author: Johnson, J.

text:
    Michael v. The American National Bank.

      Final judgment — Will not be set aside for new trial — Except for fraud, etc. — Fraud mitst consist of extrinsic acts■ — Court procedure.

    1. Where a cause has proceeded to trial and final judgment, a court of equity will not vacate or open up the judgment and grant a new trial of the same issue determined in the former hearing, in the absence of fraud or undue advantage by the prevailing party.
    2. The fraud or undue advantage for which a court of equity will set aside a judgment or decree, must consist of extrinsic acts outside of and collateral to the matter actually tried by the first court and not related to the matter concerning which the judgment or decree was rendered.
    (No. 12649
    Decided June 30, 1911.)
    , Error to the Circuit Court of Allen county.
    The amended petition of the plaintiff in the court of common pleas in this cause is as follows:
    “Now comes the plaintiff, and for his cause of action avers:
    “That the defendant, The American National Bank of Lima, Ohio, is a corporation, duly organized under the laws of the United States of America, and, on the 24th day of December, 1898, it was engaged in the business of conducting a bank, under the national banking laws of the United States of America, at the city of Lima, in the county of Allen and state of Ohio.
    “That at said date of December 24, 1898, Joseph Goldsmith was president; this plaintiff, Nathan L. Michael, was vice-president and Gus Kalb was the cashier of said bank; and said'cashier at the close of business on said 24th day of December, 1898, had in his custody, of the moneys deposited in said bank and for which said bank was responsible as custodian aforesaid, the sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars.
    “That at the close of business on the said 24th day of December, 1898, said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars was deposited and locked in a safe inside of the vault in the room where defendant conducted its banking business, and said vault was provided with an outer steel door three, inches in thickness, with a combination lock to which was attached a time-lock. And said time-lock was properly wound and set, and said vault door closed and bolted, and the combination thereon was distributed, and said appliances for the safe-keeping' of said money were properly used and said vault door securely locked by the. cashier, Gus Kalb.
    “That on the 26th day of August, 1899, the-defendant, The American National Bank of Lima, Ohio, filed its petition in the court of common pleas of Allen county, Ohio, in case No. 10050 of said court, making Gus Kalb and this plaintiff defendants in an action for money had and received, and praying for a judgment against said Gus Kalb and this plaintiff for the said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars, with interest from the 27th day of December, 1898; that thereafter, to-wit, on December 4, 1899, this plaintiff filed his amended separate answer in which he averred as a defense that between the dates- of December 24 and December 27, 1898, the vaults of said The American National Bank of Lima, Ohio, were-entered and robbed, and the said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars was stolen and carried away by some person or persons unknown to Nathan L. Michael, one of the defendants in said cause No. 10050, a$d without his neglect or default.
    “That thereafter on the 4th day of December, 1899, the said, The American National Bank of Lima, Ohio, plaintiff in said cause No. 10050, filed its reply to the amended answer of Nathan L. Michael in said cause, and denied the allegations of the amended answer, of Nathan L. Michael filed in said cause No. 10050.
    “That said averment of plaintiff in his answer, as defendant in said cause No. 10050 and the denial of said averment by The American National Bank of Lima, Ohio, as plaintiff in said cause, made up a material issue of fact, and that said cause was tried to a jury on the issue thus made up; and on December 12, 1899, said jury rendered a verdict on behalf of the defendant, The American National Bank of Lima, Ohio, as .plaintiff in said action, against the defendants Gus Kalb and Nathan L. Michael, in the sum of nineteen thousand sixty-nine and 4-100 ($19,069.0.4) dollars.
    “That within three days after the rendition of said verdict, each of said defendants filed his separate motion for a new trial, which was overruled by the court of common pleas, and a bill of exceptions was prepared, allowed, signed, sealed and made a part of the record in said cause, but not spread upon the journal; and each of said defendants thereafter filed his petition-in-error in the circuit court of Allen county, Ohio, praying for the setting aside of said verdict and for a new trial, but the judgment of the court of common pleas was duly affirmed.
    “That thereafter each of said defendants, within the time allowed by law,, prosecuted error in the supreme court of Ohio, to the affirmance of said judgment by the circuit court of Allen county, Ohio, and said cause was fully reviewed by the supreme court of Ohio, and by it, the said judgments of the lower courts were affirmed and a mandate was directed and issued on October 23, 1901, to the clerk of the court of common pleas for Allen county, Ohio, commanding him to carry into effect the judgment and orders of said court of common pleas.
    “That by reason thereof, on the 25th day of October, 1901, this plaintiff, as a defendant in said cause No. 10050 aforesaid, was compelled to pay to the defendant, The American National Bank of Lima, Ohio, as plaintiff in said cause, and did pay to the clerk of the courts for Allen county, Ohio, the one-half (J4) of said judgment, interest and costs, amounting to the sum of ten thousand, eight hundred eighty-six and 74-100 ($10,886.74) dollars.
    “That the defendant, Gus Kalb, was a co-defendant of this plaintiff in said cause No. 10050 of the Allen county common pleas court, in which cause, The American National Bank of Lima, Ohio, recovered the verdict and judgment heretofore mentioned; that the consent of said ■Gus Kalb to be joined as plaintiff herein cannot be obtained, and that by reason thereof, the said Gus Kalb is made a defendant in this action.
    “That between the date of closing and locking said vault on the 24th day of December, 1898, aforesaid, and the 27th day of December, 1898, the aforementioned appliances for the safe-keeping of said sum of eighteen thousand two hundred fifty-three and 72-100 ($18,253.72) dollars were tampered with and rendered useless by a thief in the person of one at the time of action heretofore mentioned and for a long time thereafter unknown to this plaintiff, and said sum was taken, stolen and carried away bv said thief, whom the plaintiff avers to be one Eliiah Bowsher.
    “That the plaintiff at the time of said action in cause No. 10050, aforesaid, had no knowledge and no means of knowing the connection of Elijah Bowsher with the theft from said bank of said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars, and that he had no knowledge of the same until the fall of the year 1905.
    “That said Elijah Bowsher at the September term of the court of common pleas for Allen county, Ohio, in the year of 1905,. was indicted by the grand jury of said county for the larceny of said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars of the moneys and property of The American National Bank of Lima, Ohio, so by him stolen and carried away and was convicted and sentenced for said crime to the Ohio Penitentiary for a period of seven years.
    “Plaintiff further avers that owing to the lapse of time between the time of the trial of said action in said cause No. 10050, and the time of the discovery and disclosure of the fact that the theft heretofore referred to was committed by said Elijah Bowsher, plaintiff is without adequate remedy at law.
    “Wherefore, plaintiff prays that said verdict in said cause No. 10050 of Allen county, Ohio, common pleas court, entitled The American National Bank of Lima, Ohio, plaintiff, vs. Gus Kalb, and Nathan L. Michael, defendants, may be set aside and a new trial of said cause awarded; and that plaintiff may have any other and further orders necessary to have adequate relief In equity.”
    A demurrer was filed by the defendants to this amended petition, which was sustained by the common pleas court, and the plaintiff not desiring to plead further, judgment was entered dismissing the petition at the costs of the plaintiff. On error proceedings in the circuit court _ of Allen county this judgment was affirmed and the action here is to reverse the judgments of the courts below.

      Messrs. Half hill, Quail & Kirk, for plaintiff in error.
    The defendant contends that proceedings under the statute for the vacation or modification of judgments or for a new trial are exclusive, and that, unless authority can be found in these statutes, the plaintiff is without remedy either at law or in equity. This contention is not, and cannot be sustained by the authorities of this state. These authorities hold the very reverse to be true; that the statutory proceedings are not exclusive, but simply cumulative. Long v. Mulford, 17 Ohio St., 508; Coates v. Bank, 23 Ohio St., 415; Darst v. Phillips, 41 Ohio St., 514.
    It is also the rule that new trials may be granted on other than statutory grounds. Brenzinger v. Bank, 19 C. C., 536.
    The statute does not say that a new trial shall not be granted for any other causes than those enumerated therein. It does not take away the ancient power inherent in the court. 1 Spence’s Equitable Jurisdiction, *407, *412, *413.
    It is a well recognized principle,, a maxim, in fact, that “equity will not suffer a wrong to be without a remedy.” Colyer v. Langford, 1 A. K. Marsh. (Ky.), 237; Tarnow v. Carmichael, 116 N. W. Rep., 1031; 1 Spence’s Equitable Jurisdiction, *430.
    Every just order or rule known to equity was born of some emergency, to meet some new condition, and was, therefore, in its time, without a precedent. Railway Co. v. Pennsylvania Co., 54 Fed. Rep., 746.
    The law of a case decided by this court does not sustain the theory of the defendant in this regard. Hiler v. Hiler, 35 Ohio St., 645; Scholey v. Halsey, 72 N. Y., 578.
    There is nothing to prevent the court, in aid of justice, from exercising its undoubted power- to set this judgment aside, and we direct the attention of the court to authorities in support of our view. Hatch v. Bank, 78 N. Y., 487; Shepherd v. Marvel, 45 N. E. Rep., 526; Ferguson v. Millender, 9 S. E. Rep., 38; Osborn v. Railroad Co., 18 Fed. Cas., 844; Richeson v. Ryan, 14 Ill., 74, 56 Am. Dec., 493.
    The books are full of cases wherein it has been urged upon the court that because no case has been found, no precedent discovered, there is, forsooth, no remedy. Pasley v. Freeman, 3 Term R., 51; Kujek v. Goldman, 150 N. Y., 176; Harrigan v. Gilchrist, 121 Wis., 127, 99 N. W. Rep., 909.

      Messrs. Richie & Richie, for defendant in error.
    Throughout the whole system of jurisprudence, ■ we-find that this is true: That while the inherent right of a court of equity to relieve against fraud or injustice, which is fairly• enunciated in the cases of Darst v. Phillips, 41 Ohio St., 514; Brenzinger v. Bank, 19 C. C., 536, and Coates v. Bank, 23 Ohio St., 415, and no quarrel made as to this primary right, yet, through all these cases, as well as many that might be cited, it is evident that this inherent right, in contradistinction to the statutory right, shall not be exercised when the statute makes a procedure governing the prescribed case definitely. In other words, where the statute points out a way and a method, that method shall be followed by the courts to the exclusion of the inherent equitable right of the court. Darst v. Phillips, 41 Ohio St., 514.
    In considering the motion, the court will not inquire, whether, taking the newly discovered evidence in connection with that exhibited on the trial, a jury might be induced to give a different, verdict, but whether the legitimate effect of such evidence would be to require a different verdict. Lessee of Ludlow’s Heirs v. Park, 4 Ohio, 44.
    The above holding is fully quoted and has the approval of this court in the case of Moore v. Coates, 35 Ohio St., 181; Briggs v. Rowley, 7 N. P., 651; Sanders, Admx., v. Loy, 45 Ind., 229; Gottlieb Bros. v. Jasper & Co., 27 Kans., 770; Stineman v. Beath, 36 Ia., 73.
    In Indiana, under the statutes of Garbín & Plorde, in the edition of 1862, on page 215, is found the statute precisely similar to our statute, Section 5309, and in construction of that statute, we call attention to the case of Sanders, Admx., v. Loy, 45 Ind., 229.
    Where the statute does prescribe the cases for which a judgment may be set aside and does provide a mode of procedure, then, of course, the statute controls and is to be followed and obeyed. Nealis v. Dicks, 72 Ind., 374.
    In the absence of any such statute, we maintain that the amended petition would still be without merit. Pico v. Cohn, 91 Cal., 129.
    Decree of divorce a vinculo cannot be set aside on the ground that it was obtained by false testimony and fraud, upon an original libel filed at a subsequent term of the court. Greene v. Greene, 2 Gray, 361, 61 Am. Dec., 454.
    There is scarcely a controversy in the courts in which there is not a conflict of testimony, and there are quite often charges of false swearing, and seldom is a case tried and decided in which new evidence cannot be obtained after people suppose it to be ended. Gray v. Barton, 62 Mich., 196.
    That the mischief of retrying every case in which the judgment or decree was rendered on false testimony given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases. United States v. Throckmorton, 98 U. S., 68.
    The foregoing decision has been followed' and frequently applied by other courts, among which we cite: Cotzhausen v. Kerting, 29 Fed. Rep., 821; Hilton v. Guyott, 42 Fed. Rep., 252; United States v. White, 17 Fed. Rep., 561; United States v. Hancock, 30 Fed. Rep., 858.
    He does not even hint by any allegation of fact, or even conclusion of law, that the new fact alleged by him would have had or could have had any effect upon the verdict and judgment in that case. Much less does he present anything herein to warrant the court in concluding that “the legitimate effect of such evidence would be to require a different verdict.” Lessee of Ludlow’s Heirs v. Park, 4 Ohio, 44.
   Johnson, J.

It will be observed that the amended petition specifically avers, that “owing to lapse of time between the time of the trial of said action in cause No. 10050 and the time of the discovery and disclosure of the fact that the theft heretofore referred to, was committed by said Elijah Bowsher, plaintiff is without adequate remedy at law.”

It is conceded that there is no statutory authority for the relief prayed for. Proceedings under Sections 5309 and 5354, Revised Statutes, to open up and vacate a judgment after the term at which it was made must be commenced within times shorter than the time which elapsed in this case.

Therefore the question presented here is whether the amended petition states a case which warrants' the exercise of the equitable jurisdiction of the court.

Where a judgment is attacked for fraud the statutory remedy is not exclusive but cumulative. This principle is well settled in Ohio. Long v. Mulford, 17 Ohio St., 485; Coates v. Bank, 23 Ohio St., 415; Darst v. Phillips, 41 Ohio St., 514.

The syllabus in Darst v. Phillips is as follows: “The special proceeding provided by Section 5354, Revised Statutes, authorizing courts tó vacate their own judgments rendered at a previous term, for fraud practiced by the successful party is a cumulative remedy and does not exclude or limit the right of a party by original action to impeach a judgment or enjoin its collection for such fraud.”

It would seem to follow, that where a proper case is stated in a petition calling for the exercise of the equitable powers of the 'court, to set aside a judgment for fraud, the statute would not begin to run until the discovery of the fraud.

But the acts of fraud which confer jurisdiction are such as are extrinsic and outside of the matter directly tried and determined, and do. not relate to the matter 'on which the judgment was rendered.

This was the contention in each of the three Ohio, cases cited above. The fraud related to the manner of acquiring jurisdiction in the original eases, and amounted to a fraud on the court as well as on the party.

In Darst v. Phillips, supra, the judgment had been entered on a promissory note with warrant of attorney attached. There was no service of process. The note had actually been paid, and the court say: “The fraud charged was one upon the court as well as upon the judgment defendants. * * * The payment of the debt revoked the power and left the cognovit without any support, and there was no iurisdiction actually acquired.”

In United States v. Throckmorton, 98 U. S., 68, the court say: “The acts for which a court of equity will on account of a fraud set aside or annul a judgment or decree, between the same parties, rendered by a court of competent jurisdiction, have relation to frauds, extrinsic and collateral, to the matter tried by the first court, and not to a fraud in the matter on which the decree was rendered.”

And Mr. Chief Justice Shaw, in Greene v. Greene, 2 Gray, 361, says: “But where the same matter has been actually tried or so put in issue that it might have been tried oroof of fraud is not aerain admissible.”

In Dringer v. Receiver, 42 N. J. Eq., 573, the court say: “tie (the defendant) may sue out a writ of error, apply for a new trial, or rehearing, or take an appeal, but he cannot maintain a bill in equity or retry the case on its merits or any of the questions settled by the judgment.”

Other cases in which these principles are declared and enforced are: Pico v. Cohn, 91 Cal., 129; Hilton v. Guyot, 42 Fed., 252; United States v. Hancock, 30 Fed. Rep., 858; Gray v. Barton, 62 Mich., 186.

When tested by well settled rules, does the amended petition in this case state facts on which the court would be warranted in granting relief?

It sets out that in the original action against Michael by the bank, he Michael, filed an answer in which he averred as a defense that between' December 24, 1898, and December 27, 1898, the vaults of the bank were entered and robbed by persons unknown to him and without his fault.

He avers that the bank filed a reply denying said allegations and that the issue thus made was tried to the court and jury.

In the amended petition in the present case, Michael sets up the same facts, and in addition avers that he now knows the name of the person who robbed the bank.

The amended petition herein contains no allegation of fraud in the original action, on the part of the bank or of anyone. It is not claimed that the bank perpetrated any fraud at any time on the court, or on the defendants, nor that the verdict in that case was the result of fraud. There is no averment that there was any false testimony introduced by the bank.

The newly discovered evidence set out in the amended petition is merely cumulative.

If evidence was offered on the trial of the original action in support of the defense set up, it must have been to the effect that the bank had been robbed, and the additional evidence now tendered-is to the same claim, and that the name and identity of the robber is'now known.

There is no allegation in this amended petition from which any inference can be drawn, other than that the original action was fully and fairly tried without improper conduct by any one of the parties.

Counsel for plaintiff state in their brief that they have been unable to furnish a precedent for the decree prayed for in their petition, but they insist that the facts set out present a case which calls for the assertion of. the equitable- power of the court without reference to any prior fixed rule.

They cite authorities in which the inherent power of the court to grant relief demanded by good conscience, is stated and upheld. But those authorities, and the reasons upon which they are based, have no application to a proceeding in which the rights of the parties have been submitted to a court and jury, under rules securing to each a full and fair hearing, and in which there was no suggestion or claim of fraud, or improper conduct.

It is insisted that this case presents a great hardship, and that in the result of the original action, injustice was done the defendants. That may be true. Courts at their best can only approximate exact justice. Where such hardships and imperfections seem to be apparent, courts would gladly redress them if a rule could be contrived that would remedy the evil without producing worse conditions.

The mischief of endless litigation in which nothing is finally determined, is a thing more to be dreaded than an occasional miscarriage of justice. If by allegation in a bill in equity, that false testimony had been given, or forged documents introduced or new evidence discovered, controversies which had been regularly adjudicated could be opened up, there could be no assurance of the conclusive effect of final judgments.

In the case referred to in the amended petition, the defendants Michael and Kalb filed their answers setting up what they claimed and believed to be the truth. The trial of that case was their opportunity for making the truth appear. Unfortunately they failed (not by perjured testimony, or unfair practices by their opponents), and in the reviewing courts they were not able to show that injustice had been done them or that there was any error in the proceeding.

Judgment affirmed.

Spear, C. J., Davis, Shauck, Price and Donahue, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Lanning v. Brown.

      Deed executed by infant — Action for cancellation — Not barred in twenty-one years after execution, when — Disaffirmance of deed —Partition.

    On the 12th day of March, 1888, B., an infant eighteen years of age, executed deeds conveying his. interests in certain real estate situate in this state, to grantees therein named, who did not file such deeds for record until the year 1909. B. arrived at majority on the 24th day of October, 1890, and thereafter did no act to ratify or confirm said conveyances, but on the contrary brought suit on the 17th day of April, 1909, to obtain partition of said real estate, in which action he also prayed that the deeds he had executed be cancelled.
    Held: That B.’s action so commenced operated to disaffirm the deeds and it was not barred by the twenty-one year statute of limitations. He is entitled to partition and the other relief prayed for.
    (No. 12673
    Decided June 30, 1911.)
    Error to the Circuit Court of Morrow county.
    On the 17th day of April, 1909, the defendant in error filed his petition against Satira M.. Levering et al., asking partition of certain real estate, part of which is situated in Knox county and part in Morrow county.
    After the defendants were brought in, the petition was amended by making the plaintiff in error party defendant, and also alleging that the plaintiff, Victor E. Brown, while a minor eighteen years of age, had joined some of the defendants in executing deeds, by the terms of which he had conveyed his interest in said lands to the grantors of some of said defendants, which deeds, made during his minority, he prayed to have cancelled by decree of the court and that partition be ordered as originally prayed for.
    The defendants set up, in two forms, the statute of limitations as a bar to the action.
    The reply denied the facts alleged to constitute the statutory bar.
    The case having reached the circuit court on appeal, that court found the following facts, in which the entire case is developed.
    “That Joseph Levering died intestate in the year 1871, seized of the lands in the amended petition described, leaving Shannon Levering, Charles Levering, Edward Levering, Calvin Levering and Lurana Levering Brown his only children and only heirs at law.
    “In the year 1872, the said Edward Levering and Calvin Levering, being in possession of said real estate as tenants in common, purchased the shares of said Shannon Levering and Charles Levering, and continued in possession as co-tenants with said Lurana Levering Brown until her death; that she died in the year 1885, leaving Edmond W. Brown, her husband, and two chil-dren, Victor E. Brown, the plaintiff, and Lillie B. Hill, her- only heirs at law; that on the 12th day of March, 1888, the said Edmond W. Brown, Victor E. Brown, and Lillie B. Hill, by two deeds executed in due -form, conveyed their interest in said lands to Edward and Calvin Levering; that said Victor E. Brown at the date of the execution of said deeds was. a minor eighteen years of age and received no consideration for said conveyance; that he attained his majority on the 24th day of October, 1890;- that said .deeds were not filed for record until the year 1909, and when they were so filed for record he had no knowledge of their existence or recollection of having signed the same; that he filed his petition in this action on the 17th day of April, 1909, within twenty-one years after he arrived at the age of majority, but more than twenty-one years after said deeds had been executed by him; that said Edmond W. Brown died prior to the commencement of this suit; that said Edward and Calvin Levering continued in possession and exercised control over said lands by living upon, farming and keeping the same in repair, and paying the taxes thereon .until the death of said Edward Levering; that he died intestate in the year 1893, without issue, leaving Satira M. Levering, his widow, and said Shannon Levering, Charles Levering, Calvin Levering, Victor E. Brown and Lillie B. Hill his only heirs at law.
    “That in the year 1896 said Calvin Levering intermarried with said Satira M. Levering, widow of said Edward .M. Levering, deceased, and died in the year 1904 intestate and without issue, leaving said Satira M. Levering his widow, and the said Lillie B. Hill, Victor E. Brown, Milton Levering and Homer Levering his only heirs at law.
    “The said plaintiff, Victor E. Brown, lived within one and a half miles of said lands from the time of his mother’s death until the commencement of this suit, and frequently visited at the Levering home and was on friendly terms with all of them and frequently assisted said Satira M. Levering upon her request in the management of said lands by his counsel and advice. That said Victor E. Brown made no demand or effort to assert his rights as to the ownership of said lands, or of any interest in them until the commencement of this suit, April 17, 1909.”
    As conclusion of law, the court found “that the possession of said Edward and Calvin Levering during their lifetime was not adverse to plaintiff, and that said J. W. Lanning has not held the same by adverse possession a sufficient length of time to perfect his title against the said plaintiff; that this action is not barred by the statute of limitations; that said Victor E. Brown never ratified his said deeds; that he disaffirmed the same by the bringing of this action and is entitled to have the same set aside and to have partition as prayed for.” The court ordered partition to be made, setting off to Victor E. Brown one-tenth part and in addition thereto found that he has an estate of seven-eighths subject to life estate of Sátira M. Levering.
    The defendants excepted and prosecute error in this court to reverse the judgment entered on said findings of fact.

      Mr. L. K. Pozvell, for plaintiff in error.
    We claim that the title to said lands passed by the minor's deed of March 12, 1888; that such deed is not void, but voidable only. Lessee of Drake v. Ramsey, 5 Ohio, 252; Cresinger v. Lessee of Welch, 15 Ohio, 156; Hamilton v. Traber, 44 Am. St., 263; Lemmon v. Beeman, 45 Ohio St., 505.

      Messrs. Harlan & Wood and Mr. M. W. Spear, for defendant in error.
    The defendant Lanning interposed as a defense to the amended petition, that of adverse possession for more than twenty-one years, by him and those under whom he held.
    It is conceded that the relationship of tenants in common existed; and as long as it existed there could be no adverse possession; unless the occupant by overt acts of an unequivocal character, clearly indicated his intention to possess the premises to the exclusion of the rightful owner. Young v. Heffner, 36 Ohio St., 233; Clark v. Lindsey, 47 Ohio St., 437; Gill v. Fletcher, 74 Ohio St., 295.
    There was no new possession, but a continuation of the old, and the situation remained as it was prior to the purported deeds. Shahan v. Swan, 38 Ohio St., 25.
    We contend that under such circumstances a tenant in common who procures a deed from a minor co-tenant, and holds it in secret from record for over twenty-one years, is estopped by his own act of laches or fraud, whichever it might have been, from afterwards claiming that during the time he held the premises by adverse position, and thereby acquire title to the minor’s interest in the same. Long v. Mulford, 17 Ohio St., 484; Piatt v. Longworth, 27 Ohio St., 159; Bunnell v. Stoddart, 2 Am. Law Rec., 219.
    It is conceded that a minor’s deed is not void, but voidable only, and that the title to the premises conveyed passes by the deed, and remains in the grantee until some act of disaffirmance is done by thfe minor after arriving at majority. Logan v. Gardner, 20 Am. St., 939; Lemmon v. Beeman, 45 Ohio St., 505.
    A' minor’s deed is disaffirmed and rendered void by his own act, in bringing suit in ejectment or partition, or by any act showing his intention not to be bound by the deed, and disaffirmance before action is not necessary, as the action itself is a disaffirmance. Lessee of Drake v. Ramsey, 5 Ohio St., 252; Hughes v. Watson, 10 Ohio, 127; 22 Cyc., 547, 551, 608; Bank v. Wheelock, 52 Ohio St., 551.
    ‘If there is a claim of ratification, the burden of proof is upon the one claiming under the voidable deed. 22 Cyc., 608.
    It cannot be claimed that Lanning is an innocent purchaser, as an innocent purchaser is not recognized under the law of infancy, as it would only open the door to defraud infants. Englebert v. Pritchett, 26 L. R. A., 186; Craig v. Van Bebber, 18 Am. St., 569.
    An infant who makes a conveyance, has until such time as will complete the bar of the statute of limitation after the removal of his disability, to disaffirm his deed, and his silent acquiescence will not be regarded as a confirmation of the sale, unless prolonged for the period required to make the statute of limitations a bar, or unless under circumstances requiring- him to decide and act as to confirmation or disaffirmance. Shipp v. McKee, 92 Am. St., 616; Craig v. Van Bebber, 18 Am. St., 677; Sims v. Everhardt, 102 U. S., 310; Lessee of Drake v. Ramsey, 5 Ohio, 252; Piatt v.
      Longworth, 27 Ohio St., 198; Cresinger v. Lessee of Welch, 15 Ohio, 156.
   Price, J.

It is important to keep in mind at least three dates — dates of events which are vitally involved in the consideration of this case. The deeds which were executed by Victor E. Brown for land he desires partitioned, were executed on the 12th day of March, 1888, when he was eighteen years of age. He arrived at his majority on the 24th day of October, 1890. The action now under review was commenced by him on the 17th day of April, 1909.

If he can now be relieved from the effect of the deeds made during his infancy, there is no doubt that he is entitled to partition as prayed for, because such deeds are the only legal obstacle to his obtaining that relief.

The conveyances having been made during the infancy of the grantor, three or more questions arise: (1) Did the minor grantor, after arriving at majority so confirm or ratify the conveyances that he is bound by them? (2) Has he disaffirmed the conveyances within proper time and in a legal manner? (3) Did he commence this action within the time allowed by law for that purpose? Or was' his right of action barred by ■ the statute of limitations on the 17th day of April, 1909?

Looking at the findings of fact, we see nothing to show a ratification or confirmation of the conveyances, after Brown arrived at majority. All that relates to that subject is contained in the following finding: “That said plaintiff, Victor E. Brown, lived within one and a half miles of said lands from the time of his mother’s death until the commencement of this suit, and 'frequently visited at the Levering home and was on friendly terms with all of them, and frequently assisted said Satira M. Levering upon her request in the management of said lands by his counsel and advice. That said Victor E. Brown made no demand or effort to assert his rights as to the ownership of said lands, or of any interest in them until the commencement of this suit, April 17th, 1909.”

We take this finding to mean that Brown was a near neighbor to the lands occupied by some of the grantees with whom he was on friendly terms, and whom he frequently visited, and that he gave advice to the aged widow about the management of said lands. One other finding should be remembered, which is, that the grantees of Victor E. Brown kept the deeds from record until the year 1909, and “that when they were so filed for record, Brown had no knowledge of their existence, or recollection of having signed them.” It seems to be the law that to confirm or ratify, one must have knowledge of the matter or transaction to be confirmed or ratified, and that silence or even acquiescence does not amount to such ratification.

In Tucker v. Moreland, 10 Peters, 75-6, it is said: “Without undertaking to apply this doctrine to its fullest extent, and admitting that acts in pais may amount to a confirmation of a deed, still we are of opinion that these acts should be of such a solemn and unequivocal nature as to establish a clear intention to confirm the deed, after a full knowledge that it was voidable. A fortiori, mere acquiescence, unconnected with any acts demonstrative of an attempt to confirm it, would be insufficient for the purpose.”

In Jackson v. Carpenter, 11 Johns. R., 542-3, it is held by the supreme court of New York, that acquiescence by the grantor in a conveyance made during his infancy, for eleven years after he came of age, did not amount to a confirmation of the conveyance; that some positive act was necessary evincing his assent to the conveyance. The same doctrine is found in Curtin v. Patton, 11 Serg. & Rawle, 311; Urban v. Grimes, 2 Grant R., 96. In the latter case, it is remarked: “However, should an infant grantor neglect to make an actual disaffirmance of his deed of lands, or sale of personal chattels after coming of full age until the time limited by the statute of limitations for bringing an action has elapsed, the delay would operate as an affirmance of the deed or sale.”

In the history of this case, Brown joined others in conveying the real estate. He was young and lacked business experience, and tlje grantees, for some reason, kept the deeds from record over twenty-one years and until 1909, which was the year suit was commenced. Until then, it is found, that Brown had no knowledge or recollection of having signed the deeds. If the signing had ever impressed his mind, the impression faded into forgetfulness, until these instruments appeared of record. Then he sued.

And this brings us to the second question: Has Brown disaffirmed the conveyances within proper time- and in proper manner?

In Drake v. Ramsey et al., 5 Ohio R., 252, it is held, “that a conveyance by an infant feme covert may be disaffirmed whilst action of ejection is not barred by the statute of limitations.” The opinion of Lane, J., is instructive, both on when the right of disaffirmance may be exercised, and what liiay be considered a sufficient act of disaffirmance. On page 254, the learned writer of the opinion says: “We believe that an entry suit, or action, a subsequent conveyance, an effort to restore parties to their original condition, or any act unequivocally manifesting the intention, would render the avoidance effectual, and, that the institution of this suit is an act fully possessing this character.” Continuing, it is said: “But it is strenuously urged that the power of disaffirmance must be executed in a reasonable time; in some short period after the infant becomes of age. The cases cited do not appear to us to establish this proposition, nor do we believe it supported by any sound reasons * * * .”

Again, on the same page, after commenting on authorities cited, it is said: “In our opinion, lapse of time may frequently furnish evidence of acquiescence, and thus confirm the title, but of itself, does not take away the ri"ht to avoid,' until the statute of limitations takes effect. In this position we are countenanced bv decisions of the most respectable courts.” And certain cases are cited. The remainder of the opinion tends to further elucidate the position taken. The foregoing decision was approved and followed in Hughes v. Watson, 10 Ohio R., 127-134. See, also, Cres inger v. Lessee of Welch, 15 Ohio R., 156, where the foregoing cases were thoroughly discussed and approved. There is no later case decided by this court in which these holdings have been questioned or overruled.

Hence it is, that the bringing of the action now under review of itself is a disaffirmance oh the deeds in unmistakable language, and it has been done within the statute of limitations as- will fully appear later in this opinion.

There was nothing- for Brown to restore to the grantees before disaffirming, for the circuit court has found that he received no consideration for the conveyances, and therefore he could restore nothing, even if such duty could be imposed upon him in case he had' received valuable consideration, which we need not decide.

Closely related to the last is the third question: Did Brown commence his action within the time allowed by law for that purpose? Or, in other form, was his right of action barred by the statute of limitations April 17, 1909, the day it was commenced ?

Counsel for plaintiff in error labor to convince us that, “the statute begins to run with the accruing of the cause of action, and not when the risfht to maintain it-becomes personal to the infant * * * and we infer that it is suggested, that the cause of action accrued at the time the minor made the deeds, and not when he arrived at maioritv. We are unable to realize how this view will aid olaintiff in error, for if the cause of action accrued as claimed, it must be conceded that Brown was not required to sue during his minority, and if not during his minority, what is the limitation ?

But we think the premise assumed by counsel is wrong. The right to ratify or disaffirm is a personal privilege conferred by law upon the minor. After coming of age he may ratify and his deed be absolutely binding. On the other hand, he may disaffirm.

It is said in Andrews’ American Law, 698: “Conveyances of real property by an infant cannot be affirmed or avoided until he attains his majority, although the infant may obtain the use of the land in such cases.” This seems a reasonable assertion, because, if the infant is under disability when he executes a voidable deed for real estate, he is likewise disabled to ratify or disaffirm during minority. In Wood on Limitations, Section 238, the author says: “Persons who have not attained the age of majority are infants, and in those states where infancy is within the saving clause of the statute, the statute does not begin to run against him or her, even though he or she has a guardian who might sue the claim in question; nor even though other persons are jointly interested in the claim who are of full age, — until he or she attains the age of majority. The fact that a guardian or infant himself brings a suit before the disability is removed, does not operate as a waiver of the saving clause in favor of the disability.”

This is alc'in to the holding in Roof v. Stafford, 7 Cowen, 179, where the reasons for the rule are clearly stated. In harmony with the latter case is Bool v. Mix, 17 Wend., 119.

See also Carrell v. Potter, 23 Mich., 377; Prout v. Wiley, 28 Mich., 164; Donovan v. Ward, 100 Mich., 601. These Michigan cases fully cover our questions and they cite many authorities in support of what they decide.

See also Sims v. Everhardt, 102 U. S., 312.

Has our statute of limitations made any exception to the current law as we have found it?

Section 4977, Revised Statutes, provides: “An action for the recovery of the title or possession of real property, can only be brought within twenty-one years after the cause of action accrues * * * .” The next section provides that: “If a person entitled to bring the action mentioned in section four thousand nine hundred and seventy-seven (4977) is, at the time the cause of action accrues, within the age of minority, of unsound mind, or imprisoned, such person may, after the expiration of twenty-one years from the time the cause of action accrues, bring such action within ten years after such disability is removed.”

A restatement of some dates enables us to apply these two provisions. The deeds were executed by Brown on the 12th day of March, 1888, while he was an infant eighteen years of age. He arrived at majority on othe 24th day of October, 1890, and he filed his original ,petition in this case on the 17th day of April, 1909. Twenty-one years, one month and five days elapsed from the date of the deeds until the original petition was filed herein, and eighteen years, five months and twenty-three days elapsed from the time Brown reached his majority before the original petition was filed. He disaffirmed the deeds by filing said petition April 17, 1909, which was done within twenty-one years from the date of his majority.

From what we have said as to the law which controls this case, there' is no reasonable construction of our statute of limitations which bars a recovery.

It follows that vwe should affirm the judgment of the circuit court and it is affirmed.

Judgment affirmed.

■ Spear, C. Davis, Shauck and Johnson, JJ., concur. Donahue, J., not participating.


author: Shauck, J.

text:
    The State, ex rel. Cline, Prosecuting Attorney, v. Vail et al.

      Unconstitutionality of act of legislature — Party not estopped to assert, when — County officer pays fees into treasury — Fees not paid before salary act adjudged unconstitutional — May be retained.

    1. A party may assert that an unconstitutional act of the general assembly is a nullity, unless his conduct with reference to the subject of the act has been such that to permit the assertion would place his adversary in a less favorable position than he would have occupied if the act had not been passed.

      2. A county officer who pays into the treasury of 'the county the fees of his office in excess of the salary affixed thereto by an unconstitutional act, may, after the act is adjudged to be unconstitutional, receive and retain fees accruing before, but not paid until after, such adjudication.
    (No. 12400
    Decided June 30, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    Plaintiff in error brought suit against the defendants in error in the court of common pleas of Cuyahoga county to recover the sum of $6,602.94. The defendants demurred to his petition and their demurrers were sustained and final judgment rendered in their favor. This judgment was affirmed in the circuit court. The relator alleging his official character, alleges the following facts as the grounds of recovery: That on the 7th of November, 1893, the defendant, Vail, was elected clerk of the court of common pleas of Cuyahoga county for the term of three years, and was reelected to that office to succeed himself on the third of November, 1896. He entered upon his office by virtue pf his first election, August 6, 1894, and by virtue of the two elections served until the first Monday of August, 1900. His co-defendants were sureties upon his official bond. During his second term of three years, to-wit, from the first Monday of August, 1897, to the first Monday of August, 1900, Vail, after paying his clerks and deputies out of the fee fund of said county, was paid and received a salary of four thousand dollars per annum out of fees collected and paid by him as clerk into said fee fund, as well as the percentages allowed him by law on all fees col-' lected by him as said clerk, as provided by an act of the general assembly of the state of Ohio passed April 23, 1896, entitled “An act fixing the compensation of county officers in counties containing a city of the second grade of the first class.” In said act it was provided that the fees, etc., including all perquisites of whatever kind, which by law said clerk might receive and collect for any services rendered by him, should be received and collected by him for the sole use of the treasury of said county as public moneys belonging to it, and should at the end of each month be accounted for and paid into the treasury of said county on the warrant of the auditor of the county to the credit of the fee fund created by said act for said county; that pursuant to said act, Vail paid into the treasury to the credit of the fee fund all fees, costs, etc., received by him during his second term; that during his second term- he earned and taxed fees aggregating a large sum belonging to the county; that on the first Monday of August, 1900, Vail was succeeded by another clerk, and he three years later by another; that during the terms of the said successors the sum of $6,602.94 was received by them on account of fees accruing but not collected during the second term of said Vail, and paid the same over to Vail, which he now withholds from the treasury of the county, and for that amount judgment is prayed for.
    The case was argued orally for the plaintiff in error by Mr. Meals; for the defendant in error by Mr. Blandin and Mr. Taft.

      Mr. John. A. Cline, prosecuting attorney; Mr. W. D. Meals and Mr. Fielder Sanders, assistant prosecuting attorneys; Mr. U. G. Denman, attorney general, and Mr. John H. Price, for plaintiff in error.
    It has been our understanding of the law, that while an unconstitutional act is void from the beginning, yet nevertheless officers who act under a statute are not entitled to plead that such statute is unconstitutional in proceedings against them for official misfeasance or to recover moneys received by them in the course of their official duty. Gross v. Board, 158 Ind., 531; Ferguson v. Landrum, 5 Bush (Ky.), 230; Daniels v. Tearney, 102 U. S., 415; People v. Bunker, 70 Cal., 212; Spokane County v. Allen, 9 Wash., 229; Dodd v. Camden, 56 N. J. L., 258; Plumb v. Christie, 103 Ga., 686; Newman v. People, 23 Col., 300; Deering & Co. v. Peterson, 75 Minn., 118; Bank v. Edmund, 76 Ohio St., 396.

      Mr. Vail elected to take the salary provided by law, and having elected to take that salary, the law will not permit him now to occupy the inconsistent position -that he only accepted said salary with the view in mind that the supreme court would declare the law unconstitutional and permit Mr. Vail to strike a balance with the state for the rest of the fees earned by him.
    For a discussion of the doctrine of election, see 3 Current Law, 1177.
    It has been held that an officer’s silent acceptance of salary as reduced by the board of supervisors from the amount previously allowed him, is an implied assent to their fixing it at the lower rate, and precludes him from claiming more. Thomas v. Supervisors, 45 Mich., 479; 1 Current Law, 1132.
    The following cases, we believe, assert the doctrine that where a public officer who accepts and retains salary provided by law in force when he takes office, cannot question the validity of the statute, and where an officer takes a salary provided by law without objection, cannot later claim a greater or different salary. Gross v. Board, 158 Ind., 531; McInery v. Galveston, 58 Tex., 334; Rau v. Little Rock, 34 Ark., 303; Thomas v. Supervisors, 45 Mich., 479; Buck v. Eureka City, 109 Cal., 504; Spokane County v. Allen, 9 Wash., 229.
    The conduct of the said defendant in error during the three or more years in which he drew his salary of four thousand dollars ($4,000.00) per year under color of law clearly signified his conelusion to accept the salary as his entire compensation for services rendered the county. He could not elect to keep the salary and still retain the fees. , He went before the people of the county and sought election during the period that the said salary law was in force; and, having secured his election, still continued to draw for a period of three years the salary allowed by said law. Davis v. Wakelee, 156 U. S., 689; Daniels v. Tearney, 102 U. S., 415; Gross v. Board, 58 L. R. A., 396; Farrior v. Security Co., 92 Ala., 176, 12 L. R. A., 856, 9 So. Rep., 532; 29 Am. & Eng. Ency. Law (2 ed.), 1103; State v. Railroad Co., 34 Md., 344; In re Tuthill, 50 N. Y. Supp., 410; Harris v. Jex, 55 N. Y., 421; 14 Am. Rep., 285; Mayor, etc., v. Railway Co., 143 N. Y., 1; McFadden v. Wilson, 96 Ind., 253; Lemans v. Wiley, 92 Ind., 436; New Orleans v. Finnerty, 27 La. An., 681; State, ex rel., v. Mitchell, 31 Ohio St., 592; Counterman v. Dublin Township, 38 Ohio St., 517; McCarthy v. Lavasche, 89 Ill., 274; Ricketts v. Spraker, 77 Ind., 371; Strosser v. Fort Wayne, 100 Ind., 443.
    Public policy at times demands that unconstitutional laws shall not at all times be construed as nullities from the time of their enactment. Mt. Vernon v. State, 71 Ohio St., 428; Henke v. McCord, 55 Ia., 378; Sessums v. Botts, 34 Tex., 335; 8 Cyc.. 792; Mayor, etc., v. Railway Co., 143 N. Y., 1, 37 N. E. Rep., 494, 60 N. Y. St., 352; Newman v. People, 23 Col., 300; 47 Pac. Rep., 278; Dodd v. Camden, 56 N. J. L., 258, 28 Atl. Rep., 311; Board v. McComb, 92 U. S., 531; Van Steenwyck v. Sackett, 17 Wis., 645.

      Messrs-. Smith, Taft & Arter a.nd-Messrs. Griszvold, & White, for defendants in error.
    An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; creates no office; it is in legal contemplation, inoperative as though it has not been passed. Norton v. Shelby County, 118 U. S., 425, 30 L. Ed., 178; Maloney v. Aid Assn., 40 N. Y. Supp., 918; Hamilton v. Insurance Co., 42 Neb., 883; Henry, etc., v. Fisherdick, 37 Neb., 209; 23 Am. & Eng. Ency. Law (2 ed.), 402; Baldwin v. United States, 15 Court of Claims, 297; Whiting, Admx., v. United States, 35 Court of Claims, 291; Trustees, etc., v. Walden, 15 Ala., 655; Fulton v. Monona County, 47 Ia., 622; Bowe v. St. Paul, 70 Minn., 341; State v. Steele, 57 Tex., 200; Glavey v. United States, 35 Court of Claims, 263.
    An unconstitutional act of the legislature is as ineffectual as though it had never been passed. Finders v. Bodle, 58 Neb., 57; Mott v. Hubbard, Treas., 59 Ohio St., 199; Lewis, Auditor, v. Symmes, 61 Ohio St., 471; City of Findlay v. Pendleton, 62 Ohio St., 80; Mt. Vernon v. State, 71 Ohio St., 425; Thomas v. State, 76 Ohio St., 341.
    The precise question in this case first arose in the state of Virginia, in 1882, and the case involving and deciding the question decides the question upon principle, rather than upon authority, and the decision is a classic in its line. We have found no case since decided, involving the same point that has not applied, or distinctly and affirmatively followed the reasoning of that opinion. Montague’s Admr. v. Massey, Auditor, 76 Va., 307.
    In Kehn v. State, 93 N. Y., 291, the Virginia case is applied and followed. McGrade v. New York, 110 N. Y. Supp., 517; Grant v. Rochester, 79 App. Div., 460; Gallaher v. Lincoln, 63 Neb., 339; 15 Am. & Eng. Ency. Law (2 ed.), 965; Nelson v. Superior, 109 Wis., 618.
   Shauck, J.

Counsel, by bringing the arguments directly to the questions in difference, have rendered very material aid in the investigation of the case. The act of April 23, 1896, fixing the compensation of county officers in counties containing a city of the second grade of the first class was, by Vail, supposed to be constitutional, and he acted upon that belief throughout his second term. Later the circuit court of Cuyahoga county, following the decision of this court in the case of The State, ex rel. Guilbert, v. Yates, 66 Ohio St., 546, held the act to be unconstitutional. Thereupon Vail and his successors assuming the nullity of the act and the operative force of the general law relating to fees, concluded that the fees which had accrued, but had not been paid during the official term of Vail, should be paid to him, and that course was taken. No controversy exists respecting the proposition that an unconstitutional law is in legal contemplation inoperative as though it had not been passed. But on behalf of the plaintiff in error it is contended that this case comes within the recognized doctrine that parties may so conduct themselves with respect to the subject of unconstitutional legislation that they are estopped thereafter to deny its binding character. Cases of that character are well recognized, and a number of them are collected in the briefs.

The cases all present, in some form or another, equitable grounds of election or estoppel. In the different briefs presented for plaintiff in error the grounds alleged in this case are variously stated to be election, estoppel, .acquiescence and waiver. The admission that this act was a legal nullity implies an admission that not only the fees now sued for, that is those which were collected after the act was declared a nullity, but those which Vail deposited with the county treasurer in excess of his salary during his second incumbency of the office, belonged to him. The adjudication that the act was unconstitutional only declared that that was its character. Its character had been fixed from the time it was enacted. These claims of counsel for the plaintiff mpst therefore be applied to a situation in which, according to the averment of the petition, Vail, after paying his clerks and deputies out of the fee fund of the county, was himself paid a salary of four thousand dollars per annum out of the fees collected and paid by him as clerk into said fee fund, that is, his salary was received out of moneys, which so far as any merit of the statute was concerned, were his own. This consideration, if borne in mind, shows that the case cannot be determined favorably to the plaintiff by the doctrine of election which involves a choice made, or the necessity of making a choice, between inconsistent rights and gifts. Nor can it be governed by the doctrine of estoppel which requires that the party by whom it is asserted shall have sustained some detriment by reason of the conduct or representation of him against .whom the estoppel is invoked. The express averment of this petition shows that the county parted with nothing in consequence of Vail’s temporary recognition of the validity of the salary act. On the contrary, it has profited thereby to the extent of the excess of the fees collected by him during his second incumbency over the salary' received by him during that time. The county sustains no loss whatever by reason of Vail’s later assertion of the invalidity of the salary act, which, it is conceded; he might have insisted upon from the beginning.

Nor can any inference unfavorable to Vail be ■drawn from waiver or acquiescence. What he waived was his right to the costs above salary during his second incumbency and until the salary act was declared unconstitutional, and his acquiescence was in the receipt of such surplus fees during the same time by the county. The fees to which he thus waived his right thereby became blended with the funds .of. the public, but as to those which are the subject of controversy here the county occupies precisely the same position it would have occupied if the unconstitutional act had not been passed, or the defendant had challenged it immediately upon its passage. There appears to be no reason why the defendant should be deemed to have waived that which he did not waive or to have acquiesced in that in which he did not acquiesce. T , , ~ ,

, , Judgment affirmed.

Spear, C. J., Davis. Price, Johnson and Donahue, JJ., concur.


author: Davis, J.

text:
    Byers v. The Meridian Printing Company et al.

      Publication of pleadings, etc. — Not privileged, when — Presumption as to malice — Act of April 16, 1900, 94 O. L., 29$, xmconstitutional.

    1. The publication of pleadings or papers which have been placed on the files of a court, when the court has not yet acted thereon, is not privileged, even though the publication is made in good faith and without malice. (The Cincinnati Gazette Co. v. Timberlake, 10 Ohio St., 549, approved and followed.)
    2. The amendment and supplement to Section 5094, Revised Statutes of Ohio, passed April 16, 1900, 94 O. L., 295, changing the presumption and burden of proof as to malice, is unconstitutional and void.
    (No. 12425
    Decided June 30, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiff in error was plaintiff in the court of common pleas in which he filed his petition alleging that the defendants had published in a newspaper owned and controlled by them, viz., The Cleveland News, a libelous statement which was in substance that warrants for the arrest of the plaintiff on the charge of perjury together with warrants for other persons for other felonious crimes had been sworn out before a justice of the peace by one L. A. Damschroeder. It was further stated in said article that Damschroeder asserts that the plaintiff committed perjury in swearing to the affidavit by which suit was brought, etc. The plaintiff’s petition further alleged that he is an attorney qualified to practice in the courts and that he is the person referred to in this article and that so far as it refers to the plaintiff the language complained of is viciously false and untrue and is calculated to injure the plaintiff in his reputation as a man, as a citizen, and in the practice of his profession and to bring him into public scandal, infamy and disgrace. He charges that he has been disgraced and humiliated and his business has been injured thereby, for all of which he claims damages.
    The defendants made a joint answer setting up three defenses. The first defense after admitting the formal allegations of the petition and the publication of the article complained of, denies all and singular the averments of fact in said amended petition contained saving and excepting the averments hereinbefore expressly admitted to be true. In their second defense the defendants set forth a certain affidavit made by one Lawrence A. Damschroeder charging the plaintiff with perjury and setting forth a warrant alleged to have been issued by the justice of the peace with whom said affidavit was filed. And they further say that they thereupon caused the publication complained of to be made and that the same is a fair and accurate-report of the said proceedings had before the said justice of the peace. Further answering, the defendants say that they made said publication in good faith, relying on the said affidavit and warrant and said proceedings before the said justice of the peace, and they deny that in making said publication they were actuated by any malice whatsoever toward the plaintiff. For their third defense the defendants say that a reporter representing the defendant, The Meridian Printing Company, went to the office of the justice of the peace referred to in said publication and made in-’ quiry as to whether or not a warrant had in fact been issued for the arrest of the plaintiff. That the said justice informed the reporter that the warrant had been issued and that the reporter thereupon requested to see the files in said case and the same were exhibited to him and examined by him and he found in the file envelope an affidavit charging the plaintiff with perjury and otherwise making charges against him as set forth in. said publication. That the reporter also found in said file envelope a warrant for the arrest of the plaintiff duly signed by the justice of the peace, and that thereupon acting upon such examination and information he prepared the publication complained of which the defendants thereupon caused to be published. • Defendants further alleged that at the time of the publication they believed and had reasonable grounds to believe that the statements contained in said publication were true; that they made the same in good faith and believed it to be by reason of the aforesaid inquiries a fair and accurate report of the proceedings had before the said justice of the peace. They further say as a part of said third defense that thereafter the plaintiff demanded that the defendants make retraction of the matter contained in said publication so far as it related to him the said plaintiff and that in response to this demand for a retraction and acting on information from the plaintiff and statements made by him without further investigation and solely with desire to set right a possible wrong which they may have done the plaintiff they promptly published a full and complete retraction of the same in as public a manner and as conspicuous a place as that in which they had made the original publication. A copy of this retraction is given. And they deny further that in making the said publication they were actuated by any malice whatever toward the plaintiff.
    Demurrers to each one óf the separate defenses filed by the plaintiff were overruled by the common pleas court. The plaintiff not desiring to plead further final judgment was entered for the defendants. To this judgment the plaintiff filed his petition in error in the circuit court which affirmed the judgment of the court of common pleas and this proceeding in error is prosecuted to reverse the judgment of both the lower courts.

      Messrs. Friebolin & Byers and Mr. P. L. A. Leighley, for plaintiff in error.
    Under the doctrine that' “malice is the gist,” that is, an essential ingredient of the cause of action for defamation, it appears that the purpose and effect of this statute is to bar a recovery for injury to reputation, no matter what the damage sustained, where a retraction has been demanded, and the demand complied with, unless malice is proven, and then of all but the actual or special damage alleged in the petition. Publishing Co. v. Butler, 137 Fed. Rep., 727.
    Now, let us see whether our statute (5094) is in accord with the guaranties given by the fundamental law in the Fourteenth Amendment to the Federal Constitution. Its effect, it will be seen, is to impose upon the person injured the necessity of choosing whether he will demand a retraction and lose his right to reparation, unless he can prove actual malice, or of failing to give his traducer an opportunity to retract (incidentally so allowing him to mitigate his liability for damage), and of suffering under the odium of having made no attempt to have himself set right, in so far as might be, before the world at large. Odgers on Slander and Libel, 4, 6.
    It will scarcely be contended that the act of demanding a retraction is one which is malum in se, or in fact other than one of which good conscience will approve, yet our legislature has undertaken to impose a heavy penalty upon its performance — no less than the deprivation of a constitutionally guaranteed right. “There is a constitutional inhibition against imposing penalties where no law has been violated or duty neglected.” Railway Co. v. Lackey, 78 Ill., 55.
    Nor will it do to say that the retraction when made, is reparation, for if it is ever such, which may well be doubted, it clearly is not when special damage can be shown. Hanson v. Krehbiel, 64 L. R. A., 790.
    The legislature has undertaken to compel a choice between two perfectly lawful courses of action, with neither of which it has any possible reason to interfere on any grounds which can be suggested, or for which any support of authority, will be found.
    It is conceded that a constitutional right may be waived, as is said by the court in Publishing Co. v. Butler, supra, but we conceive that no case will be found where performance of any act provided for by legislation, has been held to constitute such a waiver, where no new right or benefit is conferred thereby. Moore v. Napier, 42 S. E. Rep., 997; Cooley’s Const. Lim. (7 ed.), 251; Cleveland v. Construction Co., 67 Ohio St., 197; State v. Hipp, 38 Ohio St., 199.
    In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect. United States v. Dewitt, 9 Wall., 41; 1 Thayer’s Cases on Const. Law, 740.
    The principle question which we are discussing has been passed upon by the supreme courts of Michigan, Kansas, Minnesota and North Carolina. Park v. Press Co., 72 Mich., 560, 1 L. R. A., 599; McGee v. Baumgartner, 121 Mich., 287, 80 N. W. Rep., 21; Allen v. Press Co., 40 Minn., 117, 3 L. R. A., 532.
    The supreme court of North Carolina in Osborn v. Leach, 135 N. Car., 628, 66 L. R. A., 648, reviews all of the other decisions upon this question and takes its stand upon the same ground as that of Kansas, the statute of the former state being practically identical with that of the latter.
    A statute in derogation of the common law is to be strictly construed. Cooley’s Const. Lim. (7 ed.), 95.
    We have been unable to find authority which supports the view taken by the learned judges of the circuit bench.
    On the contrary, perusal of the cases seems to us to show that, as above indicated, malice is averred with rather more than necessary emphasis. 32 Cent. Dig., 2139; White v. Nicholls, 3 How., 266; Harris v. Zanone, 93 Cal., 59; Brandt v. Journal Assn., 81 App. Div., 186.
    There is another ground upon which the statute may be held to be of no effect without declaring it unconstitutional.
    The more modern writers, and many of the courts have recognized that the doctrine that “malice is the gist of actions for defamation is based upon a legal fiction merely, and that malice is not in fact an essential element.” Odgers on Libel and Slander, 319, 321; Flood on Libel and Slander, 35; 1 Cooley on Torts (3 eel.), 420; 18 Am. & Eng. Ency. Law (2 ed.), 1002; Hearne v. DeYoung, 132 Cal., 357; Covington v. Roberson, 111 La., 338; Prince v. Daily Eagle, 16 N. Y. Misc., 188.

      Messrs. Gage, Wilbur & Wachner, for defendants in error.
    We submit that the publication or statement of things done in open court, where some action has been taken by the court, in even an ex-parte judicial proceeding should be, and are in every jurisdiction other than Ohio, subject to the defense of qualified privilege if published or stated fairly and impartially and in good 'faith and without malice; and we submit the following authorities in support thereof: Curry v. Walter, 1 Esp., 456; King v. Wright, 8 Term. R., 293; Duncan v. Thwaites, 3 B. & C., 556; Lewis v. Levy, 96 Eng. C. L. R., 535; Wason v. Walter, 4 L. R., Q. B., 73; Usill v. Hales, 3 C. P. D., 319; Kimber v.
      Press Assn., 1 Q. B. (1893), 65; Popham v. Pickburn, 7 Hurl. & N., 891; Ryalls v. Leader, L. R., 1 Ex., 298; Odgers on Libel and Slander (1905), 291; Ackerman v. Jones, 37 N. Y. Sup. Ct., 42; Salisbury v. Union & Adv. Co., 45 Hun, 120; McBee v. Fulton, 47 Md., 403; Metcalf v. Pub. Co., 20 R. I., 674; Publishing Co. v. Gamble, 115 Tenn., 663; Beiser v. Publishing Co., 113 Ky., 383; Newell on Defamation, Slander and Libel, 549.
    The weight of authority is in favor of extending the privilege to reports of arrests on information gained from papers on file, so long as such reports do not assume the guilt of the accused person and are not otherwise defamatory. Publishing Co. v. Smith, 149 Fed. Rep., 704; Billit v. Publishing Co., 107 La., 751; Usher v. Severance, 20 Me., 9; 25 Cyc., 408.
    The statute is constitutional. The validity of this act -has been sustained by the most satisfactory reasoning in Publishing Co. v. Butler, 137 Fed. Rep., 723.
    It is believed there is no other statute in force in the Union like the Ohio one in this particular, namely, in the respect that it leaves to the plaintiff the option whether or not to ask for a retraction, and incur the conseciuences of such retraction in the way of a limitation of his recovery. Several other states in the Union have, indeed, statutes on this subject of retraction, but in every case these statutes require the plaintiff, before commencing a libel suit, to give notice in some form or manner of the publication of which he intends to comnlain. Thereupon the defendant is permitted, on making retraction in the manner prescribed by such statutes, to limit or abridge the plaintiffs right of recovery.
    The statutes on this subject outside of Ohio have sometimes been sustained, even though they leave the plaintiff no option in the matter, on the ground that the retraction deprives him of punitive damages only, and that it is within the discretion of the legislature to permit or refuse punitive damages in any case, since the right to them is not guaranteed by constitution. Comer v. Publishing Co., 44 So. Rep., 673; Osborn v. Leach, 135 N. Car., 628.
    We- submit, however, that all of these statutes may clearly be distinguished from the Ohio statute, and that the validity of the Ohio statute is satisfactorily supported in the decision of Publishing Co. v. Butler, supra.

   Davis, J.

We regard it as unnecessary to consider whether the demurrer to the first defense stated in the answer of the defendants should have been sustained. The demurrer to the first defense having admitted the facts pleaded for the purposes of the demurrer onlv, when the demurrer was overruled the issue made by the petition and the answer remained for trial; and therefore the court of common pleas erred in rendering judgment against the plaintiff on the pleadings and the circuit court erred in affirming that judgment. That is the necessary result in the view which we take of the third defense.

The second defense is evidently drawn with the intention of raising the point that the publication was one of a qualified privilege, and it is frankly admitted by counsel that this defense is-, irreconcilable with the ruling of this court in The Cincinnati Gazette Co. v. Timberlake, 10 Ohio St., 549, and accordingly a vigorous effort is made to show that the doctrine of that case is wrong and should now be overruled. We shall not undertake to review the cases which counsel have brought to our attention from other jurisdictions. It is suffb cient to say that few, if any, of them are relevant to the precise facts of this case, and none of them -is convincing'to us that the case of The Cincinnati Gazette Co. v. Timberlake, supra, was wrongly decided. Whatever may be said as to the authorT ity, at the present time, of cases cited by the court in the opinion, the reasons given seem to be sound and even more applicable to the case now in hand than the one then under consideration. We quote ■from the opinion. “But in this case there is no claim that the' charge against, the plaintiff below was, in fact, true. The defense rests wholly ■ on the claim of privilege. And if the publisher, of a newspaper may, in virtue of his vocation, without responsibility, publish the details of every criminal charge before a police officer, however groundless, ■and whether emanating from the mistake or the malice of a third party, then must private character be, indeed, imperfectly protected. Such publications not only inflict an injury of the _ same kind with any other species of defamation, but -their tendency is also to interfere with 'the -fair and impartial administration of justice, by -poisoning ■the public mind' and creating a prejudice against a-party, whom the law still presumes to be .innocent.” What follows.this quotation in the opinion might well 'be adopted, mutatis mutandum, in the present case.

The publication was not a fair and accurate report of any judicial “proceeding” or, still less than the Timberlake case, of any purely "ex parte proceedings,” for in that case a warrant had been issued and an arrest had been made, although the accused was discharged on the very day of the publication. In this case no action had been taken by the justice of the peace, no warrant had been “issued” and no arrest had been made. It appears from the alleged retraction which is set out in the answer that the affidavit had not been sworn to and that the justice convinced the complainant that he could not maintain an action against the plaintiff whereupon he took the affidavit away without having sworn to it. We can not conceive of any-process of reasoning, nor of any considerations of public policy, which would justify-such a publication as this one was, under the facts of this case, as a privileged publication, in the face of the well supported doctrine that there is no privilege extended to the publication of papers which ■have been merely filed in court and on which there has been no judicial action. It was thus expressed in one case: “There is no rule of law which authorizes any but the parties interested to handle the files or publish the contents of their matters in litigation. The parties, and none but the parties, control them. One of the reasons why parties are privileged from suit for accusations made-in their pleadings is that the pleadings are addressed to courts where the facts can be fairly tried, and to no other readers. If pleadings and other documents^ can be published to the world by any one who gets access to them* no more effectual way of doing malicious mischief with impunity could be devised than, filing papers containing false and scurrilous charges, and getting those printed as news. The public have no rights to any information on private suits till they come up for public hearing or action in open court; and, when any publication is made involving such matters, they possess no privilege, and the publication must rest on either non-libelous character or truth to defend it. A suit thus brought with scandalous accusations may be discontinued without any attempt to try it, or on trial the case may entirely fail of proof 'or probability. The law has never authorized any such mischief. In Scripps v. Reilly, 35 Mich., 371, 38 Id., 10, this court found it necessary to decline accepting the doctrine of privilege in such cases.” Park v. Free Press Co., 72 Mich., 560, 568. The same distinction was recognized and the doctrine applied in Cowley v. Pulsifer, 137 Mass., 392; Sutton v. Belo & Co., (Civil App. Texas), 64 S. W. Rep., 686; Barber v. St. Louis Dispatch Co., 3 Mo. App., 377; American Pub. Co. v. Gamble, 115 Tenn., 663; Stuart v. Press Pub. Co., 83 N. Y. App. Div., 467, 478, 479. We need not pursue the discussion of this subject further. The demurrer to the second defense should have been sustained.

We come now to the consideration of a question of more serious import. The third defense was drawn under Revised Statutes, Section 5094, as amended and supplemented by an act passed April 16, 1900; 94 O. L., 295. The effect of the amendment^ as claimed by the defendants, and upon the construction adopted by the United States Court of Appeals in Post v. Butler, 137 Fed. R., 723, is that “it is optional with the person libeled to stand upon his rights under the old law, or to waive a part by demanding and accepting a retraction under the law as amended.” The federal court could see no way to sustain the statute as constitutional, except by adopting the construction above given; and we are o.f the opinion, for reasons that will appear, that even that construction, obviously resorted to for the purpose of saving the statute, will not relieve it from the taint of unconstitutionality.

The constitutional guaranties are that “every person, for an injury done him in his land, goods, person or reputation, shall have remedy by' due. course of law” (Const. Ohio, Art. I., Sec. 16), and, “No state .shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law.” Const. U. S., Fourteenth Amendment. In Park v. Free Press Co., supra, the court say: “There is no room for holding in a constitutional system that private reputation is anv more subject to be removed by statute from full legal protection than life, liberty, dr property. It is one of those rights, necessary to human society that underlie the-whole social scheme of civilization. It is a.thing which is more easily injured than restored, and where injury is capable of infinite mischief. And, on the other hand, it is, 'one where the injury is freqúently, ■ and perhaps generally, aggravated by malice. - The law has ■therefore always drawn distinctions between intentionally false and wicked- assaults on character, •and those which were not actually designed to •create a -false impression,- although necessarily tending to injure reputation if false in fact, but it has riiade both actionable.”- • • ■ .

In McGee v. Baumgartner, 121 Mich., 287, the •court approved and followed Park v. Free Press Co., holding that “The right to recover in an action of libel for damages to reputation; can not be abridged by statute.”

Now in what respect, if any, are the rights and privileges of the plaintiff abridged by the statute? Or, in what respect, if any, is he deprived of his remedy by due course of law? We confine'ourselves to the consideration of the statute as construed in Post v. Butler, supra, because this defense is'planted on Post v. Butler, and because if the statute as therein construed can not be sustained as constitutional, it is conceded in that case to be unconstitutional. ' “Due process' of law in each párticular case means such • an exertion of -the powers of government as the settled maxims of the law permit and sanction, and under such safeguards for protection of individual rights as those maxims prescribe for the class of cases to which ■the one in question belongs.” Cooley Const. Lim., Sec. 356. Due process of law has also been defined to be, “Law in its regular form of - administration through courts of justice:” 2 Kent Com., 10. It is obvious that it does not-mean that anything which the' legislature may declare, without regard to constitutional limitations, is due process of law; for that would abrogate all guaranties of the constitution. By settled principles of the common law, the publication of defamatory matter, which is false in fact and not privileged, is presumed to be malicious, that is, the plaintiff may recover without proving malice and the burden is upon the defendant to disprove it. This is the I substantive law and not mere matter of procedure. By the common law, also, one who is injured by such a publication may, by natural right, demand an apology or retraction, but unless it were accepted as a satisfaction it would not be a complete defense and would only be considered in mitigation of damages. This again is substantive law and not a matter of formal procedure. These rules have always been regarded as primary and essential in the law of libel for protection of reputation not only for injury which may be measured by money values, but for that “intangible but fatal influence which suspicion, helped by ill will, spreads beyond recall or reach by apology or retraction.” And therefore they are to be regarded as part of the “remedy by due course of law” of which the constitution declares that no person shall be deprived. These rights the legislature did not give to the libeled person and the legislature can not take them away. We are not disposed to question, at least for our present purpose we will not, that a citizen may waive a constitutional right; but we do deny that he can be compelled to waive his right, or that he can be arbitrarily subjected to an option to stand upon one right under penalty of losing another. Under this statute the plaintiff is given the choice of resorting to the courts without the right of demanding a retraction, or of demanding a retraction, and, if given, being limited in his right of recovery; and if he chooses either course, he must do it at his own peril and without any recompense whatever. Recurring again to the opinion in Park v. Free Press Co., supra, “it is not competent for the legislature to give one class of citizens legal exemption for wrongs not granted to others; and it is not. competent to authorize any person, natural or artificial, to do wrong to others without answering fully for the wrong.”

It was said in the argument that the circuit court in disposing of this case said that there could be no doubt that the legislature had the power to change the presumption as to malice. The constitutional power of the legislature to prescribe the presumptions of evidence and to change the rules of evidence was recently considered by this court in The Williams & Thomas Co. v. Preslo, ante, 328.

That was a case in which property interests were concerned, and it was held that the provisions of the constitution which require that laws regulating rights in property shall operate generally and equally, extend to statutes which prescribe presumptions and rules of evidence by which those rights are enforced. In other words, the guaranties of the constitution, which are the same for the protection of property and reputation, shall be regarded by the legislature as well in passing laws relating to evidence and remedies as to substantive law.

■ The demurrér to the third defense should have been sustained; and the judgments of the circuit court and court of' common pleas are

Reversed and cause remanded.

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

Donahue, J., concurs in the first proposition of the syllabus, but does not concur in the second.