author: Speak, J.

text:
    Advance Thresher Company v. Hogan et al.

      Mortgage to secure notes maturing at different times — Mortgagee given power to elect in application of payments — If mortgaged property insufficient to satisfy debts — Surety on note held to notice of provisions of mortgage — Equitable relation of creditor, debtor and surety — Default of one note matures all, when — Rights of surety — Mortgages—Promissory notes.

    1. Where parties to a mortgage given to secure the payment of several notes maturing at different times have provided in the instrument that the mortgagee may elect as to the application of payments in case the proceeds of a sale of the mortgaged property are insufficient to satisfy the entire debt, the court upon foreclosure will, as between mortgagor and mortgagee, order application of money arising from sale in conformity with such election if made in proper time.
    2. Such election is not too late if made by proper demand prior to the trial.
    3. Where two of the notes so secured contain a clause that they, with others, are secured by mortgage given by the mortgagor to the creditor, and are signed by a third party as surety for the debtor, such surety will^ be held, in the absence of circumstances showing the contrary, to have had notice of the provisions of the mortgage respecting the application of payments, and to have contracted with reference thereto.

      4. The primary equity growing out of the relation of creditor, . debtor and surety, is that the creditor be paid what is due him; that he does not lose this equity as against the surety except by misconduct to the latter’s prejudice. So that, when the creditor in the original contract has received a mortgage covering the entire debt, and a personal guaranty on a part of it, the presumption is, in the absence of circumstances showing the contrary, that he has taken the personal guaranty as additional protection for his debt. This presumption is strengthened where it appears that the creditor, at the inception of the debt guaranteed by the surety, refused to part with the property, the consideration for the notes signed by the surety, without such personal security. The surety has, in case of sale resulting in a sum insufficient to satisfy the entire debt, no standing to demand that the proceeds be applied pro rata upon the notes upon which he is surety. A fortiori is this the case where the mortgage contains a clause to the effect that where any of the notes are guaranteed by a third party such party shall have no rights under the mortgage unless the same is assigned to him, .and that on sale the proceeds shall be first applied on notes not so guaranteed until the same are fully paid.
    (No. 9465
    Decided June 12, 1906.)
    Error to the Circuit Court of Logan county.
    Facts necessary to an understanding of the points decided are stated in the opinion.

      Mr. John B. Cassidy, for plaintiff in error,
    cited and commented upon the following authorities:

      Machine Co. v. Supply Co., 68 Ohio St., 535; Sayler v. Simpson, 45 Ohio St., 150; Wilson v. Allen, 11 Ore., 154; Smith v. Moore, 112 Ia., 60; Bank v. Whinery, 110 Ia., 390; Wilcox v. Bank, 7 All. (Mass,), 270; Bank v. Covert, 13 Ohio, 240; Bushfield v. Meyer, 10 Ohio St., 334; Hersey v. Bennet, 41 Am. Rep., 275; Dulles v. DeForrest, 19 Conn., 190; Bank v. Moore, 8 Am. St. Rep., 778 (112 N. Y., 543); 2 Am. & Eng. Ency. Law (2 ed.), 460; Field v. Holland, 6 Cranch, 8; Hutchings v. Reinhalter, 58 L. R. A., 680; Terhune v. Colton, 12 N. J. Eq., 233; Stewart v. Hopkins, 30 Ohio St., 540; Reed v. Board of Education, 39 Ohio St., 638; Gill et al. v.
      Pelkey et al., 54 Ohio St., 350; Hanson v. Manley, 72 Ia., 48 (33 N. W. Rep., 357); Wood v. Callaghan, 1 Am. St. Rep., 597 (61 Mich., 402); Nichols v. Knowles, 3 McCrary, 477; Gaston v. Barney, 11 Ohio St., 506; Kortlander v. Elston, 52 Fed. Rep., 180, 183; Bank v. Rigg, 72 Mo. App., 239; Mathews v. Switzler, 46 Mo. 301; Small v. Older, 57 Ia., 326; Bank v. Ginty, 108 Cal., 148; Morrison v. Bank, 9 L. R. A., 282; Bank v. Brown, 22 Me., 295; Bank v. Lewis, 78 Wis., 475; Pope v. Transparent Ice Co., 20 S. E. Rep., 940.

      Mr. A. Jay Miller, for defendant in error,
    cited and commented npon the following authorities:
    2 Am. & Eng. Ency. Law (2 ed.), 459; 2 Am. & Eng. Ency. Law (2 ed.), 460; Bank v. Covert, 13 Ohio, 240; Bushfield v. Meyer, 10 Ohio St., 334; Beresford v. Ward et al., 12 Dec. Re., 555; 1 Disn., 169; Sheldon v. Bennett, 44 Mich., 634; Parker v. Meuer, 6 How. (Miss.), 320; Swartz v. Leist, 13 Ohio St., 419; Cromwell v. Brinton, 2 Circ. Dec., 535; 4 C. C. R., 261; Winters v. Bank, 33 Ohio St., 250; Anderson v. Sharp, 44 Ohio St., 260; Coons v. Clifford, 58 Ohio St., 480; Wohlgemuth v. Drug Co., 8 Circ. Dec., 9; 14 C. C. R., 316; Towne v. Wolfe, 26 Ohio St., 491; Gaston et al. v. Barney, 11 Ohio St., 506; Stewart v. Hopkins, 30 Ohio St., 502; Reed v. Board of Education, 39 Ohio St., 635; Field et al. v. Holland, 6 Cranch, 8; 2 Am. & Eng. Ency. Law (2 ed.),- -; Hanson v. Manley, 72 Ia., 48; Bank v. Ginty, 108 Cal., 148; Hanson and Meyer v. Manley, 72 Ia., 48; Nichols-Sheppard Company v. Knowles, 3 McCrary, 477; Kortlander v. Elston, 52 Fed. Rep., 180; English v. Carney, 25 Mich., 178; Hutchins v. Reinhalter, 58 L. R. A., 680.
   Speak, J.

An action was commenced. January 23, 1904, by the Advance Thresher Company against Dell S. Hogan, "W. B. Hogan, and J. Lincoln Clayton, in the common pleas of Logan, to obtain judgment against the Hogans upon ten promissory notes of various dates and amounts, maturing at different times, and aggregating nineteen hundred and sixty-two dollars, and to obtain foreclosure of a chattel mortgage executed by the Hogans August 29, 1903, and given to secure payment of the notes, the property covered being a grain separator, a compound steam traction engine, a band cutter and feeder, pneumatic straw stacker, and other items of personal property including some live stock. The traction engine, with attachments, was sold by the Company to the Hogans contemporaneous with the execution of the mortgage and the delivery of three ef the'notes, each for four hundred dollars, two of which were signed also by the defendant in error, 'Clayton. Each of these notes contained a statement to the effect that it, with others, was secured by chattel mortgage of even date, and that failure to pay the note or the others so secured when due made that note and all others so secured immediately due at the option of the holder. The mortgage had a similar provision to the effect that in case of default in payment of any of the notes at maturity then all of the notes may become due and payable without notice at the option of the mortgagee. Two of the notes being past due at the commencement of the action the mortgagee, by declaration in the petition, elected to treat all as due.

Tho Hogans were in default. Clayton answered alleging that he was surety only on the two notes, and that January 23, 1904, the Hogans made and -delivered to Mm their chattel mortgage conveying the property described in the petition subject to the plaintiff’s prior mortgage lien. He demanded as relief a finding of his suretyship on the two notes, and that plaintiff be required to exhaust the Hogans and its securities other than this defendant' and apply a pro rata of the proceeds on the two notes on which he was surety before resorting to its remedies at law against him as surety.

Both chattel mortgages were duly attested and filed with the proper officer.

Such further proceedings were then had that judgment was rendered against the Hogans on the petition of plaintiff and an order of sale issued and the property embraced in the mortgage was sold, the proceeds of the sale amounting to twelve hundred, forty-eight and seventy-five hundredths dollars.

The cause was then tried in the common pleas as to the distribution of proceeds, and was appealed to the circuit court, in which court plaintiff filed a reply to Clayton’s answer in which it was alleged (1) that in addition to the chattel mortgage given by the Hogans to Clayton, they on the same date executed and delivered to him a mortgage on real estate owned by them as further indemnity, and (2) that at the time of the execution of the chattel mortgage set out in the petition it was agreed between plaintiff and the defendants that none of the sureties on the note secured by the mortgage should have any rights under the mortgage unless the same should be by the plaintiff assigned to them, and that on sale of the property covered the proceeds should be first applied on the notes secured thereby other than those on which Clayton was surety until such notes not so secured were fully paid.

The circuit court, on trial, sustained a demurrer to the first paragraph of the reply, and overruled a demurrer to the second paragraph. As part of its evidence, and in support of the second paragraph of the reply, the plaintiff introduced its chattel mortgage which contains the following stipulation: “And the proceeds of sale shall be applied, after paying all costs, fees and expenses incurred by the mortgagee, its agents or assigns in that behalf, to the payment of any or all of said notes; and if not sufficient to pay all of said notes, then to be applied on either of said notes or divide the proceeds among the several notes in such proportions as it may elect at the option of the party of the second part without notice, whether said notes are due or not due by the terms thereof, the whole being made due by the consent of the party of the first part hereby given on his violating any of the conditions or covenants of this chattel mortgage; all notes being declared due as above provided, any deficiency arising after applying the proceeds of said sale as above specified the mortgagors agree to pay forthwith to said mortgagee, its successors or assigns. Where any of the notes mentioned in this chattel mortgage are endorsed or guaranteed by any third party, it is agreed and understood that said endorsers or guarantors, shall have no rights under this chattel mortgage, unless same is assigned to them, and that on sale of the property as herein provided the proceeds shall be applied on notes not so guaranteed or endorsed until the same are fully paid.”

It appeared further by' the uncontradicted testimony that the steam traction engine with attachments was purchased by Dell S. Hogan of the plaintiff after the purchase of the other articles mentioned;' the price was $1,200, for which he offered his three notes for $400 each with W. R. Hogan, and a chattel mortgage on the engine and the articles enumerated in mortgage then on file; that the Company refused the offer because not satisfied with the security, and then, and before the proposition to sell was accepted, the name of the defendant Clayton was obtained by Hogan to two of the notes. The security being thus made satisfactory to the Company, the sale was made and the engine delivered.

The court thereupon found for the defendant Clayton as to his alleged suretyship, and in his favor and against plaintiff as to the distribution of the fund, and ordered that the fund, after payment of costs, be applied pro rata upon all the notes set out in the petition.

The defendant offered no testimony. No separate finding of facts was made, but there is no substantial dispute as to the evidence, which is all set out in the bill of exceptions.

Hpon this state of facts what are the rights of the parties?

'It will be noticed that we are not called upon to consider any right or contention of the Hogans for they are in default here as well as in the courts below. The simple question presented by the record is whether or not the surety Clayton has any standing to insist upon a pro rata distribution of the proceeds of the sale of the mortgaged property. We are of the opinion that he has not and will undertake to state briefly some grounds for that conclusion. Clayton must be held to have understood fully the provisions of the notes to which his name is appended either by his own hand or with his unquestioned authority. One provision is that the notes, with others, are secured by chattel mortgage and that failure to pay any when due makes all immediately due at the option of the holder. Whiie not a party to the mortgage itself the defendant Clayton must be held to have received notice of its contents among which are the provisions hereinbefore recited which give the mortgagee the option to make application of the proceeds of sale of the mortgaged property among the several notes as it might elect, and that where any note is endorsed or guaranteed by any third person such person shall have no right under the mortgage unless the same is assigned to him, and upon sale of the property the proceeds shall be first applied on notes not so guaranteed or ■endorsed until the same are fully paid. True, Clayton is not in the strictest sense either a guarantor or an endorser, but who can doubt that this language is used here, and intended to be so understood, in the broad sense as describing anyone who might assume the attitude of a surety? So that upon the very terms of this mortgage of which Clayton had in law notice, not only by the terms of the notes which he signed but by the terms of the mortgage from the Hogans which he accepted, he is precluded from any protection by virtue of his ■suretyship.

But another consideration leads to the same conclusion, and would seem to leave no doubt as to the rule which should prevail. Clayton asks to participate in the proceeds of the sale of the mortgaged property; that is, he seeks the aid of the Thresher ■Company’s mortgage for his own protection. The property was sold on foreclosure of that mortgage, and it is as to the distribution of the proceeds that the present contention arises. How can Clayton ask to have the benefit of that mortgage without being subjected to all of its provisions, as well those which hurt as those which help ? Surely he cannot. He must take cum onere if he takes at all. We are not dealing with a case where no provision has been made in the instrument for application of proceeds, but with one where the stipulations in that respect are clear, comprehensive, and admit of no possible doubt with respect to the purpose and understanding of the parties. This situation eliminates from discussion the large number of authorities cited in which no such provision is to be found. Ours is just such a case as Scott, J., had in mind in Bushfield v. Meyer, 10 Ohio St., 337, where, after citing Bank v. Covert, 13 Ohio Rep., 240, he says that “the fund arising from the sale of the mortgaged premises being insufficient to discharge all the notes must be distributed among them pro rata, unless the terms of the assignment or the circumstances under which it was made, show a different intention of the parties.” The case at bar is running over with evidences of “a different intention.” Our case differs essentially from the case of Bushfield v. Meyer in this: there the insufficiency of the security seemed not to have been anticipated by the parties for they failed to provide for it; the parties in the case at bar had not only anticipated such insufficiency but had made distinct provision for that contingency.

It is urged that there is neither justice nor equity •in applying the fund to these notes not given for the debt created in the purchase of the engine, whose sale produced the fund, to the exclusion in part, or in whole, of the debt created by the purchase. The idea intended to be advanced is that in equity the proceeds of the sale of the engine should be applied exclusively on the notes given for it. Even if this were equitable it would be impracticable. The engine was sold in a group with the separator, the band cutter and feeder, and the straw stacker, all bringing $1,000. There is no means of separating* the parts. But it would not be equitable. Clayton’s undertaking was accepted as a security for the debt in addition to that afforded by the mortgage, without which the sale of the engine would not have been made, and there is no principle of equity upon which Clayton can claim the benefit of the mortgage security to the detriment of the creditor. This conclusion is in accord with the holding of Taft, J., in Kortlander v. Elston, 52 Fed. Rep., 180, that: “The primary equity growing out of the relation of creditor, debtor and surety is that the creditor be paid what is due him; and he does not lose this equity as against the surety, except by misconduct to the latter’s prejudice. When the creditor in the original contract has received collateral covering the entire debt, and a personal guaranty on part of it, the legal and the natural presumption, in the absence of circumstances showing the contrary, is that he has taken the personal guaranty as additional or cumulative protection for his debt. In order that his debt may be paid, therefore, he has the right to exhaust all his securities, and in doing so he may apply the collaterals to that part of the debt not covered by the personal guaranty, and hold the guarantor to the full measure of his contract. The equity which a surety or a guarantor has in the collateral is merely the right, accruing only after the principal debt is fully paid, to he subrogated to the right of the creditor in respect of the collateral security.” See, also, Nichols v. Knowles, 3 McCray, 477; Wood v. Callaghan, 61 Mich., 402; Hanson v. Manley, 72 Ia., 48. But it seems unnecessary to go out of our own state for authorities. Gaston v. Barney, 11 Ohio St., 506, covers this phase of the ease as with a blanket.

Again it is insisted that the option respecting the appropriation of payments came too late, and that it could not he exercised after the bringing of the suit, the notes all being then due' by the election ■of the holder. Such has been the view of some courts. But we do not understand that there is any iron-clad rule on the subject. So long as the delay, if there he such, works no prejudice to the other party, we see no reason for holding that the •delay in and of itself ought to deprive the plaintiff of a right clearly guaranteed by its contract. No word or phrase in the petition is calculated to mislead Clayton, hut the claim is distinctly made that whatever right Clayton had is subordinate to that of the plaintiff. It would seem equitable, and in consonance with well-established principles, that where a fund is to he distributed, a demand of priority is not too late if made any time before trial. Indeed, in analogy to the rule as to demands in lieu of homestead, it would seem that it may he made any time before the actual order of distribution. In this case it was distinctly made in the reply, thus taking issue with the claim of a pro rata distribution set up in the answer, and, we think, was in abundant time. It was in no sense “misconduct to the surety’s prejudice.” Gaston v. Barney, supra; Philpot v. Jones, 2 Ad. & El., 41.

The claim that this being an enforced payment, the result of foreclosure proceedings, the plaintiff is deprived of its right of election as to the application of payments, finds no warrant in any reported Ohio case, and is not supported by principle. The plaintiff was entitled, upon condition broken, to immediate possession of the property, and the-refusal by the Hogans to surrender it cannot impair any right secured to plaintiff by the contract. Gaston v. Barney, supra.

We are of opinion that the fund, after payment of costs, should be applied on the notes other than those on which Clayton is surety. The judgment of the circuit court will be reversed and the cause remanded with direction to render judgment in conformity with this opinion.

Reversed.

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


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    Commissioners of Greene County v. Harbine.

      Word “watercourse” synonymous with word “drain,” when — ■ County' commissioners without authority to convert stream into ditch, when.

    Tlie word “watercourse” as used in the county ditch law, title 6, ch. 1, Revised Statutes, is synonymous with the word “drain,” and the county commissioners are without authority to convert a living stream of water into a ditch hy proceedings for the locating and constructing of a ditch.
    (No. 9585
    Decided June 12, 1906.)
    Error to the Circuit Court of Greene county.
    Certain landowners filed a petition with the county auditor of Greene county praying for the construetion of a county ditch beginning at the head of a milldam in Beaver creek, and running thence up the stream to the boundary line between Beaver-creek and Bath townships. The milldam is the property of the defendant in error and is used in connection with a feed mill. Such proceedings were thereupon had before the county commissioners as that they found in favor of the improvement and ordered the ditch constructed, although they changed the southern terminus of the ditch so as to run around the milldam instead of beginning at the head of the dam. The exhibit attached to the record fairly shows the course of the ditch as prayed for and as ordered to be constructed. Mr. Harbine then filed his petition in the common pleas court praying for a perpetual injunction, and upon his motion a temporary injunction was granted.
    His petition states two grounds upon which reliance was had in support of an injunction.
    First. That the county commissioners are without authority to convert a living stream of water,, as Beaver creek is, admittedly, into a county ditch.
    Second. That the petition for a county ditch was an effort to get rid of the milldam without following sections 4567a, et seq., Ohio Bevised Statutes.
    It is averred in the petition that the milldam had been in existence and continuous use for more than sixty years and that the plaintiff and those under whom he claims title had been the owners of the land above and below this milldam and on both sides and of the water rights and privileges connected therewith from time immemorial; and that until about the year 1888 there was a flouring and grist mill belonging to them on the bank of said creek in connection with said dam and by means of which and a head race said mill obtained its water supply; that in the year 1888 the grist mill was destroyed by fire and that the plaintiff subsequently built a feed mfiT on" the site thereof, which was then in operation and using said water power. It was denied in the answer that the object and purpose of the petition for the location and establishment of a ditch was to get rid of the milldam without a resort to the statutory methods specially provided in such cases; and it was admitted that in 1893 some of the same persons who had signed the petition for a ditch had filed a petition with the said commissioners praying for a removal of the milldam, and that the commissioners ordered a removal thereof, and that the execution of the order of removal was perpetually enjoined by the court of common pleas of said county in an action instituted therefor by the plaintiff.
    The case was heard in the common pleas on a motion to dissolve the temporary injunction, and the evidence, the court overruling the motion, the board of county commissioners answered, to which a general demurrer was sustained. The defendant below not wishing to amend, the answer being insufficient in law, the injunction was made perpetual. The defendant appealed.
    In the circuit court the case was heard upon the motion to dissolve the injunction and the evidence for and against the motion. The motion was overruled and thereupon the court passing upon the general demurrer to the answer sustained the same and the defendant, not wishing to amend, the injunction was made perpetual.
    Error is prosecuted in this court.

      Mr. W. L. Miller and Mr. II. L. Smith, for plaintiff in error,
    cited and commented upon the following authorities:

      Chesborough v. Commissioners, 37 Ohio St., 508; Railway Co. v. Commissioners, 63 Ohio St., 32; Marsh v. Commissioners, 11 Dec. Re., 290; 26 W. L. B., 3; Endlich Interpretation of Statutes, sec. 211; Raudebaugh et al. v. Shelley et al., 6 Ohio St., 307; Pyle v. Richards, 17 Neb., 180; Van Orsdal v. Railway Co., 56 Ia., 470; Luther v. The Winnisimet Co., 64 Mass., 171; Hoyt v. Hudson, 27 Wis., 656; Haff v. Fuller, 45 Ohio St., 495; Frevert v. Finfrock, 31 Ohio St., 621; Lewis v. Laylin, 46 Ohio St., 663; Railway Co. v. Commissioners, 63 Ohio St., 23; secs. 4448 and 4567, Rev. Stat.

      Messrs. McMahon S McMahon and Mr. Charles Darlington, for defendant in error,
    cited and commented upon the following authorities:

      Commissioners v. Mighels, 7 Ohio St., 109; Treadwell v. Commissioners, 11 Ohio St., 190; State v. Yeatman, 22 Ohio St., 551; Village v. Commissioners, 71 Ohio St., 133; Woolever v. Stewart, 36 Ohio St., 151; Bliss v. Kraus, 16 Ohio St., 56; Thomas, Sheriff, v. Evans, 73 Ohio St., 140; 51 O. L. B., 7; Haff v. Fuller, 45 Ohio St., 497; Anderson v. Commissioners, 12 Ohio St., 640; Hays v. Jones, 27 Ohio St., 218; McQuigg v. Cullins, 56 Ohio St., 649; Lewis v. Laylin, 46 Ohio St., 663; Lowmiller v. Fouser et al., 52 Ohio St., 137; Musser v. Adair, 55 Ohio. St., 476; secs. 4447, 4448, 4450, 4461, 4512, 4567, 4567a, 4567b and 4567c, Rev. Stat.
   Summers, J.

It is said that the circuit court ruled that the hoard of county commissioners is without power to locate a county ditch in or over a living stream of water, or, in other words, to convert a living stream of water into a county ditch.

The contention on the part of the defendant in error in support of this ruling is, in brief, that the hoard of commissioners has only such power as has been expressly conferred; that power had been conferred upon it to construct ditches or drains, and also to straighten, widen or deepen streams and to remove dams; that these powers are distinct so that one does not comprise the others; that the word “watercourse,” when used in the statutes relating to ditches, is used as synonymous with drain, and does not include a stream, and that, therefore, the hoard of county commissioners may not, in the ditch proceeding, widen, straighten or deepen á stream, or convert it'into a ditch.

The plaintiff in error contends that: “Under the general authority to locate and construct county ditches they could he located anywhere if found conducive to the public health, convenience and welfare, with possibly the one exception that the same could not he so located as to destroy or supersede a public use theretofore appropriated. There being no limitation and there being full provision for' such' construction, anywhere, with full provisions for compensation, etc., our claim is that the subsequent provision for straightening, widening and deepening streams did not and does not have the effect to limit or abrogate the power already in force and operation, hut only provided a manner of straightening, widening, etc., streams without the construction and location of a county ditch. ’ ’

• “The- county commissioners already had the power to- locate and construct a county ditch upon and over the stream. The new provision did not limit the power of the commissioners as to county ditches and was not so intended, hut it provided a manner for the straightening of streams in cases where a county ditch might not be feasible or desirable. It is a provision relating solely to streams and the improvement of same without even the pretense of superseding, abrogating or limiting any existing power or right in the commissioners as to county ditches.” Attention is also directed to section 4448, Revised Statutes, in which it is provided: “The word ‘ditch’ as used in this chapter shall be held to include a drain or watercourse.”

It does not follow that a power is unlimited because granted in general terms and without words of limitation. Regard must be had for the circumstances existing at the time the power is granted. If from these it clearly appears that the legislature could not have intended the power should comprise a particular thing then the power to that extent is limited just as effectually as if the act had contained express words of limitation. That the legislature did not intend to confer power to convert a stream into a ditch .clearly appears from the circumstances existing at the time of the legislation, and it just as clearly appears from the language used, that the word “watercourse,” as used in the ditch law is synonymous with the word “drain.”

In the early history of the state water-power was the only power in use for the operation of mills and manufactories, and the interests of the state were thought to be so largely dependent upon the utilization of that power that riparian rights were watched with jealous care. So it was when ditches and drains were first made subjects of legislation. At that time land was so cheap that ditching was comparatively unimportant and the legislature would aot have authorized the destruction of a waterpower in order to provide a ditch. It was not until ■some years later that the matter of drainage became so important that tradition has it a member of this court was heard to say, that the great North West, meaning thereby the northwest part of the state, must be ditched even if it is necessary to break the •constitution. Then streams were not converted into ditches and such is not now the practice.

In Reeves v. The Treasurer of Wood County, 8 Ohio St., 333, 343, the learned judge writing the opinion notices the importance of drainage to a portion of the state and reviews the legislation respecting it. The first act noticed is an act passed March 26, 1841 (39 O. L., 122), entitled “An act providing for the appointment of commissioners of sewers in •certain counties of this state.” It authorized the ■court of common pleas in certain counties, on application of the proprietors of “meadows, marshy and low lands, or grounds which are injured by the overflowing of waters, and of swampy land which may be rendered valuable by draining the same, to grant a commission of sewers to such, and so many able and discreet persons as they shall judge expedient, for clearing and removing the banks and obstructions of the passages of the water in rivers, brooks, streams or ponds, which occasion the overflowing and drowning of meadows, swamps and low lands; and also for the draining of swamps, and other unprofitable lands; and also for damming, to prevent the water from overflowing marshy and flat lands; * and the commissioners shall have power to do the service aforesaid, and shall also have power to enter upon any adjoining lands in the most convenient place or places, to open drains through such adjacent lands, to the nearest and most convenient watercourse or watercourses, for the purpose of carrying off the water from such meadows, swamps, marshy, low, or flat lands.”

In 1853 (51 O. L., 351), the act of 1841 was repealed and it was provided, ‘ ‘ that the trustees of townships shall have the power on application of the parties, to enter upon any lands in their township, to view any watercourse, or proposed ditch, for the purpose of draining the lands of one or more persons, and, in case the parties interested shall he unable to agree where said watercourse shall be opened, or said proposed ditch shall be cut, said trustees shall cause said watercourse or ditch to be located, and surveyed, and shall set apart to each person interested in the said watercourse or ditch, such portion of the same, to be by him opened, as shall, by said trustees, be deemed just and right, according to the benefit to be derived from the opening of said watercourse or ditch.” This act was repealed in 1854 (52 O. L., 92) by an act in which many of its provisions were incorporated, and in 1857 (54 O. L., 112) the act of 1854 was amended, but no change was made that will throw any light upon the question under consideration. In 1859 (56 O. L., 58) the act of 1857 was repealed and substantially the same power that theretofore had been granted to township trustees was- taken from them and vested in the county commissioners. They were authorized “to cause to be established, located and constructed, as hereinafter provided, any ditch, drain or watercourse, within such county.” This act was amended in 1867 (64 O. L., 66, and 64 O. L., 143), and in 186.8 (65 O. L., 107) it is supplemented by granting authority to county commissioners, “in case where any ditch, drain or watercourse has been established and constructed under the provisions of the act to which this is supplemental, to cause the same to be cleaned out, widened or deepened. ’ ’ And section 8 of the act also was amended in the same year (65 O. L., 125). And in 1869 (66 O. L., 86), power was granted to township trustees to remove or cause to be removed, any drift, timber, or other obstructions that might hinder the free passage of water in the natural channel in any stream or streams of water known as living streams of water, but it was expressly provided that nothing in the act should be construed to interfere with any mill dam or water works already constructed or to be constructed upon any stream, or the placing of flood gates across any such stream. In 1877 (74 O. L., 22) the act of 1869 giving the township trustees power to remove drift, timber, and other obstructions from streams, was repealed and the power was given to the county commissioners.

It seems to be apparent not only from the provisions of these various acts, but also from the wording of the same, that the legislature did not use the word “watercourse” in a sense that would include a living stream, but in the sense of a drain for water.

Mr. Farnham, in his valuable work “Water and Water Rights,” volume 2, chapter 19, points out that in many of the early decisions the courts have confused watercourses with ravines and swales, or other natural drains, and says that the two are entirely distinct and are controlled by different rules, though in some respects the rules with respect to drainage are the same as those with respect to watercourses, and, further, that a watercourse must be a stream of such character as to give rise to riparian rights. The term is not used in this sense at all in the legislation to which we have, called attention.

In the courts below plaintiff in error raised the question of jurisdiction to enjoin by motion to dissolve the temporary injunction on the ground that the plaintiff had an adequate remedy at law.

In Haff v. Fuller, 45 Ohio St., 495, it is held that The final orders of the township trustees establishing ditches may be reversed by petition in error for errors apparent on the record; and that such procedure and not injunction is the appropriate remedy for the correction of such errors, and in the opinion it is said that the same rule applies to the final orders of county commissioners establishing ditches; that the rule has been applied where the errors so appearing render the proceedings void for want of jurisdiction.

In the present case the want of jurisdiction does' not arise from some error appearing on the record of the proceedings but from want of power in the commissioners to act at all.

Judgment affirmed.

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


author: Crew, J.

text:
    Kahle et al. v. Nisley.

      Lands forfeited to the state — For nonpayment of taxes — Conveyance of county auditor extinguishes all previous titles — Section 2899, Revised Statutes.

      Where, under section 2899, Revised Statutes, lands have been duly forfeited to the state for the nonpayment of taxes and penalty, a valid sale and conveyance of such lands by the county auditor, extinguishes all previous titles thereto, either legal or equitable, and invests the purchaser with a new and perfect title to said lands, discharged from all previous liens and incumbrances.
    (No. 9516
    Decided June 12, 1906.)
    Error to the Circuit Court of Putnam county.
    The facts presented by the record in this case are as follows. On the third Tuesday of January, 1896, the following described real estate situate in Putnam county, Ohio, to wit: The south half of the southeast quarter of section fifteen (15) Town two (2) north, Range six (6) east, was forfeited to the state of Ohio for nonpayment of the taxes and penalty then due thereon. Thereafter, on April 13, 1896, said real estate was sold at forfeited land sale by the auditor of said Putnam county to one L. E. Blackburn for the sum of $138.92, this being the amount of taxes and penalty against said property then due and unpaid. The auditor issued and delivered to said L. E. Blackburn, purchaser, a certificate of such sale which certificate was afterwards transferred by him to one I. E. Gardner. On January 15, 1898, I. E. Gardner presented said certificate to the auditor of Putnam county and received from the latter a forfeited land deed for said premises. On June 23, 1903, said I. E. Gardner, his wife joining therein, by deed duly executed, sold, assigned and quitclaimed all his right, title, interest and estate in and to said premises, and all rights acquired by him under and by virtue of said forfeited tax sale, to the defendant in error, A. S. Nisley. Neither of above deeds was ever filed for record nor recorded in the office of the recorder of Putnam county. Neither L. E. Blackburn to whom said premises were sold at forfeited land sale, I. E. Gardner to whom said premises were conveyed by the auditor of Putnam county, nor the defendant in error, A. S. Nisley, to whom said premises were sold by I. E. Gardner and wife, nor any one of them, paid the taxes or any part thereof levied and assessed against said premises for the years 1897, 1898, 1899, 1900, or for either of said years. On the third Tuesday of January, 1899, said lands being again delinquent for nonpayment of taxes and penalty for the year 1897, and the taxes for the year 1898, and having prior to that date been so returned as delinquent and advertised for sale, were on said third Tuesday of January, 1899, offered for sale at the court house in the county of Putnam, by the treasurer of said county, and not being sold for want of bidders were then and there a second time forfeited to the state of Ohio. Thereafter, to wit: on April 9, 1900, said lands were again sold at forfeited land sale by the auditor of Putnam county, and were purchased by Birchard A. Hayes for the sum of $234.43, the taxes and penalty then due thereon. On December 28, 1900, the auditor of said Putnam county executed and delivered to said Birchard A. Hayes a deed for the premises so purchased which deed was, on the twenty-fourth day of July, 1901, duly filed for record with the recorder of deeds of said Putnam county and by bim duly recorded. Birchard A. Hayes, neither at the time he purchased said premises nor at the time he received the deed therefor, had any notice of the existence of the deed executed and delivered by the auditor of Putnam county to I. E. Gardner. On July 17, 1901, by deed of quitclaim, Birchard A. Hayes and wife sold, assigned and quit-claimed to the plaintiff in error, Prank G. Kahle,— the then owner and holder of the legal title to said premises as appeared of record, — all their right, title, interest and estate in and to said premises together with all rights which they had acquired by virtue of the amount paid for said lands at forfeited tax sale. Thereafter, on August 8, 1900, Prank G. Kahle, by deed of quitclaim, conveyed the east half of said premises to the plaintiff in error, Jacob Warnimont. By virtue of the aforesaid conveyances to them, Prank G. Kahle and Jacob Warnimont claimed title to, and at the time of the commencement of this action weré in actual possession of, the whole of the premises so conveyed. The defendant in error, A. S. Nisley, claiming to be the owner of said premises by virtue of the tax title acquired by him from I. E. Gardner, on December 11, 1903, filed his petition in the court of common pleas of Putnam county against the plaintiffs in error to recover possession of said lands. The prayer of the petition was in the alternative, that he might recover the possession of said lands, or, if the court should find he was not entitled to possession of the same that then he be decreed to have a lien on said lands for the amount paid therefor by L. E. Blackburn at the forfeited land sale of April 13, 1896, with interest and fifty per cent, penalty, together with the amount paid for certificate- of purchase and for *tax deed. On the trial of the cause in the court of common pleas the court found and adjudged that the tax sale of April 13,1896, was void, and that said A. S. Nisley was not therefore entitled to recover possession of said premises. But the court rendered a judgment in his favor for the amount that had been paid for said lands at the forfeited land sale April 13,1896, with interest thereon, from the date of said sale, and decreed the same to he the first and best lien on said premises. This judgment was affirmed by the circuit court, and plaintiffs in error now ask a reversal of both of said judgments in so far as they allow and decree to A. S. Nisley a lien on said lands for the amount paid therefor, by the assignor of his grantee, at the forfeited land sale April 13, 1896.

      Messrs. Bailey & Bailey and Mr. B. A. Hayes, for plaintiffs in error,
    cited and commented upon the following authorities:

      Yearly v. Long, 40 Ohio St., 27; Callender v. Basquin, 16 O. C. C., 540; Ketcham v. Fitch, 13 Ohio St., 201; Hartman v. Hunter, 56 Ohio St., 175; Doyle v. West, 60 Ohio St., 438; Woodward v. Sloan, 27 Ohio St., 592; Jones v. Devore, 8 Ohio St., 430; Bryant v. Estabrook, 20 N. W. Rep., 245; Case v. Hall, 52 Ohio St., 24; Bell v. Tenney, 29 Ohio St., 240; secs. 2907, 2908, 2910, 4980, 4981 and 6726, Rev. Stat.

      Mr. Chauncey L. Neivcomer, for defendant in error,
    cited and commented upon the following authorities:

      Jones v. Foley, 22 N. E. Rep., 987; Fairbanks v. Williams, 24 Kan., 16; Russell v. Hudson, 28 Kan., 99; Turney v. Yeoman, 14 Ohio, 207; Stanbery v. Sillon, 13 Ohio St., 571; Woodward v. Sloan, 27 Ohio St., 592; Keon v. Martin, 34 So. Rep., 429; 110 La., 242; Weimer v. Porter, 42 Mich., 569; 4 N. W. Rep., 306; McClure v. Warner, 16 Neb., 447 ; 20 N. W. Rep., 387; Peet v. O’Brien, 5 Neb., 360; Reed v. His Creditors, 39 La. Ann., 115; 1 So. Rep., 784; Bryant v. Estabrook, 16 Neb., 217; 20 N. W. Rep., 245; Louisiana v. United States, 22 Ct. Cl., 284; Glos v. Woodard, 202 Ill., 489; 67 N. E. Rep., 3; 2 Desty on Taxation, 1022; Schoenheit v. Nelson, 16 Neb., 235; 20 N. W. Rep., 205; Railway Co. v. Alexander, 49 Ark., 190; 4 S. W. Rep., 753; Otoe Co. v. Brown, 16 Neb., 394; 20 N. W. Rep., 274; Hartman v. Hunter, 56 Ohio St., 175; Cincinnati v. Presbyterian Church, 8 Ohio, 299; Cincinnati v. Evans, 5 Ohio St., 596; Wasteney v. Schott, 58 Ohio St., 410; Allen v. Russell, 59 Ohio St., 137; Plant v. Murphy, 5 Dec. Re., 544; 6 Am. Law Rec., 479; 2 W. L. B., 277; Wolcott v. Holland, 27 O. C. C., 71; Bouvier’s definition of “specialty;” secs. 2908, 2910 and 4980, Rev. Stat.
   Crew, J.

In the briefs of counsel in this case much consideration is given the question whether the claim and lien asserted by the defendant in error, A. S. Nisley, was, at the time he commenced his' action in the court of common pleas, barred by the statute of limitations. In the view we have taken of this case that question becomes wholly unimportant and need not therefore be considered or discussed in this opinion. The decision of this case is controlled, and the propriety of the judgments of the courts below determined, by the effect to be given the auditor’s tax deed of December 28,1900, by which the lands involved in the present controversy were conveyed by tbe auditor of Putnam county to Birchard A. Hayes, who had theretofore, on April 9, 1900, purchased the same at forfeited land sale. If the effect of that deed was to cut off and extinguish all previous liens, and to invest the purchaser, from the time of its delivery, with the legal title to said lands discharged from all previous liens and incumbrances, then the plaintiff below, A. S. Nisley, was without right to recover in this action and his petition should have been dismissed by the trial court. If the forfeited land sale of April 9,1900, was a valid sale, — and no question is made in this case but that it was, — it would seem clear under the decision of this court in Jones v. Devore, 8 Ohio St., 430, that the deed subsequently executed to Birchard A. Hayes in pursuance of such sale, and the requirements of the statute, would operate, and have the effect, to divest all prior titles to, and to extinguish all previous liens upon, the lands so conveyed. In the above case Scott, J., says: “All the proceedings under the statute for the sale of lands for nonpayment of taxes, are in rem and not in personam. They operate, if at all, upon the land itself and not merely upon the person in whose name it may have been listed for taxation. * A valid tax title therefore extinguishes all previous titles legal or equitable, inchoate or perfect; and the purchaser takes the premises discharged from all previous liens and incumbrances whatever. * * It follows then, from the nature of a tax title and the terms of the statute, that a valid sale and conveyance of lands for the nonpayment of taxes, will bar even the favored right of dower. ’ ’ In Gwynne v. Niswanger, 20 Ohio, 564, this court said: “A tax title, from its very nature, has nothing to do with the previous chain of title, does not in any way connect itself with it. It is a breaking np of all previous titles. The party holding such title, in proving it, goes no further than his tax deed; the former title can be of no service to him nor can it prejudice him. * * * In an ordinary case it matters not how many different interests may be connected with the title, what may be the particular interest of the party in whose name the property may be listed for taxation; it may be a mere equitable right, — if the land be regularly sold for taxes the property, accompanied with a legal title, goes to the purchaser, no matter how many estates legal or equitable may be connected with it. ’ ’ In Hefner v. North Western Mutual Life Insurance Company, 123 U. S., 309, the Supreme Court of the United States had before it for consideration the nature of the tax lien, and the effect of a tax deed. The third paragraph of the syllabus in that case is as follows: “If the tax deed is valid, it clothes the purchaser from the time of its delivery, not only with the title of the person assessed for the taxes, but with a new and complete title in the land under an independent grant from the sovereign authority, which bars or extinguishes all prior titles and incumbrances of private persons, and all equities arising out of them.” But counsel for defendant in error contend that even though the rule be as announced in the foregoing authorities, that it cannot aid the plaintiffs in error in this case for the reason that •when the plaintiff in error Frank Gr. Kahle purchased these lands from Birchard A. Hayes, he was already the owner of the legal title, and therefore the tax title acquired by him was swallowed up and ■merged in his legal title. There are two sufficient answers to this proposition: 1. Section 2899, Revised Statutes, provides that “every tract of land and town lot offered for. sale by the treasurer as hereinbefore provided, and not sold for want of bidders, shall be and the same is hereby declared to be forfeited to the state; and thenceforth all the right, title, claim, and interest of the former owner or owners thereof, shall be considered as transferred to, and vested in, the state. ’ ’ Hence by the sale and conveyance of these lands to Birchard A. Hayes, the legal title thereto of Frank G-. Kahle was completely divested and extinguished, and the property passed to said Birchard A. Hayes, as purchaser from, and grantee of, the state of Ohio, as from an original source of title. 2. This being so, the tax title is the better and superior title, and it would not therefore be merged in the legal title. “A superior right is never merged in an inferior one; the whole doctrine of merger proceeds upon the principle of a superior right covering and swallowing up an inferior right, and that keeping those rights separate when they unite in the same person, to the same thing, would be useless. The doctrine of merger never applies when it would work an injury to the owner, or where his interest requires that the rights should have a separate existence.” Myers v. Hewitt, 16 Ohio, 449, 453; Bell v. Tenny, 29 Ohio St., 240, 243; Case v. Hall, Admr., 52 Ohio St., 24, 36. It would seem then, from the very nature of the tax title, and the provisions of the statute, that a valid tax sale, and the maturing of the title in the purchaser, — by a failure to redeem the premises sold within the time allowed by statute, — (section 2907, Revised Statutes), creates in the purchaser a new and original title, and extinguishes all previous titles either legal or equitable. And the auditor’s deed executed and delivered in pursuance of such sale, transfers to the purchaser the lands sold, discharged from any previous ownership, or claim of title. In the present case, as appears from the statement of facts, the lands in question being delinquent for the nonpayment of taxes and penalty for the year 1894, and the taxes for the year 1895, were on the third Tuesday of January, 1896, forfeited to the state of Ohio. Thereafter, on April 13, 1896, they were sold to L. E. Blackburn at forfeited land sale, and from him passed by mesne conveyances to the defendant in error A. S. Nisley, and whatever interest or lien the latter has in, or on, said premises was acquired by and through said forfeited land sale of April 13, 1896. After such sale it was incumbent upon the purchaser thereat, L. E. Blackburn, and his successors in interest, to see to it, that the taxes subsequently levied and assessed against said lands were paid. This they did not do, but suffered the taxes for the years 1897 and 1898 to become delinquent, and permitted said lands to be again forfeited to the state of Ohio, and to be again sold, for nonpayment of the taxes and penalty due.thereon for said years. Having permitted such forfeiture and sale, and said second sale having been in all respects regular and valid, any interest or lien, under section 2910, Revised Statutes, that they or either of them may have had in or on said premises, by virtue of said first tax sale, was by such second sale extinguished and divested, and was and is therefore unavailing, either as against the title acquired by the purchaser of said lands at the latter sale, or the title of those claiming through or under him. It follows, that the lien asserted by the defendant in error against these lands is not a valid incumbrance thereon, and that the courts below erred in holding it to be a valid and subsisting lien, and in decreeing its foreclosure as such. The judgments of the circuit court and the court of common pleas will therefore he reversed and judgment entered for plaintiffs in error upon the undisputed facts.

Judgment reversed and judgment for plaintiffs in error.

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


author: Price, J.

text:
    Orme and Okey, Receivers, v. Baker.

      Bank insolvent — Through fraudulent acts of cashier — Situation known to some directors — Receiver takes possession of hank —Customer makes deposit on last day hank open — Permitted to recover full amount — As preferred creditor — Imputed knowledge of hank officers — Law of agency — Respective rights of creditors.

    The board of directors of a hanking corporation, consisting of five persons, appointed P, one of the members, as its cashier, who, by its authority, was placed in control of its property and was made the active manager of its business. The president, also a director, resided in the country, was old and infirm, and gave no attention to the bank’s affairs. The treasurer, likewise a director, resided in another county engaged in business of his own. Within the last year of the existence of the bank, there was no meeting of the board of directors, and during that time, if not before, the bank became “hopelessly and irretrievably insolvent” through the fraudulent acts of the cashier and its vice president, likewise a director, who themselves being insolvent, used the funds of the bank for their own purposes, and the purposes of other corporations with which they were connected. These fraudulent acts were not communicated to the other directors. An examination of the condition of said bank at any time within thirty days before it was closed, would have disclosed its insolvency, but no such examination was made by the board of directors, or by anyone in its behalf. On the last day the bank was open for business, and but a few minutes before the close of banking hours, B, a customer, being entirely ignorant of said insolvent condition, made a general deposit consisting of some cash and certain checks drawn in his favor on other banks. The agent of the bank then in charge received the deposit, and entered the same on the pass book of the depositor to his credit, but did not enter the credit on the books of the bank. The cash part of the deposit was commingled with other funds of the bank, thereby increasing the same. On the second day thereafter, a receiver took possession of the property and funds of the bank including said deposit of cash and checks, and caused said cash deposit to be entered on the books of the bank to B’s credit, and several days thereafter collected and received the amount called for by said checks. Before the checks were collected, and on the same day the receiver took possession, B demanded of him the cash and checks so deposited, or their proceeds and his demand was refused. Two days before the deposit was made, in the night season, and knowing the bank to be hopelessly insolvent, the said cashier and vice president clandestinely absconded, leaving in charge one who had been acting as bookkeeper and assistant cashier, and another bookkeeper, who also knew that the bank was short of funds, and that according to its books, it was insolvent when the deposit was made. Held: .(1) That under these circumstances, the knowledge of the cashier as to its hopeless insolvency should be imputed to the bank. (2) The deposit having been fraudulently received, no title thereto vested in the bank, and on making timely demand upon the receiver for its return, the depositor is entitled to recover of him its full amount in preference over the claim of general creditors.
    (No. 9525
    Decided June 12, 1906.)
    Error to the Circuit Court of Guernsey county.
    On the twenty-seventh day of August, 1904, the defendant in error commenced an action in the lower court against the plaintiffs in error to recover of them the sum of $283.00 and interest thereon from the fifteenth day of June, 1904, and the court was ashed to decree that this sum he paid in full as a preference over general creditors. To support this prayer, Baker alleged in substance that on the thirteenth day of June, 1904, at about 3:30 o’clock p. m., he deposited in the said Commercial Bank the sum of $99.00 in cash, and at the same time deposited for collection two checks, one of which was drawn by Mast & Complin on the Old Citizens National Bank of Zanesville, Ohio, for the sum of $169.00, payable to the order of said Baker and by him endorsed, and the other check so deposited was drawn by J. L. Duff on the National Bank of Cambridge, Ohio, for the sum of $Í5.00 payable to Baker and by him endorsed in blank — the cash and checks aggregated the sum of $283. It is alleged that when the deposit was made and for a long time prior thereto, the said bank was insolvent, and that its assets were wholly insufficient to pay the claims of depositors, but that the plaintiff had no knowledge at any time of said insolvent condition, but that the same was known to the officers, directors and employes of the bank, at the time the deposit was made and received, and that within one hour after said deposit was made, the bank was closed, its business suspended, and that it transacted no business thereafter. The cash deposit passed into the hands of said receivers and the said checks were by them transmitted for collection and they were paid to them, and that they refused to pay said sums so deposited and collected to the plaintiff, although he had demanded the same. The prayer is for judgment and an order directing the receivers to pay to plaintiff the full amount of the claim as a preference over the general creditors.

      The answer denies that the checks mentioned in the petition were deposited for collection, that on the contrary, they were deposited by the plaintiff and received by the bank as a general deposit and that the same was entered as a credit to plaintiff in bis general account as a depositor in said bank. It is further alleged that the insolvent condition of the bank was known to no officer, director or employe ■of said bank except to H. O. Barber, its vice-president and a director thereof and P. C. Patterson, its cashier and director thereof; that at and prior to said time of deposit, Barber and Patterson were unfaithful to the bank in their respective duties ns such officers in this, that each of them had been .and then was using to the amount of about one hundred thousand dollars, the funds of the bank for his private benefit and advantage, and thus and thereby caused its insolvency, and had been and then was, concealing from the other officers and directors said use of the bank’s funds and its condition, therefore their knowledge was and is not the knowledge of the bank.
    It is also alleged that neither said cash deposit nor the proceeds of said checks was kept or held by ^the bank, or by the receivers, distinct from the other funds or assets of the bank, but on the contrary, prior to the demand of the plaintiff they were added to and indistinguishably mingled with the funds and assets of the bank received on said thirteenth day of June, in the usual course of business; that from the aggregate thereof on said day, in the usual course of business, after said deposit, said bank paid therefrom divers and sundry sums of money, and that since they were appointed the receivers, defendants have paid therefrom divers sums of money; that said bank transacted its nsnal business throughout said thirteenth day of June and until the close •of business on that day, and did not suspend its business until the fourteenth day of June, 1904. On the issues joined, the cause was heard and submitted to the court on an agreed statement of facts, and without the intervention of a jury. The court found for the plaintiff' and adjudged as prayed for in the petition.
    The defendants as receivers appealed from the judgment to the circuit court, where the case was heard and submitted on the same agreed statement of facts, which together with the facts admitted in the pleadings constituted the whole evidence introduced and heard upon the trial. The circuit court also found for the plaintiff and made the decree prayed for by him.
    A motion for new trial was overruled, a bill of exceptions taken containing the facts agreed upon and error is prosecuted in this court to reverse the judgment. The controlling facts appear in the opinion.
    Jfr. Fred L. Rosemond; Mr. Charles S. - Turnbaugh and Mr. Robert T. Scott, for plaintiffs in error,
    cited and commented upon the following authorities:

      Covert v. Rhodes, 48 Ohio St., 71; Railroad Co. v. Bank, 54 Ohio St., 60; Morse on Banks, secs. 186, 573 and 575, 112, 104a; Reeves v. Bank, 8 Ohio St., 465; 2 Morse on Banks, secs. 629, 589; Quin v. Earle, 95 Fed., 728; Story on Agency, secs. 140c, 210; Balbach v. Frelinghuysen, 15 Fed., 675; Railroad Co. v. Everett, 19 C. C. R., 205; 10 C. D., 493; 2 Pomeroy’s Equity Jurisprudence, secs. 674, 669-671;
      note 10, L. R. A., 706; Wilson v. Coburn, 35 Neb., 530; Jones v. Kilbreth, 49 Ohio St., 401; Bank v. Melhorn, 8 C. C. R., 191; 4 C. D., 401; Sayles v. Cox, 32 L. R. A., 715.

      Messrs. Mathews '& Mathews, for defendant in error,
    cited and commented upon the following authorities:

      Craigie et al. v. Hadley, 99 N. Y., 131; Railway Co. v. Johnston, 133 U. S., 567; Holden, Trustee, v. Bank, 72 N. Y., 286; Maple v. Railroad, 40 Ohio St., 313; Phillips, Recr. v. Bank, 140 N. Y., 556; Martin v. Webb, 110 U. S., 7; Walker v. Bank, 130 U. S., 267; Bissell v. Bank, 69 Pa. St., 415; Gibson v. Bank, 98 N. Y., 87; Bank v. Ledbetter, 34 S. W. Rep., 1042; Richardson v. Debenture Red. Co., 102 Fed. Rep., 780; Wasson v. Hawkins, 59 Fed. Rep., 233; Beal, Recr. v. City of Somerville, 50 Fed. Rep., 647; City of Phila. v. Aldrich, 98 Fed. Rep., 487; City of Phila. v. Eckels et al., 98 Fed. Rep., 485; Quin v. Earle, 95 Fed. Rep., 728; Baker v. Orme, 27 O. C. C., 465; Massey v. Fisher, 62 Fed. Rep., 858; 2 Pomeroy’s Equity Jurisprudence, sec. 675; Wilson v. Coburn, 35 Neb., 530; 53 N. W. Rep., 466.
   Price, J.

The Commercial Bank Company was incorporated under the laws of this state in March; 1901, and it organized by the stockholders electing five directors consisting of Leonard Orme, H. O. Barber, P. C. Patterson, William.Moss and Charles Bell. The directors promptly elected Leonard Orme, president, H. O. Barber, vice-president, William Moss, secretary, and Charles Bell-, treasurer. These directors and officers of the bank were afterwards re-elected to and occupied the same positions respectively, until the close of the bant on the thirteenth day of June, 1904, and subsequent thereto, but the directors never held a meeting after June, 1903.

Under the regulations of the company the directors appointed said P. C. Patterson cashier and he served in that capacity until June 11, 1904. On that day “and for a long time prior thereto,” the said company “was hopelessly and irretrievably insolvent, of which fact said H. O. Barber and P. C. Patterson, officers and directors aforesaid, had full knowledge. ’ ’ Another fact agreed upon is, “that during the existence of said bank, said P. C. Patterson, as a director and by virtue of his' office as .cashier, and by the authority of said board of directors, was in control of the property of said bank, and was the active manager of its business. Leonard Orme was old and infirm, resided quite a distance from Cambridge (location of bank) and never took, nor was he, when elected president, expected to take any active part in conducting the business of said, bank.” And further, Charles Bell, treasurer, resided and was engaged in business at New Lexington, Ohio, and William Moss, the secretary, was engaged in business at Cambridge, and neither <?f them took any part in the management of the business of the bank.”

One Dwight Scott was an employe in said bank during its existence, and during ■ the last- year or longer, was, though never so designated or appointed, styled assistant cashier, and servéd the bank as teller and bookkeeper. During the last two years or more of the bank’s life Paul Keyes was employed as bookkeeper. Prior to the thirteenth day of June, 1904, the plaintiff below, Baker, had been a depositor in said bank and had an account therewith which showed a balance due him of about $100.00. There had been no special arrangement with the bank concerning his- deposits to treat checks as money, or to draw against them before collected, but his custom when making deposits, was to pass his checks endorsed in blank and his money over the counter to the cashier or other person in charge, who would enter the same in plaintiff’s pass book, and then credit plaintiff’s account with the bank on its books, subject to the right of the bank to charge back any check that might be dishonored. The $99.00 in money and the two checks on other banks amounting to $184.00 referred to in the petition were deposited on the thirteenth day of June, 1904, about one-half hour before the bank closed, by handing the same to Dwight Scott, assistant cashier, together with a deposit slip, without any specific instructions, who entered the amount thereof as a credit to plaintiff in his pass book, which' was returned to him. Scott put the $99.00 cash with the money of the bank “and the same became indistinguishably mingled with the general mass of the bank’s funds then on hand, and that may have been thereafter received” on that day. No entry was made of said deposit to plaintiff’s credit on any book of the bank on that day, nor at any time by said bank, or its officers, agents and employes, but after the appointment of the receiver and at his direction on the fifteenth day of June, 1904, the amount of said deposit, cash and checks, $283.00, was entered on the ledger to plaintiff’s credit, but these checks being on other banks, were not collected by the receivers for several days thereafter. When said deposit was made by plaintiff, he had no knowledge of the insolvent condition of the bank but believed it to be solvent, and when he learned of the appointment of a receiver, on the fifteenth day of June, 1904, demanded payment of him of said money and checks or the proceeds thereof aggregating $283.00, which demand was refused.

On the eleventh day of June preceding, which was Saturday, about midnight, said Barber and Patterson clandestinely absconded, but the same was neither known or suspected by any one connected with the bank until after the close of business on the thirteenth day of June, 1904, when its total funds, including the amount deposited by plaintiff, amounted to $3,026.16 which was placed in the safe and afterwards, on the fifteenth of June, taken possession of by the receiver.

Another fact agreed upon, is that “the insolvency of the bank was chiefly, if not wholly, due to said Barber and Patterson, severally, jointly, and in the names of sundry corporations with which they were respectively connected, and in violation of their duties as such officers, becoming indebted to said company on notes and for overdrafts in the aggregate of more than one hundred thousand dollars, notwithstanding, that each of them was at said time insolvent, said indebtednesses were unsecured, and yet unpaid. * * * Said doings of Barber and Patterson were not known,-to, or consented to by said board of directors, but the same and the insolvent condition of said company were by said Barber and Patterson in their personal interest, respectively, concealed from and were unknown to said board of directors.” The amount Barber and Patterson owed the bank was more than one-half its paid up capital stock.

It appears also, that prior to the departure of Barber and Patterson, said Dwight Scott, assistant ■cashier, and Paul Keyes, bookkeeper, had knowledge that said “company was short of funds,” and they were informed by Barber and Patterson, or by one of them, that they were going to Cincinnati to procure funds for the bank, and would return Monday, June 13th, or Monday night, with funds for the bank. But they did not return and the bank never opened for business after, that day.

Another important, fact agreed upon is: “that an examination of the condition of. said bank at any time within thirty days before it was closed would have disclosed its insolvency, but no such examination was made by the board of directors or by any person on their behalf.”

The foregoing are the facts brought into the Tecord, and what judgment do they demand?

Ordinarily the relation between a general depositor and the bank is that of debtor and creditor, and that relation, when allowed to stand, will not authorize or permit such depositor to obtain a preference over- other general creditors in case the bank was insolvent when the deposit was made. Mere insolvency does not furnish a ground for a rescission of the transaction, but in order to prevent the title to the deposit vesting in the bank, fraud must be shown in its reception sufficient to entitle the depositor to repudiate the deposit and reclaim the same. The plaintiff claims the facts make such a case.

It is alleged in the petition and not denied in the answer, and it is also agreed upon as a fact in the case, that for a long time prior to the making of the deposit in question, the bank was “hopelessly and irretrievably insolvent.” These are remarkably strong words, and they characterize the condition of the hank for a period not made definite, hut left to ns as an admonition that hopeless insolvency had existed for a “long time.”

The plaintiffs in error, the receivers, insist that although such had been the real condition of the bank for a long time, it was not known to .the board of directors and officers of the bank, other than Barber, director and vice-president, and Patterson, director and cashier; and that their transactions which involved and wrecked it, were in their own personal interest and were concealed from the board of directors. It is argued from this fact, that their knowledge cannot be imputed to the bank. In other words, they had been and were occupying a position with reference to the business of the bank, adverse to its interests, and while they were agents for the bank for some purposes, and in all things in the line of duty within,the scope of their authority, yet they did not represent it in their fraudulent appropriation of its assets. To determine the soundness of this claim we must not overlook one other fact agreed upon, “that Patterson, during the existence of the bank, as a director and by virtue of his office of cashier, and by the authority of said board of directors, was in control of the property of said bank and ivas the active manager. of its business.”

It would seem that the board of directors, in whom the law vests the general control and management of the affairs of the corporation, attempted to shift all, or at least a large portion of its authority and responsibility to the shoulders of the cashier. This is entirely consistent with the other fact, that there had been no meeting of the board within the year next preceding the failure of the bank. The president was old and infirm and resided some distance from the city, the location of the bank. When he was elected it was not expected by the board that he would take any active part in conducting the affairs of the bank. Charles Bell, the treasurer, was engaged in business in another county and William Moss, the secretary, was in business of his own in Cambridge, but neither of them took any part in the management of the business of the bank. These men were also directors, as were Barber, Patterson and Orme. How was the board of directors to receive any information under such circumstances? How could it know what was going on inside of the institution except through those put and left in active charge?

If the wrongs committed by the cashier and vice-president had been confined to a single transaction, or to a few transactions within a brief period, there would be some room for the proposition made, that the bank should not be charged with their knowledge of its insolvent condition. But such was not the case. It had been hopelessly and irretrievably insolvent for “a long time” prior to the deposit involved, and the fraudulent acts of the cashier and vice-president consisted of many acts committed not at once, but during many months, perhaps years, for it is said in the agreed statement, that the “insolvency was chiefly, if not wholly, due to said Barber and Patterson severally, jointly and in the names of sundry corporations with which they were respectively connected, and in violation of their duty as such officers, becoming indebted to said company on notes and for overdrafts in the aggregate of more than one hundred thousand dollars. ’ ’ They were insolvent all this time, and the bank had no security for their indebtedness. There was a protracted looting, and the cash in the. vaults shrank gradually from time to time as the fraudulent acts proceeded until the final collapse.

In cases resting on facts far more favorable to the bank, let us listen to the voice of the authorities.

In Smith v. Anderson, 10 N. Y. Supplement, 278, the plaintiff delivered monies to the president of a bank to be deposited therein and the latter without plaintiff’s knowledge or consent, deposited .them in his own name as her attorney, and afterwards unlawfully appropriated a large part thereof to his own use. It was héld that the bank is liable, since it is chárgeable with the knowledge possessed by its president. On page 279 the court say “if Warner (the president) had converted the money without the bank having received it, or without credit being given on its books, it would not be liable. But when its president receives funds which go into the bank, it is chargeable with all the knowledge possessed by him; otherwise those dealing with banks would be without remedy in case of fraud or misappropriation on the part of its president.” And on page 280, it is said: “the bank created its president, and if, through his fraud) it or a third person must suffer, the maxim protects the customer.”

In Bank v. Kellogg et al., 4 S. Da., 312, the cashier took a note payable to himself, as an individual, and transferred it to the bank of which he was cashier. It was held, that knowledge of the •cashier as to defenses and equities existing against the note, was the knowledge of the bank.

In Le Duc, Receiver, v. Moore et al., 111 N. C., 516, J had executed his promissory note to M, the president of a bank, who before its maturity and for value, but for Ms own benefit, endorsed tbe note over to tbe bank. Tbe president and cashier composed tbe discount committee of tbe bank, and tbe president participated in discounting tbe note. It was held, tbat tbe bank took tbe note subject to all tbe equities by wbicb tbe president as an individual was bound, tbe presumption being tbat bis knowledge was tbe knowledge of tbe bank.

Of like import is Cattle Co. v. Foster, 41 Pac. Rep., 522. In Hardy et al. v. Bank, 56 Kan., 493, it appeared tbat tbe president and cashier respectively of a bank, were part owners of a note sued on by tbe bank, wbicb note was taken in tbe name of S by tbe procurement of tbe president and cashier, who bad full knowledge of tbe transaction in wbicb it was given. It was beld, tbat tbe endorsement of tbe note by S without recourse did not operate to transfer it to tbe bank free from defenses existing between tbe original parties to it.

The same principle is maintained in Bank v. Phillips, 64 Am. Dec., 254. In Bank of New Milford v. The Town of New Milford, 36 Conn., 93, it appears tbat C, whO'Was at tbe same time treasurer of a town and cashier of a bank, took $3,000 from tbe funds of tbe bank for bis own use and executed a note to tbe bank for tbe amount as treasurer of tbe town, the note being entered upon tbe books of tbe bank in tbe same manner with other notes taken for money loaned. ' C was tbe principal financial manager of tbe bank and bad been allowed and accustomed to make loans at Ms discretion, without consulting tbe directors. He bad already, without their knowledge, embezzled tbe funds of tbe bank to a large amount. Tbe town had been in tbe habit of borrowing money at this hank and elsewhere, and upon notes executed by the town treasurer, and these loans had been reported to the town in the annual reports of the treasurer which reports had been accepted by the town. Occasional votes of the town for thirty years had authorized the treasurers to borrow money for the use of the town. In the suit by the bank against the town on the note mentioned, it was held, (1) that the votes of the town and reports of the town treasurers, were admissible in evidence upon the question of the authority Of C to borrow money for the town. (2) That C was engaged in an extensive fraud upon the bank and in view of all the facts, it was fairly presumable that-he made the note in the form in which he did, as a false representation and cover by-which to perpetrate a fraud on the bank, and with no intention to bind the town. (3) But that if he intended to bind the town, his own fraud as treasurer was known to him as agent of the bank, and was therefore the knowledge of the bank and it could not recover.

In Loring et al. v. Brodie, 134 Mass., 453, it is held, that if a cashier of a bank receives securities on a loan from the bank to a trustee, with knowledge that the securities belong to a trust, the bank is affected with the knowledge of its cashier, and is put upon inquiry as to whether the trustee has authority to pledge the securities. In Bank v. Blake, 60 Fed. Rep., 78, it appeared that the defendant had executed his promissory note to C and delivered it upon condition that it was. to be surrendered to him upon C’s failure to perform stipulated acts. C immediately transferred the note by endorsement to a bank of which he was. president and general manager. The circuit court of the United States held, that as C himself was the sole representative of the bank, in the transfer of the note to it, the bank is chargeable with his knowledge of the condition to which it was subject, and could not sue on. the note until that condition is performed.

In Bank v. Loyd et al., 89 Mo. Appeals, 262, it was held that where a bank cashier makes purchase of a certificate of stock as such cashier, he acts within the scope of his authority and the knowledge that he has of the condition of the stock must be imputed to the bank.

In Baldwin et al. v. Davis et al., 91 N. W. Rep. (Iowa), 778, it is held that where an agent of a bank has notice that notes and a mortgage securing them were without consideration and fraudulent, the bank cannot hold the notes as collateral, it being charged with the knowledge of its agent.

See also Bank v. Smith, 110 Tenn., 337, where the same doctrine is approved.

Goshorn v. Peoples National Bank, 69 N. E. Rep., 185 (Ind.), is a case where a depositor, desiring to withdraw his bank deposit and commit it to a trust company, received from the bank cashier a* suggestion as to a particular trust company, and drawing a check delivered it to the cashier, with instructions to deposit the amount named with the company suggested. Instead of doing so, the cashier substituted the depositor’s money for paid checks of his own on the bank which he was carrying as cash. It was held, that even on the theory that the cashier was the depositor’s agent for the transmission of the fund, the bank was liable for its misappropriation, the transaction amounting to a payment of the depositor’s cheek merely with the evidences of the cashier’s indebtedness, and the bank being cognizant of the fraud through its cashier.

See also Cutting v. Marlor, 78 N. Y., 454, for similar holding. In that case one Bonnor was the president of the bank involved in one. of his fraudulent transactions in converting to his use certain securities delivered to the bank as collateral for a loan. The trustees of the bank left the entire management of it to Bonnor and another who was styled manager. The trustees took the statement of Bonnor without question or examination. The bank was chargeable with knowledge of Bonnor’s fraud.. On page 460, the court say: “A corporation is represented by its trustees and managers; their acts are its acts, and their neglect its neglect. The employment of agents of good character does not discharge their whole duty. It is misconduct not. to do this. The bank might not be liable■ for a. single act of fraud or ,crime on the part of an officer \ or agent, while it would be for a continuous course of fraudulent practice, especially those so openly committed and easily detected as these are' shown to have been. Here were no supervision, no meetings, no examination, no inquiry * *

See also Bank v. Bank, 10 Gray, 532; Savings Institution v. Bostwick, 19 Hun, 354; Holden v. Bank, 72 N. Y., 286.

In Martin v. Webb, 110 U. S., 7-15, it was held that knowledge of the president of a bank is its knowledge. In Cragie v. Hadley, 99 N. Y., 131, the court held that the acceptance of a deposit by a bank irretrievably insolvent, constituted such a fraud as entitled a depositor to reclaim his drafts or their proceeds.

Indeed there are peculiar and urgent reasons for a more stringent enforcement of the rule against corporations than against individual principals, from the fact that the only way of communicating actual notice to a corporation is through its agents. Bank v. New York, etc., Canal Co., 4 Paige’s Ch. 127: “A corporation cannot see or know anything except by the eyes and intelligence of its officers. ’ ’

There are many other cases in the same channel, but we have cited enough for the present purpose. It is quite true that cases can be found that seem .to hold to a doctrine contrary to the foregoing, but they rest on a different character of facts, and usually treat of a single transaction wherein the fraudulent act of the officer or agent of the bank did not bind it. But as before stated, the conduct and acts of Barber and Patterson were of a series, running doubtless through many months; obtaining bank funds on their own worthless notes and on overdrafts from time to time so that the bank became “hopelessly and irretrievably insolvent” and this condition existed for a long time prior to the- making of the deposit in question.

What then, is the application of the law as we understand it'to the facts of this case? The officers named, of course knew the bank was insolvent, and under the circumstances surrounding them, their knowledge was the knowledge of the bank. The board of directors created the cashier and vested in him the broad powers described in the above agreed statement. Not only so, but they seem to have abandoned all supervision and -control during the last year of its active existence — abandoned it to whatever fate might overtake it in charge of such officers. The bank did not become insolvent after Barber and Patterson absconded on the night of June 11th, for it had been insolvent a long time prior thereto, and hopelessly so. Through them the bank knew it. The board of directors is -chargeable with such knowledge of its condition as would have been ascertained by the exercise of ordinary care.

. Nevertheless its doors were again opened,on Monday, June 13th, which fact was an invitation to make a deposit when none should have been received.'. It was a palpable fraud on any innocent depositor to receive his money on that day — such fraud as should vitiate the transaction as a deposit and prevent title from vesting in the bank. In our judgment, no title did pass to the bank in this instance. •

, . It seems useless to say that Barber and Patterson having absconded on the previous; Saturday night, did not represent the bank on the thirteenth. ■. True, they left it, but they left it as a mere shell. Scott who acted as assistant cashier and bookkeeper-,' and Keyes as bookkeeper were in charge on the .thirteenth. They knew the bank was short of funds so-that with what was taken in on that day, there was; but little over $3,000 in its coffers. They were the only persons on duty there, and they knew that if the departing officers did not return with ample,-means, by Monday night, the bank could not open again.. They did not return and as soon as the depositor learned that the bank was closed, he demanded of the receivers, the return of his deposit. -We think he had a right of rescission' and that the receivers held his deposit impressed with a trust to return it. :

However, it is urged that the money deposited was indistinguishably mingled with the other funds of thé bank, and that before a trust can attach, the depositor must be able to trace and identify his particular deposit. As a general rule this is true, but not always so. In this, case there is not much difficulty in applying the rule, for it is agreed, that, although the cash deposited was placed and commingled with other cash on hand the evening of the deposit, it was not credited to Barber on the books of the bank until after the appointment of the receiver, and it was done under his direction. As to the checks on other banks which were part of the deposit, they were not collected by the bank but by the receiver and several days after the appointment. "While there were no “ear marks” on the money, the exact amount so deposited was known, and we regard the identification sufficient under the rules adopted by' the courts to govern in such circumstances. In Richardson v. New Orleans Debenture Co., 102 Fed. Rep., 780, the circuit court of appeals, held: (1) “that when a bank receives a deposit after hopelessly insolvent, the fraud avoids the implied contract between the parties by which the relation of debtor and creditor would ordinarily arise, and prevents the money deposited from becoming the property of the bank, and a trust is the equitable result. ’ ’ (2) “Where a bank receives a deposit on the day of its suspension when it is known by its officers to be insolvent, and mingles the money with its own funds which, to an amount larger than the deposit pass into the hands of a receiver, it is not essential to the right of the depositor to recover his deposit from the receiver, that he should be able to trace the identical money deposited into the receiver’s hands, but it is sufficient that the amount which went into his hands was increased by the amount of the deposit.”

In Massey et al. v. Fisher, 62 Fed. Rep., 958, the circuit court for eastern district of Pennsylvania laid down the following rule: “The fact that the money was not marked and by a commingling with other funds of the bank, lost its identity, does not affect the right to recover in full, if it can be traced to the vaults of the bank, and it appears that a sum equivalent to it remained continuously therein until removed by the receiver.” That court, in the opinion cites many supporting cases.

In Wasson v. Hawkins, 59 Fed. Rep., 233, the circuit court held that “where money and checks are unsuspectingly deposited in a bank, which is known by its managing officer to be hopelessly insolvent, a few minutes before the closing hour on the last day on which it does business, and the checks are subsequently collected by the bank’s clerk, the whole of the deposit is charged with a trust, and an equal amount may be recovered from the receiver, who retains the specific money among the general mass of the bank’s funds.”

In Beal, Receiver, v. City of Somerville, 50. Fed. Rep., 647, the circuit court of appeals, first circuit, laid down the following proposition: “A city treasurer deposited checks in a bank, endorsed by him ‘for deposit,’ and the checks were immediately credited to him on his bank book, though not in pursuance of any agreement to that effect. He had been a depositor in the bank for some years, but had no agreement that his checks should be treated as cash, or that he should draw against them before collection. The bank became insolvent before the cheeks were collected, and their proceeds passed into the. hands of.'a receiver. ' Held, that no title passed’to the bank , except as a bailee, and that the depositor was entitled to the proceeds. ”

Of like- import is City of Philadelphia v. Aldrich, 98 Fed. Rep., 487. The foregoing decisions on this subject are quite within the case of St. Louis, etc., Railway Co. v. Johnston, 133 U. S., 566, where it is decided, that “when a bank has become hopelessly insolvent, and its president knows it is so, it is a fraud to réceive deposits of checks from innocent depositors, ignorant of its condition, and he can reclaim them or their proceeds.” Further discussion and citation of authorities seem to be unnecessary. We believe there is no error in the judgment of the lower court and it is affirmed. But in rendering this judgment, we are not laying down general rules to be applied indiscriminately, but wish to limit our decisión and its scope to the facts of this case, on which alone it is authority.

Judgment affirmed.

Shauck, C. J., Crew, Summers and Spear, JJ., Goncur.

Davis, J., dissents.


author: Shauck, C. J.

text:
    The Louisville & Nashville Railroad Company v. The Globe Soap Company.

      Petition in error filed in the supreme .court — For the reversal 6† the circuit court — Voluntarily dismissed without prejudice— Not a tar to another petition in error, when.

    A petition in error filed in the supreme court for the reversal of a judgment of the circuit court, and by leave of the court voluntarily dismissed without prejudice because of the plaintiff’s failure to file within sixty days a printed copy of the record to he reviewed, is not a bar to the prosecution of another petition in error for the reversal of the same judgment.
    (No. 10100
    Decided June 12, 1906.)
    Error to the Circuit Court of Hamilton county.
    On motion to dismiss petition in error.
    On January 10, 1906, the circuit court rendered a final judgment against the plaintiff in error and in favor of the defendant in error. On February- 21st, the plaintiff in error filed a petition in error in this court for the reversal of said judgment. On April 27th, the following entry was made here: “Now. comes the plaintiff in error herein and by leave of the court dismisses its petition in error herein without prejudice. ’ ’ This course was taken by the plaintiff in error because of its failure to file the printed record within sixty days from the filing of the petition in error, four months from the date of the judgment of the circuit court, the time limited for the filing of a petition in error, not having yet expired. On April 30, 1906, the present petition in error was filed and the defendant now moves to dismiss it because of the filing of the former petition in error for the reversal of the same judgment and the action which was taken thereon.

      Mr. Ellis G. Kinkead; Mr. H. Kenneth Rogers and Mr. Challen B. Ellis, for plaintiff in error.

      Messrs. Kittredge é Wilby and Mr. Harry L. Gordon for defendant in error.
   Shauck, C. J.

The motion is supposed to he justified by section 6711, Revised Statutes, which requires the printing of the record which is to be reviewed or the depositing with the clerk of sufficient money to pay for such printing, and provides that if the plaintiff in error “fail for sixty days after filing the petition in error to file such printed record or make such deposit, the petition in error shall be dismissed, unless the court, on good cause shown, extend the time or dispense with such printing.” But by the terms of the section it can have no application to the petition whose dismissal is sought, for since the filing of that petition there has been no failure to file the printed record within the time required. The petition which was not followed by the filing of the printed record within the time limited was dismissed by the voluntary act of the plaintiff in error and by leave of the court. The present petition having been filed within four months of the rendition of the judgment whose reversal is sought, and that having been followed within sixty days by the filing of the printed record as required by the section quoted, the motion must be overruled unless we conclude either that the section affects the limitation on the proceeding in error or that it gives to the filing of the former petition and the action which was taken with respect to it the effect of an adjudication upon the errors assigned in the present petition.

The section contains no language suggestive of an intention to give it either effect. It leaves the limitation of the proceeding in error wholly to section 6723, Revised Statutes, which relates exclusively to that subject, and provides that it shall be commenced “within four months after the rendition of the judgment or the making of the final order complained of.” There is not in either section a provision giving any effect whatever to the filing and voluntary dismissal of a petition in error before the time limited for the commencement of the proceeding. The question is, therefore, to be determined by the rule with which repeated, decisions have made the bar of the state familiar, viz., that proceedings in error, in the absence of provisions especially relating to them, are governed analogically by the rules and principles applicable to original actions. The question presented by the motion before us could not have been determined by the entry formerly made, for the present petition in error had not yet been filed. The only question which could then have been raised upon the record was whether the former petition should have been dismissed. But really nothing was decided. The record shows that the dismissal of the former petition was without prejudice, and as the voluntary act of the party it was necessarily so. If a motion to dismiss the former petition had been made and considered the. court might then have exercised the discretion clearly conferred by the section quoted to extend the time for filing the printed record, or it might have dispensed with it entirely. None of the elements of a former adjudication appears.

Railroad Company v. Belt, 36 Ohio St., 93, is cited as an authority in support of the motion. The case is so scantily reported that the grounds of the decision do not certainly appear. It does, however, appear that in that case a motion to dismiss thé former petition had been made and a counter motion had been made by the defendant in error for further time in which to file the printed record. These motions were contested. The latter motion was overruled and the former sustained, and that action was held to require the dismissal of a petition subsequently filed for the reversal of the same judgment. Whether the refusal to extend the time for filing the printed record was because the proceeding was found to be without merit does not appear in the report. The case suggests no reason why the present petition in error should be dismissed, and We need not consider whether it justifies the action there taken.

Motion overruled.

Price, Summers and Davis, JJ., concur.