance, and the very statement itself is adversary. “The estate to the administrator, debtor,” is the form used in the account. This attitude of the administrator is recognized by the provision for appeal by a trustee as given in section 6408. If the appeal is in the interest of the trust he may appeal without giving bond; if in his own interest he must give bond. Thomas, Admx., v. Moore, 52 Ohio St., 200; Layer, Guardian, v. Schaber, Admr., 57 Ohio St., 234; Biddle, Trustee, v. Phipps, 2 O. C. C., 61; Taylor v. McCullom, 5 W. L. B., 414; Kennedy v. Thompson, 3 O. C. C., 448.

It cannot benefit the administrator that he has theretofore obtained the approval of that item at the hands of the probate judge, a practice which is not to be commended. The statute makes it clear that in general it is through the process of accounting that the probate court is given authority to allow extraordinary compensation, and the fact that the statute defines the conditions under which extraordinary compensation may be allowed implies that that is the proper way. In legal effect the item in dispute in the present case is part of the settlement account, is subjected to the same right of review, and must stand or fall on review the same as any other item excepted to.

At the trial in the common pleas the item of extra allowance was like any other item of the account excepted to. Its correctness as a charge was to be tried the same as though that court had had original jurisdiction of the case. The burden, therefore, was on the claimant to show that the services rendered by him were such as the law permits an extra allowance for, and to offer evidence to enable the court to properly fix the amount. He did neither. He was content to rest upon the action of the probate court. But, as we have held, that action was open to review and was then the very subject of review. It is not necessary to here consider the effect of an allowance to an administrator for extraordinary services made in a proceeding to sell land by order of court; nor a case where a written motion for allowance had been filed in the probate court and notice given to all interested parties, for we have no such case before us.

It follows we think clearly that tne attack in this case upon the action of the probate court was not a collateral, but a direct attack, and the court of common pleas was entirely justified in so treating it and in rendering judgment accordingly.

Judgment affirmed.

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


author: Summers, J. Davis, J.,

text:
    Yeager et al. v. Tuning et al.

      Erection of telephone line — By owner of one 'estate over estate of another — An easement, when — Parol agreement of adjoining land owners — For mutual telephone line — Easement by deed or prescription.

    1. The right of an owner of an estate to erect and maintain, or to cause to be erected and maintained, a line of telephone poles over the estate of another for the benefit of the former is an easement.
    2. An easement can be created only by deed or by prescription.
    3. A parol agreement by several adjoining land owners to erect and maintain telephone poles on their respective lands, and to contribute equally to the expense of stringing wires thereon, and of operating a telephone line does not create an easement but is merely a parol license and is revocable by any one of such . owners, although in reliance thereon the poles have been erected and the line constructed.
    (No. 10524
    Decided December 1, 1908.)
    Error to the Circuit Court of Gallia county.
    The plaintiffs in error, Garret Yeager, J. W. Smith, William Davis, Jacob Miller, James Jones, H. H. Viars, C. C. Reese, J. G. Robertson and Mary E. Trichler, were plaintiffs in the court of common pleas, and the defendants in error, John P. Tuning, James J. Maddy, G. R. Viars, Clark Berry, A. L. Keeler, P. F. Hern and Phoebe Hern, were defendants in that court. It is averred in the petition, that the plaintiffs and the defendants mutually agreed, orally, to construct a telephone line over and across their respective lands and to their respective residences thereon to enable them to have telephonic communication with each other and with persons on other lines with which such line might be connected; that each agreed at his own expense to erect and maintain a certain number of poles, and that the plaintiffs and defendants agreed to contribute equally money to purchase and string the wires and to contribute equally sufficient money to repair and maintain the line; that the line was constructed as agreed, that it was of a permanent nature and of the value of $250; that each of the parties expended about fifteen dollars additional for telephone boxes and other appliances, and that the line was in use for about three years, and until shortly before the filing of the petition when certain of the defendants cut the wires and cut down certain of the poles and rendered the line in places useless, and they pray for a mandatory order requiring the replacing of the poles and the restoring of the line, and for an injunction against the destruction or interference with the line in the future.
    The case went to the circuit court on appeal where a demurrer was sustained and the petition dismissed.

      Mr. R. M. Sivitzer, for plaintiffs in error.
    Plaintiffs in error contend that the telephone structure after the same was erected on and across the premises of each and all the parties by and with the consent of each, under the said verbal arrangement, the same being of a visible and permanent character, as much so as a railway track, and by reason of the expenditure of a considerable sum of money on the part of each as well as the expenditure of their labor, that the right thus given by each of the parties on and over his premises, became as to him an irrevocable license in favor of all the other parties. Wilson v. Chalfant, 15 Ohio, 248; Meek v. Breckenridge, 29 Ohio St., 642; Hornback v. Railroad Co., 20 Ohio St., 81; LeFevre v. LeFevre, 8 Am. Dec., 696; Rerick v. Kern, 16 Am. Dec., 497; Hazleton v. Putnam, 54 Am. Dec., 165.
    Plaintiffs contend that an easement, servitude or an irrevocable license has been acquired over the premises of each of the parties in favor of all the others, in this: a consideration has been given for the right to erect the telephone structure, possession has been delivered to the telephone company of so much of the premises as was necessary to erect such structure, possession has been taken by the company or association of persons and they have a visible and permanent occupancy of the portion of the premises of each appropriated to the telephone line and structure, as aforesaid; and that there has been such a part performance as takes the matter out of the statute of frauds and that the company or association has property right in the premises of each.
    The plaintiffs further contend that no joint owner has a right to destroy the company or partnership property. 1 Spelling on Injunctions, Sections 587, 588, 589j 590 and 591.

      Mr. H. C. Johnston and Mr. E. D. Davis, for defendants in error.
    The only logical answer we can make to the brief of counsel is to say that he assumes facts not pleaded in the petition, and that he bases his argument upon a proposition of law that does not and cannot arise in the case. So it would be folly for us to discuss the proposition. We suggest to our opponents the reading, of the very excellent opinion of this court in the case of Rodefer et al. v. Railroad Co., 72 Ohio St., 272, and then read their amended petition. Wé ask the court to read only the amended petition.
    We do not question the law quoted from Spelling on Injunctions. We simply say that there are no facts set forth to which the law can apply.
   Summers, J.

If the plaintiffs are entitled to a specific performance of the agreement, then they have an easement created bv parol in the lands of the defendants.

An easement is a right without profit, created by grant or prescription, which the owner of one estate may exercise in or .over the estate of another for the benefit of the former. A license is a personal, revocable and non-assignable privilege, conferred either by writing or parol, to do one or more acts upon land without possessing any interest therein. The Greenwood Lake & P. J. Railroad Co. v. The N. Y. & G. L. Railroad Co., 134 N. Y., 435. Section 4198, Revised Statutes, provides that: “No lease, estate or interest, either of freehold or term of years, or any uncertain interest of, in, or put of lands, tenements, or hereditaments, shall be assigned, or granted, except by deed, or note in writing, signed by the party so assigning or granting the same, or his agent thereunto lawfully authorized, by writing, or by act and operation of law.” This statute would seem to settle the question of the right to a decree for specific performance against the plaintiffs, but it is contended that it is the well settled law of this state that such an agreement is a parol license and that such license when executed is irrevocable. Mr. Freeman in a note to Lawrence v. Springer, 31 Am. St. Rep., 702-715, says: “At common law, a parol license to be exercised upon the land of another creates' an interest in the land, is within the statute of frauds, and may be revoked by the licensor at any time, no matter whether or not the licensee has exercised acts under the license, or expended money in reliance thereon. In many of the states this rule prevails, while in others the licensor is deemed to be equitably estopped from revoking the license, after allowing the licensee to perform acts thereunder, or to make expenditures in reliance thereon. These two lines of cases cannot be reconciled; for one of them holds that an interest in land cannot be created by force of a mere parol license, whether executed or not, while the other declares that where the licensee has gone to expense, relying upon the license, the licensor may be estopped from revoking it, and thus an easement may be created. The former line of cases, it seems to us, is founded upon the better reason. They decide that a parol license to do an act on the land of the licensor, while it justifies anything done by the licensee before revocation, is revocable, at the option of the licensor, and this, although the intention was to confer a continuing right, and money has been expended by the licensee upon the faith of the license. Such license cannot be changed into an equitable right on the ground of equitable estoppel.”

To the same effect is Browne on the Statute of Frauds, Section 31; Jones on Easements, Section 84; Bigelow on Estoppel, 5th Ed., 666.

In Lawrence v. Springer, supra, 49 N. J. Eq., 289, Beasley, C. J., says: “It has not been, and it cannot be, denied that such a grant as the one in question cannot be enforced in a court of law; such easements, being incorporeal, lie in grant, and their creation requires an instrument under seal. Nor is it questioned,' nor questionable, that a parol imposition of a servitude of this kind upon land is in flat contradiction of the statute of frauds. It is true, indeed, that in one class of cases, as is well known, courts of conscience have felt dispensed from putting in force the provisions of that act. This has been the course pursued where a parol agreement for the purchase of lands, or of some interest in them, has been performed to the extent of possession having been taken in part execution of such contract. But while this is the undeniable rule in equity, it should be ever borne in mind that its introduction has been regretted by the wisest judges. 'The statute/ says Lord Redesdale, 'was made for the purpose of preventing perjuries and frauds, and nothing can be more manifest to any person who has been in the habit of practicing in courts of equity than that the relaxation of that statute has been a ground of much perjury and much fraud. If the statute had been vigorously observed, the result would probably have been that few instances of parol agreements would have occurred. Agreements, from the necessity of the case, would have been reduced to writing. Whereas, it is manifest that the decisions on the subject have opened a new door to fraud.’ And these strictures are pointed with the emphatic declaration that ‘it is therefore absolutely necessary for courts of equity to make a stand, and not carry the decisions further.’ Lindsay v. Lynch, 2 Schoales & L., 4. And in the same vein, Judge Story (2 Story’s Eq. Jur., Section 766) says that ‘considerations of this sort have led eminent judges to declare that they would not carry the exceptions of cases from the statute of frauds further than they were compelled to do by former decisions.’ To the same purpose are the criticisms of Chancellor Kent in Phillips v. Thompson, 1 Johns. Ch., 149, and of Chancellor Zabriskie in Cooper v. Carlisle, 17 N. J. Eq., 529.”

Pomeroy in his work on Specific Performance of Contracts referring to the doctrine of the irrevocability of a parol license when executed, says that it is opposed to the common law doctrine concerning licenses as it'prevails in England and in most of the American states. In Rodefer v. Railroad Co., 72 Ohio St., 272, the opinion of Andrews, J., in Crosdale v. Lanigan, 129 N. Y., 604, was quoted from at length with approval, and it is unnecessary to repeat here what was said there. In that opinion he says that it is plainly the rule of the statute, as well as the rule required by public policy, that such a'license though executed is revocable.

See, also, Hicks v. Swift Creek Mill Company, 133 Ala., 411, 91 Am. St. Rep., 38; Pitzman v. Boyce, 11 Mo., 387, 33 Am. St. Rep., 536; Thoemke v. Fiedler and another, 91 Wis., 386; Stewart v. Stevens, 10 Col., 440; The St. Louis National Stock Yards v. The Wiggins Ferry Company, 112 Ill., 384.

The cases are too numerous to cite but may be readily found by reference to the reports and textbooks already cited.

The early cases were grounded on some early English cases which were overruled in the leading case, Wood v. Leadbitter, 13 Meeson & W., 838.

The cases of Wilson et al. v. Chalfant, 15 Ohio, 248, and Hornback v. The Cincinnati & Zanesville Railroad Company, 20 Ohio St., 81, are cited as supporting the doctrine of the irrevocability of such a license. The former seems to have been based upon precedents that were in accord with the early English decisions, which, as we have seen, have been overruled. The later case is not authority for the doctrine, but is a case of a parol agreement for the purchase of an interest in lands which has been performed to the extent of possession having .been taken in part execution of the contract. The later case decided by the Supreme Court Commission, Wilkins v. Irvine, 33 Ohio St., 138, is not in accord with'the earlier doctrine, but is in accord* with the modern doctrine and it is there held that: “A written license, without seal and unacknowledged, to enter upon and imbed water pipes in the land of another, with privilege to enter and repair them,, creates no interest in, nor incumbrance upon the land such as will disable the owner thereof from making a good and sufficient deed conveying a good title thereto.” It may be added that in that case the written license had been executed,, and in the opinion it is said: (144) “It gave the Cleveland Rolling Mill Company no dominion over the land, nor did it create, in its favor, an easement in the land. If its terms had been violated by Brooks or his grantees, the jurisdiction of a court of equity could not have been successfully invoked to enforce a ' specific performance. The remedy, if any it had, would have been an action for damages.”

Judgment affirmed.

Price, C. J., Shauck, Crew and Spear, JJ., concur.

Davis, J.,

dissenting. The contrary rule has been a rule of property in this state for more than sixty years. Wilson v. Chalfant, 15 Ohio, 248. It is in the strictest sense stare decisis and is no longer an open question for the courts. If there is any demand for a change of the law, the legislature alone is competent to decide whether a change so vital to property ■ rights which have been acquired under the existing rule, should be made. -


author: Crew, J.

text:
    The State of Ohio v. Orth.

      Wife not competent witness against husband — Charged with failure to provide for children — Section 3140-2, Revised Statutes.

    The wife is not a competent witness to testify on behalf of the state and against her husband on the trial of the latter upon an indictment charging him with a violation of Section 3140-2, Revised Statutes.
    (No. 11290
    Decided December 1, 1908.)
    Exceptions to the decision of the Court of Common Pleas of Elancock county.
    The facts of this case are stated in the opinion.

      Mr. W. L. David, prosecuting attorney, for plaintiff in error, cited and commented upon the following authorities:

      Whipp v. State, 34 Ohio St., 87; Underhill on Criminal Evidence, 230, 231, 232, 233; State v. Smith, 9 Ohio Dec., 749; Hanley v. State, 5 Cir. Dec., 488; Admx. of Tracy v. Admr. of Card, 2 Ohio St., 431; Henry v. Trustees, 48 Ohio St, 671; Mannix v. Commissioners, 43 Ohio St., 210; Sawyer v. State, ex rel., 45 Ohio St., 343; Yost, Treas., v. Brewing Co., 20 C. C, 32; 66 O. L., 303; 86 O. L., 161; 91 O. L., 50; Section 7284, Revised Statutes.

      Mr. John E. Betts, for defendant in error, cited and commented upon the following authorities.

      Whipp v. State, 34 Ohio St., 87; Benedict v. State, 44 Ohio St., 679; Haberty v. State, 8 C. C., 262, 31 W. L. B., 367; Black on Interpretation of Law, 35, 37, 185; 86 O. L., 161; 91 O. L., 50; Section 7284, Revised Statutes.
   Crew, J.

At the September term, 1907, of the Court of Common Pleas of Hancock county, the defendant, Arthur Orth, was indicted by the grand jury of said county under Section 3140-2, Revised Statutes, for unlawfully neglecting and refusing to provide his minor children, Edna Orth and Harter Orth, aged respectively nine and five years, “with necessary and proper home, care, food and clothing.” Thereafter at the February term, 1908, of said court of common pleas, said indictment duly came on for trial, and the state to maintain the issue on its part and to sustain and prove the allegations and charge in said indictment, called as a witness for the state, Mrs. A. E. Orth, wife of the defendant. Thereupon, after certain preliminary questions had been put to and answered by her, from which it was made to appear that she was then the lawful wife of said Arthur Orth, the defendant’s counsel interposed an objection to her as a witness, on the ground that, in this case, she was incompetent to testify as a witness against her husband. Said objection was upon consideration sustained by the court, to which ruling the prosecuting attorney excepted. Thereupon, the state, without calling any other witness, or offering any evidence in support of the charge made in said indictment, rested its case; whereupon the court, on motion of counsel for the defendant, directed the jury to return a verdict of not guilty, which was accordingly done. The prosecuting attorney on behalf of the state, under favor of Section 7305, Revised Statutes, presents to this court his exception to the ruling and decision of the court of common pleas, in order that he may secure a decision which shall determine the law to govern in similar cases. Upon the present record, the only question presented to this court for determination is: Was Mrs. Orth, wife of the defendant, competent to testify as a witness for the state and against her husband, on the trial of the latter on. the indictment returned against him in this case? It was the well known and well settled rule of the common law, adopted and followed in this state, that husband and wife were not competent witnesses for or against each other in any criminal cáse, except in prosecutions for personal injury committed by the one upon the other, in which latter case it was held, that from necessity, the injured party was a competent witness. 1 Archbold Crim. Pl. & Pr., 472; Bishop’s Crim. Procedure, Section 69; Steen v. The State, 20 Ohio St., 333; Whipp v. The State, 34 Ohio St., 87. The first statutory modification of this common law rule in Ohio is found in the act of the general assembly passed March 28, 1889, 86 O. L., 161. This statute of 1889 was subsequently amended by the enactment of what is now Section 7284, Revised Statutes, which section provides as follows: “No person shall be disqualified as a witness in any criminal prosecution by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of any crime; and husband and wife shall be competent witnesses to testify in behalf of each other in all criminal prosecutions; but such interest, conviction or relationship may be shown for the purpose of affecting his or her credibility. But husband or wife shall not testify concerning any communication made by one to the other, or act done by either in the presence of each other during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness, or unless in case of personal injury by either the husband and wife to the other, or in case of the neglect or cruelty of either to their minor children under ten' years of age. And the rule shall be the same if the marital relation has ceased to exist; provided, that the presence or whereabouts of the husband or wife shall not be construed to be an act under this section.” While it is perfectly obvious, and would seem to be conceded in this case, that the above statute does not in express terms enact or provide that husband and wife shall be competent witnesses against each other in the cases therein specified, it is nevertheless insisted by counsel for the state that the provisions of said statute are only consistent with a legislative purpose to so enact, and therefore, that such provision should be read into the statute and the statute be construed and-given effect accordingly. This we think is clearly a misconception of the proper office and legal effect of the plain provisions of said statute. This section should not be construed or adjudged as requiring or sanctioning such a radical departure from the well recognized and long established rule of evidence in criminal cases, unless its language imperatively demands such construe-lion. If this statute contained only the provisions that: “No person shall be disqualified as a witness in any criminal prosecution by reason of his interest in the event of the same as a party or otherwise, or by reason of his conviction of any crime; and husband and wife shall be competent witnesses to testify in behalf of each other in all criminal prosecutions; but such interest, conviction or relationship may be shown for the purpose of affecting' his or her credibility. But husband and wife shall not testify concerning any communication made by one to the other, or act done by either in the presence of each other during coverture,” none would claim that such statute, was effectual to remove the disqualification and establish the right of husband and wife to testify for the state and against each other in criminal cases. Nor do we think that with any better reason or right, it can be said or claimed, that the mere addition to such statute of certain provisions, the sole office of which is to modify the rule of evidence as to confidential or privileged communications in certain enumerated cases, shall have the effect to so change the rule of the common law, which is grounded on public policy, as to make husband and wife competent witnesses to testify generally against each other in such cases. The only proper effect of the statute — Section 7284— if interpreted to mean what it says, and its language being plain, only such interpretation is permissible, is: 1. The removal thereby of the interest disqualification, and of disability by reason of the conviction, of a crime; 2. To make husband and wife competent witnesses on behalf of each other in all criminal prosecutions; 3. To enact and provide that the rule of evidence as to confidential or privileged communications shall not apply, in case of personal injury by either the husband or wife to the other, or in case of the neglect or cruelty of either to their minor children under ten years of age; but that in such cases, husband or wife, testifying on behalf of each other, shall be competent to testify to communications made by one to the other, or acts done by either in the presence of the other, although no third person was present. That the legislature did not intend by the adoption of this statute to abrogate, or modify, the firmly established general rule of the common law that husband and wife are incompetent to be witnesses against each other in criminal cases, is at once evident when we consider, that with the whole subject before it for consideration, it enacted, by positive provision and in express terms, that husband and wife shall be competent witnesses on behalf of each other, but declined to thus enact that they should be competent witnesses against each other. If it had been the purpose and design of the legislature to so relax or change this rule of the common law as to permit husband and wife to testify against each other in the cases in said statute specified, it would doubtless have so declared in express and appropriate terms, and it would, not have left this purpose to be ascertained or discovered by interpretation, or supplied by mere conjecture. With the policy of the rule that makes the wife incompetent as a witness against her husband in the present case, we are not now concerned. If. the law should be changed in this behalf, so as to make husband and wife competent witnesses against each other in such cases, the duty of changing it devolves upon the legislature, not upon this court.

Exceptions overruled.

Shauck, Summers, Spear and Davis, JJ., concur.