author: Bradbury, J.

text:
    Hixson v. Ogg.

      Issue joinea on material fact — Judgment concludes parties — Fact thus established cannot be retried by same parties.

    Where issue has been joined on a material fact in an action, and the issue judicially determined and carried into judgment by a court having jurisdiction of the action, the parties to such action are concluded by such finding until the judgment is reversed or set aside. And the fact thus established cannot be retried by the same parties in any subsequent action, whether the second action is upon the same or a different subject-matter from the first. In this respect it is immaterial that one of the actions may have been ex contra.ctu and the other ex delicto.

    [Decided October 29, 1895.]
    Error to the Circuit Court of Athens county.
    The facts are stated in the opinion of the court.

      Wood cé Wood; L. M. Jewett and E. A. Guthrie, for plaintiff in error.
    Now, not as a matter of full defense, but as a relevant fact, reflecting upon the question as to whether he, Hixson, had reasonable and probable cause for instituting the prosecution, it was competent to show the fact that a trial upon that issue had been had between the same parties, the plea of payment decided in favor of Hixson, the logic of the judgment being that Ogg’s plea of payment was untrue. The action here is á tort, a malicious prosecution, and the authorities are to the effect that the plea of not guilty by way of general denial raises every question in the case, and makes admissible all evidence reflecting upon the question of reasonable and probable cause. Sackett’s Instructions to Juries, 296,297, and authorities there cited; Pomeroy’s Rem. Rights and Rem.,709, section 680; Bliss on Code Pleading's, section 328; lGreenleaf on Evidence, section 531; Benedict v. Batman, 6 How. Prac., 298; White v. Tucker, 16 Ohio St., 469; Abbott’s Trial Ev., 655; Burley v. Rose, 57 Iowa, 651; 14 Am. & Eng. Ency. Law, 45; Whittaker’s Code, 102, 103.
    That the instruction refused by the trial court is bad law, we claim is apparent upon the following' line of reasoning', that the action below sounded in tort and not contract. The court was bound to construe thus the record of this judgment, and it was in effect and instruction and ruling that the former adjudication might be considered by the jury as reflecting upon the question o’f reasonable and probable cause. Covington and Cincinnati Bridge Co. v. Sargent, 27 Ohio St., 233; Swenson v. Cresop, 28 Ohio St., 668; Peterson v. Thomas, 28 Ohio St., 596; Lessee Fowler v. Whitman, 2 Ohio St., 270; Pollock v. Coen, 32 Ohio St., 514; Martin v. Roney, 41 Ohio St., 141; Cromwell v. County of Sac, 94 U. S., 351; 27 Ohio St., 233; 28 Ohio St., 596.
    We claim that the special instruction embodied and connected together a proposition of good and a proposition of bad law, and hence was properly refused by the trial court. Inglebright v. Hammond, 19 Ohio, St., 337; Walker v. Devlin, 2 Ohio St., 593; Eckles v. State, 20 Ohio St., 508; French v. Millard, 2 Ohio St., 45.
    Crosvenor, Jones <& Worstell and I. A. Koons, for defendant in error.
    Now, it was incumbent upon Ogg to show the want of reasonable and probable cause, and in order to do so, he must retry the question of whether he paid that money or not. If not, by a simple answer, Hixson could have defeated the action.
    We believe that the court of common pleas erred all along the line, and in no one place more thoroughly and conspicuously than in refusing to modify the special charge given at the defendant’s request. We asked the court to add to this special charge the following: “But that judgment is not
    a bar to this action, and the question of the payment of said money can be retried here for the purpose of this action.”
    It simply brings to the front a single question, and that is: Is the judgment of the court in one case final in another case in no wise connected or related to it, except through the parties ?
   Bradbury, J.

In the year 1887 the plaintiff in error, Peter Hixson, brought an action against the defendant in error, William Ogg, upon a promissory note. Ogg set up, as one defense, a payment of $255, which was denied by Hixson. A jury was waived, and the cause tried to the court, which found against the alleged payment. Ogg made a motion for a new trial, one ground of which was newly discovered evidence. On the hearing of the motion for a new trial Ogg produced and offered in evidence a paper writing’purporting to be a receipt signed by Hixson for the $255 which Ogg claimed to have paid. The motion was overruled, and a judgment which remains in force rendered on the finding of the court.

Hixson contended that this receipt had been forged, and afterwards caused Ogg to be indicted for forging’ and uttering the same. Upon the trial of this indictment Ogg was acquitted; he thereupon brought an action against Hixson for malicious prosecution. When this latter action came on to be tried Hixson contended that the finding of the court, made in the former action (on the note), that the $255 had not been paid, was conclusive, while Ogg contended that he could relitigate that question in the new action. Upon this question, at the request of Hixson’s counsel, the court charged the jury as follows:

“Whether or not the money (that is the $255), was or was not paid as claimed by the plaintiff, to the defendant, if it was submitted to the court in the case of the defendant against the plaintiff in the former suit between them, it is a matter adjudicated in that case, and it is settled by the adjudication made in that case; which adjudication is that the said sum of money was not paid. ’ ’

The plaintiff, Ogg, excepted to the instructions thus given, and requested the court to give to the jury the following special instructions:

‘ ‘ Second. But that judgment is not a bar to this action, and the question of the payment of said money .can be retried here for the purpose of this action. ”

The court declined to give this proposition to the jury, to which refusal Ogg excepted. The verdict and judgment were in Hixson’s favor. The cause was taken to the circuit court, and the judgment of the court of common pleas was there reversed upon the sole ground that the court of common pleas erred in refusing to instruct the jury, as requested by Ogg, as follows: ‘‘But that judgment is not a bar to this action, and the question of the payment of said money can be retried here for the purposes of this action.” The cause was then brought to this court by Hixson, to reverse this holding of the circuit court.

The instructions that the court of common pleas refused to give to the jury and for which refusal the circuit court reversed the judgment, contains two propositions: 1st, That the judgment in the former action (upon the note) was not a bar to the second action (for malicious prosecution). 2nd, That the question of the repayment of the money ($255) could be retried for the purposes of the second action.

The first proposition was sound, and if it had stood alone should have been given to the jury; because the subject matter of the two actions was different, and their respective natures such that the decision of one could not determine the other.

This proposition, however, as we have seen, was embodied in a single request, with another proposition, and the whole asked to be given in charge to the jury. If this other proposition was unsound, a refusal to comply with the request was not error. Where a sound arid pertinent legal proposition and an unsound one are united in a single request, the court is not bound to separate them and give to the jury the sound proposition, but may decline to give it in the form presented. ‘ Inglebright v. Hammond, 19 Ohio, 337; French v. Millard, 2 Ohio St., 45; Walker v. Devlin, 2 Ohio St., 593.

This brings us to the consideration of the second proposition. Whether the question of the payment of the $255 could he retried in the second action.

In the action brought by Hixson on the promissory note, Ogg had plead the payment of this sum as a defense pro tanto. Hixson, by his reply, joined issue on this plea. Upon the trial of the action this issue was found in favor of Hixson, and a judgment entered on the finding, which finding and judgment remain in full force. The general rule, established by the uniform current of authority, is that an issue once tried, decided, and carried into judgment works an estoppel, and cannot be relitigated by the same parties in a subsequent action, though the subject of the two actions are different. _Perkins v. Walker, 19 Vermont, 145; Betts v. Starr, 5 Conn., 550. In the latter case Bristol, J. laid down the rule as follows : “Where the cause or object of two actions is different, though the matter or point in dispute is the same in both, a prior judgment is no bar' to a subsequent action; but the verdict may be matter of evidence to prove such point in dispute. * * * for although the object and purpose of two actions being different, the judgment in one, cannot be used by way of bar to the other, it does not follow, that in the second action, either party can be permitted to contradict what was expressly adjudicated in the first.” Ib 553. “A decision upon any material point is conclusive, thoug-h the subject matter of the two suits is different ” Freeman on Judgments, vol.l, section 253. “A judgment is conclusive, not only as to the subject-matter in suit, but as to all other suits which, though concerning other subject matters involve the same questions of controversy.” Ib.

In Bigelow on Estoppel, 99, the rule is announced in the following language: “A matter of fact * * * once adjudicated by a court of competent jurisdiction, concurrent or exclusive, however erroneous the adjudication, may be relied upon as an estoppel in any subsequent collateral suit in the same or any other court * * * and this, too, whether the su bsequent suit is upon the same or a different cause of action. ’ ’

The authorities on the question are numerous but it is not necessary to refer to them specifically. The rule has been adopted, in this state, and applied with as much firmness as in the courts of any of the states of the American union. The first clause of the syllabus in Covington and Cincinnati Bridge Co. v. Sargent, 27 Ohio St., 233, reads : “In a judicial proceeding in a court of record, where a party is called upon to make good his cause of action or establish his defense, he must do so by all the proper means within his control, and if he fails in that respect, purposely or negligently, he will not afterward be permitted to deny the correctness of the determination, nor to relitigate the same matter between the same parties.”

In Cromwell v. County of Sac., 94 U. S., 351. The difference between the effect of ,a judgment as a bar to a second action on the same demand, and its effect as an estoppel between the same parties upon a different cause of action, is clearly stated in the first clause of the syllabus: “In the former ease, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. * * * But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. ” .

Nor is it material in this respect that one of the actions may be ex contractu, while the other sounds in tort. In the nature of things, if the facts upon which different causes of action rest, have no connection with each other, a fact established in the action first tried, cannot affect the subsequent action; for the obvious reason that such fact would be immaterial in respect to the latter action; but where certain facts are common and material to both actions, the subject matter of the two actions are connected to that extent, whether both be ex contractu, both ex deUcto, or 'one founded on contract and the other in tort. And if, in such case, the common and material fact has been judicially ascertained in the action first tried, it should be regarded as established in respect of the other action, so long as the judgment remains in force.

Upon the question respecting the payment of the $255, the parties had had their day in court; the matter had been solemnly adjudicated, and public policy requires that the question between them should be forever foreclosed. This finding may have been the chief inducement that moved Hixson to institute the prosecution which was the foundation of the second action. The nonpayment of the money named in the receipt had been judicially declared in an action directly involving the question. Hixson would be likely to rely with eonfidence upon the truth of a fact thus ascertained. True, it is conceivable that Hixson knew that the money had been paid and that the finding of the court to the contrary.was false, and yet, wantonly availed himself of the adjudication to annoy his antagonist. If such was the case, the estoppel produced a result to be regretted. Doubtless cases occasionally occur where the estoppel works a hardship. It must always do that where it in fact prevents the assertion of a just demand or denies the interposition of a meritorious defense; but these results rarely occur, and where they do occur, they can usually be traced to the negligence of the party estopped. The possibility of an occasional advantage unfairly secured by one of the parties to an action by reason of the rule, is indeed a slight evil when compared with the mischief which would result from its abrogation. The rule is founded upon that principle of public policy which requires that litigation shall not be interminable, and demands that when a party has had a fair trial before a tribunal established for that purpose, and has exhausted the remedies provided by law to obtain a new trial, he shall be held to abide the judgment of the court.

Judgment of the circuit court reversed, and that of the common pleas affirmed.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    The L. E. & W. Railroad Co. v. Mackey.

      Depositions attached to bill not marked as exhibit — Reviewing court may refuse to treat such as part of bill — Action against railway for personal injury — Contributory negligence — Degree of care expected from child, question jor jury — Section 6980, Rev. Stat.

    1. It is not error for a reviewing court to refuse to treat as part of a bill of exceptions a deposition claimed to be the identical deposition given in evidence at the trial, where such deposition is attached to the bill only by being placed between the pasteboard back and the stenographer’s report (although held with sufficient tenacity-to retain its place), and not marked as an exhibit, nor identified by either the trial judge, nor the stenographer, nor by any one.
    2. Where a petition in an action against a railroad company for personal injuries charges that defendant negligently and unlawfully stopped a freight train across a public highway for a period of more than five minutes, and that while plaintiff, after the expiration of that period, was attempting to cross the street between the cars, defendant without warning, wrongfully and negligently backed the train, causing plaintiff’s injuries, such two charges of negligence are not separable in the sense that one only would be the proximate cause • of the injury; taken together they constitute a sufficient allegation of negligence as against a general demurrer.
    3. A child of nine years of age is not guilty of negligence if he exercises that degree of care which under like circumstances would reasonably be expected from one of his years and intelligence. Whether he used such care in a particular case is a question for the jury. And even though the petition might, if the plaintiff were an adult, be construed as disclosing contributory negligence; an averment that the plaintiff was at the time a child of nine years of age, and of immature experience and judgment, is sufficient to rebut the presumption of contributory negligence.
    4. Where, in such case, the evidence at the trial tends to show that a freight train has been permitted to stand across a pub- ' lie street beyond the period of 'five minutes, to the hindrance or inconvenience of travel thereon, in violation of section 6980, Revised Statutes, and persons, rightfully on the street are passing between the cars of the train, it becomes a question for the jury whether or not it is negligence for the company’s servants to move the train without giving timely warning of their intention to do so.

      5. Whether, under such circumstances, a child of nine years who attempts to cross and in doing so climbs upon the coupling of a car, is a trespasser or not, is a question for the jury.
    6. It is also a question for the jury whether or not the mere presence of the train is to be taken as notice to such child that the train is likely to be moved at any time.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Mercer county.
    The action below was by the defendant in error, by next friend, against the plaintiff in error to recover damages for alleged negligence. A judgment was obtained in the common pleas which was affirmed by the circuit court. To reverse these judgments the present proceeding is prosecuted.

      Marsh da Loree, W. E. Eackenclorn and John B. Cockrum, for plaintiff in error.
    The train was not approaching the crossing in any sense and it is maintained that the law (section 3336, Revised Statutes of Ohio) requires the engineer in charge of an engine in motion and approaching- a turnpike, hig’hway or town crossing upon the same level therewith to sound a whistle at a distance of at least eighty and not farther than one hundred rods from the place of such crossing; and ring a bell continuously until the engine passes such road crossing-. So that as the train was not approaching- a crossing the engineer- on starting the train from its position of rest, on the crossing was not required to sound a whistle or ring a bell, was not required to give signal, or any particular notice of his intention to start his train either forward or backward. If then the engineer was not required to give warning by bell or whistle what act of omission or commission on the part of the servants of the company were committed resulting in injury to the defendant in error ? Faurot

      v. Neff, 32 Ohio St., 44; Peterson v. Roach, 32 Ohio St, 374.
    Negligence cannot be alleged without setting forth the acts and omission of the defendant upon which the right of recovery is based, and then showing by appropriate averments that they occurred through the negligence of the defendant. Kinkead’s Code Pleading, volume II, 885.
    There is no averment of any omitted duty of plaintiff in error. The petition must show a legal duty or obligation imposed on the defendant towards the person injured, existing at the time and place of the injury, which the defendant failed to perform, by reason of which the injury was occasioned. Thicle v. McManns, 3 Ind. App., 132; Railroad Co. v. Griffin, 100 Ind., 221; Sweeney v. Railway Co., 10 Allen, 368; Blacks P. & P., section 138.
    It has been held that it is not sufficient to allege that a duty existed and that the defendant violated it, but all the facts showing the duty should be stated. Anges v. Lee, 40 Ill., App., 304; Clark v. Dyer, 81 Tex., 339; Davis v. Guarnieri, 45 Ohio St., 470.
    There was no imposed duty to send their employes to Main street crossing to relieve persons from any perilous position that their curiosity or rashness had Jed them to, before such employes could start their freight train upon its mission for the public. Morrissey v. Railroad Co.,. 126 Mass., 380; Gay v. Electric St. Railway Co., 159 Mass., 238; McGinnis v. Butler, 159 Mass., 233; Railway Co. et al. v. Bingham, Admx., 29 Ohio St., 364.
    Had Joseph Mackey been an adult there certainly would be no question but the act of crossing a train occupying a street crossing by climbing upon and over the coupling of two freight cars, would be an act of rashness, as if injured in the attempt to cross would bar a recovery. Corcoran v. Railway Co., 105 Mo., 399; Howard v. Railroad Co., 41 Kan., 405; Railroad Co. v. Plackett, 47 Kan., 112.
    Joseph Mackey being nine years of age was not a person non sui juris. We maintain therefore that his petition must be as free from disclosing contributory negligence as in case of an adult. Railroad Co. v. Barber, 5 Ohio St., 541; Street Railroad Co. v. Nolthenius, 40 Ohio St., 376; Robinson v. Gary, 28 Ohio St., 241; Railroad Co. v. Whitacre, 35 Ohio St., 627; Voss v. Young, 10 W. L. B., 292; Street Ry. Co. v. Fullbright, 7 W. L. B., 187; Hays v. Gallagher, 72 Pa. St., 140; Hoth v. Peters 55 Wis., 405 ; Engel v. Smith, 82 Mich., 1; Mathews v. Cedar Rapids, 80 Iowa, 459 ; Guess v. Railroad Co., 30 S. C; Oil City, etc., v. Boundy, 122 Pa. St., 449.
    We maintain that the capacity of Joseph Mackey was not the subject of expert evidence.
    The ordinary affairs of life cannot be the subject of expert testimony. Matters concerning which the jury can form an opinion as intelligently as can the witness, are inadmissible. Davis v. State, 78 Ind., 15; Knoll v. State, 55 Wis., 249; Pennsylvania Co. v. Conlan, 101 Ill., 93; Passmore’s Appeal, 27 N. W. R., 601; Hallahan v. Railroad Co,. 102 N.Y., 194; Neilson v. Railroad Co., 59 Wis., 516; Watson v. Railroad Co., 57 Wis., 332; 2 Ohio St., 452.
    The exact question that a railroad is liable to trespassers upon its premises only for wanton or wilful acts of negligence, and that the rule applies to a child of tender years as to an adult, we believe never has been decided by Supreme Court of Ohio, but it appears to be well settled as the law by text writers and by the courts of other states. Morrissey v. Railroad Co., 126 Mass., 380; Patterson Railway Accident Law; 4th Am. Eng. Railroad Cases, 572; Frost v. Railroad Co., 64 N. H., 220.
    The owner is under no duty to a mere trespasser to keep his premises safe, and the fact that the tresspasser is an infant cannot have the effect to raise a duty where none otherwise exists. Nolen v. Railroad Co., 53 Conn., 416; Gay v. Electric Street Railway Co., 159 Mass., 238.
    If a child trespass on the premises of the defendant, and is injured-by something which he does while trespassing, he cannot' recover unless the injury was wantonly inflicted by or was due to the reckless, careless conduct of the defendant. McGuiness v. Butler, 159 Mass., 233; Daniels v. Railroad Co., 154 Mass., 349; McEuchern v. Railroad Co., 150 Mass., 515; McAlpin v. Powel, 70 N. Y., 126; Lake Shore Railway Co. v. Bodemer 139 Ill., 596; Railroad Co. v. Norway, 7 O. C. C. Rep., 449.
    It may be urged that this is not the law of Ohio and that there are decisions against this doctrine, but the decisions that would appear to be against the doctrine here maintained, are found in a peculiar class of cases; which will be found upon examination not similar. Harriman v. Railway Co., 45 Ohio St., 11, known as the torpedo ease; Lynch v. Nurdin, 1 Q., B. 29.
    The rule .in Ohio, declaring what is necessary to make a paper or documenta part of a bill of exceptions, is very clearly stated, in the following cases:

      Hicks v. Persons, 19 Ohio, 426; Wells v. Martin, 1 Ohio St., 387; Busby v. Finn, 1 Ohio St., 410.

      Robert L. Mattvngly, Patrick E. Kenney and Edgar B. Kinkeacl, for defendant in error.
    A petition against a railroad company for personal injury that charges such company with negligently and unlawfully stopping a train of freight cars across the most public and most frequented street crossing of a village and holding the crossing for an unlawful period of time; and that while the plaintiff, a child of nine years of age, without the capacity to appreciate the danger, was attempting to cross such street between the cars and in plain view of the engineer and any other servants in charge of the train, the servants of such company, negligently and without any warning or attention to the crossing suddenly moved such train backward and thus injured the child, states a good cause of action, and the two alleged causes of unlawfully leaving the train on the crossing and moving the same without warning, are not independent of each other or separable, in the sense that one only would be the proximate cause, of such injury. Rauch v. Lloyd, 31 Pa. St., 358; Railroad Co. v. Stout, 17 Wall., 657; Burger v. Mo. Pac. Ry. Co., 112 Mo., 238; Henderson v. Railway Co., 55 N. W. Rep., 53; Schmitz v. Railway Co., 24 S. W. Rep., 472; Angus v. Lee, 40 Ill. App., 304; Harper v. Railroad Co., 36 Fed. Rep., 102; Davis v. Guernieri, 45 Ohio St., 470.
    Where a railroad company by leaving its train on a street crossing has negligently and unlawfully taken the exclusive possession thereof and unlawfully holds the same as against persons who are congregated at the crossing to pass such point, and some are crossing over the cars in view of the engineer and other servants in charge of the train, it is a question for the jury whether or not the company may suddenly move such train without first giving some warning to apprise persons who may be in positions of danger induced by such obstruction of the highway. Barkley v. Railway Co., 96 Mo., 378; Railway Co. v. Layer, 112 Pa. St., 414; Eaton v. Fitchburg Railway Co., 129 Mass., 364.
    The degree of care required to be exercised by a child of tender years, and the omission of which will constitute negligence on his part, is to' be measured in such case by the maturity and capacity of the individual. And whether the facts be disputed or undisputed, if different minds may honestly draw different conclusions from the facts, the question is properly left to the jury. Rolling Mill Co. v. Corrigan, 46 Ohio. St., 283; Railroad Co. v. Snyder, 18 Ohio St., 400; Clark v. Chambers, 3 Q. B. Div., .327; Railroad Co. v. Gladman, 15 Wall., 401; Railroad Co. v. Kelley, 7 Pa. St., 2; 47 Pa. St., 300; 57 Pa. St., 172; Thurber v. Railroad Co., 60 N. Y., 326; Nat. Bank v. City Bank, 103 U. S., 568; Railroad Co. v. Picksley, 24 Ohio St., 654.
    Where a statute declares the obstruction of a street crossing by railroad cars or trains for more than a determinate period unlawful and requires the same to be opened after that period; and declares any obstruction of a street or crossing a, nuisance, it is within the design of such statute to require the railroad company to observe certain rules of care and precaution to provide against injuries to the public or any member thereof. Hayes v. Railway Co. 111 U. S., 239; Taylor v. Railroad Co., 45 Mich., 74; Barnes v. Ward, 9 C. B., 392; State v. Morris R. Co., 25 N. J. L., 437; C. I. R. Co. v. Stead, 95 U. S., 161; Beiseigul v. N. Y. C. R. Co., 40 N. Y., 9; Black v. B. C. R. Co., 38 Iowa, 515; Robinson v. Railroad Co., 48 Cal., 409.

      To make a paper a part of the bill of exceptions, it must be incorporated in it, attached to it, or filed with it and so described as to leave no doubt of its identity. Revised Statutes, section 5334; Kerr et al. v. Burns, 12 W. L. B., 68; Hicks v. Persons, 19 Ohio, 426; Wells v. Martin, 1 Ohio St., 387; Bushy v. Finn, 1 Ohio St., 410.
    There are four general classes of persons to regard in an action for injury, (1) Adults, who are in law and fact sui juris and must be free from contributory negligence; (2) infants under seven years of age who are presumed non sioi juris and incapable of contributory negligence; (3) children between seven and fourteen who are not presumed either sioi juris, or non sui jioris, but are primeo fcocie incapable of contributory negligence, the question being one of fact; and (4) infants between fourteen and twenty-one years who are presumed sui jioris and capable of contributory negligence, but such capacity may go to the jury. Rolling Mill Co. v. Corrigan, 46 Ohio St., 283; Schmidt v. Railway Co., 23 Wis., 186; McGreary v. Railroad Co., 235 Mass., 363.
    A general 'allegation of negligence is unlike an allegation of fraud. Railroad Co. v. Wolfe, 80 Ky., 84; Nolton v. Railroad Co., 15 N. Y., 444; Railroad Co. v. Phillips, 66 Ill., 551; Railroad Co. v. O’Neil, 49 Kan., 367.
    The allegation of the age of child taken with the allegation of want of capacity to appreciate the act committed, brings the case squarely within the rule announced in Lynch v Hurdin, 1 Q. B. 29; 41, E., C. L. 422; Railroad Co. v. Snyder, 18 Ohio St., 400; Harriman v. Railroad Co., 45 Ohio St., 11; Patterson’s Ry. Accident Law, sections 71, 72, 73, and authorities cited.

      In this case where there was no duty owing- to the railroad company by the child except to exercise ordinary care of a child it is necessary to negative contributory negligence. The matter of contributory negligence being one of defense to be made out by the defendant. Street Ry. Co. v. Nolthenius, 40 Ohio St., 375; Robinson v. Gary, 28 Ohio St., 241; Voss v. Young, 10 W. L. B., 292.
    At common law children under seven years of age are conclusively presumed to be without discretion and incapable of committing crime. And between seven and fourteen years of age they are prima facie incapable of exercising judgment and discretion, but evidence is received to rebut the presumption of incapacity. 1 Bishop Orim. Law, section 368; 1 Wharton Crim. Law, 58. The question of capacity is for the jury and not one of law to be determined by the court. 1 Thompson, Negligence, 452; Byrne v. Railroad Co., 83 N. Y., 620; Dowling v. Railroad Co., 90 N. Y., 671: O'Mara v. Railroad Co., 38 N. Y., 445; Mowrey v. Railway Co., 51 N. Y., 666; 60 N. Y., 336; 26 N. Y., 591.
    The trespass and unlawful act began with the unlawful stopping of the train and only ended with clearing the crossing. Murray v. Railroad Co., 70 Am. Dec., 219; Railroad Co., 112 Mo., 238; Henderson v. Railway Co., 55 N. W. Rep., 53; Schrintz v. Railway Co., 24 S. W. Rep., 472; 37 N. E. Rep., 406.
    A child is not guilty of contributory negligence if he exercises that degree of care which, under the same or similar circumstances, would be reasonably expected from one of his age and capacity, and where the petition charging the negligence is sufficient and the evidence proves its allegations, the question is properly left to the jury. Railroad Co. v. Spearen, 47 Pa. St., 300; 105 Mo., 399; 101 Mo., 12; 103 U. S., 668.
    The proximate cause of the injury of Joseph Mackey was .the entire mismanagement and negligent conduct of the servants of the defendant in the obstruction of the street crossing and sudden movement of the train without any warning. To split such a single, simple, individual cause into two causes and to christen them proximo, and remota, is to embarass ourselves unnecessarily and to obstruct the course of justice. Nagee v. Railroad Co., 75 Mo., 653; Railroad Co. v. Reaney, 42 Md., 117.
    The blocking of street crossings in the state of Ohio for more than five minutes, when it is unnecessary, is an offense and prohibited by statute, sections 4748, 6980a; and is a nuisance, section 6921, Railroad Co. v. Morey, 47 Ohio St., 215; and is against the policy of the ■ state. Railroad Co. v. Maurer, 21 Ohio St., 421.
   Spear, J.

1. A preliminary question is made, with respect to the action of the circuit court in overruling a motion to reattach certain depositions to the bill of exceptions. It is recited in the bill that depositions of the witnesses named were given in evidence, and that they are attached, marked respectively Exhibits “E” and£ £F. ’ ’ Proof was heard for and against the claim that the depositions were ever part of the bill. Giving to the testimony a construction most favorable to the plaintiff in error the question, reduced to its last analysis, is whether a paper claimed to be the identical paper given in evidence at the trial, which was attached to the bill of exceptions only by being placed between the pasteboard back and the stenographer’s report, in which position it was held with sufficient tenacity to retain its place, but which paper was not marked nor identified as an exhibit, either by the trial judge or the stenographer, or by any one, can be treated as a part of the bill. We think it cannot. The circuit court did not err in overruling the motion, nor in refusing to pass upon the weight of the evidence Hicks v. Persons, 19 Ohio, 426; Wells v. Martin, 1 Ohio St., 386; Busby v. Finn, Id., 409.

2. It is insisted that the petition fails to state a cause of action, and that the trial court therefore erred in overruling a general demurrer to that pleading. The criticisms are that there is no averment that the train was unnecessarily detained on the crossing; that the allegations of negligence are mere epithets, and not a statement of the omission of any duty, and that the presumption of contributory negligence arising from the facts stated is not overcome by proper averments.

Omitting formal parts, the petition alleges in substance that the plaintiff was a minor of the age of nine years; that defendant’s track through the village of Coldwater intersects and crosses Main street at grade; that Main street is a common thoroughfare and highway, tlie principal street of said village, and the point of junction bothapublic highway and street crossing, necessarily much used and frequented by the public. On June 5, 1890, the defendant did negligentlyandunlawfully, and without due care on the part of the servants of said defendant in charge thereof, leave a long train of freight cars attached to a locomotive, standing upon and over, obstructing and blocking said crossing for a period of more than five minutes, without any attention to said crossing or the consequence to the convenience or life and limb of persons having occasion to pass such obstruction. That at the time aforesaid, during the hour of noon of said day, while said train was so unlawfully standing on said crossing, the plaintiff, a child of tender years and immature experience and judgment, was lawfully passing along said street going to a point beyond said crossing on Main street. When, arriving at said crossing and in full view of the engineer’s position, and in full view of any servant being on the lookout or keeping watch over said train, he found said crossing so obstructed and blocked by said defendant’s train; that after remaining at, said crossing for more than five minutes, and receiving no warning, plaintiff, in full view of the engineer’s proper position, and within the knowledge of ordinary prudence of defendant’s servants, attempted to pass over and cross such obstruction. While so passing over said cars defendant’s servants, without any care or attention to said crossing, or the consequence to any one attempting to pass such unlawful obstruction, without due care, without signal, without notice, without warning, did then and there imprudently, carelessly, negligently and wrongfully start said ears suddenly and violently backward, whereby said plaintiff’s right foot was caught between the couplings of two ears, and the injury followed.

If the action were to recover the penalty prescribed by section 4748, Revised Statutes, or to recover damages arising to any person by reason alone of the obstruction, it would be necessary to aver that the obstruction was continued unnecessarily, for that condition is incorporated in the statute. But section 6890, Revised Statutes, which provides that “any person who permits any car or locomotive of which he has charge to remain upon or within thirty feet of the center or across any public road, street, or alley, for a period longer than five minutes * * * shall be fined, ” etc., does not impose the requirement of showing that the cars were so permitted to remain unnecessarily, and the language quoted clearly implies the duty to remove the obstruction after the lapse of five minutes. Notice of this statute being taken, the neglect of duty is implied from the statement of the fact of continued obstruction. So construed, the petition makes a case of violation of duty, and this, with the averment that the act was negligently done and the further allegation that the starting of the ears, by which the injury was immediately caused, was done negligently, without warning and wrongfully, we think is sufficient charge of negligence as against a general demurrer. The general rule is that allegations which adequately state the facts of negligence are sufficient to constitute a good pleading. An allegation specifying the act, the doing of which caused thq injury, and averring generally that it was negligently done, states a cause of action, although it be not apparent from the complaint how the injury resulted from the negligence alleged.” Boone’s Code Pleading, section 174; Bliss’ Code Pleading, section 211a/ Maxwells’s Code Pleading, 251) Gulf, etc., Railroad v. Washington, 49 Fed. Rep., 347; Rushville v. Adams, 107 Ind., 475. Nor are the two negligent acts independent of each other. Both concur in constituting an act of negligence, viz.: the negligent starting of a train, negligently and unlawfully obstructing a street crossing. Burger v. Railway, 112 Mo., 238.

Nor is the petition faulty in that it does not sufficiently negative the presumption of contributory negligence. It is well settled that a child is presumed to possess only such discretion as is common to children, and is, therefore, held only to the exercise of such care as is reasonably to be expected from children of his own age and capacity. Rolling Mill Co. v. Corrigan, 46 Ohio St., 283. The law as to personal responsibility of a child for his acts is declared by Bishop, in his work upon Criminal Law, section 368, in these words: “Since, in reason criminal capability depends on the understanding rather than the age, there can be no fixed rule of ■ age which will operate justly in .every possible case. But an imperfect rule is practically better than none. Therefore, at the common law, a child under seven years is conclusively presumed incapable of crime. Between seven and fourteen the law also deems the child incapable, but only prima facie so, and evidence may be received to show criminal capacity.” The rule is sustained by many authorities, and may be regarded as an accepted rule of criminal law; and it would seem that the principle should have application to a case of negligence. Prof. Thompson, in his work on Negligence, at page 1181, comments as follows: “Two questions arise: 1. At what age or period of a child’s development shall it be held to be sui juris for the purpose of cases of this kind; 2. Whether this is a question of law or a question of fact. When the age of the child admits of no doubt as to its capacity to avoid danger, the court will decide this question as a matter of law. * * If there is any doubt as to the child being of the age and capacity that in law constitutes one sui juris, it should be submitted to the jury to say by their verdict whether he is so or not. ” The rule is tersely stated by Mr. Justice Hunt, in Railroad Co. v. Gladmon, 15 Wallace, at page 408, thus: “The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case.”

Unless, therefore, it can be held as matter of law, that the injured person had the capacity to foresee and avoid danger, negligence will not be imputed to him. And inasmuch as this presumption will not be visited upon children under the age of fourteen, it follows that the averment that the plaintiff was a boy of nine years of age, and that he was of immature experience and judgment, is sufficient to rebut any legal presumption of contributory neglig-ence from other facts appearing in the petition. Sharswood’s Blackstone, Vol. 1, 435, 464; Vol. 4, 20; Rauch v. Lloyd & Hill, 31 Pa. St., 358; Nagle v. Railroad, 88 Pa. St., 35, 39; Rhodes v. Railroad, 84 Ga., 320; Thurber v. Railroad, 60 N. Y., 326; Dowling v. Railroad, 90 N. Y., 670.

3. Defendant’s counsel asked the court to charge the jury that “If you find in this case from the evidence, that defendant’s train of cars occupied Main street crossing in Coldwater, Ohio, for a period exceeding five minutes, and more, than the statutory period, and you further find that plaintiff, while said train so occupied said crossing, climbed up between two of defendant’s cars in said train, he, by so doing became and was a trespasser, and while so trespassing the defendant owed him no duty in moving the train from such crossing, unless you find from the evidence, that defendant .and its servants operating the train knew of his presence there,” which was refused.

This request implies that, under the circumstances stated, the plaintiff would, as matter of law, be a trespasser if he climbed up between two of the cars while attempting to cross over. We think this a question of mixed fact and law. The evidence tended to show that at the time the attempt to cross over was made the crossing had been obstructed for more than five minutes to the hindrance of travel thereon, which act of continued obstruction, if proven, was a violation of law and made the company itself a trespasser. Its cars were where they had no right to be, while, if the boy was rightfully upon the crossing, as the evidence tended to show he was, he was where he had a right to be, and his attempt to pass the obstruction by climbing upon the ears would not make him a trespasser. It was, we think, for the jury to say whether he was a trespasser or not.

Defendant’s counsel also requested the court to charge “That if a public highway is completely blocked by a united freight train, attached to an engine, such possession of the highway by the train, even though such possession extends beyond the statutory time, is notice to all traveling public, children and adults alike, of the presence of such train at such place, and that it is likely to be moved at any time, and such train in that condition is not an invitation to any of the traveling public to pass over' the crossing by climbing upon, or over such train,” which was refused.

One objection to this request is that it ignores the difference between the responsibility of adults and children already adverted to. Whether or not the presence of a train upon a crossing should be treated as notice to a child of nine years of age that it is likely to be moved at any time depends upon the degree of intelligence and judgment possessed by the child, and that, as we have already found, is a question of fact for the jury. Besides this, it might he argued that the train would naturally furnish temptation to such a child, when desiring to pass, to take great risk in doing so, and that trainmen, as reasonable men, ought to anticipate that children would exercise only the discretion usual among’ children, and, if circumstances indicated their presence at the crossing, to take reasonable precautions for their safety.

The charge as a whole was excepted to. We think it correctly presents the law, and is as favorable to the defendant below as its counsel could well ask.

Other questions were argued. They have all been considered, but we do not find anything in the record which would warrant a reversal of the judgment. Judgment affirmed.


author: Burket, J.

text:
    The Pittsburgh, Fort Wayne & Chicago Railway Co. v. Martin, Treasurer.

      Action against county treasurer — Enjoining collection of taxes— Substitution of incoming treasurer■ — Payment of taxes no bar to prosecution of error — Invalidity of act of May 4,1891 (88 Ohio Laws, 593) — Constitutional law.

    1. The act of May 4, 1891 (88 O. L., 593 ), entitled “An act relating to certain cities of the fourth grade of the second class, ” is in conflict with section one of article 13 of the constitution of this state, and is therefore void.
    2. An action against a county treasurer for the purpose of enjoining the collection of taxes, is in its nature against the office, rather than against the person filling such office. In case of a change of incumbent, the action may proceed as commenced, or the new treasurer may be substituted.
    3. In an action to enjoin the collection of taxes levied under an unconstitutional act, the payment of such taxes after the dissolution of the injunction on final hearing, does not prevent the plaintiff from prosecuting error to test the validity of the act, when by its provisions other taxes are to be levied for one or more years.
    (Decided October 29, 1895.)

      Error to the Circuit Court of Columbiana county.
    The body of the petition in the court below is as follows:
    “Plaintiff says that it is a corporation duly organized and existing, and that under the laws of the state of Ohio it is authorized to own and operate a railroad through, or within said state; that it is the owner of a continuous line of railway and right of way, extending from Pittsburgh, in the state of Pennsylvania, through the state of Ohio, to Chicago, in the state of Illinois; that said railway passes through and lies partly within the corporate limits of the city of Salem, Columbiana county, Ohio; that the defendant, John R. Martin, is treasurer of said Columbiana county.
    “Plaintiff further says that heretofore, and during the years 1892 and 1893, the council of the city of Salem made two separate annual levies of tax of four mills on the dollar each, upon all taxable property of said city, for the sole purpose of paying the interest upon, and providing a sinking fund for the final redemption of, certain bonds issued in the name of said city of Salem, by a so-called board of trustees, known as The Trustees of the Salem Railroad, for a fund or amount of money borrowed by said board of trustees for the construction of a line of railway from said city of Salem to the village of Washingtonville, in said county; that the tax so levied has been by said council certified to the auditor of said county, and by him placed on the tax list for said county, and on the duplicate delivered to the treasurer thereof, and that the same now stands assessed and charged against this plaintiff; that said tax so levied upon the property of the plaintiff amounts to the sum of $-.
    “Plaintiff says that on the 13th day of December, 1892, and on the 24th day of July, 1893, and on the 19th day of December, 1893, respectively, during business hours, and at defendant’s office as such treasurer, it made to defendant due tender in legal money of the United States, of all taxes and assessments of any kind then due to or collectible by him as such treasurer, from this plaintiff, ' except the aforesaid tax, levied and sought to be collected for the payment of said bonds and interest; that defendant accepted all the taxes and assessment so tendered, except those levied by or in behalf of said city of Salem, or by the coffncil thereof, which were by him refused; that plaintiff then and there made like tender of the amount of taxes and assessments so refused (to-wit, all taxes and assessments levied by or in behalf of said city, except said tax for the payment of said bonds and interest), which last named tender was by defendant then and there also refused solely on the ground and for the reason and without other cause than that plaintiff did not tender therewith, and refused to pay, the tax levied as above set forth, for the redemption of said bonds and payment of interest thereon. Plaintiff also says that on said 24th day of July, 1893, and at the same time and place, it also made like tender to defendant of the full amount of the penalty of five per cent, then accrued on the installment of said taxes due and payable on or before June 20 of said year, and which had been levied by said council or by or in behalf of said city.

      “Plaintiff says, that said money was borrowed and said bonds were issued and sold without warrant or authority of law ; that they are not the bonds of said city of Salem; that said so-called board of trustees had no authority so to do, and never had a legal existence as such board; that said bonds are void; that the said city of Salem is under no legal obligation to redeem the same, or in any way to pay the money so borrowed. Plaintiff says that said city of Salem had at the federal census of 1890 a population of not less than 5,750, nor more than 5,800; but further says that no other city of or within the state of Ohio, of the fourth grade of the second class, had at such census such population.
    “Plaintiff further says, that defendant is. about to, and, unless restrained by the order of this court, will proceed to distrain and sell the goods and chattels of said, plaintiff company, and collect by process of law said taxes so levied by said council of the city of Salem, for the redemption of said bonds and payment of interest on the same.
    “2. For a second cause of action plaintiff adopts, and makes part hereof, all the averments of its. first cause of action as fully as though the same were here copied, and further says, that said money was borrowed and said bonds issued, and said tax levied solely under and in accordance with the terms of a certain act of the legis] ature of the state of Ohio, entitled £An act relating to certain cities of the fourth grade of the second class, ’ and passed May 4, 1891, and found in Yol. 88, page 593, of the Laws of Ohio.
    “Plaintiff says that said act is a special act conferring corporate powers ; that it is not general in its character, but is special legislation and is unconstitutional and void, and that it conferred no authority on said board of trustees to borrow said money, or issue said bonds, or on said city of Salem, or the council thereof, to levy the said tax for the payment of said money and redemption of said bonds.
    “Wherefore, plaintiff prays that defendant, as such treasurer, be now temporarily restrained, and upon final hearing, he and his successors be perpetually enjoined, first from collecting said tax so levied, and. any that may hereafter be levied, for the payment of the interest on said bonds, and to provide a sinking fund for the final redemption of the same; and second, from imposing upon or collecting from plaintiff any penalty on account or by reason of the nonpayment of the taxes tendered and refused as above set forth.”
    A temporary injunction was allowed and the treasurer filed a general demurrer to the petition, and also filed a motion to dissolve the injunction. The demurrer and motion were both sustained and the plaintiff not desiring to amend its petition, final judgment was rendered in favor of the treasurer and the injunctiou dissolved, on the g’round that the petition does not state facts sufficient to constitute a cause of action, to all of which the plaintiff excepted.
    The circuit court affirmed the judgment and a petition in error was thereupon filed in this court, seeking to reverse both judgments below.
    Harrison, Olcls (& Henderson and J. B. Carey, for plaintiff in error.
    The question for decision in this case is, whether or not the act of the general assembly, entitled “An act relating to certain cities of the fourth grade of the second class,” passed May 4, 1891 (88 Ohio Laws, page 593), is contrary to article XIII, section 1, of the constitution of this state, which ordains that, “The general assembly shall pass no special act conferring corporate powers. ”
    This provision is not only mandatory, but it is applicable as well to municipal as to private corporations. Atkinson v. Railroad Co., 15 Ohio St., 21; State v. Cincinnati, 20 Ohio St., 18; State v. Cincinnati, 23 Ohio St., 445; State v. Mitchell, 31 Ohio St., 592. And that it prohibits the conferring of additional corporate powers upon corporations already existing, whether public or private, is settled by the same decisions. The act therefore, unquestionably confers corporate powers, within the settled meaning of the constitutional provision, State v. Constantine, 42 Ohio St., 437; The State ex rel. v. Smith et al., 48 Ohio St., 211; State v. Schwab, 49 Ohio St., 229.
    In view of the object and end of legislative classification of municipal corporations, as declared by this court, an act classifying such corporations must {a) designate several defined classes, (b) into which other such corporations may, by increase of population, enter, (c) from which they may pass into other classes in a mode described by statute; so that (d) all such acts will operate upon every municipal corporation in the state, or upon all municipalities in one of the designated classes, to the end that while each corporation is a member of a given class or grade, it will possess all the powers, and no other, of every other corporation of the grade and class to which it belongs. While grave doubts were at first entertained upon the subject, it was finally held that such classification will have a uniform and continuing operation upon all cities of each class and grade and thereby confer the same powers upon all of them, and for that reason acts conferring- corporate powers upon a defined and established class and g-rade is not a special act conferring corporate powers. On this ground alone did this court sustain the system of legislative classification of municipalities.
    A legislative classification that is designed to operate only in the present and on an existing state of facts, but not in the future, has not been, and cannot be, sustained. The courts have repeatedly so held. State v. County Court of Jackson County, 89 Mo., 237; State v. Herrman, 75 Mo., 340; McCarthy v. Commonwealth, 110 Pa. St., 244; Topeka v. Gillett, 32 Kans., 431; Devin v. Cook County, 84 Ill., 590.
    The city of Salem, Columbiana county, is the only city in Ohio which had, at the federal census of 1890, a population of not less than five thousand seven hundred and fifty, and not more than five thousand eight hundred. These facts show, conclusively, that the intent and contemplated effect of the act was to empower only the city of Salem to ‘ ‘ construct a railway; ’ ’ and upon that ground it is contrary to the fundamental law. ■ If such had not been the purpose of the act, it would have empowered all cities of the class and grade to which that city belongs to exercise the powers conferred by the act. Surely it would not have named precisely the population of Salem, (5,800), according to the federal census of 1890, unless that city alone had been intended as the city to which it should apply.
    This act is, therefore, plainly and palpably special in its nature and operation. Atkinson v. Railroad Co., 15 Ohio St., 21.

      In order to be general, such act must:
    First — Place all corporations of the same kind upon a perfect equality.
    Second — Be applicable to all parts of the state. “Thereby securing the vigilance and attention of its whole representation.”
    Third — Be so made that all judicial constructions of their powers, or the restrictions imposed upon them, may be equally applicable to all. corporations of the same class throughout the state. Gilmore v. Norton, 10 Kans., 491; Darling v. Rogers, 7 Kans., 592; City of Council Grove, 20 Kans., 619; City of Atchison v. Bartholow, 4 Kans., 124; City of Wyandotte v. Wood, 5 Kans., 603; State v. Cincinnati, 20 Ohio St., 18.
    It is true that the power to classify municipal corporations has been sustained by this court, and that statutory provisions with respect to any such class are not in conflict with the constitution, under a proper construction of article 13, section 6.
    But, as was said in State ex rel. Remmelin v. Smith, 48 Ohio St., 211, ‘ ‘ it must be conceded that the method of classifying- cities for the purpose of legislation has been carried to the very verge of-constitutional authority. Many conscientious minds believe that it has been exceeded. We have heretofore expressed our doubts upon the subject, but feel bound by the previous decisions of the court (State v. Wall, supra), and are disposed to sustain any laws falling within the principle of those decisions'; but are unwilling to go beyond them and sanction legislation conferring corporate power that is plainly and palpably special in character.” Ayars’ Appeal, 122 Pa. St., 266; Davis v. Clark, 106 Pa. St., 377; Morrison v. Bachert, 112 Pa. St., 323; Weinman v. Railway Co., 118 Pa. St., 192; State v. Pugh, 43 Ohio St., 98; State v. The Judges, 21 Ohio St., 11; State v. Hipp, 38 Ohio St., 199.

      B. S. Ambler, Warren W. Hole and G. S. Speaker, for defendant in error.
    It is a general principle of law as laid down in all text books that unless prohibited by the constitution of a state, the legislature, may authorize a municipality to build or aid in building a railroad. 2 Redfield on Railways, 398; 1 Ohio St., 77; 1 Ohio St., 106; 2 Ohio St., 607; 21 Ohio St., 43.
    It is no objection that there is but one city in the state within the particular classification at the time of its enactment. State v. Pugh, 43 Ohio St., 112. An individual exigency may be the originating cause of an act of the general assembly. It is not in the form a statute is made to assume, but its operation and effect, which is to determine its constitutionality. Field v. Commissioners, 36 Ohio St., 480.
    If the law is clearly palpably in conflict with constitution it should be so held, but if there be any doubt upon the subject that should be solved in favor of the law. Marmet v. State, 45 Ohio St., 64. There is nothing to show that the operation of this act was intended to be limited to one city.
    Is the act of 1891 a special act ? Statutes held special acts and void. State ex rel v. Schwab, 49 Ohio St., 229; State ex rel. v. Smith, 48 Ohio St., 211; State ex rel. v. Mitchell, 31 Ohio St., 607; State v. Constantine, 42 Ohio St., 443; State ex rel. v. Ellet, 47 Ohio St., 90; State v. Shearer, 46 Ohio St., 275; Metcalf v. State, 49 Ohio St., 546.

      As further eases bearing upon special legislation and classification of cities, we cite: 44 Ohio St., 98; 44 Ohio St., 137; 29 Ohio St., 102; 39 Ohio St., 653; 18 Ohio St., 85; 41 Ohio St., 476; In re N. Y. Elevated R. Co., 70 N. Y., 327; In re Church, 92 N. Y., 1; People v. Squire, 107 N. Y., 593; Kilqore v. McGee, 85 Pa. St., 401; 55 N. Y., 50; 15 N. Y., 532.
    Does the act of 1891 confer corporate power? 35 N. E., 888.
    Statute held not to confer corporate power. The legislature, in simply detaching' territory from. a municipal corporation, does not confer corporate power.
    Constitution does not inhibit appropriate local or special legislation. The constitutional inhibition is against granting corporate power by such leg-islation. State v. Mitchell, 31 Ohio St., 606. If legislation not local and.special, immaterial if it confers corporate power. State v. George, 34 Ohio St., 670; State v. Covington, 29 Ohio St., 111. Under this last case, can it not be said that the trustees are not a corporation ? State v. Bangnam, 38 Ohio St., 459; State v. Powers, 38 Ohio St., 61.
    A power to be a corporate power must be conferred upon a corporation. It is the character of the recipient which determines the nature of the power. Are the trustees of the Salem railroad a corporation? They are not. Walker v. Cincinnati, 21 Ohio St., 14; State v. Davis, 23 Ohio St., 444.
    The right to object on the part of the city may be lost by acquiescence. 15 Am. & Eng. Ency. of Law, 1256; 7 Ohio St., 327; 14 Ohio St., 569.
    The public buildings, fire apparatus, etc., of the city, cannot be subjected to the payment of its debts. 15 Am. & Eng. Ency. of Law, 1311, and eases there cited. Taxes must be levied to meet such an. obligation. Ibid, 1312, and the many leading* cases cited in notes. Mandamus will lie to compel levy to be made. Ibid, 1313, and cases cited in note 1; 27 Ohio St., 96; 1 Ohio St., 77.
    There is no defendant in error in this case that has any interest in the subject matter. Smetters et al. v. Rainey, 14 Ohio St., 277; Smetters v. Rainey, 13 Ohio ,St., 568; Kennard v. Kennard, 35 Ohio St., 660; Hanover, Admr., v. Sperry, 35 Ohio St., 244; Renick v. Bank, 13 Ohio, 298; Townsend v. Bogert, 126 N. Y., 370; Caldwell v. Taggert, 4 Pet., 190; Loan & Trust Co. v. Holderbaum, 52 N. W., 550; Gerard v. Bates, 7 Am. St. R., 351; Buckingham v. Bank, 21 Ohio St., 131.
   Burket, J.

The cause of action stated in the petition and urged in argument is, that the act of May 4, 1891, 88 O. L., 593, “is a special act conferring corporate powers; that it is not general in its character, but is special legislation and is unconstitutional and void. ’ ’

The first section of the act is as follows:

“Section 1. Be it enacted by the General Assembly of the State of Ohio, That whenever in any city of the fourth grade of the second class, which at the federal census of 1890 had a population of not less than 5,750 and not more than 5,800, or which at any subsequent federal census may have such population, individuals and corporations owning more than one-half of the real and personal property assessed for taxation in such city, as shown by the tax duplicate of the county in which Such city is situated, .then in force, shall by their petition in writing request the council of such city to provide for the construction of a line of railway between termini designated in such .petition (one of which shall be such city) by such city and at its expense, the city council of such city may, by a resolution passed by a majority of all the members elected thereto, declare it to be essential to the interests, of such city that the line of railway so prayed for in said petition be constructed by and at the expense of such city, and it shall thereupon be lawful for a board of trustees to be appointed, as hereinafter provided, to borrow, and they are hereby authorized to borrow, as a fund for the construction of such railway, an amount not exceeding the sum-of five per cent of the value of the property, real and personal, within such city, as the same are assessed on the tax duplicate of the county in which said city is situated; and to issue bonds therefor in the name of such city and under the corporate seal thereof, bearing- interest at a rate not to exceed six per cent per annum, payable semi-annually, such bonds to be redeemable at the option of such city at any time after five years from the date thereof, and to be payable in twenty years from said date, at such place as shall be deemed best by said board; said bonds shall be signed by the president of said board, and attested by the clerk of such city, who shall keep a register of the same, and they shall be secured by a mortgage upon said railway and by the pledge of the faith of such city, and a tax which it shall be the duty of the council thereof annually to levy, which tax shall not exceed five (5) mills on the dollar in any one year, to pay the interest and provide a sinking fund for the final redemption of said bonds; provided, that such city shall not in any one year levy taxes to a greater amount than fourteen (14) mills on the dollar, including- the levy for said bonds; and provided, that no money shall be borrowed on bonds issued until after the question of providing- the line of railway specified in said resolution shall have been submitted to a vote of the qualified electors of such city, at a special election to be ordered by the city council thereof, of which not less than twenty days’ notice shall be given in the papers published in such city; and further provided, that two-thirds of said electors voting at such election shall decide in favor of said line of railway. The returns of said election shall be made to the clerk of said city, and be by him laid before the city council, who shall declare the result by resolution. The bonds issued under the authority of this section shall not be sold or disposed of for less than their par value. ’ ’

That section one of article thirteen of the constitution, which provides that “the general assembly shall pass no special act conferring corporate powers,” applies as well to municipal, as to private corporations, is established by the following cases: State v. Cincinnati, 20 Ohio St., 18; 23 Ohio St., 445; and State v. Mitchell, 31 Ohio St., 592.

The act in question clearly confers corporate power. In Walker v. Cincinnati, 21 Ohio St., 14, the court held on page 56 that the city was by that act authorized to build a railroad, but that the city acted through its trustees. The court say: “But it is clear that the trustees are a mere agency through which the city is authorized to operate for its own sole benefit. Neither as individuals, nor as a board have they any beneficial interest in the fund which they are to manage, or in the road which they are to build. They are in fact, as well as in name, but trustees, and the sole beneficiary of the trust is in the city of Cincinnati.”

The corporate power to build a railroad acting throug'h trustees, is therefore given by the statute in question. The corporate power to levy taxes to pay interest and create a sinking fund for the payment of the bonds, is given by this act. State v. Cincinnati, 20 Ohio St., 18; State v. Pugh, 43 Ohio St., 98, 115. The corporate power to call and direct an election is also given by this act. State v. Mitchell, 31 Ohio St., 592, 608; State v. Constantine, 42 Ohio St., 437-444.

The above enumerated corporate powers are granted by the act in question, and if the act is special, it is in violation of section one of article thirteen of the constitution. The defendant in error relies upon the case of Walker v. Cincinnati, 21 Ohio St., 14, but in that case the question as to whether the act then under consideration was a special act conferring corporate power, was not made by counsel, and was not considered by the court. The act was regarded as general. The Walker case is therefore not an authority upon the question. Cities are by statute divided into classes and grades, and while some of the classes are so fixed as to include at this time only one city, yet other cities may, under present statutes, come into such established classes, either by increase or decrease of population, followed by proper proceedings authorized by statute. Whatever may be said as to the validity of a statute conferring corporate power upon an established class containing only one city, it is clear that when an act is manifestly intended to, and does in fact, at the time of its passage, apply to only one of a given class, consisting of many, it is special. The city to which the act', by some slight characteristic, is made to so apply, does not thereby become a class by itself, but is thereby excepted out of the class to which it belongs; and the usual provision in such statutes, that any city having such characteristic, or any other city which may thereafter have the same, shall have the corporate power therein conferred, does not have the effect to raise such other city into any class,-but has the effect to place it into such exception.

Usually, to make an act conferring corporate power general and not special, the power should be conferred upon existing classes, but this is not always necessary, as there are cases in which the aim and object of the proposed statute cannot well be accomplished without making other and new classes; but in such cases there must be some substantial condition or characteristic requiring such classification. Bronson v. Oberlin, 41 Ohio St., 476, is a sample of such cases, and it goes to the extreme, verge of- constitutionality, and should not be extended. But when the attempted distinguishing mark or characteristic is only a small difference in population, as in the act here in question, such difference is not substantial, and shows on its face that it is not an effort at classification, but an evasion' of a classification already existing. Such laws are special, and when they confer corporate power they are unconstitutional and void. In the case of Fields v. Commissioners of Highland County, 36 Ohio St., 476, the population provided in the act was not less than 29,130, and not more than 29,135, and this court, while holding the act unconstitutional on other grounds, used the following language as to the point here in question :

“There is no doubt that the county of Highland is the only county in the state to which the provisions of this act can ever apply, and the legislature might just as well have conferred on the commissioners of that, county, in express terms, and by direct language, the power actually conferred, as to name the county through the aid of the previous federal census. If the object in employing the language used to designate the county was to give to the act a general character, and thereby to obviate any constitutional objection, while intending to limit its operation to one county, the means adopted very clearly fails to accomplish the object intended. This court has repeatedly said-that the constitutionality of an act, in respect to being local or general, is to be determined by its operation, without reference to its form. The State ex rel. v. The Judges, 21 Ohio St., 11; The State ex rel. v. Mitchell, 31 Ohio St., 592; McGill v. The State, 34 Ohio St., 228. If local in its operation, no phraseology can make it general. The act in question is not only local in its operation, but it was so intended ■ to be by the legislature; and if a law of a general nature, within the meaning of the constitution, it is clearly unconstitutional because of such restricted operation.”

To the same effect is the holding of this court, in Kenton v. State, 52 Ohio St. 59; and in State v. Bargus, 53 Ohio St., 94.

It is therefore clear that the act in question is unconstitutional and void.

The rights of the railway company as to the recovery of any taxes it may have paid, and the liability, if any, of the signers of the original petition for an election, and of others who may have so aided and assisted the scheme as to be estopped, are not before us and are not here decided.

The fact that after the dissolution of the injuncfc on, the plaintiff in error paid the taxes then due,. does not have the effect to prevent plaintiff from prosecuting its proceedings in error to test the validity of said act.

The action was commenced against John R. Martin, then county treasurer, and before the case came into the circuit court or this court, his term of office had expired, and his successor had been elected and qualified, and had been inducted into office. The question is now made, that the proceedings in error in the circuit court, and in this court should have been against the 'successor, and not against John R. Martin, who was no longer treasurer. The point is not well taken. The action in such cases is regarded as against the treasurer, whoever he may be, and it may proceed •through all its stages in all courts in the same manner in which it was commenced, or if desired, the new treasurer may, on motion, be substituted in the place of the retiring one, and this is certainly the better practice. The treasurer in office should, as one of his official duties, take charge of, and look after all actions against or in behalf of his office; but a failure to substitute the new treasurer, does not have the effect to abate the action, nor cause its dismissal on motion.

The judgments of the circuit court and court of -common pleas cvre both reversed and this cause is remanded to the court of common pleas with instruc■tions to overrule the demicrrer to the petition and for fu/rtherproceedings in the case.

Judgment accordingly.


author: Williams, J.

text:
    Trustees v. McClannahan et al.

      Appeal from interlocutory order — Does not.transfer case to appellate court for trial of issues — Jurisdiction of appellate court— Dismissal of plaintiffs action in common pleas court leaves nothing for appellate court.

    1. An appeal from an interlocutory order of the court of common pleas, or a judge thereof, dissolving a provisional injunction allowed in an action, does not transfer the case to the appellate court for trial of the issues joined by the pleadings; the jurisdiction of the appellate court, on such appeal, is limited to the hearing and decision of the motion to dissolve, although the ultimate relief demanded in the action is a permanent injunction of like purport with the provisional one which was dissolved.
    2. Where, after such appeal, the plaintiff dismisses his action in the court of common pleas, the provisional injunction and motion to dissolve go with it, and nothing remains for the appellate court to hear and determine.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Vinton county.
    The case is stated, in the opinion.

      J. M. MeGillivray and J. IV. Dcvrby for plaintiffs in error.
    The jurisdiction of the circuit court, in so far as the-cause of action attempted to be set forth in the petition — i. e., the restraining of an alleged wrongful or unauthorized act by the trustees of a township is concerned, is appellate and not original. Section 6, article 4, constitution; Logan Branch Bank, Em parte 1 Ohio St., 432; Kent v. Mahaffey, 2 Ohio St., 498; Wheeler v. Lynn, 8 Ohio St., 393; State v. Baughman, 38 Ohio St., 455.
    The court of common pleas had sole original jurisdiction of the subject matter of the action. Section 4, article 4, constitution; section 456, Revised Statutes.

      The court of common pleas having jurisdiction df the subject matter, acquired jurisdiction of the parties — of plaintiffs by filing the petition and invoking the aid of the court, and of defendants by service of summons. Bolles v. Stockman, 42 Ohio St.. 445; Bouvier Law Diet., Titles Decree and Interlocutory. Interlocutory in law means that which decides, not the cause, but only settles some intervening matter relating- to the cause. 11 Am. & Eng. Ency. of Law, 437. When no further action of the court is required, it is final; when it is retained for further action it is interlocutory. Teaff v. Hewitt, 1 Ohio St., 520.
    □ The injunction allowed in this cause was merely a preliminary or interlocutory order, made to preserve the matters in statu quo, until final trial. 1 Bouvier Law Diet., Tit. Injunction; 4 Field’s Briefs, section 254; High on Injunctions, section 3,
    This identical question has never been passed upon in Ohio, so far as we have been able to discover. Hey v. Schooley, 7 Ohio, pt. 2, 49; R. R. Co. v. Hurd, 17 Ohio St., 145; Keys v. Williamson, 31 Ohio St., 564; High on Injunctions, section 1710; Rayle v. I. P. & C. Co., 40 Ind., 347; Grey v. Beldwin, 8 Black.. 164; Thompson v. Adams, 2 Ind., 151 ; 40 Ind., 348.
    This petition does not state grounds authorizing a decree; while no doubt the record should have been made, yet the validity of the acts of inferior tribunals such as township trustees, county commissioners and the like, do not depend upon the making up of their records, but maj^ be shown by parol. King v. Kenny, 4 Ohio, 79; Westenhaver v. Clive, 5 Ohio, 136; Radcliff v. Teeters, 27 Ohio St., 74; Allbright v. Payne, 43 Ohio St., 16.

      AL AL Oherry, for defendants in error.
    It is claimed by council for plaintiffs in error that three questions are presented in the record: 1st. Did the appeal carry the whole ease to the circuit court ? 2nd. Does the petition as amended state a cause of action ? 3rd. Did the cohrt err in overruling the motion of defendants for judgment in their favor at the close of plaintiffs’ evidence.
    The appeal carried up the whole case. Keys v. Williamson, 31 Ohio St., 564; Johnson v. Village of Avondale, 1 C. C. Rep., 231. A case involving the same facts between the same parties and seeking the same relief could not be in both courts at the same time. The appeal carried the parties, the pleadings and the case to the circuit court, and there was nothing remaining in the common pleas court but the record there made. To hold that less than the whole case was taken to the circuit court by the appeal, would result in dividing up the case, a thing that cannot be done where the sole relief sought, as in this case, is an injunction. Forgy et al. v. Railroad Co., 1 C. C. P., 419 and 420. We claim therefore that the whole ease went to the circuit court by the appeal and that the finding of the circuit court is right.
    The petition states a- good cause of action. Defendants were the trustees of Swan township. The petition sets up all the facts necessary to show that said trustees' were acting illegally and were attempting to take the property of the tax payers of the township to pay for a site for a town hall and to pay for a building thereon without any right or authority so to do. Some authorities hold that where a record is, by statute required to be kept, the rule is even carried so far as to exclude parol or other extrinsic evidence of the proceedings of such public bodies, where there has been no record made, or when there is a defect or omission in the record. Am. & Eng. Ency. of Law, vol. 20,511, and numerous cases there cited.
    While in Ohio the record of inf erior tribunals and public boards are more liberally construed, yet the rule there requires that enough should appear of record to show with reasonable certainty that the requirements of the law have been substantially complied with. Lewis et al. v. Laylin et al. 46 Ohio St., 663; Harding v. Trustees of New Haven Tp., 3 Ohio, 232.
    The plain inference is that questions of this character must not only appear of record but they can not be supplied or aided by parol. Fravert v. Kinfrock, 43 Ohio St., 335; 2 Ohio 253; 12 Ohio, St., 644.
    That the rule in Ohio is as contended for is clearly recognized in the following decisions which are in the nature of exceptions to the rule. Radcliff v. Teeters, 27 Ohio St., 66; Albright v. Payne, 43 Ohio St., 8; Dixon, v. Subdistrict, 3 C. C. Rep., 517; Westerhaven v. Clive, 5 Ohio, 136; Reynolds et al. v. Schweinefus, 27 Ohio St., 321.
   Williams, J.

Action was brought in the court of common pleas of Vinton county, by the defendants in error, resident taxpayers of Swan township in that county, against the trustees of the township, who are the plaintiffs in error here, to enjoin the levy • of a tax to pay for a site and the building of a township house, the borrowing of money in anticipation of the tax, and payment for the site and building out of the general fund of the township. The petition alleges, as the grounds of the injunction, that the trustees, who had already contracted for the site and the erection of the building at a cost of less than two thousand dollars, had not submitted the question of making the levy, to the electors of the township, at any election held therein, as required by section 1443, of the Revised Statutes; and, that there was no fund in the treasury of the township which could be used in payment for the building or site, when the contracts were made. The prayer of the petition is for a temporary injunction, and that on the final hearing the injunction be made perpetual. Upon the filing of the petition, an order was' granted by a judge of the court in which the action was brought, enjoining the defendants as prayed for in the petition, until the further order of the court. Afterward, before the same judge, the defendants, on notice to the plaintiffs, moved for the dissolution of that injunction, for the reasons, as stated in the motion, that the allegations of the petition were insufficient to authorize it, and also that they ymre not true; which motion was sustained, and the injunction dissolved; and from the order of dissolution the plaintiffs appealed to the circuit court. After the appeal was perfected, the operation of the order of dissolution was suspended, by two judges of the circuit court, until the appeal could be heard; and, issues of fact having been made up by pleadings filed in the action in the court of common pleas — the answer controverting material allegations of the petition and alleging some new matter which was denied by reply, the cause was placed on the trial docket of that court for the ensuing term, when the defendants asked to have the cause set down for trial. The court granted the request; and thereupon, as shown by the record, on motion of the plaintiffs, the cause, so far as the same was pending in that court, was dismissed without prejudice to a new action, and judgment rendered against the plaintiffs for costs. At the following term of the circuit court, the defendants filed their motion to dismiss the appeal taken from the order dissolving the temporary injunction, and to strike the cause from the docket of that court, because the appeal took up nothing but the order of dissolution, and the plaintiffs after the appeal, had dismissed their action as above stated. Upon the hearing of that motion the court found the facts to be as herein set forth, hut overruled the motion, holding that the appeal took up-the whole case; and against the objection of the defendants, the court proceeded to a trial of the cause upon the-issues joined by the pleadings, at the conclusion of which judgment was given for the plaintiffs according to the prayer of the petition. A motion for a new trial, made upon the ground, among others, that the appeal should have been dismissed and the cause stricken from the docket, was overruled, .and a hill of exceptions duly allowed and filed showing the foregoing state of facts.

The question presented is one of some practical importance, namely, whether an appeal from an order vacating a provisional injunction in an action where the ultimate remedy sought is a perpetual injunction of like purport, has the effect of transferring the case to the appellate court for trial and judgment on its merits. It was said in Keyes v. Williamson, 31 Ohio St., 564, that the question is one about which there is a diversity of opinion; but none was there expressed by the court upon it, as that was unnecessary to the determination of the ease; and. we are not aware of any decision of the court upon the question.

By the provisions of the civil code, an injunction may be the final judgment in an action, or a provisional remedy employed in the action; and the provisional injunction may be granted when it appears to be necessary to restrain, during the litigation, the commission or continuance of some act, respecting the subject of the action, which will render ineffectual the ultimate judgment demanded by the plaintiff. A party against whom such provisional injunction has been granted may, at any time before the trial of the action, apply to the court in which the action is pending, or to a judge of that court, to vacate or modify the same, either upon the petition and affidavits on which the injunction was allowed, on the ground that they are insufficient to warrant the injunction, or upon counter affidavits controverting the statements of fact on which it was obtained, or upon both of these grounds in the same application. An appeal may be taken to the circuit court, £ £ from an interlocutory order made by the common pleas court or a judge thereof, dissolving an injunction, in a case of which it had original jurisdiction; but such interlocutory order dissolving such injunction shall not be suspended by the appeal except by the order of the circuit court or two judges thereof in vacation, on reasonable notice to the adverse party. ” Revised Statutes, section 5226. The proper office of the provisional injunction is to prevent threatened irreparable injury, which should be averted, until opportunity is afforded for a full and deliberate investigation of the case at the trial, and, to preserve until that time, as far as possible, the condition of things existing when the injunction is obtained, to the end that the rights of the parties as established by the final judgment rendered on the 'trial, may be secured to them by the enforcement of the judgment. In continuing such an injunction, by declining to sustain a motion for its dissolution, as well as in granting it in the first instance, the court or judge exercises a discretion which is controlled to some extent by a consideration of the consequences that are likely to follow, and will pursue that course which seems best calculated to subserve the ends of justice, and protect the interests of the parties; and while, in such case, the court or judge so far passes upon the sufficiency of the petition as to be satisfied a cause is made for the allowance of the injunction, that is not to be taken as a final adjudication by the court that the petition states a cause of action, or that in any way affects the right of the defendant to test its sufficiency in the usual way, by demurrer. As said by the Lord Chancellor, in Glascott v. Lang, 3 Myl. & Cr., 452-456, for the purpose of supporting an interlocutory injunction, “it is not necessary that the court should find a case which would entitle the plaintiff to relief at all events. It is quite sufficient if the court finds, upon the pleadings and evidence, a case which makes a transaction a proper subject of investigation in a court of equity.” And, on the other hand, it cannot properly be said that it has been determined by the court that the plaintiff cannot maintain his action, when the provisional injunction is dissolved on a motion made solely upon the petition and affidavits of the plaintiff; nor, that the case has been adjudged against him on the merits, when, the motion sustained is made upon the ground that the statements of fact in the petition and affidavits on which, the injunction was procured, are untrue. The hearing upon the motion is not the mode provided by law. for the trial of the issues joined in the action, and neither party can be deprived of the'lawful mode of trial by the decision on the motion, whatever it may be. A trial is defined to be a judicial examination of - the issues in an action. Revised Statutes, section 5127. And all issues of fact must be tried by the court or a jury, unless referred as provided for in- certain cases. Revised Statutes, sections 5130, 5131. “A motion is an application for an order, addressed to the court or a judge by a party to a suit, or one interested therein.” Revised Statutes, section 5121.

A hearing upon a motion was not designed to take the place of a trial. It may be had upon affidavits taken without opportunity for cross-examination, and is not in any proper sense a trial. Therefore, upon the overruling of a motion to vacate a provisional injunction, the court is not authorized, without a trial of the issues, to enter final judgment for the plaintiff; nor can the petition be properly dismissed, without such trial, upon the dissolution of the injunction. Whatever the decision may be upon the motion, each party is entitled to show, if he can, upon the. trial of the issues, that judgment should be rendered in his favor. And, as an order of the court or judge dissolving the injunction does not, and cannot dispose of the case, but only of the motion to dissolve, and of the provisional injunction, it would seem that an appeal from such order could only operate to transfer to the circuit court for decision the questions involved in the order appealed from, and would not, in the absence of some express provision authorizing it, have the effect of removing to that court the case upon its merits, upon which as yet no trial has been had, no decision made, and no judgment rendered by the court of common pleas. To give such an appeal the effect mentioned, would, practically confer upon the circuit court original jurisdiction in such cases, by thus making it the trial court in the first instance, a result not sanctioned either by our legislation or constitution. That it was not the legislative intent that the appeal from an interlocutory order dissolving an injunction should operate to take up the whole case to the appellate court, seems obvious from the fact that an appeal to the same court is authorized from the final judgment that may thereafter be rendered in the action by the court of common pleas, thus showing that, notwithstanding the appeal from such interlocutory order, the action itself remains in the court of common pleas for final trial and judgment there. “Upon appeal from an interlocutory decree in chancery, only so much of the cause is before the appellate court, as the court of chancery has acted upon.7 7 Madden v. Madden, 2 Leigh., 377. In general, an appeal, when perfected, suspends the judgment appealed from. Revised Statutes, section 5235. But, it is otherwise provided, when the appeal is from an order vacating a provisional injunction ; the operation of the order is not suspended unless it is so ordered by the circuit court, or two of its judges. The effect of the suspension when ordered, is simply to continue the injunction in force until the hearing of the motion by that court. But for the provision of the statute authorizing the suspension, the plaintiff could not have the provisional injunction continued, but would be compelled to await the trial and final judgment in the common pleas court, and after an appeal therefrom obtain a new injunction in the appellate court under the provisions of section 5572, of the Revised Statutes. In the meantime, and before that could be done, the mischief he sought to prevent by the injunction which had been dissolved, may have been ensued. To give the party an opportunity to have the circuit court pass upon the motion to dissolve, and until then avoid the consequences mentioned, was the purpose of the statutory provision authorizing an appeal from the order of dissolution, and a suspension of • that order. It has no other object or scope. If the circuit court, on the hearing of the motion, overrule it, the injunction continues in force till trial and judgment in the common pleas ; but if the motion be sustained, the defendant is left free to act as if no appeal had been taken; and in either event, the case itself remains in the court of common pleas for trial and judgment, unaffected by the appeal. The provision of section 5225, of the Revised Statutes, that the trial in the circuit court on appeal ‘ ‘ shall be conducted in the same manner as in the common pleas court and upon the same pleadings,” has no application to the hearing of an appeal from an order dissolving1 a temporary injunction, whether such order was made by the court or a judge; but applies only, as its language imports, to the trial of actions taken to the circuit court on appeal from the final judgment. As the interlocutory injunction is merely a provisional remedy in the action, employed to aid in rendering effectual the judgment sought as the ultimate relief, the existence of the action is as essential to the continuance of the injunction as to its allowance originally. Such an injunction cannot survive the action in which it was granted, but must end with it; and that is not the less so where the ultimate relief' demanded is a permanent injunction, thereafter restraining what was enjoined by the provisional injunction until the final judgment. That judgment determines the rights of the parties; if the plaintiff obtains the relief he sought, the interlocutory injunction has accomplished its purpose, and is at an end; and if, for any cause, the action terminates adversely to him, the provisional injunction falls with it.

Hence, the dismissal, by the plaintiffs below, of their action in the court of common pleas, carried with it their temporary injunction, then awaiting a hearing in the circuit court on the motion to dissolve; and, as thereafter, nothing remained for that court to hear, it being without jurisdiction to try the issues joined by the pleadings and render the judgment complained of here, it should have stricken the cause from its docket.

The judgment is reversed.