text:
    Alexander v. Pennsylvania Company.

      Laws of another state — Bow proven — Existence of question of fact for the jury — Duty of the court to construe — Master and servant — Contract of employment governed by laws of state where made — Negligence of fellow servant — No recovery for can be had in this state, when barred by laios of another.

    1. Where, on the trial of an issue respecting the law of another state, the decisions of the courts of that state are given in evidence to the jury, it is the province of the jury to determine whether or not such decisions have been made, but it is the duty of the court to construe, and deduce from them, the rules of law which they establish.
    .2. Where, in an action prosecuted in this stat» by'» servant against his master to recover for personal injury resulting to him from the negligence of another servant of the same master, it appears that the accident, causing the injury, occurred in the state of Pennsylvania, that the contract of employment was made in that state, and that all the stipulated services were to be performed therein, no recovery can be had, if by the laws of Pennsylvania*no right of action arose from the transaction ; though the laws of Ohio would give full relief had the transaction occurred within this state.
    (Decided December 8, 1891.)
    Ebbob to the Circuit Court of Mahoning county.
    This action was brought in the Court of Common Pleas of Mahoning county by the plaintiff in error, to recover against the defendant in error damages for injuries sustained by him while in its employment. He recovered a judgment in that court, which was reversed by the Circuit Court of Mahoning county, in proceedings instituted for that purpose by the defendant in error, whereupon this proceeding was brought to obtain a reversal of the judgment of the circuit court, and to affirm that of the court of common pleas.

      Jones, Anderson Terrell, for plaintiff in error.
    I. We first desire to inquire what, if any, place the holdings in Pennsylvania had in this case? We submit that, under the pleadings no issue was made which authorized an inquiry as to the law of that state. If a defense of this kind can be interposed, it must certainly be pleaded. Railway Co. v. Lewis, 33 Ohio St. 196. And in order to do so, it would seem to be the proper way to allege what the law of Pennsylvania is, and then allege the facts which brought the case within that law. Curtis v. Masten, 11 Paige, 17; Smith’s Com., sec. 831, and authorities there cited; Pearsel v. Dwight, 2 Mass. 87; Legg v. Legg, 8 Mass. 99; Ruggles v. Keeler, 3 Johns. 263; Holmes v. Broughton, 10 Wend. 77.
    II. Referring to the record, it will be seep that upon the request of defendant’s counsel, the court withdrew from the jury any determination or any right to find what was the law of Pennsylvania. And although plaintiff’s counsel insisted that if the question as to what was the law of Pennsylvania was in fhn .case, it was a question of fact for the determination of the jury, with the other facts; this the defendant’s counsel, equally stubborn, insisted should not be done, and further, that the court only should determine the law of Pennsylvania. We claim that the effect of this was to withdraw from the determination of the case all the evidence under the second defense.
    Of course this assumption is based upon the proposition that the law of a foreign state is a question of fact for the consideration of the jury, and not a question of law to be determined by the court, and therefore upon that question we ask the attention of the court. This question, we think well settled by the opinion of this court. - Ingraham v. Hart, 11 Ohio 225; Bank v. Baker, 15 Ohio St. 83; Williams v. Finlay, 40 Ohio St. 343.
    III. It is not claimed that Pennsylvania had any statute modifying or changing the common law governing the case at bar. The most that can be said is that certain decisions had(been made by the supreme court declaratory of the common law, and that said decisions are in conflict with the common law, as declared by this court.
    If we could assume that such a thing existed as the common law of Pennsylvania, then possibly they might be said to be .declaratory of such common law, in some very limited sense. But we do not understand that such a claim can be seriously made. 1 Kent, 534.
    If, then, the common law is the same in the whole country and alike in each state, it would follow that the same rule of law prevails in Pennsylvania as in Ohio.
    It may be, and often is the case, that courts in different states hold the opposite doctrine upon the same question. They do so in the same state, often.
    We do not understand that “books of reports,” which are made evidence under our statute, are limited to reports of cases decided in the supreme court. Revised Statutes, 5244.
    If, then, each side had presented an opinion from an inferior court, running in opposite directions, we would be bound to admit that both were the law, if the theory of our friends on the other side is correct. But are they correct? We think not. We agree that the decisions in Pennsylvania are some evidence of the common law of the United States ; but are they any higher evidence than the decisions of - Ohio ? Are they superior to the opinions of any other state, except as they are fortified by better reasons ? This question was early before the Supreme Court of the United States in Swift v. Tyson, 16 Peters 18.
    The question in the case at bar was squarely before the Supreme Court of the United States in the case of Hough v. Railway Co., 100 U. S. 213, 226.
    We ask the special attention of the court to the very fully considered case of Franklin v. Twogood, 25 Iowa 522.
    Decisions by courts are but evidence of the general law, and are entitled to whatever respect and consideration that reasons given for them will warrant.
    It is hardly necessary to say that to-day the great weight of authority sustains the doctrine first announced in this state in. the Stevens case, as since explained by the Heavy case — the Divinney case, 17 Ohio St. 209; Kumler case, 33 Ohio St. 153, and divers other cases, because no one is more familiar with that fact than the court.
    If the circuit court was right in its construction of the Pennsylvania decisions, that the right of authority to exercise supervision or oversight, “ if he wanted to,” by a superior officer, regardless of whether or not he chose to so exercise it, reduced the officer to the level of a co-laborer, with a shovel, then we say, it was equal to saying that a superior officer may devolve upon an inferior officer, absolute control and discretion, and thus absolve the master from all liability or duty in favor of a laborer. It is more, it is equal to saying that certainly the negligent acts of no officer below the president can make the corporation liable, and probably he could not, as he is but the executive officer of the board of directors.
    Carrying, then, the doctrine of the circuit court to its logical result, it would be, that in Pennsylvania a corporation could not be liable for negligent acts unless the board of directors in an officially called meeting, directed by resolution the doing of said acts, and we suppose, democratically speaking, it would be necessary that a quorum of the directors should be present and voting; and that, without counting those who were bodily present, but parliamentarily absent.
    Such holding would utterly relieve the master from all duties and responsibilities to his employee, and leave the laborer without any protection from the superior. Again, it would offer a premium for negligence and want of care.
    To assert such a conclusion, is to admit that the court did not read or understand the Pennsylvania decisions, for it is emphatically condemned by every case that speaks upon the subject: Lewis v. Seifert, 116 Pa. St. 628; Mullain v. Steamship Company, 78 Pa. St. 25; N. Y., L. E. & W. R. R. Co. v. Bell, 112 Pa. St. 400.

      Harrison, Olds f Henderson, and J. B. Carey, for defendant in error.
    1. The circuit court is not, under section 6710 of the Revised Statutes, as amended May 4, 1885, (82 Ohio L. 230,) required, in a proceeding in error, to make a finding of facts, though the evidence is all set forth in a bill of exceptions. Senff v. Pyle, 46 Ohio St. 102; Woolen Mills Co. v. Titus, 35 Ohio St. 253; Railroad Co. v. Collett, 6 Ohio St. 182; McHugh v. State, 42 Ohio St. 154; Coil v. Miller, 18 Ohio 28; 4 Ohio St. 25; 13 Ohio 21; Baird v. Clark, 12 Ohio St. 90; Tod v. Wick, 36 Ohio St. 371; Lawrence v. State, 12 Ohio St. 1; Jack v. Hudnall, 25 Ohio St. 255.
    II. Counsel for plaintiff contend that the second defense is defectively pleaded. We maintain (1) that it is not, and (2) that if it were, it is too late to now make the objection for the first time. Swan’s Pleadings and Precedents, 133, 166; Railway Co. v. Lewis, 33 Ohio St. 196; Revised Statutes, section 5096; Railway Co. v. Iron Co., 46 Ohio St. 44; Williams v. Finley, 40 Ohio St. 342.
    If the second defense had been substantially defective, it is too late now to make that objection. Revised Statutes, section 5115; Hallam v. Jacks, 11 Ohio St. 692; Woodward v. Sloan, 27 Ohio St. 592; 2 Bates’ Pleadings, p. 591, and cases cited; and, also, Wood v. O’Farrell, 19 Ohio St. 427; Thomas v. Pendrick, 28 Ohio St. 55.
    III. We submit that the course pursued by the trial court was i'n accordance with the practice and the law applicable to such cases. When the evidence of a foreign law consists entirely of a judicial opinion, the question of its construction and effect is for the court; and if it is uncontradicted and will not support the action, the jury should be so instructed. Kline v. Baker, 99 Mass. 253, citing Church v. Hubbart, 2 Cranch 187; Ennis v. Smith, 14 How. 400; Owen v. Boyle, 15 Maine 147; State v. Jackson, 2 Dev. 563; People v. Lambert, 5 Mich. 349; Bremer v. Freeman, 10 Moore P. C. 306; Di Sora v. Phillips, 10 H. L. Cas. 624; Cooper v. Moore, 5 Jones L. (N. C.) 130; Cobb v. Griffith & Co., 87 Mo. 94; Thompson on Trials, sec. 1054; 1 Wharton on Evidence, sec. 303, citing in support thereof, among other cases, Kline v. Baker, 99 Mass. 253, and Ingraham v. Hart, 11 Ohio 255.
    It would seem to be foolish to submit ¿se a statute, and more especially a decision of the court, of another state, for construction, to persons unlearned in the law, who might not even understand the meaning of the language or law terms employed.
    There is nothing in the Ohio cases cited by opposing counsel, which militates in the least with the doctrines of the foregoing authorities. James v. Railroad Co., 2 Disney, 262.
    IY. The law of Pennsylvania, established and settled by the adjudications of the court of that state, is the law of this case. This proposition is well settled in Ohio, whatever rulings may have been made elsewhere. In Pennsylvania, it has been repeatedly and uniformly held and decided by the court of last resort of that state, that, “ in order that workmen should be fellow-servants within the meaning of the rule that a master is not responsible to a servant for an injury caused by his fellow-servant, it is not necessary that the workman causing and the workman sustaining the injury should both be engaged in the same particular work ; ” and “ it is sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purposes; and the rule is the same, although the one injured maybe an inferior in grade and subject to the control and direction of a superior whose act caused the injury, providing they "were both co-operating to effect the same common object.”
    This was ruled by the Supreme Court of Pennsylvania in the following cases, which were offered in evidence. Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 432; Weger v. Pennsylvania Co., 55 Pa. St. 460; National Tube Works v. Bedell, 96 Pa. St. 175; Railroad Co. v. Bell, 112 Pa. St. 400; Lewis v. Seifert, 116 Pa. St. 628.
    V. If Ohio adjudications can settle the law of Ohio, then Pennsylvania adjudications can settle the law of Pennsylvania. These expositions of the law, as adopted, declared and administered in the state of Pennsylvania, were made by its highest judicial tribunal, have extended from a time far back, and were numerous and uniform.
    VI. Let us now look at the declarations and adjudications of the Supreme Court of Ohio in relation to the establishment in the jurisprudence of Ohio, by judicial decisions, of new rules of law and of exceptions to the common law of England, and especially in regard to the responsibility of a master to a subordinate servant for injuries caused by the negligence of a superior servant in the same employment. Railroad Co. v. Keary, 3 Ohio St. 202; Railroad Co. v. Devinney, 17 Ohio St. 197; Berea Stone Co. v. Kraft, 31 Ohio St. 292; Kumler v. Railroad Co., 33 Ohio St. 153; Railway Co. v. Lewis, 33 Ohio St. 199; Railway Co. v. Ranney, 37 Ohio St. 665; Railroad Co. v. Webb’s Admr’x, 12 Ohio St. 475; 2 Thompson on Negligence, 1032; Railroad v. Fitzpatrick, 42 Ohio St. 318.
    These adjudications of this court show that the rules of the unwritten or non-statutory law of Ohio do differ from that of other states, and in regard to the responsibility of a master to a subordinate servant for the negligence of a superior, differ from that of Pennsylvania, and that the .adjudications of our supreme court may declare and establish new rules of action, and firmly settle new principles of law in the jurisprudence of this state, and engraft exceptions upon or work modifications of general rules of the common law.
    They further show that the repeated adjudications of our supreme court have established in Ohio a rule, that the master is responsible to a subordinate servant for an injury from the negligence of the superior servant, to whose orders he is subject, and have firmly engrafted such rule in the jurisprudence of this state, as an exception to or modification of the general doctrine upon that subject. The Ohio doctrine is against the great weight of authority : Wharton on Negligence, sec. 229; Pierce on Railroads, 366, and cases there cited.
    VII. It is settled in Ohio that the established law of Pennsylvania must determine this case. Knowlton v. Erie Railway Co., 19 Ohio St. 260; Story’s Confl. of Laws, section 242; 2 Red. on Railways, section 15.
    VIII. We have found, since the oral argument, further very well considered cases, which decide that there is different common or unwritten law in different states, and that in other states, as well as Ohio, principles of law and rules of conduct can be established in their jurisprudence, as the law of such states, by the decision of their courts. Forepaugh v. The Del., etc. R. Co., 128 Pa. St. 217; Railway Co. v. Smith, 74 Ill. 197; Hale v. N. J. Nav. Co., 15 Conn. 539; Railway Co. v. Tanner, 68 Ga. 384; Bridger v. R. R. Co., 27 S. C. 456; Davis v. N. Y. & N. E. R. R. Co., 143 Mass. 301.
   Bradbury, J.

The record discloses that the plaintiff in error, a boy of about sixteen years of age, was in the service of the defendant as one of a gang of employees engaged in relaying the track of a branch of defendant’s railroad; that his work, mainly, consisted in carrying water for the other members of the gang; occasionally, however, he assisted in the work they were doing; that on the day he was injured a train of cars loaded with cinders, for ballasting the track, was waiting to be unloaded, and that as he was climbing on one of the cars, or perhaps had gotten on it, to help unload the cinders, the train was started forward, by reason of which he was thrown from the car, under its wheels, receiving, besides other lesser injuries, one necessitating the amputation of a leg between the ankle and knee. The foreman of the gang discharged and employed men, had immediate control of them while at work, and of the work being done. Undoubtedly, according to the law of this state, he- was such a representative of the company as would render it liable to one of the gang of men under his control, who should be injured by his negligence. At this point there is a conflict in the testimony respecting the conduct of the plaintiff in error and the foreman, and the immediate circumstances under which the plaintiff went upon the car and the train put in motion; but there is evidence from which the jury could find that the foreman ordered the plaintiff to assist in unloading the cinders; that in obedience to this order he attempted to climb upon a car; that he did so in a reasonably careful manner, and that the foreman carelessly, even recklessly, ordered the train to be moved forward before the plaintiff had secured himself a safe footing upon the car he was attempting to board, thereby throwing him from it and under its wheels, causing the injury of which he complains; thus giving to the plaintiff, according to the law of Ohio, a right of action against the railroad company.

The real questions in contention between the parties in this court arise out of the fact that the accident occurred in the state of Pennsylvania.

The defendant in error, also defendant in the court of common pleas, interposed in the last named court among other defenses the following:

“For a second defense, it says that said plaintiff entered into its employ within the state of Pennsylvania, and was employed to serve the defendant within the said state of Pennsylvania and with reference to the laws of said state of Pennsylvania. It says further, that under the laws of said state of Pennsylvania, within which said contract was made, and where said plaintiff was acting as an employee of the defendanfc, the plaintiff and all the other employees, including said gang boss named in plaintiff’s petition, engaged upon and about the train in the unloading of the same, are held to be fellow employees, and for the negligence of either resulting in injury to the other, the common master, to wit, the defendant, is held not to be liable to the other. Wherefore this defendant asks to be dismissed with its costs.”

The sufficiency of this defense is denied by counsel for plaintiff in error in a forcible and ingenious argument, in which they specially criticise the averment, “ are held to be fellow employees,” etc. It is true there is no direct averment that any of the courts of Pennsylvania so held, but the liberal rules applicable to' the construction of pleadings in this state, require us to infer that the pleader so intended. No objection, by-motion or otherwise, was made to the form of this defense in the court of common pleas, or so far as the record discloses, at any stage in the progress of the case, until made by counsel in their brief filed in this court. Under this defense a number of the decisions of the Supreme Court of Pennsylvania were introduced in evidence to establish the rule of law attempted to be set up by this answer. Whether upon motion, made at the proper time, the defense should have been made more certain and definite, we need not inquire ; for at this late stage in the proceedings, after a strongly contested trial, mainly had upon the issues made by this very defense, and the reply denying its truth, the defense should receive the most favorable construction its language will permit; and when the pleader has averred, as in this defense, that “ under the laws of the state of Pennsylvania .....the plaintiff and the ‘ gang boss ’.....are held to be fellow servants,” it is entirely reasonable to infer that the alleged holding was, by the courts, of that state having authority to declare and announce the rules of law, operative therein.

The record of the proceedings in the circuit court is ambiguous. One of the assignments of error made in that court, by the defendant in error here, was that the court of common pleas erred in overruling its motion for a new trial, and one of the grounds for a new trial stated is that the motion was that the verdict was contrary to the weight of the evidence, so that the circuit court had before it for decision that question; and had it reversed the judgment of the court, of common pleas on that ground, this court would not have reversed its action, and the same result would have followed from a general judgment of reversal — that is, one specifying no particular ground for the action of the court — for in that case, as the court might have reversed the judgment on the ground that it was contrary to the evidence, this court cannot say that was not the ground of its action. Titus v. Lewis, 33 Ohio St. 304.

In the case at bar, however, there is an attempt to. state in the journal entry of the circuit court the grounds of its action, in reversing the judgment of the court of common pleas, as follows:

First — The court finds from examination of record and bill of exceptions, that it was not controverted in the trial in the court below but that there were officers of the Pennsylvania company superior in authority to Frank Kennan, who had the right and authority to contract and supervise his action in conducting the work, and controlling the men during the work in which the plaintiff below was engaged at the time he received the injury.
Second — The court holds as conclusion of law, that the determination of this case must be governed by the law in the state of Pennsylvania.
Third — The court further finds as a conclusion of law, from the reports of the decisions of the Supreme Court of Pennsylvania, contained in the record, that said Frank Kennan was a fellow-servant and co-employee with said Alexander at the time he received his injury, and therefore that plaintiff in error is not liable for the alleged negligent acts of said Kennan which caused the injury to defendant in error, to all of which holdings defendant in error excepted.”

This is not, in the correct and legal sense of the term, a finding of the facts in the case and a statement of them separately from the conclusions of law arrived at by the court, although it closely resembles it in form; for it is not within the province of the circuit court in a proceeding in error before it to find from the evidence contained in the bill of exceptions the facts and state them separately from its conclusions of law. Senff v. Pyle, 46 Ohio St. 102; Young, Treasurer, v. The Pennsylvania Company, Ib. 558. Neither does it give as the ground of the reversal any one of the errors assigned in that court.

What it really does disclose is that the circuit court, being of opinion that the law of Pennsylvania should govern the case, the verdict of the jury was- against the weight of the evidence, because from a consideration of the whole evidence, it appeared that the plaintiff in error was a fellow servant of the “ gang boss ” by whose negligence he was injured, and that in such case the law of Pennsylvania would not permit a recovery to be had' against the railroad company, in whose service both were at the time engaged. It may be considered, therefore, as fairly shown by the record, that the circuit court would not have reversed the judgment of the court of common pleas if it had not held the case to be governed by the law of that state. It therefore becomes material to inquire if the circuit court was right in this respect.

The first branch of the inquiry concerns the method by which the law of Pennsylvania is to be determined. Is it to be found as matter of fact by the jury from the evidence, or judicially declared by the court? That it is a fact to be determined by the jury, is, we think, a well established principle of law. Ingraham v. Hart, 11 Ohio 255; Bank v. Baker el al., 15 Ohio St. 68; Williams v. Finlay, 40 Ohio St. 342.

It does not follow from this, however, that where, as in the case at bar, numerous decisions of the several courts of a state are introduced in evidence to a jury as proof of the law of such state, that the jury should be required to search through them, elucidate and announce the doctrine they establish; this is often a most difficult and delicate dutjr for courts and judges of the greatest skill, learning and experience to undertake. To submit its performance to a body of men inexperienced in the examination and construction of judicial decisions, and not familiar with the general doctrines pertaining to the subject, would be to submit the rights of parties involved in the controversy to be determined by a method little, if any, more certain than the cast of a die.

In such case it becomes the duty of the court, as in the case of any other documentary evidence, requiring construction, to construe the decisions, the rulings of the trial court in this respect being subject to review by other courts having jurisdiction in error, thus securing as much certainty in ascertaining the law of another state or country as the nature of the subject will admit. Di Sora v. Phillipps et al., 10 H. L. Cases, 624; Bremer v. Freeman et al., 10 Moora, 306; State v. Jackson, 2 Dev. Law, 563; Cobb v. The Griffith & Adams etc. Co., 87 Mo. 90; Kline v. Baker, 99 Mass. 253; Thompson on Trials, section 1054.

The record discloses that the contract by which the plaintiff in error was employed, was made in the state of Pennsylvania ; that his services were to be rendered wholly within that state, and that he was injured therein.

If the right of a servant to recover damages from his master on account of an injury received through the negligence of a superior servant of the same master arises out of contract, then the case of Knowlton v. Erie Railway Co., 19 Ohio St. 260, is decisive of the case at bar.. The syllabus of that case reads: The defendant is a common carrier of passengers, incorporated by the laws of New York, and was sued as such common carrier on account of injuries received by the plaintiff whilst being carried as a passenger from one point to another on defendant’s road, and wholly within said state. The injury was charged to have been occasioned by defen dant’s negligence. The pleadings show that the plaintiff was being carried gratuitously at the time of the accident, under a contract by which the plaintiff assumed all risks of accident and injury arising from negligence, etc., and that such contract is valid by the laws of New York. Held: That the validity of the stipulation exempting the defendant from liability for negligence must be determined by the laws of New York, within whose jurisdiction the contract was made and to be executed; and as the plaintiff, under his contract, could have no right of action in the courts of New York, so his action cannot be maintained in this state.”

In Railway Company v. Ranney, 37 Ohio St. 665, McIl-VAINE, J., said, (page 669) : “ The principles of law in relation to the liability of a master for an injury to his servant while engaged in the performance of duties under his employment, have been so frequently considered and declared by this court, and upon such varied statements of fact, that one might be justified in assuming that the law upon this subject, in all its bearings, has been fully settled. The respective rights and duties of employer and employee, sound in contract. The employer implicitly engages to use reasonable care and diligence to secure the safety of the employee, and among other things, to exercise reasonable care in the selection of prudent fellow-servants. He also engages that every one placed in authority over the servant, with power to control and direct him in the performance of his duties, will exercise reasonable care in providing for his safety, whether such superior be a fellow-servant or not, in the ordinary sense.”

There is strong ground to contend that Judge McIlvaine states the rule correctly. But, however that may be, and whether the action of the plaintiff in error sounds in contract or tort, in either case we think it is to be governed by the law of Pennsylvania. If the acts of the parties impose no obligations on the one hand and confer no rights upon the other, where they occur, no good reason is apparent why they should spring into active existence the moment the parties pass into another jurisdiction, where, if they had occurred therein, such relative rights and obligations would have resulted. An act should be judged by the law of the jurisdiction where it was committed; the party acting or omitting to act must be presumed to have been • guided by the law in force at the time and place, and to which he owed obedience ; if his conduct according to that law violated no right of another, no cause of action arose, for actions at law are provided to redress violated rights. Nor is it material that the rules of Pennsylvania law that deny relief to plaintiff in error result from the adjudications of the courts of that state, instead of being legislative enactments. The rules of law established by judicial decisions, are as binding as legislative enactments, until modified, or overturned by other decisions or legislative enactments binding within that jurisdiction.

In theory it may be true, that there is no common law of Ohio, or of Pennsylvania; that the common law is one and the same in every state acknowledging its obligations, and that the decisions of one state are but evidence of it, not binding upon the courts of any other state ; but as matter of fact we know that in the application of the rules off the common law to the affairs of men, there is, unfortunately, in the several states a wide divergence; and that it necessarily follows that acts and transactions, sufficient in one state to create a cause of action, will not produce that result in another, and in the administration of justice mere theory must be made to yield to the truth as established by facts and experience.

Other questions were urged upon our consideration by counsel in argument, some, or all of which may be material upon the re-trial of the action, but they are not presented by the record in such manner as to authorize their consideration at this time, and will not be noticed.

Judgment affirmed.


source: Caselaw Access Project

author: Speak, J.

license: Public Domain

text:
    Longworth v. Cincinnati.

      Eminent domain — Compensation—Dedication—What is not.

    1. Where, in an action for compensation for land unlawfully taken by a municipal corporation without knowledge of the owners, and devoted to public uses by constructing thereon a street, it appears that the owners, upon learning that the land has been so taken, acquiesced in the appropriation as an accomplished fact, and ratified it by tendering a sufficient deed of the premises conveying title to the corporation, and . by offering to allow judgment that, upon the valde of the premises being fixed and payment of tlie same, plaintiffs should be ordered to convey to the corporation, a case is made entitling the plaintiffs to recover the value of the land. Railroad v. Robbins, 35 Ohio St. 531, distinguished.
    2. Such acquiescence and ratification, taken alone, are not sufficient to imply a dedication of the land to public uses by the owner in such sense as to deprive him of the right of compensation.
    (Decided December 8, 1891.)
    Error to the Superior Court of Cincinnati.

      Tims. McDougall, for plaintiffs in error.

      Horstman, G-alvin, Whittalcer and Van Horne, solicitors, for defendant in error.
    The action was for compensation for land alleged to have been unlawfully taken and appropriated by the city of Cincinnati for the purposes of a street. On the trial in the superior court at special term a verdict was rendered and judgment had for the plaintiffs. At general term the judgment was reversed for error in overruling the demurrer of the city to the amended petition, and the cause dismissed. To reverse which this error proceeding is prosecuted.
    The amended petition is as follows :
    “ Joseph Longworth, Catherine L. Anderson and John L. Stettinius, the plaintiffs above named, by way of amended petition say, that they are and were, prior to the grievances hereinafter mentioned, the le^dr-o'whers in fee-simple of the following described land in the city of Cincinnati and state of Ohio, viz.: Commencing at a point in the west line of Kemper’s subdivision, distant one hundred and sixty-six 60-100 (166 60-100) feet from the south corner of same; thence north 13¿°, east along said line ninety-one 66-100 (91 66-100) feet; thence north 54° 22', west eighty-three hundredths (0.83) feet to the east line of the Montgomery pike; thence along the same south 65° 53', west fifty-nine 39-100 (59 39-100) feet; thence south 54°'22( east one hundred and two 23-100 (102 23-100) feet to the place of beginning, containing nine hundred and five ten thousandths of an acre (0.0905 acre).

      “ That said defendant, the city of Cincinnati, in constructing a public street from said Montgomery pike to Gilbert avenue, in said city, has taken possession of all of said property, and constructed said street thereon, without ever having appropriated the same by law, or having made any compensation therefor, in money or otherwise, and is now in possession of all of said land, and wholly refuses to surrender the possession thereof to these plaintiffs, or to make any compensation to them therefor.
    “ On the discovery by plaintiffs of the unauthorized and unlawful appropriation by defendant of the above described premises in the manner and for the purposes aforesaid, plaintiffs offered to convey the same to the defendant by deed in fee-simple upon the payment by defendant of the value of the same, which defendant refused to pay.
    “ Plaintiffs now offer to convey said premises in fee-simple to defendant upon the payment by defendant of the value of the same, and they agree that upon the value of said premises being fixed in this case, and the payment of the same, the decree of this court may be entered ordering a conveyance in fee-simple of said premises to defendant, and plaintiffs ' here tender said conveyance and surrender of title to said premises upon payment as aforesaid.
    “ That said land is justly worth the sum of ten thousand ($10,000.00) dollars.
    “Wherefore said plaintiffs pray that said defendant be decreed to make compensation to them in money for the value of said land so unlawfully taken and appropriated as aforesaid, and that they recover judgment against defendant for the sum of ten thousand dollars, with interest and costs, ' and for such other and further relief as under the circumstances of the case they may be entitled to.”
   Speak, J.

The grounds urged in support of the demurrer to the amended petition are two: 1. The pleading does not show but that the plaintiffs might maintain ejectment and reclaim the land itself. 2. Acts of the owner sufficient to show an estoppel to claim the land itself would, as against a municipal corporation holding land for purposes of a street, amount to a dedication.

It was shown by the pleading that the city had wrongfully taken possession of the plaintiff’s property, and had devoted it to the purposes of a street,-a public use. No appropriation in accordance with law had been made, nor had compensation in money, or otherwise, been awarded the owners. The city simply took the property by force, and was continuing its unlawful use, refusing to yield it up to the owners and also refusing to make any compensation for it, thus disregarding the plaintiffs’ natural rights, and violating their constitutional right secured by that section of the constitution which provides that private property shall ever be held inviolate, but subservient to the public welfare, and where taken for public use, a compensation therefor shall first be made in money. In every aspect the city was a wrong-doer. It could have acquired a right to the land by appropriation, paying its value. This it chose not to do, but rather to incur the risks attending a wrongful seizure. Yet, while the act was wholly indefensible, the public, by it, obtained a valuable privilege in the use of the street. But the owners’ rights were not extinguished. They were entitled, unless prevented by their own acts or omissions, to recover the land itself, or to demand compensation for its value. If compensation would make them whole, and they were content to accept that in full satisfaction, and as an extinguishment of all right in and title to the land thus wrongfully taken, it would seem that no injustice would result by that remedy. Surely the city was not in a position to complain. It would appear to be common sense to say that where an owner discovers that a municipal corporation has seized his land and appropriated it to the use of a street, without process or payment, he may have his option either to repudiate the unlawful act and reclaim land, or assent to the seizure, ratify the act, and demand compensation, yielding to the corporation title to the land so taken. And we know of no rule of law which prevents the exercise of such option.

It is not stated in the pleading just what had been done to the land in adapting it to the purposes of a street, but it is fair matter of inference that more or less work in the line of street improvement had beeD done upon' it, and that it had been changed from its original condition. The reclamation of the land by the plaintiffs would, necessarily, interrupt the occupation by the public of the street, and would thus, to a greater or less extent, interfere with the public convenience and welfare. So that a remedy which would avoid that disturbance of the public convenience would appear to be the one the law would favor, and, unless the attitude of the plaintiffs, as shown by the pleading, was such as to forbid such remedy to them, compensation would best satisfy the demands of justice.

By the sustaining of the demurrer upon the grounds on which it was placed, the plaintiffs were told that their only chance for justice was to go into court and ask that the public be ousted from the use of the street, and that they be put in possession of the land — this because, upon their own showing, they had done nothing-to estop them from resorting to that remedy; and further, if they averred acquiescence in the appropriation in such terms as to show themselves estopped to resort to ejectment, that would amount to a dedication, and then they could have no remedy at all.

The cases of Hatch v. Railroad, 18 Ohio St. 92, and of Goodin v. Canal Co., same vol., 169, are cited. These cases grew out of the conversion of the bed of a canal into that of a railway by agreement with the canal company. Owners of land underlying the canal sought in one case to recover damages, and in the other to enjoin its use by the railroad company and to recover the land. The relief was denied as demanded, but the court held in the Hatch case that they could have damages for the additional servitude to which the land had been subjected, and in the Coodin case compensation for their interest in the land. The ground of the holding was estoppel, the court finding that the plaintiffs had neglected to speak at the proper time. “When a party stands by,” says the opinion in the Coodin case, “ as we must presume plaintiffs to have done in the present case, and silently sees a public railroad constructed upon his land, it is too late for him, after the road is completed, or large sums-have been expended on the faith of his apparent acquiescence, to seek by injunction or otherwise, to deny to the railroad company the right to use the property.” And farther, that the omission to ask injunction at the proper time, “ implies assent.” It is worth while to notice, in passing, that this “assent” of the plaintiffs was assumed by the court from the mere fact of silence. The same principle is recognized in Penna. Co. v. Platt, 47 Ohio St. 366.

We understand the extent of the holdings in the Hatch and Groodin cases to be that, had the plaintiffs not been es-topped by their own conduct to resort to injunction, they might have had that remedy. But the conclusion does not follow, we submit, that they might not, in case they had not been estopped by their own conduct at the time of the appropriation, have exercised a right afterwards to waive the informality of the appropriation, assent to it as an accomplished fact, and ask compensation.

The case of Railroad v. Robbins, 35 Ohio St. 531, is relied upon as sustaining the defendant’s claim. An action originally brought by Josiah Robbins to recover compensation for lands unlawfully taken and damages to residue, and, in. the alternative, f©r a recovery of the land and damages for detention, was revived in the name of his administrators and heirs. The land had been converted by the.company to its use as an additional side track while in the company’s temporary possession for only a temporary purpose by agreement with Mr. Robbins, and without his knowledge. Verdict and judgment were had in the common pleas for plaintiff. In this court the judgment was reversed, the holding, as appears by the syllabus, being that the owner of land which has been unlawfully and wrongfully taken by a railway company cannot maintain an action for the value, and for damages accruing, if the circumstances are such that he may recover the land itself. The authoritative effect of this holding is that, under the circumstances of that case, ejectment might be maintained by the heirs even though a judgment for corn-pensation should be rendered and paid to the administrators, and, as a consequence, compensation could not be awarded. To understand the circumstances we must refer to the record. On page 538 we find this, by Johnson, J.:

“ This is a case of unlawful and unauthorized use, and a fraudulent appropriation, against the objection of the owner, and is not under a contract of sale, or by acquiescence or other acts, upon the faith of which expenditures have been made; in short, it is an action for the trover and conversion of real estate.
“ It must also be kept in mind that, although the heirs of Robbins are united as plaintiffs with the administrators, they are only nominally such, and there is nothing in the record that would estop them from bringing an action of ejectment to recover the land itself, even though the judgment be paid to the administrators.
“ That Robbins himself was not so estopped is clear, as he took pains to show in his petition, by asking for a recovery of the land in the event he was not entitled to compensation or damages. His heirs have done nothing since to estop them. Neither he, nor they, offer to convey or surrender the title, upon being paid, and neither has done any act, so far as the record shows, that would estop him, or them, from asserting title to this land.”

No fact looking to estoppel appears in the case. All idea of acquiescence on the part of the original plaintiffs, or of the heirs, is distinctly negatived. They pray a recovery of the land in the event that they cannot obtain compensation. No offer is made to part with the legal title. So that, in the judgment of the court, as is clearly indicated by the opinion, had a recovery been had for compensation, and had the same been paid, Mr. Robbins’ heirs might, notwithstanding, have maintained ejectment and recovered the land itself because the legal title would have remained in them.

The opinion emphasizes the importance of the fact, by repeating it, that Mr. Robbins himself had done nothing to estop him from asserting title to the land, and, in like manner, emphasizes the fact that the heirs had done nothing that would estop them from bringing ejectment even though the judgment be paid to the administrators. This implies that the heirs had it in their power to do something which would estop, and that,had that been done, the action for compensation might have been maintained. What could they have done more than tender title and offer to convey upon being paid, and thus ratify the unlawful appropriation ? They could not have acquiesced at the time the seizure was made, for they then were not heirs and had no title. And that this matter of tender was just what was in the mind of the learned judge who wrote the opinion, is clearly shown by the further remark, referring to Mr. Robbins and the heirs, that “ neither he, nor they, offer to convey or surrender the title upon being paid,” The inference seems inevitable that had such tender been made so that the effect of the judgment for compensation would have been to clothe the company with the legal title to the land and thus estop the former owners from maintaining ejectment, the plaintiffs would have been entitled to recover compensation in that action. True, the judge further on, uses this language: “ Our conclusion, therefore, is that the unlawful and wrongful conversion and use of land, against the will of the owner, and under such circumstances that he is not prevented or estopped from recovering possession, will not entitle such owner, while the title still remains in him, to maintain an action to recover a judgment for the value of the land,” etc. This should be taken in connection with what has already been quoted; from all which, as it seems to us, it appears that, had the facts been present which the court emphasizes as absent, a case would have been made in the circumstances which would have prevented the parties from recovering possession.

We are not called upon to question the correctness of the judgment in the Rollins case, upon the facts there existing, but if the meaning of the opinion is that where an owner shows full acquiescence in the unlawful act of the corporation, and tenders conveyance of title, so that the judgment for compensation will clothe the corporation with the legal title and estop him from afterwards seeking recovery of possession, he still cannot have compensation, then we are not in accord with the holding.

In the present case every circumstance points to acquiescence. Ratification of the unlawful taking appears in all that has been done. It can hardly make any difference that the acquiescence follows, by voluntary acts and declarations, after the wrongful thing is done, rather than by silence while it is being done. As a general rule a party may bind himself as effectually by ratification after the fact as by previous direction, or contemporary assent. What is in the way of that rule having application here ? The legal title is tendered. And, if this were not sufficient, the judgment offered is to be made to operate as a conveyance of the title to the city.

Another point in which the Robbins case differs from the one at bar may have had a bearing in determining the judgment. In that case the land taken was not indispensable to the operating of the railroad, and its reclamation would not have interfered with the public convenience; here a reclamation of the land would practically cut off a portion of a street, and thus seriously inconvenience the public.

The other point insisted on is that wherever the action of the owner, or his acquiescence in the acts of the others, is such as to clearly indicate his intention that the property shall be dedicated to public use, he cannot have compensation, or reclaim. Intention that it shall be dedicated by whom, and in wbat sense? If by himself, in the sense of a voluntary surrender for public uses, then clearly yes; if by the corporation only, in the sense of appropriation to public uses, then as clearly no. As applied to the case made in the amended petition the proposition amounts to this: Where acquiescence is shown that fact necessarily, and in all cases, results in dedication. In other words, an owner of land who, in fact, is willing the municipality shall have his land for a street upon paying him for it, is, inlaw, willing it should'be so taken without pajr. This cannot be the law. Acquiescence is some evidence of intention to dedicate; it is not the intention itself. “ There must be an intention to dedicate, and an actual dedication on the part of the owner.” Fulton v. Mehrenfeld, 8 Ohio St. 446. This means an actual voluntary surrender. Actual dedication, we take it, means unconditional dedication. This implies an intention to yield up to the public every private right in, and every private right growing out of, the land, leaving no right in the former owner except such as he enjoys in common with the public. How can there be an unconditional dedication to public uses while the owner is demanding pay for his land ? How, under a constitution which denies to the state the right to acquire private property for public uses in time of peace, without first awarding a compensation in money can it be claimed that such acquisition has been made under circumstances shown by the amended petition, where the authorities not only did not first make a compensation, but utterly refuse to make any, and the owners are denying their right to acquire except on condition that compensation may be made ?

Our conclusion is that where, in an action for compensation for land unlawfully taken by a municipal corporation, without knowledge of the owners and devoted to public uses by constructing thereon a street, it appears, that the owners, upon learning that the land has been so taken, acquiesced in the appropriation as an accomplished fact, and ratified it by tendering a sufficient deed of the premises conveying title to the corporation, and by offering to allow judgment, that, upon the value of the land being fixed and payment of the same, plaintiffs should be ordered to convey to the corporation, such acquiescence and ratification will not be treated as a dedication of the land to public uses, but a case is made entitling such owners to compensation for the value of the land.

The sustaining of the demurrer to the second and third defenses of the amended answer is alleged as error. Also, the sustaining of the motion to the defense attempting to set up the statute of limitations. We do not think either question is presented by the record. But if the demurrer to the third defense were under review, we would hold that it ought to have been sustained. That portion of the answer did not constitute a defense for reasons hereinbefore given.

At the trial the court submitted to the jury the question of the value of the land at the time of the taking, which was excepted to by the defendant. The objection is not argued in the brief, and, we presume, is not now insisted upon. We are not, therefore, called upon to determine whether the value should have been fixed as of the time of the taking, or of the commencement of the action, or of the trial. Differing facts might vary the rule, perhaps, in different cases. But it is seriously objected that the trial court erred as to the matter of interest. The jury having, by special verdict, fixed the value of the land at the time of the taking, the court computed the interest to the first day of the trial term, and that, added to the amount found by the jury, was the amount for which judgment was rendered.

Assuming, without holding, that the time of taking was the proper date for the fixing of value, was the action of the court as to interest erroneous? That the plaintiffs were entitled to compensation has been already found. That they could not have full compensation without the addition of interest seems clear. It would not have been error to so charge the jury, and to instruct them that it would be proper to add interest to the value found. That interest is allowable in such cases has been often held by this court, and the authorities cited by defendants, from other states, are not really in conflict with the rule. Railroad v. Koblentz, 21 Ohio St. 334; Railroad v. Cobb, 35 Ohio St. 94; Cincinnati v. Whetstone, 47 Ohio St. 196. Nor is this unjust to the defendant. The city could have had the value ascertained at the time of the taking and could have then paid it. Failing to do this, it cannot complain at having to meet a usual incident of delay in the payment of money. The action of the court appears to us to have been an irregularity, inasmuch as the jury was there to render verdict for the whole damages. Yet we do not see that any substantial right of the city has been prejudiced, and would not feel justified in disturbing the judgment of the special term on account of this action of the court.

We find no error in the record of the special term.

The judgment of reversal will therefore he reversed, and judgment of the special term affirmed.


author: Williams, C. J.

text:
    Sommers v. Boyd, Treas.

      Guardian and ward — Dea,th of latter — Effect of — Estate of deceased ward —When administration is granted ux>on, how vests — Date of title to— Listing of, for taxation — By whom made — Legal situs of credits of estate.

    1. The death of the ward terminates the guardianship, and the guardian has no further authority or control over the personal estate remaining in his hands except to safely keep and deliver the same to the personal representative.
    2. When administration is granted upon the estate of a deceased ward, the assets vest immediately in the administrator, whose title, by relation, dates back to the time of the decease; and thereafter, he, and not the former guardian, is the proper person to list the personal estate for taxation.
    3. Por the' purposes of taxation, the domicil of the administrator is the legal situs of the credits belonging to the estate, and it is his duty to list them in the township, city, or village where he resides on the day preceding the second Monday of April, each year they are required to be listed. *
    4. In an action by a county treasurer to recover taxes charged on the duplicate against the defendant as guardian upon property listed by him as the property of his ward, the defendant is not estopped from making the defense, that, by reason of the death of the ward and administration granted on his estate before the property was listed, the guardian was without authority to list the same for taxation, and it was properly listed for the same year by the personal representative, who has paid the taxes thereon.
    (Decided December 8, 1891.)
    Error to the Circuit Court of Butler county.
    The original action was commenced in the Court of Common Pleas of Butler county, by W. M. Boyd, as treasurer of that county, against David Sommers as guardian of John McCleary, an imbecile, to recover the amount of the taxes charged against the defendant on the tax duplicate of Butler county, for the year 1889. The petition, which was filed on the 13th day of June, 1890, is as follows:
    “ The plaintiff says that he is now the duly elected, qualified and acting treasurer of Butler county, Ohio, and that the said defendant, David Sommers, was by the Probate Court of Butler county, Ohio, on the 29th day of April, 1882, duly appointed and qualified as guardian of the person and estate of John McCleary, an imbecile, and that the said David Sommers and the said John McCleary, at the time of said appointment, both resided in 'Milford township, Butler county, Ohio.
    “ Plaintiff further says that said David Sommers accepted said trust, and a large amount of personal property came into his hands by reason of said trust, to wit: The sum of $103,530, or more, subject to taxation in said county of Butler ; and that afterwards, to wit: on the 11th day of April, 1889, the said David Sommers, when called upon as sucli guardian by the assessor of said Millford township, Butler county, Ohio, to list for taxation the property in his hands as such guardian of said John McCleary, did then and there list in writing for taxation in said county, moneys, property and credits amounting to $103,530, and was duly affirmed to the same, and afterward, to wit: on the same day, the said assessor of Millford township, Butler county, Ohio, duly returned to the auditor of Butler county, Ohio, the list and return of property so made by said David Sommers as such guardian to said assessor, a certified copy of which said return of property so made by said David Sommers as such guardian of said John McCleary, is hereto attached marked 4 A,’ and afterwards and before October the first, 1889, the same was duly placed upon the tax duplicate of Butler county, Ohio, by the auditor, and that said duplicate was afterward, and before October 1st, 1889, by the auditor of Butler county, Ohio, duly and legally delivered to the treasurer of Butler county, Ohio, for collection of said taxes; and by reason of the premises the said defendant, David Sommers, as guardian of John McCleary, now stands legally charged .upon the tax duplicate of Butler county, Ohio, with the sum of $1,112.94 taxes, and five per cent, penalty, making an aggregate of $1,168.58, and that said sum of $1,112.94 taxes, and said sum of $55.64 penalty are both now due and unpaid, and that the said David Sommers, as such guardian of the said John McCleary, is now justly indebted to the said plaintiff, as treasurer of Butler county, Ohio, for unpaid taxes and penalty in the sum of $1,168.58, same being for the year 1889.
    “ Wherefore, plaintiff, as such treasurer, prays for a judgment against said David Sommers, defendant, as such guardian of John McCleary, for said sum of $1,168.58, and for costs of suit.”
    To this petition the defendant filed the following answer:
    “ The defendant, David Sommers, says that it is true as averred in the petition, that on the 29th day of April, 1882, he was duly appointed and qualified as guardian of John McCleary, an imbecile, and that he continued as such guardian thence until the death of said John McCleary, which occurred in Butler county, Ohio, on the 19th day of March, 1889, when his functions as said guardian were terminated by law. That on the 25th day of March, 1889, one James B. Dqffield, who was then and is now a resident of Somers township, Preble county, Ohio, was duly appointed and qualified as administrator of the estate of said decedent, John McCleary, and has ever since been and is now the acting administrator of the estate of said decedent, and as such, is the legal representative of said estate.
    “ He says, that on the 11th day of April, 1889, as guardian óf said John McCleary', upon notice and demand of one W. B. Stephens, township assessor of Milford township, in said county of Butler, being the township in which this defendant then resided, he made enlistment of the personal property and effects which were of the estate of said decedent, a true copy of which enlistment is set out in the petition and marked ‘ A.’ That being uncertain as to his duty as such guardian, at the time, in the premises, he made said enlistment under protest. He says that at the date of said enlistment he had not made and filed his final account for settlement, as said guardian, and had not transferred or turned over the property and effects set forth in said enlistment, of which said exhibit ‘ A ’ is a copy, to said James B. Duffield, as administrator of said estate, but that he did within two days thereafter, to wit: on the 13th day of April, 1889, file his final account as such guardian for settlement in the probate court of said county of Butler, and the same was finally settled and approved by said court September 30,1889.
    “ He further says, that on or about the-day of April, 1889, on demand of the township assessor of Somers township, Preble county, Ohio, being the township in which said James B. Duffield, administrator of the estate of John Mc-Cleary, deceased, then resided, he also enlisted as such administrator, the identical property and effects of said estate set out and described in said exhibit ‘ A ’ in the petition, and the said enlistment was duly returned to the auditor of said county of Preble, who duly placed against said property and effects the assessment of taxes proper to be assessed against the same for said year 1889, and which taxes so assessed have been paid by said Administrator Duffield to the treasurer of said county of Preble.
    “ Defendant says, that he, as such guardian, has made a full and final settlement with the Probate Court of Butler county, Ohio, of his accounts and transactions, and has accounted to said Duffield, as administrator of said estate, for all the property and effects of said McCleary, that came into his hands as such guardian.
    “ Defendant says that he has no interest, right in, or control of any of the assets which were of the estate of said John McCleary and that said James B. Duffield ever since the date of his said appointment as administrator of said estate has been the legal representative thereof, and in control af the property and effects thereof, and as such administrator is bound for the payment of all valid claims against said estate, including the taxes legally assessed against the aforesaid property and effects of said estate for the year 1889.

      “ Defendant denies that he, as such guardian, is bound for the payment of said taxes, but avers that if the same are legally assessed that James B. Duffield, as such administrator, is bound for the payment thereof.
    “ He says that whatever claim may exist in favor of said plaintiff for taxes against the property belonging to the estate of said John McCleary, accrued after the date of the death of said John McCleary, and are in law to be charged against and paid by the administrator of said estate.
    “ Defendant denies that he has any funds whatever belonging to the estate of said decedent, applicable, by him, to the payment of the claim for taxes set out in the petition, or that plaintiff is entitled to a judgment against him for said sum of $1,168.58, as averred in the petition, or for any other sum.
    “He denies that he has, as guardian of said John Mc-Cleary, any right, interest or claim whatever in the subject matter of this suit; he avers that he is not a proper party to this action.
    “ Therefore, he asks to be dismissed hence with his costs.”
    No reply was filed. The exhibit referred to in the pleadings, contains a statement of the property belonging to the estate of Mcdear}', which, as it there appears, consists of credits to the amount of $103,000, and farming utensils, agricultural products, and some other articles, amounting to $530. In the affidavit made by Sommers, to the exhibit, when the property was listed, is the following statement: “I further say that this assessment is made under protest, on demand of W. B. Stephens, assessor, I not being affvised whether I should make the enlistment or not.” It appears from the record, that the cause coming on for hearing before the court, it was agreed by the parties, “ that the petition and answer contain all the facts in the case, and said cause is submitted on said facts, and no further, or other evidence is offered.” The court gave judgment for the plaintiff, for the amount claimed in his petition, with interest and costs of suit. In due time the defendant filed his motion for a new trial, which being overruled, he prosecuted error to the circuit court, where the judgment was affirmed; and he seeks by the present proceeding to obtain the reversal of the judgments below.

      Fisher Vaughan, and Israel Williams, for plaintiff in error.
    I. The administrator or executor for the purpose of enlistment and taxation is regarded as the owner of the property of the estate; and it is held that the situs of the property is the domicile of the owner. Hence the -domicile of the administrator is the situs of the intangible property belonging to the estate. Revised Statutes, section 2734, 2735; Felton v. Transportation Co., 37 Ohio St. 450; Grant v. Jones, 39 Ohio St. 506; Bradley v. Bauer, 36 Ohio St. 28; Meyer v. Seaberger, 45 Ohio St. 235; Brown v. Noble, 42 Ohio. St. 405; State v. Ross, (N. J. ) 3, 517.
    We submit that, in view of the provision of the statutes and of the tenor of the decisions of this court above cited, that the enlistment made by Duffield, as administrator, was valid in law, and that the enlistment made by David Sommers, as guardian, was invalid, because Sommers was no longer in law owner of the estate of his former ward, that relation having terminated at the death of McCleary.
    Even if it were true that Sommers, at the date he made enlistment of said effects, to wit: April 11, 1889, held physical possession of them, it must be said that he did not hold them in his own right, but in trust for the owner thereof, in law, James B. Duffield, administrator. He could exercise no right or power over said effects further than to deliver them to the administrator on demand. He was a mere custodian, and as such was responsible to the administrator for their care and safety, and no other duty, in that relation, was incumbent upon him. , The fact that he saw fit to enlist said property (under protest) as guardian, was simply a voluntary act, not founded on right, nor enjoined by duty, and not binding in law. Any other volunteer could have done the same thing.
    Now then it is clearly apparent that Duffield, as administrator, was bound to list the property of his intestate, (Revised Statutes, sec. 2734,) and that he did his duty in the premises. And that consequently the act of Sommers in listing the same was invalid — unless the fact that the mere possession by Sommers of said effects in Butler county would prevent Duffield from making a valid enlistment of the same at his own domicile in Preble county.
    Duffield was the only person who had the right to list the property. He was the person to be charged. On the death of McCleary Sommers’ powers as guardian- absolutely terminated and he had no other duty to perform except to deliver the property to the administrator. 3 Wait’s A. & D., 544.
    His naked duty to collect and turn the property over to the administrator was not such a power over the assets as to authorize or require him to enlist the same under' section 2734 of the Revised Statutes. Myers v. Seaberger, 45 Ohio St. 232.
    The phrase “or otherwise controlled by him” does not give the power. Section 2735 must be construed with section 2734, the person to list for others must be one defined in section 2734.
    II. In the second place plaintiff claims that even if the court shall find that the enlistment for taxation of said assets was properly made in Butler county, this suit cannot be maintained against him, but the same should have been brought against said James B. Duffield, as administrator, the legal representative of the estate.
    That the estate of John McCleary is the real party in interest. It is laid down in Allen v. Miller, 10 Ohio St. 374. Revised Statutes, sec. 5006, provides that no person can be made a party defendant unless he has or claims an interest in the controversy adverse to the plaintiff.
    David Sommers neither had, nor could he have, any interest whatever in the subject matter of this controversy as guardian, because long before the commencement of the suit he had made full and final settlement of his account as guardian of John McCleary.
    In 45 California Report, page 491, it is held that executors or administrators are necessary parties in an action to enforce the payment of a claim for taxes against an estate.

      O. J. Smith, and Alex F. Hume, for defendant in error.
    1. It plainly was,the duty of Sommers as guardian to list said personal property and notes and mortgages belonging to the McCleary estate for taxation. It is conceded that he had the possession and control of said personal property, notes, and mortgages on April 9, 1889. Section 2734, Revised Statutes.
    Sommers as guardian rightfully had all said notes and mortgages in his possession, and was in fact the legal owner thereof until his final account as guardian was approved by the probate court, and he was ordered by the court to turn them over to the administrator of McCleary. The administrator of McCleary could not by any process of law, have taken those credits from Sommers’ possession before his final account was approved, and he was ordered by the court, with the consent of the administrator, to turn them over to the administrator.
    The supreme court in the case of Myers v. Seeburger, page 235 of 45 Ohio St. Reports, clearly recognized the right and duty of Sommers as such guardian to list said notes for taxation.
    Suppose no administrator had been appointed for McCleary until long after the time for listing the property for taxation in 1889, who could have listed such credits and property for taxation, if Sommers as guardian was not authorized to list the same?
    The township assessor is not authorized or required to go out of his township to hunt up the owners of personal property or credits. See section 2747.
    It is the policy of the law to have all property and credits listed for taxation. Hence it is the duty of every resident of every township to list all credits and property owned by him, or held by him in trust for or on account of another while in his possession or under his control. If Sommers as guardian had not listed said credits and property, they would probably have escaped taxation.
    It may be said that section 2784 makes it the duty of the administrator of a deceased person to list the propertjr belonging to his intestate’s estate. But this means that he is required to list it after it comes into his possession or under his control.
    II. The personal property and credits belonging to Mc-Cleary’s estate were properly listed in Milford township, Butler county. Section 2735.
    The personal property on McCleary’s farm located in Milford township on April 9, 1889, could not be listed at any other place, and as McCleary’s administrator resided in Preble county, and all the credits belonging to McCleary’s estate were then in the possession of Sommers as guardian, who resided in Milford township, such credits could only be listed in that township.
    McCleary’s administrator could not lawfully have listed either the personal property or credits belonging to Mc-Cleary’s estate in Preble county, because the personal property was located on a farm in Milford township, Butler county, and the credits were in the possession of Sommers as guardian in that township.
    That all the personal property belonging to McCleary’s estate was taxable in Milford township, Butler county, Ohio, where the same was located on April 9, 1889, is clearly decided in the case of Brown v. Noble, 42 Ohio St. 407.
    III. Sommers as guardian is estopped from claiming that he should not pay the taxes on the property and credits he listed. By his return he authorized the auditor of Butler county to charge him as guardian with the taxes properly assessed on the property and credits so returned on the tax duplicate of the county. The auditor of the county acted upon his representations in his return and did charge him as guardian on the tax duplicate of the county with the taxes properly levied on the property and credits so returned by him. He ought not now to be permitted to say that his rep resentation was not true after it has been acted upon.

      IV. But it may be said that Sommers ought to have listed said property and credits as belonging to the administrator of McCleary. But it is sufficient answer to this to say that he did not so list the same, and he alone is at fault if the property and credits are wrongly listed, and must suffer the consequences of his own error, if he made an error.
    V. It makes no difference what became of the credits and personal property of McCleary after April 9, 1889. If a .man owns a horse on the day preceding the second Monday of April and sells it the next day, he must list it for taxation. Hence it makes no difference how soon after April 9, 1889, he filed his account as guardian in the probate court, or when he made his final settlement, or when he turned the credits and property over to McCleary’s administrator after that date.
    VI. This action is not governed by the civil code. It is a statutory action provided for in section 2859 of the statutes.
    VII. This action cannot be maintained against the administrator of McCleary, under section 2859. No tax stands charged against him on the tax duplicate. He did not list any property for taxation, and the auditor could not lawfully charge him with any taxes. He is not the personal representative of Sommers as guardian, and is not liable for the taxes charged against Sommers as guardian. No tax having been assessed against him, none can be collected of him.
    VIII. The principle decided in the ease of Allen v. Miller, 10 Ohio St. 374, has no application to this case. Sommers as guardian is the real and only defendant in this case. Judgment in this case is sought against him as guardian alone. It is not an action against the estate of John Mc-Cleary.
   Williams, C. J.

The personal property of which Mc-Cleary died seized, was not subject to taxation in both the counties of Butler and Preble. Some of it might properly be taxable in one county, and some in the other; but the .same property could not be required to bear the double burden of taxation in both. Nor could the listing of the property by Sommers, and that by Duffield, both be lawful. Either the one, or the other, was without the requisite authority to bind the estate. The first question we are called upon to decide, therefore, is, who was the proper person to list the personal property belonging to McCleary’s estate, for taxation. And the decision of that question, may go far toward determining, if it does not entirely do so, where the property should have been listed.

The statute, declaring who shall list personal property for taxation, provides that “the property of every ward shall be listed by his guardian,” and the property “ of every estate of a deceased person, by his executor or administrator.” And it also provides that, “ every person of full age and sound mind shall list the personal property of which he is the owner, and all moneys in his possession,” and “all moneys invested, loaned or otherwise controlled by him, as agent or attorney, or on account of any other person, company or corporation.” Revised Statutes, section 2724. With regard to the time and manner of listing the property, it is provided, that the person required to list it shall annually “ make out and deliver to the assessor a statement verified by his oath, of all the personal property, moneys, credits, investment in bonds, stocks, joint stock companies, annuities, or otherwise, in his possession, or under his control, on the day preceding the second Monday of April of that year, which he is required to list for taxation, either as owner or holder thereof, or as parent, husband, guardian, trustee, executor, administrator, receiver, •accounting officer, partner, agent, factor, or otherwise.” Revised Statutes, section 2736. The day preceding the second Monday of April, in the year 1889, was the 9th day of that month. And the record shows, that on the 25th day of the previous-month, Duffield was appointed administrator of McCleary’s estate.

It is well settled, that immediately upon the appointment of an administrator, all the personal estate of the deceased, passes to and vests in him, and his title as administrator, relates back to the date of the intestate’s decease. As was said by Parker, C. J., in Jewett v. Smith, 12 Mass. 310, “ The property may be considered in abeyance until administration is granted, and is then vested in the administrator by relation from the time of the death.” In Lawrence v. Wright, 23 Pick. 128, the rule is stated by Shaw, C. J., as follows : “ The personal property of a deceased person vests in the executor or administrator, and when an administrator is appointed, the appointment dates back, and vests the property in him from the decease of the intestate. Those who have the property in custody in the meantime, have no fur-, ther power, or interest in it, than is necessary to enable them to keep it safely and have it forthcoming when called for by the administrator.”

We see no reason to doubt that on the 9th day of April, 1889, the title to the whole of the personal estate of Mc-Cleary, was vested in Duffield, the administrator, who alone had authority to represent the estate, and upon whom, as we have seen, the statute enjoined the duty of listing it for taxation. Counsel for the defendant in error claim, however, that Sommers was the proper person to list it for that year. They contend that, either the guardianship of Sommers continued until, on the settlement of his final account, the effects of the deceased ward, were under the order of the probate court, turned over to, and received by the administrator, or, they were, on the 9th day of April, 1889, otherwise so in Sommers’ control, as to make it his duty, under section 2734 of the Revised Statutes, to list the same for that year. In our opinion neither position is tenable. The guardianship terminated upon the death of the ward; and, thereafter, the guardian was without authority to do any act which could affect, or be binding upon the estate. He no longer held the property as guardian, but as a custodian merely. In English v. Campbell, Wright’s Rep. 119, it was held that: “A guardian, or a man that has been guardian, after his guardianship expired, has no more power than if he had never been appointed.” And see Perry v. Brainard, 11 Ohio 442. The final account to be rendered after the death of the ward, is not an account of an existing, but of the past guardianship ; and while such an account may be a convenient means of enabling the administrator to ascertain with accuracy the extent of the estate, it is not essential to his title to, or the exercise of his authority over it. We are unable to discover any ground upon which it can be maintained that the guardianship is extended until the settlement of the account. The possession retained by the guardian, of the ward’s estate, after the latter’s death, is a mere naked possession, without authority to invest, loan, or otherwise control the same; and, únder the decision in Myers v. Seabrook, 45 Ohio St. 232-235, such guardian is not within the provision of section 2734 of the Revised Statutes, which requires every person of full age and sound mind to list for taxation, “all moneys invested, loaned, or otherwise controlled by him as agent or attorney, or on account of any other person or persons.” In the case just cited, it was held, that the possession by an agent, of the credits of his principal, with authority to collect and remit to the latter the interest and principal, but without other control of the credits, did not make a case within the statute, authorizing the agent to list them for taxation. Applying the maxim nosoitur a socies in the construction of the statute, the court say: “ The phrase ‘ or otherwise controlled by him,’ must be construed to mean in a manner similar to the loaning and investing of money.” Nor, according to that decision, does the fact that the money, for which the credits were given, had been previously loaned by the person having them in possession when the same were listed by him, in any way alter the case. There, the securities listed by the agent, were given for money which he had previously loaned for the principal, and which were left in the agent’s hands for collection, and it was nevertheless held, the agent was without authority to list the securities for taxation. So that, in the case before us, the fact that the securities in the hands of Sommers, were given for money of the ward which he had loaned while guardian, is without significance. In our view of the question, therefore, the administrator, and not Sommers, was the proper person to list the personal estate of McCleary for taxation in the year 1889; and the due administration of the estate, involved the payment of such taxes as had been, or might be charged against it.

With respect to the place where the property should be listed, the statute provides, that “ every person required to list property on behalf of others shall list the same in the same township, city, or village in which he would be required to list it if such property were his own.” Revised Statutes, sec. 2735. That this provision applies to administrators, is evident from the language of the next clause, which is, “ but he shall list it separately from his own, specifying in each case the name of the person, estate, company or corporation to whom it belongs.” Duffield, the administrator, being, as we have seen, the person who was required to list the property of the McCleary estate, in April, 1889, and it being his duty to list it in the same municipality or township where he should list his own property, the place of listing the property of the estate will be determined, when it is ascertained where Duffield should, that year, have listed his own property of like kind, unless other provisions of the statute prescribe a different rule governing such cases. The other statutory provisions on the subject are contained in the same section, and are as follows: “ all merchants’ and manufacturers’ stock, and all personal property upon farms shall be listed in the township, city, or village in which the same may be situated; and all other personal property, moneys, credits, and investments, except as otherwise specially provided, shall be listed in the township, city, or village in which the person to be charged with taxes thereon may reside at the time of the listing thereof, if such person reside within the county where the same are listed, and if not, then in the township, city, or village where the property is when listed.” It is shown by the record, that the property listed by Sommers as belonging to McCleary’s estate, consisted of credits, including mortgages, to the amount and value, of $103,000, and the remainder, amounting to $530, was tangible property, mostly farming utensils, and agricultural products. The tangible property, it is conceded, should have been listed in Milford township, Butler county, where it was situated on the 9th day of April, 1889. The situs of the credits, for the purposes of taxation, is the substantial matter of the controversy. Credits, being rights in action merely, have no actual situs ; but, as such property is made the subject of taxation, it has been given a constructive or legal situs, which, when not otherwise fixed by statute, is that of the residence of the owner. It was said by Welch, J., in Worthington v. Sebastian, 25 Ohio St. 1-10, such property is “ incapable of a separate situs, and must follow the situs either of the creditor or the debtor. To make it follow the residence of the latter is to tax the debtor and not the creditor, to tax poverty instead of wealth. That it is the creditor and not the debtor that is to be taxed, and that the tax is to be imposed by the law of the creditor’s place of residence, and not the law of the debtor’s place of residence seems to be quite well settled by authority.” This general rule is recognized in Brown v. Noble, 42 Ohio St. 405, where it is said by McIlvainb, J., “ It is not disputed, that, as a general rule, the situs of personal property is, in law, the residence of the owner; nor that the administrator or executor of an estate is the owner of the assets, within the meaning of this rule. But granting this, it is nevertheless true, that the legislature may fix the place where personal property, including moneys, credits and investments subject to taxation in this state, must be listed.” After considering the provisions of sections 2784 and 2735 of the statutes, the conclusion derived from them is stated by the learned judge as follows: “It seems clear to us that the situs of moneys, credits and investments for the purposes of taxation, is the residence of the person whose duty it is to list the same, and not the residence of the owner if they be located in different counties.” Under this rule, inasmuch as it was the duty of the administrator, in April, 1889, to list the credits belonging to the estate of McCleary, they were properly listed by him in the township and county of his residence, notwithstanding McCleary’s residence at the time of his death, and that of the person who had been his guardian, were in another county, and the instruments which were the evidence of the credits due the estate, were also in the latter county. The credits were not there, in the possession of any one clothed with the authority or charged with the duty of listing them; and the mere presence there of the evidences of the indebtedness, did not so fix the situs of the credits, as to require them, under the last clause of section 2785, to be there listed for taxation.

Counsel for the treasurer further contend, that Sommers is estopped from denying his liability to pay the taxes for which the action was brought. The argument is, that the tax list which he delivered to the assessor, and which was by the assessor returned to the auditor, induced the auditor to enter the property upon the tax duplicate, and charge the taxes for the current year against it, and Sommers ought not, therefore, to be permitted to dispute the statement contained in the return. It is plain an estoppel cannot be so raised. Thestatement purported to be a list of thq personal property belonging to the estate of McCleary, in Sommers’ hands as guardian. It seem that Sommers doubted his authority to list the property, and this is expressed in the statement. As has been shown, he was wholly without such authority, and his action was inoperative to bind the estate; and, if so, it is not readily perceived how it could operate to bind it by way of estoppel. The property is entered upon the duplicate, as the property of McCleary’s estate; the taxes are charged against Sommers as guardian; and the action is against him in his representative capacity. It is not sought to make him individually liable, and the facts alleged in the pleadings would not create an individual liability. The conduct of Sommers was not intended, or calculated, to mislead or deceive any one, but was founded upon an innocent mistake. The auditor simply performed his ministerial duty of carrying the property returned by the assessor upon the duplicate, and charging the taxes against it. His position was in no way changed by reason of the mistake, nor does it appear that the position of any other person was. The essential elements of an estoppel are wanting.

The judgments below will be reversed, and judgment entered for the defendant.


author: By the Court.

text:
    Edwards v. Griffiths.
    Want of merits in the assignments of a petition in error, is no ground for dismissing the petition.
    Motion to dismiss the ease of John N. Edwards v. John S. Griffiths, a proceeding in error to the Circuit Court of Jackson county.

      Ambrose Leach and James Tripp, for plaintiff in error.

      John Harper and David Davis, for defendant in error.
   By the Court.

The original suit was upon a promissory note, in the execution of which, the defendant Edwards claimed a mistake had occurred; and the issue between the parties was as to this mistake. By consent of parties” the case was' tried to the court, which found for the plaintiff, and rendered judgment in his favor for the full amount claimed. A motion for a new trial was made and overruled, and a bill of exceptions containing all the evidence was allowed by the court and made a part of the record. The ground upon which the plaintiff in error asks a reversal of the judgment is, that there is no evidence to support the judgment and findings of the court below; and the defendant in error now moves to dismiss the action on the grounds, (1) that the court has no jurisdiction, and (2) that the record presents only questions of fact for the consideration of the court,

The motion is, as we think, based upon a misapprehension of the petition in error. It urges as a ground of error that there is no evidence to support the finding and judgment of the court below. This is a question of law and not of fact. It is claimed, however, that it is perfectly plain that there was evidence, and that the assignment that there was not, is merely frivolous and adopted for the purpose of delay only. But the jurisdiction of the court on a proceeding in error, does not depend upon the merits of the assignments. Whether the assignments are well taken' or not, in no way affects the jurisdiction of the court to hear and determine them; and hence their sufficiency cannot be raised by a motion to dismiss on the ground of a want of jurisdiction. It is true that proceedings in error may be resorted to for the purpose of delay. The correction of such abuses is found in the power given the court to assess a penalty, when it finds that there was no reasonable ground for the proceeding.

Motion overruled.