^ Si ^^WE•UNIVER5/>J^ vj^iUiAMbfcUj;* ^0F-CA1IF(M5^ JOURNAL ENTRIES UNDER THE CODES OF CIVIL, PROBATE, AND CRIMINAL PROCEDURE OF THE STATE OF OHIO ALSO UNDER The several statutes regulating tue more COMMON proceedings, WITH NOTES OF THE DECISIONS OF THE COURTS OF OHIO, AND OTHER STATES TOUCHING JOURNAL ENTRIIJS AND AN APPENDIX OF BILLS OF EXCEPTIONS BY EDWARD N. WILD OF THE CINCINNATI BAH THIRD EDTTIOS, liFVISlKn. CINCINNATI ROBERT CLARKE & CO 1891 PREFACE. The importance of the subject of journal entries will not be questioned. A considerable departure has been made in the modern practice, and under the codes of procedure, from the forms and style used in journal entries under the com- mon law system. Our codes have done away with much of the elaborate practice and complicated form of the common law, and introduced in their stead the simplicity of short forms and ordinary language, but have in no way lessenecl the necessity for precision and exactness. And while any ordinary and precise language will be sufficient to express an order or judgment of the court, a system of forms has been gradually elaborated from the practice under the codes, and is useful in creating uniformity and in saving the time necessary to a new investigation upon the making of every entry ; and it is with the view of saving this time and labor to attorneys and clerks of courts, rather than with the expectation of intro- ducing to them anything new, that this work is undertaken. To make the work complete, I have endeavored to present every entry, or at least a form for every entry, authorized by the codes and statutes referred to. Of course, every specific entry that may sometimes be required can not be given, but it is believed that nearly all may be made by slightly modifying those given. (Hi) IV PREFACE. In general, only such notes of decisions have been ap- pended as touch journal entries, and not those on practice at large. I have only gone out of the State for such decisions where none applicable are found here, and when those of another State, generally 'New York or Kansas, are applicable in a particular manner. It has been my particular endeavor to make the forms practical, and a great number of them have been obtained by taking those actually drawn by attorneys of standing at the Ohio bar. E. K WILD. Cincinnati, Ohio, July 1, 1876. PREFACE TO REVISED EDITIOIS". The revised statutes of 1880 made so many changes in the codes of procedure, by alterations, additions, and amend- ments, that a new edition of Journal Entries became neces- sary. The work has been very much enlarged, containing now about one thousand entries, embracing many under statutes not introduced into the former work. The same order has been followed as under the former codes. In addition to the former entries, I have added entries in the Probate Courts, making the work much more complete. I desire to acknowledge the courtesy of Hon. Jacob Bur- net, lately Judge of the Court of Common Pleas of Hamil- ton county, in giving me the benefit of his legal ability on many points of practice under the revised statutes. Also, of Florien Giauque, Esq., editor of "Raff's Guide," and author of " Manual for Guardians," etc. ; and of Daniel Herider, the very efficient Chief Deputy Clerk of the Pro- bate Court of Hamilton county, in rendering me valuable assistance in preparing entries for the Probate Court. E. N. Wild. Cincinnati, February 28, 1883. CONTENTS. (Ill the Titles, Chapters, Articles, anil Subdivisions, this work follows the Revised Statutes.] Preliminary Forms ^ In the District Court 1 In the Court of Common Pleas 5 TITLE I. Procedure in the Courts of Common Pleas and Superior CoLTiTS, and in District Courts on appeal. Division I. General and Preujunary Provisions 12 Chap. 2. Specific duties of certain officers 12 Division II. Commencement of Action.? — Jurisdiction — Issce. Chap. 1. Form of action 13 3. Parties to action 14 4. Joinder of actions 22 5. Where action to be brought 24 6. Jurisdiction by Summons, Publication, or Appearance.. 25 Sub. 1. Actual Service 25 2. Constructive Service 25 7. Pleadings 27 Sub. 2. Petition 27 3. Demurrer 27 4. Answer and Cross-petition 30 6. General Eules of Pleading 30 7. Mistakes and Amendments 34 8. Motions 37 Division III. Trial 38 Chap. 1. Provisions Preliminary Sub. 3. Tender and offer to confess Judgment 38 4. Revivor of actions 43 2. Conduct of the Trial 47 Sub. 1. Summoning and impaneling the jurv 47 (vii.) Vlll CONTEXTS. Sub. 2. Trial bj-^ jury and Verdict 5& 3. Trial by the Court 62 4. Trial by Referees 64 5. Trial by Master Commissioner 70 6. Trial on Appeal 75 Chap. 3. Evidence 83 Sub. 2. Means of securing attendance 83 3. Modes of taking testimony 86 4. Admission and inspection of documents 87 5. Variance 89 4. Exceptions 91 5. New Trial 92 DlVlSIOX IV. JUDGMEXT 94 Chap. 1. Judgment in general 95 2. Judgment upon failure to answer 122 3. Judgment by confession 130 4. Manner of giving and entering judgment 133 5. Judgment for costs and its enforcement 141 6. New trial and other relief after judgment 143 7. Eevivor of, and new parties to judgment 146 Division V. Exforce.mext of Judgment 151 Chap. 1. Execution 151 Sub. 2. Execution against property 151 3. Exemption from execution 158 5. Execution against the person 158 6. Privilege from arrest 159 2. Proceedings in aid of execution 159 Sub. 1. By Civil action 159 3. By examination of debtor 162 4. By attachment 174 Division VI. Provisional Remedies 175 Chap. 1. Arrest and Bail 175 2. Attachment 17/ Sub. 3. Execution and return thereof 177 4. Disposition of attached ^jroperty 178 5. Proceedings upon attachment 179 6. General provisions 185 3. Attachment before debt due ••• 187 CONTENTS. IX Chap. 4. Injunction 188 5. Receivership and other provisional remedies J 92 Division VII. Special Proceedings 197 Chap. 1. Amercement 197 2. Arbitration 200 3. Bastardy 202 4. Contempts of Court 200 5. Dissolution of Corporations 210 6. Divorce and Alimony 214 7. Dower 222 8. Habeas Corpus 231 9. Partition 233 10. Real actions 247 Sub. 1. To quiet title and recover possession 247 2. Occupying claimant 254 3. To complete real contracts 258 ' 4. To sell entailed and other estates 260 11. Replevin 26a 12. Sureties — Rights and Remedies of 281 13. Taxes and assessments — Relief against illegal 2S2 14. To change name 283 15. To contest will 285 16. To cure certain defects, errors, and omissions 286 17. To Perpetuate Testimony 287 19. Wreckmasters 288- TITLE 11. Pkocedure in Probate Court. Chap. 1. Wills 290 2. Executors and Administrators 303 3. Guardians and Trustees 349 4. Insolvent Debtors 3gg 7. General Provisions , 3g3 8. Appropriation of Property 335 Miscellaneous — Adoption of Infants 392 Insane Person 393 Justices of the Peace^ 393 Partnerships 394 CONTENTS. TITLE IV. Error, Mandamus, and Quo Warranto. Chap. 1. Jurisdiction and procedure in error 397 2. Mandamus 406 3. Quo Warranto 410 Miscellaneous Proceedings. 1. Actions, pending proceedings in bankruptcy 417 2. Assessment for street Improvement 420 3. Chattel Mortgage 423 4. Conveyance of Real Estate 423 5. Foreign Judgment 426 6. Leasehold estate 426 7. Married Women 428 8. Mechanics' Lien.. 434 9. Naturalization 435 10. Removal and Reservation of Cases 437 11. Specific Performance 438 12. Stockholders' Liability 439 13. Vendor's Lien 440 14. Vesting Property in Trustees 441 15. Wills 442 16. Forms of Oaths 444 Penal. TITLE II. Criminal PROCEDURt:. Chap. 1. Proceedings to prevent crime 447 2. Arrest, Examination, Bail, and Commitment 451 3. The Grand Jury and its Proceedings 457 4. Indictment and Proceedings thereon 462 5. Proceedings between indictment and trial 463 6. Trial, and proceedings incident thereto 470 7. Verdict and Judgment and Proceedings thereon 47") 8. New trials, motionsin arrest and error 484 Oaths 488 CONTENTS. XI In the Supkrior Court of Cincinnati 490 APPENDIX. Bill of Exceptions 493 Mandates.. 50.3 Fractice, Pleadings, and Journal Entries under the Act for the Res- toration OF Lost Records 504a ABBREVIATIONS USED IN THIS WORK. \LA. — Alabama Reports. .^ L. R. — American Law Register. B. R. — Bankrupt Rej^ister. B. MON. — Ben Monroe, Kentucky. BEN. — Benedict's Reports. COW. — Cowen's Reports, New York. C. S. C. R. — Cincinnati Superior Court Reporter. C. L. N. — Chicago Legial News. CAL. — California Supreme Court Reports. D. — Disney's Reports of the Superior Court of Cincinnati. H. — Handy's Reports of the Superior Court of Cincinnati. HOW. PR. — Howard's Practice Reports, New York. KAN. — Kansas Supreme Court Reports. L. G. — Law Gazette. LA. AN. — Louisiana Annual Reports. ME. — Maine Supreme Court Reports. PITTS. L. J.— Pittsburg Legal JonrnaL s. c. — Same Case. S. C. R. — Superior Court Reporter. S. — Sayler's Statutes S and C. — Swan and Critchfield. VES. — Vesey's Reports. W. — Wright's Reports, Ohio. W. L. M. — Western Law Monthly. WEND.— Wendell's Reports, New York. W. L. J. — Western Law Journal. JOURNAL ENTRIES UNDER THE CODE OF CIVIL PROCEDURE OF OHIO, PRELIMINARY FORMS. I. IN THE CIRCUIT COURT. II. IN THE COURT OF COMMON PLEAS. I. IN THE CIRCUIT COURT, I. Opening a regular term. II. Opening a special term. III. Closing a term. IV. Continuing a regular term. V. Daily sessions. I. Opening a regular term. The regular term of the Circuit Court may be opened as follows : The State of Ohio, \ County of , / ^^• This preset)t tern of the Circuit Court, in and for the county of , in the first judicial circuit of the State of Ohio, held in the court-house in the city of , county and ^ PUELIMIXAIIV FUKMS. state aforesaid, was begun on the day of , in the year of our Lord one thousand eight hundred and — — . Present: Hon. a. B., Hon. C. D., Hon. E. F., Judges of the Circuit Court in the First Judicial Circuit of Ohio. Hon. a. B., presiding. G. H., Esq., Sheriff of County, Ohio. C. B., M. D., Coroner of County, Ohio, Attest : W. M. T., Clerk of the Circuit Court of County, Ohio. By F. M., Deputy. II. Opening a special term. The order for a special term authorized by section 450, 82 O. L. 21, should be put upon the journal for preservation; and the record may be as follows, entered upon the journal of the special term at opening : The State of Ohio, "( County of , / ^^'• This special term of tlie Circuit Court, in and for the county of , in the first judicial circuit of the State of Ohio, held in the court-house in the city of , county and state aforesaid, was begun on the (la\" of , in the year of our Lord one thousand eight liundred and , after thirty days previous notice of the same being given in said county, according to law, in pursuance of the following order made by the judges of said circuit, to wit : "It appearing that there has been a failure to hold a pre- scribed term of the Circuit Court in the countv of for this year [or state other sufficient reason'], it is ordered that a special term of said court be held in the said county of , PRELIMINARY FORMS. 6 at the county seat thereof, beginning on the day of , A. D. 18—." Present : Hon. a. B., Hon. C. D., Hon. E. F., Judges of the Circuit Court in the First Judicial Circuit of Ohio. Hon. a. B., presiding. G. H., Esq., Sheriff of County, Ohio. C. B., M. D., Coroner of County, Ohio. Attest : S. W. R., Clerk of the Circuit Court of County, Ohio. By F. M. 8., Deputy. III. Closing a term. The terms of the Circuit Court, whether regular or special, may be closed with the following formula : It is ordered that all causes, motions, and matters now pending in this court, and not otherwise disposed of, be, and the same are, hereby continued to the next term thereof. This present term of this Circuit Court was begun on the day of , A. D. one thousand eight hundred and , and continued from day to day, and from time to time, b}' regular adjournments, until this day of , of the year aforesaid, and is now adjourned without day. [Signed,] , Presiding Judge. IV. Continuing a term. When it is necessary to continue a term of the Circuit Court bt- yond the time allotted to a county, as authorized by section 450, 82 O. L. 21, make an order on the journal of the regular term as fol- lows : The business of this court requiring a continuance of the present term beyond the time allotted to this county, it is 4 PRELIMINARY FORMS. hereby ordered that the term be continued from day to day until further order. V. Daily sessions. Open tlie session of each day, after the first, as follows : Tuesday, January 6, 18 — , o'clock A. M. Court met pursuant to adjournment. Present: Hon. a. B., Hon. C. D., Hon. E. F., Judges of the Circuit Court in the Ju(iici:il Circuit of Ohio. Hon. a. B., presiding. Close each day's minutes thus : Court adjourned to Wednesday, January 7, 1875. [Signed,] Presiding Judge. PRELIMINARY FORMS. II. PRELIMINARY FORMS IX THE COURT OF COM- MON PLEAS. I. ADJOURNED TERMS. II. SPECIAL TERMS. III. FORMS IN REGULAR SEPARATE SESSION. IV. FORMS IN JOINT SESSION. V. FORMS IN CHAMBERS. VI. FORMS IN VACATION. I. ADJOURNED TER]\IS OF THE COjVDION PLEAS COURT. The order for an adjourned term must be entered on the journal of the regular term, and may be as follows : Sec. 460. Order for an adjourned term of court. It being necessary, owing to tlie state of business in this court, it is hereby ordered that an adjourned term thereof be held, for the purpose of completing the business of this reg- ular term, beginning and continuing until . For form of opening entry on the journal of the adjourned term, use, with proper modification, the form given in case of regular term, page 7. For opening and closing of the daily sessions, use forms on page 8. Closing an adjourned term. Enter upon the journal as follows : This adjourned term of the Court of Common Pleas of County, Ohio, was begun on the day of , 18 — , and continued from day to day and from time to time b}^ regular adjournments until this day of , 18 — , and is now adjourned without day. [Signed,] E. F., Judge. 6 JOURNAL ENTRIES. II. SPECIAL TERM OF COMMON PLEAS COURT. Order for a special term — The order for a special term to be made by the judge and adver- tised, may be a general one ; or it may, by section 462, designate what business will be transacted thereat, and whether a jury or juries shall be summoned. The statute does not provide that this order shall be entered on the journal of the court; but, for purposes of preservation, it is better that it should be. The record may be entered on the journal of the special term, as follows : The State of Ohio, \ ^^^ County of , } ' This special term of the Court of Common Pleas, in county, Ohio, held in the court-house in , county and state aforesaid, in pursuance of an order duly issued by the Hon. C. D,, judge of said court, as hereinafter recorded, and by the clerk duly published, was begun on the day of , in the year of our Lord one thousand eight hundred and eighty- two. Present : Hon. C. D., Judge of the Court of Common Pleas of the Judicial District of Ohio. J. H., Esq., Sheriff of CouJity, Ohio. A. R., M. D., Coroner of County, Ohio. The order above referred to is in words as follows, to wit: \_Here copy the order made by the judge.'] Attest : W. M. T., Clerk of the Court of Common Pleas of County, Ohio. By F. M., Deputy. Closing a special term — This special term of the Court of Common Pleas was be- gun on the day of , 18 — , and continued from day PRELIMINARY FORMS. 7 to day, by regular adjournments, until this day of , 18 — , and is now adjourned without day. [Signed,] E. F., Judge. III. FORMS IN REGULAR SEPARATE SESSION OF THE COMMON PLEAS COURT. Opening the term. Closing the term. Daily sessions. Opening the term — Each term may be opened upon the journal as follows : The State of Ohio, ' ^ ss. County of- J Thig separate session of the Court of Common Pleas of the judicial district of the State of Ohio, within and for the county of , for the term of , in the year of our Lord one thousand eight hundred and , held in room No. , in the court-house in the city of , county and state afore- said, was begun on the first Monday, the day of in the year aforesaid. Present : Hon. E. F., Judge of the Court of Common Pleas of the Judicial District of Ohio. J. H., Esq., Sheriff of County, Ohio. A. R.. M.D., Coroner of County, Ohio. Attest : W. M. T., Clerk of the Court of Common Pleas of County, Ohio. By F. M., Deputy. Closing the term — Enter upon the journal the following order : It is ordered that all cases, motions, and matters now pend- 8 JOURNAL ENTRIES. ing this court, not otherwise disposed of, be and the same are hereby continued to the next regular term thereof. This separate session of this Court of Common Pleas, for the term of , a. d. 18 — , was begun on the first Monday, the day of , 18 — , and continued from day to day, by regular adjournments, until this day of , 18 — , and is now adjourned without day. [Signed,] E. F., Judge. Daily sessions — Open the session of each day, after the first, as follows : Tuesday^ Janiiary 6, 1875, o'clock, A. M. Court met pursuant to adjournment. Present : Hon. a. B., Judge. Close each days' minutes thus : Court adjourned to "Wednesday, January 7, 1875. \_Signed by the judge.~\ IV. FORMS m JOINT SESSION OF THE COMMON PLEAS COURT. The forms may be the same as in separate session, except that in opening the term, in courts having a presiding judge, say : Present : Hon. M. F., Presiding Judge of the Court of Com- mon Pleas of the Judicial District of Ohio. Hon. J. C, Judge of the Court of Common Pleas of the Judicial District of Ohio, etc., etc. So also, in opening the days' session, the names and titles of all the judges sitting should be given in the form above. The minutes PRELIMINARY FORMS. 9 of each b:ind made party. 15. (Sec. 5(112.) Ujion di.-ahility of party, action continued against rep- resentative. IG. (Sec. 5012.) Suhstitnting of party in case of transfer of interest. 17. (Sec. 5013.) Order making party of one necessary totcontroversy. 18. (Sec. 501.3.) Dismissal for want of necessary party. 19. (Sec. 5014.) Order making, in actions for the recovery of real or personal property. 20. (Sec. 5()lt).) Third party claiming subject of action. 21. (Sec 5016.) Order barring claim of third party. 22. (Sec. 50I().) Order substituting third jiarty for defendant. 23. (Sec. 50 IS.) Party in interest substituted for sheritT. 24. (Sec. 5074.) New party made on counterclaim. Real fakty in inteuk.^t — Au actiou upon a promissory note which ha.s been tran.sferred by the payee can not be maintained in his name. It must be brought in the name of the "real party in interest." An amendment may l)e made by substituting the name of the real party in interest, and filing an amended petition in his name, ujX)U payment of all costs, except for the issuing and service of process.- As to cliauging the title of a cause upon any change of parties, it was sairemises. [^^Y^e.] See entry No. 216, et seq, CHAPTER V. WHERE ACTIOX TO BE BROUGHT. 29. (Sec. 5032.) Order for change of venue. 30. (Sec. 5033.) Order, in case of corporations. 31. (Sec. 5034.) Staying proceedings against member of general assembly, 29. (Sec. 5032.) Order for change of venue. [Title ?[ On motion of , and the court being satisfied^ that a fair and impartial trial of this cause can not be had in this county, it is ordered* that the place of trial be, and the same hereby is, changed to the county of . It is therefore directed that the clerk of this court trans- mit to the clerk of the Court of Common Pleas of said county of the pleadings and papers in this cause, with a certified copy of this order. 30. .(Sec. 5033.) Order, in case of corporations. [Title?^ On motion of plaintifif [or, defendant], and it appearing to the court that the defendant \or, plaintiff] herein is a corpo- ration having more than fifty stockholders, and the plaintiff \or, defendant] haying made application according to statute for a change of yenue, it is ordered, etc, as from * in last. 31c (Sec. 5034.) Staying proceedings against member of the gen- eral asseriibly. [Title.] On motion of , and it appearing to the court that the IBank of Cleveland r. Ward. 11 Ohio, 128, 130. -5053.] JURISDICTION I5Y SUMMONS, ETC. 25 defendant is a member [or, officer] of the senate [or, house of representatives] of this state, it is therefore ordered that all further proceedings in this action against the said C. D. be stayed during the present session of the said senate [cry house of representatives], and for days thereafter. CHAPTER VI. JURISDICTION BY SUMMONS, PCBLICATION, OR APPEARANCE. SoHDivisiox I. Actual servick. II. COXSTRUCTIVE SERVICE. SUBDIVISION I.— Actual service. When the sherilf rcturii.s :i summons .served, and the defendant wishes to call in question the regularity of such service, he may enter his appearance "for that pur])ose only," and move to set aside or amend the return of the sheriff, or set aside the service. The order of the court may be expressed by a simple granting or overruling of the motion, or by an order setting aside or amending the service and return. 32. Order setting aside service. [Title.] On motion of defendant, and it heing made to appear that the service of summons herein was irregular, the said service and the sheriff's return thereof are hereby set aside and held for naught. SUBDIVISION II. — Constructive, sertice. 33. Order approving publication. Unknown heirs — 34. (Sec. 5053.) Order for publication against. 3.J. Order approving publication. 26 JOURNAL ENTRIES. [SEC. 5053- There is no provision of the code requiring the court to approve of the publication of notice independent of the final action of the court in rendering judgment predicated on the publication; but this is a convenient practice in view of the possible loss of the papers.^ Publi- cation should not be approved unless there has been a strict and literal compliance with the law.'^ 33. Order approcinq i^iihUcaUon. I^ow comes the plaintifi", bj his attorney, and offers proof of publication of the pendency and prayer of the petition herein ; and the court finding said publication and proof in all respects regular and according to law,* do hereby approve the same. Unknoavn heirs — 34. (Sec. 5053.) Order for ijuhllcation aqalnst. ITitle.-] On motion of the said A. B., by his attorney, and it ap- pearing from the aflidavit of the said A. B. that the names and residences of the heirs of the said L. M, are unknown to the said plaintiif, it is ordered that, as to them, service be made by publication for six consecutive weeks, in manner prescribed by statute in case of non-resident defendants. 35. Order approving jyiihlication against unknown heirs. \_Title:\ As in No. 33 to *, and continue:'] — and the former order of this court,^ do hereby approve the same. 1 Vallette v. Ky. Trust Co. Bank, Gen. Term, 1855, 2 H. 1. ^ 2 Lawler v. "Whetts, 1854, 1 H. 39. ' The order of court must be substantially complied with, and a finding by the court "that publication has been made according to law" only, is not con- clusive upon bill of review. Trimble et al. v. Longworth, 13 Ohio St. 431. -5056.] PLEADINGS. 27 CHAPTER VTT. r LEADINGS. Subdivision II. rKxiTiox. III. Demirkku. IV. AXSWEK AND (•KOS.<'-PETITIOy. VI. GeXEKAI- lULE.S. VII. MiSTAKKS AM) AM EXIIMKNT.S. SUBDIVISION II.— Pktitiov. When the petition states several causes of action in one count, with- out separately stating or numbering them, the court may, hy an order, require tliat the pUiintifT sliall separately state and number each of thcin. And if the plaintifi' fail to comply with such order, the court may then dismiss the plaintifTs action.' 36. Order to scparatcb/ state and number causes, etc. [Title.] On motion, and good cause shown, it is ordered that the plaintiff herein amend his petition by separately statins' and numbering the ditierent causes of action therein set forth ; and ten days are allowed therefor. SUBDIVISION III.— DEMrRRER. 37. (Sec. 5065.) Demurrer to j^etition sustained, and several petitions al- lowed. 38. (Sec. 5116.) Demurrer to petition sustained, with leave to amend. 39. Demurrer to petition sustained, and judgment for defendant. 40. (Sec. 5113.) Demurrer to petition overruled, with leave to answer. 41. Demurrer to j^etition overruled, and judgment for plaintiff. 42. (Sec. 5116.) Demurrer to answer sustained, with leave to amend. 43. Demurrer to answer sustained, and judgment for plaintiff. 44. (.Sec. 5113.) Demurrer to answer overruled, with leave to reply. 1 Board of Coram' rs of Jackson Co. v. Hoaglin, 5 Kan. 558. See Code, sec- tion 5061. '28 JOURNAL ENTRIES. [SEC. 5057- An order enlarging the time to answer has been held in New York an extension of time to demur. ^ When plaintiff's petition has been adjudged insufficient upon de- murrer, and no leave to amend been asked for, it is not error to pro- ceed to final judgment against the plaintiff, without granting leave to amend." When a demurrer to the petition is overruled, the plaintiff may pro- ceed to a decree, taking the petition as confessed, or the defendant may be permitted to answer.^ 37 (Sea 5065.) Demurrer to 'petition sustained, ana several pe- titions allowed. [Title.] This cause being heard on the demurrer to the petition, the court, on consideration, finds the same well taken in this, that in said petition there is misjoinder of several causes of action, and does therefore sustain the said demurrer. And on motion of the plaintiif, he is allowed [upon pay- ment of the costs herein to the present time],^ to file within days an amended petition in this case, and also to file other several petitions, upon each of which a case shall be docketed and proceeded in without further service. Said amended petition, and other several petitions, each, to con- tain such of said original causes of action as may be properly joined in one action. [Or, the court may order what cause6 may he set forth in each j)etitioyi.~\ 38. (Sec. 5116.) Demurrer to 'petition sustained, luith leave to amend.^ [TitleP^ This cause being heard on the demurrer to the petition, the court, on consideration, sustains the same; and the plaintiff is allowed to amend his petition within days. 1 Broadhead v. Broadhead, 4 How. 308. 2 Devoss V. Gray, 22 Ohio St. 159. 3 Baldwin v. Creed, Wright, 729; sec. 5113. * Discretionary with the court. ^ An amendment can not be made by mutilating or altering the files. Hill V. Superintendent, etc., 10 Ohio St. 2til. A new pleading or amendment of pleading mn^t be filed. -5065.] PLEADINGS. 29 39. Demurrer to jiclilioii sustained, and juJfj merit for defendant. [Title.'] This cause being heard on the demurrer to the petition, the court, on conBideration thereof, sustain the same. And thereupon, the phaintiff failins; [or, not asking] to plead furtlier, it is considered by the court that the defendant go hence without day, and recover from the phaintitf his costs hci-ein expen(U!d.' 40. (Sec. 5113.'* Demurrer to petition orerruled, with leace to avsvur. [Title.] This cause being heard on the demurrer to tlie petition, the court, on consideration, overrules the same ; and, on mo- tion, the defendant is allowed to answer within days. 41. Demurrer to petition ocerrul^ucli has been done, in case of a petition, and the defect supplied, a new service must be made.^ 47. (Sec. 5084.) Substituting j^^^^^^ings. [Title] It appearing' that the pleadings [or any of fhcm^ in this case have been lost, or are withheld from the files of the court, on motion, it is ordered that the be allowed to substitute copies thereof; and that the same be in all respects received in.stead of such original pleadings.* 48. (Sec. 5087.) Order to strike out redundant matter, etc. [Title.-] This cause coming on to be. heard upon the motion to strike out from the petition certain redundant [or, irrevelant] matter, the court, on consideration, grant the same in part, and order that all the words contained in said petition from, and including, the Avord "And " in the third line of the second page to, and including the word " defendant," in the fiftli line of the third page, be stricken out therefrom ; and as to 1 Broadhead r. Broadhead, 4 Howard, 308. 2 Hill V. Superintendent of Koad District, etc., 10 Ohio St. 261. 3 Stevens v. "White, Com. PI. Gallia, 1 W. L. M. 394. * See Hollister et al v. The Judges, etc., 8 Ohio St. 201. For entry and pro- ceedings under this section when pleadings and papers have been destroyed by fire or civil commotion, see appendix, p. 504d. 32 JOURNAL ENTRIES. [SEC. 5088- the matter contained in the second paragraph, the motion is overruled. 49. (Sec. 5088.) Order to make definite and certain. ITille:] This cause being heard on the motion to require the plaint- iff to make his petition more definite and certain, the court, on consideration, grant said motion, and allow ten days for making said amendment. 50. (Sec. 5089.) Withdratoing counterclaim and making sep- arate action. \_Title.'\ l^ow comes the defendant herein, and, by leave of court, withdraws his counterclaim [or^ set-off] set up in his answer. And, on motion, the said defendant is allowed forthwith to file his petition, and docket in this court a separate action on the subject-matter of the said counterclaim \or, set-off], and proceed in the same without service of process ; all sub- sequent pleadings to be filed, and proceedings to be had, as in other like cases in this court after process served. 51. (Sec. 5098.) Time for answer extended. [Title?^ On motion, time for answering herein is extended ten days. 52. Pleading filed by leave. ITitle.] E"ow comes the defendant, and, by leave of court, files his answer herein. 53. Pleading received. [Title:] The answer heretofore filed herein is now received by eourt. --51 01.] PLEADINGS. 33 5i. (ISec. 5101.) Nonsuit ordered unless interrogatories an- swered. [Title.] Oil motion of the defendant, and it appearing to the court tluit the plaintiff has refused [or, neglected] to answer the interrogatories annexed to the answer herein, within the time i-('(mired hy law, it is now ordered that unless answer thereto 1)C! tiled in this court within days, that tlien this action stand dismissed at tlio cost of the plaintiff. 55. (Sec. 5101.) JiKh/nu /it ordered unless interrogatories an- swered. [Title.] On motion of the plaintiff', and it appearing to the court that the defendant has refused [or, neglected] to answer the inter- rogatories annexed to the petition herein, within the time re- quired l)y law, it is now ordered that unless answer thereto he filed in this court within days, this case stand as in case of failure to answer, and plaintiff" he allowed judgment u})Oii his claim as hy default. 56. (Sec. 5101.) Judgment as bg default entered, at expiration of time allowed, etc. [Title.] And now the defendant herein being still in default for an- swer to the interrogatories annexed to the petition, although the time allowed therefor by the court lias expired, the court find upon the petition and evidence, and the de- fault of the defendant, that said defendant is indebted to plaintiff in the sum of $ . It is therefore considered by the court that the plaintiff re- cover from the defendant, C. T>., the said sum of $ , and his costs herein expended. For forms of proct;eding to enforce answer to interrogatories by attachment, see Contempts of Court. 3 34 JOURNAL ENTRIES. [SEC. 5113- 57. Amcndinrj dcfedioe certificate.'^ [rule.] On motion of the plaintiff, and it appearing that the veri- fication of the petition lierein is defective, only in the official certificate of the notary taking the same, it is herehy ordered that the same may he amended; which being done, no new summons on account of said amendment need be issued. SUBDIVISION VII.— Mistakes and Amendments. Amendment of pleadings and process — 58. (Sec. 5113.) Demurrer overruled, with leave to plead. 59. (Sec. 5114.) Order adding name to process. 60. (Sec. 5114.) Order striking name from pleadings. 61. (Sec. 5114.) Order correcting name of party. 62. (Sec. 5114.) Leave to amend formal error. 63. (Sec. 5116.) Demurrer sustained, with leave to amend. 64. (Sec. 5118.) Order substituting real for fictitious name. Supplemental pleadings — 65. (Sec. 5119.) Leave to file. Consolidation of actions — 66. (Sec. 5120.) Order, in the case continued. 67. (Sec. 5120.) Order, in the case discontinued. 68. Order that several suits abide the result of one. Amendment of pleadings and process — When an amendment is ordered to be made to a pleading by add- ing, or striking ont, an allegation, the practice of changing, interlin- ing, or mutilating the original paper is not favored.^ ^ Either a new pleading should be filed, or a statement of the amendment made and filed, designating by reference where the new matter is to be added or stricken out, or the journal entry making the amendment may make such designation. But if alteration of the original paper is made with the permission of the court, and no prejudice results to the adverse party, the final judgment will not be reversed therefor.^ 1 Where the official certificate of a verification to a petition is defective, the defect may be cured by amendment. Stevens v. White, Com. PI. Gallia, 1 W. L. M. 394. 'Hill V. Supt., etc., 10 Ohio St. 261. » Schneider v. Hoosier, 22 Ohio St. 98. -5114.] PLEADINGS. 35 Tlie name of any party may be stricken from a pleading and another substituted in all future proceedings, without being objectionable as an amendment that changes substantially the original claim, or as con- flicting with section 110 (see 5058 Rev. Stat.) of the code.^ When an order requires a party to amend, and directs him to pay costs, payment of the costs is not a condition precedent to the amend- ment unless so expressed.^ A summons may be amended, but without an appearance the amended summons must l)c served on the defendant.^ 58. (Sec. 5113.) Demurrer overruled^ \oith leave to plead. ITitle.] See entries Nos. 40 and 44. 59. (Sec. 5114.) Order adding name to j^rocess. [Title.] On motion, and it appearing that in the order of injunction herein issued the name of G. 11., one of the defendants, was inadvertently omitted, it is hereby ordered that said process be so amended as to include the name of the said G. H., and that in all things he be subject to the same order and process as the other parties therein named. 60. (Sec. 5114.). Order striking name from j^lcadings. [Title.] On motion, and it appearing that in the petition G. H. is named as one of the parties plaintiff, and that the same is an inadvertence, the said G. H. having no interest in the said case, it is ordered that the name of the said G. II. be, and hereby is, stricken oat of said petition, and all subsequent pleadings and process. 61. (Sec. 5114.) Order correcting name of j^afty. ['J'itlc] On motion, and it appearing that the defendant, Johnson L., has been sued in this action by the name of John L., through ^Ansonia Kubber Co. v. Wolf, 1 Handy, 236. ^Sturtevant v. Fairman, 4 Sandf. 674. 3 Williams v. Hamlin, 1 Handy, 95. See also 1 Handy, 574. 36 JOURNAL ENTRIES. [SEC. 5114- inadvertence, and that the said defendant has been personally served with summons, it is ordered that said mistake be cor- rected, and that this entry operate as an amendment to the* petition and summons; and that the true name of the de- fendant be used in all further proceedings herein. 62. (Sec. 5114.) Leave to amend formal error. {Title.] On motion, it is ordered that the plaintiff have leave to amend his petition on file in this action by inserting \or, can- celing the words [designate the error] after tlie word on the page of said petition ; and this entry shall be con- sidered as effecting said amendment. 63. (Sec. 5116.) Demurrer sustained, with leave to amend. [Title.] See entries Nos. 38 and 42. 64. (Sec. 5118.) Order substituting real for fictitious name. [Title.] It appearing to the court that summons in this action has been served personally upon the defendant under the name of J. K., and that, since the issuing thereof, the true name, of the said defendant is discovered to be J. H., on motion, it is ordered that the petition herein be, and tbe same hereby is, amended by substituting the name of J. H. in the place of J. K. Supplemental pleadings — 65. (Sec. 5119.) Leave to file. [Title.] On motion [and notice having been given to the adverse- party], the herein now, by leave of court, files a supple- mental in this case. Consolidation of actions — I The practice is for defendant to file motions with the clerk for consol- idation, and if the plaintiff fails to resist or show good cause to the con- trary, the defendant is entitled on call of the motion dociiet to his or ■5120.] MOTIONS. . 37 der. A separate motion and journal entry should be made in each case, that tlie record of each case may bo complete.^ GO. (Sec. 5120.) Ordi'v In the case continued. [Title.'] On motion of the defendant, and for good cause shown, it is ordered that this case and case numbered , in this court [between the same parties], be, and they are hereljy consolidated; and tliat all furtlier proceedings in said con- solidated action be had in, and under the number of,* this action. 07. (Sec. 5120.) Order in the case discontinued. [Title.] As in the lad to,^ and continue:] — case aforesaid; [and that the defendant recover from the plaintiff his costs in this action expended.] G8. Order that several suits abide the result of one of them. ^ [Tdlc.] [Title.] [Titled On motion of the , and due consideration thereof be- ing had, it is ordered that all of the above-named causes abide the event and linal determination of the one which the may elect to have tried ; and that whatever judgment may finally be rendered in the cause so tried, shall be en- tered in each of the other causes. And the party prevailing shall be at liberty to enter judgment accordingly. SUBDIVISION Till.— Motions. 69. Motion filed by leave. 70. (Sec. 512ti.) IMotion filed and notice ordered. 71. ]\Iotion granted or overruled. It is not customary to apply to the court for leave to tile a motion, ^See on this subject Howlett v. Martin. ?, Law Gazette. 2(36. 2 See Jackson v. Swartevont, 5 Cow. 283. See also Blake v. E. K. Co., 17 How. Pr. 228. 38 ^ JOURNAL ENTRIES. [SEC. 5121- before the party desiring to file it is in default, except in cases where the statute specially requires it. But where the party is in default he of course has no right to file a motion without leave ; and in cases where notice is required which the court may by order dispense with,, the motion should be filed by leave. 69. 3fofion filed by leave. [Title.] Now comes the herein, and by leave of court files his motion to [state object of motion.'] 70. (Sec. 5126.) Motion filed and notice ordered. [Title.] l^ow comes the herein, and by leave of court files his motion to strike [any pleading or paper] from the files. And the court orders that notice thereof be given to the ac- cording to law. 71. llotion granted or overruled. [Title.] This cause now coming on forbearing, on the motion of the to [state object], the court, on consideration thereof, grants. [or, overrules] the same. DIYISIOI^ III.— Trial. Chap. I. Provisions Preliminary. II. Conduct of the trial. III. Evidence. IV. Exceptions. V. New trial. CHAPTER I. PROVISIONS PRELIMINARY. Subdivision III. Tender and offer to confess judgment.. IV. Revivor of actions. SUBDIVISION III. — Tender and offer to confess judgment. I. Tender on contract for payment of money — 72. (Sec. 5137.) Judgment for money after tender made before suit. -5137.] PROVISIONS PRELIMINARY. 39. II. TkXDKR ox CONTRACT FOR I'AYMKNT OF OTHER ARTICLE THAN MONEY TRIAL BY THE COURT 73. (Sec. 5I38.) Judgment after tender proved, for assessed value. 74. (Sec. 5138.) Judgment after tender proved, allowing defendant to j)erform contract. 75. (Sec. 51-38.) Judgment for plaintiff when tender not sufficient. II I. TkNDKK on CONTRACT FOR PAYMENT OF OTHER ARTICLE THAN MONEY TRJAo RY .JURY — 76. (Sec. 51.38.) Verdict of jury after tender proved, assessing value. 77. (Sec. 5138.) Judgment on verdict for assessed value of property or labor. 78. (Sec. 5138.) Judgment on verdict when defendant oflFers to perform contract. 79. (Sec. 5138.) Verdict of jury finding tender insufficient. 80. (Sec. 5138.) Judgment on last verdict. IV. Offer to confe.s.s jddc.ment — 81. (Sec. 5139.) JudL'ment after offer to confess before suit. 82. (Sec. 5140.) Judgment on offer to allow, and acceptance. 83. (Sec. 5140.) Judgment after offer rejected. 84. (Sec. 5141.) Judgment after offer to confess part. I. Tender on contract for payment of money — 72. (Sec. 5137.) Jndqmcnt after tender made before suit. [Title.] Enter judgment in the regular form^ except for costs, and add:] The court further find that the defendant, as set up in his answer herein, tendered to said plaintiff the said sum of $ , here found to he due him, before the commencement of this action, and also paid in the same to the clerk of this court before the trial. It is therefore considered by the court that the plaintiff pay all the costs of this action, and that the clerk, out of the money in his hands, as aforesaid, apply first the sum of S to the payment in full of the costs herein, and pay over the balance, to wit, the sum of $ , to the plaintiff, in full of the judgment here rendered. 40 JOURNAL ENTRIES. [SEC. 5138- II. Tender on contract for payment of other article than MONEY TRIAL BY THE COURT 73. (Sec. 5138.) Judgment after tender proved^ for assessed value. [Title.] This cause coming on now for hearing, upon the pleadings and evidence, was submitted to the court without the inter- vention of a jury, on consideration whereof, the court finds that the defendant did, as set up in his answer, tender to the plaintiff, on the day of , 18 — ,* the property [or, labor] therein described, and that the same was in full per- formance of the terms of the contract set up in plaintiff's petition ; and does now assess the value of said property [or, labor] so tendered at $ , which the court finds to be due to this plaintiff". It is therefore considered by the court that the plaintiff re- cover from the defendant the said sum of | , but without interest or costs of suit. 74. (Sec. 5138.) Judgment after tender proved, allowing defend- ant to perform contract. [Title.] This cause coming on now for hearing upon the pleadings and evidence, was submitted to the court without the inter- vention of a jury, on consideration whereof, the court finds that the defendant did, as alleged in his answer, tender to the plaintiff", on the day of , 18 — , full performance of the terms of the contract set up in the petition ; and the defendant now offering to perform the same forthwith, it is therefore considered by the court that, upon said defendant delivering to plaintiff" [specify the property, or, if it is labor to be done, rnake the statement accordiiigly] within days, the said defendant go hence without day, and recover from the plaintiff' his costs herein expended. 75. (Sec. 5138.) Judgment for plaintiff when tender not suf- ficient. [Title:] As in No. 73 to *, and continue:] — certain property [or, la- bor], in performance of the contract set up in the petition, but -5 138. J PROVISIONS PRELIMINARY. 41 the court finds that said tender was not in accordance witli the terms of said contract, and was not a performance of the same. The court further finds that the plaintiff and defend- ant entered into the contract set forth in the petition, and tliat, by the defendant failing to perform the same, the plaintiff has been damaged in the sum of ^ . It is therefore considered by the court that the ]ilaintiff recover from the defendant the said sum of dollars, his damages so assessed, and his costs herein expended. III. Tender on contract for payment of other article than MONEY trial BY .JURY 76. (Sec. 5138.) VenUct of jury after tender proved, asscsswg value. [Title.-] Use regular jury forms, page 55, and let the verdict be :] — '' AVe, the jury, find that the defendant did, as set up in his answer, tender to the plaintiff, on the day of , 18 — , the property \_or, labor] therein alleged, and that the same was a full performance of the contract set up in the petition ; and we do assess the value of the said property [or, labor] so ten- dered at dollars." 77. (Sec. 5138.) Judgment on last verdict for assessed value of property or labor. [Title.'] The jury in this action having, at a former day of this court, assessed the value of the property [or, labor] tendered by the defendant, in performance of his contract with plaint- iff, at % , it is therefore now considered by the court that the plaintiff recover from the defendant the said sum of % , but without interest or costs of suit. 78. (Sec. 5138.) Judgment on last verdict when defendant offers to 2')erform contract. [litU:] The jury in this action having at a former day of this court found that the defendant made a tender to plaintiff in full performance of the contract l)ot\veen tliem, and the de- 42 JOURNAL ENTRIES. [SEC. 5138- feudant now offering to perform the same forthwith, it is or- dered and adjudged that upon said defendant delivering to plaintiff [sjpecify property; or, if it is labor to he performed, make statement accordinr/li/'], within days, the said defend- ant go hence without day and recover from the Dlaintiff his costs herein expended. 79. (Sec. 5138.) Verdict of jury finding tender insufficient. [Title.] Use regular jury forms, page 55, and let the verdict he ;] ""We, the jury, find that the defendant did not tender to plaintiff full performance of the contract set up in the peti- tion ; and we do assess the damages of the plaintiff by rea- son of the premises at dollars." 80. (Sec. 5138.) Judgment on last verdict, [Title:] May he same as Entry No. 249. IV. Offer to confess judgment — 81. (Sec. 5139.) Judgment after offer to confess hefore suit.^ [Title:] Append to the usual judgment entry, omitting costs, the follow- ing:] And the amount here recovered by the plaintiff not being more than the said defendant has heretofore in open court, before the bringing of this suit, and after notice given to the plaintiff', to wit, on the day , 18 — , offered to con- fess, it is ordered that the said plaintiff pay the costs of this action. 82. (Sec. 5140.) Judgment on offer to allow, etc., and accept- ance. [Title.] l^ow came the parties hereto, by their attorneys, and the defendant having served upon the plaintiff [or his attorney] an offer in writing to allow judgment to be taken against him 2 See note to Entry No. 84. -514^5.] REVIVOR OF ACTIONS. 43 for the sum of dollars, and tlie plaintiff Laving accepted such offer and given notice thereof in writing to the defend- ant \_or his attorney], within five days after the service of such offer: It is now therefore considered that the plaintiff, A. B., re- cover from the said C. D. the said sum of § , and his costs herein ex|)endc'(l. 83. (Sec. 5140.) Jiulfjiiient after offer to allow, etc., rejected. [Tttk.] Appeiut to the usual jw/gmeut entry, omitt'nuj costs, the follow- ing :] And the amount here recovered by the plaintiff' not being more than the said defendant heretofore in writing offered to allow judgment to be taken for, it is ordered that the plaint- iff' recover only his costs herein expended before the said offer, and that he pay all costs thereafter made in the case. 84. (Sec. 5141.) Judgment after offer to confess part.^ [Title.] Append to the usual judgment entry, omitting costs, the follow- ing : And the amount here recovered by the plaintiff' not being more than the said defendant has heretofore in open court, to wit, on the day of , 18 — , off'ered to confess, it is ordered that the plaintiff' only recover his costs herein expended before the said offer, and that he pay all costs thereafter made in the case. SUBDIVISION IV.— Revivor of actions. 85. (Sec. 5144.) Judgment of abatement. 86. (Sees. 5146 and 5147.) Suggestion of the death of one of several parties. 1 The 'offer in court to confess judgment for part of the amount claimed," etc., which section 498 (5141) of the code authorizes the defendant to malie in Mil action for the recovery of money, must, to be effectual, be made in open court. Therefore, it is not sufficient for a defendant, who wishes to make surh offer, to merely place a written offer on file with the papers in the case, al- though the plaintiff may have notice that such offer has been so made. Fike V. France, 12 Ohio St. 624. 44: JOURNAL EXTRIES. [SEC. 5144- ■'■7. (Sec. 5149.) Eepresentative made party, and action revived. 88. (Sec. 5150.) Conditional order of revivor, on the death of the plaintiff. 89. (Sec. 5150.) Same, on the death of the defendant. 90. (Sec. 5152.) Final order of revivor. 91. (Sec. 5152.) Order of revivor, by consent. 92. (Sec. 5159.) Case stricken from docket, when not revived. 93. (Sec. 5160.) Same, after notice given. When the revivor is not by consent, a conditional order must first be made/ and served upon the adverse party in the same manner, and re- turned within the same time as a summons ; and if no cause be shown to the contrary, the final order of revivor is made." Section 411 [5158] of the code does not conflict with this view; that section is simply a limitation of the time within which the order must, and after which it can not be made.^ If the order is made by consent of parties, the action forthwith stands revived." Where one of the defendants, in an action on a joint contract, dies l)efo re judgment, and the judgment is taken against all the defendants, without any suggestion of his death, or making his representatives par- ties, such judgment is not void, but merely voidable.* The right to revive an action, under title 13, chapter 1, of the code, is not dependent on the di.scretion of the court, or of the judge mak- ing the order, but, under the conditions and within the time therein limited, is a matter of right. ^ 85. (Sec. 5144.) Judgment of abatement. [Title.'] Suggestion of the defendant's death being made to the court, and the court being satisfied of the truth thereof, this action now nbates. 86. (Sees. 5146 and 5147.) Suggestion of the death of one of several -parties. [Title. 1 lSo^^■ comes , and suggests to the court the death of K'ode, sec. 5150. ^Code, sec. 51.52. ■■'Hamilton v. Sals, Lawrence District Court, 1859, 1 W. L. M. 403. ■* Swasey & Co. v. Antram & Co., 24 Ohio St. 87. s Carter v. Jennings, 24 Ohio St. 182. -3150.] REVIVOR OF ACTIONS. 45 R. S., otie of the parties pluintifF [or, defendant] herein, und llio action [)roceeds. 87. (Sec. 5149.) Representatice made party, and action revived. [Title.] Now comes E. F., and snggests to tlie conrt the deatli of A. ]>., the i)hiintift' [or, of C. D., the defendant] herein, and that lie is tlie duly appointehiintiff [or, defendant] in this action, and the action proceeds. If the revivor be by supplemeutal pleading, as provided in section 5149, the only journal entry necessary is one allowing the supplemental pleading, for which see Entry Xo. 65. 88. (Sec. 5150.) Conditional order of revivor on the death of the plaintiff. [Title.] Xow comes R. VT. [or, comes the defendant],' and suggests to the court that the plaintiff herein has died since the com- mencement of this action, and that he [or, that K. AV.] has been duly appointed and qualified as executor of the last will and testament [or name other capacity of representative or suc- cessor, as provided for in section 5154] of the said plaintiff. And the court being fully satisfied thereof, it is now, on mo- tion of the said , ordered that this action be revived, and proceed in the name of the said R. W., executor [or other- represent'itive or successor], as aforesaid, unless, within- days after the service of this order upon said [adverse party] sufficient cause be shown against said revivor.^ 1 See sec. 5151. ^ See sec. 5152. ^ See note 1, page 148 for filling this blank. 46 JOURNAL ENTRIES. [SEC. 5150- 89. (Sec. 5150.) Conditional order of revivor on the death of the defendant. [Title.] Now comes R. B. [or, comes the plaintiff], and suggests to the court that the defendant herein has died since the com- mencement of this action, and that he [or, that R. W.] has been duly appointed and qualified as executor of the last will and testament [or name other representative or successor, as pro- vided for in section 5156] of the defendant. And the court being fully satisfied thereof, it is now, on motion of the said , ordered that this action be revived in the name of R. B. as such executor [or other re-presevtative'], and proceed against him, unless within ^ days after the service of this order upon the said R. B., sufficient cause be shown against such revivor. 90. (Sec. 5152.) Final order of revivor. [Title:] ]^ow comes the said , and the conditional order of re- vivor herein having been duly served upon the said , and no [or, no sufficient] cause being shown against said revivor, it is hereby ordered that this action stand revived in the name of R. W., executor [or other rejnesentative], as aforesaid, and proceed in his favor [or, against him]. 91. (Sec. 5152.) Order of revivor by consent. [Title.] Kow comes , and suggests to the court that the has died since the commencement of this action, and that L. S. has been duly appointed and qualified as executor of the last will and testament of the said . And the court being fully satisfied thereof, and all parties consenting, it is hereby, on motion of the said , ordered that this action stand revived in the name of L. S., as said executor, and proceed in his favor [or, against him]. The publication provided for in section 5153 should be approved by an order of court, as in the case of Constructive Service of Summons, Entry No. 83. ^See note 1, page 148, -■>1G1.] SUMMONING AND IMPANELING JURY. 47 1>2. (Sec. 5159.) Case stricken from docket — when not revived. [Title.'] It appearing to the court tl)at tlie herein has been (h'ad for more than one year, and that the case has not been iL'viv^ed by [or, against] his representatives or successor, it is now, on motion of , ordered that the case be stricken from the docket. 93. (Sec. 51G0.) Same, after notice given. [Title.-] It appearing tliat the plaintiff herein died at a former term of this court, and tliat ten days' notice of this application has been given to S. II., the executor of the said plaintiff, and that said executor has failed to revive this action, it is now, on motion of the defendant, ordered tliat the action be stricken from the docket ; and that the defendant recover from the estate of the plaintiff" his costs herein expended CHAPTER II. CONDUCT OF THE TRIAL. Subdivision' I. Summoning axd impaneling the jury. II. Trial by jlry, and verdict. III. Trial by the coirt. IV. Trial by referee.'^ V. Trial by mastei: commi.-sioneu. VI. Trial on appeal. SUBDIVISION I. — Summoning and impaneling the jury. Apportionment of jurors — ?>4. (Sec. 5162.) Order fixinjj number of jurors for the year. '.•5. (Sec. 5162.) Order amending. 96. (Sec. 5167.) Order directing number to be drawn, etc. The regular petit jury — 97. (Sec. 5168 ) Order that petit jurors be drawn for special term. 98. (Sec. 5172.) Order for a second, or a new petit jury. 48 JOURNAL ENTRIES. [SEC. 5162- 99. Entry on return of venire. 100. (Sec. 5172.) Order to fill when panel becomes incomplete. Jury fok the trial of any particular case — 104. (Sees. 5171 and 5173.) Order for venire for talesmen selected by the- court, etc. 105. (Sees. 5171 and 5173.) Same, when the array has been set aside, lotj. Entry on return of venire in last two cases — panel complete. 107. Entry on return of venire — when panel incomplete. 108. (Sec. 5174.) Order that venire issue to coroner. 109. (Sec. 5175.) Array set aside. Struck jury' — 110. (Sec. 5187.) Venire returned, sherifi" ordered to summon bystanders. 111. (Sec. 5188.) Order appointing person to act in place of officer. Punishment of juror — 112. (Sec. 5178.) Order imposing fine for refusal to serve. 113. (Sec. 5178.) Order fining for disobeying, etc. 114. Order fining for misbehavior. 115. Order dismissing proceedings. For the law relating to juries in Hamilton and Cuyahoga ocunties see 78 O;. L. 95. The entries under it are in the same form as under the general law, in- this subdivision. Apportionment of jukors. 94. (Sec. 5162, 82 0. L. 31.) Order fixing the number of jurors for the year. It is hereby ordered that the number of persons to l^e se- lected in this county of to serve as grand and petit ju- rors for the current year, in the several courts, be fixed at 95. (Sec. 5162 82 0. L. 31.) Order amenditu/.or for adiltloval apportionmerit. It a[ipeariiig iliat the number of persons heretofore ordered to be selected in ihe lOiinty to serve as o-pjind ami petit jurors is loo small. ["'% I'lj Sic oltiii, f^i (). I.. 1»J7, that the names of the persons beret' foi'e sele(;ted to serve as jurors for the sev- eial courts have all been drawn from the box, or, that there is not a sufficient number of names heretofore selected as jurors for the several courts left in the box for the transaction of the bu.siness of said courts for the unexpired portion of the year,]j -oioS.] SUMMONING AND IMPANELING JURY. 40 it 18 therefore ordered that ad'litional persons be selected from, by apportionment among, the several townships and wards in this connty, to serve as grand and petit jurors as aforesaid. The regular petit jury — Tlic jury law dfjos nui draw us close a distinction as it might be- tween the formation of the rcguhir petit jury, and the making up of a jury for the t ial of any particular case. It seems, howevei', to nquii'e a full, regular })etitjury at the begin- ning of the term.' and to contemplate, but not absolutel}' to require, its being kept full during the tt-rm. If it bccijmcs incomplete by rea- Hon of sickruHs, ;ibs( ncc or olhei-witie, it ma}' be made comjdele by the court of its own nKdion. first exhausting the whole number of jiersons summoned as |Ktit jurors,' and after thai ordering the names required lo be diawn from the liox by tiie clerk, and causing a venire to bi; is>ue(l to summijii them to appear; and the jurors so added shall, for the remainder of the term, constitute a part of the regulai- jury.- or tin- sini-iff may. ]»robably. by section ,0171. summon t.ilesiiu'ii lo supply the * and continue:] — and the pane) beino- incomplete, it was ordered that a venire issue for L. IS. and T. R., returnable forthwith. 108. (Sec. 5174.) Order that cenire issue to coroner. [Tide.] It i)eing made to appear to the court that the sheriff is in- terested in this cause, on motion of the , it is ordered that a special venire be directed to the coi'oner of the county,. commanding him to summon a jury to try this cause. If the coroner is interested also, state the fact, and (jrder that the special venire be directed to any other discreet, disinterested per- son. lt)9. (Sec. 5175, 81 O. L. 43.) Array set aside. [7 die.] And now the havmi^ challenged the array o^'the jury -5188.] SDMMONINO AND IMPANELING JURY. 53 ill this case, an J it apiieariiig to the court that [state causr], it is ordered that the said array bo, and it hereby is, set aside, and said jurors are disch;iri:ed. The array hi-iiii^ set aside, the court ma}', on its own motion, by Htclion 5172, oi'der a new re^^ul.tr petit jury to be drawn from tlie l)ox, for which see entry No. 100; or, by section 5171, the defi- ^•ietiey may be made up by talesmen summoned by the sheriff. In the hittei- case no journal entry appears to be necessar}'. Or, by section 5173, the talesmen may, on motion of either party, be se- lected by the court, and a venire be issued for the persons selected, for which see entry No. 105. For entries under section 517S see pages 54 and 55. Struck jury. The struck' jury is made up as provided by section 5185, et seq. of tlie code, atid no oi'dcr of the court is needed, unle.ss the sixteen ju- rors are exhausted without completing the panel. But on tlie sheriffs return of the venire facias issued to him, an iMitr}' should be made of the same, under the title of the case, as lollows : If the )ianol is c()m]dete, use form of entry No. 100. If incom- plete and on motion of either parly, the court select the persons to fill tlio panel, use form of eiiiiy No. 107. If it is filled from the bystaiidci's make eiiliy as tolhjws : 110. (Sec. 5187) Venire returned, sheriff ordered to summon bystanders. [Title.] As i)i entry iVo. 106 as far as *. n)h/ codinuf^ :] — and the panel being incomplete, the court orderctl the sheritf to sum- mon from among the bystanders so many good and hiwful men as are necessary to complete the same ; whereupon the following named persons were called, to wit [name persons], and the panel was complete. 111. (Sec. 5188.) Order appointing person to act in place of officer. {Title.] It appearing that R. M., the recorder [or, clerk, or, aud- 54 JOURNAL ENTRIES. [SEC. 5188— itor] of the county, is [state cause], S. R. is hereby appointed to take the place of the said R. M. iu selecting and striking- the jury demanded in this case, and to do all things required to be done by the recorder when acting in this behalf. Punishment of juror — If the offending juror is not before the court, he may be brought in by regular proceedings, as in case of contempt, for Avhich see Con- tempts OF Court. If the juror is present in court, the investigation of his contempt may be had at once, and, if found guilty, a fine be imposed upon him,, Avhich fine may be collected by execution. 112. (Sec. 5178.) Order imposing Jine for refusal to serve. [Title.] And now M. K. having been summoned as a juror in this; case, and having refused to serve as such, was examined un- der oath touching his said refusal ; and the court finding no. reasonable cause therefor, find that he has been guilty of a contempt of court. It is therefore ordered and adjudged that a fine of dollars^ be, and hereby is, imposed upon the said M. 'N., and that he pay the costs of this proceeding ; and execution is awarded therefor. 113. (Sec. 5178.) Order fining for disobeying, etc. [Title.] And now iST. R., one of the jurors duly qualified herein,, having been charged with disobeying the order of the court [state in what 'particular], was examined * under oath [and upon testimony of witnesses] touching his said ofifense. And the court find said charge to be true, and that the said [N". R. is thereby guilty of a contempt of court. It is therefore ordered and adjudged that a fine of dollars^ be, and hereby is, imposed upon the said IS. R., and that he pay the costs of this proceeding ; and execution is- awarded therefor. ^Can not exceed thirty dollars. *Can not exceed one thousand dollars. -5189,] TRIAL BY JURY AND VERDICT. 55 114. Order fining for misbehavior. [TilU.'\ And now X, R., one of the jurors duly qualified herein, having been charc^cd with misbehavior in this, to wit: [state pa7iiculars'\, was examined, etc. [as from *, in last order. 115. Order dismissing proceedings. [Tille.] As in No. 113 io *, and conclude:'] — under oath and upon testimony of witnesses touching his said offense, and the court find that said charge is not sustained. It is therefore ordered and adjudged that these proceedings against the said X. li. be, and they are hereby, dismissed at the cost of . SUBDIVISION II. — Trial by jury and verdict. Formula I; Jury impaneled and sworn. 110. Entry when verdict is returned on the day the trial is begun. Cause progressed — 117. Cause progressed — first day. 118. Cause progressed — succeeding day. 119. Cause progressed — verdict given. Forms op verdict. Sealed verdict — 120. Order for. View of property — 121. (Sec. 5191.) Order for jury to view. Discharge ov the jury before verdict — 122. (Sec. 5195.) For sickness or other calamity. 123. Order that cause proceed with eleven jurymen. 124. Order substituting juror. 125. (Sec. 5195.) Jury discharged by consent. 126. (Sec. 5195.) Being unable to agree, jury discharged. 127. Juror withdrawn, and case continued. Arrest of testimony from jury — 128. Evidence withdrawn, and judgment for defendant. If the trial proceeds regularly and without interruption to the rendi- tion of the verdict and the judgment of the court, the forms in all cases are very similar. But various interlocutory orders may also be made during the trial, or the trial may not come to a verdict. The first entry after the jury is formed, as shown in the last subdi- 56 JOURNAL ENTRIES. [SEC. 5190- vision, will show the impaneling and swearing of the jury. The entry as a formula to be prefixed to any subsequent order is given below. FORMULA I ; JURY IMPANELED AND SWORN. [Title.] This day came tlie parties herein, by their attorneys; also came the following-named persons as jurors, to wit: 1. A. B. 7. J. Iv. 2. C. I>. 8. M. P. etc. etc. who were duly impaneled and sworn according to law ; and thereupon the case came on for hearing on the pleadings and evidence. If the trial is completed on the day it is begun, make the entry as follows : 116. Entry on return of verdict. [Title.] Formula above, and continue ;] — And after hearing the evidence, argument, and charge of the court, the jury retired to their room, in charge of the sheriff, for deliberation. And now comes said jury into open court with their ver- dict in writing, signed by their foreman, and say •} " We, the jury, find, on the issue joined, for the , and assess his damages at dollars." [Signed,] C. D., Foreman. If the jury is polled, as provided for in sec. 5198, add:] And the jury being polled, on the request of the , each juror, on being inquired of if it was his verdict, answered in the affirmative. Cause progressed — If the trial is not completed on the day it is begun, the entry should show the stage of proceeding reached ; and on each succeeding day an ^The verdict or finding must be filed with the clerk and entered on the jour- nal. Sec. 5201. For forms of other verdicts, see pages 58 and 59. -5190.] TRIAL BY JURY AND VERDICT. 57 entry should show the proceedings had, until the trial is concluded. This furnishes a warrant for paying the jurors' fees. The following are given as examples of the orders that may be made: 117. Cause progressed — -first day. \_Title.] Formula, p. 56, and continue ;] — And the said jury having heard the testimony adduced in part,! said cause was continued until to-morrow morning at 10 o'clock. Or say ;] — fThe court adjourned until to-morrow morning at 10 o'clock. 118. Cause progressed — second, or succeeding day. [Title.] This day again came the said parties, by their attorneys, and also came the jury heretofore impaneled and sworn,* and the trial proceeded. And the said jury having heard the remaining testimony, the argument, and charge of the court,. retired to their room, in charge of the sheriff", for de- liberation. f And the hour of adjournment having arrived, the court discharged said jury until to-morrow morning at 10 o'clock. Or say :] — fAnd the parties not being ready to proceed with the trial, it was continued until, etc. On the day that the verdict is rendered, take up the proceedings at the point reached the day before, and conclude with the verdict. For example : 119. Cause progressed — verdict given. [Title.] This day again came the said parties, by their attorneys, and also came the jury heretofore impaneled and sworn herein, and retired to their room, in charge of the sheriff", for further consultation.* 58 JOURNAL ENTRIES. [SEC, 5190- And now come the said jury into open court witli their verdict in writing, signed by their foreman, and say: \_co2:)}/ verdict; and if the jury is jJoUed, add as after Entry 116.] Forms of verdict — The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury finds the facts only.^ It must find the truth of the facts. It will not do to refer the evidence to the court and ask their judgment upon it.'^ And to authorize a judgment on it, all the facts essential to the right of the party in whose favor judgment is to be rendered, must be found by the jury.^^ The verdict or finding must be filed with the clerk and entered on the journal.* The forms of verdict may be as follows : General verdict for damages. "We, the jury, iind on the issue joined for the plaintiff [or, defendant], and assess his damages at dollars." CD., Foreman. General verdict for defendant. "We, the jury, find on the issue joined for the defendant." C. D., Foreman. Special verdict. "We, the jury, on the issue joined, find that, at the time the debt was contracted, there was a firm doing business as J. E.. R. & Co., and that R. and K. were members of the firm." [Signed,] C. D., Foreman, If, by direction of the court, special questions have been submitted to the jury for answer, the verdict may be as follows : iSec. 5200. See also Hambleton v. Dempsey & Co., 20 Ohio, 168. * Leach v. Church, 10 Ohio St. 148. 3 Blake's Lessees v. Davis, 20 Ohio, 231. *Sec. 5201. -5195.] TRIAL BY .H'RY /ND VERDICT. 59 General verdict, initli special Jind in;/ on particular questions. "We, the jury, on the general issue joined, lind for the , and assess his damages at dolhirs. And in re- sponse to tlic questions {trojiouiKhMl to us, we return the same witli our special tindini^s tliereon, as follows: 1. "Was there, at the time tlie deht was contracted, such a firm doing business as J. Iv. li. & Co.?" Answer. "Yes." 2. "Were R. & K. members of the firm, if it existed?" Answer. " ;N'o." 3. "If not members of the firm, then did their acts, de- clarations, or mode of doing business, induce the plaintifiTto believe them to be partners of R. & Co.?" Answer. "Yes." [Signed,] C. I)., Foreman. Sealed verdict — If, at the liour of adjouriunent, the jury have not agreed upon a verdict, but there is a i)robabiIity of their agreeing before the next morning, the court may, upon adjournment, leave the jury, with in- structions to return tlieir verdict scaled at some specified time. 120. Order for scaled verdict. [Title.] As in Ao. 118 to f, <^'>^d continue:] — and the hour of adjournment liaving arrived, the court orders that, if said jury agree upon a verdict, they return the same scaled to this court to-morrow morning at 10 o'clock. View of property — 121. (Sec. 5191.) Order for jury to view. [Title.] On motion, it is ordered that the jury be conducted in a body, in charge of the sheriif, to view the premises in con- troversy herein, and that the same be shown to them by F. G. ; and that they return to-morrow morning at 10 o'clock. Discharge of the jury before verdict — 122. (Sec. 5195.) For sickness or other calamity. [Title.] This day again came the said parties, by their attorneys,, and it appearing that L. M., one of the jurors, is unable, by •60 JOURNAL ENTRIES. [SEC. 5195- reason of sickness [or other calamity'], further to attend this trial,* the court therefore discharge the said jury without day ; and the case is continued. If the parties desire to go on with the trial, iu case of disability of a juror, one of the two following entries may be made. 123. Order that case proceed with eleven j my men, by consent. [Title.] As 171 last to *, and continue:] — and the remaining eleven jurors heretofore impaneled and sworn, now coming, the trial, by consent of both parties, proceeded. 124. Order suhstitutiiig juror, by consent. [Title.] As in No. 122 to *, ami continue:] — and the remaining eleven jurors heretofore impaneled and sworn, now coming, hy consent of both parties, M. ^N". is summoned and called from the bystanders, and substituted for the said L. M. as a juror in this case, and is sworn accordingly; and the trial proceeds. 125. (Sec. 5195.) Jury discharged by consent. [TUle.] This day again came the said parties, by their attorneys ; also came the jury heretofore impaneled and sworn. And, by consent of both parties, the court discharged the said jury without day, and the case is continued at the cost of the . 126. (Sec. 5195.) Being unable to agree, jury discharged. [Title.] This day came the said parties, by their attorneys ; also came the jury heretofore impaneled and sworn, and retired to their room, in charge of the sheriff, for farther consulta- tion. And now come said jury into open court, and state that they are unable to agree upon a verdict , whereupon they are, by the court, discharged from further consideration of this case, and the case is continued. -5203.] TRIAL BY JURY AND VERDICT. 61 127. Juror icUhdraion by consent, and. ease continued. [7itle.] This day again came the said parties, by their attorneys, and the jury lieretolbre inipaiK-led and sworn ; and, l»y con- sent of parties, one of the said jnrors is withdrawn from the panel, and tlie residne of the said jury is discliargcd from further consideration of the case, and the cause is continued at the cost of the . Arrest op testimony from jlry — Nonjsuit at coimnon law, aiitl as recugnized in Ohio heture the code, was voluutary or by orilt-r of the court. Vnhnitary uonsiuit occurred upon the plaintiff voluntarily failing to follow (»r i)ursue his complaint,' It would, under tlie practice in Ohio befuri' the code, bo nnlcred I»y the court only when tliere was some essential fact to the plaintiH"s claim, to establish which no evidence had been given. If evidence, however sliirht, tendinis' to i)rove all the facts essential to make out a case for the {)hiintitf had Ix'on given, the motion wa.s denied.' The effect of a nonsuit was not final, the plaintiff being at liberty to roconuuencc his action.' ' Under the code, and since the act of April 12, 1858 (2 S. & C. 1155), the court is authorized in a proper case to arrest the testimony from the jury, and render judgment for the defendant. But such judgment has not the effect of a nonsuit at common law, but is, under the provision of the code (sec. 372, Rev. Stat. 5314), a decision of the action upon the merits.* It is substantially the same as the submission of the case to the jury under instructions to return a verdict for the defendant, the same result being reached in either case.* So that a nonsuit, as understood at common law and in Ohio before the code, is at present unknown. The conditions making it proper for the court to withdraw the evi-- dence from the jury and render judgment for the defendant, are the same as authorized a nonsuit before the code. If the evidence tends to prove all the facts which it is incumbent on the plaintiff to establish in order to maintain his action, he has a right to have the weight and sufficiency of the evidence passed upon by the jury, and it is error for the court to grant the motion, and render judgment against him.* 1 3 Bl. 31G, 377. « Ellis & Morton v. Ohio Life Ins. and Trust Co., 4 Ohio St. C28. 3 Reod V. C;irpent»^r, 2 Ohio, 87. * Stockstill V. D. & M. R. R. Co., 24 Ohio St. 8G. 62 JOURNAL ENTRIES. [SEC. 5204- But if there is a fact, without the establishment of which, the plaint- iff can not maintain his action, and no evidence be offered to j^rove it, then, upon motion of the defendant, the court may order that the evi- dence be withdrawn from the court or jury, and judgment be rendered for the defendant. And it will be a decision upon the merits. 128. Evidence withdrawn, and judgment for defendant. [^Title:\ Formula 1, p. 56, and continue ■] — And the evidence for the plaintiff being heard, the defend- ant thereupon moved the court to arrest the testimony from the jury, and for judgment; and the argument of counsel being heard thereon, the court, on consideration, grant the same. It is therefore considered by the court that the evidence of the plaintiif be withdrawn from the jury, and that said jury be, and hereby are discharged from further consideration of this case ; and that the defendant go hence without day, and recover from the plaintiff' his costs herein expended. SUBDIVISION III.— Trial by the court. 129. (Sec. 5205.) Finding by the court on issue triable only by the court. 129a. (Sec. 5205.) Finding by the court — jury waived. 130. (Sec. 5205.) Separate finding of fact and law. 131. (Sec. 5207.) Judgment on controversy submitted. It is usual to enter judgment, on trial by the court, at the time of making the finding, unless there be a special reason for delaj'ing the judgment; and if a new trial is desired by either party, the motion and order will be "to set aside the judgment and for a new trial." As judgments entered in this way have several times been reviewed by the supreme court, without any objection on that point being raised, the practice seems to be sanctioned. But as the finding of the court is sometimes made and entered, like a verdict of the jury, before the judgment, forms are here given. It is only required by the statute that the court state its finding, gener- -5206.] TRIAL BY THE COURT. 63 ally, for plaintiff or defendant, unless requested by one of the parties to make a separate finding of facts and law. (See sec. 5205.) The cases to l)e tried hy the court arc, fird, those wherein the issue is primarily triable by the court alone;' or, second, such as are primarily triable by jury, in which ihe jury is waived.' The formal begiuuiuj^ of the judgment entries are usually different in the two cases. 129. (Sec. 5205.) Finding by t/ic court on issue triable only by the court. [Title.] This cause now coming on for hearing, was suhmittcd to the court upon the pleadings [or the several pleadings may be particularly named] and the evidence; and, on consideration thereof, tlu; coni't find on the issue joined tor the jdaintiff [or, defendantj, and iind that the is indebted to him in the sum of dollars. 129a. (Sec. 5205.) Finding by the court^ury waived. [Title.] This cause now coming on for liearing, and a jury having been waived, was submitted to the court u[)on the pleadings [or the several pleadings may be particularly 7ia)ned] and the evidence ; and, on consideration tliereof, the court find on the issue joined for the plaintiff" [or, defendantj, and find that the is indebted to him in the sum of dol- lars. 180. (Sec. 5205.) Separate Jinding of fact and laic. [Title.] This cause now coming on for hearing, and a jurv being waived, was submitted to the court on the pleadings and evi- dence. And the court being fully advised in the premises, on the request of the that its conclusions of fact be stated separately from its conclusions of law, find, as its con- clusions of fact, that [give finding .] iSee sees. 5130 and 5131. 64 JOURNAL ENTRIES. [SEC. 5207- Aiid as its conclusions of law upon the above facts, the court find that [c/ive jindwg]} 131. (Sec. 5207.) Judgment on controversy submitted? llitle.'] This day came the parties above named, and presented to the court a submission of a question of difierence between them upon an agreed statement of facts. And the court, upon due consideration thereof, upon said statement, find the law of the case to be with the said A. B., and find that the said C. D. is indebted to him in the sum of $ . It is therefore considered by the court that the said A. B. recover from the said C. D. the said sum of dollars, and that the said C. D. pay the costs of this proceeding; for all of which execution is awarded. SUBDIVISION lY.— Trial by refereks. 132. (Sec 5210.) Order of reference, for trial. 133. (Sec. 5210.) Order of reference to ascertain and report the facts. 134. (Sec. 5212.) Order substituting referee, etc. 135. Order to compel report of referee. 136. (Sec. 5213.) .Judgment on the report finding facts and law, wherk no motion for a new trial has been made. 137. Motion to set aside report finding facts and law overruled, and judg- ment entered. 138. (Sec. 5213.) Judgment on report finding facts only, when no motion for a new trial has been filed. 139. (Sec. 5213.) Motion to set aside report finding facts only, overruled and judgment entered. 140. (Sec. 5305.) Report set aside, and a new trial granted. 141. (Sec. 5305.) Same, before another referee. Instead of submitting a case to a jury or the court, the code provides for a third method of deciding the issues of fact and law, and this is ^ As to what will be regarded as a statement of the court's conclusion of law, see Levi v. Daniels, 22 Ohio St. 38. 2 No authority is contained in section 372 of the code (Ohio Code, 5207) for the submission of actions; it relates solely to the submission of questions of dif- erence without action. Van Sickle v. Van Sickle. 8 How. (N. Y.), 265. X -5210.] TRIAL I5Y REFEREES. G5 by referees. The referees are substituted for tlic court and jury, uimI their proviuce is to decide the faet.s of the case, if the facts ouly are •suhniitted, or botli the facts and hiw of the case, if both are referred. Th(! trial bcf)re tlie referees is eonductf(l in tli'i .«a!uo manner as a trial i)V the court on submission. The evidence is not to be reduced to writ- ini,' unless specially ordered. All su(;h exceptions as could l)e made in tlu! j)rogress of a trial before the court may be taken by either party in a trial before referees. When the reference is to report facts only, tlu; report has the effect of a si)ecial verdict; if the reference is of the facts and law, the facts and the conclusions of law are stated separately, and the report stands as the decision of the court, and judjrment may be entered thereon as if the action had been tried by the court. The decision of the referee, however, may be reviewed by the court. These provisions show very clearly that, while the trial before referees is subject to the review and revision of the court ordering the refer- ence, it is a substitute for a trial in court. The finding of the facts is, in effect, the special verdict of a jury. The conclusions of law of the referees stand as the law decisicm of the court, and, if not set aside, a judgment follows of course.' The report of the referee u|)on the whole issue requires no confirmation, inasmuch as it stands as the decision of the court, by direct provision of the statute.* So, also, when the ref- erence is to report the facts, no confirmation would seem necessary, the report having, by force of the statute, the effect of a sjiecial verdict.'^ Review of referee's decision — Section 5213 provides that referees " mu.st state the facts found, and the conclusions of law, separately, and their decision must be given, and may be excepted to and reviewed in like manner " as the decision of the court when the report is upon the whole issue, and as a special verdict when the report is only upon the facts. The meaning of this section seems to be, not that the referee's court is to be regarded as distinct from the common pleas, so as to require parties to go from that to the common pleas by error or appeal, as from one court to a higher, but rather to make the referee an officer of the common pleas court, so that his finding is the finding of the court. During the progress of the trial before the referee he is the substitute for the judge ; the trial is conducted, and exceptions taken to his rul- ings upon the trial and allowed in the same manner as before the judge ^Lawson v. Bissell, 7 Ohio St. 132; Cincinnati v. Cameron, 33 Ohio. St. 336. *Sec. 5213. 66 JOURNAL ENTRIES, [SEC. 5210- upon submission/ The bill of exceptions, showing enough of the tes- timony to explain the exceptions, made up as in other cases, signed by the referee, will be returned by him with his report to the court, ^ to be brought before the court by a motion for a new trial under sec- tion 5305, sub. 8. If, when the referee makes his finding, either party wishes a review upon the finding of fact or law, he need not except to the finding,'' but must file with the court, after the report is filed, a motion, under sec- tion 5305, sub. 6, for a new trial, on the ground that the report is not sustained by sufficient evidence, or is contrary to law, or both, accord- ing to what he objects to, including any other causes he may desire. This is probably all that is required to bring the case before the com- mon pleas for review of the finding of law, when the party is satisfied with the finding of facts. But if his ground for a new trial is that the report is not sustained by sufficient evidence, in a case where the testimony has not been reduced to writing by the referee, the Jjarty must also file with the referee, before he makes his report, a motion for a new trial on the ground that the finding is against the evidence,* and, upon the motion being overruled by the referee, he can except to the decision,^ and embody his exception, with enough of the testimony to explain it, in a bill of exceptions, which will be signed by the referee and also returned with his report to the court. This appears to be the only way of bringing the testimony before the court for review in such a case. If, however, the testimony has been reduced to writ- ing by the referee, under sec. 5213, it is probably sufficient for the jmrty to file his motion in the court alone, as above set forth. If, in either of the above cases, the court overrules the motion for a new trial, and judgment is entered on the report, the party may except and have his proceedings in error to the district court as in other cases; or, if a proper case, may appeal from the judgment by virtue of sections 5226-5239. An appeal vacates the report of the referees, and the case stands for trial in the district court as if no reference had been made below. "^ ^See Cincinnati v. Cameron, 33 Ohio St. 356. " Sec. 5216. See also Lawson v. Bissell, 7 Ohio St. 129, 132. 3 See Kline v. Wynne et al., 10 Ohio St. 223, 226. *Sec. 5301 in connection with sec. 5213. See also Westfall v. Dugan, 14 Ohin St. 276, and Kandall v. Turner, 17 Ohio St. 262. 6 By sec. 530L « Lawson v. Bissell, 7 Ohio St. 130. -5212.] TRIAL BY REFEREES. 67 132. (Sec. 5210.) Order of reference, for trial. [Title.] Now come tlie parties hereto, and, by their consent [or, say, On motion of the , and good cause being shown], it is ordered that this cause be, and it hereby is, referred to E. ]'\, for trial of tlie issues both of law and fact [or either, as Ihe court may direct] arising therein. And the said referee is (tnlered to report his findings and decision to this court with- out unnecessary delay. [And it is further ordered that the referee reduce the tes- timony of the witnesses to writing, and require them sever- ally to subscribe the' same.] ' 133. (Sec. 5210.) Order of reference to ascertain and rejjort facts. [Tit/c] Now come the parties hereto, and, by their consent [or, say. On motion of the , and for good cause shown], it is ordered that this cause be and it hereby is referred to .T. M. F., who is directed to ascertain and find the facts, and re- port ^ them to this court. [It is further ordered that said referee reduce the testimony of the witnesses to writing, and require them severally to subscribe the same.] ^ 134. (Sec. 5212.) Substituting referee by judge of court in va- cation. [Title.] This cause having been heretofore referred by the court of this county to E. F., as referee, and the said referee being unable to serve by reason of sickness, now upon the written consent of the parties hereto [or, upon the applica- tion of the herein, and reasonable notice thereof to the ilf it is desired that the referee reduce his testimony to -writing, it must be so ordered in the order of reference. See sec. 5213. When so reduced to writ- ing, signed by the witnesses, and reported to the court, it may be used as a deposition, by sec. 5267. *This report will have the effect of a special verdict. Sec. 5213. 68 JOURNAL ENTRIES. [SEC. 5213- said ], I do hereby order and direct tliat this case be re- ferred to G. H., as referee, to the same extent and upon the same issues as in the former reference. And it is ordered that the said G. H. report to the said court without unnecessary dehiy. 135. Order to coinpeP report of referee. [TiUe.] ^ On motion of C. B., attorney for the , it is ordered that E. F., the referee appointed in this action, report herein within ten days after service of a copy of this order, or show cause why an attachment shoukl not issue against him. 136. (Sec. 5213.) Judgment on the report finding fads and laWy. when no motion for a new trial has been made. [Title.] And now this cause coming on for hearing on the report of the referee, heretofore filed herein, and on motion of the plaintiff' for judgment thereon, and no motion for a new trial having been filed* ; it is considered that the plaintiff" recover from the defendant the sum of $ , by said report found to be due, together with his costs herein expended, in- cluding the sum of dollars, which the court allows to T. R., the referee, for his services herein, taxed at ^ . 137. Motion to set aside report finding facts and law overruled,. and judgment on the re/port. [Title r\ And now this cause coming on for hearing on the report of the referee, and on the motion to set aside the same and for a new trial," the court on consideration overrule said motion.* It is therefore considered, etc., [as in last decree]. ^If he neglect to report, he may be compelled to, by attachment. Stafford V. Heskith, 1 Wend. 71. * By section .5305. —5218.] TRIAL BY REFEREES. 69 138. (Sec. 5213.) Judgment on report finding the facts only, when no motion for a new trial has been filed. [Title.'] And now tliis cause coming on for hearing on the report of the referee of his finding of facts, and no motion for a new trial having been filed, the court finds that the law aris- ing upon said facts is with the phiintifi^, and that there is due him from the defendant the sura of doHars. It is therefore considered that the plaintifi:' recover from the defendant the said sum of $ , together with his costs herein expended, including the sum of $ , which the court allows to T. K., the referee, for his services herein, taxed at $ . 130. (Sec. 5213.) Motion to set aside report finding facts only overruled, and judgment entered. ITitle.-] And now this cause coming on for hearing on the report of the referee, of his finding of facts, and the motion to set aside the same, the court, on consideration, overrules said motion, and finds that the law arising upon said facts is with tlu' plaintiflJ", and that there is due him from the defendant the sum of doHars. It is therefore considered, etc. \_as in last decree.'] 140. (Sec. 5305.) Beport set aside, and a new trial granted. [Title.] And now this cause coming on for hearing on the report of E. F., referee herein, and on the motion to set aside the same, and for a new trial, the court, on consideration, grants the said motion, and said findings and report are hereby va- cated, * and a new trial is awarded before the said referee. 141. (Sec. 5305.) Same, before another referee. [Title.] As in list to *, and continue:] — And the court do hereby discharge and remove the said E. F. from any further hear- ing or reporting in the said action as referee, and do now, on motion of the said , hereby appoint G. H. referee in 70 JOURNAL ENTRIES. [SEC. 52111— this action, iu lieu and stead of the said E. F., with the same powers and instructions as heretofore given to the said E. F. by the former ordei^o^iroference. And the said referee now here appointed is di\^ted to report herein without unneces- sary delay. ^^ v SUBDIYrKIO]^ V. — Trial by mastkk commissioners. 142. (Sec. 5i|^0.) Order appointing regular master ccmmissioner. 143. (Sec. Sifc"^^ Order of refei'ence to take testimony and report con- ^^ elusions, etc. 144. (SAe, 521^2.) Order referring to special master. 145. (SWl 5222.) Confirmation of report, and judgment. 146. (Sec.^^22.) Same, another form. 147. (Sec. 5222.) Exceptions to report in part sustained, and report modified. 148. (Sec. 5222.) Exceptions sustained, and report set aside. Reference, as before the code — 149. Order referring case to a master, to take an account. 150. Order to ascertain a fact. 151. Confirmation of report. Master commissioners are either regular or special. The appointment of the special master is made in the order of refer- ence, and the object of his appointment there specified. Under section 5222, any action in which neither party is entitled to de- mand a trial by a jury, may be referred to a regular or special master com- missioner, for the trial of the issues arising upon the pleadings.^ This section only applies to cases where the master finds the facts involved in the issues, and does not profess to regulate the practice where the chancellor calls upon a master to state an account, or determine some other fact auxiliary to the final determination of the cause by the court.* The report may be excepted to by the parties, and be confirmed,, modified, or set aside by the court. ^ In case of judgment on the report, and appeal taken from the Com- mon Pleas to the District Court, the cause stands for trial in the appellate court upon the same issues as in the court below, and the parties are entitled to introduce any competent testimony, without regard to the question whether it was or might have been introduced before the master. '^ 1 Bell V. Crawford, 25 Ohio St. 402, 411, construing section 611 of the old codei which was the same as section 5222, Rev. Stat. 2 lb. 412. 3 Sec. 5222. -5222.] TRIAL BY MASTER COMMISSIONERS. 71 142. (Sec. 5219.) Order appointing regular master commissioner. Ill the matter of the 1 appointment of A. B., master commissioner, j On application of A. B., he is hereby appointed a master commissioner of this court for the term of three years. And the court direct that the undertaking of the said A. B. as sucli master commissioner, as required by law, be given in the sum of ^ dollars. And now comes the said A. B., and is duly sworn, and gives liis undertaking aforesaid, with R. S. and L. E. as sureties, to the approval of the court. 143. (Sec. 5222.) Order of reference to master commissioner to take testimony in ivriting, and report with his conclusions on the law and facts. [Tiilt.'] On motion of the plaintiff [or, defendant], and good cause being shown therefor, it is ordered that this cause be, and it hereby is, referred to F. G., one of the master commissioners of this court, to take the testimony offered by the parties in writing, and report the same to the court, with his conclu- sions on the law and facts involved in the issues, without unnecessary delay. [It is further ordered that the said master require the wit- nesses severally to subscribe their testimony herein.]- 144. (Sec. 5222.) Order referring to special master.^ [Title:] On motion to the court by the herein, and for good cause shown, it is ordered that this cause be, and the same hereby is, referred to S. M., who is hereby appointed a special master commissioner for that purpose, who shall forthwith, upon being duly qualified, proceed to [set out the duty given him.] 1 The amount of the undertaking is, in Hamilton county, fixed by custom at fifteen thousand dollars. ^Optional with the court, by section 5223. When so taken and reported to the court, such testimony may be used as a deposition, by section 5267. ^For appointment in case of sale of specific real property, see Sale of mort- gaged PREMISES, p. 106, and the decrees thereunder. 72 JOURNAL ENTRIES. [SEC. 5222- [And it is ordered that, before entering upon his duties, said S. M. shall enter into an undertaking, to the approval of the court and conditioned according to law, in the sum of $ .J And thereupon came the said S. M,, and was duly sworn as such special master, and presented his bond, with S. T. and C. E. as sureties, to the approval of the court. 145. (Sec. 5222.) Confirmation of report, and judgment. [Title.'] This cause coming on for hearing on the report of the mas- ter commissioner [or, special master commissioner], to whom the same was heretofore referred [and the exceptions thereto], on consideration thereof by the court, [the exceptions are overruled, and] the report and all the matters and findings therein are hereby approved * and confirmed. And the court, upon the said report and testimony, find,- etc. It is therefore considered by the court that the said ■ recover from the said the said sum of dollars, to- gether with his costs herein expended, including the sum of I , which the court allow to the said master for his serv- ices herein, taxed at $ . 146. (Sec. 5222.) Same — another form. [Title. -] As in last to *, and, continue:] — and confirmed; and it is or- dered that the findings of the said master stand as the find- ings of the court. It is therefore considered, etc. [as in last.] 147. (Sec. 5222.) Exceptions to report in part sustained, and report modified. [Title.] This cause now coming on to be heard upon the report of 1 The special master need not give bond, unless so ordered by the court ap- pointing him. ^The finding may be simply of the amount due, or any other special finding. Or it may be, " that the facts are as found by the report of the master." —5222.] TRIAL BY MASTER COMMISSIONERS. 73 the master commissioner, to whom said cause was heretofore referred, and the exceptions to the report, the court, upon consideration thereof, sustain the exceptions in part, to wit, tlie chiuses numbered 3 and 4, and overrule the balance; and the report of the referee is accordingly modified in this, to wit [j^peeify'], and with this modification the said report is confirmed. And the court, upon said report and testimony, find,^ etc. It is therefore considered, etc. [fondude withjadg- ment, as in No. 145.] 148. (Sec. 5222.) Exceptions to report sustained and report set aside. [Title:] This cause now coming on to be heard upon the report of the master commissioner, to whom said cause was heretofore referred, and the exceptions to the report, the court, upon consideration, find the exceptions well made, and sustain the same. The said report is therefore set aside and held for naught. Reference as before the code — Besides the cases above of reference for trial of the issues, or for as- eertaiuing aud reporting the facts, there are a number of sections of the code authorizing a reference for other purposes — as, for instance, section 5477 in proceedings in aid of execution, and section 5559 for a reference to determine amounts aud priorities of several attachments. In all of these latter cases, the references should probably be governed by the rules governing references before the code. And so also in cases Avhcre the code does not specially provide for a reference, an order of reference may be made to a regular or special master, as allowed before the code, in accordance "with the usages of courts of equity for the pur- pose of taking an account, or ascertaining some other matter ancillary to the determination of the cause by the court. And the referee may be instructed to report the testimony with his findings to the court. ^ The report of the referee in all of the above cases should always be confirmed, where it is required for the purpose of enabling the court to make some discretionary order or decree, before it is adopted as the foundation of an order or decree.* ^ May be simply of amount due, or may be any otber special finding shown by the report. ^ See Bell v. Crawford, 2') Ohio St. 410-4in. s Daniels' Chancery PI. and Pr. 1308. 74 JOURNAL ENTRIES. [SEC. 5222- Exceptions may be filed to the report, aud if overruled, the report confirmed, and judgment entered by the court, and an appeal be taken, the report is not vacated by the appeal, but is brought up to the appel- late court for confirmation, modification, or vacation, as it stood in the court below, and neither party can introduce additional testimony, un- less upon some equitable showing/ 149. Order referring case to a master to take an account. [Title.'] On motion of the , and for good cause shown, it is or- dered that this cause be, and the same hereby is, referred to F. G., one of the master commissioners of this court, with all the powers of a master in chancery,* to take an account, and ascertain and report to this court the amount due, etc. \_specify?^ And the said master is ordered to report [the tes- timony,- with] his findings, to the court, without unnecessary- delay. 150. to ascertain a fact. {Title.'] As in last to^, and continue:] — to ascertain and report to this court [specfy the fact to be determined.] And the said master is ordered to report [the testimony,- with] his findings, to the court, without unnecessary delay. 151. Confirraation of report. [Title.] This cause now coming on for hearing on the report of the referee \or, master commissioner; or, special master commis- sioner], to whom the same was heretofore referred [and the exceptions thereto], on consideration thereof by the court [the exceptions are overruled, and] the report and all the matters and findings therein are hereby approved and con- firmed as the finding of the court. Judgment may or may not accompany the confirmation of the mas- ter's report, according to the nature of the facts reported. If they are of iSee Bell v. Crawford, 25 Ohio St. 410, 411, 413. 2 Optional with the court. -5227.] TRIAL ON APPEAL. 75 8uch a nature as to entitle the party to a judgment, without further finding of facts, the court will render its judgment when it confirms the report. In that ca.se the entry may l>e the same as No. 145 or 146. Entries of exceptions sustained and report modified or set aside, may also Ixi made by slightly modifying Entries Nos. 147 and 148. 75a JOURNAL ENTRIES. [SEC. 5225- SUBDIVISION VI.— Trial on appeal. Appeal FROii the common pleas to the circuit court — Entries in the COMMON pleas — 151a. (Sec. 5226.) Notice of appeal from order dissolving injunction, etc. 152. (Sec. 5227.) Notice of appeal. 153. (Sec. 5229.) Notice of appeal by administrator or executor. 151. (Sec. 5230.) Order fixinej penalty of appeal bond, etc. 155 (Sec. 5232.) Notice of appeal by one of several parties. Entries in the circuit court — 155a. (Sec. 52"J6.) Suspending execution of order dissolving injunction, 156. (Sec. 5233.) Order for new undertaking. 157. (Sec. 5233.) Appeal dismissed for want of new undertaking. 157a. (Sec. 5235.) Suspending execution of judgment for injunction. 158. (Sec. 5237.) Judgment for plaintiflFwho fails to recover more, etc. 159. (Sec. 5238.) Penalty allowed when there was no reasonable ground for appeal — in case of money judgment. 159a. (Sec. 5238.) Same — in case of judgment other than for money. 160. (Sec. 5238.) Penalty when appeal is for delay — money judgment. ]60a. (Sec. 5238.) Same — in case of judgment other than for money. 161. (Sec. 5238.) No penalty allowed. 162. (Sec. 5239.) Entry remanding to common pleas court. 163. (Sec. 5239.) Same — in decree for sale. -Appeal from a justice to the court of commox pleas. Ist. Ill case of appellant! s failure to file transcript. 164. (Sec. 6588.) Case docketed, etc., and judgment in common pleas. 165. (Sec. 6588.) Case docketed, etc., and appeal dismissed. 2rf. In case of plaintiff^ s failure to file petition after transcript filed. 166. Dismissal for want of petition. 167. (Sec. 6589.) Judgment. for defendant. 3(/. In other cases. 168. (Sec. 6594 ) . Judgment quashing an appeal. 169. Appeal dismissed for want of jurisdiction. 170. (Sec. 6595.) Order for new undertaking. -Appeal fiiom probate court to the court of common pleas. .\ppeal from county commissioners to the court of common pleas. 170a. (Sec. 896.) Judgment on appeal. -5226.] trial on appeal. 70 Appeal from the common pleas to the circuit court; entries IN the common pleas — The notice of appeal may be entered on tlie journal as a separate entry, or may be added to the judt^inent or oi"i)eal to the Circuit Court, and good cause being shown, the operation of this or- der is suspended for days. 152. (Sec. 5227.) Notice of appeal. [TUle.] Now comes the , and gives notice of his iutentioa tO' appeal this cause to the Circuit Court. The court may add by virtue of sec. 5231 :] And the court directs that the appeal bond be made paya- ble to [the adverse party, or otherwise, in its discretion.] Also by sees. 5226, 82 O. L. 32, and 5234 :] And on motioa of the execution is stayed for days. [Add terms, if any.] 153. (Sec. 5229.) Notice of appeal by administrator or executor^ [7Vf/-.] Now comes R. S., administrator of the herein, who has died since giving notice of appeal, and gives notice of 1 Moore v. Brown, 10 Ohio, 197. 76a JOURNAL ENTRIES. [5230- bis intention as such administrator to appea. this cause to the Circuit Court; and the said R. S. having as such administra- tor given bond in this state according to law, no appeal bond is required.^ 154. (Sec. 5230.) Order fixing penalty of appeal bond in case of judgment other than personal for money . Add to t lie judgment entry ;] And the court lix tlie penalty of the bond to be given in case of appeal at dollars. 155. (Sec. 5232.) Notice of appeal by one of several parties. [ litle.'] And now comes the said E. F., one of the above , and gives notice of his intention to appeal so much of this cause as affects him to the Circuit Court; and, on motion, his said appeal is allowed on his giving bond in the sum of dol- lars, conditioned [Iiere state the condition as fixed by the courty and any order as to papers and pleadings. The same clauses may also be added as after entry JS'o. 152.] Appeal from the common pleas — Entries in the circuit COURT. Entries amending pl^adings,^ and making new parties^ in the District Court, will be the same as in the Common Pleas. 155a. (Sec. 5226, 82 0. L. 32.) Suspending execution of order made by Common Pleas dissolving injunction. [Title.] On motion of the - — — and argument of council [or, reason- ble notice to the ], it is hereby ordered that the order made by the Court of Common Pleas in this case dissolving the injunction be, and is herebv, suspended and stayed, by virtue of the appeal and bond given, until the linal hearing or further order in this court. 1 See sec. 5228. ''Sec. 5225. » Babcock v. Camp, 12 Ohio St. 11. :r^ -5233] TUIAL ON APPEAL. 77 150. (Sec. 5233, 82 O. L. 32.) Onhr for 7ieio undertaking. [Title.] It appearing to the court that the surety in the undertaking for the appeal in the case lias removed from tiie state [or other- wise become insufficient], it is liereby, on motion, ordered that a new undertaking be given [or change or renewal made, as the case may be], with security to the approval of this court [or, the clerk of this court], within — — days. 157. (Sec. 5233.) Appeal dismissed for want of neio undertak- ing. [ Tdle.] On motion to the court, and it appearing that the appellant has failed to comjily with the order herein for a new under- taking on the apiieal : It is therefore considered by the court that said appeal be, and the same hereby is, dismissed. 157a. (Sec. 5235, 82 0. L. 32.) Suspending execution of jndg. ment for an injunction rendered by Common Pleas Court, in case of appeal. [Title.] On motion of the and argument of counsel, it is hereby ordered that the judgment rendered by the Court of Common Pleas in this case granting an injunction be, and hereby is, susjjended and stayed by virtue of the appeal and bond given until final hearing or further order in this court. 158. (Sec. 5237.) Judgment for plaintiff" icho fails to recoreron his appeal more than in the court below. [Title.] Use forms in Common Pleas with following addition: And the plaintiff herein not recovering a greater sum than in the court below, it is ordered that he pay all the costs iu this court. 78 JOURNAL ENTRIES. [SEC. 5238- 159. (Sec. 5238.) Penalty allowed when there was no reasonable ground for appeal, in case of money judg- ment. [Title.'] Enter judgment in the usual form., and add:] And this judgment being substantially the same as was rendered by the court below, it is further adjudged that the appellant pay to the appellee as damages thereon five per cent of the judgment below, to wit, the sum of dollars. 159«. (Sec. 5238.) Same, in ease of judgment other than for money. ITitle.'] Enter judgment in the usual form, and add :] And this judgment being substantially the same as was rendered by the court below, it is further adjudged that the appellant pay to the appellee as damages thereon the sum of dollars. 160. (Sec. 5238.) Penalty allowed when the appeal is for delay, in case of money judgment. [Title.] Add to the usual judgment :] And this judgment being substantially the same as was rendered by the court below, and the court further finding that this appeal was for the purpose of delay merely, it is therefore adjudged that the appellant pay to the appellee as damages thereon ten per cent of the judgment below, to wit, the sum of dollars. 160(2. (Sec. 5238.) Same, in case of judgment other titan for money. [Title.] Add to the usual judgment :] And this judgment being substantially the same as was rendered by the court below, and the court further finding that this appeal was for the purpose of delay merely, it is therefore adjudged that the appellant pay to the appellee aa damages thereon the sum of dollars. -5230.] TRIAL ON APPEAL. 79 IGl. (Sec. 5238.) No -penalty allowed} [Tille?^ Add to the judgnicjit :'\ — And the court tiiiding that there was reasonable ground for this ai>peal, no penalty is allowed. 162. (Sec. 5231).) Entry remandhuj to Common Pleas Court. [Title.] Add, to the judgment entry •] — It is further ordered that this case he remanded to the said Common Pleas Court of county for execution [or, for further proceedings]. 163. (Sec. 5230.) Same — in decree for sale.''' {ntie.-] Enter judgment and order for sale., as in the Common Fleas; but, instead of the order that the sheriff or master report his pro- ceedings to this court, order •] It is further ordered that this cause be remanded to the Common Pleas Court of county, to carry this decree into execution, and for all further proceedings. Appeal from a justice of the peace to the common pleas COURT — For the time provided for filing pleadings in these appeals, see section 6598. 1st. In case of appellant's failure to file transcript. 164. (Sec, 6588.) Case docketed on behalf of appellee, and judg- ment in Common Pleas. [Title.] This day came the defendant [or, plaintiff] herein, and filed a transcript of the proceedings and judgment of H. M., a 'This entry is not absolutely necessary, as no penalty will be taxed unless expressly allowed. •'The order for sale may issue out of the Circuit Court by sec. 5289, as amended, 82 O. L. 33, and all further proceedings be had there, in the same manner as in the Common Pleas. Or the case may be remanded and the order be issued out of the Common Pleas Court, the judgment and decree for sale being a final or- der. See Teaff r. Hewitt, 1 Ohio St. 511. 6 80 JOURNAL ENTRIES. [SEC. justice of the peace in and for county, in a certain ac- tion between the above named parties, from which it appears that on the day of , 18 — , a judgment was rendered by said justice in favor of this and against this , for the sum of $ , and $ , costs of suit ; from which judg- ment the said , appealed. And it appearing to the court that the appellant has failed to deliver a transcript of the proceedings and judgment afore- said to the clerk of this court, and cause his appeal to be docketed within the time required by law, and the said C. D. now here electing to have judgment entered in this court : It is therefore considered by the court that the said C. D. recover from the said A. B. the said sum of dollars, the judgment, and dollars costs of suit as aforesaid, with in- terest from [same date as beloiv'\, together with his costs herein in this court expended, taxed at $ ; and execution is awarded therefor. 165. (Sec. 6588.) Case docketed for appellee, and appeal dis- missed. ITitle.'] This day came the defendant [or, plaintiff] herein, and filed a transcript of the proceedings and judgment of II. M., a jus- tice of the peace in and for county, in a certain action between the above named parties, from which judgment the said plaintiff [or, defendant] appealed. And it appearing to the court that the appellant has failed to deliver a transcript of the proceedings and judgment aforesaid to the clerk of this court, and to cause his appeal to be docketed within the time required by law : It is therefore, on motion, ordered that the said appeal be docketed on behalf of the appellee, and dismissed at the cost of the appellant; and that said cause be remanded to H. M., said justice, to be proceeded in as though no appeal had been taken. 2. In case of plainiiff's failure to file petition «ifter transcript filed. If the judgment before the justice was for the plaintiff, and, after appeal and ti'anscript filed by the defendant, the plaintiff fails to file his petition, t'.ie case may be dismissed at plaintiff's cost. .] TRIAL ON APPEAL. 81 If the judgment before the justice was for the defendant, and the plaintiff appeals and fails to file his petition, or otherwise fails to pros- ecute his appeal, judgment maybe entered fur the defendant for the amount of the judgment rendered against the plaintiff by the justice, together with interest and costs.* If the judgment for defendant was for his costs only, a dismissal of the case at plaintiff's cost, as above, is usually entered. 1G6. Dismissal, for irant of petition. [Title.] This case is dismissed for want of petition, at plaintiff's cost, and execution is awarded. 167. (Sec. 6589.) Judgment for defendant, [rule.'] This day came tlie defendant, and the plaintiff being in default for petition [or, hacing otherwise neglected, to prosecute his action to final judgment :] It is therefore considered that the defendant, C. D., recover from the plaintiff', A. B., the sum of dollars, the judg- ment, with interest rendered by said justice, together with his costs herein expended ; and execution is awarded. Zd. Li other cases. If the appeal is quashed for want of jurisdiction in the court appealed from, no judgment for costs can be rendered. - If a case, on appeal, is dismissed for want of jurisdiction of the court of appeal, no judgment for costs can be rendered.^ 168. (Sec. 6594.) Judgment quashing an appeal. [Title.] I^ow came the parties herein, and it appearing to the court that [the cause must here be set forth], on motion of the said , and due consideration had, it is ordered and adjudged that the said appeal be quashed, vacated, and held for void, ' Sec. 6589. ^ Paine v. Comm'rs, Wright, 417. 3 Norton v. McLeary, 8 Ohio St. 210. 82 JOURNAL ENTRIES. [SEC. at the cost^ of the , taxed at $ ; aud execution is> awarded therefor. 169. Appeal dismissed for ivant of jurisdiction. [7itle.] On motion of the , and it appearing that this court has no jurisdiction herein, the petition is hereby stricken from the docket. 170. (Sec. 6595.) Order for new underto.kiiig. [Title.'] It appearing to the court that the surety in the undertake ing for the appeal in this case is insufficient [or, that the un- dertaking in this case is insufficient in form in this {state how), or in ainount], it is hereby, on motion, ordered that a new- undertaking be given [or change or renewal made, as the case may be], with good security, and that this entry be certified to H. M., the justice of the peace from whose judgment this appeal was taken. Appeal from probate court to the court of common pleas — > In cases of appeal from the Probate Court the order or judgmeut will be made as though the Common Pleas had original jurisdiction,'^ except that the formal part of the entry will be different. For form,, see Entry No. 779. Appeal from county commissioners to the court of common: PLEAS Appeals from the county commissioners allowed by sec. 896, are only allowed in cases founded upon claims and demands against the county in its quasi corporate capacity.^ If judgment is rendered against the county commissioners for the- payment of money, it may be in the following form : 1 But see supra. '^ See sec. 6407. 3 Bowersox et al. v. Watson et al., 20 Ohio St. 506; Shepard v. Comm'rs of Darke Co., 8 Ohio St. 3.57. .] MEANS OF SECURING ATTENDANCE. 83 170a. (Sec. 896.) Judgment on appeal from county commission- ers. [Title.'] This cause came on this day to be heard and was submitted to the court on the .pleadings and evidence ; and on con- sideration thereof the court tind on the issue joined for the plaintiff, and llnd that there is due him on the claim set up in his petition the sum of dollars. It is therefore considered ])y the court that the plaintiff recover ui)Oii his said claim the said sum of dollars, together with his costs herein expended, and that the auditor of county issue his warrant upon the treasurer for payment of the same.' CHAPTER m. EVIDENCE. Subdivision II. Means of .skcuring attendance. III. Modes of taking testimony. IV. Admission and inspection of documents. V. Variance. SUBDIVISION II. — Means of securing attendance. Rule — 171. (Sec. 5253.) Rule allowed. 172. Rule discharged. 173. (Sec. 5254.) Judgment on rule. Attachment — 174. (Sec. 5254.) Order for. 175. Attachment discharged. 17t). (Sec. 5253.) Judgment on attachment. Proceedings against, and punishment of, witness — 177. (Sec. 5254.) When witness refuses to be sworn, etc. 178. (Sec. 5255.) Discharge from imprisonment, etc. 1 See sec. 1024, and Comm'rs of Clermont Co. v. Robb et al., 5 Ohio, 490. 84 JOURNAL ENTRIES. [SEC. 5240- Testimoxy of prisoner — 179. (Sec. 5257.) Order for oral. It is doubtful whether, in any case, a party, where he is sworn and testifies as a witness in his own behalf, can recover fees. To author- ize the allowance, he should be required to show that he did not attend as a party, nor attend to the conduct of the trial of the cause ; and that the sole purpose and intent of his attendance Avas as a witness.^ Rule — 171. (Sec. 5253.) Bule allowed. [Title.'] On motion of 's attorney, a rule is allowed to issue against E. F., commanding liim to appear forthwith [or at any sjjecified time'], as a witness in this case, and to show cause why he should not be attached for contempt in disobeying the subpoena of this court. 172. Rule discharged. [Title.] And now the said E. F. having appeared, and having been examined touching his disobedience of the subpoena of the- court in this case, on consideration thereof.* it is ordered that said rule be discharged at the cost of the . 173. (Sec. 5254; 77 O. L. 45.) Jadgment on rale. [Title?[ As in last to *, and continue:] — the court do find that he has been thereby guilty of a contempt. It is therefore ordered that a fine of % be imposed upon the said E. F., for this, his said contempt, and that he pay the costs of the proceedings under this rule ; for both of which execution is awarded. Attachment — If the witness has been served personally by subpoena, or on rule,, and has disobeyed the same, an order for attachment may be had. 1 Logan V. Thomas et al., 11 How. 160. -5274.] MEANS OF SECURING ATTENDANCE. 85 174. (Sec. 5253.] Order for attachment. [Title.'] Oil motion of the attorney for the , it is ordered that an attucliincnt issue herein, commanding the sherifi'to arrest and bring E. F. before this court forthwith [or at any specified time'], to give his testimony in this case, and to answer for his contempt in disobeying the subpoena [or, rule] of tlie court. Jf tlic order is to appear at some future time, the court may also add:] — And the court fix the undertaking of tlie said E. F. for his appearance at % . 175. Attachment discharged. [Title.] Now came the said E. F., in charge of the sheriff, upon the attachment heretofore issued against him, and tlie court hav- ing examined tlie said E. F. [or, heard tlie evidence] touching his alleged contempt, do, on consideration * thereof, order that said attachment be discharged at the cost of . 170. (Sec. 5254 ; 77 O. L. 45.) Judgment on attachment. [Title.] As in last to *, and continue:] — find that the said E. F. is guilty of the same. It is therefore ordered that a fine of $ be imposed upon the said E. F. for this, his said contempt, and that he pay the costs of these proceedings, for both of which execution is awarded. PrOCEEDINGIS AGAn>ST, AND PUNISHMENT OF, WITNESS 177. (Sec. 5254; 77 0. L. 45.) When loitness refuses to he sworn, etc. [Title.] And now E. F., a witness in this action, having been called upon therefor, and having refused, as such witness, to be sworn [or, to answer the following question propounded to 86 JOURNAL ENTRIES. [SEC. 5255- him, to wit {state questiov}), or, to subscribe his deposition taken herein] ; and having been personally examined touch- ing his said refusal, on consideration thereof, the court do find that he is thereby guilty of a contempt of court. It is therefore ordered f that a fine of $ be imposed upon the said E. F. for this, his said contempt, and that he pay the cost of this proceeding ; for both of which execution is awarded. Or, t that the said E. F. be imprisoned in the jail of this county, there to remain until he shall submit so to be sworn [or, testify, or, subscribe said deposition]; or l)o otherwise duly discharged. 178. (Sec. 5255.) Discharge from, imprisonment in certain case. [Title.] In this cause the application of E. F., by his attorney, for discharge from imprisonment being heard before me, I do find that the imprisonment of the said E. F., made by order of , before whom his deposition was being taken, is il- legal, and therefore order that the said E. F. be forthwith discharged from said imprisonment. Testimony of prisoner — 179. (Sec. 5257.) Order for oral testimony. ' , [litle.'] On motion of the , and it being necessary to have the oral testimony in this case of one E. F., now confined in the jail of county, it is hereby ordered that the sheriff of said county produce said prisoner for such oral examination before this court, on the day of , 18 — , at the hour of o'clock, - M. SUBDIVISION III. — Modes of taking testimony. 180. (Sec. 5272.) Commission to take depositions. 181. (Sec. 5286.) Exceptions sustained. 182. (Sec. 5286.) Exceptions overruled. ^So that it may be stated in the order of commitment, as required by section 6256. -5287.] ADMISSION AND INSPECTION OF DOCUMENTS. 87 180. (Sec. 5272.) Commission to take depositions. [Title] On motion of the herein, it is ordered that a commis- sion he granted to issue to G. II., of tlie county of , and State of , authorizing and requiring him to take the deposition of [give name and residence], upon the written in- terrogatories herein filed, and to return the same to this court without unnecessary dehiy. And it is ordered that proper notice of the time and place thereof be given to the respect- ive parties. 181. (Sec. 528G.) Exceptions sustained. [Title.] This cause being this day heard upon the exceptions of the to the deposition of , taken in the case, the court, on consideration of the premises, find * said exceptions well taken, and do sustain the same by reason of the defects therein mentioned. It is therefore, on motion, ordered by the court that the said deposition be stricken from the files of this case. 182. (Sec. 5286.) Exceptions overruled. [Title.] As in last to^, and continue:] — that the said exceptions are not well taken, and thev are therefore overruled. SUBDIVISION IV. — Admission' axd ixspkction of documents. 183. (Sec. 5289.) Order to produce writing. 184. (Sec. 5289.) Order to produce books, etc. 185. (Sec. 5289.) Order to produce, upon trial. 186. (Sec. 5290.) Order for examination out of court. 187. (Sec. 5291.) Order for private examination. 188. (Sec. 5293.) Order for discovery. Sees. 5289, et seq., evidently authorize the court to make an order for the production of books, etc., either before or on the day of trial, as the order may be made in cases and under circumstances where it 88 JOURNAL ENTRIES. [SEC. 5280- niight heretofore be made by a court of cliancery/ and courts of chancery formerly exercised such power.^ The books, to be produced, were formerly left with an officer of the court,'- unless, for the convenience of the party producing them, some other place was designated ; and the same should be done under the code. 183. (Sec. 5289.) Order to produce ivriting. [Title.-] On motion of the plaintiff, and due notice given, and it appearing that the defendant has in his possession a certain account between himself and said plaintiff, which is of im- portance to plaintiff as evidence in this case, it is hereby or- dered that he produce the same, etc. [Conclude as in any of the following entries concerning the production of books, accord- ing to circumstances.'] 184. (Sec. 5289.) Order to produce books, etc. [Title.] On motion of the , and due notice being given, it is hereby ordered that the said do, within days from the service of this order, produce and leave with the clerk of this court certain books in his possession, to wit [specify particulnrhf] : with liberty to the said and his attorney to examine the same, and take copies and abstracts thereof. 185. (Sec. 5289.) Order to produce upon trial. [Title.] On motion of the plaintiff, and due notice being given, it is hereby ordered that the said defendant do, upon the trial of this case, produce certain books in his possession, to wit : [specify particularly], in open court, for examination and use at said trial. 186. (Sec. 5290.) Order for examination out of court. [Titler\ On motion of the plaintiff, and due notice given, it is hereb}^ ordered that the said plaintiff and his attorney be al- 1 See Baggott v. Goodwin, 17 Ohio St. 81. 2 2 Daniels' Cli. V\. and Pr. 1389. -5298.] VARIANCE. 89 lowed, at all reasonable times, to examine, at the office of the said defendant, certain books in his possession, to wit [specify] • with liberty to take cojjies and abstracts thereof. 187. (Sec. 5201.) Onlcr for private examination. Tlu! liei'oin having- doniandod the production [or., in- spection, or, copy] of certain books [o'', papers, writings, or documents], and the alleging that the same are of such a character that they ought not to be produced [or., that an in- spection, or., copy, ought not to be allowed], it is therefore, on motion of the said , ordered and directed that a private examinntion thereof 1)C made by G. II., a master commis- sioner of this court, and that ho roi)ort to this court, accord- ing to statute, without unnecessary delay. 188. (Sec. 5203.) Decree for discovery. [Title.] Now came the plaintiff, by his attorney, and thereupon this cause came on to be heard upon the petition for dis- covery, and the interrogatories contained therein. And the defendant not demurring thereto,^ the court find that the plaintitf is entitled to the discovery prayed for in his peti- tion. It is therefore ordered and adjudged that the defendant be, and he hereby is, required, within days, to make and file full and direct answers in writing, under oath, to the in- terrogatories in said petition set forth. Wheu the answer is made and filed, the case may then be finally disposed of, costs to be paid as the court may direct. SUBDIVISION v.— Variance. 189. (Sec. 5294.) Amendment allowed in case of material variance. 190. (Sec. 5295.) Amendment allowed in case of immaterial A'ariance. Sections 169 and 170 (5294 and 5295, Ohio Code) contemplate a 1 Or, if the demurrer is heard and uverruled, enter the overruling in the usual form, and continue as in the bidanoe of this ehtrv. 90 JOURNAL ENTRIES. [SEC. 5294- case where the alleged variance has been discovered or is developed on the trial or hearing, at which time the relief, in a case to which it is appropriate, may at once be given, and the trial thereafter proceed upon the amended pleadings.^ If the objection is not made at the trial, it is too late on error to make it.^ 189. (Sec. 5294.) Amendment allowed in case of material vari- ance. [Title.'] This cause coming on this day for trial, and it being found that there is a variance between the pleading of the plaintiff and the proof adduced, and that the defendant has been mis- led thereby to his prejudice in making his defense, the court iind said variance to be material ; and the cause is continued at the cost, for the present term, of the plaintiff. And, on motion, the plaintiff' has leave to amend his petition within days. Or, such other terms may be imposed as are just and proper. Or, by consent of parties, the trial may proceed upon the amended plead- ings, if filed instanter. 190. (Sec. 5295.) Amendment allowed in case of immaterial variance. [Titled, This cause coming on this day for trial, and there appear- ing to be a variance between the pleading of the plaintiff* and the proof adduced, but it appearing that the defendant has not been misled thereby to his prejudice in making his defense, the court find said variance not to be material, and thereupon the trial proceeds, and the plaintiff is allowed to amend his petition at once to conform the same to the facts found Ijy the evidence. And said amendment is now accord- ingly filed. 1 Egbert v. Wicker, 10 How. 197. * Dayton v. Kelly, 24 Ohio St. 345. -5302.] EXCEPTIONS. 91 CHAPTER IV. EXCEPTIONS. 191. (Sec. 5300.) Exception, etc., noted. 192. (Sec. 5.'}0'2.) Order allowing bill of exceptions. 193. (Sec. 5304.) Exception withdrawn. No exception need be taken to a final judgment.' A nunc pro tunc order, made at a .'subsequent term, to the effect that a paper not identified by the bill shall be considered as a part of it, is a nullity.'^ Where a bill of exceptions stated that a certain paper, wliich was still found in the file of the case, and as to the identity of which there could be no doubt, was attached as part of the bill of exceptions, and marked with tlie letter A, but, in fact, it was not done, the court or- dered the bill of exceptions to be amended l)y attaching the paper.' A bill of exceptions must be made a })art of the record, or it can not be considered by the court of error.-^.* In case of a motion for a new trial, after judgment, being overruled, exce})tion taken and a bill of exceptions allowed, filed, etc., it is some-! times entered up in one entry. But it is better practice to make .sep- arate entries; one overruling the motion and noting exception, and another allowing the bill. 191. (Sec. 5300.) JExcfption voted to decision entered on the record. [Title.] Add to the journal entry :] — And to the said order [or, find- ing] of the court the phiintitf [or, defendant], by his counsel, excepts. 192. (Sec. 5302 ; 87 v. 206.) Order allowing hill of exceptions. [Title?[ Now comes the , and presents to the court his certain bill of exceptions herein, which, being found by the court to ^ Commercial Bank v. Eiickingliam, V2 Ohio St. 402. 2 Busby V. Finn, 1 Ohio St. 409. 'Hasehvood v. Parker, 3 L. G. 49. * Baldwin v The State, 6 Ohio, 15. 92 JOURNAL ENTRIES. • [SEC. 5304- be true, is allowed,, signed, and sealed, and, on motion, is hereby made part of the record of this case. 193. (Sec. 5304.) Exceptions withdrawn. Kow comes the , and, by leave of court, withdraws from the files his exceptions heretofore taken herein. CHAPTER V. NEW TRIAL. On motion made within the term — 194. (Sec. 5305.) Motion granted after verdict. 195. (Sec. 5305.) Motion granted after report of referee. 195a. (Sec. 5305.) Motion granted after decision by the courr. ]95b. (Sec. 5305.) Motion for new trial, overruled. On petition after the term — 196. (Sec. 5309.) Judgmentfor anew trial — where final judgment has not been entered. 196a. (Sec. 5309.) Judgment adverse to new trial. In cases tried by jury or referee, the motion for a new trial, except for reason of newly-discovered evidence, is made before j udgment is en- tered on the verdict or report, three days being allowed for that pur- pose. So in cases where the court makes its finding on a day before en- tering judgment the motion will be filed before judgment. In any of these cases, upon motion being filed, the entry of judgment is withheld until the motion is decided. But in a case tried by the court, if the finding and judgment are entered at the same time, as is usually the case, the motion and entry will be to set aside the judgment aud for a new trial. The fact that judgment has been entered will not pre- clude a new trial being allowed under section 5305. On motion made within the term — 194. (Sec. 5305.) Motion granted after verdict. {T^tle^^ This cause being heard on the motion for a new trial, the -5309.] NEW TRIAL. 93 court, on consideration thereof, i^runt the same; and the ver- dict is hereby vacated and a new trial ij-ranted. 195. (Sec. 5305.) Motion f/ ranted after rqjort of referee. [ Title.] See Entries JSos. 140 and 141. 195«. (Sec. 5305.) Motion granted after decision fjy the court. [ Title.] This cause being heard on the motion [to set aside the judgment and] for a new trial, the court, on consideration thereof, grant the same; and the [judgment and] finding of the court [are] is accordingly set aside, and a new trial is granted. For entry of niotiou overruled aud judgment on verdict, see No. 252. For motion overruled and judgment on report of referee, Nos. 137 and 139. For motion overruled and judgment after decision by the court, No. 1976. 1956. (Sec. 5305. Motion for new trial overruled. [Title] This cause being heard on the motion [to set aside the judgment] and for a new trial, the court, on consideration, overrule the same. On petition after the term — The following entry is for a case Avhere judgment has not been en- tered by the court on the verdict, report of referee, or its own decision. If such judgment has been entered, use Entry No. 270, post. 196. (Sec. 5309.) Judgment for a new trial in a case where final judgment has not been entered. [Title.] This cause now coming on for hearing upon the ^^etition for a new trial in case numbered of this court and the evidence, the court find that the grounds for a new trial set up in said petition are such as could not with reasonable dili- gence have been discovered at the term when the verdict [or, 94 JOURNAL ENTRIES [sEC. 5300- report ; or, decision] in said case was given [or, made], and that, by reason of the facts so set np, the plaintiiF is entitled to a new trial of said cause. It is therefore adjudged that the verdict [or, report of the referee ; or, decision of the court] in the case above named, wherein the said A. B. is plaintiff and C. D. is defendant, lie, and it hereby is, vacated, and a new trial of said cause is granted. It is further considered that the costs in this case abide the result of said case Ko. [or other order as the court may viake']. 196a. (Sec. 5309.) Judgment adverse to a new trial. [TUle.'] This cause now coming on for hearing upon the petition for a new trial in case No. of this court, wherein the said A. B. is plaintiff and C. D. defendant, the court finds upon the evidence adduced that the plaintiff herein is not entitled to the new trial petitioned for, and therefore refuses- the same. And it is adjudged that the defendant recover from the plaintiff" his costs herein expended. DIVISIOiT IV.— Judgment. Chapter I. Judgment ix gexeiial. II. JUDGMEXT UPdX FAILURE TO AXSWER. III. JuDGMEXT BY CDXEESSIOX. IV. Manner of giving and exterixg judgment. V. Jddgment for costs and its enforcement. VI. New trial and other relief after judgment. VII. Revivor of, axd new parties to judgment. -5300.] JUDGMENT IN GENERAL. 05 CHAPTER I. JUDGMENT I.\ GENERAL. JlTDOMIONT O.V FINDING PUKVIOISLV MADK HY THE COLRT FoRMS I'.'T. Judf^ment on findini^ when no motion for new trial has been made. lUTiv. Same — for defenchiiit. J 97b. Motion for new trial overruled, and judgment on finding. Forms ok .iud^.mknt — Finding I. On submission of issue triable only by the court. Finding II. On submission to the court, jury waived. Finding III. General finding by the court on issue joined. Finding IV. For judgment taken on defendant's default. 198. (Sec. 5311.) For jilaintifT, in action for money only. I'.t9. (Sec. S.'ill.) For one of several plaintiffs. 1200. (Sec. 5.511.) For plaintiff against one of several defendants. 201. (Sec. 5.'{11.) For plaintiff atrainst one defendant and for another. 1202. (Sec. .')311.) For plaintiff by default against one defendant, and on submission against another. 203. For plaintiff, for amount admitted by answer — balance waived. 204. Same — case continued as to balance. 205. For plaintiff for balance, after admitting counterclaim. 206. (Sec. 531 1.) For defendant, for costs. 207. (Sec. 5311.) For one of several defendants. 208. (Sec. 5311.) For defendant against one of several plaintiffs. 209. For defendant, on petition and counterclaim. 210. (Sec. 5315.) For defendant on counterclaim or set-off, after petition dismissed. 210a. (Sec. 5329.) For defendant for balance due on counterclaim, etc. Judgment of dismissal — 211. For want of jurisdiction. 212. (Sec. 5313.) For neglect in serving other defendants. 213. (Sec. 5314, 1.) Dismissal without prejudice — by plaintiff. 214. (Sec. 5314, 2.) Dismissal for want of prosecution. 215. (Sec. 5314, 3.) Dismissal for want of necessary parties. Sale of mortgaged PROPtRTT — Preface I. For a decree for sale of mortgaged premises after trial on pleadings. Preface II. For a decree for sale of mortgaged premises on defend- _ ant's default. 7 96 JOURNAL ENTRIES. [SEC. 5310- Decrees for sale — 216. (Sec. 5316.) Amount found due to plaintiff [with personal judg- ment], and decree for sale — no cross-petitioner. 217. (Sec. 5316.) Amount found due to plaintiff and cross-petitioner [with personal judgment], and decree for sale — when all the notes are secured by one mortgage. 218. (Sec. 5316.) Same — when notes are secured by several mortgages. 219. (Sec. 5316.) Decree finding part of several notes due [personal judgment], and decree for sale. 220. (Sec. 5316.) Decree foreclosing mortgage given to indemnify, etc., and ordering sale. 221. Decree finding a deed and lease back a mortgage, and for fore- closure. 222. (Sec. 5316.) Order to subdivide. 223. (Sec. 5317.) When property situated in more than one county — order that sheriffs of respective counties sell. 224. (Sec. 5317.) One officer directed to sell the whole. Confirmation and distribution — 225. Decree of confirmation, order for deed and distribution. 226. Personal judgment for balance remaining due. 227. Execution awarded for balance remaining due. 228. Confirmation and distribution, in case of part of several notes. Building association decrees — 229. Decree for sale. 230. Confirmation and distribution. A judgment is the final determination of the rights of the parties in an action.' A decree is defined to be the judgment or sentence of a court of equity, either interlocutory or final ; and as the code abolishes the dis- tinction between law and equity proceedings, the term "decree" is scarcely recognized. The form is preserved without the name.^ The distinguishing characteristic of a judgment is its finality. Noth- ing more must remain that requires the action of the court, except to carry into effect the rights of parties fixed by the judgment.' The judgment may be analyzed into three parts— the formal preface, iCode, sec. 5310. »See The State v. McArthur, 5 Kan. 280. 'Kelly V. Stanberry. 13 Ohio, 421. -5310.] JUDGMENT IX GENERAL. 97 the finding, and the adjudication or mandatory part. In every case each should be distinctly formed, either in the same or in separate entries. The formal preface should made a clear statement of the pleadings and evidence upon which the case has been submitted. In ordinary judgments a general statement is sufficient. A more particular state- ment is often advisable, as in decrees for sale of real estate, etc., and where there are numerous parties, and various interests represented by different parties, set it out in separate answers and cross-petitions. In such cases, it is customary to enumerate the various pleadings upon which the case has been considered. The finding has already been considered in a previous chapter. The language of the judgment is, " It is considered," Condderatum est per curiam, implying that the judgment is rather the sentence of the law pronounced by the court than the decision of tlie court.' It must follow the pleadings, and respond to all issues.' In entering judgment, interest is calculated in some courts to the first day of the judgment term, and in others up to the first day judg- ment is entered, except that in judgment by confession, and in a suit brought within the judgment term, it is always calculated to the day of the judgment.^ The judgment bears interest at the same rate as the note without any rests, whether there were rests in the note or not.* The plaintiff is also entitled to add the cost of protest of notes executed out of, but not of those executed within, the state. The judgment will also be for costs, and the costs being in blank will not make it irregular.^ Any agreements between parties as to operation of the judgment, other than what the law would impose, should be carefully incorporated in the judgment, as by consent or order of court. If one or more of several defendants shall have been served, but not all of them, the entry giving judgment against the party served should also dispose of the parties not served, so that there may be no doubt as to their standing in the case. If they are not wanted further, the action should be dismissed as to them ; if otherwise, it should be con- tinued for further service. There is no necessity, ordinarily, for adding an award of execution to a judgment. See Execution. ^ Bouvior's Law Dictionary. ' Williams c. Directors, etc., W. 518. s Kimbal v. Connally, Scioto District Court, 1859, 1 W. L. M. 402. * Marietta Iron Works v. Lottimer, 25 Ohio St. 621. * Linton v. Housh, 4 Kan. 535. 98 journal entries. [sec. 5310— Judgment on finding previously made by the court ; forms.. As heretofore stated, it is customary to enter finding and judgment at the same time in cases Avhere the trial is had before tlie court. If, however, a party desires to enter finding only, forms will be found be- ginning with Entry No. 129. When such finding has been entered, judgment may be entered up on the finding as on a verdict of u jury. If no motion for a new trial is made, or if made and overruled, judg- ment will be entered on the findings. 197. Judgment on finding, lohen no inotlon for a neio trial has been made. iTitle:\ This court having heretofore found that the in this case was indebted to the in the sum of dollars, and no motion for a new trial having been made ; It is therefore considered that the said recover from the said the said sum of dollars and his costs herein expended. l^la. Same, for defendant. [Title.] The court having heretofore found in this case for the de- fendant, and no motion for a new trial being made ; It is therefore considered by the court that the said defend- ant go hence without day and recover from the plaintiff his. costs herein expended. 1976. Motio7i for a new trial overruled and judgment on finding., [Title:] This cause now coming on for hearing on the motion of the for a new trial, the court, on consideration, over- rules the same. fit is therefore considered by the court that the said recover from the said the said sum of dollars, as heretofore found due him, together with his costs herein ex- pended. Or, if for defendant:] fit is therefore considered by the court, that the said de- fendant go hence without day and recover from the said plaintiff his costs herein expended. -5310.] judgment in general. 90 Forms of judgment — When the findiug and judgment of the court are made and entered at the same time, the preface or formal part in the several kinds of judgment are very similar, and need not l)e repeated in all the f )rms given here. The findings are given as formuhe to be jirefixed to the several judgments according to circumstances. Finding Xo. I is fjr a judgment on submission to the court in a case ■where the issue could not be tried by a jury. Finding No. II for a judgment on suIh mission where a jury has been waived; and Finding No. Ill may be used in eitlicr case, being a general finding which may be used by the clerk or party without stopping to consider wliether the case was primarily a jury case or not. PiNDiNG I. — For julgnient on submission of an issue triable only by the court. ITitle.'] This cause coiniiig on this day for hearing, was submitted to the court upon the pleadings [or they may be particularly luniieil^ and the evidence, and on consideration thereof, the court tind ^ on the issue joined for the i>laintitt' [or, defend- ant]. Finding II. — For a judgment on submission to the court^ury waived. [Tdle.'\ This cause coming on this day for hearing, and ajury bein": waived, was submitted to the court upon the pleadings [or they may be particularly uamed'] :uul the evidence, and on con- sideration thereof, the court tind * on the issue joined for the plaintiff [or, defendant]. Or, the clerk, without determining to whicli of the above classes an action belongs, ma^" use a general form u hi in entering Judg- ments on submission to the court, as follows : FiNDi.NG III. — General find/ny by the court on issue joined. [ Title.] This cause coming on this day for hearing, was submitted to the court upon the pleadings and evidence, without the in- '^■"•vention of a jury ; on consideration whereof, the court find * on the issue joined for the plaintiff' [or, defendant]. 100 JOURNAL ENTRIES. [SEC. 5311— For convenience of future reference, the Finding for plaintiff on- defendant's default, from page 124, is also placed here. Finding IV. — For judgment taken on defendant'' s default. \^Title.'\ Now comes the plaintiff, by his attorney, and the defend- ant being in default for answer and demurrer, the court tiud* that the allegations of the petition are confessed by him to be true. 198. (Sec. 5311.) Judgment for j^laintiff in an action for money only. ITitle.'] Find as in one of the above findings, according to circum- stances, and continue:'] — and find that the defendant C. D. is indebted to the plaintiff A. B. in the sum of $ . It is therefore considered by the court that the said plaint- iff recover from the said defendant the said sum of dol- lars, and his costs ^ herein expended, taxed at 8 . 199. (Sec. 5311.) Judgment for one of seceral plaintiffs. ITitle^^ Finding page 99, and continue:] — A. B., as between him', and the said defendant, and that the defendant C. D. is in- debted to the said A. B. in the sum of dollars. It is therefore considered that the said A. B. recover from the defendant the said sum of S , and his costs herein ex- pended. And as to the plaintiff R. T. the court find that. he has no claim against the defendant, and, as to him, the petition is dismissed. 200. (Sec. 5311.) Judgment for jjlaintiff against one of several defendants. ITitle.] Find as on page 99, and continue:] — as against the de- 1 If the recovery be less than one hundred dollars, judgment for the plaintiflF's costs can not be rendered, unless the arnount of the plaintiff's claim is found by the jury to be more than one hundred dollars, and is reduced, by the allowance of a counterclaim or set-off, to less than one hundred dollars. Brunaugh v. Wor- ley, 6 Ohio St. 597. See sec. 5349. -5311.] JUDGMENT IN GENERAL, 101 feiidaut, B. C, impleaded herein, and find that said B. C. is indebted to the said plaintitt" in the sum of dollars. It is therefore considered that the plaintiff, A. B., recover from tlie said defendant, B. C, the sfiid sum of $ , and his costs herein expended. And as to the other defendants, the action is continued' [or, dismissed]. 201. (Sec. 5311.) Jndr/jncnt for plaint iff a f/ainst one defendant, and judgment for another. [Title.] Find as on page 99, and continue-] — as against the de- fendant, S. T., and that said defendant is indebted to plaintiff in the sum of dollars. And as against the defendant, M. N., the court find the plaintiff has no cause of action on the petition herein. It is therefore considered that the plaintiff, A. B., recover from the said defendant, S. T., the said sum of dollars, and his costs in this behalf expended; and that the said de- fendant, M. N., go hence without day, and recover from the plaintiff his costs herein expended. 202. (Sec. 5311.) .Tudgment for plaintiff by default against one defendant, and on submission against an- other. [Title.] This cause came on for hearing on the petition, the answer of the defendant, C. D., and the evidence, the defendant, E. F., being in default for answer and demurrer, and was sub- mitted to the court without the intervention of a jury; on consideration whereof, the court find, on the issue joined be- tween the plaintiff and the defendant, C. D., for the said plaintiff", and find the allegations of the petition confessed as against the defendant, E. F.; and that said defendants are indebted to plaintiff in the sum of ^ . It is therefore considered that the said plaintiff recover from the said defendants the said sum, etc. 'Whenever a several judgment is proper. Sec. 5312. 102 JOURNAL ENTRIES. [SEC. 5311- 203. Judgment for ■plaintiff for amount admitted by answer — balance waived. {Title:] And now the defendant having, by his answer filed herein, admitted his indebtedness to the plaintifl:' in the snni of % , and the plaintiff now waiving further claim against said defendant: It is therefore, on motion of the plaintiff, considered that he recover from the defendant, C. D., the said sum of dollars so admitted to be due, together with his costs herein expended. 204. Same — and case continued as to balance. [Title.] And now the defendant having, by his answer filed herein, admitted his indebtedness to the plaintiff in the sum of $ , it is therefore considered by the court that the plaintiff", A.B., recover from the defendant, C. D., the said sum of dol- lars so admitted to be due, together with his costs in this be- half expended. And as to the balance of plaintifTs claim, the case is continued. 205. Judgment for plaintiff' for balance, after admitting counter- claim. [Title:] And now the defendant, by his answer filed herein, not having denied the claim of the plaintifl", but having set up a counterclaim for an amount less than the claim of the plaint- iff, to wit, for the sum of dollars, and the plaintiff ad- mitting said counterclaim in open court : It is therefore, on motion of the said A. B., considered that he recover from the defendant, C. D., the sum of dollars, the excess of his, the said plaintiff's, claim, together with his costs herein expended. 206. (5311.) Judgment for defendant for costs. [Title.] Find for defendant, as in one of the Findings on page 99, and continue :] It is therefore considered by the court that the defendant. -5814.] JUDGMENT IN GENERAL. 103 C. D., go hence without day, aiul recover from the plaintiff, A. B., his costs herein expended. 207. (Sec. 5311.) Judgment for one of several defendants. [Title.] And now this cause coming on to be heard on the petition, the answer of L. M. [name any other pleadings] and the evi- dence, the court being fully advised in tlie premises, find that as against the said defendant, L. M., impleaded herein, the plaintiff has no cause of action. It is therefore considered that the said L..M. go hence with- out day, and recover from the jtlaintiff his costs herein ex- pended. 208. (Sec. 5311.) Judgment for defendant against one of seceral plaintiffs. [Title.] Find for defendant, as on page 99, and coiUinue:] — as against the plaintiff, K. S. It is therefore considered that as to said plaintiff, R. S., this petition be dismissed, and that the defendant recover from said plaintiff, E. S., his costs in this behalf expended. 209. Judgment for defendant, on petition and counterclaim. [Tide.] This cause coming on for hearing on the petition, the coun- terclaim and the answer thereto, and the evidence, was sub- mitted to the court without the intervention of a jury; on consideration whereof, the court find that the plaintiff has no cause of action, as claimed in his petition, and that upon the counterclaim herein he is indebted to defendant in the sum of dollars. It is therefore considered by the court that the defendant recover from the plaintiff" the said sum of $ and his costs herein expended. 104 JOURNAL ENTRIES. [SEC. 5314- 210. (Sec. 5315.) Judgment for defendant on counterclaim or set-off, after 'petition dismissed. [Title.] And now the plaintiff" herein having dismissed his petition, this cause came on for hearing on the set-off* [or, counter- claim] of the said defendant, the other pleadings and the ev- idence, and was submitted to the court without the interven- tion of a jury; on consideration whereof, the court finds on the issue joined for the defendant, and finds that plaintiff" is indebted to him in the sum of $ . It is therefore considered that the defendant recover, etc. 210a. (Sec. 5329.) Judgment for defendant for balance due on counterclaim or set-off. [Title.'] Find as; in one of the findings on page 99, according to cir- cumstances, to *, and continue:] — that there is due to the plaintiff' from the defendant on the claims in his petition set up the sum of dollars, and that there is due to the de- fendant from the plaintiff" upon the cause of action set up in his counterclaim [or, set-ofl^"] the sum of § . It is therefore considered by the court that the defendant recover from the plaintiff" the balance so found to be due him, to wit, the sum of dollars, and his costs herein ex- pended. Judgment of dismissal — Where a case is dismissed for want of jurisdiction of the subject- matter, the court can only strike the case from the docket, and can render no judgment for costs. ^ In other cases mentioned in section 5314, state the cause of dismissal, and if costs have been paid out by the party in whose favor the case is dismissed, he may recover them by a judgment annexed to the dismissal. An order dismissing a case for defect or irregularity of process, or in the service of process, and in no way founded on, or passing upon, the 1 Norton v. McLeary, 8 Ohio St. 205. -5014] JUDGMENT IN GENERAL. 105 allegations of the parties in their j)lea(liugs, is not a final judgment.' But otherwise, a judgment of dismissal and for costs, though without prejudice, is a final judgment. ' A plaintiff, after an answer amounting to a counterclaim has been filed, can not dismiss the action.^ 211. Dismissal for 7cant of Jurisdiction. [Title.] On motion of the defendant, and it appearing that this court has no jurisdiction of the subject-matter of this action, the case is liereby stricken from tlie docket. 212. (Sec. 5313.) Dismissal for neglect in serving other defend- ants. ITith.'] On motion of the defendant, C. D., and it being shown to the court that the plaintiff has neglected for an unreasona- l)le time to serve summons herein on E. F., co-defendant herein, it is ordered that the petition l)c dismissed at plaint- iff's cost, as for want of prosecution [but without prejudice to a future action.^] 213. (Sec. 5314, 1.) Dismissal without prejudice — by ijlaintiff. [Title.] !N"ow comes the phiintifi", and dismisses this action at his own cost without prejudice to a future action. 214. (Sec. 5314, 2.) Case dismissed for want of prosecution. [Title.] This cause being this day called for trial, and the plaintiff failing to appear in person or by attorney, the action is hereby dismissed at plaintiff's cost without prejudice to a future action. 1 Evans r. lies, 7 Ohio St. 233. 2 Philips V. Mustard, 3 W L. M. 141. 3Wiswell V. First Con. Ch., 14 Ohio St. 31. * May be added by sec. 5314, 4. 106 JOURNAL ENTRIES. [SEC. 5314- 215. (Sec. 5314, 3.) Case dismissed for v:ant of necessary par- ties. intle.'] On motion of , and it being shown to the court that N". P. is a necessary party plaintiff [or, defendant] to this action, and that he has not been made a party, the petition is hereby dismissed at plaintiff's cost without prejudice to a future ac- tion. For entries under other subdivisions of section 5314, see — 4. Entry No. 212. 5. Entry No. 267. 6. For form of vacation entry, see page 9, under which make dis- missal as in Entry No. 213. For judgment under section 5315, see Entry No. 210. Sale of mortgaged property — The power of courts to appoint special masters for the sale of specific real property, is not taken away by the code, nor is it essential, un- less required by the order of the court, that such special master give bond or take an oath of office.^ * Section 5021 provides thai, when the plaintiff asks it in his petition, a judgment for the money due may be rendered as in other cases for the recovery of money only. This judgment of course has all the effect of any other personal judgment, and execution may issue on it in addition to the order for sale.^ But where, without a personal judg- ment being taken or asked, a decree in chancery merely finds the amount due, and subjects certain securities to be sold for its satisfaction, it is not a decree for the remainder of the debt after the securities -are exhausted, nor can execution be issued for the unpaid balance.' 1 Mayer v. Wick, 15 Ohio St. 548. 2 In an action to obtain judgment on a promissory note secured by mortgage, and to foreclose the mortgage, judgment should be rendered on the note, and .an order made for the sale of the mortgaged promises. Howlett r. ]\Iartin, 3 Law G. 266. The holder of a note secured by mortgage may, in a single action, under the act of February 19, 1864 (S. & S. 575; sec. 5021), have a judgment against all the makers of the note, and a sale of the mortgaged premises, although the mortgage is executed only by a part of the makers of the note. King v. Saf- ford, 19 Ohio St 587. But a personal judgment can not be taken, unless the petition contains a prayer for such judgment. Giddings v. Barney, :]1 Ohio St. 80. 3 Hamilton v. Jefferson, 13 Ohio, 417. -5814.] JUDGMENT IN GENERAL. lOT But even in such a ease t lie decree may l)e si > framed, when personal service on the defendant has been had, that after the mortgaged prop- erty has been exhausted execution may be had on the decree for the balance remaining due as upon judgment at law, as given after Entry No. 227.' As t.) remanding ca.sc to the Common Pleas when the decree for sale is entered in the District Court, .see Entry No. 163, and note. Also for other entries ap])licable to cases of sale of real estate, see under Execution. The decree for sale may of course be entered either after a trial of the issues made by pleadings or on the default of the defendant. For convenience the forms in both cases are given in this place, and a finding for each is giv^en to be used as a preface to any of the subse- (jueut decrees. Preface I. — For a decree for sale of morlga(je., the balance of the money remaining in his hands, to wit, the sum of dollars. Building association decrees (Sec. 3833-G) — After breach of the condition of a mortgaije given to secure the pay- ment of stated dues, interest on loans advanced, and fines, the decree in an action to foreclose should be confined to the amount of such dues, interest, and fines then due and unpaid,^ and under the law as it now stands, section 3835, as amended in 86 v. 87, would be in- cluded also the proportional part of the premium due. 1 Hagerman v. Ohio Building and Saving Association, 25 Ohio St. ]86. 120 JOURNAL ENTRIES. [SEC. 5317- Building associations are not authorized to charge interest on the premiums allowed for jirecedence in taking loans. The money actually advanced is the basis for the computation of interest.' Fines can not be imposed for default in the payment of interest on loans ; nor can more than one fine be assessed in respect to the same installment of stated dues.' Upon distribution, the rule laid down by the District Court of Ham- ilton county, before the amendment of 77 O. L. 208, was to find the present value of the mortgage as the basis of distribution. And the present value was held to be such a sum as when put at interest would meet each installment up to the time the association was dissolved. It was ascertained by summing up the successive weekly installments for the probable future duration of the association and discounting the amount for the mean or average time between the first installment and the last; that is, the probable future duration from and after confirm- ation being one hundred and twenty-two weeks, the mean or average time is sixty-one and a half w-eeks, and $915 being the estimate of fu- ture dues and interest, the present value is $854.36, a sum which at interest for sixty-one and a half weeks would produce $915. Then the calculation stands thus : Amount found due by decree of sale, being amount of dues, interest, and fines up to decree $229 50 Interest to confirmation 4 65 Dues and interest from decree of sale to confirmation 135 00 Interest on above, average time 1 48 Present value of future dues and interest from decree of confirmation 854 36 Sl,224 99 The above rule differed from the one previously laid down by the Superior Court of Cincinnati, - But since the amendment of 77 O. L. 208, a more satisfactory rule will probably prevail. By that section it is provided that " after the premium for one year shall have been paid, the borrowing member shall be permitted to adjust and pay off" his loan by paying to the as- sociation an amount which, added to the dues and interest already paid and earnings credited, will aggregate the sum actually bor- 1 Forest City United Loan and Building Association v. Farrell et al, 25 Ohio St. 208. 2 Cincinnati German Building Association No. 3 v. Flach, 1 Superior Court, reporter, 4C8. -5317.] JUDGMENT IN GENERAL. 121 revved, with tlie legal rate of interest thereon, and a relative proportion of the premium bid for the time the loan is retained, as hereinbefore provided." This should also be the rule for determining the amount due on distribution in case of foreclosure. 220. Decree for sale on foreclosure of huildiiif) association mort- f/agc. [Title.] Use Preface I or II, page 107, and continue:] — The court further find that the defendant has failed to pay to the plaint- iff the weekly installments of dues, premium, and interest, as in the petition set forth, and that there is due to said plaintiff, as dues, to the date of this decree, the sum of $ , as premium the sum of $ , as interest the sum of $ , and as fines for the non-payment of said dues, the sum of I ; making in all, the sum of dollars. The court further lind, that in order to secure the regular payment of said dues and other installments, as well as those hereafter to become due, the said C. D., and M. D., his wife, executed and delivered to this plaintiff their certain mortgage in the petition described, and on the premises therein de- scribed ; that said mortgage was on the day of — '■ — , 18 — , duly recorded in book , page , of the records of mortgages of county, and that the same is a good and valid [or, the first] lien on the premises described in the petition. It is therefore considered by the court that unless the said defendants shall, within days from the entry hereof, pay, or cause to be paid, to the said plaintiii" the said sum of $ , so found due, and to the clerk of this court the costs, taxed herein at -^ , the defendant's equity of redemption be foreclosed and said premises be sold, and that an order of sale issue therefor to the sheriff of county [or, to R. W., a master commissioner of this court], directing him to ap- praise, advertise, and sell said premises, as upon execution, and return his proceedings to this court for further order.^ ^ other orders may be added as after decree No. 216, if desired. See also notes to decree No. 216. 122 JOURNAL ENTRIES. [SEC. 5318- 230. Confirmation and distribution on building association decree^ as before the amendment of 77 0. L. 208. [Title.'] As in No. 225 to *, and continue:'] And tlie court find that the present value of the mortgage held by said plaintiff amounts to the sum of $1,239.22, and that said sum is the next best lien upon the said premises ; it is therefore ordered that said sheriff pay — Thirdly. To said plaintiff, or to J. R. V., its attorney, the said sum of $1,239.22. Fourthly. That he pay the balance remaining in his hands to the said defendant or his attorney. 230a. Confirmation and distribution on building association de- cree, under the amendment of Sec. 3834, 77 0. L. 208. [Title.] As in No. 225 to *, and continue:] And the court find that there is due to the plaintifi' up to the present time on the mortgage set up in the petition the sum of % , and that said sum is the next best lien upon the said premises ; it is therefore ordered that said sheriff pay— Thirdly. To said plaintiff, or to J. R. V., its attorney, the said sum of $ . Fourthly. That he pay the balance remaining in his hands to tiie said defendant or his attorney. For judgment against a married woman, see Married women, p. 428. CHAPTER XL JUDGMENT UPON FAILURE TO ANSWER. Finding IV. — For judgment taken on defendant's default. Forms of judgment by default. I. When the court finds the amount due — 231. (Sec. 5320.) Judgment by default for money due. 232. (Sec. 5320.) In action for damages, damages assessed by the court, etc. -5320.] JUDGMENT UPON FAILURE TO ANSWER. 123 2?>?> (Sec. fi.'J'JO ) .Tudjzment, etc., on cause of action not put in i.ssue. 234 (Sec. 5320.) Juilginent when part payment has been made. 1 r. When (he case is referred to referee or master. %\^'.. (Sec. 5320.) To take an account before finding defendant's default. 236. (Sec. 5320.) 'J'o take proof of a fact before finding defendant's de- fault. 2 ".7. Judgment after the report stating nc<^ount. 2 !H. Judgment after the report finding fact. 1:3,). (Sec. 5320.) Default and indebtedness found, and case sent to a referee or master to take an account. 240. Judgment on tlie report. Hi. When the case is sent to a jury. 241. (Sec. 5320.) Default and indebtedness found, and case sent to a jury to assess damages. 242. Verdict on assessment of damages. 243. Judgment on tlie verdict assessing damages. Rkmittitur — 244. Entry of. 245. Order for. By failure to answer, the defendant conclusively confesses the alle- gations and claims of the jjlaiutiif against him.* Where summons is indorsed " for the recovery of money," and the petition claims a further and different relief, the court will not enter up a judgment by default for answer against a defendant for other re- lief than that indorsed on the summons;' nor for a larger amount, though the surplus be for iuterest, no interest being asked for in the prayer of the petition.^ Wliere no answer has been put in, a decree can not be rendered agaiust infants by default, but the plaintiff must prove his case.* Where a party, by his own mistake, and without any fault of the adversary party, takes judgment by defatdt for a less sum than the amount due on his claim, he can not maintain a second action to re- cover the remainder.^ When the defendant is in default, the court may, in a j^roper case, render judgment without taking any further proof than is furnished ' McKenzie v. Perrill et al., 15 Ohio St. 167. « Williams v. llamlin, 1 Handy S. C. E. 95. s Rhodenbaugh v. Gary, 1 ^Y. L. M. 599 ; Finckh v. Evers, 25 Ohio St. 82. * Massie v. Donaldson, 8 Ohio, 377. 5 Ewing r. MoNairv, 20 Ohio St. 315. 124 JOURNAL ETfTRIES. [SEC, 5320- by the affidavit of the petition, and the failure of the defendant to plead. ^ When the petition is founded on a promissory note, the original note should be filed with the court when judgment is taken, both as evidence and to prevent its further circulation. As a general finding to be used in case of judgment by default, use the following : FiXDiXG IT. — For judgment taken on defendanfs default. [Title.] Now comes the plaintiff, by his attorney, and the defend- ant being in default for answer and demurrer, the court liiud^'^ that the allegations of the petition are confessed by him to be true. Forms of judgment by default. I. Where the court finds the amount due. For forms of judgments in general, which, of course, may be ren- dered on defendant's default as well as on submission, see the preced- ing chapter. 231. (Sec. 5320.) Judgment by default for money due. [Title.] Use Finding IV., above, and continue:] — and that he is in- debted to the plaintiff in the sum of $ . It is therefore considered by the court that the said plaint- iff, A. B., recover from the defendant C. D., the said sum of dollars, and his costs herein expended. 232. (Sec. 5320.) In action for damages, damages assessed by the court, and judgment. [Title.] Finding IV., above, and, continue:] — and that the plaintiff is entitled to recover his damages by reason of the premises from the said defendant. And thereupon the court assess said damages at $ . It is therefore considered that the plaintiff, A. B., recover from the defendant, C. B., the said sum of $ , and his costs herein expended. 1 Dallas V. Ferneau, 25 Ohio St. 635. -6320.] JUDGMENT UPON FAILURE TO ANSWER. 125 233. (Sec. 5320.) Judfjment by (hfault on cause of action not put in issue, etc. [ Title.] And now came the plaintiff, by his attorney, and submitted to the court the petition and evidence and the answer of the defendant in this case. And thereupon the court find that the first and second causes of action in said petition set forth are not put in issue by said answer, but that as to them the defendant is in default for i>lca, and that he is indebted to plaintiif upon the same in the sum of $ . It is therefore considered that tlie plaintiff', A. B., recover from the defendant, C. D., the said sum of dollars so found due, together with his costs in that behalf expended. And as to the causes at issue, this action is continued. 234. Judgment by default when 'part payment has been made. lTitle.\ Findi)iy IV., as above, and continue:] — The court further find' that, since the filing of the petition herein, the defend- ant has paid to plaintiff on his claim the sum of § , and that he is still indebted to him in the sum of dollars. It is therefore considered by the court that the plaintifl" A. B., recover from the defendant, C. D.,the said sum of § , and his costs herein expended. II. When the case is referred to referee or master. Sec. 5320 provides, ou defendant's default, that if in the determina- tion of the cause the taking an account, proof of a fact, or the assess- ment of damages, is necessary, the court may refer the case to a referee or master for such purpose, or direct the matter to be ascer taiued by a jury. The referee in this case would appear to have about the same duties to perform and scope of authority as in case of refer- ence before the code, for which see remarks p. 73. When the case is sent to a referee or master under this section, it is not usual for the court to find the default and the defendant's indebtedness so as to pre- clude him from making a defense, until after the report comes in, though it is probable that it has the power to do so. Forms for both methods of practice are given. 126 JOURNAL ENTRIES. [SEC. 5320- 235. (Sec. 5320.) Case sent to a referee or master to fake an ac- couvt — before findhuj (Jefendaht''s default. [rule.-] It being necessary that an account should be taken in this' case between the parties before the amount due to the plaint- iff can be ascertained, it is now ordered that the case be re- ferred for the taking of such account to E. F., as referee [or, a master commissioner of this court] ; and that he report [the testimony with his findings] ^ to this court without un- necessary delay. 236. (Sec. 5320.) Case sent to referee or master to take jyroof of a fact, before finding defendant's default. ITitle.'] It being necessary in this case that proof should be taken as to whether [etc., state fact to be ascei-tained], and it being in- convenient to" have the evidence taken before the court, it is hereby ordered that, for the taking of said proof, the case be referred to E. F. [one of the master commissioners of this- court], who is hereby directed to report [the testimony with his findings]^ to this court without unnecessary delay. 237. Jadgment after the report stating account. [Title:] !N^ow came the plaintiff, by his attorney, and the defendant beins: in default for answer and demurrer, this cause came on to be heard on the motion of the plaintiff to confirm the report of the referee [or, master], heretofore filed herein, and for judgment. And the court having carefully examined the said report, liereby approve and confirm the same. And the said referee [or, master] having found and re- ported, on taking the said account, that there is a balance due thereon to the plaintiff" from the defendant of dol- lars, it is therefore considered by the court that the plaintiff recover from the defendant the said sum of dollars, and his costs herein expended, including a fee of % , hereby allowed to the said referee [or, master], taxed at % . ^ Optional with the court. -5320.] JUDGMENT UPON FAILURE TO ANSWER. 127 238. Judgment after report finding fact. [Title.-] Now came the plaintiff, by his attorney, and the defendant heing in default for answer and demurrer, this cause came on to bo heard on the motion of the plaintiff to confirm the ro])()i-t of the referee [or, master], heretofore filed herein, and lor judgment. And the court, after careful consideration, approves and confirms said finding as the finding of the court; and there- upon further finds that the defendant is indebted to plaintiff in the sum of dollars. It is therefore considered that the plaintiff recover from the defendant the said sum of dollars, together with his costs herein expended, including a fee of $ , hereby al- lowed to the referee [or^ master], taxed at $ . 239. (Sec. 5320.) Dcfaidt and indebtedness found, and case sent to a referee or master to take an account. {Title.'] jS'ow came the plaintift', by his attorney, and the defendant being in default for answer and demurrer, the court find that the allegations of the petition are confessed by him to be true, and that the plaintiff is entitled to recover from the defend- ant the amount due him upon the statements of the petition. But it being necessary that an account should be taken be- tween the said parties, it is, on motion of the plaintiff, or- dered that the case be referred to E. F., as referee [or, one of the master commissioners of this court], to take and state the same ; and that he report [the testimony with his find- ings]^ to this court without unnecessary delay. 240. Judgment on the report. [Title?^ This cause having been referred to E. E., to take and state an account between the parties hereto, and the report of the said E. F having been filed, whereby he finds on said account that the defendant is indebted to the plaintiff' in the sum of 'Optional with the court. 9 128 JOURNAL ENTRIES. [SEC. 5820- $ , on motion of the plaintiff, and on consideration of the said report, it is hereby approved and confirmed. It is therefore considered by the court that the |)laintiff re- cover from said defendant said sum of dollars, together with his costs, including a fee of $ to the said referee. \_or, master], taxed at $ . III. When the case is sent to a jury. Under section 5320 there is, of course, no issue to be tried, and con- sequently nothing to come before a jury in its usual capacity as given by section 5130; but, by section 5320, the couft may make special use of the jury, constituting them, as it were, special masters. It is not likely that the court would ever desire to refer a case to a jury to take an account, and seldom to hear proof of a fact ; but in most cases will to assess damages ; and probably has the power so to refer either before or after finding defendant's default and indebtedness. In either case, the question before the jury is not whether the plaintiff has sustained any damages or not, but " What damages has the plaintiff sustained?" 241. (Sec. 5320.) Default and indebtedness found, and case sent to a jury to assess damages. [Title.'] Now came the plaintiff, by his attorney, and the defendant being in default for answer and demurrer, the court find that the allegations of the petition are confessed by him to be true, and that the plaintiff is entitled by reason of the premises to recover his damages from said defendant. And it is ordered that the case be sent to a jury to ascertain and assess the same. 242. Verdict on assessment of dam,ages, under last order. [Title.'] And now this cause came on to be heard upon inquiry of damages for the plaintiff, as heretofore ordered by the court; and thereupon came the following-named persons as jurors, to wit : 1. A. B. 7. E. F. 2. C. D. 8. G. TI. etc. etc who were duly impaneled and sworn according to law. And after hearing the evidence in the case, the argument, -5320.] JUDGMENT UPON FAILURE TO ANSWER. 129 and the charge of the court, the jury retired to their room, in charge of the sheriff, for deliberation. And now come said jury into open court, with their ver- dict in writing, signed by their foreman, and say: " "Wc, the jury, upon inquiry of damages for tlio plaintift' in this action do assess the same against the defendant at dollars." 243. Judgment on the verdict assessing damages. [Title:] The jury in this action having, at a former day of this court, upon an inquiry of damages for the plaintili', assessed the same against the defendant at dollars: It is therefore considered by the court that the plaintiff, A. B,, recover from the defendant, C. D., the said sum of dollars, so found due, together with his costs herein expended. Remittitur — Where a judgment by default is taken for more than the amouut eliiimed iu the petition, and indorsed on the summons, although such surplus is for the interest that accrues since the filing of the petition (no prayer for interest being in it), it is error, and the judgment will be reversed, unless the creditor will remit such overplus ; that being re- mitted, the judgment will stand. But in such a case, it being substan- tially a reversal, the costs of error will be divided.^ Where judgment is taken for more than is at the time legally due, the error may be cor- rected by remitting the excess. - 244. Entry of remittitur. [Title?^ And now, it appearing to the court that the judgment here- tofore rendered herein is erroneous, in being for a larger amount than was claimed in the petition and indorsed on the summons, the court, on consideration of the premises, find that said judgment should have been for the sum of -dollars, with interest from the da}' of , 18 — . And the plaintiff now coming and remitting from his said judgment the sum of ^ , it is therefore considered that 1 Rhodenbaugh v. Gary, 1 W. L. M. 599. 2 Doty I'. Kigour, 9 Ohio St. 519. 130 JOURNAL ENTRIES. [SEC. 5320- the said plaintiff recover from the said defendant the said sum of dollars, as above found due, instead of the said amount originally found; together with his costs herein ex- pended \_or, any other order as to costs-l 245. Order for remittitur, etc. [Title.] This cause coming on for hearing on the motion of the de- fendant to set aside the judgment herein, because the same is for more than was legally due upon the petition and sum- mons, and the court finding the claim of the defendant to be true, and that said judgment should have been for the sum of I , instead of $ , it is ordered that, unless the plaintiff will remit from his judgment the sum of $ , the said judg- ment shall be set aside. And thereupon comes the said plaintiff, and consents to said remittitur, and the same being made, the motion to set aside the judgment is overruled. CHAPTER III. JUDGMENT BY CONFESSION. When defexdaxt appears personally — 246. (Sec. 5321 ) Judgment where petition has been filed. 247. (Sec. 5322.) Judgment where no petition has been filed. When defendant appears by ax attorney — 248. (Sec. 5324 ) Judgment. By the code, a confession of judgment may be made by any person indebted, or against whom a cause of action exists. 1. By personal appearance in a court of competent jurisdiction.^ 2. By authorizing an attorney to confess judgment for him.'' Waekant of attorney. — The warrant of attorney is an instrument in writing addressed to one or more attorneys therein named, author- izing them generally to appear in any court, or in some specified court, ion behalf of the person giving it, and to confess judgment in favor of some particular person therein named, in an action of debt. 1 Codo, sec. oo'Jl. - Code, sec. 5324. -5321.] JUDGMENT BY CONFESSION. 131 A warrant of attorney given to confess a judgment is not revocable ; and, notwithstanding a revocation, judgment may be entered upon it.' The death of the (k'l)tor is, however, generally speaking, a revocation.^ The virtue of a warrant of attorney is spent by the entry of one judg- ment, and a second judgment entered on the same warrant is irregular.^ The warrant must be produced at the time of taking judgment,* and if not produced, the judgment may, on motion be set aside as irregular.* If the power of attorney is attached to the note, forming a part of the same instrument, the negotiability of the note is not destroyed, but if it is transferred, the power of attorney becomes invalid, and no power is given under it to the indorsee ; he holds the note as if no such power had ever been attached to it.® But if the power authorizes the confes- sion of a judgment in favor of any holder of the note at any time after the same becomes due — quaere f^ It is the custom of most courts in Ohio to require notice to be given to the defendant of the time and place of taking judgment. In Pomeroy v. Drake, 1 W. L. M. 282, it is said that a judgment entered on a warrant of attorney will be set aside, and the cause set down for trial, on motion of the defendant, when it appears that the motion is made in good faith, and that, prima facie, a defense exists, if the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment.* In case of judgment being taken by authority of a warrant of attor- ney, the court generally requires the attorney who confesses for the defendant to sign the journal, as in the forms hereafter given. Interest on the debt must be calculated to the day judgment is entered, and judgment given for the whole amount. The confession of itself operates as a release of errors without being ordered in the judgment.' 12 Lord Raymond, 7GG, 850; 1 Salk. 87; 7 Mod. 93. 2 Co. Litt. 'y2b; 1 Vent. 310. 3 1 Penn. 245; 6 S. & K. 296. *Codo, sec. 5324. 5 Knox County Bank v. Doty, 9 Ohio St. 505. GQsborn v. Hawley, 19 Oiiio, 130. ' Marsden v. Soper, 11 Ohio St. 503; see also Cushman v. Welsh^ 19 Ohio St. 53«. i^See also 4 W. L. M. 110, 124. "Code, sec. 5323. 132 JOURNAL ENTRIES. [SEC. 5321- "WhEN DEFENDANT APPEARS PERSONALLY — 246. (Sec. 5321.) Jiulgmeiit inhere 'petition has bcenjilecl. [lYile.] Now came the plaintiff, by his attorney, and also personally came the defendant, C. D,; and with the assent of the said plaintilf the said C. D. confessed in open court that he is justly indebted to said plaintiff" in the sum of $ ,* as claimed iir the petition. It is therefore considered by the court that the plaintiff, A. J3., recover from said defendant the said sum of dol- lars, together with his costs herein expended, taxed at $ . 247. (Sec. 5322.) Judgment where no petition has been fled. [Title.] As in last to *, and coyitinue:'] — as evidenced by the prom- issory note of said C. D., executed by him on the day of , 18 — , for the sum of $ , payable to the said plaint- iff six months after the date thereof. [Or other brief state- ment.] It is therefore considered, etc. [as in last.] When defendant appears by attorney — 248. (Sec. 5324.) Judgment. [Title.] ISow came the plaintiff, by his attorney ; also came O. T., one of the attorneys of this court, on behalf of the defend- ant, C. D., and, by virtue of a warrant of attorney for that purpose, duly executed by the said C. B., and now produced to the court, waived the issuing and service of process, and, ^with the assent of the plaintiff, confessed that the said C. D. is justly indebted to the said plaintiff in the sum of dollars. [Continue as from *, in one of the last two entries^ ac- cording to circumstances.] [Signed,] O. T.,' ■ Attorney in fact for C. T). ^ Signed by attorney. See above. -5325.] GIVING AND ENTERING JUDGMENT. 133 CHAPTER IV. MANNER OF (UVING AND ENTERING JUDGMENT. Judgment on verdict — 249. (.Sec. 5326.) For money, for either party. 2.'i0. (Sec. 5326.) On verdict for deiendant, for costs. 2.')1. (.Sec. 5327.) On special verdict. 252. Motion for new trial overruled, and judgment on general verdict. 252a. Same, on special verdict. Judgment on the pi.e.\dings and notwitustanding vekdict — 253. (Sec. 5328.) Judgment on the pleadings for plaintiff [or, defendant]. 254. (Sec. 5328.) Same — and case referred to take an account. 255. (Sec. 5328.) Same — and case sent to jury to assess damages. 256. (Sec. 5328.) Judgment for plaintiff, notwithstanding verdict. 257 (Sec. 5328.) Same — when damages have been assessed by the jury. 258. (Sec. 5328.) Same — and inquiry of damages by jury ordered. 259. (Sec. 5328.) .ludgment for defendant, notwithstanding verdict. Judgment on part of vkudkt bking kemitted — 260. Remittitur of part of verdict — motion overruled, and judgment. 261. Order for new trial, unless, etc., and judgment Inquiuy ov da.magks, after judgment by the court — 262. Verdict on assessment of damages. 263. Judgment on the assessment. Judgment on verdict — When a tiial by jury lias been had, and a verdict rendered, three days are usually allowed for the losiug party to move for a new trial. If no motion is made, judgment must then be entered by the clerk, in conformity to the verdict, unless the verdict is special, or the court order the case to be reserved for future argument or consideration.^ Where the verdict is special, or where there has been a special find- ing on particular questions of fact, or where the court has ordered the case to be reserved, it shall order what judgment shall be entered." If a motion for a new trial be made and overruled, judgment fol- low.s, and is entered by the clerk as a matter of course. Whatever may be the amount of the verdict, the plaintiff is entitled ^ Code, sec. 532G. ^ Code, sec. 5.327. 134 JOURNAL ENTRIES. [SEC. 5326- to judgment ; but as to costs, if the recovery be less than one hundred dollars, judgment for the plaintifF's costs can not be rendered, unless the jury have found the amount of the plaintiff's claim to be more than one hundred dollars, and have reduced the same, by the allowance of a counterclaim or set-off, to less than one hundred dollars.^ In such case, it is well to add to the judgment entry, instead of judgment for costs as follows : Onhr ;] And the plaintiff's said recovery being less than one hun- dred dollars, execution is awarded against each party for his respective costs. 249. (Sec. 5326.) Judgment on verdict for money, for either jmrfy. [TUle.] The jury in this action, having, on a former day of this term, rendered a verdict for the , and assessed his dam- ages at $ , and no motion for a new trial having been made : It is therefore considered by the court that the said recover from the said the said sum of dollars, to- gether with his costs herein expended. 250. (Sec. 5326.) Judgment, on verdict for defendant, for costs. [Title.] The jury in this action having on a former day of this term, rendered a verdict for the defendant, and no motion for a new trial having been made : It is therefore considered by the court that the said defend- ant go hence without day, and recover from the plaintiff his costs herein expended. 251. (Sec. 5327.) Judgment on special verdict. [Title] The jury in this action having, on a former day of this term, rendered a special verdict, and no motion for a new trial having been made, the court find * that the law arising 3 Brunauirh v. Worlev, G Ohio Sf.. 5"7. See sec. 5349. -5327.] GIVING AND ENTERING JUDGMENT. 135 upon the facts so found hy tlio jury is witli the plaintiff [or, defendant], and that the is indebted to in the sum. of doHars : It is therefore, in accordance with the special finding and verdict of the said jury, considered by the court that the recover from the the said sum of dollars and his costs herein expended [or such other judgment as is given by the coarf'\. 252. Motion for vein trial overruled, and judgment on general verdict. [Tillc.'] This cause coinms: on for hearini::, on the motion of the to set aside the verdict, and for a new trial herein, the court, on consideration thereof, overrule the same. It is therefore considered bv the court that the said recover from the said the said sum of dollars, as heretofore, by the verdict of the jury, found due him, y with interest from [the first day of the term of the verdict'], to- gether with his costs herein expended. Or, if for defendant ;] It is therefore considered by the court, that the said de- fendant go hence without day, and recover from tlie said plaintiff his costs herein expended. 252(/. 3Iotion for neiv trial overruled, and. judgment on special verdict. [Title.'] And now this cause coming on for hearing on the motion to set aside the special verdict herein, and for a new trial, the court, on consideration thereof, overrule the same ; and the court further find [conclude as from *, ifi Entry No. 251.] Judgment on the pleadings and notwithstanding verdict — Judgment non obstante veredicto at common law, and as recognized in Ohio before the code, was given, on motion, to the plaintiff, when the issue presented by the defense, and, by the verdict of the jury, found for the defendant, was not sufficient in law to avoid the plaintiff's 136 JOURNAL EXTRIES. [SEC. 5328- claim ; when the plea of the defendant was bad in substance and might have been made the subject of demurrer on that ground.^ It could only be rendered for the plaintiff, the defendant's corre- .sponding remedy being arrest of judgment.^ At common law the judgment was interlocutory, after which a writ of inquiry was executed, and the final judgment signed as in ordinary eases.^ So, in Ohio, a writ of inquiry would usually issue ; but if the jury had sufficiently passed UY>on the whole matter, and assessed the plaintiff's damages, such writ was not required to issue, and judgment was rendered for the damages assessed/ Section 5328 of the code allows either party to have judgment where, upon the statements in the pleadings, he is entitled by law to it, notwithstanding that a verdict has been found against such party. The code is silent as to how the damages of the party entitled to judg- ment shall be detei-mined in a case requiring their determination; but it would probably be correct practice for the court to act as allowed by section 5320 in cases of default, and either find the amount due, or refer the case to a referee or master, or send to a jury. 253. (Sec. 5328.) Judgment on the jjleadings for j^^ai'^t'ff [or, defendant']. ' \Tmc:\ And now this cause being heard upon the pleadings filed in the case, and the motion of the plaintiff \or., defendant] for judgment thereon, the court fiuds that said plaintiff [or, de- fendant] is entitled to a judgment upon the statements in the 2:)leadings,* and that the defendant is indebted to plaint- iff in the sum of dollars. It is therefore considered by the court that the plaintiff re- cover from the defendant the said sum of dollars, to- gether with his costs herein expended. Or.^ if for defendant, say-\ — that the defendant go hence without day, and recover from the plaintiff his costs herein expended. 1 Steph. Comm. GGO; 2 Tidd's Pr. 922; Sikes v. Tan Dike, 17 Ohio, 454. 2 Buckingham v. ilcCracken, 2 Ohio St. 287; Smith v. Smith, 4 Wend. 4G8. 3 C. L. P. A. 18-:2, s. 145; 2 Chit. Arch. Prac. by Pren. 1483. * Sikes V. Yan Dike, 17 Ohio, 454. -5328.] GIVING AND ENTERING JUDGMENT. 137 254. (Sec. 5328.) Judgment on the pleading, and case referred to take an account. [Title,'] As in last entry to *, and continue ;] And it being necessary tliat an account should be taken between the parties before tlie amount due can be ascertained, it is now ordered that the case be referred for the taking of the same to E. F., as referee [or sag, a master commissioner of this court], and that he report to this court without unnecessary dehiy. For judgment on the coming in of the report, modify Entry No. 237. 255. (Sec. 5328.) Judgment on the pleadings, and case sent to jury to assess damages. [Title.] As in Entry No. 253 to *, and continue:] — and is entitled to recover his damages from the said defendant. And it is or- dered that the case be sent to the jury to ascertain and assess the same. The entry of verdict on the above assessment may be as in Entry Ko. 262, and the judgment on verdict as No. 263. 256. (Sec. 5328.) Judgment for plaintiff' notwithstanding ver- dict. [Title.] After entry showing verdict for defendant, for which see page 56 or 57; continue :] And thereupon the plaintiff" moved the court for a judg- ment upon the pleadings notwithstandiug the said verdict. And the court being of opinion that the plaintiff' is entitled to a judgment upon the statements in the pleadings, grant the said motion,* and the court thereupon further find that the defendant is indebted to the plaintiff' in the sum of dollars. It is therefore considered by the court that the plaintiff re- cover, etc. 138 JOURNAL ENTRIES. [SEC. 5328- 257. (Sec. 5328.] Same, ivhen damages have been assesse.il by the. jury. {rule.'] As in JSo. 256, to *, and continue:'] — And the jun- having assessed the phaintili"s damages at $ : It is therefore considered that the plaintiff, A. B., recover from the defendant, C. D., the said sum of % and his costs herein expended. 258. (Sec. 5328.) Same, and inquiry of damages by jury ordered. [Title.'] As in Entry No. 256 to *, and continue:] It is therefore considered by the court that the said plaint- iff recover from the said defendant his damages sustained by reason of the premises. And on motion of the plaintiff it is ordered that the case be sent to a jury to ascertain and assess the same. For the subsequent entries on the assessment of damages, and judg- ment for the amount assessed, use Entries No. 262 and No. 263. 259. (Sec. 5328.) Judgment for defendant notwithstanding verdict, [Title.] After entry showing verdict for ])laintif,for ivhich see pages 56 and, 57, continue:] — And thereupon the defendant moved the court for a judg- ment npon the pleadings, notwithstanding the said verdict; and the court being of opinion that the defendant is entitled to judgment npon the statements in the pleadings, grant the said motion. It is therefore considered by the court that the defendant, C. D., go hence without day, and recover from the plaintiff, A. B., his costs herein expended. For judgment under section 5329, see Entry No. 210a. 260. Remittitur of jnirt of the damacjes found in a verdict, motion overruled, and judgment for balance.^ [Title.] This cause coming on to be heard on the motion to set 1 See Durrell v. Bovd, 9 O. St. 72. -5329.] GIVING AND ENTERING JUDGMENT. 139 aside the verdict and for a new trial, and the court being of opinion that the damages assessed by the jury are excessive to the amount of dollars, * and the plaintift' here in court now consenting to remit the excess aforesaid, thereu})on the said sum of dollars being remitted and deducted from the said verdict, the court overrule the motion for a new trial. It is therefore considered that the plaintiff, A. B., recover from the defendant, C. D., the sum of dollars, the resi- due of the damages by the said jury assessed, together with his costs herein expended. 261. Order for nein trial, unless remittitur be made ; a)} d judgment on remittitur. [Title.] As in last to *, and coiitinuei] — the court order that, unless the plaintift" will remit from the verdict the said sum of S , a new trial be granted ; but that, upon said remittitur being made, the said motion be overruled. And thereupon comes the said plaintiff", and in open court consents to said remittitur. It is therefore considered, etc. [as in last entry.'] Record — When record in any case is waived, it may be entered on the jour- nal by adding to the judgment or entry of dismissal, by virtue of sec- tion 5337, as follows : "And by agreement of parties no record of this case is to be made." Or, in a proper case, by simply adding " with- out record." 261a. (Sec. 5334; 87 v. 236.) Order to abbreviate record. [Title.] Add tc final entry :] And it IS ordered that in recording this case, the copies of papers attached to the petition, being voluminous, be only described therein and not recorded in full. Inquiry of damages, after judgment by the court — There are three cases under the code in which a jury may be impan- eled simply to assess damages, after the right to recover has been de- termined by the judgment of the court: 140 JOURNAL ENTRIES. [SEC. 5330- I. Where the court renders judgment for plaintiif by default, and sends the case to a jury for the assessment of damages, under section 5320. II. In replevin, where the court renders judgment by default, and sends the case to a jury for inquiry of damages, under section 5825. III. Whei-e judgment is rendered by the court for the plaintiff, not- withstanding the verdict, and the case sent to a jury for the assessment of damages, under section 5328. In all of these cases, the entries of verdict and judgment may be as follows : 262. Verdict on assessment of damages. [Title.] AikI nov\,^ this cause came ou to be beard upon inquiry of damages for the plaintiff, as heretofore ordered by the court ; and thereupon came the following-named persons as jurors, to wit: 1. A. B. 7. E. F. 2; C. D. 8. G. H. etc. . etc. who were duly impaneled and sworn according to law. And thereupon, after hearing the evidence, argument, and charge of the court, the jury retired to their room, in charge of the sheriff, for deliberation. And now come said jury in open court, with their verdict in writing, signed by their foreman, and say : " We, the jury, upon inquiry of damages for the plaintiff in this action, do assess the same against the defendant at dollars. [Signed,] A. B., Foreman."' 263. Judgment on the assessment. [Title.] The jury in this action having, at a former day of tliis court, upon an inquiry of damages for the plaintiff, assessed the same against the defendant at dollars. It is therefore considered by the court that the plaintiff, A. B., recover from the defendant, C. I)., the said sum of dollars, so found due, together with his costs herein expended. -5340.] JUDGMENT FOR COSTS AND ITS ENFORCEMENT. 141 CHAPTER V. JUDGMENT FOR COSTS, AND ITS ENFORCEMENT. Seotrity fou costs — 264. (Sec. 5340.) Order to increase deposit. 20.'). (Sec. .5341.) Ortler for pbiintiif to give. 266. (Sec. 5343.) Order for additional. 267. Action dismissed on failure, etc. 268. (Sec. 5344.) Judgment against surety. Retax.\tiox of cost.s — 269. Order for. A general and standing order of the Court of Common Pleas, direct- ing the clerk to issue execution for his own benefit and at the instance of....^uy person entitled to costs, will authorize the clerk without any special order, to issue such execution.' The recovery of costs by one party against the other is unknown at common law. Each party there paid his own costs, and was presumed to pay each portion as it became due. Recovery is given only by stat- ute." As between the clerk and the party, the party is at all times liable to the clerk for his, own costs, whether he be adjudged to recover from the adverse party or not. And even though a case be dismissed at the cost of one party, the other is not discharged from his liability to the clerk for his own costs ; his remedy is against the adverse party onlv. When a case is dismissed for want of jurisdiction of the subject-matter, the court can only strike the case from the docket, and can render no judgment for costs.^ Security for costs — 264. Sec. 5340 ; 86 O. L. 353.) Order to increase deposit. [Title:] On motion of the defendant, and the court being satisfied 1 Elliott r. Ellery, 11 Ohio, 30G. For the order adjudged sufficient, see page 152, Executions. ' P'arrier v. Cains, 5 Ohio, 45. 'Norton r. :McLeary, 8 Ohio St. 20-3. 142 JOURNAL ENTRIES. [SEC. 5341- that the deposit of money made with the clerk of this court as security for costs in this case is uot sufficient therefor, it is hereby ordered * that said sum he increased to dollars. And that in default thereof for days, the case he dis- missed. Or .* j — that the plaintiffbe required to give personal security for said costs within days, and that in default thereof the case he dismissed. 265. Sec. 5341.) . Order for ■plaintiff to give security for costs. I'litle.] This cause being heard upon the motion of defendant to compel the plaintiff to give security for costs, the court, on consideration, grants the same ; and orders that unless plaint- iff shall give said security within days from this date, the action be dismissed. 266. (Sec. 5343.) Order for adiliti.onal security. ITitle.-] This cause being heard on the motion to require the plaint- iff to give additional security for costs, the court, on consid- eration, grants the same, and orders that this action be dis- missed, unless the security be given within days. 267. Action dismissed on failure, etc. [7itle.-] The plaintiff having failed to give the security [or, addi- tional security] for costs heretofore required by order of court, this action is now, on motion, dismissed at plaintiff's cost [without prejudice to a future action.]^ 268. (Sec. 5344.) Judgment against surety for costs. [Tdle.] This cause coming on for hearing on the motion of the de- fendant [o/', other person having the right to the costs'] for judg- ment against the surety for costs in this action, the court finds that the said costs still remain due and unpaid, to wit, to the 1 May be added bj', see 5314, 5. -5353.] NEW TRIAL, AND OTHER RELIEF, ETC, 143 clerk of this court the sum of dollars, and to this de- fendant the sum of dollars; and that M. J., the surety herein, is liable therefor. And the said M. J. having been duly notified of tliis motion : It is therefore considered by the court that the said C. D. recover from the said M. J. the said sums above found due, for the use and benefit of himself and the said clerk; and execution is awarded therefor, as well as for the costs in this behalf. Retaxation — This order is granted for good cause, on motion of either party. The order sometimes directs how the costs shall be taxed. 269. Order for retaxation. [Title.'] On motion of the defendant, by his attorney, it is ordered that the clerk retax the costs in this case, charging to the defendant the costs of his own witnesses only, and to the plaintiff all other costs ; and that execution issue accordingly. CHAPTER VI. NEW TRIAL, AND OTHER RELIEF AFTER JUDGMENT. 270. (Sec. 5354, 1.) Judgment for a new trial. 27L (Sec. 5.354.) Judgment adverse to new trial. 272. (Sec. 5354, 3.) Judgment vacated on motion after the term, for mis- take, etc. 273. (Sec. 5354, 4, etc.) Judgment vacating former judgment for fraud, etc. 274. (Sec. 5355.) New trial granted to defendant constructively sum- moned. A judgment may be vacated after the term has passed, on motion,^ or on petition.^ If done by motion, it is a part of the proceeding of the original case. ^Code, sec. 5357. 2 Code, sec. 5309, and 5358. 10 144 JOURNAL ENTRIES. [SEC. 5354- If by petition, it is not of itself a civil action, hut a special proceed- ing in an action after judgment, and subject to review only on error.' The only thing to be done in the original case is to refer on the appear- ance docket from the original case to the new one setting aside the judgment. And the latter case should be recorded as a part of the original. 270. (Sec. 5-354, 1, 82 0. L 31.) Jmlginent for a neto trial, in a ease ivhere final judgment has been entered.''^ [Title.] This cause now coming on for hearing upon the petition to vacate the judgment heretofore rendered by this court, and for a new trial, in case numbered , wherein the said A. B. is plaintiiF and the said C. D. defendant, and the evi- dence, the court find that the grounds for a new trial set up in said petition are such as could not with reasonable dili- gence have been discovered at the term wlien the verdict [or, report, or, decision] was rendered [or, made], and that, by reason of said facts, the plaintiff herein is entitled to have the verdict rendered [or, report, or decision made] in said case, and the judgment thereon, set aside. And the court further finding that the plaintiff herein has a valid defense ^ [or, cause of action] in said case, it is there- fore considered that the said verdict [or, report, or, decision] and the judgment in the case above named be, and the same hereby are vacated and set aside, and a new trial of the cause is granted. [Add any order the court makes as to costs.] 271. (Sec. 5354, 82 O. L. 34.) Judgment adverse to new trial. [Title.] [ Use entry No. 196a.] For entry under subdivision 2 of sec. 5354, see Entry No. 274. > Taylor v. Fitch, 12 Ohio St. 169. 'If final judgment has not been entered, use Entry No. 196. 3 Code, sec. 5360. See also Watson v. Paine, 25 Ohio St. 340. -5355] NEW TRIAL AND OTHER RELIEF, ETC. 145 272. (Sec. 5354, 3, 82 O. L. 34.) Judgment vacated, on motion, after the term, for mistake of clerk, etc. [Title.] This cause being heard on the motion of the defendant [or, plaintiff] to vacate the judgment rendered herein at a former term of this court, to wit, on January 4, 1871, the court, on •consideration, find that [here state cause of vacating judgment], and that the said has a valid defense' [or, cause of ac- tion]. It is therefore ordered by the court that the said judgment be, and the same hereby is, vacated, and a new trial is granted. 273. (Sec. 5354, 4, 5, 6, 7, 8, 9, and 10, 82 O. L. 34, and sec. 5358.) Judgment vacating former judgment for fraud, etc. [Title.] This cause now coming on for liearing upon the petition to vacate the judgment heretofore rendered in this court in case numbered , wherein the said A. B. was pUiintifF and the said C. D. defendant, and the evidence, the court find that [state one oj the causes named in one of above subdidsions], and that the plaintiff herein, by reason thereof, is entitled to have the judgment in said case vacated. And the court further find- ing that this plaintiff has a valid defense ' [or, cause of action] therein, it is therefore ordered that the judgment in the case above named be and it hereby is vacated, and a new trial of the cause is granted.^ [Add any order the court makes as to costs^ 274. (Sec. 5355.) New trial granted to defendant constructively summoned. [Title:] Now come the parties [or, comes the defendant herein], and thereupon [due notice having been given to plaintiff], this 1 Code, sec. 5360. See also Watson v. Paine, 25 Ohio St. 340. ^ "Where a judgment is vacated, on petition, under the code, sec. 536 (5358), a new trial must be ordered. Whitehead v. Post, Logan Common Pleas, 1861, 3 W. L. M. 195. See this case for a full construction of sec. 536 (sec. 5358). 146 JOURNAL ENTRIES, [SEC. 5366- cause being heard upon the motion to open the judgment heretofore rendered in the action, the court find that no otlier- service was made in the case than by publication in a news- paper; and being satisfied that during the pendency of the- action the said defendant had no actual notice thereof, and that he has a valid defense/ the court therefore order that the said judgment be, and the same hereby is, set aside [upon payment by the defendant of all costs accrued herein], and the answer now offered to the court is received and filed. For injunction proceedings, provided for in section 5361, see subject,, Injunction. CHAPTER VII. REVIVOK OF, AND NEW PARTIES TO JUDGMENT: New party to a judgment — 275. (Sec. 5366.) Judgment making person not originally served party to. a judgment. Revivor of judgment, dormant by lapse of time — 276. (Sec. 5367.) Conditional order, on motion filed. 277. (Sec. 5367.) Same, when payments have been made. 278. (Sec. 5367.) Final order, on motion. 279. (Sec. 5367.) Final order, when payments have been made-.. 280. (Sec. 5367.) Judgment of revivor on petition filed. Eevivor, when party dies after judgment and before satisfaction — 281. (Set-. 5309.) Representative madt; party, on petition filed. 281a. (Sec. 5369.) Same, on motion. 282. (Sec. 5369.) Conditional order of revivor. 283. (Sec. 5369.) Final order. 283fl. (Sec. 5369.) Revivor by consent. IsTeav party to a judgment — 275. (Sec. 5366.) Jiulfjmevl waking j^erson not originally serced' j)arty to a judgment. ITiile.'] Finding, I., IL, or III., page 99, or if by default Finding 1 V., page 100, and continue:] — and further find that this defendant 1 Bv sec. 5360. -5367.] REVIVOR OF JUDGMENT, ETC. 147 is jointly indebted upon tlie contract [or, other instrument in ivrithig] set fortli in the petition with tlie said E. F., in man- ner and form as in said petition dcchired. It is therefore considered that the said C. D. be made a party to the judgment aforesaid rendered against the said E. F., in case Xo, of this court, to wit, for the sum of dollars, with interest from the day of , 18 — , and costs of suit ; and that the said A. B., upon the same judg- ment, have his execution against the said C. D. ; and that he also recover from the said C. D. his costs in this behalf ex- pended. Kevivor of judgment, dormant by lapse of time — Judgments having become dormant were, before the code, revived by the writ of scire facias; and, by analogy, the decisions of the Su- preme Court under those statutes may, to some extent, be applied to revivor under the code. Under the statute (3 Chase, 1684), the Supreme Court held that the revivor was only a continuation of the former suit, and not an original proceeding. That if the defendant made default, and no payments appeared upon the record, it is the duty of the court to award execu- tion for the amount of the original judgment.' Under the code, it is probably the correct practice to revive the judg- ment as originally rendered, and not to calculate interest to the term when the revivor is made. If payments have been made on the original judgment, they should l)e found in the order of revivor, with their times and amounts. 276. (Sec. 5367.) Conditional order of revivor, on motion filed. [TiileP^ ISTow comes the plaintiif herein, and on his motion, and it appearing to the court that the judgment heretofore rendered in this action, to wit, at the term, 18 — , for the sum of $ , with interest and costs, has become dormant by lapse of time,* and still remains wholly unpaid, it is ordered that said judgment be revived, unless sufficient cause be shown 1 Wolf V. Pounsford, 4 Ohio, 397. 148 JOURNAL ENTRIES. [SEC. 5367- against the sanie within days^ after the service of this order upon the said defendant. 277. (Sec. 5367.) Conditional order of rerivor lohcn j^ayments- have been made. [Title.] As in last to ^, and coyitimte :] — but that certain payments- have been made on said judgment, to wit, the sum of $ , on the day of , 18 — , and the sum of $ , on the day of , 18 — , and that the balance still remains un- paid; it is therefore ordered that said judgment be revived^ unless sufficient cause be shown against the same within days after the service of this order upon said defendant. 278. (Sec. 5367.) Filial order of revivor, on motion. [Title.} Now comes the said plaintiff, and the conditional order of revivor herein having been duly served upon the said defend- ant, and the said judgment still remaining unsatisfied, and no [or, no sufficient] cause being shown why it should not be revived : It is therefore ordered that the said judgment, to wit, rendered in this action at the term, a. d. 18 — , for the sum of § , with interest from the day of , 18 — ^ and § costs of suit, stand revived ; and execution is allowed to issue accordingly, and also for the costs in this behalf ex- pended. 279. (Sec. 5367.) Final order lohen jiayments have been made. [Title.'] IlTow comes the said plaintiff, and the conditional order of revivor herein having been duly served upon the said defend- ant, and it further appearing that on the day of , 18 — , there was paid on said judgment the sum of ^ ; also, that on the day of , 18 — , there was further paid the sum of § , and that the balance remains due and 1 By sec. 5152 the service upon the order will be made in the same manner, and returned in the same time as a summons, which time of return, by sec. 5039, is the second Monday after its issue. Then the time for showing cause should be placed far enough ahead to p;ive reasonable time for defendant to appear. 5369.] REVIVOR OF JUDGMENT, ETC. 1 i? unsatisfied, and no [or, no sufficient] cause being shown why said judgment should not bo revived : It is therefore ordered that said judgment, to wit, rendered in this action, at the term, a. d. 18 — , of this court, for the sum of $ , with interest from the day of , 18 — , and ^ , costs of suit, do stand revived; but that the payments above set forth be credited upon said judgment, in the manner prescribed by law. And execution is allowed to issae accordingly, as well as for the costs in this behalf ex- pended. 280. (Sec. 5367.) Judgment of revivor on petition filed. [Title.'] This cause now coming on for hearing on the petition for a revivor of the judgment formerly rendered in case numbered in the [name court\ wherein the Baid A. B. was plaintiff and C. D. defendant, and the said defendant having been duly served with summons herein, and no [or, no sufficient] cause being shown why the said judgment should not be revived: It is therefore considered by the court that the said judg- ment, to wit, rendered in case Xo. in this court, at the term, 18 — , in favor of this plaintiff and against this de- fendant for dollars, wdth interest from the day of , 18 — , and ^ costs of suit, do stand revived. It is further considered that the plaintiff recover from the defendant his costs herein expended. For all of which exe- cution is awarded. Revivor, when party dies after judgment and before satis- faction. In this case a judgment may be revived by sec. 5369. as amended, 82 O. L. 34. 1. By the representative, real or personal or both, being made parties to the judgment by action brought for that pur- pose. 2. By such representatives being made parties to the judg- ment in the same manner as is prescribed for the revival of actions before judgment. 149a JOURNAL ENTRIES. [SEC. OoG9- The manner prescribed for making the representatives parties to the action before judgment is found in sees. 5149, 5152, and is a. By allowance on motion, sec. 5149. b. By supplemental pleadings naming the representatives, and service, sec. 5149. c. By conditional and final oi-der of revivor, sees. 5150. 5152. d. B}'' ;i consent order of n vivoi-, sec. 5152. The entries in the above eases will be given successively. 281. (Sec. 5369, 82 0. L. 34.) Representatives made parties on petition filed. [ Title.'] This cause now coming on for hearing on the petition for H revivor of the judgment rendered in case numhei'ed in this court, wherein A. B. was plaintiff and 0. D. defendant for the sura of dollars and costs of suit, and it being shown to the court that said judgment is still unsatistiod. and the defendant has died since its rendition, and that E. F., the defendant in this action, is the duly appointe 1 ami qualified executor [' r otiier representative'] of the said C. D., and that ho has been duly served with summons herein, and no [or, no sutKcient] cause being shown to the contrary, it is tiierefore ordered tluit the said E. F. executor as aforesaid be, and he hereby is, made party defendant to the judgment aforesaid, and execution is awarded against him ; and it is ordered that lie pay the cost of this action. 281a. (Sec. 5369, 82 0. L. 34.) Representative nuv/e party to judgment, on motion.^ \_Title.'\ ]^ow comes E. F. and suggests to the court the death of A. B., the plaintiii" [or, C. D., the defendant] herein, since the rendition of the judgment, and that he is the duly appointed and qualified administrator [or, other representative] of the said , and moves the court for leave to become a partj' to the judgment; and the court finding the suggestion to be true, grant said motion ; and said E. F., administrator as aforesaid, is accordingly made a party to the said judgment [and execu- tion is awarded in his favor.] 'As by sec. 5149. -.5300] KEVIVOR OF JUDGMENT. 150 Probably the representatives may be made parties by supple- HTtiental pleadings, as provided for in sec. 5149, but as yileadings will seldom be filed after judgment no forms are given. :282. (Sec. 5369, 82 O. L. 34.) Conditional order of revivor — party (I'liny after jiulgment} [Title.] Now comes R. W. [o?-, the plaiiitirt], and suggests to the •court that the plaintitf [or, the defendant] herein has died since the rendition of the judgment in the action, and that he, the said R. W. [or, that M. N.] has been duly appointed and qualified as the executor of the last Avill and testament of the said plaintiff [or, defendant]; and the court being satisfied thereof, and that said judgment remains unsatisfied, now, on motion of the said R. W, [or, i)!aintift"], it is oi-dered that he [or, the said M. N.], as sucli executor, be made party plaintiff [or, defendant], instead of the said A. ]>. [or, C. D.], deceased, to the judgment aforesaid, to wit, rendered in this action at tlie term, A. D. 18 — , of this court, for the sum of % damages, with interest from the day of , a. d. 18 — , and $ , costs ot suit, nidess sufiicient cause be shown against said revivor within days^ after service of this or- der upon the said defendant [or, the said M. i^., executor]. 283. (Sec. 5369, 82 0. L. 34.) Final order of reviror — paiiy dying after judgment. [Title.] Now comes the said R. W. [or, plaintiff], and the condi- tional order of revivor herein having been duly served upon the said defendant [or, M. jST.], and said judgment still re- maining unsatisfied, and no [or, no sufficient] cause being shown why it should not be revived, it is now ordered that the said R. W. [or, M. X.], administrator as aforesaid, be, and he hereby is, made party plaintiff [or, defendant], instead of the said A. B. [or, C. D.], deceased, to said judgment, to wit, iSee sees. 5150 and 5151. ^See note 1. puL-e 1-IS. 150a JOURNAL ENTRIES. [SEC. 5369- rendered in this action at the term, a. d. 18 — , of this court, for the sum of $ , with interest from the duy of , A. D. 18 — , and costs of suit; and execution is awarded accordingly, and also for the costs in this behalf ex- pended. 283a. (Sec. 5369, 82 O. L. 34.) Beoicor of judgment by con- sent. [Title.'] Now comes the plaintiff and suggests to the court that tlie defendant, against whom judgment was rendered herein, has (lied, and that the judgment remains unsatisfied, and also that E. F. has been duly appointed and qualified as executor of said defendant. And the court being fully satisfied thereof and the said E. F., executor as aforesaid, consenting, it is liereby, on motion of the said plaintiff, ordered that the judg- ment stand revived against the said E. F., executor as afore- said, and execution is awarded accordingly. -5371.] EXECUTION AGAINST THE PROPERTY. 151 DIYISIOK" V. — Enforcement of Judgment. Chapter I. Execution. II. Proceedings in aid of execution. CHAPTER I. EXECUTION. Subdivision II. Execution ag.\inst propertt. III. Exemption from execution. V. Execution against the person. VI. Privilege from arke.st. SUBDIVISION II. — Execution against property. STANDING ORDER FOR EXECUTION FOR COSTS. 284. Leave for sheriff to amend his return. 285. (Sec. 5387.) Order to sell chattels at private sale. Appraisement and sale of lands and tenements — 286. (Sec. 5394, ) German advertisement dispensed with. 287. (Sec. 5394.) Advertisement in Bohemian paper ordered. 288. (Sec. 539S.) Decree of confirmation — order for deed and distribu- tion. 289. (Sec. 5399.) Order for master to convey. 290. (Sec. 5404.) Order to sell on premises. 291. (Sec. 5407.) Order for succeeding sheriff to make deed. 292. (Sec. 5412.) Vacating satisfaction of judgment. 293. (Sec. 5413.) Same — in favor of officer. 294. Order for new appraisement. 295. (Sec. 5416.) Same — after land being twice offered. 152 JOURNAL ENTRIES. [SEC. 5372- 298. (Sec. 5416.) Order directing sale for certain amount. 298. (Sec. 5438.) Re-appraisement of homestead ordered. An execution is j)roperly defined to be " the obtaining of actual pos- session of auy thing acquii-ed by judgment at law," aud necessarily goes on all fiual judgments. There may be special cases requiring special executions, but in ordinary cases the right to have the u.sual execution follows every judgment as of course.^ An execution is deemed a process of the court, and is issued l)v the clerk. ^ And Avhen the clerk affixes the seal to the process, aud issues it on the a})j)lication of a suitor, it is the process of the court or the law, not that of the clerk, and the order of the court for its issue will be presumed.^ The fact of the writ being issued presupposes the order, and no other proof of the execution having been awarded is necessary.* It is therefore not necessary to annex to the judgment entry an order awarding execution. But, in the case of the clerk's costs, section 1321 provides that he "may, for his own benefit, or shall, at the instance of any person en- titled to fees in the bill of costs taxed against either party, and by order of the court, issue against the party, etc." But the supreme court, in the case of Elliott v. Ellery, 11 Ohio, 30G, decided that a s])ecial award in each case was not necessary where thei'e was a standing order for execution. The standing order adjudged to be sufficient was as follows : STANDING ORDER FOR EXECUTION FOR COSTS. Ordered, by the court, that, in all cases where the party recovering judgment in this court shall neglect to sue out execution immediately; or, after execution shall have been returned without satisfaction of costs ; or, where costs are adjudged against either party on continu- ances, amendments, or any special rule, the clerk may, for his own benefit; or at the instance of auy person entitled to fees in the bill of costs, issue execution against the party indebted to such clerk or other person, for such fees, whether plaintiff or defendant, at any time after the expiration of the time given for the payment of the same, agree- ably to the act regulating the taxation aud collection of costs ; and this is made a standing order of this court. 1 Darby v. Carson, 9 Ohio, 149. => Code, sec. 5372. ^Earl's Lessee v. Shoulder, 6 Ohio, 409. -5387.] EXECUTION AGAINST PROPERTY. loS Au executiou will be set aside, on motion, when issued upjn a dor- mant judgment,* or if improvidently issued.- It may also be amended when it mistakes the amount of the judgment.' A sheriff's return upon an execution may, by leave of court, within a reasonable time in the discretion of the court, be amended.' 284. Leave for sheriff' (o amend his return. [Title.-] Xow comes G. H., sberitf of this court, and asks leave to- amend Lis return on the execution issued in this action. And the court being satisfied of the propriety thereof, grants the same, and allows said sheriff to file an amended return. 285. (Sec. 5387.) Order to sell goods and chattels at jyrivafe- sale. [Title.] This cause coming on for hearing on motion of the to sell at private sale, etc., on consideration thereof, and for good cause shown, it is ordered that the sheriff cause the goods and chattels levied on in this case to be appraised ac- cording to law, by three disinterested persons, and that he may then sell the same at private sale, for cash, within days from this date, at not less than two-thirds of their ap- praised value. Appraisement and sale of lands and tenements — The court has the power when the appraisement of property was made probably under some misapprehension of the location of the property, or in ignorance of its value, and where justice to the parties manifestly requires it, to set it aside, and order a new appraisement to be made.^ Where a levy has been set aside, the parties stand just as though no- levy had ever been made. Before the property which had been levied on can be sold, it must be seized again. ^ ^ Lj'tle r. Cincinnati Manufacturing Co., 4 Ohio, 459. 2 Buckingham v. Society, 2 Ohio, 360. ^AVaggoner v. Lessee, etc., 19 Ohio, 67, 104. * Fowble V. Kayberg, 4 Ohio, 59. * Bates V. Junction 11. E Co. « Patton V. Sheriff, etc. 2 Ohio, 396. 154 JOURNAL ENTRIES. [SEC. 5388- The court can confirm or set aside a judicial sale, but can not modify its terms. ^ 286. (Sec. 5394.) German advertisement dispensed ivith [in cer- tain counties']. [Title.] On motion, and for good cause shown, advertisement in a German newspaper of the sale to be made in this case is hereby dispensed with. 287. (Sec. 5394.) Advertisement in Bohemian paper ordered. [ Title.] On motion of the , and it appearing for the best in- terests of the defendant herein, it is ordered that notice of the sale to be made in this case be published in the [name paper], a newspaper printed in the Bohemian language, in the same manner and for the same time as published in the English paper. Make entries under section 5397 — punishing a purchaser of real es- tate who fails to pay the purchase-money therefor — as under " Con- tempts OF Court." 288. (Sec. 5398.) Decree of confirmation; order for deed and distribution. [ Title.] This cause came on to be heard on the return of the sher- iff of the writ of execution issued herein, with his report of his proceedings and sale of lands and tenements under said writ. And the court, having carefully examined the said proceedings, being satisfied that the said sale has, in all re- spects, been made in conformity to the provisions of the statute in such cases made and provided, find the same to be legal,^ and do, therefore, approve and confirm the same. > Ohio Life Ins. and Trust Co. v. Goodin, 10 Ohio St. 557. 2 Some attorneys consider it necessary, in drawing this decree, under the pe- culiar phraseology of sec. 5398, to make the order " that the clerk make an en- try on the journal that the court is satisfied of the legality of gaid sale," etc. but this clause seems clearly superfluous, because, when, as a matter of fact, the entry is made on the journal by the clerk, it is the act of the court; and it is -5399.] EXECUTIOX AGAINST THE PROPERTY. 155 It is further ordered that the sheriff make to the purchaser, R. W., a deed,^ according to law, for the property so sold, to wit [(f escribe]. And the said purchaser is hereby sub- rogated to all the rights of any lienholder who shall be satisfied herein, for the protection of his title.^ And a writ of possession is awarded to put the said purchaser in posses- sion of said premises.^ And the court coming now to the distribution of the pur- chase-money in the hands of the sheriti", order that he pay — First, to the treasurer of this county the taxes and penalty due upon the property so sold,^ to wit, the sum of $ . Second, to the clerk of this court the costs of this action, taxed at $ . Third, to the plaintifiF, A. B., the amount of the judgment herein rendered, with interest to this date, to wit, the sum of $ . Fourth, to the defendant herein the balance of said pur- chase-money, to wit, the sum of S . The order for distribution may, of course, be made as a separate en- try, if desired. 289. (Sec. 5399.) Order for master to convey.^ [litle.] It appearing that, by a former judgment of this court, the defendant in this case was ordered to convey to the plaintiff, conclusively presumed that the clerk made it by direction of the court. Just as it was said in the case of Earl's Lessee v. Shoulder, 6 Ohio, 409, that, when an execution had been issued, the order, for its issue would be presumed. ^ Unless the deed is ordered by the court, it will not be received as evidence of title. Curtis v. Norton, 1 Ohio, 278. 2 See sec. 5410. 3 See note 6, page 117. *Sec. 2854. Held in Hoglin v. Cohan, 30 Ohio St. 436, that all taxes and pen- alties standing on the duplicate on the first day of the October preceding the day of sale, unless the sale is on October 1st, shall be paid out of the purchase money. If the sale is on October 1st, all taxes and penalties then so standing shall be paid out of such purchase-money. 5 The order for a master commissioner to make conveyance may be added to the ^iecree for conveyance or may be made as a separate order, as in this entry. 156 JOURNAL ENTRIES. [SEC. 5400- by good and sufficient deed, certain real }>roperty in the peti- tion liereiu described, and that said defendant has neglected and failed so to do, it is therefore, on motion of the plaintifi",. ordered that the said conveyance be made by M. C, one of the master commissioners of this court, by deed conformable- to the statute in such case made and provided. 290. (Sec. 5404.) Order to sell on premises. [Title.-] It appearing to be for the best interests of all parties to- this action, it is ordered that the sale in this case be made- upon the premises, instead of at the court house. 291. (Sec. 5407.) Order for succeeding sheriff to make deed. [Title.} It appearing that the term of office of T. S., the sheriff who made the sale on execution of the lands herein sold, has expired, and sufficient proof having been made to the court that such sale was fairly and legally made, on motion, it is ordered that the clerk of this court certify the same to G. H., the present sheriff, who is directed on payment of the pur- chase-money to execute to the purchaser, A. P., a deed in fee simple for the said lands and tenements as in the former decree herein described. For entry under sec-. 5410, see Decree of CoxrmMATiON. 292. (Sec. 5412.) Vacating satisfaction of judgment. [Title.] It being shown to the court that certain property levied ott and sold in this case was not subject to levy, but was the property of L. AY., and that the phvintiff herein has paid to said L. W. upon recovery had by him against this plaintiff in case ]^o. , in this court, the sum of $ , and due notice of this motion being given to defendant herein, it is ordered that the satisfaction of the judgment herein be set aside (to the extent of the payment aforesaid) and held for naught, and that the judgment be restored with its former liens and priorities as before such entry of satisfaction. -5416.] EXECUTION AGAINST THE PROPERTY. 1')7 293. (Sec. 5413.) Sa7ne, in fcnior of officer. And now this cause coming on to be heard upon tlic mo- tion lieretoforc filed liercin by C. F., slierift'of tliis county, for vacation of the satisfaction of the judgment rendered in this case and other relief, and the defendant herein havins: had due notice of said motion, the court finds that the said C. F. has j)aid the sum of $ upon a recovery had against him by L. W. in case numbered , in this court, by reason of a sale wrongly made by him of certain property belonging to said L. W., taken upon execution in this case, the proceeds of which were applied to the satisfaction of the judgment herein : It is therefore ordered that the satisfaction of the judg- ment in this case (to the extent of the payment aforesaid) be vacated and held for naught, and execution is allowed to issue upon the same for the use and benefit of the said C. F. 294. Order fur new appraisement. [Title.] This cause came on for hearing on the motion to set aside the appraisement of the real estate levied on in this action, and on consideration thereof, and good cause shown, it is ordered that the said appraisement be, and it hereby is, set aside ; and it is ordered that a new appraisement of the same be made. 295. (Sec. 541G.) Same, after land being twice offered. [Title.] It appearing to the court that the real estate taken on exe- cution herein has been twice advertised and ofl'ered for sale under the present appraisement, and still remains unsold for want of bidders, now, on motion of the said appraise- ment is hereby set aside, and it is ordered that a new one be made [or, the levy and appraisement heretofore made are hereby set aside, and a new execution awarded]. Order to sell on time may also be added, as follows :] And on motion of the , and it appearing for the best interests of the parties, it is ordered that the sale be made 11 158 JOURNAL ENTRIES. [sEC. 5416- on terms of one-third cash, one-third in nine months, and one-third in eighteen months from the day of sale, tlie defer- red payments to draw six per cent interest, and bo secnred by mortgage on the premises. 296. (Sec. 5416.) Order dire.ctivg sale Jor certain amount. [ntle.] It appearing to the conrt that the real estate taken on exe- cution herein has l)een three times appraised, and thereafter twice advertised and offered for sale, and still remains unsold for want of bidders, it is now, on motion, ordered that the said real estate may be sold for the sum of dollars, pay- able in cash \or otherunse']. For judgment against principal and surety under sec. 5419, see En- try No. 515. Subdivision III — Exemption from execution — 298. (Sec. 5438.) Re-assignment of homestead ordered. [Title.'] This cause now coming on for hearing on complaint of the herein against the appraisement and assignment of homestead made by the sheriff in this case, the court finds, upon the evidence, that said complaint is well taken, and it is therefore ordered that a re-appraisement and a re-assign- ment of said homestead be made by said sheriff. SUBDIVISION V — ExECUTiox against the person. 299. (Sec. 5449.) Order allowing. 300. (Sec. 5456.) Order for discharge in certain case* 299. (Sec. 5449.) Order allowing. [Title.] On motion, and a judgment having been h-eretofore ren- dered in this action in favor of the plaintiff against the defendant, C. D., for the sum of % and costs of suit, and the court being satisfied from the evidence that [here state one of the causes in section 5448], it is therefore ordered that an ex- ecution be allowed to issue against th'' pcr'^on of the said -5463.] BY CIVIL ACTION. 159 C. D., commanding the sheriff to arrest and commit the said ('. D. to the jail of this county until he shall jiay the said Judgment, or be otherwise discharged according to law. -500. (Sec. 545G.) Order for discharge in certain cases. [ntle.'] It appearing that the defendant, C. D., heretofore commit- ted to the jail of this county by an order of the court in this case, is entirely unable to pay the judgment against him [or, unable to endure the imprisonment], it is therefore ordered that the said C. D. be, and he hereby is, discharged from his said imprisonment. [Add any special order that the court may make.'] Subdivision VI — Privilege from arrest — 301. (Sec. 5461.) Order of discharge, on motion. [Title.-] On motion of the defendant, C. D. herein, heretofore ar- rested in this case upon process sued out by A. B., and it ap- pearing that such arrest was illegal for the reason that [state reason given under this subdivision'], it is ordered that said C. D. be forthwith discharged from such arrest, and that the said A. B. pay all the costs of the proceedings in this be- half CHAPTER n. PROCEEDINGS IX AID OF EXECUTION. SuBDivisiox I. By civil action. III. By examination of debtor. IV. By attachment. SUBDIVISION I.— By civil action. 302. (Sec. 5464.) Decree subjecting equitable interest, etc., to payment of debt. The remedy given by section 5464 is one to be exercised by the chan- cery powers of the court, and the decree in an action under this section 160 JOURNAL ENTRIES. [SEC. 5464- may take so many different forms that too much space would be re- quired to give them all. One form is given, and it can be modified to suit the other cases. The following are some of the differentcourseswhichthedecreemay take: 1. A fraudulent sale may be declared void, and the property be sold by a master commissioner, and proceeds applied to payment of the judg- ment;^ in which case the decree will be similar to those under section 6344. 2. The defendant may be compelled to disclose his means to pay tlie debt.^ In this case the entries to be made will be similar to those un- der section 5472, and following sections. 3. Money in the hands of a third person or a corporation may be sub- jected under this section.^ In this case the proceedings to carry iuto- effect the decree will be in the nature of proceedings in attachment. 4. Unpaid subscriptions of stock may be subjected to pay a judgment against the corporation.* In such a case, a master may be appointed to report names of stockholders, amounts due, etc., and a receiver to collect amounts and pay debt. Or a judgment and execution may be entered and levied against any stockholder.'' 5. Debtors of the defendant may be subjected to payment of plaint- iff's judgment by a judgment and execution against each.*' 6. The interest of a mortgagor may be sold, subjected to the payment of a judgment, and the cause may be first referred to a master to state an account and report the sum due and the value of the equitable in- terest.' 7. When a negotiable note in the hands of a debtor is subjected, the court ought, if possible, to compel the production of the jmper, and if that can not be done, to suspend a decree in the premises until the ma- turity of the paper, and until the possible rights of third parties can be ascertained ; because the party who receives it before due for value,, and without actual notice of the pendency of the proceedings, is en- 1 Piatt r. St. Clair's Heirs, G Ohio, 227. See in this case the decree in full. 2Miers v. Turnpike Co., 11 Ohio, 273. 3 City of Newark v. Funk, 15 Ohio State, 462. * Henry et al. v. Railroad Co. 17 Ohio, 187. 5 Warner v. Callender et al., 20 Ohio St. 195. ^Gilmore v. The Miami Bank, 3 Ohio, 503. See in this case the decree in full' entered by the Supreme Court. 'Mattocks V. Humphrey's Adm'r, 17 Ohio, 836. -5471.] BY CIVIL ACTION. 161 titled to the proceeds, notwithstanding the chancery proceeding to sub- ject it.^ 302. (Sec. 54(34.) Decree subjecting equitable interest, etc., to pay went of judgment. [ Title.'] This cause came on to be beard upon the pleadings and tbe evidence, and the court, having fully considered the same, find that the plaintift' recovered a judgment for $ against the defendant, C. D., on the day of , 18 — , ill the Court of Common Pleas of county, and that he is still the owner thereof, as alleged in the petition ; that said judgment remains unsatisfied, and that there is due thereon, with interest to the first day of this term, the sum of $ , and also the sum of % , costs in said case; that said de- fendant lias no personal or real property subject to levy on execution sufficient to satisfy said judgment,^ and that he is the owner of an equitable interest, to wit [describe'], in the following described real estate, viz. \_d escribe']. And thereupon the court find that said plaintiff' is entitled to have said interest subjected to the payment of the judg- ment aforesaid. It is therefore considered and decreed that, unless the judg- ment aforesaid shall be paid within days, said equi- table interest shall be sold, and that an order therefor shall issue to the sheriff" of county, directing him to appraise, advertise, and sell said interest as upon execution against real estate, and report his proceedings to this court. The subsequent entry of confirmation and distribution will be in the :sanie form as in case of sale on foreclosure. See Euti-y No. 225. 1 Stone V. Elliott, 11 Ohio St. 252-260. 2 It is not necessary that an execution should have been issued. Bomberger V. ■I'urner, 13 Ohio St. 263. 162 JOURNAL ENTRIES. [SEC. 5472- SDBDIVISION III. — By examination of debtor. KlXnS OF PROCEEDINGS — Ist. When instituted without affidavit or proof. 303. (Sec. 5472.) Order for defendant to appear. Notice. 304. (Sec. 5477.) Order appointing referee after the appearance, etc. 2c?. When instituted upon affidavit or proof of property. 305. (Sec. 5473.) Order for defendant to appear [made by a judge]. 306.' (Sec. 5473.) Order for defendant to appear [made by the court]. 307. (Sec. 5477.) Appointing referee. Zd. When commenced by an order of arrest. 308. (Sec. 5474.) Order for arrest. Warrant for arrest. 309. (Sec. 5474.) Order for undertaking. 310. (Sec. 5477.) Appointing referee. Ath. Proceedings against third parties. 311. (Sec. 5475.) Order for appearance of, after execution. 312. (Sec. 5475.) Order for appearance of, before e.xecution. APPLICiTlOX OF PROPERTY DISCOVERED 313. (Sec. 5483.) Order for, when in hands of defendant. 314. (Sec. 5483.) Order for, when in hands of third party. 315. (See. 5484.) Appointing receiver. 316. (Sec. 5486.) Order for receiver to sell. 317. Order for receiver to pay off judgment. 318. Order for receiver to apply funds. Minutes of the judge — I^ATURE OF THE PROCEEDINGS — These proceediug.s are copied from the New York Code of Procedure,, and their object is to subject to the payment of a judgment a class of pei'sonal property which is most easily concealed by a judgment debtor. All the more recent decisions lean .so decidedly in favor of regarding these proceedings as proceedings in the action where the judgment Avas -5472.] EXAMINATION OF DEBTOR, ETC. 1C3 rendered, that this point is deemed settled in New York.' Our own code appears to contemplate the same construction ; as, in case of a sale of the debtor's interest in any real estate, the proceedings of sale must be ai)proved by the court in which the judgment was rendered, or the transcript filed." And so, also, the judge before whom the proceedings are had is required to reduce his orders to writing, and, with a minute of his ])rocecdings, to file tliem with the clerk of the county in which the judgment was rendered or the transcript filed,' whether he be a mem- ber of the court of that county or not. The judge who entertains the proceedings appears to act as a special judicial officer, and not as the court. And in New York it has been lield that where authority has been given only to the judge to act, that the court has no power to.* The Supreme Court of Kansas, however, holds that these proceed- ings had before the court are valid, because the court the greater in- cludes the judge the less.* Our own Supreme Court has not passed on this question, but the rea- sons given by Lawrence, J. , in the case of Welch v. P., Ft. W. & C. R. R. Co., in the Common Pleas Court of Allen county (1859), reported in 1 W. L. M. 143, seem sufficient to warrant us in following the New York decisions, and in holding that where the statute authorizes a judge only to sit in these proceedings, he sits not as a court, but simj^ly as a judge. This power conferred on him by the legislature is directly au- thorized by article 4, section 18, of the constitution, which authorizes })Owers to be given to a judge distinct from those given to the court by section 4 of the same article. The proceedings when not instituted in the couH in which the judg- ment was rendered,'* may have the original title, or the following: In the matter of proceedings in aid of exe-^ cution in the case of A. B. v. C. D., No. [ , of the Court of Common Pleas of county, Ohio. 1 The New York decisions here cited are mostly collated from " Supplement- ary Proceedings," by Daniel S. Kiddle, of the New York bar. 2 Code, sec. 5486. ^ Code, sec. 5487. ^Miller v. Kosseman, 15 How. 10. ^Kiser v. Sawyer, 4 Kan. 6 Code, sec. 5473. 164 journal entries. [sec. 5472- Kjnds of proceedings — These proceedings may be considered under four heads : 1st. When instituted without affidavit or proof. 2d. When instituted upon affidavit of proof of property, etc 3d. When commenced by an order of arrest. 4th. Those against third parties. 1st. When instituted without affidavit or jiroof. In this case the proceedings are had under section 5472, and only after an execution returned unsatisfied, in Avhole or in part. And the order can only be issued by a probate or common pleas judge of the county to which the execution was issued. The judge, as a separate judicial officer, on application of the plaint- iff, will make an order that the defendant appear and answer concern- ing his property either before himself or a referee appointed by him, at a time and place certain. This order must be reduced to writing,^ and, Avith others, must be returned to the court wherein the judgment was rendered or transcript filed. ^ But is it not also an '• order," under sec- tion 5310, to be entered by the clerk on the journal of the court of Avhich the judge is a member, by virtue of section 4963? Perhaps not, from the fact that these are special proceedings, and are controlled spe- cifically by the sections in this chapter ; but it Avill do no harm so to enter this, and all subsequent orders of the judge, on the journal of the court. They are at any rate thus preserved from loss. But the judge should still file a record of his orders and proceedings Avith the clerk of the county Avhere the judgment Avas rendered or transcript filed, in compliance Avith section 5487, even though the court be the one of which he is judge. A copy of this order AA'ill also be made out and be signed by the judge, and served upon the defendant as a summons in other cases. ^^ The referee may be appointed to report the evidence or the facts.^ If it appears from the examination that the debtor has no such prop- erty as claimed by the plaintiff, the proceedings Avill be dismissed, for this fact is necessary to confer jurisdiction.* And they should be dis- missed at plaintiff's cost. If pi'operty is discovered, orders Avill be made concerning it as here- after shoAvn. \ iCode, sec. 5487. ■■TT. Bank of Rochester v. U. Bank of Sandusky, 6 Ohio St. 260. 3 Code, sec. 5477. *Sacket v. Newton, 10 How. 560. -5472.] EXAMINATION OF DEBTOR, ETC. 165 303. (Sec. 5472.) Order for defendant to appear. [Title.] On motion of the plaintiif in tlie above-recited case, and it appearing that an execution against the property of the de- fendant, C. D., duly issued to the sheriff of this county, has been returned wholly \_or, in part] unsatisfied,* it is hereby ordered that the said C. D. do appear before me [or, before M. R., Esq., who is hereby appointed referee in this cause, to take the examination of the said C. D. in writing, and to re- port the evidence to me],' at , on the day of , 18 — , at o'clock -. M., to answer under oath concerning his property. And the said C. D. is hereby enjoined and restrained from transferring, or in any way disposing of any of his property, money, or credits, until further order in tlie premises.^ On the above order, the judge Avill cause to be issued the following : NOTICE.^ The State of Ohio, \ ^^ County of . J To the sheriff of the county of , greeting : You are hereby commanded to notify CD. that the fol- lowing order has been made by me, to wit [copy the preceding title and order iiifuKI ;* and that he, the said C. D., be and ap- pear before , at the time and place in said order men- tioned, and in all things observe and obey the same. And at said time you will make due return of this order. AVitness : M. F., Judge of the Court of Common Pleas of county, Ohio. 1 Code, sec. 5477; or the referee maybe appointed "to report the facts" only, and the evidence need not be taken in writing. See 3 Law G. 251. 2 By sec. 5484. 3 The sheriff will serve and return this notice like a summons. See sec. 5487. -t Union Bank, etc. v. Union Bank, etc., G Ohio St. 260. 166 JOURNAL ENTRIES. [SEC. 5472- 304. (Sec. 5477.) Order appointing referee after the appear- ance, etc. [Title.] The judgment debtor herein [or any person hacing property of the judgment debtor, naming /u'm], having appeared [or, been brought] before me in supplementary proceedings in this ac- tion,! do hereby [upon the consent of the parties herein] ap- point R. S., Esq., referee to take the evidence lierein, and report the same to me [or, report to me the facts.] ^ And the said C. D. [or other person'] is hereby ordered to appear and attend before the said R. S., at , on the day of , 18 — , at o'clock,* for examination and discovery con- cerning his property. Or, if the order is for the examinatio?i of a third party, con- chide] : — ^fov examination and discovery concerning any property of the defendant, C. D., in his possession, or any debt due the said defendant from him. 2d. IVIien instituted upon affidavit or jyroof of property. The proceedings in this case may be commenced after issuing, and before return of an execution, under section 5473. They may be had before a judge, as in the last section, or before the common pleas court of the county in which the order may be served. If made by a judge, the remarks under the last section are applicable to this. If had before a court other than the one rendering the judgment, the proceedings should be entitled as on page 163, and be numbered and docketed as a case in the court entertaining the proceedings ; and the orders made as other orders in the court, and entered on the jour- nal. It is probable that the defendant should be served, not with a regular summons, but instead with an order signed by the judge, as in case the judge hears all the proceediugs.'- A referee mav be appointed to take the examination.'' If tlie proceedings are had before the court in which judgment was rendered, the order will be regularly entered on the journal as other orders. But it would still seem that the defendant should be brought 1 If only the facts are to be reported, the evidence need not be taken in writ- ini;. See Directors, etc. r. Woodruff, 3 Law G. 251. 2 Code, sec. 5487. ' Code, sec. 5477. , -5473.] EXAMINATION OF DEBTOR, ETC. 167 in, by an order made and signed by the judrje, in the same manner as wlieu the judge ah)ne entertains tlie proceedings. There is but one way pointed out for l)ringing the defendant in," and that seems to apply to all cases. Although this is the only section under which the couH is directly authorized to act, the judge only being mentioned in all of the others, yet as the latter jxirt of tliis section authorizes such proceedings to be had " for the application of the property of the judgment debtor toward the satisfaction of the judgment as are prescribed in this sub- division," it is probably intended that the court beginning proceedings under section 5473 shall have, in carrying on the examination thus l)egun, all the powers given to the judge by sections 5483, 5484, and 5486 ; otherwise, this latter clause would have no effect, so far as the court is concerned ; and the court would be limited to the examination of the debtor, with no power to proceed a step further. 305. (Sec. 5473.) Order for defendant to appear [made by a jadfje']. [Title.'] On motion of the plaintift' in the above-recited action, and it appearing that an execution has been duly issued against the property of the defendant, C. D., and it further appear- ing by the affidavit of the said A. B. [or other proof], to my satisfaction, that the said C. D. has property which he un- justly refuses to apply to the satisfaction of the judgment in the above-recited action, * [conclude as from * in Entry No. 303. 30G, (Sec. 5473.) Order for defendant to appear [made by the coart\ Use the last form, substituting the court for the judge. The notice will be in the same form as under the last section, page ■ in5. 307. (Sec. 5477.) Order appointing referee. See Entry No. 304. ' Code, sec. 5487. 108 JOURNAL ENTRIES. [SEC. 5474- •3(7. When commenced bij an order of arrest. The proceedings in this case are instituted under section 5474. The warrant is alternative to the orders under sections 5472 and 5478, and hence shouhl not be accompanied with the order.^ It can only be issued by a judge in the county in which the debtor resides or may be arrested. Must the order for the arrest be reduced to writing, under section 5487? Perhaps there is no absolute necessity for it, but it will avoid question and preserve the record in case the pa- pers are lost, and it Avould therefore be better to treat this like all other orders made by the judge. Then, the order being made, the judge is- sues the warrant. The warrant should probably be signed by the judge and be issued by the clerk, as in ordinary cases," and will be served by the sheriff. Upon the appearance and examination of the debtor, he will be dis- charged from arrest unless the judge find that he has property which he unjustly refuses to apply to such judgment, or that there is danger of his leaving the state ; and the discharge should be at the plaintiff's cost. If either of the above facts is found, the order for an vmdertaking Avill be made, and the same proceedings also had as in cases of appear- a,nce without arrest. The order and warrant will require the debtor to appear before the judge in the first instance, but afterward a referee may be appointed, as in other cases, to examine him concerning his property, as in Entry No. 304. 308. (Sec. 5474.) Order for arrest. [Title.] As in No. 303 or 305 to *, and continue •] — and it further ap- pearing from the affidavit of the said A. B. [or otherwise'] that there is danger of the said C. I), leaving the state, it is there- fore ordered that a warrant issue to the sheriff" of this county for the arrest of the said C. D., and directing said sheriff to bring hivn before me, at , on the day of , for examination concerning his intentions and his property. 1 Andrews v. Wilson, 9 How. 39. - Code, sec. 4959. -5474.] EXAMESfATION OF DEBTOR, ETC. 169^ WARRANT OR ARREST. The State of Ohio, 1 county, / 7b J. H. Esq., sheriff of our said, coaniy, (ireHiiKj .- Whereas, the following order was thi^3 day made by me. to wit \_copii tlic above orEC. OoOO- And it is ordered that, before cutc'riiig- upon liis duties, such receiver execute to the plaintiff lierein [or stick person as the court may direct] an undei'taking-, conditioned accord- ing to Uiw, in the sum of $ . And now came the said E. F., and presented his undertak ing, with J. K. and L. M. as sureties, to the approval of the court, and was duly sworn as such receiver. 355. (Sec. 5590.) Order for receirer to tmng salt. ITitle.'] It appearing to the court that E. F., the receiver herein, claims that S. T. is rightly indebted to the in this case in the sum of | [or, that the receiver herein holds the promissory note of S. T., now past due, for the sum of S ], the court does now, upon the application of said receiver, authorize and direct him to bring an action against the said S. T. for the recovery of the said sum of % , with the in- terest thereon. 355. Order allowhu/ action ar/ainst a receiver. [7Vle.] ISTow comes R. S., and moves the court for leave to bring an action against the receiver heretofore appointed by this court in this cause; on consideration whereof, the court grant the same, and allow the said E. S. to lile his petition forthwith. 357. (Sec. 5591.) Order for receiver to invest nioneij. [Title ?^ On motion, and by consent of all the parties to this action, it is ordered that the receiver in this action invest the funds in his hands as such receiver in [specify investment], and hold the same subject to the orders of this court. 358. Order confirming report, and discharyiny receiver. [Title.-] This cause coming on to be heard upon the motion to con- firm the final report of, and to discharge the receiver herein, it is ordered, on motion of the said' receiver, that he be al- -O-V.)!.] IlECEIVERSUIP, ETC. 105 lowed and paid the sum of dollars out of the money in lii.s hands, in full for his services herein. And the court find- ing the said report correct, and that the said receiver has fully oljeyed the orders of the court to him issued, and has duly paid over all moneys coming into his hands as such re- ceiver : It is therefore ordered that all acts and things done hy him, as wi'll as his said report, he, and they hereby are, approved and confirmed; and the said E. F. is discharged from his duties, liabilities, and responsibilities as such receiver, and his undertaking therefor is vacated and canceled. Goods ix custody of a receiver — If a sheriff inukc a levy upon property iu the custody of a receiver of the court, he may l)e ordered to withdraw his levy, and answer to the court for a contempt iu making it.' But it seems the court may properly permit a levy, so as to enable the judgment creditor to secure any rights to the property which a levy would give, in the event the claims in the action, in which the re- ceiver was appointed, should not be prosecuted, or should not be sus- tained.' 359. Order for sheriff to withdraw levy. \_Title.'] It appearing that the sherifi' of this county has made a levy upon certain property in the hands of the receiver in this action, without permission of the court, it is, on motion, ordered that he withdraw the same forthwith. It is further ordered that the saidsherifF appear before this court, on the day of , and show cause wh}' an at- tachment should not issue against him as for a contempt of court in making said levy. For further proceedings in contempt, see Contempt of Court. 360. Order 'permitting levy. [Title.'] On motion of the plaintifi", by his attorney, he is hereby al- » Coe V. C, P. & I. R. R. Co., 10 Ohio St. 403. 196 JOURNAL ENTRIES. [SEC. 5592- lowed to levy an execution, on the judgment in this case, on the property of defendant, now in the hands of E. F., re- ceiver of this court, for the purpose of obtaining a lien thereon. Property held by party as trustee — 361. (Sec, 5592.) Order for deposit of. I'litle.] It appearing from the answer [or, examination] of J. H. that he has in his possession [or, under his control] certain money, to wit, the sum of doUars, belonging to E. F., which is the subject of this litigation, and which the said J. 11. holds as trustee of the said E. F., it is now, on motion of , ordered that the same be deposited with the clerk of this court, subject to the further order of court. [Or, deliv- ered to the said E. F., upon his giving security to the ap- proval of the court that the said money shall be forthcoming, subject to the further orders of court.] 362. (Sec. 5593.) Order for delivery of, enforced. [Title.'] It appearing to the court that S. P. has property in his pos- session, which, under the former order of this court, he was required to deliver to the said receiver [or to any other 'person'] in this action ; and it further appearing that the said S. P. has, on demand, refused to make such delivery : It is therefore ordered that the sheriff of this county do forthwith proceed to take the said property and deliver [or, deposit the same in conformity with the former order of this court. And it is further ordered that an attachment be issued, commanding the sheriff' to arrest and bring the said S. P. be- fore this court, on the day of , to answer for this, his neglect and refusal, as for a contempt of court. For further proceedings in attachment, see Contempts of Court. -5594.] AMERCEMENT. 197 DIYISIOX VII. — Special Proceedings. CHAPTER I. Amercement. II. Arbitr.\tiox. III. Bastardy. IV. Co.NTEMPTS OF COCRT. V. Dl.SSOLLTlON OF CORPORATIONS. VI. Divorce and alimony. VII. DOWEU. VIII. IIabkas corpus. IX. Partition. X. Real actions. XI. Replevin. XII. SuRETIE.S — RIGHTS AND RE.MEDIES OF. XIII. TaXE.S and assessments— RELIEF AGAINST ILL order that the appraisement be made "both 10 238 JOURNAL ENTRIES. [SEC. 5761- And it is ordered that a writ issue to the sheriff of county, commanding him that by the oaths of the commis- sioners above named he cause to be set oif and divided to each of the above named parties, the part and proportion of said estate to which they are hereinbefore severally found en- titled, and also cause to be set off and assigned,^ in man- ner as above ordered, the dower of the said J. B. And of his proceedings herein, the said sheriff is ordered to make due return. 440. (Sec. 5770.) Decree luhen ividow's ansioer asking money value in lieu of doiver has been filed? [Title:] As in last to *, and continue:'] But it is ordered, upon the answer of the said J. B., that if, in the opinion of said commissioners, said estate can not be divided by metes and bounds without injury to the value thereof, no dower be assigned, and that said premises be appraised free from said dower interest. And it is ordered that a writ issue to the sheriff of county, commanding him that by the oaths of the commis- sioners above named he cause to be set off and divided to each of the above named parties, the part and proportion of said estate to which they are hereinbefore severally found entitled, and also to be set off and assigned the dower of the said J. B, if said estate can be divided, in manner as above. And of his proceedings herein the said sheriff is ordered to make due return. I. Confirmation, where property has been divided by metes AND BOUNDS — 441. Decree of confirmation ? [Title.] On motion to tlie court by the plaintiff, and upon produc- subject to and free from the dower interest of the said J. B.," in order to save the expense of another appraisement, in case she should afterwards file such answer. 1 By 5gc_ 5771. * By sec. 5719. as amended 86 v. 185. 2 If no dower has been assigned, omit the part in brackets. .] PARTITION. 239 ing the return of the sheriff and the report of the commis- sioners heretofore appointed herein, and the same having been examined by the court, and found in all respects correct and in conformity to law and the former orders of this court, the said proceedings and report are hereby approved and confirmed.* It is therefore ordered and decreed that the [said J. B. have and possess the lands so assigned to her, as and for her reasonable dower in said premises ; and that the other]^ said parties hold in severalty the parts and premises so set off and assigned to each respectively. And the clerk is hereby directed to have so much of this decree, as will show the transfer of title to the several par- ties, put upon record in the office of the recorder of this county.^ And it is further ordered that the costs of this action, in- cluding a counsel fee of $ to S. and W., attorneys, for services herein,^ taxed at $ , be paid by the said par- ties in the following pro])ortions, to wit : \_As to costs, see sec- tion 5778.] 442. (Sec. 5761, 78 O. L. 253.) Decree of confirmation in amic- able partition, when deeds are ordered. [Title.'] As in last to *, and continue:'] — It is therefore ordered and decreed that said parties hold in severalty the parts and premises so set off to them re- spectively ; and on motion of the , the sheriff is ordered to execute and deliver to each of said parties a deed for the portion so set off and assigned to him. And it is ordered that the costs of this action, including a counsel fee of | , to S. W. for his service herein, taxed at $ , be paid as follows : [See sec. 5778. ^ ^See note 3, p. 238. 2 Hy sec. 4138. 'The rule adopted by the courts of Hamilton county allows as such fees two per cent on the first ten thousand dollars of the proceeds of sale, one per cent on the second ten thousand, and one-half of one per cent on all above. 240 JOURNAL ENTRIES. [SEC. 5662- II. Confirmation, where property could not be divided by METES AND BOUNDS. 443. (Sec. 5762.) Decree of confirmation and distribution, lohen one of the parties elects to take the premises and has settled ivith the other parties.^ [Title.] This cause came on for hearing upon the return of the sheriiF and the report of the commissioners heretofore ap- pointed herein, and on the motion to confirm the same. And it appearing from said report that said estate could not be divided by metes and bounds without injury to the value, thereof, and that said commissioners have [assigned dower thereof to the said J. B. in the annual sum of dollars, as the one third part of the rents, issues, and profits of said estate^, and have]' made and returned tlieir appraisement of said estate [subject to the dower of the said J. B.j,' at $ , the court find the said return and proceedings in all respects correct and in conformity to law, and do there- fore approve and confirm the same. [It is therefore considered and decreed that said J. B. stand endowed as of a third part of tlie rents, issues, and profits of the said estate in the annual sum of dollars ; and the said estate is hereby charged with the payment of the same on the day of of each and every year of the natural life of the said J. B.]' * And it ap})earing to the court that the said E. F. has elected to take the said estate at its appraised value, and has paid to the clerk of this court the costs of this case, and to the other parties herein, their respective proportions of its appraised value, the said estate [subject to the dower charge of the said J. B.],' is hereby adjudged to the said E. F. ; and the sheriff is ordered to execute and deliver a deed to liini therefor. 1 When no dower has been assigned, omit the parts of this decree in brackets * See sees. 5771 and 5714. -5762.J PARTITION. 241 444. (Sec. 5762.) Decree of confirmation and distribution, lohen the -party electing to take the premises makes payment to sheriff. [Title.] Same as last to *, and continue •] And it appearing to the court that the said E. F. has elected to take the said premises at their appraised valuer and that [by agreement of all parties herein]^ the terms of payment are to be \state terms, if other than cash. If terms are to be cash, use next decree, No. 445], and the court find- ing that the costs of this action, including a counsel fee of $ , to S. W. for his services herein,- amount to $ ; and that there is due to the treasurer of county, as taxes and penalty on said premises, the sum of $ ; ^ it is therefore ordered by the court that upon pa3^ment be- ing made to the sheriff by the said E. F. of his propor- tion of said costs and taxes, to wit, the sum of S , and upon his paying in cash and notes, secured by mortgage upon the premises, according to the terms of payment, the proportion of the appraised value due to the other parties, as heretofore found by the court, the said estate [subject to the dower charge of the said J. B.,*] be, and it hereby is, ad- judged to him, and the sheriif is ordered thereupon to make and execute to him a conveyance thereof. And the court coming now to distribute ^ the proceeds of said estate, it is ordered tliat the sheriff", upon receiving the same, as above, pay : First, to the treasurer of county, dollars, being the taxes and penalties due on said premises. Secondly, to the clerk of this court the costs of this ac- tion, including counsel fee, the sum of 8 . Thirdly, to the plaintiff", A. B., in cash the sum of S . and also [describe irhat notes]; and to the said G. II. in easii the sum of 8 , and also [describe ivhat notes], in full of their respective rights herein. 1 By sec. 5703. 2 By sec. 5778; see note 2, page ^oS. ^ By sec. 2854 ; see note 4, page 155. * If there is no dower, omit the part in brackets. *Soe sec. 5' 57. 242 JOURNAL ENTRIES. [SEC. 5762- 445. (Sec. 5762, 3.) Decree of confirmation and distribution when the party electing to take the prem- ises is ordered to pay all cash. [Title.'] As in entry No. 443 to *, and continue:'] And it appearing to the court that the said E, F. has elected to take the said premises at their appraised value, it is or- dered by the court, on good cause shown, that the propor- tion thereof due to the other parties be paid in cash,^ and that upon said E, F. paying the same, together with his proportion of the costs of this case, including counsel fee of $ , to S. AY. for his services herein, and his proportion of the taxes and penalty due on said premises,"^ amount- ing in all to $ , the said estate [subject to the dower charge of said J. B.] ^ be, and it hereby is, adjudged to him; and the sheriff is ordered thereupon to make and execute to him a conveyance thereof. And the court coming now to distribute the proceeds of said estate, it is ordered that the sherilf. upon receiving the same, as above, pay : First, to the treasurer of county, dollars, being the taxes and penalty due on said premises.- Secondly, to the clerk of this court the costs of this action, including counsel fee, the sum of $ . Thirdly, to the plaintiff, A. B., the sum of dollars, and to the defendant, G. II., the sum of dollars, in full of their respective rights herein. 446. (Sec. 5764.) Decree of confirmation and order for sale, when no one elects to take the premises. [Title.] As in No. 443 to *. and continue:] And thereupon neither of said parties electing to take the said estate at its appraised value, on motion of the plaintifi', it is ordered that said estate [subject to the said 1 By sec. 5703. - By sec. 2854; sec note 4, page 155. 3 If no dower has been assigned, omit the part in brackets. .] PARTITION. 243 dower charge of the said J. B.]/ be sold- at public auction (on the premises),* and that an order issue therefor to the sheriff of county. [And on motion of the , and for good cause shown [or sa;/, And by agreement of all parties hereto], it is ordered that the sale be made for cash]. ^ Arid, in counties requiring it, the court may order, by see. 5394 :]— And on motion of the plaintiff, and for good cause shown, advertisement of sale in a German newspaper is hereby dis- pensed with. And the said sheriff is ordered to return his proceedings to this court without unnecessary delay. 447. (Sec. 5766.) Sale [subject to dower'] ^ confirmed, and order for deed and distribution. On motion of the plaintiff, and upon producing the return of the sheriff of his proceedings and sale under the former order of this court, and tlic court being satisfied on examina- tion tliat the same have l)ccii Lad in all respects according to law, the said proceedings and sale are hereby approved and confirmed. And the said sheriff is ordered by deed duly ex- ecuted to convey said premises to A. P., the purchaser [sub- ject to the dower charge of the said J. B.]^ It is further ordered that the sheriff, out of the proceeds of sale, pay — First, to the treasurer of county dollars, beinor the taxes and penalty due on said premises.* Secondly, to the clerk of this court the costs of this action, 1 If no dower has been assigned, omit the part of this decree in brackets. 2 Bohort V. Atkinson, 14 Ohio, 237. Can not be sold until all parlies have de- clined to take. There is no direct authority for any one but the sheriff to sell in partition proceedings ; but as this chapter is a part of the code, does not sec. 4068 give sufficient authority for the court to direct a master commissioner to .«en? See also the case of Dabney v. Manning, 3 Ohio, 321. ' May be so ordered by sec. 5765. * See note 4, p. 155. 244 JOURNAL ENTRIES. [SEC. 5764- including a counsel fee of $ to S. "W., for his services herein, taxed at $ . Thirdly, to the plaintiff, A. B., the one-half of the balance of the cash payment, to wit, the sum of % , and also \^(iescrihe what notes] ; to the said G. II. the one-eighth part of the bal- ance of the cash payment, to wit, the sum of $ , and also [describe notes ; and so cordinue to all parties']. III. Confirmation and sale avhere property could not be DIVIDED BY METES AND BOUNDS, AND MONEY VALUE IS GIVEN IN LIEU OF DOWER 448. (Sec. 5764.) Decree of confirmation and order for sale — when no one elects to take the premises. {Title.] This cause came on for hearing upon the return of the sheriff and the report of the commissioners heretofore ap- pointed lierein, and on the motion to confirm the same. And it appearing that said estate can not be divided by metes and bounds without injury to the value thereof, and that said com- missioners have made and returned their appraisement thereof, free from the dower of the said J. B.,' in the sum of | , the court find the said return and proceedings in all respects correct and in conformity to law, and do therefore approve and confirm the same. And thereupon neither of said parties electing to take the said estate at its appraised value, and the said J. B. having by her answer waived her dower by metes and bounds, and asked that in lieu thereof its value be paid her in money ,^ on motion of the plaintift', it is ordered that said premises be sold'^ at public auction (on the premises),'* free of the dower of the said J. B.,- and that an order issue therefor to the sheriff of county. [And on motion of the , and for good cause shown [or say, And by agreement of all parties hereto], it is ordered that the sale be made for cash].^ ^ As provided by sec. 5719. ^^Sec. 5710. 3 See note 2, p. 243. ^See sec. 5705. -5707.] PARTITION. 245 And, in counties requiring it, the court may order, by sec. 5394 :]— And on motion of the plaintiff, and for good cause shown, advertisement of sale in a German newspaper is hereby dis- pensed with. And the said sheriff is ordered to return his proceedings to this court without unnecessary delay. 451. (Sec. 5764.) Same — when dower or life estate extends only to an undivided interest in 'premises} [Title.'] Same as last decree, substituting '■'■life estate" for '■^ dower," where proper. 452. (Sec. 5766.) Sale, free of dower or life estate, confirmed, and order for deed and, distribution. {Title.'] On motion of the plaintiff, and upon producing the return of the sheriff of his proceedings and sale, under the former order of this court, and the court being satisfied on examina- tion that the same have been had in all respects according to law, the said proceedings and sale are hereby approved and confirmed. And tlie said slieriff is ordered by deed duly ex- ecuted to convey said premises to the purchaser, A. P., free of the dower ^ [or, life estate]'' of the said . And the said having by her answer elected to receive in lieu of her dower [or, life estate], its value in money, tlie court find the just and reasonable value thereof to be dollars.-^ 1 By sec. 5770. This section also provides that, in case an undivided interest is subject to dower or a life estate, the commissioners may, in case an appraise- riH'ut of the estate is to be returned, assign or set off the same. But in that ca-e it would, by section 5714, be assigned as of '-a third part of the rents, is- siir-. aii) tluit incumbrance would appear to he detrimental to the interests of all jtarties. It is probable, for that reason, that the appraisement and sale will al- ways be free from such interest as is provided in this decree. -See sec. 5719. SGec. 5770. 246 JOURNAL ENTRIES. [SEC. 5768- It is further ordered that out of the proceeds of said sale the sheriff pay — First. To the treasurer of county, dollars, being the taxes and penalty due on said premises.' Secondly. To the clerk of this court the costs of this action, including a counsel fee of $ to S. and W. for their services herein, taxed at % ." Thirdly. To the said , the said sum of $ , as and for her full dower [or, life] interest in the said premises. Fourthly. And of the residue of the proceeds of said sale^ to the plaintiif, A. B., one-fourth of the cash proceeds, to wit, the sum of % , and also [describe what notes']. To the said defendant, C. D., one-fourth of the cash proceeds, to wit, the sum of $ , and also [describe what notes]. To the said E. F., and G. II., each one-eighth of the cash proceeds, to wit, the sum of $ , and also [describe 7iotcs]. Other provisions — 453. (Sec. 5768.) Order for revaluation. [Title.] It appearing to the court that the property described in the petition herein has been times otiered for sale, and not sold for want of bidders, now, on motion of the , it is ordered that a revaluation of said property be Tuade by L.M., IT. R., and S. T., three judicious, disinterested freeholders of the county, whom the court hereby appoint for that purpose, and that an order issue to the sheriff of said county, com- manding him so to re-appraise said property, and to sell the same, as heretofore ordered, at not less than two-thirds of the revaluation. 454. (Sec. 5768.) Order to sell loithout revaluation. [Title.] It appearing to the court that the property described in the petition herein has been times offered for sale, and not ^ See note 4, p. 155. 2 See note 3, p. 239. -5778.] TO QUIET TITLE AND RECOVER POSSESSION. 247 sold for want of bidders, now, on motion, and it being deemed expedient for the interest of all parties concerned, it is or- dered that said property may be sold for not less than dollars ; and that an order of sale issue to the sheriff accord- ingly. 455. (Sec. 5769.) Order for succeeding sheriff to make deed. [Title.'] It appearing to the court that since the sale of the lands herein, the term of office of T. S., the then sheriff, has ex- pired, and the court being satisfied that such sale was regu- larly made, and tliat the ])urehase-money has been fully paid [or, secured], it is, on motion, ordered that J. II., the present sheriff, execute and deliver to the purchaser, O. T., a deed for the lands so sold. A similar entry may be made iu case of election to take. CHAPTER X. REAL ACTIONS. SOBDIVISION I. To QUIET TITLE AXD RECOVER POSSESSIOX. II. OcCrPYIXG CI.AIM.\NT.S. III. To COMPLETE REAL CONTRACTS. IV. To SELL ENTAILED AXD OTHER ESTATES. SUBDIVISION I. — To quiet title and recover possession. To DETERMINE CLAIMS ADVERSE TO OXE IN POSSESSIOX 456, (Sec. 5779.) Decree quieting title and possession in plaintiti'. Recoupment by vendee in action for recovery op purchase-money — 4')7. (Sec. 5780.) Decree finding lien of third party, and for recoupment. 458. (Sec. 5780.) Finding of adverse estate, and surrender of premises ordered. 248 JOURNAL ENTRIES. [SEC. 5779- 459. (Sec. 5780.) Finding of adverse estate, and order for payment of balance of purchase-money on bond being given. Recovery of real property — 460. (Sec. 5781.) Decree for recovery. 461. Decree quieting title in defendant, in an action for recovery of real estate. 462. (Sec. 5781.) Judgment on verdict for plaintiff. 463. (Sec. 5781.) Motion for new trial overruled and judgment for plaintiff. 464. (Sec. 5784.) Decree for damages when right of recovery terminates during action. To DETERMINE CLAIMS ADVERSE TO ONE IN POSSESSION An action under sec. 557 (5779) of the code, to quiet title, can only he brought by a person in actual possession.' The decree should there- fore find the possession of the plaintiff. The remedy given by this section is a continuation of that given by the 14th section of the chancery practice act of 1831.- That act, how- every, differs from this in providing that " any person having the legal title and possession of lands, may file a petition," etc., and under that statute the decisions of the supreme court held that a legal title must be shown to support the case. But, query, does the present statute go further? The supreme court of Kansas, in Eaton v. Giles, held that it does. They say: "Section 569, Civil Code, '59 [same as section 5779, Ohio code], was not intended to give the right to bring an action to quiet title — this right existed previously — but it goes further than the remedies in the courts of chancery, which might be invoked by the holders of a legal title ; it extends the remedy to any person ' in pos- session by himself or tenant,' to quiet h'lii po-^i^esdon as against any im- perfect or insufficient claim of title." In an action under section 557 (5779) of the code, neither party is entitled to demand a jury. The issue is triable by the court. - 456. (Sec. 5779.) Decree quieting title and possession in plaint- if- [Title.] If decree is rendered after trial, use Finding /., p. 99; if by default, use Finding IV., p. 100, and continue:] — The court further lind that at the time of bringing this ac- 1 Harvey v. .Jones, 1 Disney. Go; Eaton r. Giles, 5 Kan. 24. ^Ellithorpe c. Bucjc et al.. 17 Ohio St. 72. 76. -5780.] TO QUIET TITLE AND RECOVER POSSESSION. 249 tioii tlic said plaintiff was in possession of the real property described in the petition, and that he had the legal estate in, and was entitled to the possession of, the same ; that neither the defendants, nor any one of them, have any estate in, or arc entitled to the possession of, said real estate or any part thereof, and that the plaintiff ought to have his title and possession (piieted as against each and every one of said de- fendants, as prayed foi- in his petition. It is therefore ordered, adjudged and decreed, that the title and possession of the said A. B. to all and singular the prem- ises in the petition described, to wit [(/.escribe], be, and the same hereby arc, quieted as against the defendants, and each and every one of them, and all persons claiming under them, or ail}' of them: and they are hereby forever enjoined from setting u}) any claim to said ])remises, or any ])ai"t thereof, adverse to the title and possession of said A. B., his heirs or assigns, thereto. [Add order as to costs.] Recoupment by vendee in action for recovery of purchase- money — 457. (Sec. 5780.) Decree finding lien of third j)arty, and for recoupment. [Title.] In the decree of foreclosure of a mortgage, or for enforcement of the vendor's lien, or judgment for money, as the case may be, insert at the -proijer places the following :] — But the court also iind on the answer and counterclaim of paid defendant, and the evidence, that there has been a breach of the covenants of title given by plaintiff to defendant, as set np in said answer and counterclaim, in this, to wit, that at the time of the execution of the deed J. M. F. held and still holds a mortgage lien [or other incumbrance] upon said premises, the present value of which lien the court find is § ; and that said defendant is entitled to recoup) the same against the plaintiff's claim as hereinbefore found, leaving due to him the sum of dollars. 250 JOURNAL ENTRIES. [SEC. 5780- 458. (Sec. 5780.) Finding of adverse estate, and surrender of premises ordered. [Title.'] Finding 111., jp. 99, to *, and continue :] — that the allega- tions of the answer and counterclaim of the defendant are true; that there has heen a breach of the covenants of title given by the plaintiff to defendant in the real estate iii the petition described, in this, to wit, that at the time of the ex- ecution of the deed J. M. F. held and still holds an estate in reversion [or otherwise; describe'] in said premises. It is therefore considered that the claim of the plaintift'be dismissed ; and the defendant assenting, it is ordered and decreed that said defendant surrender the possession of said premises, and reconvey the title thereof by deed to said A B., upon the repayment by the said plaintiff of the part of the purchase-money paid thereon, to wit, S , with inte'rest from the day of , 18 — . It is further ordered that the pay the costs of this action. 459. (Sec. 5780.) Finding of adverse estate, and order for pay- ment of bcdance of purchase-money, on bond being given. [Title.] After finding amount due plaintiff in decree of foreclosure, or on vendor's lien, or in judgment, as the case may be, cordinue:'] The court further find, on the answer and counterclaim of the defendant and the evidence, that there has been a breach of the covenants of title given by the plaintiff ta defendant in the premises hereinbefore mentioned in this, to wit, that at the time of the execution of the deed J. M. F held and still holds an estate in reversion [or otherwise ; de- scribe] in the same. It is therefore ordered and decreed that upon said plaintiff giving bond with two or more sureties to the satisfaction of the court, conditioned for the repayment of the said sum of S , if said defendant or his privies be evicted from said premises by reason of the said defect in the said title, the said defendant pay the balance due to plaintiff as above found due, and in default of such payment within days 5781.] TO QUIET TITLE AND RECOVER POSSESSION. 251 after the tender of such bond, the defendant's equity of re- demption be foreclosed, and said premises be sold, and that an order of sale issue therefor to the sheriff of county directing him to sell said premises as upon execution, and report his proceedings to this court for further order. Recovery of real property — Section 5781 is for the recovery of real property by one out of pos- session. The decree in such case must find in the plaintiff a legal es- tate and a right of possession, both being requisite to sustain the aC' tion. Tlie issue may be tried by a jury.' Section 5785 provides that the parties in an action for the recovery of real property may avail themselves, if entitled thereto, of the re- lief of the statutes in force for the relief of occupying claimants of lands. 460. (Sec. 5781 et seq.) Decree for recovery of real estate. [Title.] If given after trial, use Finding HI., page 90 ; if by default. Finding IV., page 100, and continue:] And tlie court further lind that at the time the petition herein was Hied the plaintiff had and still has a legal estate in, and was and is still entitled to the immediate possession of, the real property described in the petition, and that the defendant has unlawfully kept him out of the same as al- leged in said petition ; and the court assess the damages of the plaintiff* by reason of the premises at dollars. It is therefore adjudged and decreed by the court that the said A. B. recover from the said C. I), the title and posses- sion [or, possession] of the real property described in the petition, together with the said sum of dollars, his dam- ages so assessed, and also his costs herein expended;' and for said possession, damages, and costs execution is awarded.^ iSec. 5130. See Ellithorpe v. Buck, 17 Ohio St. 72. 2 If the title is changed, put clause in at this place by section 4138. as follows: And the clerk is directed tu have so much of this decree recorded in the office of the recorder of this county as will show such change of title. 3 See sec. 5373 for extent of execution. 252 JOURNAL ENTRIES. [SEC. 5781- If the defendant desires to avail himself of the benefit of the occu pying claimant's law, use addendum to decree, page 255, or Entry No. 465. 461. Decree quieting title in defendant, in an action for the recov- ery of real estate. [Title.] If given after trial, use Finding III., page 99; if by default, use finding IV,, page 100, and continue:'] And the court further lind that neither the plaintift", nor any one of the defendants other than C. J)., has any estate in, or is entitled to the possession of the real property in the peti- tion described, or any part thereof; hut that said defendant, C. D,, is seized in fee simple, and is rightfully in possession of the several lots of land described in the petition. [Or add special finding thus:] — as devisee of said A. S., deceased, whom the court find to have been the lawful owner of the same in fee simple at the time of his decease.] The court further find that the said defendant, C. 1)., is entitled to the equitable relief prayed for in his answer and cross-petition, and to have liis title and possession to said premises quieted. It is therefore ordered, adjudged, and decreed that the title and possession of said C. D. to all and singular the premises in the petition described, to wit [describe], be quieted as against the plaintifi", and as against each and every one of his co-defendants, and all persons claiming under them, or any of them. And that said parties, and each of them, and all persons claiming under them, be, and they are hereby, en- joined from setting up any claim to said premises, or any part thereof, adverse to the title or possession of said C. D. thereto ; or in any manner interfering with his use and en- joyment of the same. It is further ordered that the costs of this suit be paid by the plaintifi" and the co-defendants of said C. D., in equal proportions, and execution is awarded [or other order as to costs]. If the case for the recovery of real property be tried by a jury, use the usual forms, as given on p. 55 et >feq., and let the verdict be like the -5783.] TO QUIET TITLE AND RECOVER POSSESSION. 258 finding of the court in one of tlie above decrees. Judgment on the verdict for the plaintiff may be as follows : 462. (Sec. 5781.) Judgment on verdict for plaintiff". [Title.] The jury in this action having, at a former day of this term, rendered a verdict finding on the issue for the plaint- iff, and assessed his damages at $ , and no motion for a new trial having heen made ; It is therefore adjudged and decreed by the court that, in accordance with said verdict, the said A. B. recover from the said C. D. the title and possession [or, possession] of the real property described in the petition, and also the said sum of dollars, his said damages, together with his costs herein expended.' For addendum in case defendant desires to avail himself of the bene- fits of the occupying claimant law, see p. 255. If a motion for a new trial is made and overruled, enter as follows : 463. (Sec. 5781.) 3Iotionfor new trial overruled, and jwlgment for plaintiff. [Title.-] This cause came on for hearing, on the motion of the de- fendant to set aside the verdict, and for a new trial herein and the court, on consideration thereof, do overrule the same. It is therefore considered by the court that the said A. B. recover from the said C. D. the title and possession [or, the possession] of the real property described in the petition, to wit [describe], according to the verdict heretofore rendered herein, and also the said sum of -S , damages as assessed by said verdict, together with his costs herein expended.' For addendum in case defendant desires to avail himself of the bene- fit of the occupying claimants law, see p. 255. The judgment on the verdict for the defendant may simply be, that he go hence without day and recover from the plaiutifl' his costs herein expended. But a judgment quieting title in him, as in Entry No. 461, is perhaps better. 1 See note 2 to Entry 4G0, p. 251. 17 254 JOURNAL ENTRIES. [SEC. 5784- 464. (Sec. 5784.) Decree for damages ivhen right of recovery terminates during action. [ Title.] If the decree is rendered after trial, use Finding HI., p. 99 to *; if by default, Finding IV., p. 100, to *, and continue:'] — that at the time this action began, the plaintiff had the legal right to, and was entitled to the imnjediate possession of, the real property described in his petition, but that his said title expired on the day of , 18 — . And the court find that the said defendant unlawfully kept the plaintiff out of his said possession ; and do assess the damages of the plaint- iff by reason thereof at | . It is therefore considered by the court that the said plaint- iff recover from the said defendant the said sum of dol- lars damages as aforesaid, and his costs herein expended; but that as to possession of said premises, the defendant go hence without day. If the case Avas tried by a jury, use usual forms, making verdict in the form of the finding in above entry, and entering the judgment on the verdict for damages and costs. See forms of Entries No. 462 and 463, above. SUBDIVISION II.— Occupying claimant. 465. (Sec. 5788.) Entry of application, etc. 466. (Sec. 5791.) Setting aside the assessment. Where the waste and rents exceed the value of the improvements. 467. (Sec. 5792.) Judgment for balance, in favor of plaintiff in eject- ment. Where the value of the improvements exceeds the waste and rents. 468. (Sec. 5794) Judgment when plaintiff elects to take the land. 469. (Sec. 5795.) Judgment when plaintiff elects to take the value of the real estate. Under the occupying claimant law, as the commissioners may be ap- pointed upon the application of either party, it must be considered a separate proceeding from the action of ejectment, in which the party prevailing is entitled to costs. ^ 1 Martin's case, 1 Ohio, 156. See 4 Ohio, 469, 494. -5790.] OCCUPYING CLAIMANT. 255 Upon the rendition of the judgment of recovery of real estate against the occupying claimant, the court, at the request of either party, will cause a journal entry to be made of the application, under the act for the relief of occupying claimants of land.^ This journal entry is the first step in the proceedings to obtain the relief under this law, and the proceedings being deemed separate from the action of ejectment, the journal entry should show by whom the application is made. 465. (Sec. 5788; 87 v. 2^37.) Entry of application, etc. \_Title.'\ This day came tlie said , and made application for the valuation of improvements and assessment of damages under the statute for the relief of occupying claimants, upon the lands, etc. [set forth iv/uit lands]. And the court having con- sidered said application, and being of opinion that the said is entitled to relief in tliat behalf, it is ordered that fur- ther proceedings be allowed in the premises, agreeably to the j)ro visions of said statute. Or the journal entry on the application may be added to the judg- ment of recovery, as follows : Addendum : And thereupon the said , by his attorney, made appli- cation to the court for the valuation of improvements and assessment of damages under the statute for the relief of oc- cupying claimants; and the court having considered the same, and being of opinion that he is entitled thereto, it is ordered that further proceedings be allowed in the premises, agreeably to the provisions of said statute. Further proceedings will be as in other civil cases.^ If either party thinks himself aggrieved by the assessment or valua- tion, the court may, upon motion and good cause shown, set aside the assessment, etc. 'Sec. 5788, amended 87 v. 237. 256 JOURNAL ENTRIES. [SEC. 5791- 466. (Sec. 5791 ; 87 v. 238.) Order setting aside the assessment. {Title:] This cause coming on to be heard, upon the motion of the said to set aside tlie assessment of the jury herein ; and the court having fully considered the same, for good cause shown, order that said assessment, and the proceedings of the jury and sheriff in the premises, be, and the same are, hereby set aside. And the court do further order that an- other valuation of improvements and assessment of damages oe had in the premises, agreeably to the provisions of the act for the relief of occupying claimants, and that the same be returned to the next term of this court ; to which time this cause is continued. Where the waste and rents exceed the value of the im- provements. 467. (Sec. 5792.) Judgment for balance, in favor of 'plaintiff in ejectment. [Title.'] This day came the said parties, by their attorneys, and the jury herein appointed to assess damages under the statute for the relief of occupying claimants having assessed the value of the lasting and valuable improvements made on the real estate hereinbefore described at ^ , and the damages which the land has sustained by waste at S , and the net annual value of the rents and profits of the land received by said defendant since receiving notice of plaintiff's title by service of summons on him, at 3 , leaving due to the said * A. B.' the sum of $ . It is therefore considered by the court that the said A. B. recover of the said C. D.' the said sum of dollars and his costs herein expended ; and execution is awarded there- for. "Where the value of the improvements exceeds the waste and rents. When the jury fiud a balance in favor of the occupant, he is en- 1 The successful claimant. ' The occupying claimant. -5796.] OCCUPYING CLAIMANT. 257 titled to a judgment for costs, but not for said balance. As to the balance found by the jury, the plaintiff must pay it before he can have a writ of possession.^ 468. (Sec. 5794.) Judgment when successful claimant elects to take the land. [Title.'] As in No. 5G7 to *, and continue:'] — C. D.^ the sum of $ ^'J it is considered by the court that the said C. D. recover from the said A. B. his costs in this behalf expended, taxed at And the said A. B.'' now here electing to take the said land, it is ordered that if within days from this date he shall 2-)ay to the said C. D. the said sum of dollars so found by said jury, and the costs above found, a writ issue to the sherifi' of county, commanding him to put the said plaintiff in possession of the said premises, according to the former decree of this court. 469. (Sec. 5795.) Jiidf/meiit when successful claimant elects to take the value of the real estate, without im- provements. [Tdlc.] As in No. 467 to *, and continue:] — C. D.- the sum of S , it is considered by the court that the said C. D. recover from the said A. B. his costs in this behalf expended, taxed at And the said A. B.^ now here electing to take the value of said land without the improvements, as assessed by the said jury at the sum of § , and to give his deed there- for, the court allow time until the day of , to the said C. D., to make payment of the said sum of $ , above found, and also to the said A. B. to deliver to the said C. J). a good warranty deed for the land aforesaid. And upon de- fault of payment of the said C. D. within the time so lim- ' Beardsley r. Chapman, 1 Oliio St. 119. ' The occupying claimant. 'The successful claimant. 258 JOURNAL ENTRIES. [SEC. 5797-. ited, a writ of possession shall tlien be allowed to issue in favor of the said A. B. It is further ordered that the said recover from the said his costs in this proceeding expended, taxed at SUBDIYISION III. — To complete real contracts. 470. (Sec. 5799.) Judgment authorizing survivor to complete contract. 471. (Sec. 5801.) Judgment authorizing executor or administrator to complete contract. 472. (Sec. 5802.) Judgment to compel conveyance to heirs of i)erson de-" ceased. 470. (Sec. 5799.) Judgment authorizing survivor to complete contract for sale. [Title.] Use Finding III.., i^o^ge 99 ; or if hy default, use Finding IV., page 100, and continue ;] The court further find that said G. L. on the day of , A. D. 18 — , being then in full life, together with the plaintiff herein, became bound in writing to said R. ^I. for the sale of the premises in the petition described, and that the said contract has been fully performed by the said R. M. It is therefore ordered that the plaintiff, A. B., the sur- vivor of said parties contracting to convey, be, and he hereby is, authorized and empowered to convey to the said R. M. by deed in fee simple the lands so contracted for, according to the statute in such cases made and provided, with the same effect as if made by both of said contracting parties. And it is ordered that the pay the costs herein. 471. (Sec. 5801.) Judgment authorizing executor or adminis- trator to complete contract. [TUle.] Finding III., page 99; or if by default. Finding /F., page 100, and continue:'] The court further find that L. M. did on the -5802.] TO COMPLETE HEAL CONTRACTS. 259 day of , A. I). 18 — , being then in full life, enter in ji written contract with C. F. for the sale and conveyance of })reinises described in the petition ; and that since that time, and before the execution of said contract, the said L. M. has died, and that A. B., the plaintiff herein, has been duly ap- pointed and qualified as his executor \_or, administrator]. The court further find \_Here make fncling of atiy payments oil, or other part performance of, contract'], and that there still remains due on said contract from said C. F. the sum of $ , and that the said C. F. is ready and willing to com- plete said contract. It is therefore ordered and decreed that the said A. B., ex- ecutor as aforesaid, make and execute on behalf of the lieirs of the said L. M. to the said C. F. a good and sufticiont deed in fee simple for the ]>i-eniiscs in the petition described, and upon payment of the said sum of .^ deliver the same to the said C. F. And it is ordered that the said pay the costs of these proceedings. 472. (Sec. 5802.) Ju(/r/ment to compel conveyance to heirs of person deceased. [Title.-] Finding III., page 00; or if by default. Finding IV., page 100. and continue:] The court further find that the defendant, C. D., did on the day of , a. d. 18 — , enter into a written contract with L. M., then in full life, for the sale and conveyance to liim of the })remises described in the petition, and that since that time, and before the completion of said contract, the said L. M. has died ; and that the plaintitis herein are the heirs-at-law [or, devisees] of the said L, M., and as such, are entitled to the specific execution of the said contract. It is therefore ordered and decreed that upon full payment being made by the said plaintifts [or state specif rally what plaintiffs are to do] the said C. D. do, within days from the date of this decree, convey the premises in the petition described to the said plaintiffs by good and suflacient deed in 260 JOURNAL ENTRIES. [SEC. 5803- fee simple ; and that in default tliereof this decree have the same operation and effect as said deed.^ \_Add order as to costs.'] SUBDIVISION IV. — To sell entailed and other estates. 473. (Sec. 5805.) Decree authorizing sale of entailed estates. 474. (Sec. 5807.) Decree of confirmation ; order for deed and invest- ment. 475. Bonds of trustees approved, etc. 476. (Sec. 5812.) Decree for sale of property given for a religious use. 477. Decree of confirmation, order for deed and distribution. These sales may be made in the manner tliat the court considers to be to the best advantage of all parties (sec. 5805), no limitation being placed upon the discretion of the court. The sale may therefore be public or private, as the court shall direct in its decree. If a sale at public auction is directed, it may be as well to follow the statutory mode of sales upon execution, as that has been well established by stat- ute, custom, and adjudication. 473. (Sec. 5805.) Decree authoriziru/ sale of entailed estates, [Title.] Use Finding III., page 99; or if default, Finding IV., page 100, and continue :] The court further find that the plaintiff has an interest as tenant for life [or other interest] in the real estate described in the petition, under the will of L. B, and that the defendants, C. D. and E. F., are the heirs in tail to said real estate, as in the petition set forth. And it being made to appear to the court by the evidence adduced that a sale of said real estate as asked in this peti- tion would 1)6 for the benefit of said plaintift', and would do no substantial in/puy to the defendants, the heirs in tail, nor to any other of said defendants, it is ordered and decreed that said real estate be sold, freed from all entailment, limi- tation, or condition, in the manner as l)y Uiw provided in case of sales upon execution * liy J. M. F., who is hereby ap- 1 By section 5318; as to the mean.s of enforcing conveyance, see under sec- tion 5399 Entry No. 289. If no conveyance is to be I^adf^ a clause should he added to the decree n< in Tiote 2. )>. '2'A. -5811] TO SELL ENTAILED AND OTHER ESTATES. 261 pointed to make sucli sale, with all the power possessed ]>y sheriffs in such cases, upon his giving an undertaking in the sum of $ to the approval of the court ; and that an or- der issue therefor to said J. M. F., directing him to appraise, advertise, and sell said premises as upon execution and bring the proceeds into court for further order. If desired the following clause may be added to the above decree : Addendum authorizing Pricate Sale. Provided, however, that at any time before sale at public auction the said premises may be sold at private sale on terms of [specify terms of payment'], at a sum not less than the ap- praised value thereof. And in that case a return of such sale, with the proceeds thereof, shall be made to this court for further order. 474. (Sec. 5807.) Decree of confirmation ; order for deed and inrcstment. [Title.] This cause came on to be heard on the return of J. M. F., heretofore appointed to make the sale of the premises in this case ordered to be sold, with his report of his proceedings and sale under said writ. And the court having carefully examined the said proceedings, being satisfied that the said sale has, in all respects, been fairly and legally made and in conformity to the orders of this court, and that the price ob- tained is the reasonable value of the estate sold, do there- fore approve and confirm the same, and order that the said J. M. F. make to the purchaser a deed in fee simple for the premises so sold. It is further ordered by the court that the proceeds of such sale, after payment of the cost of this proceeding, taxed at S . to wit, the sum of 8 , be invested in [See sees. 5809 and 5811] ; and for the purpose of making such investment and managing the same, the court hereby appoints R. F. and J. X. trustees, who, before entering upon their duties as such, shall each give an undertaking to the approval of the court for the faithful performance thereof in the sum of $ . 262 JOURNAL ENTRIES. [SEC. 5812- 475. Bonds of trustees approved etc. ITitle.'] And now come R. F. and J. IST., heretofore appointed trus- tees in this case, and present their undertakings in the sum of $ each, with S. T. and W. P. as sureties on the bond of R. F., and T. P. and "W. C. as sureties on the bond of J. ]Sr.; which said bonds are hereby accepted by the court. And it is ordered that J. M. F., by whom the sale in this case was made, turn over to these trustees all money, notes, and securities in his possession arising from said sale. 476. (Sec. 5812.) Decree for sale of iwoperty given for a relig- ious use. \_Tiile:\ Finding III., ^page 99; or if default, Finding IV., page 100, and continue ;] The court further find that the premises in the petition de- scribed are held in trust by B. F. 11. for the use of [^describe], and have been abandoned for such use, by reason of \_describe']. It is therefore ordered and decreed that said premises be sold in the manner as b}^ law provided in case of sales upon execution, etc. [conclude as from *, in No. 473]. Addendum for private sale may be made as under sec. 5805, page 261. 477. Decree for confirmation, order for deed and distribution. [Title.] Modify decree No. 225, page 117. -5813.] REPLEVIN, 263 CHAPTER XI. REPLEVIN. First. Proceedings whex thk property has been delivered to the plaintiff. 478. (Sec. 5820.) Order for sheriff to retain heirlooms. 1st. In case of jcdgmknt, on demitrrkr, against the plaintiff — a. Damages assessed b;/ the court. 479. (Sec. 5824.) Demurrer to petition sustained. 480. (Sec. 5824.) After demurrer sustained damages assessed for defend- ant, and judgment. 481. (Sec. 5824.) After demurrer sustained, finding against defendant, and judgment. 482. (Sec. 5824.) Demurrer sustained, judgment against plaintiff, and case continued. 483. (Sec. 5824.) Damages assessed for defendant. 484. (Sec. 5824.) Finding against defendant, and judgment for costs. 485. (Sec. 5S24.) Demurrer sustained, damages assessed for defendant, and judgment. 486. (Sec. 5824.) Demurrer sustained, finding against defendant, and judgment for costs. I. Damages assessed fry a jury. 487. (Sec. 5824.) After demurrer sustained — case sent to jury. 488. (.Sec. 5824.) Demurrer sustained, judgment against plaintiff, and case sent to jury for inquiry of damages. 489. (Sec. 5824.) Verdict on inquiry. 490. (Sec. 5824.) Judgment on verdict for defendant. 491. (Sec. 5824.) Judgment on verdict against defendant. 2d. In case of plaintiff's failure to prosf.cute his action — a. Damages assessed by the court. 492. (Sec. 5824.) Finding for defendant, damages assessed, and judg- ment. 493. (.Sec. 5824.) Finding against right of defendant, and judgment. b. Damages assessed by a jury. 494. (Sec. 5824.) Verdict on plaintiff's default for or against defendant. 495. (Sec. 5824.) Judgment on verdict. 264 JOURNAL ENTRIES. [SEC. 5814- Replevin cases certified from a justice. 498. (Sec. 5824.) Damages assessed by the court for defendant, plaintiff being in default for petition. 499. (Sec. 5824.) Finding against defendant and judgment for costs, plaintiff being in default for petition. 500. (Sec. 5824.) Verdict of jury for or against defendant on plaintiff's default for petition. 501. Judgment on verdict. 3d. Ix case of defendant's default — a. Damages assessed by (he court. 502. Judgment by default for plaintiff. 503. Judgment by default for nominal damages. 504. Judgment by default, damages waived. b. Damages assessed by a juiy. 505. (Sec. 5825.) Judgment by default and case sent to jury on inquiry of damages. 506. Verdict on inquiry. 507. Judgment on verdict. 4th. In case of sub.mission of the is-sue to the court or a jury — 508. Finding by the court and judgment for plaintiff. 509. Finding by the court and judgment for defendant. 510. (Sec. 5825.) Verdict of jury. 512. (.Sec. 5825.) Judgment on verdict. 514. Judgment on verdict in part for each. forms of verdict in replevin. I. Verdict for plaintiff. II. Verdict finding right of property in defendant. III. Verdict finding riizht of possession in defendant. IV. Verdict finding neither right of property nor possession in defendant. V. Verdict finding in part for plaintiff and in part for defendant. Second. Proceedings when the property has not been taken, or h.\s been returned to the defendant. First. Peoceeding.s when the property has been delivered to the plaintiff. There are two conditions of the per.sonal property, the subject of the action in replevin, to be con.^idered. Fird, Wheu the property has been delivered to the plaintiff at the commencement of the suit, or be- fore answer, a.s provided for in section 5815 et seq. of the code. Sec- ondly, Wheu the property claimed has not been taken by the plaintiff, -5823.] REPLEVIN. 205 or, if taken, has l)oen returned to the defendant by the sheriff, for want of an undertaking, a^ provided for in section 5827. When the property is taken by the plaintiff, the bond which lie gives takes the place ' ^ of the property, as between the parties to the suit, so that the plaintiff becomes invested with full ownership of such prop- erty, with power to sell and dispose of it at pleasure, and to confer a valid title upon the jiurchaser.'- So that, when the finding is in his ftivor, tiie court need not adjudge the property to him — he has it already. Finding and judgment may be had against the ])laintiff, either on de- murrer,' on failure of prosecution by him,' or on submission of the case to the court or a jury.^ But in neither event can there be a judgment for the defendant for the return of the property,^ except in the case of heirlooms. That has vested in the plaintiff, and all that the defendant can recover, except heir- looms, is the value of the property and such damages as the court or jury may assess. The venlict, if for the defendant, should find whether he had the right of property, or right of possession only to property taken ; for, unless it specify the ground on which the assess- ment of damages is made, the court can not determine whether the damages are excessive or not. They might be excessive if the right of possession, and not excessive if tlic right of pro[)erty was found in the defendant.'^ If damages for defendant are assessed by the court, the same finding must be made." Tlie ease of heirlooms is specially i)rovided for by section 5820. An order may be made that the sheriff retain them, as follows: 478. (Sec. 5820.) Order for sheriff to retain heirlooms. [Title r\ On motion of the defendant, and it appearing that the property replevied in this case is an heirloom, and as such is valuable to this defendant, it is ordered that the sheriff re- 1 Jennings v. Johnson, 17 Ohio, 154. 2 Smith r. McGregor. 10 Ohio St. 409; followed in 14 Ohio St. 182. 3 Sec. 5824. * See. 5825; and as to damages being assessed by the court, on submission, see post, p. 277. 5 Smith 1-. McGregor, 10 Ohio St. 470. ^ Hewson v. Saffin. 7 Ohio ['2 pt.). 232. ■ Wolf V. Meyer, 12 Ohio St. 432. 266 JOURNAL ENTRIES. [SEC. 5824- tain and safely keep the same, subject to the further order of this court. The cases in which finding and judgment may be entered will be successively considered, viz. : 1. In case of judgment on demurrer against the plaintiff. 2. In case of plaintiff's failure to prosecute his action. 3. In case of defendant's default. 4. In case of submission of the issue to the court or a jury. 1st. In case of judgment on demurrer against the plaintiff — By section 5824, judgment may be rendered by the court against the plaintiff on demurrer. And the court thereby finds against the plaint- iff's right to take the property at the commencement of the suit.^ But still, as a basis for the assessment of damages for defendant, the court or jury must find that the defendant had either a right of prop- erty or right of possession in the property taken, at the commence- ment of the action ; for if he had neither, he can recover no damages from the plaintiff, although the plaintiff' may have had no right to take the property. But he will recover costs from the plaintiff - Upon the demurrer to plaintiff's petition being sustained, the entry may be simply one sustaining the demurrer, leaving all findings as to right of property or possession in the parties to be made subsequently. But if the demurrer goes to the merits of the case, it will be better to enter a judgment, when the demurrer is sustained, finding against the piaintiff's right of possession, as in Entry No. 482, page 267. And if the defendant is ready with his evidence at the same time to show his right of property or possession, and the court is willing then to hear it, there is no reason why the case should not then be heard in full, and judgment entered disposing of the whole case, as in No. 485. But in cities where there is a day set apart for the hearing of demur- rers, the court will not generally go into the hearing of the evidence at that time. Both forms of entries, however, are given. 479. (Sec. 5824.) Demurrer to ^petition sustained. [Title.] This cause being heard on the demurrer to the petition, the court, on consideration, sustain the same. • See Williams v. West, 2 Ohio St. 82. ■■^ Rowan v. Johnson, 2 W. L. M. 155. -5824.] REPLEVIN. 267 a. Damages assessed by the court. If no amendment is askcil or made the court may, at a subsequent day, enter one of the following judgments : 480. (Sec. 5824.) After demurrer sustained — damages assessed for defendant by the court, and judgment entered. ITttlc.-] The demurrer to tlie petition in this case having heretofore been sustained, and the plaintitf not pleading further, the court now find that at the commencement of this action the plaintiff was not entitled to the possession of the property described in the petition. [^Conclude as from *, in Entry No. 485.] 481. (Sec. 5824.) After demurrer sustained— finding against de-^ fendanfs right to damages, and judgment for costs, [ntlc.] The demurrer to the petition in this case having heretofore been sustained, and the plaintiff not pleading further, the court now find that at the commencement of this action the plaintiff was not entitled to the possession of the property described in the petition. \_Conclude as from *, in Entry No. 486.] But, instead of simply sustaining the demurrer, as in Entry Xo. 479, the court may at the same time render judgment against the plaintiff, and continue the case for assessment of damages, as follows : 482. (Sec. 5824.) Demurrer sustained, judgment against j^laint- iff and case continued. [Title.'] This cause coming on to be heard upon the petition and the demurrer thereto, the court, on consideration thereof, find that said demurrer is well taken, and therefore sustain the same. And thereupon the court, the plaintiff not plead- ing further, find that at the commencement of this action the plaintiff was not entitled to the possession of the property in his petition described. And for inquiry into^ and assess- 268 JOURNAL ENTRIES. [SEC. 5824- nient of, the damages to which the defendant is entitled, this case IS continued for further hearing. After the further hearing by the court, one of the two following judgments may be entered : 483. (Sec. 5824.) Damages assessed for defendant by the court after judgment against plaintiff on demur- rer, as in last entry. \_Title.'] And now this cause came on for inquiry into the defend- ant's claim for damages, and was, on application of said de- fendant, submitted to the court without the intervention of a jury* And thereupon the court find upon the evidence adduced that at the commencement of this action the defendant had the right of property in the goods and chattels in the petition described, and was entitled to the possession thereof [or, had the right of possession to the said goods and chattels],^ and assess his damages against the plaintift' by reason of the prem- ises at S . It is therefore considered by the court that the defendant, C. D., recover from the plaintiff, A. B., the said sum of dollars, so assessed, together with his costs herein expended. [And it is further ordered that the sheriff" deliver over to the defendant the property heretofore taken from him and retained as heirlooms.] 484. (Sec. 5824.) Finding against defendant's right to damages, and judgment for costs — after judgment against j)laintiff on deynurrer. \_Titlc.'\ As in last to *, and continue .-] — And thereupon the court find upon the evidence adduced that at the commencement of this action the defendant had neither the right of property, 1 It is error for the court to assess the defendant's damages without the inter- vention of a jury, and without finding whether the defendant had the right of property, or the right of possession only, at the commencement of the action. Wolf V. Meyer, 12 Ohio St. 432. -5824.] REPLEVIN. 269 nor the right of possession in the goods and chattels in the petition described. It is now therefore adjudged by the court that both parties go lience without day, and that the defendant recover from the plaintiff liis costs herein expended, taxed at $ . Or, at tlie time tlie demurrer is sustained, damages may he assessed by the court, and judgment he entei'ed as in one of tlie two following forms : 485. (Sec. 5824.) Demurrer sustained, damages assessed by the court for defendant, and judgment. This cause now coming on to be heard upon the petition and demurrer thereto, the court, on consideration thereof, find that said demurrer is well taken, and therefore sustain the same; and thereupon, the plaintiff not pleading further, the court lind that at the commencement of this action the plaintiff was not entitled to the possession of the property in his petition described.* And thereupon, the cause being further heard by the court upon the evidence offered by the defendant, the court lind that at the commencement of this action the defendant had the right of property in the said goods and chattels, and was entitled to the possession thereof [or, had the right of pos- session to the said goods and chattels], and assess his dam- ages against the plaintiff, by reason of the premises, at dollars. It is therefore considered by the court that the defendant, C. D., recover from the plaintiff, A. B., the said sum of $ , so assessed, together with his costs herein expended. If heirlooms have been dclirered to sheriff, add : And it is further ordered that the sheriff deliver over to the defendant the property heretofore taken from him and retained as heirlooms. 486. (Sec. 5824.) Demurrer sustained , finding against defendant's rigid to damages, and judgment for costs.^ [TiHe.-] ' ... ^5 in last to *, and continue:'] And thereupon, the cause being further heard by the court 270 JOURNAL ENTRIES. [SEC. 5824-. Upon the evidence adduced, the court find that at the com- aiencement of this action, the defendant had neither the right of property nor the right of possession in the goods and chattels in the petition described. It is therefore adjudged by tlie court that botli parties go hence without day, and that tlie defendant recover from the plaintiff his costs herein expended. h. Damages assessed by a jury. If, after demurrer sustained, as by Entry No. 479, no amendment is asked, the court may, at a subsequent day, order that the case be sent to a jury, as follows : 487. (Sec. 5824.) After (Jcmurrer sustained — ease sent to jury. [Titter^ The plaintiff herein not pleading further, since demurrer to petition sustained, on motion of the defendant it is or- dered that this case be sent to a jury to inquire into and as- sess the damages of said defendant. 488. (Sec. 5824.) Dcmarrer sustained, judgment against plain- tiffs and case sent to Jtirg. [Title.] As in No. 485 to *, and continue:'] And on motion of defendant, it is ordered that the case be sent to a jury to inquire into and assess the damages to which the defendant is entitled. 489. (Sec. 5824.) Verdict on inquiry for or against defendant. ITitle.] And now this cause came on to be heard upon the inquiry heretofore ordered by the court. Also came the following named persons as jurors, to-wit: 1. M. B., etc. 7. C. H., etc. who were duly impaneled and sworn according to law. And thereupon, after hearing the evidence in the case, the argument, and charge of the court, the jury, after due delib- eration, returned their verdict in writing, signed by their foreman, as follows, to-wit : \_Copy verdict. See forms on page 279.] -5824.] EEPLEVIN. 271 490. (Sec. 5824.) Judgment on the verdict for defendant. ITitle.'] The jury in this action having, on inquiry for the defend- ant, at a former day of this court, assessed his damages against the plaintiif at $ : It IS therefore considered by the court that the defendant, C. ])., recover from tlie plaintiff, A. B., the said sum of dollars, so assessed, together with his costs herein expended. [And it is further ordered tl:at the sheriff deliver over to the defendant the property heretofore taken from him and retained as heirlooms.] 491. (Sec. 5824.) Jiolr/ment on the verdict against defendant. [TdU'.) ' The jury in this aetiou having, on inquiry for the defend- ant, at a former day of this court, found that he had neither the right of property nor right of }>ossession in the goods and chattels in the petition described, and the court having befoi'C found that neither was the said jtlaintitf entitled to the same : ^ It is therefore considered that both parties go hence with- out day, and that the defendant recover from the plaintiff his costs herein expended, taxed at S .'- 2d. In case of plaintiff's failure to prosecute his ac- tion. This case is not so couelusive as the first. There is a mere want of prosecution, or a mere fault ou the part of the plaintiff, which in no »vay determines his rights, and which will not preclude him from com- ing in and giving evidence of his right of property and right of pos- session in the property,'^ before the jury called to assess defendant's damages. In this view, no entry need be made on the journal, of plaintiff's deftiult or want of prosecution, until the case comes to trial. Then at a trial before the court or jury the whole question may be heard. If the plaintiff appears, he may give evidence to prove his right of possession. If not, the question is simply as to the defend- 1 By Entry No. 488. '^ See p. 2G6. » Louden v. Clark, 1 W. L. M. 698. 272 JOURNAL ENTRIES [SEC. 5824- ant's right, and the amount of damages he should recover. But still, if the evidence warrants a finding or verdict for the plaintiff, the court or jury is not precluded from giving it. In cities where the jury -room is separate from the submitted room, the defendant may, as soon as the plaintiff makes default, ask that the case be sent to the jury-room, and it will then come on for trial in its order. Upon the hearing of the case by the court or jury, the following en- tries may be made : a. Damages assessed by the court. 492. (Sec. 5824.) Finding for defendant, damages assessed by the court and judgment — after plaintiff's default. [Title.] And now the plaintiff herein failing to appear either in person or by attorney to prosecute his action, this cause came on for hearing, on application of the defendant, upon inquiry into the right of property, and right of possession of the said defendant to the property, taken by the said plaintiff, and was submitted to the court upon the evidence offered in be- half of said defendant.* [Conclude as from *, in No. 483.] 493. (Sec. 5824.) Finding against rigid of defendant to dam- ages, and judgment for costs — after plaint- iff'' s default. [Title.] As in last to ^, and continue:] — And inereupon the court find that at the commencement of this action the defendant had neither the right of property nor right of possession in the goods and chattels in the petition described. It is therefore considered by the court that both parties go hence without day, and that the defendant recover from the plaintifl' his costs herein, taxed at § . b. Damages assessed by a .iiry. ,494. (Sec. 5824.) Verdict on plaintiff's default, for or against defendant. [Title.] And now the plaintiff herein having failed to appear. -5824.] REPLEVIN. 273 either in person or by attorney, to prosecute this action, the cause came on for hearing on application of the defendant, for hearing upon inquiry into the right of property, and right of possession of the said defendant to the property, taken by the said plaintiff. Also came the following named persons as jurors, to wit : 1. M. B., 7 C T., etc. etc who were duly impaneled and sworn according to law.* And the case heing submitted to the jury upon the evidence and argument for the defendant and charge of the court, the said jui"y, after due deliberation, returned their verdict in writing, signed by their foreman, as follows, to wit : {^Copy verdict. Sec forms on pages 279 and 280.] 495. (Sec. 5824.) Jadqment on the last verdict. [Title.] Same as Nos. 400 or 491. Keplevin cases certified from a justice — The most usual cases wherein the plaintiff fails to prosecute his ac- tion are those certified from a justice, iu which the plaintiff fails to file his petition. The statute fixes no special time within which the peti- tion must be filed, but it is usually done by rule of court. ^ If not, it is probable that the ])laintiff is always in default until he files his pe- tition. Section 0(318 provides that whenever the appraised value of the property so taken shall exceed three hundred dollars, tlie justice shall certify the proceedings upon the said writ to the court of common pleas of his county, and thereupon shall file the original papers, together with a certified transcript of his docket entries, in the clerk's office of said court, the case there to be proceeded in as if such suit had com- menced in said court. After the case is docketed in the common pleas court, the plaintiff must, within the time limited by the rule of the court, file his peti- 1 The rule adopted by the Common Pleas Court of Hamilton county allows the same time for tiling pleadings as allowed in cases appealed from a justice, by section 6-398, counting from the time that the case is docketed in the common pleas court. 274 JOURNAL EN-TRIES. [SEC. 5824- tion. When that is done, the case stands in all respects as if the pe- tition had been originally filed in the common pleas, and the same en- tries are used. If the plaintiff fails to file his petition, the WIM.S — 552. (Sees. 5944—8.) Spoliated will admittea to probate. 553. (.Sec. 5949.) Authenticated copies admitted to record — when record of will destroyed. 554. (Sec. 59G3.) Citation for widow i.ssued. Er.i:cTioN' of widow — 555. (Sec. 5964). Election of widow to take under will. 556. (.Sec. 5964.) Election of widow not to take under will. 557. (Sec. 5965.) Commission issued to take election. 558. (.Sec. 5965.) Entry on return made by commissioner. 559. (Sec. 5966.) When widow unable to make election, etc. 560. (.Sec. 5966.) Election for insane or imbecile widow entered by the court. TesTA.MKNTAUV 'IKUSTKKS 561. (Sec. 5981.) Letters of trusteeship under will. 562. (Sec. 5983.) New trustee appointed. 563. (Sec. 5988 ) Trustee of foreign will authorized to execute trust, etc. 564. (.Sec. 59S9.) Trustee appointed by a foreign court authorized to exe- cute trust, etc. 56."). (,Soc. 5990.) Trustee under foreign will appointed. 633. (Sec. 5921.) Citation for proresented to the court for probate and record, and it ai>peai'iiii^ to the court that the widow [o/-. hus- band] of said decedent and all the next of kin [or, that the said decedent died leaving no widow (or, husband) surviving, and that all the next of kin of said decedent], residents of Ohio, have been duly notified of the presentation of said will for probate,^ thereupon II. L., one of the subscribing w\t- nesses to said will appeared in open court, and was duly sworn and examined according to law. and his testimony therein was reduced to writing and filed.* 539r«. (Sec. 5927.) TcsfiNion;/ taken as to signature in case of death or absence of witness. [Title.'] In place of recording the examination of a witness, substitute asfol/oirs:'] — And it appearing tliat F. L., one of the subscribing wit- nesses to said will, is now deceased [or, has gone to parts un- known, or, has become incompetent to testity], thereupon H. L. and R. L. ap}»eared in open court, and were duly sworn and examined according to law touching the genuineness of the signature of said F. L., attached to said will, and their testimony thereon was reduced to writing and filed. 540. (Sec. 5928.) Commission to fake testimony of witness. [Title.] The last will and testament of L. D., late of this county, deceased, having been presented to the court for probate and record, and it appearing that II. L., one of the sub- ^ Required by sec. 5719. 294 JOURNAL ENTRIES. [SEC. 5928- scribing witnesses to said will, is a resident of Lexington, Kentucky, and is without the jurisdiction of this court, it is therefore ordered that a commission, with the will annexed, issue herein to R. M., of Lexington, Kentucky, directing him to take the deposition of said subscribing witness, and re- turn the same, duly certified, with all convenient speed to this court. A similar entry may be made in case the witness is infirm or feeble, and unable to attend court. 541. (Sec. 5928.) Commission to take testimony of witness after one sworn. [ntle.] As in Entry No. 539, to the end, and continue:'] — And it appearing to the court that M. D., the other sub- scribing witness to said will, is a resident of Lidianapolis, Indiana, and is without tlie jurisdiction of this court, it Is thereupon ordered that a commission, with the will annexed, issue herein to R. M., of Indianapolis, Indiana, directing him to take the testimony of said subscribing witness, and return the same, according to law, with all convenient speed, to this court. 542. (Sec. 5929.) Will admitted to jirobate. [Title.'] The last will and testament of A. T., deceased, late of this county, was this day presented to the court for probate and record, and it appearing to the court that the widow [or, hus- band] of said decedent and all the next of kin [or, that the said decedent died leaving his widow [or, husband] surviving, and that all of the next of kin of said decedent], residents of Oiiio, have been duly notified of the presentation of said will for probate ;^ thereupon J. B. and T. D., subscribing witnesses to said will, appeared in open court, and were duly sworn and examined according to law, and their testimony thereon was reduced to writing and filed. [j]- And it appearing to the court from the testimony so taken that * the said will was duly executed and attested, and that ^ Required by sec. 5719. ^ By sec. 5920. -5929.] WILLS. 295 at the time of executing the same the testator was of full age and of sound mind and memory, and not under any restraint, the court now admit the said will to probate, and order the same, together with the testimony so taken, to be recorded according to the statute in such cases made and provided. 543. (Sec. 5929.) Will admitted to -probate lohen last loitness comes. [TUle.-] This day came P. I>., the other subscribing witness to said Avill of L. T>., deceased, in open court, and was duly sworn and examined according to law, and his testimony therein was reduced to writing and tiled.' And it appearing to the court from the testimony so taken and from the testimony of the former witness that \_covclude as from * in last entry]. 544. (Sec. 5929.) Will admitted to probate when commission is returned. (Other ivitness Jiaving been pre- viously examined.) [Title.-] The commission heretofore issued herein to take the testi- mony of M. D., one of the subscribing witnesses to the will of said L. D., deceased, was this day returned duly executed, and the same was filed herein. And it appearing to the court from the examination of the former witness and from the deposition of the said M. D. that [conclude as from * //; Entry Ko. 542]. 545. (Sec. 5929.) Commission to examine v'itness returned, other witness examined, and ivill admitted to probate. [Title.] The, commission heretofore issued herein to take the testi- mony of II. L., one of the subscribing witnesses to the will of said L. D., deceased, was this day returned duly executed. And it appearing to the court that the widow [or, husband] of said decedent and [or, that said decedent died leaving no » By sec. 5926. 29Q JOURNAL ENTRIES. [SEC. 5930- widow (or, husband) surviving, and that] all the next of kin, residents of Ohio, have been duly notified of the presenta- tation of said will for probate, thereupon this day came P. B., the other subscribing witness to said will, in open court, and was duly sworn and examined according to law, and his testimony was reduced to writing and filed. And it appearing to the court from the testimony so taken that [conclude as from * !n Entry No. 542]. 546. (Sec. 5932.) Auihcnticated copy of wdlfrom another county of Ohio admitted, to record. [TUle?^ An authenticated copy of the last will and testament of E. C, late of county, Ohio, deceased, and of the order of probate of the same, in said county, were this day presented to this court for record. Whereupon the court, finding that certain real estate devised by said will is situated in this county, hereby admits said copies to record, as provided by law in such cases. 547. (Sec. 5934.) Refusal to admd icdl to lyrohate. [Tdle.-] As in No. 542, to [f], and continue :] — And the testimony of sundry other witnesses being taken, and it appearing from the testimony that at the time of exe- cuting said will the testator was not of sound mind and memory, the court refuse to admit said will to probate. And now comes S. R., and gives notice of his intention to appeal from this decision to the court of common pleas. Or the notice of appeal may be by a separate entry, as follows : 548. (Sec. 5934.) Notice of appeal from order refusing. I Title.] Now comes S. R., and gives notice of his intention to appeal to the court of common pleas from the decision of the court in refusing to admit to probate the will of L. M., deceased. Sec. 5935. For the judgment of the common pleas court on appeal, see Entries Nos. 889 and 890. -5930.] WILLS. 297 549. (Sec. 5937.) Aitthevfkatcd copy of will from another state admitted to record. [Title.'] An authenticated copy of the hist will and testament of J. M., deceased, late of Dearborn county, Indiana, was this day presented to this court for record ; whereupon the court bein<^ satisfied on exaniiiuition tliat said will was duly executed and prox'c'd according" to the laws of the State of Indiana, and {)art of the property by said will devised being situated in this county, said copy is hereby admitted to record in this court, according to law. 550. (Sec. 5937.) Order that copy of recorded will {executed and proved in another state and recorded, as in last entry in one county of Ohio) be filed and recorded. [Title.] A paper writing, purporting and claimed to be a copy of the last will and testament of J. M., deceased, late of Dear- born county, Indiana, with a copy of an order to record the same in county, Ohio, annexed thereto, certified l)y the prol)ate judge of said county of , under the seal of his court, were this day presented for record ; whereupon, it appearing that part of the property devised by said will is situated in this county, it is ordered that said certified copies of will and order for record hQ filed and recorded in this court according to law. 550a. (Sec. 5039.) Publication ordered, on foreign will being presented, and case continued. [Title.] This day came R. S., and produced to the court a paper writing, purporting to be the last will and testament of J. R., late of London, England, deceased, and of the probate tliere- of, and made application for admission of the same to pro- bate in this county; and thereupon it is ordered by the court that publication be made as provided by law, and the motion to admit to record is continued for the term of two months. 298 JOURNAL ENTRIES. [SEC. 5940 551. (Sees. 5940.) Foreign will admitted to record. [Title.'] A copy of the will of J. R., deceased, late of London^ England, and the probate thereof duly authenticated, hav- ing been heretofore presented for record by R. S., the execu- tor under said will, and due notice of such application hav- ing been given by publication in the Cincinnati Daily Ga- zette., a public newspaper printed [or, of general circulation] in this county, according to law, which publication is hereby approved; and it appearing to the court that said will was executed, proved, and allowed in said city of London, ac- cording to the laws of England, that there is an estate in this county upon which said will may operate, and that said instrument ought to be allowed in this state, the court now order that said copy be filed and recorded in this county as provided by law. Sec. 5941. For entry granting letters [testamentary under any of the wills, admitted as above, modify Entry No. 566. For entry grant- ing letters of administration, with the will annexed, see Entry No. 571. Spoliated wills — 552. (Sees. 5944-8.) Spoliated xoill admitted to probate. [nth:] This day came J. M. W. before this court for the purpose of proving the execution and contents of the last will and testament of S. R., late of Hamilton county, deceased. And it appearing to the court that due notice has been given to all persons interested in said will, who reside in said county of Hamilton, thereupon J. B. and T. D., subscribing witnesses to said will, and also other witnesses, viz., P. M. and D. R., appeared in open court, and were duly sworn and examined touching the execution and contents of said will, and their testimony thereon was reduced to writing and filed. And the court being satisfied from the testimony so taken that the said S. R. did, on the day of , 18 — , duly execute his last will and testament, in the mode provided by the law in force at the time of its execution, and that said will was not revoked by said testator, but that it has been lost 5964] WILLS. 299 [or, spoliated, or, destroyed] subsequent to the death of said testator, the court finds and does hereby establish the con- tents of said will to have been, as near as can be ascertained, as follows, to wit [set out in fuW]. And the court further orders that said will and testimony be recorded as in case of other wills admitted to probate. Sec 5940. The commission to take testimony may be the same as ill othei- cases. Modify entry No. .540. If tlie will was lost alter being admitted to probate, but before it was recorded, as provided in sec. 5947, as amended 80 O L. 24, the last entry will i-cadily be modified to suit the case. 553. (Sec. .j940.) Authenticated copies admitted to record, when record of will has been destroyed. [Title.] A copy of the last will and testament of J. M., late of county, deceased, and of the [irobate thereof, certitied under the hand and seal of the probate judge of said county of to be a true copy of tlie original will and the probate thereof, was this day presented for record ; and, thereupon^ it being made to appear to the satisfaction of the court that the record of said original will has been destroyed, the court orders that said copy be recorded in this county according to law. Sec. 5951. For entry of co])v of will alone admitted to record, after record destroyed, use last entry, omitting the words relating to probate of will. Election of widow. 554. Sec. 5963; S6 v. 187. Citation for widow^ issued. [Tdlc.'\ It is ordered by the court that a citation of issue for C. X., widow of E. X., deceased, late of this county, to appear be- fore this court and make her election whether she will take under the provision of the w^ill of her late husband, or be endowed of the lands of her said husband, and take her dis- tributive share of the personal estate. 555. (Sec. 5964.) Election of ividow^ to take under u-ill. [Title]. This day personally appeared in open court C. X., widow 1 By amendment of April 3, 1889, 86 v. 187. sees. 5963-5966 inclusive, are made equally applicable to a widower. In which cases modify entries accord- ingly- 300 JOURNAL ENTRIES. [SEC. 5964- of E. iST., deceased, and made known therein her election to take under the provision of the will of her said deceased husband, "^''hereupon the court explained to her the pro- vision of said will and her rights under it, also her rights under the law, and she declared herself satisfied with the provisions of said will, and asked that her election to take under said will might be entered upon the journal of the court, which is accordingly done. 556. (Sec. 5964.) Election of widow^not to take under ivilL [Tilde.] This day personally appeared in open court C. N., wiaow of E. ]Sr., deceased, and after the court had explained to her the provisions of the will of her said deceased husband and her rights under it, also her rights under the law, made known her election not to take under said will. The last entry is not absolutely necessary, as a failure to elect to take under the will is construed to be an election not so to take. 557. (Sec. 5965.) Commission issued to take election of vAdoio,^ etc. [Title.'] On application made in behalf of C. X., widow of E. X., deceased, and it appearing that she is by reason of ill-health [or, not being a resident of this county] unable to appear in court, it is ordered that a commission, with a copy of the will annexed, be issued, directed to W. C, to take the election of said widow to accept the provisions of the will of her said deceased husband, and to explain to her her rights under the will and by law. And the said AV. C. is directed to return his proceedings to this court. 558. (Sec. 5965.) E)d_ry on return made by commissioner. [Title.] The commission to take the election of C. X., widow^ of E. X., deceased, under the will of her said husband, deceased, was this day duly executed and filed. And by said return it is shown that'^the said widow elects to take under the said will. ^Same provision relates also to widower. See note, p. 299. -5085.] WILLS. 301 559. (Sec. 5966.) W hen loidoiv^ is unable to make an election, person appointed to ascertain value of pro, vision nvide by irill. [Title.] It a[)peanng to tlic court tliat C. X., widow of E. X., de- ceased, late of this county, is uiuible to make an election un- der the will of lier said husband, deceased, by reason of her insanity [or, imbecility of mind], J. 11. is hereby appointed ])y till' court to ascertain the value of the provision made by the said E. X. in his will for the said C. X., and also the value of her rights by law in the estate of the said E. N., and to report the same to this court. 560. (Sec. 5966.) Election for insane or imbecile loidoio^ enterea by the court. [ntle.'] The report of J. II., having been tiled, showing the value of the provision made by E. X., deceased, in his will for C. X., his widow, and also the value of her interest by law in the estate of the said E. X., deceased, the court, being satis- fied that the provision of said will is more valuable and bet- ter for her than the provision by law, now enters an election for said widow, by virtue of these proceedings, to take un- der the said will Testamentary trustees — 561. (Sec. 5981.) Letters of trusteeship under will. [Title.'] On application, the court grants unto R. C. letters of trus- teeship under the will of E. S., deceased, he being named as such trustee in the will of said decedent. Whereupon * the said Iv. C. now accepts said appointment, and files a state- ment of the whole estate of said trust created by said will, and presents his bond as such trustee in the sum of dol- lars, with R. D. B. and J. W. D. as sureties, which bond is approved by the court. 562. Sec. 5983.) New trustee appointed. [Title.] R. C, the trustee named in the will of C. S., deceased, ' See note, p. 299. 20 302 JomaNAL entries. [sec. 5986- having failed to qtialify as such, the court now appoints "W, B. as such trustee. Whereupon [conclude as from. ^ in last e^itryl. Sec. 5986. Make entry similar to last. 563. (Sec. 5988.) Trustee of foreign will authorized to execute- trust, etc. [Title.] Modfij Entry No. 561. 564. (Sec. 5989.) Trustee appointed by a foreign court author- ized to execute trust, etc. [Title.] This day came "VY. H., and presented to tne court an au- thenticated record of his appointment as trustee under the will of D. F., late of Paris, France, by the court in said city, and thereupon, the court being satisfied that said appoint- ment was duly made, and that certain lands affected by said will are situated in this county, grants unto the said W. H. letters of trusteeshi}), under the said will, for the execution of the trust named in said appointment. And thereupon the said W. H. presents his bond as such trustee in the sum of $ , with R. J), and W. C. as sureties, which is approved by the court. 565. (Sec. 5990.) Trustee under foreign loill appointed. [Title.] And now the petition herein coming on to be heard, and the court linding that by the will of the said C. T., duly executed and proved according to the laws of England, and admitted to record in this state, a trust is created concerning certain lands situated in this county, AY. C. B. is hereby ap- pointed trustee under said will to carry into effect the said trust. And thereupon the said W. C. B. enters into an undertak- ing as such trustee, witli R. D. and B. D. as sureties, which is approved by the court. EXECUTORS AND ADMINISTRATORS. 303 CHAPTER 11. EXECUTORS AND ADMINISTRATORS. 566. (Sec? . 5994, 567. (Seci- . 5994, 568. (Sees . 5994, 569. (Sec. 5994.) 570. (Sec. 6000,) 571. (Sec. 6000.) 572. (Sec. 6001.) 573. (Sec. 6001.) 574. (Sec. 6001.) 575. (Sec. 6007.) 576. (Sec. 6011.) 577. (Sec. 6011.) 578. (Sec. 6011.) 579. (Sec. 6013.) 580. (Sec. 6014.) 581. (Sec. 6015.) 582. (Sec. 6017.) 583. (Sec. 6018.) 584. (Sec. 6019.) 585. (Sec. 6022.) .'").) Letters testamentary granted. 5.) Letters of administration granted to widow or next of kin. 5.) Letters granted to other than widow or next of kin. Letters granted on estate of intestate dying out of state. Letters granted when one of two or more named in will declines. Letters of administration, with the will annexed, granted when jaerson named in will as sole execu- tor declines. Admiiiisti'ation, with the will annexed, granted during minority of executor. Letters testamentary to one, when other executor is under age. Entry, when executor named in last entry comes of age. Special administrator appointed. Citation against si)ecial administrator. Attachment allowed after citation disobeyed. Ortler committing to jail. Administration of assets, within the state, of Tion-resi- dent gi'anted. Administration granted after twenty years. Resignation of e.\ecutor or administrator accepted, and administrator ap]iointed. Executor or administrator removed and new adminis- trator appointed. Letters of administration, dc bonis non, granted after death of executor or administrator. Administration revoked on a will being subsequently proved, etc. Letters granted after marriage of executrix or admin- istratrix. The inventory, the allowance to the widow and children, and the debts due the estate — 586. (Sec. 6028.) Appraisement dispensed with. 587. (Sec. 6028.) Appraisers appointed. 588. (Sec. 6040.) Appraisers appointed to set off widow's allowance. 589. (Sec. 6043.) Allowance to widow increased. 304 JOURNAL ENTRIES. 590. (Sec. 6047.) Order for return of inventory. 591. (Sec. 6048.) Attachment allowed on failure to return inventory. 592. (Sec. 6048.) Order committing to jail until inventory be returned. 593. (Sec. 6049.) Letters revoked for failure to return inventory. 594. (Sec. 6053.) Citation allowed against person concealing assets. 595. (Sec. 6054.) Order committing to jail on refusal to answer, etc. 596. (Sec. 6057.) Judgment against person found guilty of concealing assets. 597. (Sec. 6061.) Appraisers appointed for property discovered after in- ventory filed. 598 (Sec. 6063.) Time for settlement by executor extended. 599. (Sec. 6073.) Order permitting compounding of debt. Sale of personal property, Axn the sale bill — 600. (Sec. 6074.) Appraisement and sale dispensed with. 601. (Sec. 6074.) Appraisement and sale subsequently ordered. 602. (Sec. 6076.) Order for private sale. 603. (Sec. 6076.) Same — at less than appraised value. 604. (Sec. 6076.) Public sale directed on failure to sell at private sale. 605. (Sees. 6077, 8.) Compounding of desperate claim authorized. 606. (Sec. 6077.) Sale of desperate claim at public sale authorized, 607. (Sec. 6077.) Private sale of desperate claim ordered. 608. (Sec. 6077.) Order that desperate claim be filed, etc. 609. Sale of personal property confirmed. The notice to creditors, the authentication and paymknt of debts, and PAY.MENT OF legacies — 610. (Sec. 6093.) Referees approved of. 611. (Sec. 6096.) Report of referees in arbitration confirmed, etc. 612. (Sec. 6096.) .Judgment against claim on report of referees. 613. (Sec. 6096.) Report set aside and new referees appointed. Executor's or administrator'.s claim against the estate he represents— 614. (Sec. 6100.) Order that notice of hearing be given. 615. (Sec. 6101.) Claim allowed. 616. (Sec. 6105.) Execution against executor allowed. 617. (Sec. 6107.) .Judgment of waste against executor. 618. (Sec. 6107.) Same — when amount can not be ascertained. 619. (Sec. 6115.) Order for payment of claim on which right of action will not accrue for four years. 620. (Sec. 6115.) Order that administrator retain money to pay same. 621. (Sec. 6115.) Order that bond be taken by owner of such claim. 622. (Sec. 6126.) Allowing notice of appointment of executor to be given. 623. (Sec. 6128.) Order to distribute, etc., on bond being given. 624. (.*~5ec. 6128.) Same — without bond being required. EXECUTORS AND ADMINISTRATORS. 305 Foreign' executors and administrators — 625. (Sec. GI31.) Order, on petition, that he render account. 626. (Sec. 6131.) Order distributing amount found in hands of. Action for injcuy ky wiiongfl'l death — 627. (Sec. 6135.) Judgment on verdict. 628. (Sec. 6135.) Order that administrator settle claim. Sale of real estate for payment of debts, and distribution of proceeds — 629 (Sec. 6146.) Bond approved and order for sale not granted. 630. (Sees. 6147 and 6153.) Finding sale not necessary. Where there is no dower to be assigned — 631. (Sec. 6147.) Sale ordered on appraisement in the inventory. 632. (Sec. 6147.) New appraisement ordered. 633. (Sec. 6147.) Appraisement ordered, in case widow has waived dower by metes and bounds. 634. (Sec. 6147.) Appraisement confirmed, and decree for sale. ^V?lere there is dower to he assigned — 635. (Sec. 6155.) Order for assignment of dower, and appraisement of premises. 636. (Sec. 6155.) Assignment, by metes and bounds, and appraisement confirmed, and decree for sale. 637. (Sec. 6155.) Assignment of dower, as of rents, etc., and appraisement confirmed, and decree for sale In general — 638. (Sec. 6156.) Order substituting appraiser. 639. (Sec. 6160.) Order directing sale for certain amount. 640. (Sec. 6160.) Order for new appraisement. Private sale — 641. (Sec. 6161.) Decree for. 642. (Sec. 6161.) Order for, after appraisement confirmed. 643. (Sec. 6161.) Order for, on report of offer made Confirmation of sale and distribution of proceeds — 644. (Sec. 6162.) Decree for. 645. (Sec. 6162.) Decree for, after private sale. 646. (Sec. 6162.) Decree for, where dower by metes and bounds has been waived. Misccllan eo us — 647. (Sec. 6166.) Sale of equitable interest ordered. 547a. (Sec. 6166.) Sale of equitable interest confirmed, and order of dis- tribution. 648. (Sec. 6168.) Copy of appointment of foreign executor filed. 306 JOURNAL ENTRIES. The account and compensation of an executor or administrator, and dis- tribution IN certain cases. 649. (Sec. 6175.) Account current filed and suspended. 650. (Sec. 6175.) Final account filed and suspended. 651. Account allowed and confirmed, and order of distribution. 652. Suspended account allowed and confirmed. 653. Various accounts and vouchers allowed and confirmed. 654. Account confirmed on exceptions heard." 655. Account disallowed. 656. Exceptions withdrawn. 657. (Sec. 6186.) Account referred to special commissioner. 658. (Sec. 6187.) Order opening settled account. 659. (Sec. 61 88.) Allowance for expenses and special services. 660. (Sec. 6189.) Order for distribution of notes, etc. 661. (Sec. 6190.) .Account of payments filed and allowed as final dis» charge. 662. (Sec. 6191.) Order for investment of unclaimed money. 663. (Sec. 6192.) Order for payment to distributee. 664. (Sec. 6195.) Citation issued against executor, etc., failing to pay money. 665. (Sec. 6196.) Order for publication against non-resident executor, etc. 666. (Sec. 6198.) Amended or supplemental petition allowed, making new parties. 667. (Sec. 6198.) Finding and order on submitted question. 668. (Sec. 6198.) Same— by agreement. 669. (Sec. 6199.) Order reserving case to common pleas court. 670. (Sec. 6202.) Judgment construing any matter respecting the estate. The ADMINISTRATION bond; sureties in ; SUITS ON — 671. (Sec. 62U4.) Order releasing surety. 672. (Sec. 6204.) Administrator removed for failing to give new bond. 673. (Sec. 6205.) Bond insufficient — new one required. 674. (Sec. 6208.) Order for bond of indemnity. 675. (Sec. 6212.) Leave to bring suit on bond. Proceedings when the estate of a deceased person is insolvent — 676. (^Sec. 6224.) Commissioners appointed. 677. (Sec. 6226.) Further time allowed to commissioners. 678. (Sec. 6230.) Order allowing or disallowing claim on appeal from commissioners. 679. (Sec. 6231.) Order, on petition, allowing appeal. 680. (Sec. 6232.) Order allowing claim on appeal in last entry. 681. (Sec. 6235.) Order of distribution on report of commissioners. 682. (Sec. 6236.) Estate declared probably insolvent, etc. 683. (Sec. 6243.) Judgment on the award of the referees. 684. (Sec. 6243.) Judgment in suit brought under section 6241. 685. (Sec. 6244.) Allowance of claim confirmed or set aside, on excep- tions heard. -5944.] EXECUTORS AND ADMINISTRATORS. 307 566. (Sec. 5994, 5.) Letters testamentary granted. [Title.'] On application, the court grants unto II. C. letters testa- mentary under the will of B. 11., late of this county, deceased, he Ijciiiii' luuiK'd as executor therein ; whereupon he accepts* said ap[)ointment, liles an estimate of the value of the whole estate," and presents his hond as such executor in the sum of dollars, with E. II. and G. D. as sureties, to the approval of the court. [Or (/ no bond is required sa>j : AVhereupon he acccejits said appointment; no hond required hy said will.] And II. B., C. D., and R, M. are appointed appraisers.- Court may add by sec. 6025 ] : And it is ordered that said executor include in the in- ventory an appraisement of all the real estate of said de- cedent. 567. (Sec. 5994, 5.) Letters of administration granted to iridow or next of kin.'^ [Title.-] On application, the court "-rants unto E. T. [widow] letters of administration on the estate of H. T., late of this county, deceased. Thereupon she [or, he] accepts * said ap})oint- ment, files an estimate of the whole estate of said decedent, and presents her [or, his] hond as such administratrix [or, ad- ministrator] in the sum of dollars, with II. T. and G. II. as sureties, to the approval of the court. And H. B., C. D., and Iv. M. are appointed a}>praisers.- Court may add by sec. 6025] : And it is ordered that said administratrix [or, administra- tor] include in the inventory an appraisement of all the real estate of said decedent. 568. (Sec. 5994, 5.) Letters granted to other than widow or next of kin. [Title.] The widow and next of kin of H. T., late of this county, 1 This estimate is given to enable the probate judge to fix the amount of the tond. If this entry is used in ease of a non-resident decedent, say "of the whole estate to be administered in this county." ''If appointed subsequently, see Entry No. 587. 3 See sec. 6005. 308 JOURNAL ENTRIES. [SEC. 5944- deceased, having declined to take administration of his es- tate/ the court, on application, grants letters of administra- tion on said estate to H. M. Thereupon he accepts [con- tinue asfro)ti * in last]. Entries in form of last may be made in other cases provided for in sec. 6005. 569. (Sec. 5994.) Letters granted on estate, within the state, of person dying intestate out of the state. [Title.] On application o , the court grants unto W. P. letters of administration on the estate situated m this county of G. H., late of Madison, Wisconsin, deceased. Whereupon said W. P. accepts said appointment, and files an estimate of the whole estate situated as aforesaid in this county, and pre- sents his bond [conclude as in No. 567J. 570. (Sec. GOOO.'^ Letters granted lohen one, of two or more named in ivUl as executors, declines. [Title.] H. J)., named in the will of L. M., late of this county, de- ceased, as one of the executors, not accepting the trust, let- ters testamentary are, on application, granted to 11. C, named in said will as the other of said executors. Where- upon he accepts [cojiclude as from * in No. 566]. 571. (Sec. 6000.) Letter's of administration , with the will annexed, granted, when person named, in will as sole executor declines. [Title.] H. D., named as executor in the will of L. M., late of this county, deceased, not accepting the trust [or, having failed to give bond as required bylaw], letters of administration, with the will annexed, on the estate of the said L. M. are hereby, on application, granted to A. P. Whereupon he accepts [conclude as from * in No. 567]. 1 See sec- 6005. -GOIC] EXECUTORS AND ADMINISTRATORS. 309 572. (Sec. 6001.) Administration, with the loill annexed, granted dtirinq minority of executor. [Title.'] Oil application, and the executor named in tlio will of L. M., late of this county, deceased, l)eing under the age of twenty-one years, letters of administration, with the will an- . nexed, on the estate of the said L. M., are hereby granted during the minority of said executor, to A. P. AVhereupon he accepts [conclude as from * in No. 567]. 573. (Sec. 6001.) Letters testamentary granted to one, lohen the other executor named in will is under age. [Title.] H. D., named as one of the executors in the will of L. M., late of this county, deceased, being under age, letters testa- mentary are, on application, granted to IT. C, named in said will as the other executor, during the minority of the said H. D. Whereupon he acce]>ts [a.'^froui ^^ in No. 566]. 574. (Sec. 6001.) Entry, irhen executor named in last entry comes of arje. [Title ?^ II. D., named as one of the executors in the will of L. M., late of this county, deceased, having now come of age, let- ters testamentary are granted unto him as such executor, with II. C. the other executor named in said will. Whereupon he accepts [conclude as from * in No. 566]. Sec. 6003. For entry grautiug administration after death of execu- tor, see Entry No. 583. 575. (Sec. 6007.) Special administrator appointed. [Title.-] _ On application, and good cause being shown therefor, the court hereby appoints J. AV. as special administrator of the estate of W. M., late of this county, deceased, to collect and preserve the effects of the decedent until letters testamentary or of administration are granted, and fix his l)ond at $ . Whereupon the said J. W. accepts [as from * in No. 567]. 310 JOURNAL ENTRIES. [SEC, 6011- 576. (Sec. 6011.) Citation against special administrator allowed. [Title.'] On comj^laint of the executor of the estate of W. M., a citation is allowed to be issued against J. W., special admin- istrator of said estate, to appear before the court forthwith [or, on the day of , 18 — ], to answer concerning his neglect [or, refusal] to deliver over to said executor certain property belonging to said estate. 577. (Sec. 6011.) AttacltmeDt allowed after citation disobeyed. [Title.] And now, J. W. having failed to appear before this court in answer to its citation heretofore issued and served per- sonally upon him, a writ of attachment is, on motion, allowed to be issued, commanding the sherift' to arrest and bring the said J. W. before this court forthwith [or, on the day of , 18 — ], to answer for his disobedience and for his neglect [or, refusal] to deliver over to said executor cer- tain property belonging to said estate. 578. (Sec. 6011.) Order committing to jad. [Title.] This day came the said J. AV., in response to the citation heretofore issued for him [or, in custody of the sheritf], and was examined under oath touching his neglect [or, refusal] to deliver over to the executor of the estate of W. M. cer- tain property belonging to said estate ; whereupon, after hearing the testimony produced, the court find that the said executor is entitled to said property, viz. [j)ia7nc], and that the said J. W. retains the same without reasonal)le excuse. It is therefore ordered that the said J. W. be committed to the jail of tliis county, there to remain until he shall de- liver over said property, or be otherwise legally discharged. Sec. 6011. For judgment in the civil action provided for, us;e the ordinary forms of the civil code. —6017.] EXECUTORS AND ADMINISTRATORS. 311 579. (Sec. 6013.) Administration of assets, within the state, of non-resident doing business in the state, granted. [Title.'] Entry may he made in form as No. 569, modified to suit the case. 580. (Sec. 6014.) Administration granted after tioenty years from death of decedent. [Title.] The petition herein coming on this day to be heard, and good cause being shown, and notice liaving been given of the hearing of tliis petition, as required by the court, the court grants unto E. T. letters of administration [conclude as in Entry No. 507]. 581. (Sec. G015.) Resignation of executor or administrator ac- cepted and administrator appointed. [Title.] This day came "W. P., executor of tlie hist will and testa- ment [or, administrator of the estate] of A. T., deceased, and offered liis resignation of said office, whicli was accepted by the court. And thereupon the court grants unto E. T. letters of ad- ministration on the said estate, not already administered. AVhereupon the said E. T. accepts [as from * /// No, ,')67]. 582. (Sec. 6017, 81 O. L. 137.) Exfcutor or admiiiistrator re- moved and ntir admiuistraior (ip/'oinfcd. [ Title.] On motion made to the court, and full hearing, the court find that E. T.. executor of M. AV., deceased, after being cited for that purpose, has neglected to render his accounts according to law and the order of this court [or state other cause named in section 6017], it is now therefore ordered that said E. T. be removed from the administration of said estate. And, on application, the court grants unto A. P. letters of administration [with the will annexed] on the estate of the said R. W., deceased, not already administered. And thereupon the said A. P. accepts [as from^ in No. 567]- 312 JOURNAL ENTRIES. [SEC. 6018-» 583. (Sec. 6018.) Letters of at/ministration, de bonis non, granted after death of executor or administrator. [Title.] J. S., the executor [or, former administrator of the estate] of W. P., having died, the court, on application, grants unto A, P. letters of administration [with the will annexed] on the estate of the said W. P., not already administered by the former executor [or, administrator]. Whereupon the said A, P. accepts [as from * in No. 567]. 584. (Sec. 6019.) Administration revoked on a will being subse- quently proved, and letters testamentary granted. [Title.l A will of L. M., late of this county, deceased, having been duly proved and allowed since letters of administration were granted to E. T. upon his estate, as intestate, said letters of administration are hereby revoked. And, on application, letters testamentary are granted unto H. C. under the said will. Whereu23on the said 11. C. accepts [continue as from * in No. 566]. And it is ordered that E. T. deliver possession to the said H. C. of all the personal effects and assets of said estate. 585. (Sec. 6022.) Letters granted after marriage of executrix or administratrix. [Title] Modify Entry No. 583. The ixventory, the allowance to the widow and children, and the debts due to the estate 586. (Sec. 6028.) Appraisement dispensed loith. [Title.] For good cause shown, an appraisement of the estate of the decedent herein is dispensed with. -004»J.] EXECUTORS AND ADMINISTRATORS. 313 587. (Sec. 6028.) Appraisers appointed } [Title.'] The court hereby appoint G. II., A. T., and W. C, three suitable disinterested persons, to appraise the estate of II. C, deceased. Hi-c. (){)40. II" no appraisers are appointed to ai)praise the personal ])r()perty, the court will appoint special ones to set off the widow's al- lowance, as follows: 588. (Sec. 0040.) Ap-praisers appointed to set off widow's allow- ance. [2itlc.'] This cause beinjj: lieard this day, upon the petition of C. P., widow of said .) . 1'., deceased, for a first year's allowance, and it appearing to the court that heretofore no appraisers of the personal property of the said decedent have been ap- pointed, and no allowance made to the said widow, it is or- dered that F. I)., G. S., and E. I), bo, and they are hereby, appointed as appraisers to set off to said widow a sufficient amount in property or money for her support for one year from the time of the death of said decedent. 589. (Sec. 6043.) Allo^rance to vndow increased. This cause coming on to be heard on the petition of the widow, C. X., to review the allowance made to her by the appraisers of the estate, and for an increase of the amount, the court, being fully advised, find upon the testimony of- fered by the parties interested that said allowance should Ije increased. Wherefore it is ordered and adjudged that said allowance as fixed by the appraisers be, and it hereby is, set aside. And the court find that the sum of dollars is necessary for the suppoi't of said widow, and do fix lier year's allowance at said sum, and order the same paid to her, or her attorney, by the administrator, from and out of the first moneys of the estate coming into his hands, without unnec- essary delay. ^ If appointed at the time letters are granted, see Entries Nos. 566 and 567. 314 JOURNAL ENTRIES. [SEC. 6047- A similar entry may be made for diminishing the allowance. 590. (Sec. 6047.) Order for return of inventory^ etc. [Title.'] On motion to the court by , and it appearing that E. T., the executor of the above-named decedent, has failed to return an inventory of the estate within the time required by law, it is ordered that he return the same on or before the day of , 18 — , or show cause before this court on that day why an attachment should not be issued against him. 591. (6048.) Attachment allowed on failure to return inventory.'- [Title.] And now E. T., the executor of the above-named decedent, having failed to return an inventory thereof, or show good cause why he has not done so, according to the former order of this court, served personally upon him, an attachment is, on motion, allowed to be issued, commanding the sheriff to arrest and bring the said E. T. before this court forthwith [or, on the day of , 18 — ], to answer for his disobe- dience, and for his failure to return such inventory. 593. (Sec. 6049.) Letters revoked, and administration granted to another, for failure to return inventory. [Tifle.] E. T., the executor of the above named estate, having ab- sconded [or, concealed himself], so that the former order of this court could not be served personally on him [or, having ^By 81 O. L. 137, sec. 6048 is repealed; but as sec. G047 still authorizes the court to require the executor to show cause why an attachment should not issue it seems likely that on failure to show cause the attachment should be issued, and this form is therefore retained. -6060.] EXECUTORS AND ADMINISTRATORS. 315 failed to file an inventory as required by law and the former order of this court], his letters testamentary are hereby re- voked. And, on application, letters of administration on the estate of the said E. C, deceased, not yet adrainistereu, are granted to M. W. Thereupon the said M. W. presented his bond [contiaue as from * iyi No. 567]. And it is ordered that E. T. deliver possession to the said M. W. of all the personal eftects and assets of tlie said es- tate. 594. (Sec. 6053.) Citation allowed against fcrson concealing assets. [Title.] On complaint of the administrator of the ., the court hereby approve of said referees. 1 See sec. 6081. 320 JOURNAL ENTRIES. [SEC. 6096- 611. (Sec. 6096.) Report of referees, in arbitration, in favor of claim, confirmed and judgment entered — • by court of commofi pleas. [Title.] It 'appearing that, by an agreement in writing entered into by the executor of the above-named decedent and C. E., the chiim of the said C. E. was heretofore referred to J. S., R. B., and W. T>., and now, the cause coming on to be heard on the report of the referees, and it appearing that all the con- ditions of the agreement to refer the matters in controversy have been complied with, and a copy of the award made by said referees duly furnished to the said parties,' * and the sum off having been, by said referees, awarded to the said C. E. against the executor of the decedent above named \or specify any other judgmenf\ the aforesaid report and finding are hereby approved and confirmed. It is thereupon adjudged by the court that tlie said C. E. recover from the said C. D., the executor of the said II. T., deceased, the sum of dollars, so found to be due, together with his costs' herein expended, to be levied of the property of the testator in the hands of said executor.^ 612. (Sec. 6096.) Judgment against the claim, on report of referees. [Title.] As in last /o*, and continue :] — and the said referees having found against the claim of the said C. E., it is therefore ad- judged that tlie defendant go hence, without day, and re- cover from the plaintitf his costs herein expended. 613. (Sec. 6096.) Report of referees set aside and new referees appointed. [Title:] This cause coming on this day to be lieard on the report of the referees to whom, by agreement of parties, the claim of C. E. against the estate above named liad been referred, and on the motion to set the same aside, the court now find ^ By sec. 5607. ^ As to costs, see sec. 6106. ^ See post, page 320. See also sec. 6107. -6101,] EXECUTORS AND ADMINISTRATORS. 321 that said report ought to he, and it herehy is, set aside and held for nauijht. And it is ordered that the matter be re- ferred, upon the terms and conditions of the former refer- ence, to W. R. W., L. E., and M. II., who are directed, after hearing, to make due report to this court. Sec. 6097-8. The judgments here provided for wih be in the usual form of judgments in the common pleas, except as follows: It was said, in the case of Haymaker's Ex'rs v. Haymaker, 4 Ohio, St. 278, that if a judgment should be rendered against the executor, without adding the words, " to be levied of the property of the testa- tor," it might, and probably would, be erroneous. These words should therefore be added to the judgment entry. As to costs, sec. 6106 })rovides when they may not be recovered from the executor or administrator ; and that the court may direct that they be levied of the property of the defendant or of the deceased, as shall be just. Executor's or administrator's claim against the estate he represents — 614. (Sec. 6100.) Order that notice of hearing be given. [Title.] E. T., the executor of the decedent above named, having presented to this court his claim against said estate in the sum of $ , tlie court now tix the day of , 18 — , for the liearing of the same, and order that said executor give notice thereof in writing to all parties interested, as re- Lj[uired by law. 615. (Sec. 6101.) Claim of exec ator allowed. [Title.-] Xow comes E. T., the executor of the above-named dece- lent, and presents to this court proof of the service of no- tice of the hearing of his claim upon all parties interested, as required by law and the order of this court ; and the court being satisfied therewitli, said proof and service are hereby found to be properly and legally made, and are therefore approved. And. upon hearing of the testimony, the court finds said claim to be valid and correct, and does therefore 322 JOURNAL ENTRIES. [SEC. 6101- allow the same against the estate of the said "W". C, de- ceased, in the sum of dollars. Sec. 6101. For entries iu case of appeal, see Entry No. 279, page 384. Exceptions may be taken, bill of exceptions allowed, etc., as in common pleas. Sec. 6111. For entries in case estate is declared insolvent, see page 345. 616. (Sec. 6105.) Execution against executor allowed. [Title:] On motion of A. B., he is hereby allowed to issue execu- tion against E. T., as executor of M. B., deceased, on his judgment obtained in the court of common pleas of this county, in case ]N"o. of that court, in the sum of ^ . 617. (Sec. 6107.) Judgment of waste against executor. [Title.] This cause coming on for liearing on the petition [or, plead- ings] and evidence, the court tind, upon the suggestion of the plaintitF, that the defendant, E. T., as executor of W. M., deceased, has been guilty * of waste to the amount of dollars, and that he should be held personally liable to the plaintiif, to that extent, on account of plaintifTs judg- ment against the estate of the said W. j\I. It is therefore considered by the court that said plaintiff recover from the defendant, E. T., personally, the said sum of $ , together with his costs herein expended, and exe- cution is awarded therefor. 618. (Sec. 6107.) Same, when amount can not be ascertained. [Title.] As in last to *, aiid continue] : — of waste, and, as tlie amount of said waste can not be ascertained, the court find that the said defendant should be held personally liable to the plaint- iff, on account of plaintiff's judgment against the estate of "W. M., to the full amount of said judgment and interest, viz., dollars. It is therefore considered [as in lasf^]. -6127.] EXECUTORS AND ADMINISTRATORS. 323 619. (Sec. 6115.) Order for payment of claim on lohich right of action ivill not accrue for four years. [Title.] This day A. C. presented to the court a claim in the sum of I against the abov'e-!iamed estate, which is not pay- al)le until the day of ■, 18 — , more than four years fiom the date of tlie l)ond of the administrator of said es- tate : iind, on examination, said claim appearing to he justly (Inc. * it is now ordered, by the consent of the said A. C, and of the administrator of said estate, that the adminis- tratoi- })ay the present value of said claim, to wit, the sum of dollars, to tlie said A. C, in full discharge of said claim. C20. [Sec. Ollf).] Order that administrator retain money for pa)/ment of claim 7iamed in last entry. [Tiik.] As in last to *, and continue]: — it is now ordered that said administrator retain in his hands sulHcient money to satisfy the same when it shall l)ecome })ayable. 621. (Sec. 0115.) Order that bond be taken by owner of claim named in last two entries. [Title.] A. C. having presented to the court a claim, in the sum of f , against the above-named estate, on which right of ac- tion will not accrue witliin four years after the date of the administration bond, and thereupon O. H., one of the heirs of tlie deceased, having offered to give bond with sufficient security to the said A. 0. for the payment of said claim when it shall ])econie payable, in case it shall be proved to be due, it Is now ordered that said bond, with S. S. and G. B. as sureties, be taken by the said A. C, and that the admin- istrator be released from payment of said claim. €'22. (Sec. 6126.) Allowing notice of appointment of executor to be given, etc. [Title.] On hearing of the petition of the executor of the decedent above named, and it appearing that he failed to give notice 324 JOURNAL ENTRIES. [SEC. 6128- of his appointment, according to law, it is now ordered that he be allowed to give such notice forthwith. 623. (Sec. 6128.) Order to distribute, etc., on bonds being given. [Title:] On the written application of R. T. and A. D., tsvo of the distributees of the above estate, it is ordered that the admin- istrator be, and he is hereby, authorized, upon the execution to him by the said distributees, several]}^ of undertakings in the sum of dollars each, with two sureties, to be ap- proved by the court, to divide and transfer to each of them one-fourth part of all the bonds and stock which are reported in the inventory, and such portion of tlie cash as he deem expedient, on account of the respective distributive share of each. Said undertakings to be conditioned as required by section 6128 of the Revised Statutes of Ohio. 624. (Sec. 6128.) Order for distribution, without bond being re- quired. [Title.-] This cause coming on to be heard, and it appearing to the court that the report and account of W. A., executor of the last will and testament of II. C, deceased, are not excepted to, and that the filing of the same has been advertised and held open in accordance with law, the court, upon exam- ination, allow and confirm the same. And it further ap- pearing to the court that all of the debts brought to the knowledge of such executor have been paid, and that there is no probability of any others being presented, and it further appearing to the court that each and all of the lega- tees and distributees of said II. C, deceased, have demanded of and required said executor, W. A., to make payment of the whole of their respective legacies and bequests, and that all of the estate of 'the said II. C, deceased, has been re- duced to money, the court, being advised in the premises,, deeming it unnecessary that said legatees and devisees should be required to give bond to said executor for the refunding of the amount so to be paid to them respectively, or for the indemnification of tlie executor against loss or damage on ac- count of such payment, do hereby relieve them from giving -6131.] EXECUTORS AND ADMINISTRATORS. 325 said bond, and release the exeeutor from any and all liabil- ity l^y reason of siicJi payment. And it is ordered by the eourt that said executor proceed, immediately after the payment of the costs of administra- tion remaining unpaid, and of any claim or debts against the estate that may liave been presented since the filing of his former report, or tluit may come to his knowledge before this distribution, to pay to tlio legatees and devisees the re- spective legacies and shares of the remainder of the estate coming to them ; and that he file his final report herein. Foreign executors and aDiMinistrators — The proceedings by section G131 to compel a foreign executor or ad- ministrator residing in the state to account must be instituted by a suit. The orders, on liearing of the petition, may be similar to the orders made on motion against an executor in other cases, as provided in sec- lion (5178. 625. (Sec. 6131.) Ordcr^ on petition, tliat foreign exicutor render acconnt. [Title.-] This cause came on for hearing this day upon the petition [or, pleadings] and the evidence; and the defendant having had duo notice of tliis proceeding, the court find that the plaintiri' is entitled to the relief prayed for in his petition. It is therefore ordered that said defendant, C\ I)., as exec- tor of the estate of M. D., late of Indiaiiai)olis, Indiana, de- ceased, make and file in this eourt within days, as ac- count showing what assets or property are in his hands as such executor. If the above order be disobeyed it may probably be enforced by at- tachment and imprisonment. In which case make entries similar to entries Nos. 591 and 592. 620. (Sec. 6131.) Order distributing amount found in hands of foreiqn executor. [Title. -] It appearing to the court that there is in the hands of C. D., executor, under the laws of Indiana, of the last will and 326 JOURNAL ENTRIES. [SEC. 6131- testament of M, B., deceased, the sum of $ , belonging to said estate, to which the plaintiff herein is, by the laws of Indiana, entitled as legatee [or, otherwise] it is now therefore ordered that the said C. D. pay over said sum to the plaintiff, A. B. [upon a refunding bond, to the approval of this court, being given by said A. B. to said executor for its return to him in case it shall be needed for the purpose of paying debts of said estate.]^ [Add order as to costs.'] Action for injury by wrongful death — This is a civil actiou, and the usual forms may be used, except that, in case of verdict for plaintiff, the verdict and judgment should, by section 6135, find and direct the proportion Avhich each beneficiary shall receive. The verdict may be as follows : "We, the jury, find on the issue for the plaintiff, and assess damages against the defendant by reason of the premises at dollars, to be divided among the beneficiaries as follows, to wit : To the said widow the [yianie proporivmatel part thereof: to the said CD. the [iiame 'proportionate] part thereof, etc. [Signed] E. M., Foreman. 627. (Sec. 6135.) Judr/ment on last verdict. [™r.] The jury having heretofore rendered a verdict herein for plaintiff for $ , and no motion for a new trial having been made : It is now therefore adjudged that' the plaintifl" recover from the said defendant the said sum of $ , together with his costs herein expended; and that said plaintiff pay, first, the sum of $ , necessary expenses connected with his action, and distribute the balance among the beneficiaries named in the petition in the proportion found l;)y said verdict. 1 See sec. 6131 as to when this will be required. ' —5146.] EXECUTORS AND ADMINISTRATORS. 327 628. (Sec. 6135.) Order that administrator settle claim. {Title. 1 It appear-ing to the court that E. T., as administrator of II. T., makes a claim for damages against the C X and T. P. C. Railroad Company for causing the death of 11. T., the de- cedent, and that said company pro[)Oses to settle said claim for the sum of dollars, and that no suit has been brought on said claim ; and the court being of the opinion, from the statements of said administrator, that said settlement is proper and for the best interests of the parties, he is liereby authorized to make the same, in full satisfaction of all claims and demands against said railway company by reason of the death of the said decedent And the court coming now to apportion said sum of S among the beneficiaries, finds that it is fair and equitable, hav- ing reference to the age and condition of such beneficiaries, who are, etc. [vame'], that said amount should be ajJiiortioned as follows: To the said widow the sum of S ; to the said M. T. the sum of $ \_ See sec. 6137. ^ gee. 6407. 328 JOURNAL ENTRIES. [SEC. 6147- tate to pay the debts of the said E. F., deceased, this day came F. D. and gave bond to the administator of the estate of the said E. F., in the sum of $ , with II. R. and T. S. as sureties, to the approval of the court, conditioned as re- quired by section 6146 of the Revised Statutes ; and there- upon the order for sale is not granted. 630. (Sees. 6147 and 6153.) Finding sale to pay debts not nec- essary. [Title.] This cause coming on for hearing on the petition, and the motion to dismiss filed by , and the matter having been fully considered by the court, the court find that sale of the real estate for the payment of debts is not necessary. It is therefore ordered that the cause be dismissed at the cost of . Sale — where there is no homestead or dower to be assigned. 631. (Sec. 6147.) Sale ordered on appraisement contained in the inventory. {Title?[ This cause coming on this day to be heard upon the peti- tion, proofs, and exhibits [or the several 'pleadings may he spe- cially named], the court find that all of the defendants have been duly served witli process, or have voluntarily entered their appearance in the case ; and that, as set forth in the pe- tition, it is necessary to sell the real estate [or, a part of the real estate] tlierein described, to pay the debts of the said E. F., deceased. * It is therefore ordered and adjudged by the court that "W. P., executor [or, administrator] as aforesaid, advertise and sell at pul^lic vendue [on the }»remises],^ according to the ap- praisement contained in the inventory returned by him to the probate court,- the real estate described in the petition [or any part of it may be specified],^ on the following terms, to ^ By sec. 6101, unless otherwise specially ordered, the sale will be made at the door of the court-house. ''Sec. 6154. 'Bv sees. 6147 and 6149. -0147.] :3X:i:i;u':oii3 ljj> aj^IxIs'istrators. 329 wit : one-third cash, the balance in two equal installmentt., payable in one and two years respectively, with interest, and secured by mortgage on the premises' [or other terms as, or- dered], and that the said W. P. make due return' to this court.^ Court may add by section Glol :] — And it is further ordered that, before making said sale, the executor [or, administrator'] give an additional bond in the sum of $ , to the approval of this court, to secure the assets arising from said sale. In case a uew appraisement is to be made, it is the practice in Ham- ilton county, in all cases, to have it made and returned, and approved by the court, before the sale isordered, although, liy section 6154, where there is no dower to be assigned, the order for the appraisement and sale may be made at the same time. The court is thus enabled to maintain a more careful scrutiny of the proceedings. 632. (Sec. ♦)147.) New appraisement ordered. [Title.] As i)i (est to *, a7id continue:] — It is therefore ordered and adjudgea by the court that the real estate described in the petition [or any part of it may he described]^ be appraised* l)y the oaths of T. K.. H. F., and J. II., judicious and disinterested freeholders of the vicinity, whom the court hereby appoint for that purpose,'^ and that they return their proceedings to this court for confirmation. 1 By sec. G162. 2 By sec. Gl-5o. a copy of this decree must be issued to the executor or admin- istrator. 3 By sec. 6149. * By sec. 6154. » By sec. 6155. 330 JOURNAL ENTRIES. [SEC. 6147- And it is further ordered by the court that W. B., J. L.^ and C. B., three judicious and disinterested men, freehold- ers of county, Ohio, after being duly sworn, appraise the premises secondly described in said petition, located in said county, and make due return to this court. 633 (Sec. 6147.) Appraisement ordered, in case xoidow his waived dower by m.etes and hounds} [ Title:\ As in No. 631 to *, and continue {] — And A. F., the widow of the said E. F., having, by her answer, waived the assignment of her dower by metes and bounds,^ it is therefore ordered and adjudged by the court that the said premises be appraised, free of dower, by the oaths of T. K., H. F., and R. M., judicious and disinterested freeholders of the vicinity, whom the court hereby appoint for that purpose,^ and that they return their proceedings^ to this court for confirmation. \_If any property is in another county, see last entry for ap- pointment of officers.'] 634. (Sec. 6147.) Appraisement confirmed and decree for sale. [Title.'] Now comes N. J. & C, counsel for R. M., adniiuistrator as above named, and produce to the court the appraisement herein made of the real estate described in the petition herein, by T. K., H. F., and R. M., in pursuance of a former order of this court, and it appearing upon examination that said appraisement is in all respects regular and correct, the same is hereby approved and confirmed. :J: And it is ordered that W. P., executor [or, administrator] as aforesaid, advertise and sell the real estate aforesaid [free of dower] at public vendue [on the premises],* on the following terms, to wit: one-third cash, the balance in two equal installments, payable in one and two years respectively, with interest, and secured by mortgage on the premises [or other terms as ordered], and that the said W. P. make due return^ to this court. CouH may add by sec. 6151:]^— And it is further ordered that before making said sale the executorp^, administrator] give an additional bond in the sum of $- , to the ap- proval of this court, to secure the assets arising from said sale. 1 Bv sec. 5719. As amended April 3, 1889, 86 v. 185, this section is made to perta"in to the dower of a widower as well as of a widow. This and subsequent entries my be modified accordingly. 2 By sec. 6155. ^ By sec. 6157. * By sec. 6161. * By sec. 6162. -6155.] EXECUTORS AND ADMINISTRATORS. 331 Sale where there is dower to be assigned — 635. (Sec. 6155; 83 v. 105.) Order for assignment of dower, ^ and ap- praisement of premises. [ruie.~\^ As in No. 631, to ^ and continue:^ — And it appearing to the court that A. F., the widow* of E. F., de- ceased, is entitled to dower in said premises, it is hereby ordered that T. R. P., H. F. M., and J. H., judicious and disinterested freeholders of the vicinity, after being duly sworn, set off and assign the same in the wliole of said lands [or, in each of said tracts of land; or it may all be assigned from one tract^ and apjjraise said premises, either as a whole or in parcels, subject to such dower so assigned; and that they return their proceedings^ to this court for confirmation. 636. (Sec. 6155; 83 v. 105.) Assignment of dower by metes and bounds, and appraisement of premises confinnedy and decree for sale. [Title.] And now this cause coming on to be heard on the return of T. K. P., H. F. M., and J. H., of their proceedings in the assignment of dower and appraisement of premises under the former order of this court, the court being fully advised in the premises, find said proceeding to be in all respects in conformity to law, and they are hereby approved and confirmed. It is therefore ordered and adjudged that the said A. F. liave and possess the lands so assigned to her, to wit \_describe'\, as and for her dower in said premises.:}: And it is ordered that said plaintifi' pro- ceed, according to law, to advertise and sell said real estate, subject to said dower interest of the said A. F., upon the following terms, to wit Instate terms of sale'\, [and that said sale take place upon the premises].^ And it is ordered that said executor make due return of his proceed- ings to this court. [27ie clause ordering additional bond as after decree Xo. 631, 7yiay be added here.'\ 637. (Sec. 6155; 83 v. 105.) Assignment of dower, as of rents and profits, and appraisement of premises confirmed, and decree for sale. [Title.'] And now this cause came on for hearing upon the return of T. K. P., H. F. M., and J. N., of their proceedings in the assignment of dower and appraisement of premises under the former order of this court ; and it appearing that said dower has been assigned as of the rents and profits in the annual sum of dollars, the court find all of said proceedings in all respects in conformity with law, and they are hereby approved and confirmed. It is therefore adjudged by the court that the said A. F. stand en- dowed of the rents, issues, and profits of the said premises, in the annual sum of $ . And the said premises are hereby charged » See note 1, p. 330. ^By sec. 6157. sgy sec. 6161. 332 JOURNAL ENTRIES. [SEC. 6155- ■n ith the payment of the same, on the day of -, of each and every year of the natural life of the said A. F.^ [coyidude as from tj: in last^. Sale where homestead is to be set off — 637a. (Sec. 6155; 83 v. 105.) Order for setting off homestead, and for appraisement. [Title.'] As in No. 631 to :J:, and contimie:'] — And it appearing to the court that the said E. F., deceased, left a family homestead, and api:)lication^ having been made by \_undow or minor cJiild] to have the same set apart to her [or, him] the court find that she [or, he] is entitled thereto. It is therefore ordered that T. R., H. F., aud J. H., judicious and disinterested freeholders of the vicin- ity, after being duly sworn, first set off and assign such homestead to the said , uot exceeding in value the sum of $ ^^, and then appraise said premises subject to such homestead, and return their proceedings to this court for confirmation. 637&. (Sec. 6155.) Appraisement confirmed, and decree jor sale. [Title.'] As in No. 634 to tj: and continue ;] — Aud it is ordered that U. P., executor [or, administrator] as afore- said, advertise and sell the real estate appraised as aforesaid at public vendue [may be on the premises]* on the following terms, to wit : one- third cash, the balance in two equal installments, payable in one and two years respectively, with interest, and secured by mortgage on the premises [or other terms as ordered^, and make due ret\irn to this court. Sale where both homestead ast> dower are to be assigned. 637c. (Sec. 6155; 83 v. 105.) Order for, and for appraisement. [Title.] As in No. 637a to tj: and continue:] — And it also appearing that A. F., the widow of E. F., deceased, is entitled to dower in said premises, it is hereby ordered that the ap- praisers hereinabove named also before appraising said premises set off and assign to her, by metes and bounds, one equal third part of said lands as and for such dower, and that subject to such homestead and dower they appraise said premises, and return their i:)roceedings to this court for confirmation. [The decree of confirmation may he in the form of entry No. 636 or 637.] In general — 638. (Sec. 6156.) Order substittding appraiser. [Title.] It appearing to the court that L. M., one of the appraisers appointed herein, is unable by reason of sickness [or other cause] to discharge his duties as such, R. T., a judicious dis- 1 By sec. 6144. ^ See sees. 5437 et seq. 3 See sees. 5438 and 5440. * By sec. 6161. -6161.] EXECUTORS AND ADMINISTRATORS. 333 interested man of the vicinity, is liereby appointed as an ap- praiser in his stead, under the former decree of the court herein. 639. (Sec. 6160.) Order directing sale for certain amount. [Title:] It appearing to the court that the real estate herein ordered to be sold lias been twice ottered for sale under the present appraisement, iiiid not sold for want of bidders, it is now, on motion, ordercMl * that said real estate may be sold for the sum of dollars. 640. (Sec. 6160.) Order for new a/pproisement. [Title.] As in last to ^, "tid continue:] — that said appraisement be set aside, and a re-appraisement of the same be made by the oaths of G. n., K. AV., and L. E., judicious and disinterested freeholders of the vicinity, whom the court hereby appoint for that purpose. Private sale — 641. (Sec. 6161.) Decree for i^rivatc sale. [Title.] [If the order for private sale is made in the first instance, make the etitri/ rivatescde, on report of offer made. [TUle.] This cause came on this day to be heard upon the report of the plaintiflf that he has had an oft'er for the real estate in the petition described from W. E. P., to purchase the same at private sale for the sum of dollars ; and it further ap- pearing to the court by testimony oiFcred that it will be more to the interest of said estate to sell such real estate at private sale, and that the said offer for the same is more than the appraised value thereof, it is hereby ordered and adjudged that the said executor sell said real estate at private sale to said AY. E P. for said sum of | . Confirmation of sale and distribution of proceeds — 644. (Sec. 6162.) Decree of confirmation of sale, and distribu- bution of py'oceeds. [Title.] This cause now coming on to be heard on the return of W. P., executor [or, administrator], of his proceedings and sale under the order of this court, the court, after having carefully examined said return, being satisfied that such sale has in all respects been legally made, does hereby approve and confirm the same, and order that the said W. P., as such executor [or, administrator], make to the purchaser. L. M., a good and sufficient deed for the premises so sold. * And the court coming now to distribute the proceeds of said sale in the hands of the said W. P., order that he pay : '' 1 By sec. G1G5. -6165.] EXECUTORS AND ADMINISTRATORS. 33o First. The costs of this action, including $ , as the charges due the executor herein, taxed at $ . Secondly. The court find that the mortgage to P. L., set up in his answer and cross-petition, is the first and best lien on the premises sold,' and that there is due thereon the sum of $ . It is therefore ordered that said executor pay next to the said P. L. the said sum of $ . Thirdly. It is ordered that said executor pay next the claim of R. AV., amounting to S . [Condade distribution according to priorities.] 645. (Sec. 6162.) Decree of confirmation and distribution after private sale. [Tdle.-] This cause came on this day to be heard upon the report of the plaintiff of sale made to AV. E. P. for the sum of $ , as hereinbefore ordered, and the proceedings appearing in all respects regular and in t-oiiformity to the law, they are hereby approved and confirmed. And the said J. AV. A., executor of E. A., is ordered to execute and deliver to the said purchaser a good and sufiicient deed for the premises so sold. * \_Concladc as from * in last decree. 1 646. (Sec. 6162.) Decree of confirmation and distribution ivhere doicer by metes and bounds ivas ivaived. [Title.] As in No. 644 to *. and continue .•] — And the said J. B. having by his answer elected to re- ceive in lieu of her dower its value in money, the court find the just and reasonable value thereof to be dollars. And the court coming now to distribute the proceeds of said sale in the hands of said executor, orders that he pay : First. The costs of this action, including § , as the charges due the executor, taxed at 8 . Secondly. It is ordered that said executor pay to said J. B. the said sum of $ , in lieu of her dower, as above found by the court. 'See sees. 61-15 and 6165. 336 JOURNAL ENTRIES. [SEC. 6166- Thirclly. \_Continue distribution as in decree Ko. 644]. 647. (Sec. 6166.) Sale of equitable interest ordered. [7iHe.] This cause coming on this day to be heard upon the peti- tion, proofs, and exhibits [^or the several jjleadings may be spe- cially named^, the court find that all of the defendants have been duly served with process, or have voluntarily entered their appearance \n the case. The court further find that there is not suflicient personal property to pay the debts of the said E. F., deceased, and that he was at the time of his death, as set forth in the petition, the owner of an equitable inter- est, to wit \_describe'], in the real estate described in the peti- tion, and that it is necessary to sell the same, for the pay- ment of such debts. It is therefore ordered and adjudged by the court that the equitable interest as aforesaid, free of all dower interest of A. F., widow of the said E. F., be appraised by the oaths of T. K. P., 11, F., and E. M., judicious and disinterested free- holders of the vicinity, whom the court hereby appoint for that purpose, and that they return^ their proceedings to this court for confirmation. The decree confirming appraisement and ordering sale may be in the form of Entry No. 634, substituting equitable interest for real estate. The decree confirming sale and ordering distribution is in the following form : 647«. (Sec. 6166.) Sale of equitable interest confirmed, and. or- der for distribution. [Title:] As in Entry No. 644 to *. and continue^: — And the court coming now to distriV^ute tlie proceeds of said sale, find that the value of a life annuity, to the said A. F., in one-third of such equitable estate, in lieu of her dower interest therein, is dollars. It is therefore ordered that the executor pay : First, The costs of this action, including $ , as the charges due the executor, taxed at § . Secondly. To the said A. F., widow, the said sum of % , so found due her as above, in lieu of her dower interest. -6178.] EXECUTORS AND ADMINISTRATORS. 337 Tliii'dly. [Continue (/istribufion, if there are any liens to be paid, off, as in decree No. 644]. 648. (Sec. 6168.) Copy of appointment of foreign executor fled. [Tit/e.] Now comes F. E., and files in court an authenticated copy of liis appointment in the county of , State of , as executor of the estate of L. D., tos^ether with an authenti- cated copy of the will of the said L. D., deceased. The account and compensation op an executor or adminis- trator ; AND distribution in certain cases — 649. (Sec. 6175.) Account current of administrator fled and suspended. [Title.'] This day came the administrator herein, and presented an account current, wliieh is ordered filed and suspended. 650. (Sec. 6175.) Final account of administrator filed ayid sus- pended. [Title.] This day came the administrator herein, and presented a final account, which is ordered filed and suspended. Soc. 0178. To compel an executor or administrator to render his ac- count, entries may be made in same form as Nos. 590, 591, and 593. 651. Account allowed and confirmed, and order of distribution. [Title.] This matter came on to be heard on the motion of V. J., attorney for the executor of the above-named decedent, to c-onfirm the account filed February 20, 1881 ; and the court Hnding that the same was duly published as required l)v law, and no exception beiiii^ filed to the same, and having' exam- ined the said account and found it in all respects correct, it is hereby allowed and confirmed. And the court now coming to the distribution of the money on hand as reported by the executor aforesaid, find that there has been paid to L. J., the son of tlie testator, to date by said executor the sum of | , and to M. J., daughter of said testator, the sum of $ , and that there is still due to L. J. 338 JOURNAL ENTRIES. [SEC. 6179- the further sum of | , and to M. J. the further sum of $ ; and the court find that there is due to S. J., widow of A. J., the testator, the sum of $ . It is therefore or- dered that said executor pay the sums above found to the parties respectively, and report the vouchers therefor to this court. The order of distribution will, of course, often be made as a separate entry. 652. Suspended account alloived and confirmed. [Title.] The account of the executor herein heretofore on the day of , 18 — , filed and suspended, was this day, after being examined, duly allowed and confirmed. When several accounts are examined and allowed at the same time, the order may be entered as follows : 658. Various accounts and vouchers allowed and confirmed. [Title.] The following accounts and vouchers of executors, ad- ministators, guardians, and assignees, heretofore filed and suspended herein, were this day examined and duly aPowed and confirmed, to wit : EXECUTORS AND TRUSTEES. 23,722. A. S. Filed and suspended, October 3, 1881. etc. etc. ADMINISTRATORS. 21,061. J. B. Filed and suspended, August 17, 1881. etc. GUARDIANS. 20,203. R. P. Filed and suspended, October 12, 1881. etc. -6186.] EXECUTORS AND ADMINISTRATORS. 339 ASSIGNEES. r. II. s. etc. '654. Accounts of administrator confirmed, on exceptions heard. [11116.-] This cause coming on to be lieard on the account of M. P., administrator, tiled , 18 — , and the exceptions thereto, the court, u})Oii due consideration thereof, * find that said exceptions are not well taken, and that said account is in all respects correct and according to law, and do hereby approve and confirm the same. \^jidd any order inadc as to costs!] 655. Account disallowed. [Title.] , As in last to *, art of the same belonging to him having l)cen invested by order of court in [_name securities], [or, turned into the county treasury], it is now oi-dered that they [or, it] be turned over and ti'ansfori'ed to him as such distributee. [In euse of money add, and that lie receive a war- rant tiicrefor from the county auditor.] For an order to invest money pending suit, etc., see Entry No. 780, page 384. 664. (Sec. 6195.) Citation issued against executor or adminis' trator, for failing to j^ay money. ^ [Tifh,] On petition of L. W., and it appearing to the court that heretofore, by order entered on the day of , 18— r, the assignee herein was ordered to pay from the assets in his hands the sum of $ to L. W., and it appearing that said assignee, though frequently requested, has refused to pay said sum, it is therefore, on motion of A\". T., attorney for F. S., ordered that a citation issue to said assignee, E. B., return- able on the day of , 18 — , at 10 o'clock a. m., for ' May be made in common pleas or probate court, by sec. 6200. 342 JOURNAL ENTRIES. [SEC, 6196- him to show cause why judgment shouki not be rendered and execution awarded against him for failure to comply with said order. 665. (Sec. 6196.) Orde?^ for publication against non-resident,^ executor, etc. [Title.] R. M., the defendant herein, being a non-resident of the State of Ohio, it is ordered that he be brought into court by publication to be made in the Cincinnati Daily Gazette, ac- cording to law, as provided in sec. 6196 of the Revised Stat- utes. Sec. 6197. Judgment under this section may be in the ordinary form of judgment in civil actions. 666. (Sec. 6198.) Amended or supplemental petition allowed'^ making new jparties. ITitle.] It appearing to the court that for the purpose of making distribution of the above-named estate, it is necessary to determine whether [state question], and that there are other parties in interest who should have notice of this proceed- ing, it is now ordered that the plaintiff file an amended [or, supplemental] petition, making the following-named persons parties hereto, viz. [give names], and that a citation issue on said amended [or, supplemental] petition, returnable accord- ing to law. 667. (Sec. 6198.) Finding and order on submitted question.^ [Title.] This matter now coming on to be heard, the court find that all parties interested are properly before the court ; and the ques- tion being submitted to the court wliether [state questioii], and the testimony being heard, the court having duly considered the same, find [state finding]. It is therefore ordered that the said W. M. be charged with the said sum of $ , in settling and distributing said estate 1 May be made in common pleas or probate court, by sec. 6200. -6202.] EXECUTORS AND ADMOTISTRATORS. 34b [^or other order], and that pay the costs of this proceed- ing. 668. (Sec. 6198.) Same, hy agreement} [Title.'] This matter came on this day to be heard on the agree- ment in writing now tiled herein, made by the administra- tor of said estate and the next of kin and distributees thereof, viz. \_name jiarties], submitting to the award and decision of tlie judge of this court, as referee, whether [state question]. And all said parties l)eing present, and the testimony heard, the court, having dul\' considered the same, tind and award that [state fitK/iiit/]. It is tliereforc ordered that the said W. M. l>e charged with said sum of $ , in settling and distributing said estate [or other order], and that }»ay the costs of this proceeding. 669. (Sec. 6199.) Order reserving case to common pleas court. [Title.] On motion of , one of the parties hereto, this case ia reserved to the Court of Common l^leas of tliis county for hearing and decision u})on [state question or matter reserved']. 670. (Sec. 6202.) Judgment construing any matter respecting the estate. [Title.] I And now this cause came on to be heard on the petition of the plaintiii', asking for the direction and judgment of the court in construing certain parts of the will of L. M., of which said plaintifi' is executor, and upon certain questions presented in said petition, and upon the answers of C. D. and E. F., all of the other defendants being in default for pleading. And thereupon the court, after careful consideration, find and adjudge the true intention and construction of said will to be as follows, to wit [set out in full]. ^ May be made in common pleas or probate court, by sec. 6200. 344 JOURNAL ENTRIES. [SEC. 6204- It is therefore considered by the court \_set out any direction the court may make]. The administration bond ; sureties in ; suit on — 671. (Sec. 6204.) Order releasing surety. [Title.] This day came B, S., and his application to be released from the bond of F. E., administrator of the estate of F. M., came on to be heard, and due notice thereof having been given to the said administrator, and good reason shown, the application is granted ; and it is ordered that said adminis- trator give a new bond within days. 672. (Sec. 6204.) Administrator removed for failing to give new bond. [Title.] It appearing to the court that S. D., administrator of the above-named estate, has failed to give a new bond within the time provided by the former order of the court, he is hereby removed from the administratorship of said estate. And W. K. is hereby appointed administrator de bonis non of said estate, and it is ordered that he give bond in the sum of dollars. It is further ordered that said S. D. do forth- with deliver to W. K., as said administrator de bonis von., upon his being qualified as such, all moneys and property in his hands, and pay over to him the balance due and owing to said estate, as shown by his accounts filed herein. 673. (Sec. 6205.) Bond insufficient, new bond required. [Title.] On petition of A. C, and notice to the administrator, and the court finding that the bond of said administrator is in- sufficient, it is ordered that he give a new bond, with two sureties to the approval of this court, within days. Sec. 6207. The order removing administrator for not giving bond may be similar to Entry No. 672. Sec. 6208. The order for an account may be similar to Nos. 590, 591, and 592. -6224.] EXECUTORS AND ADMINISTRATORS. 345 674. (Sec. 6208.) Order for bond of indemnity. \ Title.] On application of B. S., one of the sureties on the bond of E. T., administrator of the estate of F. E., and for ^ood cause shown, the court hereby directs that said E. T. execute a bond of indemnity to the said B. S., as such surety, within (hiys. Sec. ()2()8. The entry of removal may be .similar to Eutry No. 672. 675. (Sec. 6212.) Leace to bring suit on bond of executor. {Title.'] This day tliis cause came on to be heard on tiic motion of R. W., legatee under the will of If. W., decea.sed, for leave to])ringsuitou the bond, and against the bondsmen, of F. M., executor. And it appearing to the court that [inake statement necessary], the motion is granted, and leave is given to bring suit accordingly for the benefit of the estate of F. M., de- ceased. Sees. 6218 aud 6223. Judgments may be as in ordinary civil cases modified to .suit the facts. Proceedings when the estate of a deceased person is insolv- ent — 676. (See. 6224.) Conitniisioners appointed. ITitle:] It appearing to the court, from the representations of the executor, that the estate of F. M. will probably be insuffi- cient for the payment of his debts, the court now appoint C. M. and J. W. commissioners * to receive and examine all claims of creditors against said estate, and to return to the couit a list of all claims laid before them, with the sum they shall allow on each. And it is ordered that they give notice of the times and places of their meeting, by publications in some newspaper of general circulation in the county of 1 By sec. G225. Or the order may be for posting notices in the township where the dcci':i;oil lu.. against the estate of the said 1\ M. be allowed by S. C, the executor [or, administrator] thereof, in the sum of dollars [or, he not allowed] ; and it is ordered that pay the costs of this proceeding.^ Sec. 6244. For order of distribution, modify Entry No. 681. 685. (Sec. 6244.) Allowance of claim confirmed or set aside, on exceptions heard. [Title. -] This cause came on this day for hearing on the exceptions filed by to the executor's allowance of the claim of W. D., for the sum of | , against the above-named estate ; and upon full hearing the court find that said claim is just, and ought to be allowed [or, find that said claim ought not to be allowed], and therefore overrule [or, sustain] the excep- tions theretOo 1 As to costs, see sec. 6242. -G253.] EXECUTORS AND ADMINISTRATORS. 349 Sec. 6252. For orders compelling an account, modify entries to com- pel the return of an inventory, Nos. 590-3. CHAPTER III. Of mixous- 68ii. (Sec. 687. (.Sec. 688. (Sec. 689. (Sec. 690. (Sec. 691. (Sec. 692. (Sec. 69H. (Sec. 694. New 695 (.Sec. 69G. (Sec. 697. (.Sec. 698. (Sec. 699. (.Sec. 700. (Sec. 701. (Sec. 702. (Sec. 625.^). 6257. 6257. 6259 6261. 626 1 . 6261. 6261. bond 6268. 6269. 6269, 6269 6273 6273 6274. 6277. 703. (Sec. 6279.) GUARDIANS AND TRUSTEES. ) Letters granted for minor under fourteen [^or, female under twelve] years of age. Guardian appointed on selection of minor. Guardian appointed on minor failing to select. Mortgage received from guardian in lieu of bond. Exceptions to guardian's bond dismissed. Additional sureties required on bond. Security in a larger amount ordered. Order for new bond, made by court on its own motion, of guardian given. Bond subsequently required of guardian relieved by will from giving one. Guardian removed for failing to file inventory. Order for special account. Order authorizing guardian to loan money, etc. Surety released, new bond ordered. Guardian removed for failing to give new bond. Resignation of guardian accepted. Guardian removed, on removal of ward to another state. Foreign guardian authorized to receive money from ex- ecutor or administrator. S.\LE OF RE.\L ESTA 704. (.Sec. 6282.) 705. (Sec. 6283.) 706. (Sec. 6283.) 707. (Sec. 6283.) 708. (Sec. 6283.) 709. (Sec. 6285.) 710. (.Sec. 6286.) 711. (Sec. 6286.) 23 rE BY GU.\KI)I.\X — Notice of petition ordered. Order for appraisement when there is no dower interest. Order for appraisement in case widow has waived dower by metes and bounds. Order for appraisement in case there is a dower inter- est which the apprai.-clade as from * In Entnj No. 686.] Sec. 6323. See entries relating to guardians of minors. 725. (Sec. 6325.) Order that trustee pay over money to foreign guardian, etc. \_7itle.] On hearing of the petition [or, motion] filed herein by J. K., guardian under the laws of Indiana, of J. L., a minor [or, idiot, etc.], and due notice of the same having been given to the trustee of said J. L , and the court being satisfied, on examination of the exemplified copies of the entries made ])y the court of county, Indiana, in relation to the ap- pointment of said guardian, which were by him produced to the court, that the said .1. K. has authority to receive the money applied for, and that his bond is sufficient to protect the interest of said minor [or, idiot, etc.], it is hereby ordered that C. M., trustee of said minor [or, idiot, etc.], pay over to the said J. K. the money in his hands remaining [or any part of it], belonging to the estate of said J. L., after payment of all proper charges and expenses couuected with his trustee- siiip. Trustees, generally, and their accounting — Sees. 6328-34. Entries may be made similar to entries relating to executors or administrators, as the same laws govexn. 24 366 JOURNAL ENTRIES. CHAPTER IV. INSOLVENT DEBTORS. Voluntary assignments — 727. (Sec. 6335.) Deed of asssignment filed. 728. (Sec. 6.335.) Bond of assignee filed and approved. 729. (Sec. 6335.) Order that assignee give additional undertaking. 730. (Sec. 6336.) Assignee removed for failing to file deed, or give fcond, etc. 731. (Sec. 6336.) One of two assignees allowed to act, on other one fail- ing to qualify. 732. (Sec. 6337.) Resignation of assignee accepted, etc. 733. (Sec. 6337.) Same — and remaining one allowed to execute trust. 734. (Sec. 6337.) Trustee appointed after death, resignation, or removal of assignee. 735. (Sec. 6337.) Additional trustee appointed. 736. (Sec. 6338.) Day fixed for election of trustee. 737. (Sec. 6338.) Trustee chosen by creditors approved and appointed. 73§. (Sec. 6339.) Order for removal of assignee. 739. (Sec. 6339.) Order on application of surety that assignee give new bond. 740. (Sec. 6339.) Assignee removed for failing to give new bond. 741. (Sec. 6344.) Conveyance declared void, and trust administered in the common pleas. 742. (Sec. 6344.) Conveyance declared void in common pleas, and judg- ment certified to the probate court. 743. (Sec. 6344.) Trustee appointed by probate court, etc. 744. (Sec. 6344.) Conveyance to defraud creditors declared void, and judgment certified to probate court — no notice having been given. 745. (Sec. 6.347.) Appraisers of assets of assignor appointed. 746. (Sec. 6348.) Order that homestead exemption be set off. 747. (Sec. 6349.) Order that assignor attend for examination. 748. (Sec. 6350.) Order for sale of real estate. 749. (Sec. 6350.) Order for private sale. 749rt.(Sec. 6350.) Decree of confirmation and distribution. 750. (Sec. 0350. ) Completion of sale made by assignor approved and ordered. 751. (Sec. 63-50.) Judgment for enforcement of contract for sale made by a?- signor. 752. (Sec. 6350.) Order for sale of personal property in usual course of busi- ness. 753. (Sec. 6351.) Decree, in the common pleas, for sale of real estate by as- signee. -6335.] INSOLVENT DEBTORS. 367 754. (Sec. 0352.) Judgment for allowance of rejected claim. 755. (Sec. 6353). Order, on bond filed, that claim be di.sallowed. 756. (Sec. 6356.) Account filed, and day fixed for hearing. 757. (Sec. 6356.) Order ileclaring dividend. 758. (Sec. 6356.) Order for payment of further dividend. 759. Order for payment of claim on which no dividend has been paid. 760. (Sec. 6357.) Extra compensation and attorney's fees allowed, and dividend ordered. 761. (Sec. 6357.) Counsel fee allowed. 762. Order for re-assignment on compromise eflFected. 763. Deed of assignment stricken from files. Assignments to avoid aurkst — 764. (Sec. 6359.) Commissioner of insolvents appointed. 765. (Sec. 6367.) Order tliat debtor enter into recognizance. 766. (Sec. 6367.) liecognizance filed and approved. 767. (See. 6372.) Pay sot for creditors to appear. 768. (Sec. 6372.) Certificate granted to debtor of compliance with in- solvent laws, when no creditor resists. 769. (Sec. 6373 ) Case continued on application of creditor. 770. (Sec. 6376 ) Certificate granted on final hearing. 771. (Sec. 6376.) Petition dismissed on final hearing. 772. (Sec. 6378.) Petition dismissed on default for petition. Voluntary assigniMents — 727. (Sec. 6335.) Deed of assif/nrncnt Hied. [Tlllf.'] A deed of assignment, for the benefit of creditors, exe- cuted by J. E., doing l)usinoss as J. E. & Co., to H. L., was this day, at 1:10 o'clock p. m., filed in this court. 728. (Sec. 6335.) Bond of assignee filed and approved. [Title.-] This day came H. L,, and presented to the court his bond as assignee of J. E., * conditioned according to law, in the sum of $ , with T. S. and W. A. as sureties, which is ap- proved by the court. And the court appoint E. S., E. D., and A. R., three suitable disinterested persons, as appraisers of the property and the assets of the assignor.^ ' By sec. 6347. May be appointed at this time, or subsequently, by a separate entry. See Entry No. 745. 368 JOURNAL ENTRIES. [SEC. 6335- 729. (Sec. 6335.) Order that assignee give additional undertak- ing. [Title.'\ On motion of , and it appearing to the court that the bond of H. L. is insufficient, it is ordered that an additional undertaking be given by the said assignee, in the sum of 730. (Sec. 6336.) Assignee removed for failing to file deed, or give bond, and trustee appointed. ITitle.l On application of , and it appearing to the court that a deed of assignment for the beneiit of creditors was made more than ten days ago by A. S. to R. S., and that such deed has not been filed in this court [or, that the said assignee has failed to give bond], it is now therefore ordered by the court that the said R. S., as such trustee, be removed, and that E. W. be, and he hereby is, appointed trustee in place of said R. S. [and his bond is fixed at | ]. \If bond is given at once, a. clause to that effect may be added to this entry, similar to Entry No. 732. So also any order under sec. 6340, for the delivery of property, may be added.] 731. (Sec. 6336.) One of two assignees allowed to act, on other one failing to qualify. [Title.'] It appearing to the court that a deed of assignment for the benefit of creditors was made more than ten days ago hy A. S. to R. S. and A. J., and that the said R. S. has failed to give bond, it is now therefore, on application, ordered by the court that the said R. S. be removed as sucli assignee, and that A. J., the remaining assignee, having duly qualified as such, be allowed to enter alone upon the discharge of his duties. 732. (Sec. 6337.) Resignation of assignee accepted, and trustee appointed. [Title.] This day came the said R. S., assignee of A. S., and ten- -6337.] INSOLVENT DEBTORS. 369 dered his resignation to the court ; and tlio court being ad- vised in the premises, accepts the same. * And E. W. h hereby appointed trustee in the place of the said I\. S. And thereupon comes tlic said E. "W., and presents his bond as sucn trustee, conditioned according to law, in the sum of $ , with L. E. and J. D. as sureties, which is ap- proved by the court. 733. (Sec. 6337.) Resignation of one assignee accepted, and re- maining one allowed to execute trust. [Title.] As in last to *, and continue:'] — And, it being for the best interest of the estate, it is fur- ther ordered that J. A., the remaining assignee, be allowed to execute the trust alone. 734. (Sec. 6337.) Trustee appointed after death, removal, or resignation of assignee. [Title.] It appearing to the court that R. S., the former assignee of A. S., has died [or, resigned ; or, been removed from his trust], now, on application, W. K. W. is hereby appointed trustee in the place of the said R. S. And thereupon comes the said W. R. AV. and presents his bond as such trustee, conditioned according to law, in the sum of I , with J. E. and T. S. as sureties, which is ap- proved by the court. 735. (Sec. 6337.) Additional trustee appointed. [Title.] This day an application was presented by certain cred- itors of A. S., the assignee herein, for the appointment of an additional trustee. And the court being satisfied that such application is signed by a majority of the creditors in amount, and that good cause exists for such appointment, herebv ap- points R. W. as such additional trustee of the said A. S., and fix his bond at $ . [If bond is at once given, add clause as after Ko. 732.] 370 JOURNAL ENTRIES. [SEC. 6338- 736. (Sec. 6338.) Day fixed for declion of trustee. [Title.'] On petition presented and filed with the court, signed by creditors of C. M., the assignor herein, as required by law, pray- ing permission to elect a trustee to execute the trust, in place of the assignee of the said C. M., the court being satisfied that the said creditors own not less than one thousand dol- lars of the debts of the said C. M., fix Monday, the of day , 18 — , for such election, and direct that notices be sent accordingly, hj mail \or specify other means], to all the creditors of the assignor aforesaid. 737. (Sec. 6338.) Trustee, chosen by creditors, approved and ap- pointed. [Title.] This day came "VV. C, and tendered to the court his bond as trustee of the creditors of A. S., with J. D. and L. E. as sureties. And it appearing from the record of proceedings of a meeting heretofore held by the creditors of said A. S., duly made and signed and filed in this court, that the said W, C. was elected by said creditors in due form of hnv, the court do hereby approve said choice ; and the said AV. C. is hereby appointed trustee of the said A. S. in place of E. S., to whom the assignment was made, who is hereby removed from such trust. And the bond of the said W. C. is hereby approved. 738. (Sec. 6339.) Order for removal of assignee or trustee. [7'itle.] Use form of Entry No. 730, above. 739. (Sec. 6339.) Order, on application of surety, that assignee give new bond. [Title.] Application having been made by W. C, one of the suetiess on the bond of H. L., as assignee of J. E., to be released therefrom, and the court being saitisfied of the reasonable- ness of such request, after full hearing of the cs^se, order that -0344.] INSOLVENT DEBTORS. 371 said IT. L. give a new bond as such assignee, with sufficient sureties, within days, and that thereupon his former sureti(!S be released from furtlior liability. 740. (Sec. 6339.) A-^signce removed/or failing to give new bond. [Tide.] Modify Eiitrij No. 730. Sec. G344. Conveyances to defraud creditors may by this section be declared void at the suit of any creditor, whether he has reduced hi.s claim to judgment or not ;' and, being so declared, the estate will be administered for the benefit of creditors by the court in which the suit is brought, or by the ])rol)ate court, as follows : Where notice of tlu; suit is given as provided by sec. G344, the court of common pleas declaring the conveyance void may administer the trust both as to the creditors who are parties as aforesaid, and as to those who have not come in and been so made parties ;' (»r may cortifv the judgment to the j)rol)ate court. Xo method of administering this trust by the common pleas is ])ointed out, but UKjst likely this court should, in this, f )llo\v the metliod prescribed for the probate court; that is, ai)point a trustee, who shall have the same ])owers as if ap- pointed by the probate court, as ))rescribed in this chapter. This seems to be the only method reaching the creditors who are not {)arties to the suit. It this view is correct, make the entry as fillows: 741, (Sec. 6344.) Conveyance declared void, and trust adniinis- iered in the common pleas court by decree for sale. [Title.] Finding III., page 00, or, if by default, Finding IV., paqe 100, and continue :] — And the court further find that the con- veyance of the property described in the petition was made with intent to hinder, delay, and defraud creditors, as the said plaintiff has in liis petition alleged. It is therefore ordered and adjudged by the court that the said deed of conveyance from R. M. to C. D., of the follow- ing real estate, to wit [describe'], be, and the same is hereby, » Sec. 6344. See also Combs v. Watson, 32 O. S. 228. =" Sec. 6344. 372 JOURNAL ENTRIES, [SEC. 6344- declared void, and to be of no force or effect in law to af- fect the title of the said premises, or to convey the same to the said C. D. [f] And the court further find that notice of the pendency and object of this suit was duly published by the plaintiff, for notification of the creditors of the said R. M., and that E. F. and G. H. have filed answers in this case, and have other- wise complied with the law, as creditors desiring to share in the benefits of this action, and it is therefore adjudged by the court that the property in the petition described be sub- jected to the payment of the debts due to the plaintifif and the other creditors above named, from the said R. M.; and for that purpose * D. W. S. is hereby appointed trustee, with full power allowed by the statute in such cases, to take pos- session of said premises, and to sell the same and administer the proceeds for the benefit of creditors. And it is ordered that the said D. W. S., before entering upon his duties, give bond to the State of Ohio in the sum of $ , to the approval of the court, conditioned for the faithful performance of his duties as such trustee. And thereupon comes the said D. W. S., and as trustee as aforesaid presents his said bond, with C. W. and T. S. as sureties, to the approval of the court.^ Tliis trustee will proceed, as a trustee appointed by the probate court, to recover possession, by action if necessary, of the real estate so fraud- ulently conveyed, and then to sell the same and distribute proceeds un- der direction of the common pleas court. The entries will be so similar to entries of sale, confirmation, etc., in case of sale on forecloseure of mortgage, that separate entries will uot be given here. 742. (Sec, 6344.) Conveyance declared void by tlie coninion pleas court, and judgment certified to the probide court. [Tdle.'] As ill lad lu ^. and. continue :'] — it is ordered by the court 1 This clause approving bond may of course be made as a separate entry. 6346.] INSOLVENT DEBTORS. 373 that a copy of tliis judgment be certified to the probate court of , Ohio, for the appointment of a trustee and further proceedings in administering the property assigned as aforesaid. l_Add amj order as to costs. '\ On tlie certified copy of the above judgment being filed in the pro- bate court, a trustee will be appointed under sec. 6344. Entry may be as follows : 743. (Sec. 6344.) Trustee appointed by probate court, on certified copi/ of last judgment being filed. [Title.-] A certified coyiy of a judgment entered by the court of common pleas of county, Ohio, was this day filed in this court; and it appearing therefrom that said court has declared void a conveyance made by R. M. to C. D. of the following described real estate, to wit [(lescrib(']. And ordered that the same be subjected to the ])ayment of the debts due the plaintifi* and otliei- creditors from the said ]\. M.; thereupon [conclude as from * in Entrg No. 741]. The trustee appointed as above will act under the laws relating to assignees of insolvent debtors in the probate court, in the sale of prop- erty and distribution of proceeds. In case notice of suit is not given, under sec. 6344. If notice is not given as provided by sec. 6344, the judgment de- claring the conveyance void must be certified to the probate court for the appointment of trustees. Make entry as follows : 744. (Sec. 6344.) Conregance declared roid by common pleas, and judgment certified to probate court. [Title.] As in decree No. 741 to [t], and continue:] — And it appearing that no notice of the pendency and ob- ject of this suit was published, for notification of other cred- itors, it is ordered that a copy of this judgment be certified to the probate court of county, for the appointment of a trustee, and further proceedings in administering the prop- erty as aforesaid. [Add order as to costs.] 374 JOURNAL ENTRIES. [SEC. 6347- The entry appointing trustee, in the probate court, may be the same as No. 743, and the trustee will act as the trustee appointed in case of notice given. 745. (Sec. 6847.)- Appraisers of assets of assignor appoiriied} [Title.] The court hereby appoint T. N., E. B., and E. M., suitable and disinterested persons, appraisers of the assets of the as- signor above named. 746. (Sec. 6348.) Order that homestead exemption be set off. [Title.] It appearing to the court that the appraisers herein have failed to set oiF a homestead exemption to the assignor, tiie court order that the same be done by said appraisers forth- with. [Or say, the court hereb}' appoint L. D., J. M., and T. S. as appraisers to set ofi" and assign the same.] 747. (Sec. 6349.) Order that assignor attend for examination. [Title.] iSTow comes , and applies for an order for the examina- tion of the assignor herein; and the court order that F. H. be appointed referee, and that C. N., the assignor, be ordered to appear before said F. H., referee, at his office, No. — , — — street, on the day of- •, 18 — , for such examination. Sec. 63-49. Orders to pi'ovent any fraudulent transfer of prop- erty niu}' be made in form similar to orders of the same kind to be found in other proceedings. The real estate of an insolvent debtor may be sold under proceedings in the probate court, or, in certain cases as pro- vided by sec. 6351 (amended 8*2 O. L. 14), proceedings for sale may be instituted by the assignee in the court of common pleas. 'If appointed when bond is filed, see entry No. 728. -SEC. 6350] INSOLVENT DEBTORS. 374a In the probate court the assignee or trustee appears to have power to sell without a special order in the same manner as in case of personal property, but it is better for him to obtain a decree of court, so that no question may arise upon the title. 748. (6350, 77 O. L. 189.) Order for sale of real estate. [Title.'] C. X., the assignee herein, having made application for an order to sell the [or, certain of the] real estate included in the assignment to hini, and having [)resented to the court the return of the api)raiisers heretofore appointed, the court now, upon examination, find said appraisement in all respects reg- ular, and according to law, and do thereupon approve the same, * and authorize the assignee to sell said real estate, ac- cording to law, at pul)lic auction on the \>vqx\\\?,qa [or any other place (/esignated], for cash [or other terms designated]. If the ioife has asked that the real estate he sold free of her con- ting e7U dower, say : And E. D., the wife of the assignor, having filed her answer asking therefor, it is ordered that said real estate be sold free of her contingent right of dower. If the wife has joined with her husband in a mortgage of the real estate, say : And E. D., the wife of the assignor, having joined with her husband in a mortgage of the said real estate, it is ordered that it be sold free from her contingent right of dower. If the assignor has mottgaged the real estate for paymeid of purchase money, say : And the assignor having executed a mortgage of said real estate to secure the payment of the purchase money, it is or- dered that it be sold free from the contingent right of dower of E. D., wife of the said assignor. 3746 JOURNAL ENTRIES. [SEC, 6350- And it is ordered that the assignee make return of his pro- ceedings to this court. Sec. 6350. For orders for re-appraisement, make entries similar to entries Nos. 294 and 295, page 157. 749. (Sec. 6350, 77 0. L. 189.) Order for private sale of real estate. [Title.'] It being shown to the court that it would be to the advan- tage of the creditors, the assignee is ordered to sell the real estate of the assignor at private sale for not less than two- thirds of its appraised value, and on the following terms, to wit, [iiame terms'] ; and to make return of his proceedings within days. 749a. (Sec. 6350, 77 O. L. 189.) Decree of confirmation and distribution. [Title.] This cause coming on for hearing upon the return of C. N., the assignee, of his proceedings and sale of real estate, the court after careful examination being satisfied that tiie sale has in all respects been legally made, does hereby approve and confirm the same and order that the said C. ^N"., as such as- signee, make to the purchaser, L. M., a good and sufficient deed of the premises so sold free from all liens for all debts due by the assignor (and from the contingent dower interest of E. 1)., the wife of the assignor). And the court coming now to distribute the proceeds of the sale, amounting to $ , find that the mortgage of P. L. is the first lien on the premises sold and that there is due there- on the sum of $ . And the court find that the just and reasonable value of the contingent dower interest of the said E. D. in said real estate, after the payment of tlie mortgag of P. L., hereafter mentioned, is dollars. -SEC, 6350.] INSOLVENT DEBTORS. 375 It is therefore ordered that the assignee pay . First, the costs of the proceeding, taxed at $ . Secondly, to the said P. L. the sum of § , and thirdly, to the said E. D. the sum of § , in lieu of her contingent dower interest, and that the balance of the proceeds, viz. $ , i-einaiii in the hands of the assignee 750. (Sec. 6350.) Completion, by assignee, of sale made by as- signor approved and ordered. [Title?^ This cause being this day heard on application of the as- signee for tlie approval by the court of the completion of a certain contract for sale of real estate made by the assignor above named, and due notice of this hearing having been given to all parties in interest, the court lind tliat X. S., the assignor, did, on the day of , 18 — , enter into a [written] contract with C. F. for the sale and conveyance of the following described premises, to wit \jl€scribe'\; and that [here make finding of any pagrnent or part performance of the contract], * and that there still remains due on said contract from C F. the sum of § , and that he is ready and willing to complete the same. It is therefore ordered and decreed that the said A. E., as- signee, make and execute to the said C. F, a good and suf- ficient deed for the premises above described, and, upon the payment of the said sum of 8 , deliver the same to the said C. F. And it is ordered that the said pay the costs of this proceeding. 751. (Sec. 6350.) Judgment for enforcement of contract for sale made by assignor. [Title.] As in last to *, and continue:] — and that the assignee herein is entitled to the specific execution of the said contract. 376 JOURNAL ENTRIES. [SEC. 6350- It is therefore ordered and decreed that upon full payment being made by the plaintiff', assignee as aforesaid, [or state specifically what he is to do'], the said C. F. do within days from the date of this decree, convej- the premises in the peti- tion described to the plaintiff, as such assignee, by good and sufHcient deed; and that in default thereof this decree have the same operation and effect as said deed. \_u4.d<.i order as to costs.] Orders for the private sale of personal property may be made similar to entry !No. 748, and a sale for less than two-thirds of the appraised value may he ordered, for which modify entry No. 603. For order that sale be at public auction, after j^ersonal property failing to sell at private sale, modify entry JNo. 604. 752. (Sec. 6350.) Order that assignee sell fersonal property at private sale in usual course of business. [Title.] On application of the assignee herein, and for good cause shown, it is ordered by the court that said assignee proceed to sell the goods assigned to him at private sale, in the usual course of business, at not less than two-thirds of theappraised valne thereof, and continue until further order of court. For order that the assignee compromise or sell desijerate claims, modify entries Nos. 605-7. 753. (Sec. 6351, 82 0. L. 190.) Decree, in common 'pleas court for sale of real estate by assignee. [Title.] And now this cause came on to be heard upon the petition of A. B., assignee of A. C. [state pleadings or default according to facts, and continue :] The court further find that the plaint- iff, as assignee of A. C, as in his petition set fourth, is entitled -6352.] INSOLVENT DEBTORS. 377 to have the real estate described in the petition sold, in this court, by reason of its being incumbered with various liens. And the court find, upon the petition of the phiintiff and the cross-petition of the defendant, E. F., and the evidence, that tlie mortgage set up in the cross-petition of the said E. F. was duly executed and delivered to said E. F. by the said A. C. and M. C, his wife, and that tlie same was duly re- corded in IJook , i»agu — , of the Records of Mortgages of county, and that it is the lirst and best lien on the })remises in the [letition described ; and that there is due on said mortgage, with interest to the first day of this term, the sum of $ . And the court further find [make findings, similar to last, upon each lien.'] It is therefore oi'dered that said premises be appraised, ad- vertised, and sold, as n\)on execution, free from all del;ts due from the assigiioi", and tree from the contingent dower inter- est of the said E. I).,' and that an order of sale issue there- fore to A. I>., the assignee of A. C, and dii-ecting him to bring the proceeds of said sale into this court for further order. The sale must be confirmed, the assignee ordered to make a deed, and tlio monoy bii distributed as on foreclosure of a mortgage. For such decree, modify entry No. T-tOa. 754. (Sec. 6352.) Judgment for allowance of rejected claim. [Title.'] Finding III., page 99, or, if by default, Finding 1 V., page 100, and continue-] — The court further find that the claim of the plaintiff" against the estate of the said E. F. is just, and that he is entitled to have the same allowed in the sum of dollars. It is therefore considered and adjudged that the said de- 'As to when this provision should be inserted see sec. 6350, 77 O. L. 189. 378 JOURNAL ENTRIES. [SEC. 6353- fendant, C. J)., as assignee of the said E, F,, allow the said claim of the plaintiff, as above found, in the settlement of his trusts. It is further considered that the said recover from the said his costs herein expended, taxed at ^ . 755. (Sec. 6353.) Order, on bond filed, that claim he disallowed [ntle.] This day came , and filed in this court a written requi- sition on the assignee to disallow the claim of J. F., in the sum of dollars, and also filed a bond to the assignee in the sum of dollars, conditioned according to law in such cases, with J. X. and L. A. as sureties, which is approved by the court ; and thereupon it is ordered by the court that the assignee disallow the said claim. 756. (Sec. 6356.) Account filed, and day fixed for hearing. [Title.] This day came the assignee, and filed his first \_or othe)^], par- tial [or, his final] account. And the court fix the day of , 18 — , for hearing of the same. Sec. 6356. For entry of account allowed, modify Entry No. 652 or 653. For allowance after exceptions filed, modify Entry No. 654. For account disallowed, modify Entry No. 655. 757. (Sec. 6356.) Order declaring dividend. [Title.] On motion of the assignee, and it appearing that he has in his hands for distribution among the unsecured creditors of H. S. & Co. the sum of § , and that the allowed claims of such creditors amount to § , it is ordered that the as- signee declare and pay to said creditors a first [and final] dividend of per cent, on the amount of their claims, re- spectively. [If riotice in addition to the usual way is ordered add it here.] 758. (Sec. 6356) Order for jjayment of further dividend. [Title.] It is herebv ordered that C. R., assignee, declare and pay -6357.] INSOLVENT DEBTORS. 37S a further dividend of two per cent on all claims which have been proved and allowed against the estate of the abova- jianu'd assignors. 759. Order for payment of claim on which no dividend has been paid . \Tdle.\ It appearing to tlie conrt that E. J. has presented a claim, duly verified, to- the assignee, amounting to $ , on which ho lias received no dividend, it is ordered that the assig-nee pay to the said E. J., on account of the same, any moneys in his hands, or that may come into his hands, not otherwise required, not exceeding the percentage paid to other cred- itor?^. 7G0. (Sec. 0357.) Extra compensation and attorney's fee al- alloiced, and dividend ordered. [Title.-] Upon application nnulc by II. L.. assignee, supported by his sworn statement on tile, it is now ordered that he be, and hereby is, allowed the sum of dollars, as extra compen- sation for services as assignee, in addition to the statutory allowance for ordinary services. It is further ordered that the sum of dollars be paid as counsel fee by said assignee [in addition to payments be- fore made], as set forth in said affidavit, said payment to be in full for services to be rendered in the matter of said es- tate hereinafter. Said assignee is now authorized and directed to declare and pay a iinal dividend of said estate, embracing the whole amount remaining in his hands after paying the costs of the assignment, said dividend to be declared within thirty days from this date. 761. (Sec. 6357.) Counsel fee allowed in assignment case. [Title:] This cause coming on for hearing upon the application of G, n., assignee, for allowance of S , to be paid to him as counsel fee, the court being fully advised, tind that he is en- titled thereto, and allow the said claim. 25 380 JOURNAL ENTRIES. [SEC. 6357- 762. Order for re-assignment on compromise effected. {Title.'] On motion, and it appearing to the court from the vouch- ers filed herein, and from the affidavit of the assignor, also filed herein, that the claims of all the creditors of said as- signor have been fully satisfied by compromise or settlement, it is hereby ordered and directed that said assignee, F. AV., re-assign and re-convey to said F. G. the property conveyed by the deed of assignment herein ; and this entry, in default thereof, shall stand for and have the force and effect of such assignment. 763. Deed of assignment stricken from files. {Title.'] This cause coming on to be heard on the citation against "W. C, the assignee herein, to show by what authority he claimed to act as assignee of said F. W., and to show cause why the deed of assignment to him should not be stricken from the files, and it appearing to the court, from the evi- dence and proofs, that those who were creditors at the date of such assignment have been fully paid and satisfied, and that there are now no creditors wlio have any rights un- der said deed, and that said deed was wrongly filed, it is hereby ordered that said deed be stricken from the files of this court, and returned to said F. W.; and the bond filed by said W. C. is hereby canceled and ordered to be returned to him. Assignments to avoid arrest — 764. (Sec. 6359.) Commissioner of insolvents appointed. In the matter of the appointment ^ of C. D. to be commissioner > of insolvents. j C. H. is hereby appointed commissioner of insolvents for this county, for the term of three years from the date of this entry, and his bond is fixed at $ . And now comes the said C. II., and presents his bond, con- ditioned according to law, in the sum of $ , with L. E. and E. S. as sureties, to the approval of the court. -6372.] INSOLVENT DEBTORS. 381 705. (Sec. 6367.) Order that debtor enter into recognizance. [Title.] On application, and good cause shown, it is ordered by the court that Yj. L., the petitioner herein, enter into a recogni- zance to the State of Ohio, with sufficient security, condi- tion-ed that he will appear at the proper time and prosecute his said petition, filed herein, and abide the order of the court thereon. When the recognizance is filed, record its approval as follows: 766. (Sec. 6367.) Becognizance filed and approved. [Title.-] Now comes E. L., and enters into recognizance, as re- quired by tho order of court in this case, with W. P. and C. W. as sureties, to the approval of the court. 767. (Sec. 6372.) Day set for ci'editors to appear. ['Jitlc] Petition for relief under the law relating to insolvents be- ing filed herein, the court set tlie same for hearing on the day of , 18 — ; at which time it is directed that the creditors of the said E. L. be called. 768. (Sec. 6372.) Certificate granted to debtor of compliance with insolrent lairs, when no creditor re- sists. [Title.] This day the petition herein came on to be heard, and the court being satisfied that notice as required by law has been given of this application, and no cause [or, no suffiicient cause] being shown to" the contrary, the court * grant to the said E, L. the relief prayed for, and [upon his paying the costs herein adjudged] ^ a certificate of his having complied with the law relating to insolvents, and of his being released from liability to arrest on account of any debt or claim named in his schedule of debts. 1 Bv sec. 6377. 882 JOURNAL ENTRIES. [SEC, 6373- Aiid it is adjudged that the said petitioner pay the costs of this proceeding and the costs before the commissioners, and execution is awarded.^ 769. (Sec. 6373.) Case continued on applicntion of creditor. [Title.] On calling this case for hearing, G. D., one of the credit- ors, desiring a further examination of the petitioner to be made, the case is continued for that purpose to the day of , 18 — , at 10 o'clock a. m. And it is directed that such further examination be made, as provided by law, be- fore the commissioner [or other person named]^ and that the petitioner attend at his office for that purpose on the day of , 18 — . 770. (Sec. 6376.) Certificate granted on final hearing. [Title.'] This cause came on for final hearing this day upon the pe- tition, the written examination of the petitioner, read in evi- dence, and the testimony of witnesses. And on full consid- eration thereof the court * [conclude as from * in Entry JSo. 768]. 771. (Sec. 6376.) Petition dismissed on final hearing. [Title.] As ill last t'l *, and conclude:] — dismiss the petition of the said E. L. ; and it is adjudged that he pay all the costs herein that have accrued on his behalf.^ 772. (Sec. 6378.) Application dismissed on default for petition. [Title.] " ' The applicant herein having failed to file his petition within the time required by law, his application to be released from liability to arrest under the law relating to insolvents is hereby dismissed, and it is adjudged that he pay the costs of this proceeding. » By sec. 6377. -G408.] GENERAL PROVISIONS. 383 CHAPTER VTI. GENERAL PROVISIONS. 775. (Sec. 0402.) Notice of filing accounts ordered. 776. (Sec. 6402.) Publication of riotice.s approved. 777. (Sec. 6408.) Notice of appeal from probate to common pleas court. 778. (Sec. 6408.) Bond for appeal filed and approved. 779. (Sec. 6410.) Judgment in common pleas on appeal. 780. (Sec. 6413.) <,)rder for investment of money pending suit, etc. 775. (Sec. 6402.) Notice of filing accounts ordered. [Title.'] The following accounts having been filed in this court, it is ordered that notice thereof be published in the Cincinnati Daily Gazette, and that they will be for hearing on the day of , 18 — [i(Ot less tJiaii three veeks from day of pub- lication']. Which said accounts are as follows, to wit : Account current of E. T., executor of C. D., deceased. Final account of C. B., guardian of C. D., a minor, etc. etc. 77(>. (Sec. 6402.) Publication of notice approved. [Title.-] This day proof of publication of notice of filing accounts and vouchers of administration [or, guardianship, trustee- ship, or, of proceedings in assignment] was made, and the court hereby approve the same, and order the notice afore- said to be entered upon the journal of the court in full ; said notice is as follows, viz. : [Copy notice in fidl.] Sec. 6408. Notice of appeal, from the probate court to the court or common pleas, may be given by adding to the entry appealed from, or making a separate entry, as follows : 384 JOURNAL ENTRIES. [SEC. 6408- 777. (Sec. 6408.) Notice of appeal from probate to common pleas court. I^ow comes the , and gives notice of his intention to appeal this case to the court of common pleas. And in 'proper cases add ;] — And the court fix the appeal bond at ^ . 778. (Sec. 6408.) Bond, for appeal, filed and approved. [Title.] ^ow comes the herein, and gives his written under- taking, as provided by Jaw, tor the appeal of this case to the court of common pleas, in the sum of $ , with W. P. and C. E. as sureties, which undertaking is hereby approved by the court. Sec. 6410. For a general form to be used iu entering judgments in the common pleas, on appeal from the probate court, the following may be used. 779. (Sec. 6410.) Judgment in common pleas, on appeal from jyrohate court. [Title.] This cause came on this day to be heard, and was submit- ted to the court on the transcript from th*^ probate court of this county, the original papers in the case, and the evidence; and, on consideration thereof, the court find [inakc finding and judgment as if the case had begun in the comnion i^leas, and con- clude as follows :] — It is further ordered that the clerk of this court make out and file in said probate court a transcript of the proceed- ings and judgment herein. 780. (Sec. 6413.) Order for administrator to invest money vend- ing suit, etc. [Tide.] It appearing to the court that T. H., the of , has in his hands the sum of $ , to await the determination of -6418.] Al'I'ROPIUATION OF PROPERTY. 385 case No. , Superior Court of Cincinnati, wherein W. II. is plaintiff and li. S. defendant, and the further order of this court, it is herehy ordered that said invest said sum in [vame securities], and hold them until further order of the court. CHAPTER VITI. APPROPRIATION OF PROPERTY. 781. (Sec. G418.) Time for hearing fixed. 7S2. (Sec. 0419.) ( >rfler directing service by i)ublication. 78;;. (Sec. G42I).) Preliminuiy f|uestions determined, and jury ordered. 784. (Sec. 6428.) Writ i.ssued for view of premi.ses. 785. (Sec. G432.) Entry of further hearing, and verdict. 78('i. (Sec. 0432.) Jury impaneled, and verdict rendered. 787. (Sec. 0432.) New trial granted. 788. (Sec. 6432.3,) Judgment on verdict. 789. (Sec. 6434.) Order tliat corporation make payment or deposit. 790. (Sec. 6434.) Judgment against corporation on its failure to make l)ayment. 791. (Sec. 6438.) Judgment aflirmed, on error, by the court of common ])leas. 792. (Sec. 6438.) Judgment revers(>d, on error, and case retained for trial in common pleas. 793. (Sec. 6441.) Attorney appointed to attend proceedings for non-resi- dent, etc. 794. (Sec. 644t).) Judgment by the court against former company's own- ership of abandoned road-bed. 79.J (Sec. 644t).) Judgment by the court in favor of defendant's owner- ship, etc., and jury ordered. 796. (Sec. 6446.) Judgment on verdict against former company's owner- ship, etc. 797. (Sec. 6446.) Judgment on verdict finding that defendant has inter- terest, etc., and assessing damages. 798. (Sec. 6449.) .Tudgment on verdict against a corporation occupying land before appropriation. 781. (Sec. 6418.) Time for hearing fixed. [Title.] The court iix the day of , 18 — , for the hearing of this cause. 386 JOURNAL ENTRIES. [SEC. 6419- 782. (Sec. 6419.) Order directing service by imhlication. [Title.'] It being made to appear to the satisfaction of the court, upon evidence, that the residence of the defendant, J. B., is beyond the Sate of Ohio \or, is unknown], it is now or- dered that service by publication be made against the said J. B., in accordance with the provision of sec. 6419 of the Revised Statutes of Ohio. 783. (Sec. 6420.) Preliminary questions determined, and jury ordered. [Title.] This cause coming on for hearing, and being submitted to the court upon the evidence produced, the court find that the defendants have been duly served with process and are pro}>erly before the court; and further find that the plaintiff is a corporation, as averred in the petition lierein, that it has the legal right to make the appropriation prayed for in the petition, and that the same is necessary, and that plaintifiJ" is unable to agree with the defendants as to the compensation to be paid for the property sought to be appropriated herein [to all of which the defendant, J. II. B , excepts]. * It is therefore ordered that to assess compensation for said property, herein sought to be appropriated, a jury be impan- eled, according to law, and that said jury come on the day of , 18 — , at 10 o'clock a. m., which time is hereby fixed for the impaneling of the same. 784. (Sec. 6428.) Writ issued, for view of premises. [Title.] As in No. 786 to *, and continue:] — And on motion of a w^rit was issued to the sheriff' for a view by the jurors, in the presence of W. D. and C. L., of the premises souglit to bo appropriated, returnable, ac- cording to law, Thursday, September 15, 1882, at 10 o'clock A. M., to which time tliis cause is now adjourned. -6432.] APPROPRIATION OF PROPERTY. 387 785. (Sec. 6432.) Entry of further hearing^ and verdict. [r;tic.'\ This day again came the parties hereto and their attor- neys, and also the jury heretofore impaneled and sworn, and the hearing proceeded. [Conclude as front * in Entry No. 786]. 786. (Sec. 6432.) Jury impaneled, and verdict rendered in ap- propriation. [Tille.] This cause came on this day to be heard, and the parties and their attorneys appeared, and also the following named jurors, heretofore summoned herein, viz., A. "W. [?(fl?r/c], and the panel not being complete, it was ordered that the sher- iff fill the vacancies with talesmen ;^ and therefore S. W. and R. T. were called, and the panel was complete. And each juror being interrogated as to whether he was in any way interested, either as owner or agent, or otherwise, in the prop- erty sought to be condemned and appropriated,' and each answering in the negative, and neither party excepting thereto, the said jurors were duly sworn. * And thereui)on, after hearing the testimony of witnesses, argument of counsel, and cliarge of the court, the jury, after due doliberation, returned their verdict in writing to the court as follows, to wit : '•'• We, the jury, in tliis proceeding, assess the compensa- tion to be paid l)y the plaintiff, the Company, to the owner or owners of the lot of land described in the petition as lot "A,'* by reason of the appropriation of the same to the use of the said plaintiff, irrespective of any improvement pro- posed Ity said corporation, at dollars. A. G. M. T. G. II. etc. etc. A. C, Foreman." . 787. (Sec. 6432.) New trial granted. [Title.] On motion of the , and for good cause shown, a new trial is granted in this case. 1 By sec. 6425. 388 JOURNAL ENTRIES. [SEC. 6432,3- 788. (Sees. 6432,3.) Jugdment on verdict. [Title.-] Tlie jury herein having assessed the amount of compensa- tion in this case to be paid to the owner or owners of the premises described in the petition as lot "A," by reason of the appropriation of the same to the use of the plaintiff at dollars, * it is now therefore adjudged that said verdict be confirmed, and that said plaintiff, upon payment of the amount of said verdict, and of all costs due from them,' shall be entitled to take possession of and hold the prem- ises aforesaid, with all rights and interests thereto belong- ing and appertaining, for the uses and purposes for which the appropriation was made ; and all necessary process to put said plaintiff in possession of the same is thereupon awarded. 789. (Sec. 64-34.) Order that corporatioii make payment or de- 2)osif. [Title.] On motion of the defendant, E. F., and it appearing that the plaintiff herein has failed to make payment or deposit of the amount of the verdict rendered herein, it is now or- dered that the said plaintiff pay or deposit such sum, to- gether with costs, as required by law, within thirty days from this date, or then be held and considered to have aban- doned the said property so appropriated, and all claims thereon, under this proceeding. 790. (Sec. 6434.) Judgment of/ainst corporation on its failure to make -payment. [Title.] The plaintiff herein having failed to make payment of the amount of the verdict rendered in this case, in favor of the defendant, E. F., it is now ordered that said plaintiff be considered to have abandoned the property so appropriated, and all claims thereon, under this proceeding. And the court now on evidence offered find that the costs and ex- 1 As to costs, see seo. 6451, and in case a deposit for the property has been made and not accepted, see sec. G452. -6446.] APPROPRIATIOX OF PROPERTY. 389 penses incurred by tlie suid E. V., including time spent and attorney fees, in this beluilf, amount to dollars. It is tlierefore considered and adjudged that the said E. F. recover from the said plaintiff the said sum of $ , and execution is awarded therefor. 791. (Sec. 6438.) Jiu/gment affirmed, on error, by the court of common pleas. [Title.] Use form of Entry No. 821 or 822, jyaye 402. 792. (Sec. 6438.) Judgment reversed, on error, and case retained for trial in the court of common pleas. [Title.] Use form of Entn/ No. 826, par/e 404. Sees. 6438-40. On trial in the corainou pleas, the forms of entries will be substantially the sumo as in the probate court. 793. (Sec. 6441.) Attorney appointed to attend proceedings for non-resident, etc. [Title.'] E. F., one of the parties in interest herein, not having ap- peared in these proceedings by agent or attorney [or other cause may be stated'], the court hereby appoints II. A. attor- nev to attend upon these proceedings in behalf of the said e.'f. Sec. 6443. Order for investment may be similar to Entry No. 780. Sec. 6445. The action here provided for may by sec. 6447, as amended 79 O. L. 65, be prosecuted in the probate court, court of common pleas or superior court. And by sec. 6446 the quc^stion of the former company's ownership of the abandoned road-bed. may be determined b}" the court on an issue of law, or by the jury on an issue of fact. 794. (Sec. 6446.) Judgment by the court against former com- pany's oionership of abandoned road-bed. [Title.] . As in entry No. 783 to *, and coiitinue:] — The court further find that the defendant, the com- 390 JOURNAL ENTRIES. [SEC. 6446- pany, is not entitled to the ownership of, and has no interest in, the road-bed sought to be condemned in this case. It is therefore adjudged by the court that the claim of said com- pany to said road-bed be forever quieted as against this plaintiff; and that they pay the costs of this proceeding. [Conclude, as to other defendants, as from * in Entry No. 783.] 795. (Sec. 6446.) Judgment by the court m favor of defendant^ s ownership of abandoned road-bed, andjaiy ordered. {Title:] Entry may be made as in No. 783 to *, and co7iti7iue :] — The court further find that the defendant, the W. W. V. R. R. Co., has an interest in the road-bed sought to be condemned in these proceedings. [Conclude as from * in Entry No. 783.] For entry on return of verdict, modify Entry No. 786. For judgment on the verdict, modify Entry No. 788. Or, by sec. 6446, the question of the ownership of such road-bed, if a question of fact, may be determined by a jury. Make the pre- liminary finding as in Entry No. 783. For entry on verdict returned, modify No. 786. Judgment on the verdict may be as follows : 796. (Sec. 6446.) Judyment on verdict ayainst former compa- nies ownership) of abandoned, road-bed. [Title:] The jury herein having at a former day of this court found that the defendant, the Company, has no interest in the road-bed sought to be condemned by the plaintiff. It is therefore considered by the court that the claim of said defendant to said road-bed be forever quieted as against this plaintiff, and that said plaintiff recover from said de- fendants its costs herein expended. » But if the jury find that the company claiming the road-bed has an iuterest in it, and assess the compensation due tliem on account of its appropriation by the plaintifi", judgment on this verdict may be as follows : -6458.] APPROPRIATION OF PROPERTY. 391 797. (Sec. 6446.) Judgment on verdict finding that defendant has interest in road-bed, etc., and assessing compensation. [Title.'] The jury herein having found that the company has an in- terest in the road-bed sought to be condemned in these pro- ceedings, and having also assessed the amount of compensa- tion to be paid to the said Company at $ , by reason of the appropriation of tlie same to the use of tlie plaintitf [conclude as fro)ii * in No. 788]. Sec. 6449. The entry of verdict may be in the same form as Entry No. 786. The judgment on the verdict as follows: 798. (Sec. 6449 "^ Judgment on verdict against a corporation oc- cupyivq land before appropriation. [Title.'] As in Enlrg No. 788 to *, and continue :] — It is therefore considered by the court that the plaiutitf herein recover from the said Company the said sum of § , and his costs herein expended, and execution is award(>d therefor. Sec. 6450. The injunction proceedings and entries will be the same as in other cases. 392 JOURNAL ENTRIES. MISCELLANEOUS. Adoption ok infants. Insane person. Justices of the peace. Partneksiiips. ADOPTION OF INFANTS. 800. Next friend appointed. 801. (Sees. 3137-9.) Order for adoption. It is the custom with the Probate Court of Hamilton County to ap- point a next friend for the infant, when it has no parent or guardian, who, on being satisfied that the proposed adoption will be for the bene- fit of the child, shall sign the consent thereto. 800. Next friend ajrpointed. [Title.] It appearing to the court that the infant, L. F., whom D, W. and A. W. propose to adopt, has neither father, mother, nor guardian [or, has been abandoned by its father and mother], L. W. is hereby appointed next friend for said in- fant to act instead of a parent in the matter of said adop- tion. 801. (Sees. 3137-9.) Order for adoption. [Title.] It appearing to the court from the petition of D. W. and A. W., his wife, inhabitants of the State of Ohio, that they desire to adopt L. F., a minor child, not theirs by birth, and that the name of said child may he changed to L. W., said child being four years of age on the 31st of December, 1881 ; and said petitioners having produced the written consent of to such adoption, and the court having examined the said A. W., wife of said I). AV., separate and apart from her said husband, and being satisfied that she consents to such adop- INSANE PERSON — JUSTICES OF THE PEACE. 393 tion of her own free will and accord, and desires the same; and being satisfied that said petitioners are of sufficient ability to bring up and educate such child properly, and of the fitness and propriety of such adoption, it is hereby or- dered and declared that from this date said child, to all legal intents and purposes, bo the child of the petitioners, and that the name of such child be chano-ed as above named. INSANE PERSON. 802. (Sees. 704 and 740.) Insanit'j found. [Title.'] This cause coming on this day to be heard upon the affi- davit of ]\[. S. and the testimony of witnesses, the court be- ing fully advised in the premises, find the said S. C. to be in- sane, and order her committed to asylum. CHAPTER IX. JUSTICES OF THE PEACE. 803. (Sec. 568.) Order increasing number, in township. 80-t. (Sec. 572.) Citation, and freeholders appointed in case of contes 805. (Sec. 573.) .Judgment on decision of freehokiers. 803. (Sec. 568.) Order increasing number of justices, in town- ship. In re increasing number^ of justices in V township. j It appearing to the court, by the petition of M. B. L. and other residents of township, in this county, that there is not a sufiicient number of justices of the peace in said town- ship, and that public notice has been given, according to law, of this application, the court now, upon full considera- tion of the matter, and it seeming just and proper, it is now ordered that there be one more justice of the peace added to said township. A similar entry may be made for decreasing the number of justices. 394 JOURNAL ENTRIES. 804. (Sec. 572.) Citation, and freeholders appointed, in case oj contest. ITitle:] This day came E. D., a candidate at the last election for justice of the peace in township, county, Ohio, and gave notice, according to law, of his desire to contest the election of E. S., declared elected to said office. And there- upon a citation is issued for the said E. S. to appear on tl;o day of , 18 — \i)ot wore than fifteen dans from the dan of election'], at the office of the probate judge in this county, for the hearing of the matter. And the court appoint W. R. W., M. H., and L. E., three respectable freeholders of the county, not residents in the said township, to try sucli contest, on the day above named ; and summons is directed, returnable accordingly. 805. (Sec. 575.) Judgment on decision of freeholders. [Title.'] This day this cause came on for hearing, and was fully heard on the testimony of witnesses, and was argued by counsel ; and, after due consideration, the freeholders here- tofore appointed by the court signed and sealed their de- cision in the matter, and the same was duly attested by the court; which decision is as follows, to wit [copy decision]. It is therefore adjudged by the court that pay the costs of this proceeding [and, in case the contestor is to pay costs, add'] : and execution is awarded.^ PARTNERSHIPS. Duties and rights of surviving partner — 800. (Sec. 3167.) Appraisers of assets appointed on application of sur- viving partner. 807. (Sec. 316S.) Same — on application of executor or administrator. 808. (Sec. 3107.) Inventory and appraisement returned and filed. 809. (Sec. 3169.) Assets of firm taken by surviving partner. 1 By sec. 578. partnerships. 395 Duties and riguts of surviving partner — 806. (Sec. 3167.) Aj)praisers of partnership assets appointed on application of surviving partner. [Title.] Oil application of L. F., surviving [lartner of the firm of M. and F., of which firm L. F. was a member, the court ap- point 'I\ J\., S. B., and M. I), as appraisers, to make, under oatli, an inventory and appraisement of the assets and lia- bilities of the late partnership aforesaid, and return the same to this court. 807. (Sec. 3168.) Same — on application of executor or admin- istrator. [Title.] L. F., the surviviiii>- partner of the decedent herein, hav- ing neglected [or, refused] to liavc an inventory and appraise- ment made of the partnership assets, the court now, on the application of E. T., the executor [or, administrator] of C. !M., appoint T. K., S. B., and M. D. as appraisers, to make a complete inventory and appraisement of the assets and liabilities of the late firm of M. & F., and return the same to this court. 808. (Sec. 3167.) Inventory and appraisement returned and Med. [Title.] This (lay came L. F., the surviving partner of the firm of M. & F. [or, E. T., the executor, or, administrator of C. M., deceased], and returned his inventory and appraisement of the assets and liabilities of the late firm of M. & F., and the court, on consideration thereof, find the same in all respects correct and conformable to law, and hereby approve and con- firm the same, and direct that it be filed. 809. (Sec. 3169.) Assets of firm taken by surviving partner. [Title.] The appraisers, heretofore appointed by the court, having returned their inventory and appraisement of the assets and liabilities of the late firm of M. & F., now comes the said L. F., the surviving partner, and elects to take the assets at 26 396 JOURNAL ENTRIES. their appraised value, viz., dollars, after first deducting- the debts and liabilities, in the sum of $ . And it ap- pearing to the court that the executor \_07% administrator] of the said C. M., deceased, consents thereto, and that said L. F. tenders his promissory note therefor, according to the stat- ute, with J. R. and L. E. as sureties [or name any other secur- ity], and also tenders his bond for the payment of tho debts and liabilities of said firm, with R. D, and R. C. as sureties, both of which securities arc approved by the court, the court hereby approve of the taking of said assets, and authorize the immediate transfer of the personal property to the said L. F., and order that upon said notes and liabilities being paid in full the executor [or, administrator] of the said C. M. execute and deliver to him a deed of the interest of the said C. M. in the real estate beJoMe;!?^ to said firm. JURISDICTION AND PROCEDURE IN ERROR. 397 TITLE IV. ERROR, MANDAMUS, AXD QUO WARRANTO. ClIAF. 1. JlKlSUlCTlON AND PROCEDURE IN ERROR. II. Mandamus. III. Quo Warranto. CPIAPTER I. 810. 811. 812. SI, 3. 814. 815. 810. 817. 818. 819. 820. 821. 822. JURISDICTION AND PROCEDURE IN ERROR. (Sec. 6716.) Order for substitution of copies, etc. (Sec. 6718, etc.) Order fixing amount of bond. (Sec. 6719. (Sec. 6722. (Sec. 6725. (Sec. 6726. (Sec. 6726. Reversal and decree for sale. (Sec. 6726. (Sec. 6726. (Sec. 6727. (Sec. 6730. (Sec. 6730. Order approving bond — when done by court. Leave to proceed in e.xecution, notwithstanding bond. Order staying execution of judgment below, in certain. cases. Reversal, and judgment in reviewing court. Reversal for error of court below in refusing a new trial. Reversal, and cause remanded for judgment. Reversal, and cause remanded for further proceedings. Reversal in part, and affirmance in part. Affirmance, with penalty. Affirmance, without penalty. Diminution of record — 823. (Sec. 6731.) Order for complete transcript. Error in judgment op a justice — 824. (Sec. 6732.) Judgment affirmed, and certified back. 825. (Sec. 6732.) Judgment affirmed, and execution in common pleas awarded. 826. (Sec. 6733.) Judgment reversed, and case retained. 827. (Sec. 6733.) Judgment reversed for want of jurisdistion of justice. 398 JOURNAL ENTRIES. [SEC. 6707- Old chax(;ery cases — 828. (Sec. 6738,9.) Order, in vacation, for stay of proceedings, etc. Mandates, and the entering thereof in the court BEi.em' — 829. Judgment in obedience to a mandate, etc. 810. (Sec. 6716.) Order for substitution of copies, etc. [Title.'] It appearing that the original papers and pleadings in this case, tiled in this court, are needed in the court below, for purpose of record, it is ordered that copies thereof be made by the clerk, and filed in place of said originals, and that the originals be returned to the court below. 811. (Sees. 6718; 2, 3, 4, and sec. 6724.) Order fixing amount of bond. [Title.-] It is ordered that the undertaking for the stay of execution in this case be given, according to law, in the sum of dollars. 812. (Sec. 6719.) Order approving bond — when done by the court. [Title.] Now comes the , and presents his undertaking for stay of execution in this case, with F. G. and II. I. as sureties ; which said undertaking and sureties are hereby approved by the court. 813. (Sec. 6722.) Leare to proceed in execution, nottoithstanding bond. [Tdle.] Now comes the said A. B., and makes application to the court for leave to enforce his judgment heretofore obtained herein, notwithstanding the undertaking of the said defend- ant, and presents his bond therefor, conditioned according to law, in the simi of $ , with E. F. and J. D. as sureties, to the approval of the court ; and thereupon the said A. B. is allowed to enforce his said judgment. -6726.] JURISDICTION AND PROCEDURE IN ERROR. 399 H14. (Sec. 6725.) Order staying execution of judgment below, in certain cases. [7ille.] On application of the plaintiff in error herein, it is hereby ordered that execution of the judgment [or, final order] of the [name court hclouf\, for the reversal of which the petition in this case was filed, be stayed until the final hearing of the cause in this court [or less time'\, u[»on plaintiflT giving bond to ' in the sum of dollars, to the effect that [name conditions], with sureties to the approval of this court. [Add any other conditions imposed by the court.'] 815. (Sec. 6726.) Recersal, and judgment in revieioing court. [Title.] This cause came on for hearing upon the petition in error, the transcript, and the original papers and pleadings from the [name court'\, and was argued by counsel ; and, on considera- tion thereof, the court find that there is error ajiparent upon the record in the proceedings of said court, to the prejudice of the plaintiff" in error.- * It is therefore considered by this court that the judgment rendered by said court below be reversed and held for naught. And the court. further proceeding to render such judgment as the said court ought to have rendered, find,^ etc. It is therefore considered,^ etc. It is further ordered that a special mandate be sent to the [name court below'] for the execution of this judgment. ' Name the adverse party. ''To justify the reversal, the record must not only show error, but that it was \p the prejudice of the party seeking to take advantage of it. Ohio Life Ins. and Trust Co., 10 Ohio St. 557; Banning r. Banning, 12 Ohio St. 437 ; Bear v. Knowles, 36 Ohio St. 43. 'The finding and judgment in the reviewing court will be in the same forms as an original finding in the common pleas, including costs, by sec. G727. As to rendering the judgment which the court below ought to have rendered, see Columbus, etc., R. Co. v. Simpson, 5 Ohio St. 251 ; Etna Ins. Co. r. Church, 21 Ohio St. 492; Emery's Sons v. Bank, 25 Ohio St. 360; Stivers v. Borden, 20 Ohio St. 232. 400 JOURNAL ENTRIES. [SEC. 6726- 816. (Sec. 6726, 82 O. L. 38.) Reversal for error of court below in refusing a new trial} ITitle.'l As in last to *, and continued] — in this, to wit, that the said \imme courf] refused to the plaintiff here a new trial on his motion therefor. It is therefore considered by this court that the judgment rendered by said court ')elow be reversed and held for naught, and that [the venlict rendered by the court below be set aside, and that] a new trial be granted to the in said court; and that the plaintiff in error recovei- his costs heroin expended from tlie defendant in error ; and that a special mandate be sent to the court foi- the execution of this judgment. 817. (Sec. 6726, 82 O. L. 38.) Reversal, and decree for sale. ITitle.'] As in decree No. 815 to *, and continue i] — It is therefore considered by this court that the judgment rendered by said court below be reversed and held for naught. And the court further proceeding to render such judgment as the said court ought to have rendered, find, etc. [Let the decree for sale be in the usual form, except that instead of the order for the sheriff to report his proceedings to this court, order : — that he report his proceedings to the Court of Common Pleas of County for further order.] - It is further ordered that a special mandate be sent to said common pleas court for the execution of this judgment and decree.'^ ^ Where the only question before tlie court of error is as to the error of the court below in overruling a motion for a new trial, and when the party was not entitled to judgment on the pleadings, and there was no agreed statement of facts, or special finding of facts by the court below, the only judgment to be rendered after reversal is to grant a new trial, as moved for in the court below. See Emery's Sons v. Irving National Bank, '25 Ohio St. 360; Stivers v. Corden, 20 Ohio St. 232. *It was held, under the former practice, in the case of Craig v. Fox, 16 Ohio, —6729.] JURISDICTION AND PROCEDURE IN ERROR. 401 818. (Sec. 6726, 82 O. L. 38.) Reversal, and cause remanded for judgment. [Title.] As in No. 81 o to *. and continue •] — It is therefore considered by tliis court that the judgment rendered by said court bebiw be reversed and held for iiuiiii-lit. And that the plaintitf in error recover from the de- fondant in error his costs lierein expended, taxed at S . And the coiii't fnrtlier proceeding to consider the premises, find,' etc.; and order that the cause be remanded to tiie \_name conrtl for judgment in accordance with the above finding,^ and that a special mandate thcref(»r be sent to said court. 819. (Sec. .0720, 82 O. L. 38.) Rrrersal, and cause remanded for farther proceedings and judgment. [Title.] As in Xo. 815 to *, and continue:] — It is therefore considered by this court that the judgment rendei'cd by said court below be reversed and held for naught, and that the plaintitFin error recover from the defendant in error bis costs lierein expended, taxed at § . It is further ordered that this cause be remanded to the [_niniie court] for further proceedings [or, a new trial], and for judgment ;' and that a s})ecial mandate therefor be sent to said court. 820. (Sec. 0727.) Reversal in -part, an, that it was proper for the order of sale to issue out of the i-ommon pleas r, the said IT. M., justice of the peace], do forthwith, upon the service of this order, cer« tify up to tliis court a complete and perfect transcript of the record and proceedings aforesaid. Error in judgment of a justice — 824. (Sec. 6732.) Jadgment affirmed, and certified back. [Title.'] This cause came on for hearing upon the petition in error and tlie transcript of the proceedings and judgment of E. P., a justice of the peace tor this said county; on consideration whereof, the court find * there is no error in said })roceodings and judgment, and the said judgment is therefore affirmed at the cost of the plaintiff in erroi', taxed at ^ . And ex- ecution is awarded therefor. It is further ordered that the clerk of this court certify this decision in the ])remises to the said justice, that the judg- ment affirmed may he enforced, as if tliese proceedings iu error had not been taken. 825. (Sec. 6732.) Judgmerd of justirr (ffinned, and execution in common picas airarded. [Tdle.-] As in hist to *, and, continur:] — tliero is no error in said proceeding and judgment, and tlie said judgment is there- '■ » Reedy V. Gift, 2 Kan. 392. 404 JOURNAL ENTRIES. [SEC. 6732- fore affirmed at the cost of the phxintiff in error, taxed at It is further ordered that the said judgment he carried into effect in the same manner as if rendered in this court, and execution is awarded therefor, as well as for costs herein. 826. (Sec. 6733.) JudgmeyU of justice reversed, and case re- tained. [Title.'] As in Ejitry No. 824 to *, and continue:'] — that there is er- ror in said proceedings and judgment, and the said judgment is therefore reversed at the cost up to the present time^ of the defendant in error ; and execution is awarded therefor. It is further ordered that this cause he retained for trial and judgment, as in case of appeaL" 827. (Sec. 6733.) Judgment reversed for want of jurisdiction of justice. [Title.] As in Entry No. 824 to *, ayid conclude:] — that tliere is er- ror in said pi'oceedings and judgment, in that said justice had no jurisdiction of the plaintiff in error [o/', of tlie sub- ject-matter of this action] ; and the said judgment is there- fore reversed at the cost up to the present time of the defend- ant in error ; and execution is awarded therefor. Old chancery cases — 828. (Sees. 6738 and 6739.) Order, in vacation, for stay of 'proceediiigs in chancery proceeding pending July 1, 1853. [Title.] In Chambers, . — , LS — , On application of tlie complainant herein, it is ordered that all further proceedings upon the decree rendered in this case by the court below until the next term of tliis court, upon said complainant giving bond to , in the sum of ' Including costs in the justice's court. Belford v. Parrish, 22 Ohio St. -371. 'The time for filing pleadings n the common pleas will be as provided in Rule XIX. of the supreme court, ^^o.s^, dating from the entry of reversal. -6740.] JURISDICTION AND PROCEDURE IN ERROR. 405 dollars, to the efi'ect that [name condition'^, with security to my ap[)roval. (Signed) A. B., Judg-e of the Court of . Mandates, and the entering thereof in the court below — When a mandate is received from tlie district or supreme court, it should be entered on the journal, and an order for execution made on the same.' The order for execution may be by a general and standing order of the court that execution i.ssue on all mandates received, but it is better practice to order execution in each case,' as follows: Order prcced'nuj mandate. A certain mandate liaviii^- heeii received from the Court of , it is hereby ordered that due execution thereof be had; which sailicatioii, v^^hich by sec. 6743 the court may require, does not need a journal entry ; tlie court simply requii'ing, in their discretion, all parties to have notice before they make any order. 830. (See. 6743.) Order to show cause lohy inrit should not be alloived. [Title.] The relator now making application for the allowance of a writ of mandamus herein, the court order that said applica- tion be set down for hearing on the inst., at o'clock - M., and that due notice of said time and place be given to the said C. D., who then and there may show cause why said writ should not be allowed. 831. (Sec. 6743 and 6745.) Order alloivinfj alternative ivrit with- out notice. [Title.] Now came the relator, and made application for the allow- ance of a writ of mandamus herein; and, on consideratioQ -6749.] MANDAMUS. 407 thereof, the court * allow an altei'iiative writ to issue asrainst the said C. D., returnable to this court on the day of And it is ordered that the said C. J), do, immediately upon the service of this writ [.sc/ out dntii to In' pn'formc(]'\ ; or that at the time and place of the return of this writ he show cause why he has not done so.' 832. (Sees. 6743 and 6745.) Order allorring peremptory writ without 7ioiicc. [TilU.] Now came the relator, and moved the court for the allow- ance of a Avrit of numdamus herein ; and, on consideration, the court * find the relator's right to require the performance of the act hereinafter commanded to be clear, and that no valid excuse can be given for not ])crforming it: and there- fore allow a perem}»tory writ to issue as prayed for. And it is orderad that the said 0. D. do, immediately upon the service of this writ [set out the duly to be performed'^} [f] And it is further ordered that the said relator recover from the defendant his costs expended. 833. Order allowing writ after notice, or after order to show cause against. [Title.] And now this cause coming on forbearing upon the appli- cation for the allowance of a writ of mandamus, on con- sideration thereof, the court finding that no [or, no suffi- cient] cause has been shown against the same [condude as from. * in Entry No. 831, if an alternative writ is allowed, or as from * iyi Entry No. 832, if a peremptory vmt is allowecf]. 834. Order refusiny writ [Title.] J..S in. No. 831 to *. and continue:] — find that the plaintift' is not entitled to the relief prayed for, or to maintain his pro- ceedings in mandamus against this respondent. It is there- fore adjudged that this application be dismissed at the cost of the relator. ' Sec. 67G6. 408 JOURNAL ENTRIES. [SEC. 6750- 835. CSec. 6750.) Judgment allowing peremptory writ, when no- answer is made to alternative. [Title.] This cause coming on to be heard on the return of the al- ternative writ of mandamus heretofore issued herein, and no answer having been made by said defendant, the court find the facts to be as set forth in the petition, and that the relator is entitled to have said writ made peremptory. It is therefore ordered that a peremptorj^ writ of mandamus issue against the said C. T>. for the performance of the act heretofore alternatively ordered, and that immediately upon the service of this writ he act accordingly [or the duty enjoined may again he set outl. * \_Add any order as to costs. If damages are given, see Entry iVo. 837. If fine is imposed, see Entry No. 840.] 836. (Sec. 6752.) Judgment for plaintifi, on trial, allowing per- emptory ivrit. [Title.] This cause coming on to be heard on the petition herein,, the answer thereto, and the evidence, the court find, upon the issue joined, for the relators, and that they are entitled to a peremptory mandamus herein. It is therefore ordered that a peremptory writ of man- damus issue against the said C. D. for the performance of the act heretofore alternatively ordered ; and that immediately upon the service of this writ he do the act alternatively or- ordered [or the act may be again set out], * [Add any order as to costs. If damages are given, see Entry No. 838. If fine is imposed, see Entry No. 840.] ^37. (Sec. 6753.) Judgment allowing peremptory writ, and awarding damages. [Title.] As in one of the last two entries to *, and continue as follows :] — And the court further find that by reason of the facts set up in the petition, the I'elator has been damaged by the said defendant in the sum of $ . It is therefore considered by the court that the said relator,. A. B., recover from the defendant, C. D., the said sum of dollars, and his costs herein expended. -6756.] MANDAMUS. 40^ 837a. (Sec. 6753.) Judgment allowing peremptory writ, and sending case to jury for assessment of damages. [ Title.] As ill. Entry No. 835 or 836 to ^, and continue:'] — And for the assessment of damages to which the relator is entitled, by reason of the facts set up in the petition, the case is sent to a jury. For entry on return of verdict and (jf judgment, follow the forms of Entries Nos. 242 and 243. 838. Judgment for costs — alternative lorit obeyed. ITUk:] This cause coming on to be heard upon the return of the alternative writ of mandamus heretofore issued in this case, and it a}>pearing to the court that the respondent herein has complied with the order contained in said writ : It is therefore considered that no further ])roceedings be had herein, and that the case be discontinued ; and that the said defendant pay the costs herein, taxed at $ . 839. (See. 6755.) Judgment for defendant. [Tdlc] This cause coming on to be heard upon the petition herein, the answer thereto, and the evidence, the court find, upon the issue, for the defendant, and find that the relator is not entitled to a writ of mandamus against liim. It is therefore considered that the defendant go hence with- out day, and that he recover from the relator his costs herein expended. 840. (Sec. 6756.) Judgment for plaintiff , and fine imposed. [Title] ^ As in J\o, 835 or 836 to *, and continue as follows :] — And it appearing to the court that the performance of the duty here commanded was specially enjoined by law upon the said defendant, and that said defendant, without just ex- cuse, refused [or, neglected] to perform said duty, it is ordered and adjudged by the court tluit a fine of dollars be, and hereby is, imposed upon tiie said defendant for this his said 410 JOURNAL ENTRIES. [SEC. 6757- refusal and neglect, and that lie pay the costs of this proceed- ing, taxed at $ ; for all of which execution is awarded. 8-41. (Sec. 6757.) Special order to auditor to levy tax, etc. {Title.'] It being shown to the court that the^ defendants herein have resigned [or otherwise as stated in this sectiori], it is now, on motion of , ordered that the auditor of this count}^ ^eyy and assess upon the taxable property of the county [or otherwise'] the taxes required by the former judg- ment of this court in this case, for the purposes therein named, and that he place the same upon the duplicate for col- lection in due course of law ; and that a special order for this purpose be issued by the clerk of this court to R. M., auditor, as aforesaid. CHAPTER III. QUO WARRANTO. 842. (Sec. 6763.) Officer allowed to bring action on relation of other per- son. 843. (Sec. 676.5.) Member of bar substituted for prosecutor. 844. (Sec. 6769.) Order that notice be given. 845. (Sec. 6774.) Decree of ouster from office. 846. (Sec. 677-5.) Decree of ouster against directors of corporation, and order of induction. 847. (Sec. 6776.) Same, and order for new election. 848. (Sec. 6780-1.) Decree dissolving corporation for non-user. 849. Report of trustee apj^roved, etc. 850. (Sec. 6780-1.) Decree of ouster against a corporation, from exercise of illegal power. 851. (Sec. 6787.) Order that directors of bank give security, etc. 852. (Sec. 6787.) Bond approved. 85.3. Judgment for defendants. 842. (Sec. 6763.) Officer allowed to bring action on relation of other persoji.^ [Title.] On motion, the prosecuting attorney is granted leave to ^ This allowance is often made by the judge indorsing on the back of the pe- tition permission to file the same; but an entry should also be made on the journal, fcjee sec. 6769. -6774.] QUO WARRANTO. 411 l)ring an action of quo warranto, on the relation of A. B., against C. D. If tinder Sub. 1 of sec. 6760, rourt may add .•] — upon security for costs being given by the said A. B. 843. (Sec. 6765.) 31cndjer of bar substituted for prosecutor. [Tme.] On motion of , and the court finding [give cause], it is hercl)y ordered tliat L. M., a disinterested member of the bar, be, and lie is hereby, appointed to act in the place of the prosecuting attorney in bringing and prosecuting an action of quo warranto [on the relation of A. B.] against C. D. 844. (Sec. 6769.) Order that notice be given, etc. [7itle.] Application having been made herein for leave to tile a petition in quo warranto, it is ordered by the court that the hearing of said application l)e set down for Tuesday, the inst., at o'clock a. m., and that notice thereof be given to said defendants by the prosecuting attorney. If, upon hearing, leave be un-anted, make Elntry No. 842, above. 845. (Sec. 6774.) Decree of ouster from office. [Title.] This cause being heard on the petition, the answer of , the testimony, and argument of counsel, the court, on con- sideration, find [state facts] ; and that by reason thereof the said election was void and of no effect, and that the said de- fendant is guilty of intruding into the office of mayor of said village of , and of unlawfully holding and exercising the same. It is therefore ordered and adjudged that the said C. D. be, and he hereby is, ousted and altogether excluded from said office, and from all the franchises, privileges, and emolu- ments thereof, and that the said relator recover from the said defendant his costs therein expended, taxed at § . 27 412 JOURNAL ENTRIES. [SEC. 6775- If necessary, add as follows, by sec. 6785 :] — It is further ordered by the court that said defendants forth- with deliver over all the books, papers, property, money^ deeds, notes, bills, and obligations to the relators herein. Ordered, that a transcript of these proceedings, includuig a copy of this order, be sent to the Court of Common Pleas of County, with a special mandate directing said court to carry the above order into efi'ect. For proceedings in attachment, under sec. 6785, when order is dis- obeyed, see Contempts of Court, page. 206. 846. (Sec. 6775.) Decree of ouster against directors of corpora- tion, and order for induction. [Title.] This cause came on to be heard upon the petition, answer, and reply, and upon the proofs and the arguments of coun- sel ; on consideration whereof, the court are of opinion, and do find, that at the annual election for directors of the Turnpike Company, held on the day of , 18 — , each of the relators herein was the lawful owner of certain shares of the capital stock of said company, and entitled to cast one vote for each of said shares for directors aforesaid, and that at said election each of said relators offered to vote upon said shares by ballot, and tendered his ballot accordingly for the relators for directors of said company to serve for one year from March 1, 1872, but that said ballots were rejected, and the defendants were declared elected, and are now acting as such directors, whereas, if said ballots had been received, as of right they should have been, the relators would have received a majority of all of the votes cast at said election, and have been duly elected and entitled to qualify and act as such directors for one year from said March 1, 1872, Wherefore it is ordered by the court that the defendants be, and they are hereby, ousted and altogether excluded from all and singular their title and right, franchise and privilege, to act as directors of said company by virtue of said election. * And that the relators herein be inducted thereinto ; and, -6780.] QUO WARRANTO. 413 further, that they recover from the defendants their costs herein expended.^ 847. (Sec. 6776.) Same as last, and order for new election. [Title.'] As in last to *, and continue ;] — And it is further or- dered by the court that a new election for directors of said corporation be hehl on the of day , 18 — , and that R. X. and L. S. act as the judges of said election, and give previous notice of the same, and perform all their other duties according to law. It is further adjudged that the relators recover from the defendants their costs herein expended. [Add, if necessary, the orders follo^oing Entry No. 845]. For entries under sec. G779, see entries under Contempts of Court, page 206. 848. (Sec. 6780-1.) Decree dissolving corporation for non-user, etc. [Title:] Thi^^ cause coming on to bo heard upon the petition and answer, testimony, and argument of counsel, upon consid- eration thereof, the court lind that the defendant, the said company, has [state fads], whereby it has surrendered [or, forfeited] its corporate rights, })rivileges, and franchises. It is therefore considered and adjudged that said corpora- tion be ousted and altogether excluded from such corporate rights, privileges, and franchises, and that said corporation be dissolved. It is further ordered that L. M. and R. S. be, and they hereby are, appointed trustees of the creditors and stock- holders of the said corporation, with full power to settle the affairs of the corporation, to collect and pay debts, and to divide among the stockholders of said corporation the moneys ' The order for turning over books, moneys, etc., and for transcript, as in last decree, may be made, if necessary. 414 JOURNAL ENTRIES. [SEC. 6780- and property remaining, and that they report their proceed- ings to this court for confirmation. And it is ordered that said trustees, before entering upon the duties of their office, give bond in the sum of dol- lars, conditioned according to law, with sureties to the ap- proval of this court. And now thereupon came the said L. M. and R. S., and presented their bond as aforesaid, with T. M. and R. M. as sureties to the approval of the court. 849 Report of trustee ajpproved, etc. [Title.'] This cause came on for hearing on the motion to confirm the report of L. M., the trustee heretofore appointed herein, and the court finding that he has in all things obeyed the order of this court, and paid over all the moneys coming into his hands as such trustee, except the sum of $ , which the court allow him as his reasonable fee in this case, and has paid the costs of this proceeding, it is hereby ordered that the proceedings and report of the said trustee be, and they hereby are, confirmed and approved. And he is hereby dis- charged from the duties and responsibilities of said office. 850. (Sees. 6780-1.) Decree of ouster, against a corporation, from exercising illegal power. [Title.'] This cause coming on to be heard upon the petition and answer, testimony, and argument of counsel, upon considera- tion thereof, the court find that the defendant, the said Company, has, as alleged, exercised the franchise and priv- ilege of carrying on the business of manufacturing paper outside of the State of Ohio, to wit, at , in the State of Indiana, contrary to, and without the authority of, the laws of the State of Ohio, and in violation of the law of its in- corporation. Wherefore, it is ordered and decreed that said company be, and it is hereby, ousted of said franchise and privilege of car- rying on said business outside of the State of Ohio as afore- said ; and that the plaintitf recover from said defendant his costs herein expended. -6787.] QUO WARRANTO. 415 For proceedings under see. 6783, see Contempts of Court, page 206. For order of delivery of books, etc., under sec. 6785, see after No. 845. For proceedings in attachment when order is not obeyed, see Con- tempts OF CouKT, page 206. For proceedings and entries granting injunction, under sees. 6786, 7, and 8, see Injunction, page 188. 851. (Sec. 6787.) Order that directors of bank give security, etc. [Title.-] This cause being heard on motion of the relators, to re- quire the defendants to give security, etc., and the court iind- ing upon the proofs offered that said defendants have violated [or, are about to violate] the franchises of thier corporation, in this, to wit [specify], it is ordered that the said C. D., E. F., etc. [nar)\e alC], directors of the [name corporation^, give se- curity to the stockholders thereof, by bond in the sum of $ , with sureties to the satisfaction of the court, for the proper discharge of their duties, and for the proper manage- ment and security of the assets of said company. 852. (Sec. 6787.) Bond approved [Title.] And now come C. I)., E. F., etc. [naming all], directors of [name corporation], and enter into an undertaking, as hereto- fore ordered by the court in the sum of $ , with R. S. and J. J), as sureties to the approval of the court. 853. Judgment for defendants. [Title.] This cause came on to be heard on the petition and reply, and (»n the proof and arguments ; upon consideration whereof, the court are of opinion and find that the said relators are not entitled to the relief sought. And that the defendants were, on the day of , 18 — , duly elected directors of the Company for the term of three years from said day, and are entitled to all the privileges and franchises thereof. 416 JOURNAL ENTRIES. [SEC. 6793- Wherefore, it is ordered and adjudged that said petition be dismissed at the cost of the relators, taxed at $ [or, that said defendant go hence without day and recover from the said relators their costs herein expended]. To all of which said relators and said prosecuting attorney except. ACTIONS, PENDING PROCEEDINGS IN BANKRUPTCY. 417 MISCELLANEOUS PROCEEDINGS. I. Actions, pkxdixg riuxKEDiNGs ix bankruptct. II. ASSKSSMEXT FOIl STKEKT IMPROVEMENT. III. Chattel Mortgage. IV. CoXVEVANCE OF REAL ESTATE. V. FORKIGN JUDGMENT. VI. Leasehold estate. VII. Mechaxic's Lien. VIII. Nattkamzation. IX. Removal axd kesiirvation of cases. X. Specific performaxck. XL .Stockholdkr's Liahii.ity. XII. Vendor's i.iex. XII I. Ve.sting property in trustees. XIV. Wills. I. ACTIOX.S, PENDING PROCEEDING.'^ IN BANKRUPTCY.^ [Revised .'statutes of the L'nited .States.] 854. (.Sec. 5106.) Order staying, pending proceedings, etc. 855. (Sec. 51U6.) (Jrder that case proceed to judgment. 856. Order staying, after discharge, etc. 857. Case dismissed, when institued after, etc. The provisions of sections 5105 and 5106 of the Revised Statutes of the United States, concerning a stay of proceedings, are addres.sed quite as much to the state courts as to the bankruptcy tribunals, and are to be applied and enforced by the former quite as much as by the latter.* 'These entries are retained for the reason that there are many unfinished cases in the bankrupt courts. i ^In re Rosenberg, 2 B. R. 236 ; s. c, 3 Ben. 14 ; in re Metcalf et al, 1 B. R. 20L 418 JOURNAL ENTRIES. In cases of voluntary bankruptcy, an application fc^r a stay may be made as soon as the petition is filed, but no application can be made in cases of involuntary bankruptcy, until the order of adjudication is passed/ The stay in the state courts is obtained upon motion supported by the production of a copy of the order of adjudication. It will not be made by the court of its own motion, or on the plaintiff's suggestion. A valid judgment can be rendered against a bankrupt, unless he avails himself of the proceedings in bankruptcy.^ The stay is temporary, as expressed in the order. It ceases as soon as the question of the bankrupt's discharge is decided. No order to show its termination is necessary.^ If the bankrupt be discharged, he must plead his discharge in the suit as his protection against its further prosecution.^ If there is unreasonable delay in procuring a discharge, the order staying proceedings will be vacated.* Where one partner is bankrupt, the proceedings may be stayed as to him, and a judgment may be entered against the other partner.^ An action pending in the court of appeals of the state to which an appeal was taken by the bankrupt, prior to the commencement of pro- ceedings in bankruptcy, may be stayed.^ The state courts may also by injunction protect the bankrupt in the enjoyment of property acquired after the commencement of proceed- ings in bankruptcy pending the question of discharge, as against an execution levied on it in satisfaction of a judgment obtained before the declaration of bankruptcy.' By the discharge in bankruptcy an action is barred if the debt is provable, although it is not actually proved.® And when the discharge is pleaded by the bankrupt, the action will be finally stayed. The dis- charge can not be taken advantage of by motion.' 1 Maxwell et al. v. Faxton et al, 4 B. R. 210; s. c, 18 Pitts. L. J. 107 ; coji- ira, in re Bromley & Co., o B. K. fiSG. - Palmer r. Merrill, 57 Me. 2G ; in re Leibenstein et al., 4 C. L. N. P.OO ; Stone V. National Bank, :)9 Ind. 284. 3 In re Thomas, ?, B. R. 38; in re Rosenberg, 2 B. R. 236. * In re Belden, 6 B. R. 443 ; s. c, 5 Ben. 47G. ^Lomme v. Kintzing, 1 Montana, 290. 6 In re Metcalf et al., 1 B. R. 201. But see contra, Merritt v. Glidden, 39 Cal. 659. ' Mosby V. Steele, 7 Ala. 299 ; Turner v. Gatewood, 8 B. Mon. 613. * Hardy v. Carter, 8 Humph. 153; Rogers r. Western Ins. Co., 1 La. An. 161. 'Fellows I'. Hall, 3 McLean, 281. ACTIONS, rENDIN(} PROCEEDINGS IN BANKRUPTCY. 419 By section 5047, Revised Statutes of the United States, the assignee in l)!uikrupt('vin:iy, in certain cases, be substituted for the bankrupt as a i)art y to a pending suit. Use the usual forms as given in Chapter III., Parties to Action, page 14. 854. (Sec. 5106.) Order stayiiu/, pendwy proceedings in bank- ruptcy. [Title.'] This cause coming on to be heard on the motion of the defendant for a stay of proceedings, and it appearing to the court tliat the said defendant has been adjudicated a bank- rupt [(rr, has filed his petition in bankruptcy]^ in the District Court of the United States for the Southern District of Ohio, all further proceedings in tliis action are hereby stayed until the determination of the court in bankruptcy on the ques- tion of the said defendant's discharge. 855., (Sec. 5100.) Order that case proceed to jadgment. [Title. -] This cause coming on for hearing on the motion of the defendant to stay proceedings herein, and it appearing to the court tliat the amount due this jdaintiff is in dis[»ute, and leave having been obtained from tlic coui't in bankruptcy, it is ordered that this case proceed to judgment for the purpose of ascertaining the amount due. But execution on such judg- ment sliall be stayed. 856. Order staging, after discharge in bankruptcy. [Title.'] And now this cause coming on to be heard, and it appear- ing upon tlie plea of the defendant that since the commence- ment of this action the said defendant has obtained a dis- charge in bankruptcy in the District Court of the United States for the Southern District of Ohio, it is ordered by the court that all further proceedings in this action be, and they are hereby, stayed. ^ See supra 420 JOURNAL ENTRIES. 857. Case dismissed when instituted after discharge m bank' rwptcy. [Title.'] And now it appearing to the court that the said defendant had obtained a discharge in bankruptcy before the filing of the petition herein, it is therefore ordered that this action be stricken from the docket for want of jurisdiction. II. ASSESSMENT FOR STREET IMPROVEMENT. 858. (Sec. 2287.) Personal judgment, and order for sale. 859. (Sec. 2287.) Same, when assessment is payable in installments. 860. (Sec. 2287.) Decree enforcing lien. 861. (Sec. 2289.) Judgment, etc., when* assessment irregular. 858. (Sec. 2287.) Personal judgment^ and order for sale, where council makes the assessment payable in one installment} ITitlc.-] Finding III., -page 99, or, if by default, Finding IV., page 100, and continue:] — The court further find that the assess- ment set forth in the petition is in all respects regular, and is a proper charge against the several defendants owning the several lots of land described in the petition, and is a lien upon the said lands respectively; and find that there is due to the plaintiff from the defendant, C. D., on account of said assess- ment, on the lot of land firstly in the petition described, with interest to the first day of this term, tlie sum of dollars, and also the sum of dollars penalty for the non-payment thereof, amounting in all to the sum of $ , which sum is a lien upon the said lot. It is therefore adjudged by the court * that the said plaint- iff recover from tlie said defendant, C. D., the said sum of $ , together with its costs herein expended. And in de- fault of payment of said snm for days, that the said lot of land be sold for the satisfaction of said judgment, and t .at an order issue therefor to the sherifl' of county, directing him to appraise, advertise, and sell such premises as upon ex- ecution, and bring the proceeds into court for further order, •As it may do by sec. 2264, 78 O. L. 259. ASSESSMENT FOR STREET IMPROVEMENT. 421 And tlie court Und, that the assessment on the lot sec- ondly (a) in the petition described, belonging to the defendant, E. F., amounts to $250, and is a lien thereon. And the court find, upon the evidence adduced, that the value ofthe said lot of land, as assessed for taxation,' at the time the assessment was made [or, that the value of the said lot of land after the im- provement was made],^ was $1,500, and that there is, there- fore, due to the plaintifi from said defendant, C. D., on ac- count of the said aH;sessment, the one-fifteenth' [or, the one- tenth]^ of said value, to wit, the sum of S , with interest from the day of . 18 — , to the first day of this term, and also the sum of $ penalty for tlie non-i)ayment of the same: amounting in all to the sum of $ ; the balance of said assessment to become payable [c/n t/w rourf may order]. It is therefore adjudged by the coui-t * ^conclude as from * above.'l And the court find that the assessment on the lot thirdly in the })etition described' belonging to tlie defendant, G. II., amounts to four hundred dollars, and find upon the evidence adduced that the value of said lot as assessed tor taxation' [or, after the improvement was made^] was fifteen hundred dol- lars ; and that therefore the entire assessment chargeable on said lot being twenty-five per cent of its value, as above, is $375 ; which sum is a lien thereon; the plaintiff being remit- ted to the city of for the balance of said assessment. The court further find that there is due and payable to the plaintiti" from the defendant, G. 11., at the present time on ac- count of said assessment the sum of S . feeing the one-fif- teenth' [or, one-tenth^ of said value, with interest from the day of , 18 — , to the first day of this term, and also («) This is a case where the assessment amounts to less than twenty-five and more than fifteen per cent ofthe value ofthe lot as assessed for taxation, as provided for in sec. 2270. 82 O. L. 155, or more than ten per cent of the value ofthe lot after the improvement was made, as provided for in sec. 2271, 82 O. L. 200. 'See sec. 2270, as amended 82 O. L. 155. 2See see. 2271, as amended 82 O. L. 260. ^This is a case where the assessment amounts to more than twenty-five per cent ofthe value of the lot as assessed for taxation, as provided for in sec. 2270, 82 O. L. 155, or more than twenty-five per cent ofthe value ofthe lot after the improvement is made, as provided for in sec. 2271, 82 (). L. 260. 422 JOURNAL ENTRIES. $ penalty for the non-payment of the same, amounting in all to the sum of $ , the balance of said assessment chargeable on said lot to become payable [as com^t may order^ It is therefore adjudged hy the court * [conclude as from * above, and so with, each lot separately.'] 859. (Sec. 2287.) Personal judgment and order for sale where couneU makes the assessment payable in sev- eral installments} [Title.'] Finding III., page 99, or, if by default, Finding IV., page 100, and continue:] — The court further find that the assess- ment set forth in the petition filed herein is in all respects regular and [in conformity with the terms of the petition for the improvement presented to the council, which said petition was properly signed by three-fourths in interest of the owners of the property abutting upon said street as improved, and that said assessment^] is, to tiie extent hereinafter named, a proper charge against the several defendants owning the i- oral lots of land described in the petition and a lien npon said lands respectively, and is payable in equal annual installments^ \_or at other times as council may order] as directed by said council. And the court find that the assessment on the lot firstly in the petition described,' belonging to the defend- ant, C. D., amounts to $250, iind is a lien thereon, and that there is due to the plaintiff from said defendant, C. D., as the first annual instalhnent of said assessment, the sum of dollars, with interest from the Any of , 18 — , to the first day of this term, and also the sum of $ penalty for the non-payment of tlie same, amounting in all to doL lars. [Add any judgment mude by the court as to suhsequod in- stalhnods.] 'See sec. 2-2U4, 78 U. L. -259. ^This clause to be used in case the petition for the improvement was Hied un- der sec. 2272, as amended 82 O. L. laS. •''See sec. 2261, as amended 78 O. L. 2o9. *This is a case where the petition for the improvement was not filed, under sec. 2272, as amended 82 O. L. 155, and where the assessment does not exceed twenty-five per cent of the value of the lot. ASSESSMENT FOR STREET IMPROVEMENT. 422a It is therefore adjudged by the eourt * \_conclade as from * in entry iVo. 858.] And the court find that the assessment levied by council on the lot secondly' in the [)etition described, belonging to the defendant, E. F., amounts to ^400, and the court find, upon the evidence adduced, that the value of said lot, as assessed for taxation^ [or, that the value of said lot after the improve- ment was made'^J, Avas $1,200, and that therefore the entire as- sessment chargeai)le on said lot, being twenty-live per cent of such value, is dollai's, which sum is a lien thereon ; the plaintiff being remitted to the city of for the balance of said assessment. yVnd the court find that there is due to the plaintiff from the said E. E., as the first annual installment of said assessment, the sum of ^ , with interest from the day of -, 18 — , to the first day of this term, and also $ penalty for the non-payment of the same, amounting in all to $ . [A'/d any order made as to the siibsrqaent installments. I It is therefore adjudged by the court * [conclude as from * in entry No. 858.]. And the court find that that the assessment on the lot tiiirdly in the petition described,^ belonging to the defendant, G. II., amounts to $300, and is to its full amount a lien thereon, the said E F. having with others signed the petition for the improvement as above named, and that there is due to the plaintiff from the said G. II., as the first annual installment of said assessment, the sum of § , with interest from the day of , 18 — , to the first day of this term, and also $ penalty for the non-payment of the same, amounting in all to d()llurs. [Add any judgment of the court as to subse- quent installments.'] It is therefore adjudged by the coun * [conclude as from * in entry No. 858.] And the court find that the assessment on the lot fourthly 'This is a case wiiere the petition for the improvement was not tiled, under sec. 2272, as amended 82 O. L. 155, and where the assessment exceeds twenty- five per cent of the value of the lot as listed for taxation, under sec. 2270, as amended 82 O. L. 155, or of the value of the lot after the improvement was made, under sec. 2271, as amended 82 O. L. 260. ^See sec. 2270, 82 0. L. 155. 3See sec. 2271, 82 O. L. 2G0. *This is a case where a petition was filed, under sec. 2272, as amended, 82 O. L. 155, and where the assessment exceeds twentj'-five per cent of the value of the lot after the improvement was made, and where the owner signed the peti- tion for the improvement. 4226 .TOURXAL ENTRIES. ill the petition lie-cnbud.' l)el()iigiu<; to the defendant, J. K., amounts to $350. And the court lind, upon the evidence ad- duced, that tlie value of the said lot after the improvement was made was $1,200, and that the said J. K. did not sign the petition for said im[»roveraent, and therefore that the entii-e assessment chargeable on said lot is twenty -five per cent of such value, viz., $300, and that to that extent it is a lien thereon, the plaintiff being remitted to the city of for the balance of said assessment; and that there is due to the plaint- iff" from said defendant, G. H., as tiie first annual installment of said assessment, the sum of $ , with interest from the day of , 18 — , to the first day of this term, and also the sum of $— — penalty for the non-payment of the same, amounting in all to dollars. [A'ld any Jadf/ment of the court as to subsequent installmenls^ It is therefore adjudged by the court * [conclude as from * in entry No. 858. And so continue to find and decree ivith each lot separately.] 861. (2289, as amended 80 O. L. 52.) Judgment for amount properly chargeable, etc., when, assessment is [Title.] irregular. This cause coming on this day forbearing, was submitted to the court upon the pleadings and evidence without the inter- vention of a jury; on consideration wliereof the court find that by reason of irregularity and defect in the proceedings of [specify defect] the assessment set up in the petition was not pro})erly made against the said defendant or upon the lots of land sought to be charged, and is therefore invalid. The court further find, from the evidence, that expense has been incurred in the improvement of said street, which is a proper charge against the several defendants and upon the several lots of land, in the petition described, in the amounts hereinafter found against each respectively. And the court find that there is due to the plaintiff" from tlie defendant, C. D., on account of expense incurred as aforesaid, properly chargeable against the lot of land firstly in the peti- tion described, with interest to the first day of this term, the sum of dollars.^ It is therefore considered, etc., [enter Judgment and order of sale as from * to end of paragraph in entry No. 858.] 'This is a case where the petition for the improvement was filed, under sec. 2272, as amended 82 O. L. 155, and where the assessment exceeds twenty-five per cent of the vrtlne of the lot after the improvement was made, and where the- owner did not si<;n the petition for the improvement. 'The penalty can not be collected. Uppington v. Oviatt, 24 O. S. 232. CHATTEL MORTGAGE. 423 In all of the above cases the subsequent decrees of confirmation and distribution will be similar to the same decrees after sale on execution. III. CHATTEL MORTGAGE. In a suit to foreclose a chattel mortgage, where the court has juris- diction of the parties in interest, it is not necessary to a decree of foreclosure that the mortgaged property should be within the territorial jurisdiction of the court.' 862. Ju;age, as stated in the petition, and that the same is a valid and subsisting lien on the property in the pe- tition described; and that the plaintiff is entitled to have said chattel property sold to })ay the amount due him as aforesaid. It is therefore ordered that unless the defendant, Avithin days from the entry hereof, pay to said plaintiff said sura of $ , with interest and costs of suit, the chattel prop- erty described in the petition shall be sold by the sherifi'- of this county, as upon execution f and that an order issue for that purpose. An entry eoufirniing sale and distributing proceeds should be made. Follow forms in foreclosure of mortgage on real estate. lY. CONVEYANCE OF REAL ESTATE. 863. Decree for conveyance. 864. Conveyance obtained by fraud set aside. 865. Decree reforming deed. In order that a decree for conveyance shall operate as a conveyance, the land itself must be within the jurisdiction of the court ; other- 1 Means, Clark & Co. v. Worthington, 22 Ohio St. 622. ^ Or it may be sold by a master commissioner, as in case of a sale on a real estate mortgage. See Means, Clark & Co. v. Worthington, supra. ^Courts of equity, in ordering a sale of property, follow the rules regulating sales of similar property on execution when they sire applicable. lb. 424 JOURNAL ENTRIES. wise, the conveyance must be enforced by attachment,^ etc. The court may enforce obedience to its oi'der requiring a conveyance to be made, by attachment for contempt, if it has acquired jurisdiction over the permn of defendant, whether the lands ordered to be conveyed lie within or without the state.' The decree for conveyance would undoubtedly, iu a proper case, operate as a conveyance without a clause in it to that effect, by virtue of section 5318 ; but it is better to add to the decree an order to that effect. Sec. 5399 also authorizes the court to order the conveyance to be made by a master commissioner, for which see entry under that section. 863. Decree for conveyance of real estate. [Title.'] Finding III., yage 99, or, if by default, Finding IV., page 100, and coidinue:'] — and that the said plaiiitiiF is entitled to the sjjeciiic execution of the contract in the petition described. It is therefore ordered, adjudged, and decreed, that upon full payment being made by the said A. B., etc. [state specific- ally what the plaintiff is to do], the said C. D. do, within days from the date of this decree, convey the premises in the petition described to the said A. B., by a good and sufficient deed, with covenants of general warranty; * and, in default thereof, that this judgment have the operation and effect of such deed, and that the clerk have so much thereof as will show the transfer of title put on record in the office of the recorder of this county.^ It is further considered that the said plaintiff recover of the said defendant his costs herein expended. 864, Conveyance obtained by fraud set aside. [Title.] Finding III, page 99, or, if by default. Fin diyig IV., page 100, and continue :] — And the court further find that the de- fendant, C. D., did obtain from the plaintiff the deed of con- veyance in the petition described, by fraud and misrepresen- tation, as the plaintiff has in his petition alleged. » Daniels v. Stevens, 19 Ohio, 222. ^Randall v. Prior, 4 Ohio, 424; followed and approved in Penu r. Hayward, 14 Ohio St. ?,Q2. 'Bv sec, 4138. CONVEYANCE OF REAL ESTATE. 425 It is therefore adjudged and decreed that the said deed of conveyance, from the said A. B. to the said C. D., be, and the same is hereby, set aside, vacated, and declared to be of no force or effect in laAv to affect the title of the said premises, or to convoy the same to the said defendant. And it is further considered that the i>laintiff recover of the said defendant his costs herein expended. 865, Decree reforming deed. [ritle.'\ This cause came on this day to be heard upon the pleadings and proofs, and the court having carefully considered the same, and being fully advised in the premises, find that the deed referred to in the petition, for tlie premises therein de- scribed, was by mistake and inadvertence made to and in the individual name of the said C. D., instead of the joint names of the plaintiff, A. B., and said C. D. ; that the said prop- was purchased with the joint means of the said plaintiff and said C. D., and belongs to them as late partners under the firm name of B. & B., each being entitled to the undivided half thereof; and that the said deed should properly so show and designate the same. It is therefore adjudged and decreed by the court that the deed referred to in the petition, and recorded in Deed Book Xo. , page , county, Ohio, records, be, and the same is hereby, corrected and reformed, so as to in- vest the plaintiff, A. B., with the undivided one-half of the premises therein described ; and that this decree have the force and effect of a reformation and correction of said deed as fully and completely as though said deed had been made to the said A. B., and C. D. And the clerk is directed to have so much of this decree, as will show the change of title, pnt on record in the oifice of the recorder of this county.^ It is further ordered that the costs of this proceeding be paid by , and execution is awarded. 1 By sec. 4138. 28 426 JOURNAL ENTRIES. V. FOREIGN JUDGMENT. An action may be maintained on a judgment rendered in this state,. as well as on a judgment rendered in another state/ 866. Judgment on. [Title.'] Finding 111., jpage 99, or, if by default, Finding IV., page 100, and continue-] — And the court further find that this plaintiff recovered a judgment against this defendant in the Circuit Court of the United States for the Fifth Circuit and District of Louisiana, on the day of , 18 — , for the sum of $ ; that said judgment is a valid and subsisting judgment, and that no proceedings are pending for its reversal or re- trial, and that the amount therein found is legally due from this defendant to the plaintiff. It is therefore considered that the plaintiff, A. B., recover from the defendant, C. D., the said sum of $ , and interest from , and also his costs herein expended. VI. LEASEHOLD ESTATE. 867. Judgment forfeiting lease, and for damages. 868. Judgment for rent, and order for sale of. The right of re-entry by a landlord, constituting a forfeiture, for non- payment of rent, can not exist, unless expressly so stipulated in the lease." The judgment may include forfeiture and rent, accruing subsequent to the right of re-entry, as damages.'^ If the lessor has a lien on the leasehold premises for rent, the lien may be enforced by sale, as in other cases of lien. Sales of perma- nent leasehold estates, renewable forever, upon execution, or by order iHeadly r. Roby, G Ohio, 521. ^ScottiJ. Wasson, Union Common Pleas, 1861, 3 W. L. M. 148. 'Campbell v. McElevey, 1859, 2 D. 574. LEASEHOLD ESTATE. 427 or decree of court, are governed by the same laws that govern such sales of estates in fee.' 8G7. Judgment forfeiting lease, and for damages. [Title.'] Finding III., page 99, or, if by defavlt. Finding IV., page 100, and continue:'] — The court further tiud tliat the phuntift' iiiid the defendant executed the lease, in tlie ])etition set foith, and that under it said defendant entered into the possession of the premises described in the ]»etition. And the court further find that said defendants have, as set up in the petition, according to the terms of said lease, forfeited all their rights thereunder, and that said plaintift' has lull right to re-enter upon said premises discharged of said lease. The court further find that there is due the plaintiff from the defendant, for use and occupation of said premises since the i)hiintifi""s right of re-entry therein accrued, with interest, the sum of dollars. It is therefore considered and decreed that the plaintifi' re- cover from tlie defendant the possession of the said jiremises free and discharged of the lease mentioned in the petition, and that he also recover the sum of dollars above found due as damages, and his costs herein expended, taxed at It is further ordered that a writ of possession be issued to put the plaintiflt' in possession of said premises.'^ 868. Jagdmcnt for rent, and order for sate of leasehold premises. [Title.] Finding III., page 99, or, if bg default. Finding I V., page 100, and continue:] — The court further find that there is due to the plaintiff" from the defendant for ground rents to the day of , with interest to the first day of this term, the sum of dollars, and that said rents are the first and best lien upon the leasehold premises described in the peti- tion, with the improvements thereon. It is therefore considered that the plaintiff" recover from 'Sec. 5,374. 'See note 6, p. 117. 428-34 JOURNAL ENTRIES. the defendant the said sum of dollars, together with his costs in this behalf expended. It is further ordered and adjudged that unless said defendant shall, within days from the entry of this decree, pay or cause to be paid, to the plaintiff, said sum so found due, with interest 'and costs, said leasehold premises, with the improvements thereon standing, shall be sold, and an order therefor shall issue to the sheriff of this county [or, to A. D., a master commissioner of this court], directing him to appraise, advertise, and sell said leasehold premises and improvements, as upon execution, and bring the proceeds into court for further order. The further proceedings on confirmation -will as in case of foreclosure of mortgage, if the leasehold estate sold is permanent and renewable forever. If the leasehold is a chattel only, the sale will be made as of other personal property on execution. But the sale should be returned to the court, and confirmation and distribution be made. VII. MECHANIC'S LIKN. 876. Personal judgnieiit, and decree for sale. 877. (Sec. 3189.) Order to lease premises. The holder of a mechanic's lien may obtain a judgment for the amount of his account, as in other cases ;^ or may have an action and decree to enforce his lien, as in other cases of lien ;^ or may have his personal judgment and degree for sale in the same case, as in other cases. 876. Personal judgment and decree for sale. [Title.] Finding I., page 99, or, if by defaidt, Finding IV., page 100, and continue:'] — and that there is due to said plaintiff, from the defendant, CD., on account of the materials furnished and labor performed, as set forth in the petition, the sum of ^ , and that the same is a lien on the premises described in the petition, by reason of the raeclianic's lieu therein described, and recorded in book , page , of the county records of liens; and that said plaintiff is entitled to have the said lien enforced. It is therefore considered that the plaintiff, A. B., recover from the defendant, C. D., the said sum of dollars, together with his costs herein expended. And that unless the said judgment is paid within ■ days from the entry hereof, an order may issue to the sherifif of county, Ohio, commanding him to sell said premises a s upon execution, iSec.:^197. 2Sec. 320rj, 78 Ohio L. 78. Decree may be same as No. 876, omitting the per- j^ «ral judgment NATURALIZATION. 435 and of his proceedings in the premises to make due return to this court. And as to all questions of priority of liens, and as to the several amounts due to the other defendants to this suit, the cause is continued. 877. (SeCo 3189.) Order to lease premises. [Title.-] It appearing to the court that the property subject to the mechanic's lien in this case will not sell on execution, by reason of a defective title, it is ordered* that the sheriff rent or lease the said premises, and collect the rents thereon, and pay the same into this court, until such rents and issues shall be sufficient to pay and satisfy the said lien. VllJ. NATURALIZATION. [United States Revised Statutes, 380.] 878. (Sec. 2165.) Admission after declaration of intention. 879. (Sec. 2166.) Of discharged soldier. 880. (Sec. 2167.) Of party coming into United States under eighteen years of age. 881. (Sec. 2174.) Of seaman. 882. (Sec. 2165.) Where alien has borne hereditary title, etc. The record of an alien's admission to citizenship must be made on the journal of the court. 878. (Sec. 2165.) Admission after declaration of intention. In the matter of the citi- 1 . zenship of A. B. | This day came A. B., a native of , who declared his intention of becoming a citizen of the United States, accord- ing to law, before the court of , on the day of , 18 — ; and having proved good character and residence in the said United States for five years, and in the State of Ohio for one year, by the oath of E. F., took the oaths of re- nunciation and allegiance required by law, * and was ad- mitted to citizenship. 436 JOURNAL ENTRIES. 879. (Sec. 2166.) Admission of discharged soldier, [Title.] This day came A. B., a native of , and produced to the court satisfactory proof of liis enlistment in the armies of the United States, and of his honorable discharge therefrom ; and proving good character and residence of one year in the United States, by the oath of E. F., took the oaths of renun- ciation and allegiance required by law, * and was admitted to citizenship. 880. (Sec. 2167.) Of party coming into the United States under eighteen years of age. [Title?^ This day came A. B., a native of , and made declara- tion according to law of his intention of becoming a citizen of the United States, and proved such bona fide intention for two years last past, as well as good character and residence in the United States for five years, including three years im- mediately preceding his arrival at the age of twenty-one years, and continuously thereafter, by the oath of E. F., took the oaths of renunciation and allegiance required by law, * and was admitted to citizenship. 881. (Sec. 2174.) Admission of seaman. [Title.'] This day came A. B., and produced to the court a certificate of having declared his intention of becoming a citizen of the United States before the court of , on the day of , 18 — , and it appearing that subsequent thereto he has served for three years on Ijoard a merchant vessel of the United States, and now producing his certificate of discharge from, and good conduct during, said service, took the oaths of renunciation and allegiance required by law, * and was admitted to citizenship. If the alien lias borne any hereditary title or order of nobility, he must specially renounce the same. REMOVAL AND RESERVATION OF CASES. 437 882. (Sec. 2165, 4th.) Where alien has borne hereditary title. [Title.] As in either of the former entries to *, and continue:] — aud expressly renouncing the title [or, order of nobility] of heretofore borne by him, was admitted to citizenship. One journal entry may be made for a number of cases, by ruling and heading columns for names, etc. iX. REMOVAL AND RE.SERVATION OF CASES. 883. (Sec. 039 Rev. Stat, of U. S.) Order removing to Circuit Court of the United States. 884. (Sec. 454.) Order of removal to the di.strict court of another county. 885. (Sec. 455.) Case reserved to supreme court. Long and uniform usage has settled the practice, in this state, of effecting the transfer of causes falling •vvithin the constitutional juris- diction of the federal courts, in the mode provided by the judiciary act of Congress of 178!).' (1 U. S. Stat, at Large, 73.) But see Revised Statutes, sees. 639-647, for tiie present legislation on the subject. 883. (Sec. 639, et seq., Rev. Stat, of U. S.) Order removing case to Circuit Court of the United States. [Title.] The defendant herein having, within the time provided by law, filed his petition for the removal of this case to the Cir- cuit Court of the United States, and having at the same time ofi:ered good and suflicient surety, pursuant to statute ; there- fore, the court, finding that the defendant is a resident of the State of , and that he is entirled to such removal, do hereby accept said petition and bond, and order that the said cause be removed for trial into the next Circuit Court of the L^nited States, for the District of Ohio, pursuant to the statutes of the United States ; and all further proceedings in this court in said cause is hereby stayed. The above form, by slight modification, may be used in all cases of removal to the circuit court. 1 Hadley v. Dunlap, 10 Ohio St. 1. 438 JOURNAL ENTRIES. 884. (Sec. 454.) Order of removal to the district court of another county. It appearing that two [or more] of the judges of this court are interested in the event of tliis cause, it is therefore or- dered that the said cause be removed, for trial and judgment, to the district court held in the county of . 885. (Sec. 455.) Case reserved to supreme court} ITitle.l It appearing to the court that important [or., difficult] ques- tions are involved in this case, on motion of the , it is or- dered that the said case he, and it hereby is, reserved, and or- dered to be sent, to the supreme court of the state, for its decision on the same. [Ordered, on motion of the , that copies of the papers in this case be sent to the supreme court, instead of the orig- inals.] A similar entry may be made in a case where the judges of the dis- trict court are equally divided in opinion. X. SPECIFIC PERFORMANCE. A decree for specific performance on the part of the defendant, with- out finding or requiring performance on the part of the plaintiff of his part of the agreement, is erroneous.'^ A specific performance may be decreed, though the decree is for the payment of money only, when the remedy at law is doubtful and diffi- cult.' 886. Decree for. [Title.'] Finding III., -page 99, or, if by default, Finding IV., 'page 100, and continue:] — and that the agreements in the said pe- ' See Rule IX. of the supreme court. ' Owens V. Hall, 13 Ohio St. 571. 3Rees». Smith, 1 Ohio, 124. stockholder's liability. 439 tition mentioned, and duly proven in this action, can be fully performed and executed, and that the plaintiff is entitled thereto. It is therefore considered and decreed that the plaintiff, A. B. do [set forth rohat he is to /-/o], and that the defendant, C. D., do [set forth lohat he is to do^. It is further ordered that the recover from the his costs herein expended. XI. STOCKHOLDER'S LIABILITY. 887a. (Sec. 32G0.) Judf/ment enforcing individual liability of stockholders. [ime.] If the matter is /ward on report of a master, make Entry No. 151, and continue :~\ — And upon said report, and the testimony offered, the court find that the amount of the indebtedness of the said Company, a cor})oration under the laws of Ohio, over and above its assets, is dollars, which includes a counsel fee of $ to J. W,, and the master's fee herein of $ , which sums the court allow in favor of said counsel and said master commissioner. And the court further find, from the evidence and report of said master commissioner, that each of the said defend- ants hereinafter named were, at the time said several liabili- ties accrued, stockholders of the said Company in the amounts herein found and set opposite their names respect- ively, in the column of " stocks," in the schedule set out below. And the court further find, from the report above named and the evidence, that said eor})oration is insolvent, and that to pay the liabilities aforesaid it will require an assessment on the amount of stock held by each and all of the defendants, stockholders, who are solvent and within the jurisdiction of the court, of the sums hereby found and set opposite their 440 JOURNAL ENTRIES. names respectively, in the columns of "judgment," in the following schedule, viz. : JiTame. Stock. Judgment. W. M. $5,425.00 $542.50 etc. etc. etc. It is therefore ordered that each of the stockholders, de- fendants, named in the above schedule, pay on or before the day of , 18 — , into the hands of J. B., who is hereby appointed a receiver for the purpose of receiving, collecting, and distributing the money to be paid in pursuance of this order, the sums above specified, set opposite his name in the judgment column of the schedule, together with interest from the day of , 18 — ; and, in default thereof, that ex- ecution issue therefor. And it is further ordered by the court that out of the money so to be collected the receiver pay, first, the costs of this case, including the fees to the attorney and master com- missioner in full, and that he pay then the money received by him to the several parties named below, pro rata, accord- ing to the sums set opposite their names respectively, and to which they are hereby found to be entitled, to wit : ■ 1st. To D. E. the sum of $ . 2do To F. G. the sum of $— . etc. etc. XII. VENDOR'S LIEN. 887. Decree for sale on. [Title.] Finding III., page 99, or, if by default, Finding IV., page 100, and co7it in lie:] — The court also find that there is due from this defendant to said plaintiff, with interest to the first day of this term, the sum of dollars, being the balance of unpaid purchase-money upon the premises described in the petition, to wit [describe], and that said plaintiff' has a vendor's lien thereon for the same, which is the first and best lien on said premises ; and that he is entitled to have the same sold for the payment and satisfaction of said lien. * VESTING PROPERTY IN TRUSTEES. 441 It is therefore ordered, adjudged, and decreed, that unless said C. D., or some one in liis behalf, shall within days from the entry of this decree pay to the said A. B. or his at- torney the said sum of ^ , with interest from the first day of this term, and to the clerk of tins court the costs of these proceedings, said premises shall be sold as upon execution, and an order shall issue therefor to the sheriff of county ; and tliat said sheriff bring the proceeds of said sale into court for further order. The confirmation and distribution maybe in the same form as in case of sale on mortgage. XIII. VESTING PROPEirrY IX TRrSTEES. It is only atempted here to give a geueral form for a decree vesting property in trustees for the use and benefit of another. Every decree will be controlled by the circumstances of the particular case. 888. Decree vesting ■property in trustees. [Title.] Finding III., page 99, or, if by default, Finding IV., page 100, and corUinue ;] — Therefore it is ordered, adjudged, and decreed by the court that the real estate and })ersonal property mentioned in the })etition be vested in a trustee, to be by him held, controlled, and managed forthebenefit of said plaintiff during her natural life, and after her death to be paid over and conveyed to her children. And it is ordered and decreed by the court that W. J. C. be, and he is hereby, appointed as the trustee for said property, on his giving an undertaking in the sum of $ , with sureties to the approval of the court, conditioned for the faithful discharge of his duties as such. And the said de- fendant is hereby ordered to execute and deliver to said W. J. C, as trustee as aforesaid, within ten days from this date, a deed in due form of law, conveying to him all of said real estate in trust for the uses and purposes mentioned in this decree ; and to deliver to him all of the personal property mentioned in said petition. And in default of such deed it 442 JOURNAL ENTRIES. is ordered that this decree stand and operate, and have the force and effect of such deed. And it is ordered that said trustee, on giving the under- taking aforesaid, do take immediate possession of all of said property; that he rent said real estate for the best price he can obtain therefor, and that he control and manage the same for the interest of the said A. B., and pay over to her from time to time the said rents, after payment of taxes, repairs, and other necessary expenses. And that he sell said personal property, and invest the moneys in good mortgage securities, and pay the interest arising from such investment from time to time to said plaintiff, [State any other special powers.'] And it is ordered that the costs of this case be paid by the , and in default execution is awarded. XIV. WILLS. 889. (Sec. 5935.) Order that will be admitted to probate. 890. (Sec. 5935.) Order refusing to admit will to probate. In case of the refusal to admit a will to probate, an appeal lies to the court of common pleas, by sec. 5934. On trial in the common pleas an order may be made allowing or refusing the admission of the will to probate, as follows : . (Sec. 5935.) Order, on ajipeal, that will he admitted to -pro- hate. [rdlc.] This cause came on this day to be heard on appeal from the probate court of this county, and was submitted to the court upon the certified copy of the order made by the said probate court rejecting the will of A. B., which was offered for probate therein, and upon a certified copy of said will, and the testimony taken in the case. * And thereupon the court, l)cing fully advised in the prem- ises, find that the will aforesaid was duly attested and exe- cuted, and that the testator, at the time of executing the same, was of full age and of sound mind and memory, and WILLS, 443 not under any restraint, and it is therefore ordered and ad- judged that said will be admitted to probate in said court, and that this order, together with the will and testimony, be certified by the clerk of this court to the probate court afore- said. It is further ordered that the pay the costs of this proceeding. 890. (Sec. 5935.) Order refusing to admit will to probate, [Title.'] As in last to *, and continue .-] — And thereupon the court find that [name defect\ and there- fore refuse to admit said will to probate. It is further ordered that the pay the costs of this proceeding. 444 JOUKNAL ENTRIES. XVI. OATHS. I. For a jury. . II. For a witness. III. For an interpreter. IV. For a referee. V. Affirmation. I. OATH 10^ JURY m CIVIL ACm Kendle v. Tarbell, 24 Ohio St. 19G. - By sec. 7171, the judge of the court of criminal jurisdiction has concur- rent jurisdiction with the probate judge. 454 JOURNAL ENTRIES. [SEC. 7165- 904. (Sec. 7165.) Prisoner admitted to hail by examining court. [Title.] Charge of . As in last entity to *, and continue. 'I — probable cause for bolding the said C. D. to answer, ordered that upon entering into recognizance in the sum of dollars, with good and sufficient security, conditioned for his appearance forthwith ' at [or, betore the next term * of] the court of common pleas of this county, to answer said charge, he be discharged from confinement ; otherwise that he be remanded to jail. [X] Also the following named witnesses were recognized ' in the several amounts, and with the sureties severally set oppo- site their names, for their appearance before the said court forthwith [or, at the next term thereof], viz. : Name of witness. Amount of recog. Suret-s L. R. $300. S. T etc. etc. etc. 905. (Sec. 7165.) Prisoner remanded to jail by exaynining court. [Title.] Charge of . As in No. 903 to *, ayid continue:] — probable cause for holding the said C. D. to answer, remanded him to jail. [Conclude as from [|], in last entry.] 906. (Sec. 7166.) Finding by examining court that prisoner was not insane, etc. [ Title.] Charge of . As in Entry No. 903 to *, and continue :] — that the said C. D. was not insane when he committed the oflense charged against him [or find according to facts], remanded him to the custody of the sheriff". 907. Sec. 7166.) Finding of insanity by examining court. [Title.] Charge of—! As in Entry No. 903 to *, and continue :] — that the said C. D. was, when he committed the offense charged and still 1 By sec. 7167. -7177.J AKllEST, EXAMINATION, ETC. 455 is, insane [or specify other fact], ordered that he be committed to asyhim. 008 (Sec. 7108.) Order fixing recognizance hy examining court. ITille.] Cliarge of — . The defendant, C. D., having failed to give the security heretofore ordered l)y tlic examining court for his discharge from confinement, tlie said court ordered that tlio amount of such recognizance for liis discliarge, at any time hereafter, he fixed at tlic sum of , with security, to the approval of any judge discharging him. For entry under sec. 7174, see Entry No. 902. Recognized pkisoneu — 909. (Sec. 7177.) DcUrerctI and committed to jail. [Title..'] Indictment for . This day came E. X., tlie surety for the defendant herein, and delivered up the hody of the said defendant in open court, and asked to be discharged from further responsibility on his recognizance. And thereupon the court ordered that the said suretv be discharged from his said obligation.* and ordered the said C. D. into the custody of the sheritt". 910. (Sec. 7177.) Delivered, and new recognizance taken. [Title.] Indictment for -, As in last to *, and continue :] — and fixed the bond of the said defendant, to be conditioned as the former, at S-— , And thereupon the said C. D., with J. II. as his surety, en- tered into a new recognizance, as above, conditioned for his appearance [stedc time] to answer said charge. When tlic delivery is made in vacation, as provided in section 7178, an entry at chambers should be made, so as to keep a full record of the case, as follows : 456 JOURNAL ENTRIES. [SEC. 7178- 911. (Sec. 7178.) Prisoner delivered in vacation, and committed. In Chambers, July 15, 18 — , Before the Hon. R. W., Judge of the Common Pleas Court of County, Ohio. \_Title.'\ Indictment for . This day came E. K., the surety for the defendant herein, before the Hon. R. W., and delivered up the body of the said C. D., in the court-house of the said county, and asked to be discharged from further responsibility on his recogni- zance. And thereupon the said E. K. was discharged from his said obligation, and the said C. D. * was committed to the jail of the county. (Signed) R., W., Judge. 912. (Sec. 7178.) Prisoner delivered in vacation, and recog- nized. \_Title.'] Indictment for . ^5 in last to *, and. continue:'] — with J. II. as his surety, en- tered into a new recognizance, in the sum of $ , condi- tioned as the former, for his appearance at the next term of the court of common pleas, to answer said charge. (Signed) R. V., Judge. 913. (Sec. 7180.) Recogmzance forfeited. \_Title.'] Indictment for . And now comes the prosecuting attorney, on behalf of the State of Ohio, and presents to the court the recognizance of said defendant, taken before , on the day of , 18 — , in the sum of dollars, with J. B. as surety. Thereupon, the said defendant being three times solemnly called to appear and answer said charge as he agreed to do, and failing so to do, and J. B., the surety, being three times solemnly called to produce the body of said defendant as he as^reed to do, and failing so to do, the court order that the said recognizance be, and the same hereby is, forfeited abso- lutely. The court may add. :] — And that a ca])ias be issued for said defendant. -^7188.] GRAND JURY, ETC. 457 The action under sections 7183-6 is a civil action. For the forms of orders and judgment, follow those given in the Civil Code. 914. Forfeiture opened vp, etc. l^Title.'] Indictment for On motion to the court, by counsel for the defendant, the forfeiture of the recognizance heretofore entered herein is opened up and set aside. And the defendant, C. D., with L. R., his surety, enters into recognizance before the court in the sum of -^ dollars, con- ditioned for his appearance [name timel, to answer said charge. CI^APTER III. THE GRAND JURY AND ITS PROCEEDINGS. Formation of grand jury — 915. Entry on return of venire facias. 916. (Sec. 7196.) Order appointing attorney to assist prosecuting attorney. 917. (Sec. 7197.) Order appointing assistant prosecuting attorney for county. 918. (Sec. 7201.) Order puni-shing witness refusing to answer, etc 919. (Sec. 7202.) Juror sworn, in place of one sick, etc. New grand jury — 920. (Sec. 7203.) Entry on the formation of. Witnesses, record of — Report of grand jury, and proceedings ox — 921. (Sec. 7210.) Entry, on report made. 922. (Sec. 7211.) Order discharging prisoner not indicted. 92.3. (Sec. 7211.) Order recognizing to next term. rORMATIOX OF GRAND JURY The first entry after opening the minutes for criminal proceedings is on the return of the venire tacias for the grand jury. For the manner of drawing, issuing for, and forming the grand jury, see sec. 5162, et seq. A general form is here given. A faithful record of all the proceedings should be made. A grand juror may be punished for a contempt in the same manner 458 JOURNAL ENTRIES. [SEC. 7189- as a petit juror, as provided by section 5178. For the method of pro- ceeding, see under the Civil Code, page 54, ante. 915. Entry on return of the venire facias. The venire facias for a grand jury, heretofore issued, and returnable this day at 10 o'clock a. m., was duly returned by the sheriff, with his indorsement thereon, as follows, to wit : 18 — , April 16th. Served the within named jurors as fol- lows, etc. \_Copy the return in full.'] And upon calling the same in open court, A. B., D. F., L. M., etc., appeared in answer thereto ; and, for good cause shown, the court excused D. F., and ordered that a rule issue for T. M., returnable to-morrow morning at 10 o'clock, to which time the remaining jurors were excused. And the panel being incomplete, the court ordered a special venire facias ^ to issue to fill up the same, returnable to-mor- row morning at 10 o'clock ; whereupon the clerk issued a special venire facias for the following named persons, to wit : M. i^., etc. Or, if there be no rule or attachment, or other cause of delay, the special venire may be made returnable forthwith, and its return be made a part of the above. If returnable at a future day, it may be a separate entry, as follows : And now the special venire facias, heretofore ordered by the court, was duly returned b}- the sheriff, with his in- dorsement thereon, as follows, to wit: 18 — , April 18th. [Copy the return, and continue as on the return of a regular venire.] Or, when the jmnel is incomplete :] — And the panel being incomplete, the sheriff summoned as talesmen,' to complete the same, the following named persons, who appeared in answer thereto, to wit: R. S., etc. And the panel being full, the court appointed R. H. fcre- 'See sec. 5171. -7201.] GRAND JURY, ETC. 459 mull ' of the grand jury, and he, with his fellow jurors, took the oaths in manner and form as prescribed by law ;- and the said jury being instructed by the court in relation to their duties, were conducted to their room, attended by the sheriff. The following named persons compose the grand jury, to wit : 1. 11. S., foreman of the grand jury. 2. M. D., etc. 916. (Sec. 7196.) Order appoiiithig attorney to assist 'prosecuting attorney. [Title^^ In this case, it being the opinion of the court that the pub- lic interest requires it, J. E. is hereby appointed to assist the prosecuting attorney in the trial of the accused. 917. (Sec. 7197.)' Order appointing assistant prosecuting attor- ney for county. In the matter ot" the appoint-^ ment of assistant prose- > cuting attorney. j And now, it being shown to the court that it is necessary for the proper performance of the duties incumbent upon the office of prosecutino; attornov of tliis countv, that an assist- ant should be appointed, the court, upon careful consid- eration of the premises, hereby appoint R. S. as such assist- ant, at a yearly salary of dollars. And now came the said R. S., and gave his bond as such assistant prosecuting attorney in the sum of dollars, with T. H. and L. E as sureties, to the approval of the court, and also took the oath of office. 918. (Sec. 7201.) Order punishing witness refusing to answer, etc. In the matter of the con- 1 tempt of L. S. / And now came L. S. before the court, in custody of the 1 By sec. 7190. s Section since repealed. ^Secs. 7191 and 7192; also, see post, page 488. 460 JOURNAL ENTRIES. [SEC. 7202- sheriff', charged with contempt of court in refusing to answer as a witness before the grand jury. And the said L. S, being examined touching his said refusal, and other evidence being heard, on consideration thereof, the court find that he is thereby guilty of a contempt of court. It is therefore ordered * that a fine of $ ^ be imposed upon the said E. F. for this, his said contempt, and that he pay the cost of this proceeding ; for both of which execution is awarded. Or, * that the said E. F. be imprisoned in the jail of this county, • there to remain until he shall submit so to answer,, or be otherwise duly discharged, ingly 919. (Sec. 7202.) Juror sworn in ylace of one sick, etc. It appearing that G. H,, one of the grand jurors heretofore impaneled and sworn, is unable, by reason of sickness, fur- ther to attend thereon, it is ordered that L. B. be sworn in the stead of the said G. H. as such grand juror. New grand jury — 920. (Sec. 7203.) Entry on the formation of. It being deemed necessary, the court this day ordered the sheriff' to call together a new grand jury by summoning from among the bystanders or neigliboring citizens fifteen good and lawful men having the qualifications of grand jurors: "Whereupon, the following named persons were called, and appeared in answer thereto, to wit : 1. R. M., 2. L. R., etc. And the court appointed R. M. foreman of the said grand jury, and he, with his fellow jurors, took the oaths, in man- ner and form as prescribed by law ; and the said jury being ' See sec. 5254. -7211.] GRAND JURY, ETC, 461 instructed by the court in relation to their duties, were con- ducted to their room, attended by the sheriff. "Witnesses, record of — A daily record of the witnesses sworn to testify before the grand jury may be kept by an entry in the journal, thus : Record of Witnesses. The following named witnesses were this day sworn to tes- tify before the grand jury, to wit : 1. A. B., 2. C. -D., etc. Report of or and jury, and proceedings on — 921. (Sec. 7210.) Entry, on report made. This day appeared at the bar of this court the grand jury heretofore impaneled and sworn in, and for, the body of the county aforesaid, viz. : \. 11. S., 2. M. I)., etc., and })rosrnte(l to the court, through their foreman, H. S., their certain bill of indictment against G. II., for burglary, in- dorsed, "A true bill. 11. S., foreman of the grand jury." And also their certain other lull of indictment against J. T., for grand larceny, indorsed, "A true bill. II. S., foreman of the grand jury."' \_Copy report in full.'] Wlien the work of the jury is completed, add-] — And there being no further business for the said jury, they were discharged finally. 922. (Sec. 7211.) Order discharging prisoner not indicted, etc. yntle^ Charge of . Xo indictment having been found against this defendant, he is hereby discharged. 462 JOURNAL ENTRIES. [SEC. 7211- 923 (Sec. 7211.) Order recognizing to next term. [Title.'] Cliarge of . 'Eo indictment liaving been found against this defendant, the court order that upon entering into recognizance in the sum of dollars, with sufficient security for his appearance to ansAver the charge against him at the next term of the court, he be discharged from his imprisonment. CHAPTER IV. INDICTMENT AND PROCEEDINGS THEREON. 924. (Sec. 7212.) Order for election between two indictments. 92.5. (Sec. 7212.) Entry of election. 926. (Sec. 7212.) Entry of order, and election. 927. (Sec. 7216.) Prisoner discharged for variance. A motion to quash au indictment upon arraignment thereon, ad- dresses itself to the sound discretion of the court, and is never granted except in very clear cases/ 924. (Sec. 7212.) Order for election between two indictments^^ [Title.'] Indictment for . It ax)pearing to the court that there are pending against this defendant two indictments for the same crime, it is or- dered that the prosecuting attorney elect upon which he will proceed to trial. 925. (Sec. 7212.) E^dry of election. [Title^ Indictment for . Now comes the prosecuting attorney, in accordance with the former order of the court, and elects to proceed to trial against this defendant upon the indictment filed in this case, to wit, that of . If the election is made at the time of the order, the entry may be as follows : 1 Ex parte Bushnell, 8 Ohio St. 599. 2 Bailcv V. The State, 4 Ohio St. 440. -7239.] PROCEEDINGS BETWEEN INDICTMENT, ETC. 463 926. (Sec. 7212.) Entry of order, and election. [^Title!\ Indictment for . Xow comes the prosecuting attorney, and it appearing that there are pending against this defendant two indictments for the same crime, and the said prosecuting attorney being re- '^uired to elect upon which indictment he will proceed to trial, elects to proceed upon that of , as filed in this case.' 927. (Sec, 7216.) Prisoner discharged for variance, etc. \_Title.'\ Indictment for . This cause coming on for hearing on the motion to quash the indictment herein, and the court finding that there is a variance between the statement in the indictment and the evidence- off"ered, which is material and prejudicial to the substantial rights of the defendant, the motion is granted ; and the defendant is discharged. CHAPTER V. PROCEEDINGS BETWEEN INDICTMENT AND TRIAL. Whex prisoner insane — 928. (Sec. 7240.) Order for jury to try question. 929. (Sec. 7240.) Entry on verdict as to sanity. Pleas to the indictment — 930. (Sec. 7245.) Counsel assigned. 931. (Sec. 7252.) Indictment quashed — prisoner committed. 932. (Sec. 7252.) Indictment quashed — prisoner bailed. 933. Motion to quash overruled. 934. (Sec. 7252.) Plea in abatement sustained — prisoner committed. 935. (Sec. 7252.) Same — prisoner bailed. 936. (Sec. 7254.) Name corrected, on plea in abatement. 937. (Sec. 7256.) Demurrer overruled, and {ilea of "not guilty." 938 Demurrer sustained, and defendant discharged. ^ Upon trial being had upon the indictment elected, the other one will be quashed. 2 As to variance in the name of defendant, see sec. 7254. and Entry No. 936; see also sec, 7303, and Entrv No. 955. 30 464 JOURNAL ENTRIES. [SEC. 7240- Arraignment — 939. (Sec. 7260.) Verdict for defendant on plea in bar and order for dis- charge. 940. (Sec. 72G0. ) Verdict against defendant on plea in bar, and plea of "guilty " or " not guilty." 941. (Sec. 72G1.) Plea of guilty, and prisoner remanded. 942. Plea of guilty, and sentence. 943. Plea of guilty of smaller oflfense. 944. (Sec. 7262.) Plea of not guilty. 945. Plea of not guilty retracted, and plea of guilty entered. Ch.axge of venue — 946. (Sec. 7263.) Order for. 947. (Sec. 7266.) Recognizances of witnesses. When prisoner insane — 928. (Sec. 7240). Order for jury to try question. [Title.'] Indictment for . This clay came C. W. (I,, the attorney for the defendant, and suggested to the court that the defendant in this case is not sane, and also presented the certificate of J. P., M.D., to the same eft'ect. Thereupon, it is ordered that a jury be im- paneled to try Avhether or not the said C. D. is sane, and the hearing is set down for Saturday, June 24, inst., to which time it is directed that the venire be made returnable. Upou return of venire, make a journal entry as in No. 97, etc. If a .struck jury i.s demanded, follow the forms giveu on page 53. 929. (Sec. 7240.) Eyitry of rerdlct as to sauily. [Title.] Indictment for . This day came the defendant herein in charge of the sheriff, and his attorney; also came the jury heretotore impaneled in this case, to wit : 1. E. S., 7. C. O., 2. J. D., 8. S. W., etc., etc., and were duly sworn according to law. And thereupon, after hearing tlie evidence and the charge of the court u[)on the fpicstiou whether the defendant is or is not sane, the jury retired to their room in charge of the sheriff for deliberation. -7252.] PROCEEDINGS BETWEEN INDICTMENT, ETC. 465 And afterward came the said jury into open court and by their foreman presented their verdict in writing as follows, to wit : " We, the jury, tind that the defendant, C. D., is [o?^ is not] sane. R. S., Foreman." 930. (Sec. 7245, 77 O. L. 59.) Counsel assigned. \_Tille.'] Indictment for . And now the defendant being brought into court in charge of the sheriff, and it appearing that he is in indigent circum- stances, and unable to employ counsel, the court, at his re- quest, appoint R. S., Esq., as counsel for his defense. 931. (Sec. 7252.) Indictment quashed — 'pri:'"in and order necessarily involve ami include a motion and order for a separate trial of the party making the motion, and have all the force and effect of a motion and order for both purposes. Brown v. The State, 18 Ohio St. 496. a By sec. 7264. 'By sec. 7266. It is better to make the order as notice to the witnesses. 470 JOURNAL ENTRIES. [SEC. 7267- Court of Common Pleas of the County of , to which the venue of this case has been changed, viz. : Names of Witnesses. Amount of Recog. Names of Sureties. 1. C. D. $300. R. A. etc. etc. etc. CHAPTER VI. • TRIAL, AND PROCEEDINGS INCIDENT THERETO. Juries — 948. Jury formed, in capital cases. Evidence — 949. (Sec. 7283.) Order for jury to view place. 950. (Sec. 7290). Order for subpoena for person in penitentiary, etc. 951. (Sec. 7293.) Commission to take testimony. 952. (Sec. 7295.) Prisoner discharged to become state's witness. Trial— 953. (Sec. 7301.) Leave to be tried when absent, or by the court. 954. (Sec. 7302.) Separate trials ordered. 955. (Sec. 7303.) Indictment quashed, and prisoner detained. Exceptions — 956. (Sec. 7304.) Bil of exceptions allowed, etc. 957. (Sec. 7306.) Attorney appointed to argue case, etc. ACQUITT.\L WITHOUT TRIAL 958. (Sec. 7309.) Prisoner discharged, if not tried, etc. 959. (Sec. 7310.) Same, when recognized. 960. (Sec. 7311.) Application for discharge refused. Juries — A jury is made up for the trial of every capital case specially ; ^ and the entries on the return of the venire must be made under the title of >Sec. 7267. -7282.] TRIAL, AND PROCEEDINGS INCIDENT THERETO. 471 the case. A form similar to the following may be used, but the clerk should in each case make a full record, in the most intelligible form, of the proceedings had. 948. Jury formed in capital case. \_Title.'\ Indictment for murder in the first degree. This day came the prosecuting attorney, on behalf of the State of Ohio, the defendant, C. D., being brought into court in custody of the sheriff, and his counsel also coming. And the venire ^ for tlie jury in this case heretofore issued according to law, returnable this day, was duly returned by said sherifi", with his indorsement thereon as follows : [copy in full.'] And said venire being called in open court, all of the above-named persons appeared in answer thereto, except F G., .T. H., etc. ; and the court ordered that a rule be issued for F. G., directing him to appear forthwith to show cause for his failure to obey the writ of this court.- And also the alias venire^ heretofore issued according to law, returnable this day, was duly returned by said sherifi", with his indorsement tliereon, as follows: [copy in full.] And said alias venire being called in open court, all of the above-named persons appeared in answer thereto. And upon the further call of said venire, and said alias venire, for cause shown, the court excused R. T., etc., and the defendant, by his counsel, challenged G. H. for cause, and the challenge was sustained : and also challenged per- emptorily D. E., etc. ; and R. L. and J. B. being separately tried were accepted as jurors in this case. And it ap- pearing to tiie court that there were not thirty-six qualified jurors present, it was ordered^ [on motion of the defendant] that the clerk draw from the box, as in other cases, a suffi- 1 Directed bj* sec. 7268. -See sec. 5641 in connection with sec. 5178. For further proceedings against a juror, see p. 54. 3 Directed by sec. 7268. * See sec. 7269. 472 JOURNAL ENTRIES. [SEC. 7283- cient number of ballots to make the number of competent jurors thirty-six, and that a venire issue, returnable [name day'\. And thereupon the court adjourned the further hearing of the case until to-morrow morning at 10 o'clock. Second day. \_Title.'] Indictment for murder in the first degree. This day again came the prosecuting attorney, on behalf of the State of Ohio, the defendant being brought into court in custody of the sheriff, and his attorney also coming. Also came R. L. and J. B., heretofore accepted as jurors in this case. Continue ivith record, of all iwoceedings had iintil the jury is comjjleie, and then say f] — and the jury being complete, the following named persons having been tried and accepted, to wit : 1. R. L. 2. J. B.. etc, were duly impaneled and the following oath administered to them : " You shall well and trul}' try, and true deliver- ance make, between the State of Ohio and the prisoner at the bar, C. B., so help you God."^ And the trial proceeded, etc. In other criminal cases — By section 7276 the same forms of summoning and impaneling ju- ries are had as in civil cases. See under Civil Code. Evidence — 949. (Sec. 7283.) Order for jury to view place, etc. [Title.'] Indictment for . It being proper, in the opinion of the court, for the jury to have a view of the place in which [any material fact~\ occurred, it is ordered that said jury be conducted in a body, under the charge of the sheriti:', to the said place ; and that the same be iSee sec. 7281. See also the case of Wareham v. The State, 25 Ohio St. 60L -7301. J TRIAL, AND PROCEEDINGS INCIDENT THERETO. 473 shown to tliem by F. G. And that they return to-morrow morning at 10 o'clock. 950. (Sec. 7290.) Ortlerfoi^ subporna for person confinedin pen- Ueniidry, work-house, or prison. [Title.] Indictment for . It being necessary to procure the testimony in this case of M. S., now confined in tlie ]ienitcntiary, it is ordered that a subpoena ])e issued, dirt'cted to the warden of the peniten- tiary [or, superintendent or is:ee[)er of woi-k-house or ])rison], commanding liim to bring the said M. S. before the court. 951. (Sec. 7203.) Commission to takr testimony. [Title.l Indictment for . On appHcation of tlie defendant, l)y liis counsel, and it ap- pearing that G. F. is a material witness in his behalf, and that he now resides in Lexington. Kentucky, the court hereby n})]»oint the mayor of said Lexington a special conmiissioner, and direct tliat a commission l)e issued to him, to take the testimony of said G. F., ujion interrogatories and cross-inter- rogatories on hie, and which shall Ije annexed to said com- mission, at some eonvenient place in said city, on or before the day of , a. d. 18 — , and return the same to this court duly certified. And it is ordered tliat notice of this order be given to the prosecuting attorney days l)efore such examination. 952. (Sec. 7295.) Prisoner discharged to become state's vitness. [Title.'] Indictment for . It appearing to the court that the defendant, E. F,, is will- ing to become a witness for the state in the prosecution of his co-defendant upon being discharrged therefrom himself, it is ordered that a nolle prosequi be, and is hereby, entered herein as to said E. F. Trial— 953. (Sec. 7301.) Leace to be tried when absent, or by the court. [Title.'] Indictment for . The defendant, C. D., now comes by his attorney, and pre- sents to the court his written request to be put upon trial in his absence [or, be tried by the court], being in words as 474 JOURNAL ENTRIES. [SEC. 7302- follows, to wit [co^)»/ in fuir\, and the said request is granted by the court. 954. (Sec. 7302.) Separate trials ordered. [Title.] On application to the court by the defendant, E. F., the court orders that a separate trial be had of each defendant herein. 955. (Sec. 7303.) Indictment quashed and prisoner detained. [Title.'] Indictment for . On motion, and it appearing to the court that a mistake has been made in charging the proper oflense in the indict- ment against this defendant, the said indictment is hereby quashed, and the jury discharged. But it appearing that there is good cause to detain the said defendant in custody, it is ordered that he enter into recognizance to answer to the offense on the first day of the next term of this court, in the sum of $ . Otherwise, that he be committed to jail. And it is ordered that the witnesses for the state enter into recognizance to appear at the same time and testify. Exceptions — 956. (Sec. 7304.) Bill of exceptions allowed, etc. [Title.] Indictment for . See Entry No. 192, Civil Code. 957. (Sec. 7306.) Attorney apjjointed to argue ease, etc. [Title.] Indictment for . The prosecuting attorney having presented his certain bill of exceptions in this case to tlie supreme court, and the su- preme court having aHowed such bill to be filed, G. P., one of the attorneys of this court, is hereby appointed to argue said case against the prosecuting attorney before said court. Acquittal without trial — 958. (Sec. 7309.) Prisoner discharged if not tried, etc. [Title.] Indictment for . The defendant herein having been indicted [state the time when"] -7311.] VERDICT AND JUDGMENT, ETC. 475 and not brought to trial, and the continuance [or, delay] not being caused by his act, he is hereby discharged.^ 959. (Sec. 7310.) Same, icken recognized. \_Title.'\ Indictment for . The defendant herein not having been brought to trial, and this being the term of the court after his indictment, he is hereby discharged from his recognizance.^ 960. (Sec. 7311.) Application for discharge refused. \_Title^ Indictment for . This cause being heard on the application of the defend- ant for discharge on the indictment against him, and the court being satisfied that there is material evidence, on the part of the state, to be had at the next term, and which can not now by reasonable diligence be had, the said application is refused; and the said defendant is remanded to the custody of the sheriff" [or, admitted to bail for his appearance to answer said charge at the rext term of this court]. CHAPTER VII. VEKDICT AND JUDCT:yrENT, AND PROCEEDINGS THEREON. Verdict — 961. General entry on reture of verdict when given on the day the trial begun. Cause progressed — 962. Cause progressed ; second or succeeding day. Forms of Veedicts. I. General verdict. II. Guilty on one count. III. Guilty of a degree inferior to the charge. IV. Guilty of an attempt. ' This is not a mere temporary release from confinement, but a final judg- ment in the cause, and a bar to all subsequent prosecutions for the same crime or ofiense. Ex parte McGehan, 22 Ohio St. 442. 476 JOURNAL ENTRIES. [SEC. 7312- Sextenxe — 963. (Sec. 7319.) Pronounced on verdict. 964. Pronounced on plea of guilty. 965. Nolle prosequi. Forms of Sentence. I. Imposing fine. II. Same, and order committing till paid. III. Sending to jail. IV. Sending to the penitentiary. V. Sentence of hanging. ExECUTIOX OF SUSPEXDED SENTEX'CE — 966. (Sec. 7321.) Addendum suspending sentence for a misdemeanor. 967. (Sec. 7325.) Addendum suspending sentence for a felony. 968. (Sec. 7324.) Order carrying suspended sentence into execution. 969. (Sec. 7325.) Escaped prisoner re-sentenced when captured. 970. (Sec. 94.) Piecord of reprieve. EXECUTIOX OF DEATH SENTENCE 971. (Sec. 7344.) Time fixed for execution of escaped prisoner. Convict insane or pregnant — 972. (Sec. 7346.) Insanity found, execution suspended. 973. No insanity found. Verdict — When a jury is discharged before verdict, for the reason of sickness of a juror, or other accident or calamity, or be- cause they can not agree, as specitied in section 7313, use the forms in the Civil Code,^ being careful to state the cause of the discharge ; otlierwise the discharge will operate as an ac- quittal of the defendant.- It may also be well to add : " without prejudice to the pros- ecution of this case."' 961. General entry on return of verdict; ichcn given on the day that the tried is begun. The State of Ohio~| vs. ^Indictment for . C. V>. j Xow came the prosecuting attorney on behalf of the vState ■i nines r. The State, 24 Ohio St. 134. -7314. j VERDICT AND JUDGMENT, ETC. 477 of Ohio, and tlie defendant witli liis counsel ; [or say^ the de- fendant being- brought into court in custody of the sheriff;] also came the following named persons as jurors, to wit: 1. J. E., 7. W. L., etc., etc., who were duly impaneled and sworn according to law. And the said jury having heard the testimony adduced by the parties, the arguments of counsel, and the charge of the court, retired to their room in charge of the sheriff^ for de- liberation. And afterward came the jury, conducted into court by the sheriff",- and returned the following verdict in writing, signed by their foreman, to wit : " We, the jury, on the issued joined, find, etc." \^See forms^ page 478.] [Signed,] B. F., Foreman. If t/te jury be pollrd, add, after the verdict: — [By sec. 7ol4.] AVhereupon, on the request of the prosecuting attorney \or, the defendant], the court ordered that the jury be polled. And ujion each juror being called by name, and inquired of if the verdict just read was his verdict, each for himself sep- arately answered, "• It is." //' the veniict be '■'' guilty^' add :] — And thereupon said defendant is ordered into the custody of the sheriff' to await sentence. If the verdict be " not guilty,'^ a<(d:'] — And there being no further charge against said defendant, he is hereby discharged. Cause progressed — If the trial is not completed on the day it is begun, the journal should show each day's 2)rogress, as iu civil cases.^ 902. Cause progres>oa tlie petition in error, the orig'iiial pleadings, and papers, and was argued by coun- sel ; on consideration whereof the court find, etc. [Coritinue as in similar cases in the circuit court.] For forms of judgmciil affirmed see Nos. 821 and 822. Foi' forms of judi^mcnt reversed see No. 815, et seq. But in case final judgment is entered in general term tbe case need not be re- manded for execution. Error from gp;neral term to tfie supreme court. Final orders and judgments of tiie Superior Court of Cincinnati are reviewed in the same manner as those of the circuit courts. See sec. 503, 82 O. L. 24. If the case went from special to general term on error, no further bill of exceptions will be I'cquired, the evidence being already put on record, and the record in general term showing the action taken there. If the case wont from special to general term by reservation, the bill of exceptions for the supreme court will be made up as if the general term were the original court, the certified bill of evidence with its exhibits being annexed to. and made part of, the bill of exceptions. See form on page -199. A.PI>EN^DIX. The following is given as a general form for a hill of ex- ceptions, containing the more frequent kinds of evidence in- troduced, exceptions and rulings of the court. BILL OF EXCEPTIONS. 1. Witness offered; testimony given. 2. Question objected to; objection sustained. 3. Testimony ruled out. 4. Deposition offered in evidence; part objected to. 5. Affidavit offered in evidence. 6. Contract or otiier paper offered in evidence. 7. Deed or otber paper offered in evidence and rejected. 8. Wit!iess or other evidence offered and rejected. 9. ]i(H'ord of anotiir., which is hereto attached and made a part hereof,^ marked " Exhibit A." The defendant by his counsel objected when the same was ofiered to the admission of the following portion of the depo- Bition, to-wit : " Question, etc. Answer, etc.," [or specify in any way the •part objected ^o], which objection was overruled [or sustained] by the court, and said testimony admitted [or ruled out], to which ruling of the court and admission [or rejection] of tes- timony, the said at the time excepted. 5. The plaintiff also offered in evidence and read the affida- vit? of N. P., which is hereto attached and made part hereof, markfcd '^ Exhibit \^r 6. And the plaintiff further to maintain the issue on his part also offered in evidence the contract between, etc. [or other paper"] and the agreements of , 18 — , thereto attached, ^ Where the ruling out of testimony is assigned for error, the bill must show as much of the evielence as to show the true state of the case at the time, and the right to introduce the evidence. Landis v. Dayton, W. 659. ^A reference to a deposition on file, merely stating the deponent's name, or giving some artificial mark on the deposition itself, is not suflS- cient ; it must be attached to or made part of the bill of exceptions. Wells V. Xartin, 1 Ohio St. 3SG ; Hicks v. Person. 19 Ohio, 446. See note 1, p. 496. ^The caption and authentication of depositions should not be copied into the record, unless seme questions arise in them. Nye v. Watt, W. 537. * An affidavit can not be noticed on error, unless brought into the record by the bill of exceptions. And even where affidavits read on the hear- ing of a motion are copied into the record by the clerk, without any bill of exceptions taken for that purpose, they can not be considered on pr> ceedings in error. Sleet v. Williams, 21 Ohio St. 82. See also note 1, p. 496. 496 JOURNAL ENTRIES. which is hereto attached and made part hereof,^ marked " Ex- hibit B." 7. And the plaintiff further to maintain the issues on his part offered to give in evidence a deed from, etc. [or any paper], and the defendant objecting to the same being taken in evidence, tlie court refused to allow the same to be read,^ to which ruling the plaintiff at the time excepted ; which said paper is hereto attached and made part hereof, marked "Ex- hibit C." 8. And further the plaintiff offered the testimony of IN". L. to prove that, [or offered to produce evidence tending to prove that,] etc. [state the facts which such testimony tends to prove,^ or set forth the testimony], and defendant objecting, the court refused to allow him to testify in the case [or refused to receive the said evidence] for the reason that, etc.,* to which ruling of the court the plaintiff at the time excepted. ^ Papers not set out in, or attached to, the bill of exceptions, or in some way so connected therewith as to make them a part thereof, can not be taken as parts of the bill. Wells v. Martin, 1 Ohio St. 386 ; Busby v. Finn, 1 Ohio St. 409; Baker v. Scovill, Superior Court of Cincinnati, Gen- eral Term, 1870, 2 C. S. C. R. 37. In the case of Busby v. Finn, supra, the court (Thurman, J.) said : " We do not mean to say that it is indispensable to copy into, or actually at- tach to, a bill of exceptions every paper making part of it, though Hicks V. Person, 19 Ohio 446, seems to require this. Such a description may be given of an exhibit as to leave no doubt of its identity when found among the papers." As to amending a bill of exceptions in annexing papers, see ante p. 91. * To justify the reversal of a judgment, where the error complained of is the rejection of evidence, its materiality must affirmatively appear upon the face of the record. Courtright v. Staggers, 15 Ohio St. 511. ^ When an exception is taken to the ruling of a court in rejecting tes- timony offered by the party excepting, it is riot necessary that the bill of exceptions should set out the testimony offered and rejected; it is suffi- cient, in such case, to state the facts which such testimony tended to prove. Himrod Furnace Co. v. Cleveland and Mahoning R. R. Co., 2J Ohio St. 451. *The record should show upon what ground the witness was rejected. Armstrong v. Clark, 17 Ohio, 495. BILL OF EXCEPTIONS. 497 9. And the jjlaintifF further to maintain the issuf" oii his ^art oflered in evidence the record of the case of A. 1 against M. N., numbered in the court of , t copy of which is hereto attached and made part hereof,^ map ^ed " Ex- hibit D." And thereupon the plaintifi" rested his case. 10. And the defendant, to maintain the issue on his part, ofiered, etc. [in the same form as above.'] And thereupon the defendant rested. 11. And thereupon the plaintiff further to maintain, etc. And thereupon the plaintiff rested. And the foregoing is all the evidence given or offered by either side upon the trial of the case,^ 12. And at the close of the testimony, and after the con- clusion of the argument of the respective counsel [or before the argument], the plaintiff' requested the court to give the 1 .See note 1, p. 496, as to making papers part of a bill of exceptions in general. Thurman, J., in commenting on the case of Busby v. Finn, supra, said: " The bill states that ' the defendants gave in evidence the record of the judgment in Marion county, hereto attached, marked A,' but no such record is attached, or marked as filed, or mentioned in the pleading.^, or referred to in any return or certificate of the clerk of the court. It is therefore manifest that rmj/ record of ayv/ judgment of an>/ court in Ma- rion county, and between awy parties, satisfies the description in the bill of exceptions, provided it is marked A;' and held that the evidence was not properly before the court. -To entitle the party to review, the bill of exceptions must show upon its face that it contains all the evidence given upon the trial, and acted upon by the court below. Ide v. Churchill, 14 Ohio St. 372; Tilton v. Morgaridge, 12 Ohio St. 98; Cantwell v. State, 18 Ohio St. 477; Eastman v. Wright, 4 Ohio St. 156 ; Wilson v. State, 2 Ohio St. 319; Farmer's Col lepe V. Butler, 18 Ohio St. 418. 498 JOURNAL ENTRIES. following charges to the jury, each of which tho court gave, to wit : [Set out in full.'] 13. And at the same time the plaintiff asked the court to give the following charges to the jury, each of which the court refused to give : to each of which refusals the plaintiff then and there excepted. To wit : [Set out in full.'] 14. And at the same time the plaintiff asked the court to give the following charge to the jury : [Set out charge.] which charge the court refused to give, but gave it modified as follows : [Set out charge.] To which refusal to give the charge as asked, and to ivhich ^.harge as given the plaintiff* at the time excepted. 15. And [the arguments of the counsel for the respective parties being concluded] the court then charged the jury as is set forth in the copy thereof hereto attached and made part hereof,^ marked " Exhibit E." And the plaintiff at the time excepted to said charge as fol- lows : 1. To the portion of the third paragraph thereof, etc. [set out specifically the matter excepted to"^], on the ground that,^ etc. ^ Otherwise, it will not be regarded as a part of ttie record. Hallam v. Jacks, 11 Ohio St. 692. 2 Where exceptions are taken to a general charge given by the court to the jury, unless the party's exception points out specifically the part or proposition of the charge excepted to, and the grounds of his exception, a reviewing court is not bound to take notice of the exception. Adams V. The State, 25 Ohio St. 584, 5S7. In the case of Taylor v. Boggs, 20 Ohio St., 516, 534, counsel for defend ant in error claimed that an exception in these words — " to which charge BILL OF EXCEPTIONS. 499 Said " Exhibit E," and the said special charges given aa hereinbefore stated, comprise all the charges of the court as given to the jury at said trial. 16. Whereupon the court gave judgment for the defendant, [or the jury retired for deliberation, and returned a verdict for the defendant.] as appears of record in the cause; and the plaintiff thereafter Hied amotion to setaside the said judgment \_or verdict] and for a ne\v trial, and the same was argued by counsel and submitted to the court, which, upon considera- tion, overruled the same, [and entered judgment upon said verdict,] as also ap[)ears of record. And the plaintiff thereupon excepted to the overruling of said motion, and presented this his bill of exceptions, and prayed that the same be allowed, signed, sealed, and made part of the record, which is accordingly done this day of ,18—. [Signed,] .J. D., Judge of the Court of Common Pleas of county f Ohio. BILL OF EXCEPTIONS FROM THE GENERAL TERM TO THE sri'RME, COURT IN A CASE RESERVED TO GENERAL TERM. Superior Court of Cincinnati^ A. B.^ vs. vBill of Exceptions. C. D.J Be it remembered that on the trial of this action at the term, 18 — , of the Superior Court of Cincinnati in gen- eral term convened, the said action came on to be heard as reserved from special term upon the certified bill of evidence, which said bill of evidence with its showing of the ruling of the court in special term in admitting and rejecting evidence, is hereto attached and made part hereof, marked " Bill of ev so given, and to every part thereof, the plaintiflf excepted " — was not suffi- cient, because given in gross. The court did not pass on the question, though the judgment below was reversed. But in this case of Adams v. The State, supra, the decision goes to the extent of saying that such an exception can not be sustained, if any part or proposition of the charge is good. 500 JOURNAL ENTRIES. idence," and contains all the testimony of both parties in the action. And upon the hearing of said cause at general term the said court gave judgment for the as appears of record in the case-. The then moved the court for a new trial, which mo- tion the court upon consideration overruled as also appears of record. And the said thereupon excepted to the overruling of laid motion, and presented this his bill of exceptions, and .rayed that the same be allowed and made part of the record of the case, which is now accordingly done on this day of , 18—. [Signed,] A. Y., [seal.] M. H. T., [seal.] T. A. 0., [seal.] Judges of the Superior Court of Cincinnati BILL OF EXCEPTIONS. 501 BILL OF EXCEPTIONS WHBN THE EVIDENCE IS EMBODIED IN AN AGREED STATEMENT OF FACTS. State of Ohio, Hamilton County Court of Common Pleas, A. B. ^ vs. > Bill of exceptions. C. D. J Be it remembered that at the term, 18 — , of the court of , before the Hon. J. D., judge, this cause came on to be heard upon the pleadings and the evidence, all of which evidence in behalf of both plaintiff and defendant is set out in the agreed statement of facts hereto attached and made part hereof, marked " Exhibit A." ^ And the court, after consideration, etc. [conclude as in other cases. The bill of exceptions from the District Court in appealed cases will be made out in the same general form as the two above. In error cases no other bill is required than the one used from the Common Pleas, as that puts everything on the record, not already so, up to that time, and the record shows all subsequent proceedings. ^ An agreed statement of facts, which constitute the evidence in a case, can not be regarded as a special verdict, and forms no part of the record, unless made so by bill of exceptions. Bank of Virginia v. Bank of Chil- licothe, 16 Ohio, 170. But if the case was tried on an agreed statement of facts, which facts are admitted by the parties, leaving for the court nothing to find, and only the naked duty of declaring the law upon the given statement of ad- mitted facts, and the record shows that the parties stipulated that the facts should be taken as admitted, and judgment entered thereon, ac- cording to their legal riglits, such an agreed statement may be properly regarded as a special verdict, and will be deemed a part of the record upon error. Clinton Bank of Columbus v. Ayres, 16 Ohio, 282, 287. Consequently, in the last-mentioned case, no bill of exceptions is neo essary, as the record shows the whole case. 502 JOUKXAL ENITJIS. In criminal cases the bill of exceptions is governed by the same rules as in civil, and it may be made in the same general form It is more generally the case, however, that separate bills are put in for the several supposed errors as they arise, in criminal than in civil cases. But, as some of the matters excepted to are of a different nature from those found in civil cases, a few of them are given in the following form as examples. They may be put into one bill or made out separately, as the attorney deems best. For exceptions taken in the examination of witnesses and the charging of the jury, the form of the bill maybe the same as in civil cases. BILL OF EXCEPTIONS IN CRIMINAL OASES. [Heading and title as in civil cases^ Be it remembered that on the day of , a. d. 18 — , being one of the days of the term in said year of the Court of Common Pleas of county, and being the day on which this cause was set for trial, and upon the calling of the case for trial, the defendant objected to being put on his trial on that day for the reason that, etc. \_set out\hnt the court de- cided, etc., and notwithstanding the objection of the defendant put him immediately on trial. To which decision of the court, and to its action in the premises, the defendant then excepted as erroneous. Be it remembered that afterwards, on the day above men- tioned, at the trial of the said defendant, while a jury was being impaneled to try the issue in said case, one J. L. was called by the sheriff, and was sworn and examined touching his qualifications to sit as a juror upon the trial of said cause; whereupon he testified as follows \_set out testimony^ And the above was all the testimony of said J. L., whereupon challenge for cause was tendered by the which the court sustained [or overruled], and defendant by his counse' at the time excepted. BILL OF EXCEPTIONS. 503 Be it remembered that afterwards, on the day above men- tioned, betbre the jury had been impaneled or sworn, the de- fendant challenged the array of the jury returned by the sheriff for the reason that, etc., [set oat reasonl. And the de- fendant in support of his challenge called, etc. [set oufj. The prosecuting attorney then called, etc. [set out], which was all the testimony adduced upon occasion of the challenge above recited. And thereupon the court decided, etc., and overruled said challenge, to which ruling the defendant excepted as erroneous. And now the defendant presents this his bill of the several exceptions by him taken in manner, and at the times, above set forth, and prays, etc. [as in civil case]. MANDATES. The mandate from the court of error to the inferior court may be in the following FORM. The State of Ohio, \ District Court, County. / Term, 18—. To the honorable the Court of Common Pleas in and for county, Ohio, greeting : Whereas, in a certain action which was lately heard in our said District Court, wherein was plaintiff, and de- fendant, the following was entered on the day of , 18 — , viz : This cause came on for hearing, etc. [Copy order or judg- ment in full.] You are, therefore, hereby commanded, without delay, to cause the said to be carried into complete execution ac- cording to the tenor thereof. Witness, T. B. D., clerk of our said District Court, and the seal thereof, at , this day of , A. d. 18 — . [seal.] T. B. D., Clerk. PRACTICE, PLEADINGS, AND JOURNAL ENTRIES UNDER THE ACT For the Restoration of Lost Records. 81 OHIO L. 159. I. Substitution of plkadinos, process, and other files i\ pending ac- tions — 1. Motion for leave to substitute. 2. (Sec. 5084.) Order substituting. 3. (Sec. 5084.) Same, when papers are few. II. Supplying or replacing the record in actions wherein final judgment HAS BEEN RENDERED First. From certified or agreed copy of record. 4. (Sec. 5339a, 1st, 2nd, and 4th.) Order. Second. From the original pleadings, erdries, papers, etc. 5. (Sec. 5339a, 3d.) Order. Third. From evidence, when record and papers are partially or totally de- stroyed. 6. Application. 7. Precipe for summons. 8. Affidavit of non-residence. 9. Entry approving publication. 10. (Sec. 53396.) Order for supplying, etc. 11. (Sec. 53396.) Same, when record is made up and presented to the court. III. ReCOPTING ORKUNAL PAPERS AND RECORDS. IV. Establishing thk fact of the existence and the substance and effect OF A judgment, prior TO THE DE.^TRUCTIOX OF THE RECORD. 12. Application. 13. (.Sec. 9076.) Decree finding existence, etc., of judgment. V. EsTABLI.^HING THE FACT OF THE EXISTENCE OF A LOST MORTGAGE OR OTHER LIEN, DEED, OR WILL, AND ITS SUBSTANCE AND EFFECT. 14. Petition. 15. (Sec. 9076 and c.) Decree finding existence, contents, etc. 5046 JOURNAL ENTRIES. [SEC. 5084- 1. Substitution of pleadings, process, and other files in PENDING ACTIONS. The only provision relating to pending actions in this act is in sec- tion 5084, 81 Ohio L. 160, and is only an enlargement of a former provision. This section does not refer in terms to pleadings or other files being destroyed by fire, riot, or civil commotion, but, of course, is applicable to such cases as well as others ; but there is no provision for paying the costs in such cases out of the county treasury. Neither is there any statutory provision for restoring the appearance docket in pending cases, except so far as the posting of the substituted copies restores it.' When a copy of a pleading or other paper is filed and the original appearance docket has been destroyed, the title of the case and the record, on the docket, of the sheriff's return of process ought to be re-entered. Unless all parties are before the court couseuting to the substitu- tion, a motion should be filed by the ])arty applying, which will come up for regular hearing, all parties to the action thus having notice. 1. MOTION FOR LEAVE TO SUBSTITUTE PLEADINGS, ETC. Court of Common Pleas, Hamilton County, Ohio. A. B. ) 55,026.1 vs. y C. D. et al. j Novp- comes the , and moves the court for leave to sub- stitute copies of pleadiugs, process, and other files in this action. Or the papers to l^e substituted may be designated particularly. On the motion being granted, the order may be made in the follow- ing form when the papers are numerous. 2. (Sec. 5084, 81 Ohio L. 160.) Or Application to restore lost record. C.D.,E.F. andMrs.K.G.J And now comes the said A. B., and represents to the court that on the 2d of September, 1854, he commenced an ac- tion in this court, which was numbered 12,471, for [state object of suitl, against C. D., E. F. and E. G., and such proceedings were had therein that at the January term of this court in the year 1857 a final judgment was rendered, and thereupon a full and complete record of the case was made as required by law. That said record was lost or wholly destroyed by fire at the burning of the court-house in this county, in March,. 1884, * and can not be supplied or replaced as provided in section 5339rt of the act passed April 12, 1884, 81 Ohio L. 159. This applicant further states that in and by the record so made up and entered it was set forth and appeared as fol- lows, to wit : That the petition of the said plaintiff was filed on the 2d day of September, 1854, a true copy of which [or, in case of a substantial copij beinr/ made up, say, a copy in substance of which] is hereto attached, marked '^Exhibit A," and made a part hereof. \_ln case of the loss of the petition, instead of a copy in sub- stance being attached, as above, the last clause may be as follows :'] That in the petition of the said plaintiff", filed on the -4339rt.j RESTORATION OF LOST RECORDS 504^ 2d day of September, 1854, it was alleged substantially as follows, viz.: [Here state substance of petitmi.'] Applicant further states that by the said record it ap- peared that a summons against all of said defendants was duly issued on said petition, anrl that all of the said de- fendants were duly served with process, and as to so much of the petition as claimed a discovery of advancements a demurrer was filed by the said C. D., which demurrer was by the court overruled, and leave was given said defendants to answer. That an answer was tiled by said defendants on the 1st day of July, 1853, * in which, etc. \_here give substance of the answer, or introduce it in one of the ways shown above. But if in any case it happens that the applicant is unacquainted with even the substance of the pleadinrj or other paper, make the statement as follows, bcginniny at * : But tlie applicant is unable to state the purport or contents thereof, and prays it may be supplied if ascertained.] That an amended petition was subsequently filed by leave of the court setting forth, etc. [state contents as above.'] That an order of this court was made in the case at the April term, 1855, and entered on the journal, * finding and ordering that, etc. [state substance of order; or, if the original is preserved, say, beginning at * : which order as originally drawn by the attorneys and entered by the court is hereto attached, marked " Exhibit B,"' and made a part hereof.] If the entry be a judgraeut or decree, application may be as follows: That afterward, on the 2d day of April, 1858, the said ac- tion came on for hearing, and an order [or, judgment ; or, decree] was then made and entered upon the journal of tjie court, * which order [or, judgment ; or, decree] as originally drawn by the attorneys and entered by the court is hereto attached, marked " Exhibit A," and made a part hereof [or, beginning at *, finding upon the pleadings and evidence that, etc., and ordering and adjudging that, etc.] If the case is tried before a jury, it may be stated as foUows : 504/i JOURNAL ENTRIES. [SeC. 4339a- That on the day of , 18 — , a jury wus dnly im- paneled and sworn in said action, and the cause progressod, and that on the day of , 18 — , the jury returned a verdict finding, etc. [stale verdict or its purport']. Tliat on the day of , 18 — , the said filed a motion for a new trial, whicii was on the day of , 18 — , overruled by the court, and judgment entered on said verdict, which judgment, etc. [state as in one of the forms gireii above']. If it be a case in the District Court, the f)ll<)wing may ho i;s:'*l That on the day of , 18 — , the transcript and original papers of said action were delivered to the clerk of the District Court, and by him docketed as case Xo. in said court, and a petition in error was filed by the said 1 which, etc. [as in case above]. And so continue with each step of the original case. In case of there being persons interested in the judgment who were not parties to the action, make a statement of the facts a part of the application, as follows:' The applicant further says that Mrs. K. G., the widow of E. G., deceased who was a party to the original judgment, has some interest in the estate therein set off and divided to him, the nature of which is unknown to applicant. He furthermore states that he has been informed, and believes, that sundry portions of the land which were set oft" to some of the parties in the said partition have been sold and con- veyed, or have otherwise passed to divers persons whose ' Notice to interested parties. As section 533% provides tlnit "summons shall issue uiid actual servicH in- service by publication shall be made upon all persons interested in or att'ected by said original judgment or tinal entry in the manner provided by law for the commencement of civil actions," etc., the same forms will tie used as in civil actions, when the names of such parties are known. But there may be mai\ others interested whose n«??ies are unknown, and therefore do not properly come under the provisions of section 5048 Revised Statutes, and who are not heirs ur devisees, and therefore do not come under section 5053 Revised Statutes. In such cases it is doubtful if publication against such unknown parties ■would be PufBcient to bind them. -4339a.] RESTORATION OF LOST RECORDS. 504l names and places of residence are wholly unknown to said applicant, and whom he can not otherwise describe. He therefore prays that the said Mrs. K. G. may be made a party, and that all persons who by purchase or otherwise have acquired an interest in any of the lands which were included in the proceedings in said suit may, when discov- ered, be admitted as parties to this proceeding. The applicant therefore prays the court that the said rec- ord may be supplied and replaced in the manner provided by the said statute passed April 12, 1884, and for such other and further relief as from the nature of the case may be re- quired. K. T. k .\L, Attorneys for Applicant. State of Ohio, Hamilton County, ss.: A. B., the applicant aforesaid, being duly sworn, says that the facts stated in the foregoing application are true, as he verily believes. A. B. Sworn to before me, and subscribed in my presence, this day of , 18—. C. W., Xotary Public, Hamilton County, Ohio. 7. PRECIPE FOR SUMMONS. Court of Common Pleas, Hamilton County, Ohio. A. B. ) 12,471.] vs. } C. D. et al. j To the clerk : Issue summons in above proceeding for C. D., E. F. and K. G. Indorse summons as follows : Application by A. B. for res- toration of the record destroyed by fire. K. T. & M., Attorneys for Applicant. lu case of uou-resideat parties, the sama affidavit aud order will be made as in civil actions for service by publication. 504/ JOURNAL ENTRIES. [Sec. 4339a- 8. AFFIDAVIT OF NON-RESIDENCE, ETC. State of Ohio, Hamilton County, '' A. B., the applicant in the above named proceedings, be- ing first duly sworn, says that E. F., one of the parties to the foregoing action, is a non-resident of the State of Ohio, and that service of a summons in said proceeding can not be made upon him in the State of Ohio. Applicant further says that the proceeding aforesaid is one in which service by publication is authorized by section 5048 Revised Statutes, and section 53396 of the act passed April 12, 1884. A. B. Sworn to, etc. After publication made aud proof filed in any of the above cases, an entry approving the same should be made' as in other cases. 9. Entry approving publication. [Title.] ISTow comes A. B., the applicant for restoration of the record herein, and oifers proof of publication of the pen- dency and prayer of said application ; and the court finding said publication and proof in all respects regular and ac- cording to law and the former order of this court, do hereby approve the same. Ou the application being heard and granted, the entry may be in the following form : 10. (Sec. 53396.) Order for supplying lost record from evi- dence. [Title.] The application for the restoration of the record in this case now coming on to be heard, the court find that due legal notice thereof has been given to all parties to this proceeding, that the original record of this action has been lost or destroyed as stated in said application, and that it can not be supplied or replaced as provided in section 5339a, 81 Ohio L. 160. And the now producing evidence sufficient to enable the court to find the substance -53396.] RESTORATION OF LOST RECORDS. b04k of such record material to the preservation of the rights of the parties thereto, it is ordered that a new record be made in tliis case, reciting the substance and effect of the original. * And the court iind tliat the exhibits attached to the applica- tion are respectively the original, or copies in substance of tbe original, pleadings, proceedings, orders, and judgments of the court as therein alleged, and that the statements made in said application are substantially correct. It is therefore ordered that said exhibits be allowed, and the statement of facts in said application be admitted as part of the record of this case, and that a full record thereof be marfle by the clerk of this court, and that the costs be paid out of the county treasury. Unless the papers from which the new record is to be made are quite full and complete, the sid)stance of it should be made up and shown to the court by the attorney, together with the papers from which it is made. In that case the entry may be as follows : II. (Sec. 53396.) Order suppbjinr/ lost record — and the same made up and presented to the court. [Title.] As in the last to * and conclude] — And the now present- ing to the court a record made from the several pleadings, abstracts, and papers offered in evidence in the case, the court find tlie same to be substantially correct, and order that it be substituted and recorded as and for the original record. It is further ordered that the costs of this proceed- ing be paid out of the county treasury. III. Re-copying original papers and records, etc. By an act passed May 4, 1885, 82 Ohio L. 240, a defect in the original act for the restoration of lost records was remedied. It pro- vides fur re-copying original papers and restoring and indexing the appearance dockets, and for re-copying parts of the record saved from destruction. The order in the first case may be as follows : (Sec. 5339e, 82 Ohio L. 240.) Order for re-copying, etc., origi- nal papers. {Title.] It appearing to the court that the journals and the appear- 504^ JOURNAL FNTRIES. [sEC. 9076- ance docket wherein the proceedings in this case were entered and docketed were destroyed at the burning of the court-house, but that the original papers in the case were saved, it is now on motion of' the — ordered that the original entries be re- entered upon the journal of this court; and that the appear- ance docket entries of the case be restored, and that the cost thereof be paid out of the county treasury. IV. Establishing the fact of the existence and the sub- stance AND EFFECT OF A JUDGMENT, PRIOR TO THE DE- STRUCTION OF THE RECORD. It will often happen that the restoration of the final judgment or decree in an action will answer all the purposes required, as where the object is simply to preserve the lien on real estate. In that case the restoration should be under section 9076. The proceedings should be uuder the number of the original case. The application may be in the following form : 12. APPLICATION. Court of Common Pleas, Hamilton County, Ohio. A. B. ■] Application to have established the fact 12,471] vs. > of the existence of a judgment prior C. D. and E. F. j to the destruction of the record. As in application on page 8 to *, and continue :'\ The applicant further states that the entry of the judgment rendered in such action, upon the journal of the court, was also destroyed by the burning of the court-house as aforesaid, and that neither the original entry nor any certified copy thereof can be found. The applicant further says that the judgment aforesaid was in the words and figures [or, was substantially] as fol- lows, viz . [Here give copy or substance of jadqment.'\ The applicant therefore prays that a decree may be entered by the court establishing the fact of the existence, prior to the destruction as aforesaid, of such judgment and the sub- stance and effect thereof; and for such other and further re- lief as from the nature of the case may be required. W. k W., Attorneys for Applicant. [ Verified as former application^ The service upon the aliove application will be, in form, as in the last. -OOT/^.] KESTOUATION OF LOST KECOKDS. 'jQApi 13. (Sec. 907/^ 81 Ohio L. 163.) Decree finding existence of a judgment, and the substance thereof. [Title.'] The application filed in this case by J. D." for having es- tablislied the fact of the existence of a judgment, in this ac- tion, and its substance and effect now coming on to be heard, the court tind that due legal notice thereof has been given to all parties to this proceeding: that, as claimed in said ap- plication,, a judgment was rendered iu the above named ac- tion on the day of , 18 — , in favor of the said J. D. and against the said C. D. and E. F., and duly recorded, and that the record and entry thereof were lost or destroyed in the l)urning of the court-hotise of this county, and that no certitied copy thereof can be found. And the court thereupon tind said judgment to have been in words and figures [or, to have been in substance and effect] as follows, to wit : [Title.'] [Copy in full or set forth the substance of the judgment.] And it is ordered that the costs of this proceeding, and of the record of this decree, be paid out of the county treasury. V. Establishing the fact of the existence of a lost mort- gage OH other lien, deed, or will, and its substance AND EFFECT. The proceeding, under section 0076, 81 Ohio L. Itio, 1H4, i.< from its nature necessarily a .separate action. But it is to be instituted and continued in accordance with the provisions of section 53396. The application must therefore have all tlie formalities of a petition iu civil actions, and it must be numbered as a new action upon the the docket. Under section 907c a new action is provided for. 14. petition. Court of Common Pleas, Hamilton Countv, Ohio. [Tif/c] Xow comes the said A. B., and represents to the court that on the day of , 18 — , he became the holder and owner of a mortgage lien on the following described real estate, to wit [describe] : That said mortgage was duly executed by said C. D. and de- livered, etc. [state full facts of execution, record, and ouinership\. 504/1 JOURNAL EXTRTES. [SEC. 9076, C. The petitioner further says that the record of said mortgage deed was lost or destroyed by fire at the burning of the court- house in this county in March, a. d. 1884, and that neither the original mortgage nor a certified copy thereof can be found. Wherefore, the petitioner prays that a decree may be en- tered by this court establishing the fact of the existence, prior to such destruction, of the mortgage aforesaid, and also its substance and eftect, and for such other and further relief as from the nature of the case may be required. R. T., Attorney for Petitioner. [ Verified as in other cases.'] The petition under section 907c, to establish the existence, etc., of a lost deed or will, may be in general as the above. The decree in all of the above cases may be in the same general form, as follows : 15. (Sees. 9076 and 907c, 81 Ohio L. 164.) Decree finding existence, contents, etc., of am/ lost lien, deed, or will. [Title.] The petition in this case now coming on for hearing, the court find that due legal notice thereof has been given to all parties to this action, and that they are all properly be- fore the court. The court further find as set forth in the petition that on the day of , 18 — , the said C. D. made, executed, and delivered to the said A. B. the mort- gage deed therein set forth [or describe any otker lien, deed, or will] ; that the same was duly filed and recorded in the ofiice of the of this county {or, duly admitted to probate), on the day of , 18 — , and that the record thereof was {or, that said will and the probate thereof were) destroyed by fire in the burning of the court-house of this county. And it appearing that neither the original nor a certified copy of said instrument can be found, the court find tVom the evidence now adduced that the said was in sub- stance as follows, to wit: [Here take testimoiiv, 540 .'.. -293 Abstracts of documents, niav be taken when, 184..' 88 Account case sent to referee or master, to take, 235 126 after default found, 23U 127 judgment after reportstating. 237, 126 judgment on report, 238 127 of receiver — referred to referee, etc., 401 212 allowed. 402 212 of administrator — current, tiled and suspended, 649 337 final, filed and suspended, 649.. 337 entries compelling 337 removal of administrator for failing to render, 582 311 allowed and confirmed, 651 337 suspended, allowed and con- firmed, 652 338 several at same time, 653 338 confirmed on exception heard, 654 339 disallowed, 655 339 referred to special commission- er, 657 339 order opening settled, 658 340 allowed, as final discharge, 661, 340 order for 344 in insolvency cases 349 of guardians 353 order for special, 697 353 orders enforcing, how made 355 of assignee 378 PAGE Account day fixed for hearing, 756 378 notice of filing ordered, 775 383 publication of notice approved, 776 383 disposition of, when attached,*! 78, 184 order that receiver collect, etc., 339 184 Action continued at close of term 4 name of, set out after title, when 10 must be in name of real party.... 15 continued against representatives of party, 15 19 dismissed for want of necessary party, 18 20 for recovery of real property, new party made, 19....! 20 subject of, claimed by third party 20 claim to subject of barred, 21 21 causes of, order to state sepa- rately, 36 21 against garnishee 180 when judgment rendered 181 when dismissed 181 judgment in, 333, 334 181, 182 against receiver 193 order allowing, 355 194 receiver ordered to brinij, 355 194 for injury by wrongful death 326 pending proceedings in bank- ruptcy 417 order staying, 854 419 after discharge, 856 419 order that case proceed to judg- ment. 855 419 dismissed, when. 857 420 removal of. See Removal. revivor of. See Revivor of action. Actions consolidation of 36 practice concerning 36 order for, 66, 67 37 (505) 506 INDEX. PAGE Aciioiis several to abide the result of one, 68 37 Acts punishable as contempts 206 See Contempts of court. Adjourned term 5 See Term,s of court. Adjournment of daily sessions 4,8 of term 4,8 Administration of estates. See also Executors and admmistra- tors. granted to widow or next of kin, 567 307 granted to other person, 568 307 within the state, of person djMng intestate out of the state, 569 308 granted to one, when other named in will declines, 570 308 granted with will annexed, etc., 571 < 308 during minority of executor, 572 309 granted to one executor, when other one is under age, 573 309 entry when other comes of age, 574 309 within the state, of non-resident doing business in the state, 579 311 granted after twenty years, 580... 311 after death of executor, etc., 583.. 312 revoked on will being proved, 584, 312 of marriase of executrix, etc., 585 312 Admitiistrators. See Executors and administrators ; also Ad- ministratioji of estates. special appointed, 575 309 citation against, 576 310 attachment allowed, 577 310 Admini st rat ri.v letters granted after marriage of, 585 312 Admission of documents, etc 87 See Doonnents. to citizenship — See NalHrc al bond, 154 70rt entries in the circuit court 70rt order for new undertaking 77 dismissed for want of 77 suspending judgm't for injunct"n 77 suspending execution in order dissolving injunction 76« judgment for plaintitf failing to recover more, etc., 158... 77 penalty allowed 78 no penalty allowed 79 entry remanding to cnuimon pleas, 162 79 in decree for sale, 103 79 from order dissolving restrain- ingorder 188 injunction 189 from probate court to codiuioh picas 82 entries in common pleas 82 from order refusing to admit will to probate, 547, 548... 296 judgment on, 889, S90 442, 443 from proceedings in allowance of executor's claim 322 A])pcal in proceedings bj' executors to sell real estate 327 notice, how given 383 notice of, 777 384 bond for, filed and approved, 778 384 judgment in common pleas, 779. 384 from referee 60 from a justice to the common pleas. 79 time for pleadinu; in case of : 79 in case of appellant's failure to tile transcript 79 case docketed on behalf of ap- pellee, and judgment in common pleas. 104 79 case docketed fur appellee, and appeal dismissed, 105.. 80 in case of plaintiff's failure to file {tetition 80 case dismissed, when ... 81 entry of dismissal, 100 81 judgment for defendant, when 81 judgment eiiti-y, 107 81 quashed for want of jurisdic- tion 81 entry 81 dismissed for want of juris- diction 81 entry 81 order for new undertaking in. 82 from counti/ commissioners to com- mon pleas 82 on what claims allowed 82 form of judgment in 82, 83 from action of commissioners in insuJ rcncy 346 order allowing, 679 346 Appearance entered for ]iurpose of resisting, etc, only 17 Appeara ncc docket posting entries on, note 13 Appellant failing to file transcript, etc 79 Appellee case docketed for, and judgment. 79 and appeal dismissed 80 Appraisement of lands and tenements on exe- cution 153 may be set aside by court 153 order for new, 294, 295 157 of real estate of woman found in- sane, 420 228 608 INDEX. Appraisement by executor or administrator of real estate ordered, 566, 567 807 of estate dispensed with, 586 312 of property discovered alter in- ventory filed, 597 316 of personal property dispensed with, 600 317 subsequently ordered, 601 317 in inventory, sale made on, 681... 328 approved before sale 329 mav be ordered at time sale is, when 329 order for, 632 329 in case widow has waived dower, etc., 633 330 confirmed, etc., 034 330 subject to dower, ordered, 635 331 confirmed, 636, 637 331, 332 order for ilew, 640 333 of equitable interest ordered, 647. 336 of real estate, in sale by guard- ian. See Sale. order for, when widow has waived dower by metes and bounds, 700 357 order for, subject to dower in- terest, 707 357 order for, and assignment of dower, 708 358 of partnership assets — ordered, when, 806, 807 returned and filed, 808 395 395 Appraisers under letters testamentary ap- pointed, 566.. ". 307 or of administration, 567 307 of estate appointed, 587 313 appointed to set off widow's al- lowance, 588 313 for property discovered after in- ventory filed, 597 310 in sale by executor, substituted, 638 332 of assets of assignor appointed, 745 : ^... 374 to set off homestead, 746 374 Approprlniioti of propcriji time for hearing fixed, 781 385 order directing service bv publi- cation, 782 !..... 386 preliminary questions determined and jury ordered, 783 386 writ for view of premises, 784 886 jury impaneled and verdict ren- dered. 786 387 new trial gi'anted, 787 387 judgment on verdict, 788 388 Appropriation of property order that corporation make pay- ment or deposit, 789 388 judgment on failure to make, 790. 388 costs, y/o/e 388 judgment affirmed on error, 791.. 389 reversed on error, 792 389 attorney appointed for non-resi- dent, 793 389 of abandoned road-bed 000 judgment against Ibrmer own- "er, 794 389' in favor of former owner, etc., 795 390 ownership determined bv iury. 390 verdict \..'....\.. 390- judgment, on verdict, 790, 797 390, 391 occupation of land before appro- priation — verdict 391 judgment, 798 391 Arbiircifimi in pending case, when 200 order k>\\ 371 201 judgment on, 372 202 agreement ot, not enforced 200- iudgment on awai'd ot iikhicv. 369 ".. 200 judgment on other award, 370 201 Arraigmneni 467 A r rail order for talesmen, when set aside. 52 set aside 52 Arreiit on execution against the person.. 158 ortler for. 299 158 jM'ivilcge from 159 ,,nlfr of discharge, 301 159 of judgment debtor in supple- • mentery proceedings 168 order for reduced to writing.... 168 order for arrest, 308 168 warrant, 169 179 order of, vacated, 322 176 of special administrator ordered, 577 310 assignment to avoid. See Assitc'e appointed, 730 368 one of two allowed to act, etc., 731 368 resignation of, accepted, etc., 732. 368 of one, etc., 733 369 ordered to give new bond, 739 370 removed for failing, 740 371 Bale of real estate by, order, 7J8.. 374 confirmation of 375 order for private, 749 375 in common pleas, 753 377 sale of personal properly by 375 order for private, in course of business, 750 375 decree confirming private 375 at public auction after failure at private 375 may sell or compromise desper- ate claim 375 completion of sale by, 751 376 in favor of, 752 376 judgment against, for allowance of rejected claim, 754 377 account of. 378 day fixed for hearing, 756 378 dividend by, ordered, 757, 760.. 378, 379 order for further, 758 378 ordered to pay claim, 759 379 extra euinpensation allowed to, 760 379 ordered to re-assign, 762 380 deed to, stricken from files, 763... 380 V.KGT. Assignee of insolvent debtor in bankruptcy, substituted for bankrupt in suit 419 Assignm.eni. See Assignee of iiisolvent debtor. voluntary for benefit of creditors. 367 deed filed, 727 367 order for re-assignment, 762 380 deed of, stricken from file, 763.... 380 to avoid arrest 380 commissioner of insolvents ap- pointed, 764 380 order for recognizance, 765 381 day set for creditors to appear, 767 381 certificate granted to debtor, 768,770 381, 382 petition of debtor dismissed, 771 382 application dismissed for want of petition, 772 382 Assigntnent cf dower. See Dcnoer. Assignment of judges 9 Assignor See Assignee of insolvent debtor ; As- signment. appraisers for assets of, 745 374 ordered to attend for examina- tion, 747 374 sale of, completed by assignee. 751 ^ 376 contract for sale matle by, r>n- forced, 752 376 Attaehed propertg receiver appointed to take posses- sion of, 326 178 order for sale of perishable, 327.. 178 in hands of garnishee 179 See Garnishee. disposition of after judgment.179, 182 order for return of, 335 182 order applying money, 336 183 order paid to plaintiff, 337 183 order for sale of, 338 183 in case of real estate 184 must be delivered tosherifl". 184 order for receiver to collect, 339 184 sheriff ordered to re-possess himself of, 340 184 question of priorities, referred, 341 185 Attacltinint. See Attaehed Proj)- eriji] (urrnislier. additional securiU', order for, 342 : 185 510 INDEX, PAGE Attachment discharge of for want of security, 342 185 on counter security, 343 186 on motion, 344 186 as to part of property 186 release of garnishee 187 before debt is due issued by order of court or judge 187 order allowins;, 345 187 when action dismissed 187 Attachment in coniemiit See Contempts of court. against witness disobeying sub- poena or rule 84 order for, 174 85 bond fixed, 174 85 discharged, 175 85 judgment (tn, 176 85 to enforce publication of will, 534 291 when citation disobeyed, 535... 291 against special administrator, 577 310 on failure to return inventory, 591 314 against person concealing assets... 315 against foreign executor 325 when sale enforced by 424 Attempt verdict of guilty of 478 Attorney confessing judgment, to sign journal 131 allowed fee in partition cases, to be taxed as costs, note... 239 order allowing, 441 239 appointed to prepare cross-inter- rogatories in proceed- ings to perpetuate testi- mony, 529 288 fee allowed to, 530 288 allowance for service of, 659 340 order for fee in assignment case, 760,761 r. 379 appointed for non-resident in ap- propriation proceedings, 793 389 substituted for prosecutor in quo warranto, 443 411 appointed to assist prc^secuting attorney, 916 459 assigned to detVnd indigent pris- oner, 930 465, 468 appointed to argue exceptions, 474 957 7. Auditor of count]! directed to issue warrant 83 PAGH Aivard by probate judge on question sub- mitted, 668 343 Aivard of arbttraior not enforced 200 judgment on, for money, 369 200 for performance of other act, 370 201 in pending case, 372 202 Award of executioti need not be annexed to judg- ment entr}- 152 Bail See Recognizance. money deposited in lieu of 175 order for safe-keeping of, 319... 175 order refunding, 320 176 proceedings against — order staying, 321 176 when dismissed 176 order of arrest vacated, 322 176 amount of reduced, 323 177 allowed in habeas corpus, 431 232 Bank directors of ordered to give se- curity, 851 415 Bankrupt assignee of, substituted fur in suit 419 Bankruptcji actions pending proceedings in. See Action. Bastardj/ defendant discharged on bond given, 373 202 on recognizance taken, 374 203 defendant surrendered and com- mitted, 375 203 recognizance in 203 new ordered, 376 203 forfeited, 377 203 plea of "not guiltv," order for trial, 378..." 203 defendant not appearing, order for trial, 379.....'^. 204 verdict of guilty, 380 204 judgment in — necessary finding, note 204 can not be for gross sum, note.. 204 given on verdict, 380a 204 money on bond forfeited applied " to payment of 204. 205 attached property applied to ])ayment of 205 reduced on death of child, 383, 205 plea of guilty and order for maintenance, 381 205 INDEX. 511 PAGE Bastardy suggestion of mother's doatli, 382 205 death of child in, 383 205 Behavior recognizance for good, 893 448 Bill of evidence entry of reservation on, 984 492 form of 490 made part of bill of exceptions... 499 made up in reserved case, when.. 490 when made part of record 490 Bill of cxcepUo7iH papers attached to 91 may be amended 91 made part of record 91 entry allowing, how made 91 order allowing, etc., 192 91 mu.ening 2 order for, made by judges... 2 regular term of form of opening I of closing 4 daily sessions of 4 PAGB Courts opening of 4 closing of 4 entries in, on appeal 76a amending pleadings in 76a making new parties in 76a Court nf coininon jdeas adjourned term of 5 order for, where entered 5 order for 5 form of opening 5 closing of 5 special term of G order for character of. 6 should go in journal 6 form of opening 6 of closing 6 separate session of 7 form of opening 7 of closing 7 daily sessions of 8 opening 8 closing , 8 joint session of 8 forms in 8 opening term of 8 opening daily sessions 8 minutes, how signed 9 Probate court appeal from to common pleas... 82 entries in 280 case reserved from to common pleas, 609 343 Superior court entries in 490 error in 490, 493 reservation to general term...... 490 entry of, 984, 985 492 removal of case from 492 entries in general term 492 bill of exceptions in 499 Creditor desperate claim filed for benefit of, 608 319 allowed to elect trustee, 736 870 trustee elected by, approved, etc., 737 370 conveyances to defraud, declared void 371 See Conveyance. Crime proceedings to prevent 447 Cross-petitioner decree for sale in favor of.... 110, 111 Curtesy divested in divorce 216 Custody of minor child awarded, 432 233 INDEX 517 PAGE Daily sessions of district court 4 opening of 4 closing of 4 of separate session of connuon pleas 8 opening of 8 closing of ^. 8 of joint session of tonimon plea.-, 8 opening of 8 closing of 8 D(nu(i(/i s as.-essed by tlie court on default.. 124 inquiry of, after judgment, etc... lolt verdict on assessment of 140 judgment on the assessment.... 140 in replevin cases based on what, noie 270 inquirv of, alter judgment for plaintiff, 505 277 See Iiiijuirfi < f (hinurjca. awarded in mandamus case, 8?;7.. 408 case sent to jury lor, 8:'7n 40!l verdict and judgment 409 Dcaih of party suggested 44 of mother, in bii^tardy case, 382.. 205 of child, in bastardy case, 3So 205 of witiie.-s to will, signature, how ]>roV('ii, 5-)9a 2n:> of executor, administration after 5SH :112 action for injury by wrongful iVJti settlement of claim for, 628 ;'27 sentence of 480 of escaped prisoner recaptured, 971 482 suspended, 982 487 Debt before due, attachment 187 order allowing, 345 187 compounding of, permitted, 599... 316 Debtor of defendant subjected, etc IGO ordered to enter into recogni- zance, 765 381 certificate granted to, 768 381 insolvent. fSee Insolvent debtors. Dtfanlt judgment on. See Judgment on failure to attstcer. Decree. See Judgment. defined 10. 96 for sale 108-117 order for record of, in recorder's office 228,236, 239 may operate as conveyance, when 423 PAGE Deed. See Conveyance ; Written instru- ment. with lease back, a mortgage 115 order for, in decree of confirma- tion 117 of land sold on execution, note.... 155 order for 155 t)rder for succeeding sheriff to make, 291 156 order for master to make, 289 155 for entailed estate sold 261 order for guardian to make, 715.. 361 of assignment for benefit of cred- itor.*, filed. 727 367 of assignment stricken from tiles, 763 380 obtained by fraud set aside, 864... 424 decree reforming, 865 425 made part of bill of exceptions... 496 Demurrer time for extended, how 28 to petition sustained, and judg- ment " 28 overruled, decree taken 28 or answer allowed 28 sustained, and served 00 petition allowed 28 sustained, with leave to amend. 28 sustained, and judgment 29 overruled, with leave to an- swer 29 overruled, and judgment 29 to answer — sustained, with leave to amend. 29 sustained, wiih judgment 30 overruled, with leave to reply.. 30 to indictment overruled, and plea of not guilty, 937 4G6 sustained, and prisoner dis- charged, 938 467 sustained, defendant discharged. 938 467 Deposit for costs, order to increase, 264... 141 in appropriation case ordered, 789 388 Depositioti when testimony taken before master may be used as, note 71 commission to take 87 exceptions to sustained 87 exceptions to overruled 8( how introduced into bill of ex- ception 495 Devisee order to distribute stock and bonds to, 623, 624 324 518 INDEX. Diminution of record 402 order for complete transcript, 823 403 Directors of corporation, decree of ouster against, 846 412 and order for new election, 847. 418 of bank ordered to give securiry, 851 415 bond approved, 852 415 Discharge of jury — for sickness, etc 59 by consent GO being unable to agree (iO by withdrawal of jury 61 of prisoner in habeas corpus — order for, 429 232 refused, 430 232 Discovery decree for. Dismissal of action for want of necessary party for failure to separately state causes of action, etc judgment of for want of jurisdiction entry. 211 when a final judgment 104, after answer or counterclaim for neglect in serving otlier de- fendants, 212 without prejudice, 213 for want of prosecution, 214 for want of necessary parties, 215 for failure to give security for costs 89 20 104 104 105 105 105 105 105 105 106 142 Dismissal of appeal for want of new undertaking 77 for want of transcript 80 for want of petition 80 for want of jurisdiction 82 Disobedience • of order of court punished, 389... 208 of rule, 391 209 Dissolution of corporations 210 See Corporations. Distribution See Confirinatlon and. distribu- tion. of bonds and stocks by executor ordered, 623 324 PAGE Distribution without bond required, 624 324 after debts are paid, 660 340 of money found in hands of for- eign executors, 626 325 District court. See Courts. Districts wreck, county laid off into, 532... 298 Dividend on dissolution of corporation, 399. 21i to creditors, 400 212 order that assignee declare, 757, 760 378, 379 order for further, 758 378 payment of claim omitted from, 759 379 Divorce a7td alimony when case continued 214 leave to answer, etc 214 husband enjoined from interfer- ing with children or propert}' 214, 215 decree for default, 406 215 decree for on pleadings, 407 215 jurisdiction of court continuing \n,note 216 lien on real estate of decree for, note 217 decree refusing, 408 217 decree granting to defendant, 409 217 aliincmj', pendente lite, 410 218 Docketiuy case for appellee, and judgment 79 and appeal dismissed 80 Docume/tts court may order production of, when 87 order to produce 88 order to produce on trial 88 order for examination of out of court 88 order for private examination of. 89 Dormant judtpnent See RcviiHir of judgmoit. Domer general decree for, 414 223 decree for, as of a third part of the rents, etc., 414a 224 decree for, in property .sold by husband, etc., 415 225 confirmation 225 di'cree when dower a.«signed by metes and bounds, 416 225 INDEX. il9 PAGE Dowe7' decree, where commissioners have assigned of rents, etc., 417 22G decree, wiien dower was de- creed as of rents, etc., 417a 227 fraudulent assignment of lands as 227 decree for recovery, 418 227 of insane woman — dischargini;' land of [contin- iXi'Ui] 228 "committee appointed to ex- amine, etc., 41'J 228 insanity found, and appraise- ment ordered, 420 228 decree for conveyance, 421 228 conveyance of land for life de- creed, 422 229 money set off as dower, 428 229 order for investment of monev, 423 .'.. 229 barring of 230 order securing money to her use, 424 230 final decree, 325 230 in partition pi-oceedings — how set off 234 in undivided interest 234 decree for sale, 451 245 as of rents, issues, and profits... 234 paid out of proceeds of sale 234 general decree for partition and, 439 237 by metes and bounds, waived, no^e 237 decree for, 440 238 money value given in lieu of... 244 sale of premises, free of, 451... 245 sale confirmed, 452 245 being waived, etc., sale by execu- tor 330 assignment of, in sale by execu- tor, 635 331 confirmed, 636 331 assigned of rents and jirofits confirmed, 637 332 money value of, found, etc 335 in equitable estate, value given in lieu of, 647r/ 336 in property sold by guardian waived, by metes and bounds, 706 357 when not waived how as- signed 357, 358 order for, 708 358 assignment of, by metes and bounds confirmed, etc., 711 859 assignment of, as of rents and Dower profits, confirmed, etc., 712 360 value of, determined, 716 361 of lunatic, idiot, or imbecile.... 363 sale of right of, by guardian, 720. 363 Drunkard guardian of. 364 governed by what laws 364 order that guardianship cease, 723 364 Due-bills disposition of, when attached.. 178, 184 oi'der that receiver collect, etc., 339 184 Electio7i required between two counts 22 order for 23 between inconsistent and incon- gruous clai ms 23 entry of between counts 23 iind exception taken 23 to take premises in partition pro- ceedings. iSee Pnrtiiioji. premises not to be sold until d(!clined, note 243 of widow under will 299 entry of, 555, 556 299, 300 commis.sion to take, (>57 300 entry on retUrn of, 558 300 when widow unable to make, person appointed, etc., 559 301 entry of election, 560 301 of trustee, day fixed, 736 370 of directors, order for new, 847... 413 between two indictments, order, 924 462 entry on, 925,926 462, 463 Enibezzleynent verdict of 478 should assess value, note 478 Entailed estates sale of 260 how made 260 decree authorizing, 473 260 private sale authorized 261 decree of confirmation, etc., 474. 261 bond of trustee approved, etc., 475 262 Entries. See Jouriuil entries. Equitable interest sale of, to pay judgment 160 decree subjecting to payment of judgment, 302 160 520 INDEX. PAGE Equitable i?iterest decree for sale of, by executor, 647 ; 336 sale of, confirmed, 648 337 Etvoi- leave to amend formal, 62 36 in written instrument, decree cor- recting, 528 286 in appropriation proceedings 389 bond for stay of execution — order fixing amount of, 811 398 order approving, 812 398 execution allowed notwith- standing, 813 398 order staying execution, 814 399 reversal and judgment, 815 399 what necessary to justify, iiote, 399 form of finding and judgment, note 399 for refusing a new trial, 816 400 and decree for sale, 817 400 and cause remanded for judg- ment, 818 401 judgment in obedience to mandate, 829 405 and cause remanded for further proceedings, 819 401 in part, and affirmance in part, 820 401 affirmance — Avith penalty, 821 402 without- penalty, 822 402 diminution of record 420 See Diminution of record. in judgment of justice 403 judgment affirmiid, and certi- fied back, 824 403 affirmed, and execution, 825. 403 reversed, and case retained, 826 404 reversed for want of juris- diction, 827 ". 404 costs on reversal, iiute 404 criminal code — must appear affirmatively, etc., note 486 must be to party's prejudice, wo/e, 486 day for return of summons fixed, 978 485 judgment affirmed, 979 485 in capital case, 981 486 judgment reversed, 980.. 486 Errors must all be assigned in bill of ex- ceptions, ?;o^e 4 494 Escaped prisoner. See Prisoner. PA.OS Estate administration of. See Adminis- iratioyi of estates. sale of entailed. See Eyitailed es- tates. estimate of, filed by executor or administrator 307 question ct)ncerning, case tried by probate court, 670.... 343 insolvent 345 See Commissioners in insol- vency. Estimate of value of estate filed by execu- tor, 566 307 by administrator, 567 307 object of filing, note 307 Evidence. See Testimony. withdrawal of, from jury. See A rresi of testitnony from jury. bill of 490 entry of, reservation on, 984.... 492 when to be set out in bill of ex- ceptions, «o... 494 ground of to be stated, iiote 5 494 Kxecutlon proceedings in aid of. See Pro- ceedimjs in aid of execu- tion. award of, on judgments 97 when may issue on decrtu) for sale 100, 107 for balance remaining due after sale .' 119 for costs 141 defined 152 follows judgment of course 152 a process of court 152 issued by clerk 152 order for, presumed 152 award of in entry not necessary.. 152 except for costs 152 for costs 152 standing order for 152 on dormant judgment, set aside.. 153 improperly issued, set aside 153 may be amended, when 153 leave granted, 284 153 order to sell goods, etc.. at private sale, 285 153 sale of real estate on 153 See Sale. when levy of, is set aside 153 allowed in favor of officer, 293... 157 exemption from. See Exemption. against the person — order allowing, 299 158 order for discharge, 300 159 proceedings in aid of 159 See Proceedings in aid of execu- tion. against garnishee 180 Fjxecution amercement of officer for failing to execute writ of, 363... 198 sued out by officer after amerce- ment, 388 200 against executor allowed, 616 322 stayed in error proceedings, 811.. 398 allowed notwithstanding bond, 813 398 order staying, in error case, 814.. 399 Executors and administrators See Administration of estates. notice of appeal by 76 made party to judgment, 281 149 revivor of action in name of, 282, 283 150 authorized to complete contract lor sale of real estate, 471 258 letters testamentary granted to, 506 307 bond filed by, 566 307 bond of. dispensed with, 566 307 ordered to appraise real estate, 560 307 failing to give bond, 570, 571 308 declining to accept, etc., 570, 571 308 administration during minoritv of r I 309 during minority of one, 573. 309 coming ot age, entry, 574 309 resignation of accepted, etc., 581. 311 order removing, 582 311 administration afier death of 583 312 time for -;ettlement bv, extended. .598 ". 316 judgment against, form 321 when costs recovered from 321 claim of, against estate 321 notice of hearing, 614 321 order allowing, 015 321 appeal and exceptions 322 execution against, allowed, 010... 322 judgment of waste against, 017... 322 when amount can not be ascer- tained, 018 322 notice of appointment allowed, etc., 622 323 foreign — compelled to account 325 order for, 025 325 attachment 325 order distributing money found in hands of, 020 325 copv of appointment of filed, 048 337 account of. See Account. 522 INDEX. PAGE Execution compensation of. See Compensa- tion. allowance to, for special services, 659 340 account of allowed as final dis- charge, 661 340 failing to pay money, citation against, 664 341 non-resident, order Jor publica- tion against, 66.5 342 authorized to act as commission- ers in insolvency, 682.... 347 bond of. See Botid. removed for failing to give new bond, 672 344 de bonis non — appointed on ren)oval of form- er administrator, 672 344 ordered to give new bond, 673.... 344 account t)f, order for 344 in insolvency cases 349 ordered to invest money pending suit, 780 384 maj' apply for appraisement of assets of partnership, 807 39.5 Executrix letters granted after marriage of, 585 ^. 312 Exemption frotn execution homestead. See Homestead. re-assignment of homestead or- dered, 298 158 Ex parte case, title of. 11 Expenses allowed to executors. 659 340 Fact question of, not put in issue 13 order for trial by jury, 2 13 verdict, 3 ".. ! 14 order referring, 4. 14 Facts separate finding of. 63 agreed statement of. bill of excep- tions on 501 Faiher enjoined from interfering with children 214 allowed to visit children 214 Fees of witnesses, when not recovered. 84 of counsel in partition cases 237 rule for 239 PAGB Fees of attorney' allowed in assign- ment case, 760, 761 379 Felony recognizance fixed, in case of, 902 4.53 sentence for, suspended, 967 481 Files mutilation and alteration of 31, 34 pleadings stricken from 31 Filing of desperate claim for benefit of creditors, 608 319 Finding. See Trial. what entered on trial by the court 62 to be prefixed to judgments 99 Fine imposed on witness refusing to be sworn 86 imposed by building associations. 120 for disobedience of injunction im- posed, etc., 348 190 imposed for misbehavior, etc., 384 206 for disobedience, etc., 389 208 fur contempts, 392 209 imposed in mandamus case, 840.. 409 sentence imposing 479 testimony to mitigate, note 479 Foreclosure. See Mortgage. Foreign judgment when action maintained on 426 judgment on, 866 426 Foreign vill presented for record, publication ordered, .550« 297 admitted to record, 551 298 Foreman of grand jury, oath of 488 Forfeiture of recognizance, 913 456 opened up, 914 457 Fraud judgment vacated for 145 conveyance set aside for, 864 424 Freeholders appointed in contest of justice, 804 394 judgment on decision of. 805 394 INDEX. 523 PAGE Fur}iitu7-e decreed to wife 217 pendente lite, 410 218 Gai-7ns/iee examination of. 177 order for special, 325 177 proceedings against to compel an- swer 179 action against 179, 180, 181 ordered to deliver property, etc., 179, ISO execution against 180 ordered to deliver property into court, 328 180 ordered to pay money into court, 329 180 order complied with, etc., 330.. 180 discharge, order for, 330 180 order permitting to retain prop- erty, etc., 331 181 action against — when action against, dismissed, 181 when judgment rendered 181 judsment, 333 181 same on failure to answtM-, etc., 334 182 ordered to pay to plaintiff, 336, 337 183 released from liability 187 Qertnaii ddveriiacmod dispensed with in sale 109 order dispensing with, 280. 154 dispensed with in partition pro- ceedings 243 Goods. See Chaih-ls. in cust(>d}' of receiver 195 order tor sherifl' to withdraw levy, 359 195 order permitting levy on, 300.. 195 Grand jur// when return of venire is made... 440 formation of 457 entry on return of venire for, 915, 458 witness before, refusing to an- swer 459, 460 juror in place of one sick, 919 400 formation of new, 920 400 record of witnesses before 461 report of, and proceedings on 401 entry on report, 921 4i)l oath of foreman 488 of juror 488 Guardian order substituting for next friend, 6 10 may consent to partition, note 230 PAGE Guardian of minor — appointed for minor under fourteen years, 686 350 appointed on selection of minor, 687 351 on failure to select. 688 351 mortgage received from, in lieu of bond, 689 351 bond of. See Bond. notices to, by citation 353 removed for failing to file in- ventory, 696 353 for other causes 354 on removal of ward to an- other state, 702 355 accounts of 353 order for special, 697 353 loaning and investing ward's money 354 order authorizing, 698 354 resignation of, accepted, 701... 354 foreign — authorized to receive money, etc., 703 .'.. 355 sale of real estate by 356 See Sale. ordered to make deed, 715 361 leasing of real estate bv 361 order for, 718 .' 362 sale of dower right by, ap- proved, 720 303 of lunatics, idiots, and imbeciles.. 362 letters granted to, 719 362 orders relating to, same as for m i n ors 303 sale of real estate by 363 lease of real estate by 363 completion of real contract by. 303 foreign, authorized to act, etc., 721 303 entry of termination of, 722.... 304 of drunkards — governed by what laws 364 order that <;nardianship cease, 723..V 304 foreign — order for payment of money to, 725' ".. 305 Gnardinn ad litem appointment of 1 7 entries appointing, 10, 11 ]S must be served or appear 18 order removing, 9 17 of insane woman, in dower pro- ceedings, 419 228 in sale of real estate by guard- ian 356 Habeas corpus one of the great writs, etc 231 524 INDEX. PAGE Hahens corpus state courts have power in 231 judge at chambers, power in 281 writ granted, 420 231 writ refused, 427 231 case continued, on return of writ, 428 282 order discharging prisoner, 429... 232 order refusing discharge, 430 232 allowing bail. 431 232 custody of minor given, 432 233 Hanging sentence of 480 escaped prisoner recaptured, 971 482 suspended, 982 487 Hearing of appropriation case, time fixed, 781 385 Hetr-loonifi order for delivery of, 512 278 when replevied 265 order for slieriff to retain, 478.. 265 order for delivery of, 485 269 Heirs unknown. See Unknown heirs. judgment for conveyance to, 572.. 250 Homestead re-assignment of ordered, 298 158 order that appraisers set ofJ', 746.. y74 real estate, sale uf, 32S 332 Uiisl.ainl mud«' party to ai'linn, 14 I'.i enjoined trnm interfering with cliildren, etc 215 allowed to visit cliildren 215 enjoined from disposing of prop- erty, etc., 413 221 notified of will being presented for probate, 542 294 Husband and wife See Married women. judgment against, etc., 869 429 Idiot guardian of 362 See Guardian. dower interest of wife of 363 trustee of non-resident 364 See Trustee. Imbecile guardian of 301 See Guardian. dower interest of wife of... 363 PAGE Imbecile trustee of non-resident 364 See Trustee. Impaneling of jury 56 Impriso7inieni of witness refusing to be sworn. . 86 discharge of witness from 86 ordered for contempts of court, 384, 389, 392.... 206, 208,209 until acts be performed 209 discharge from, ordered, 396... 210 of person refusing to produce will, ordered for, 537 292 discharge from, 538 293 Improvement of streets assessment for 420 Incongruous claims election between required 23 order fur 23 Inconsistent claims election between required 23 order for 23 Indictment quashing of, when granted 462 order for (Election between two, 924 462 entry on, 925.926 462,403 quashed, prisoner committed, 931. 465 prisoner bailed, 932 465 motion to quashed overruled, 933. 465 quashed and prisoner detained, 955 474 Infant. See Parties to action. judgment by default against 123 adoption of 392 Injunction appeal from order dissolving, 76, 76rt for judgment for 77 in proceedings in aid, etc 105 kinds of 188 restraining order. See Restrain- ing order. as a provisional remedy 188,189 what notice required 189 appeal from order dissolving... 189 disobedience of how punished, 189 falls, when action dismissed.. .. 189 order allowing, 347 189 fine for disobedience imposed, etc., 348 190 security 190 additional or new 190 order for additional, 349 191 INDEX. oza PAGE Injunction order vacatin;;, 350 191 order modifying, 350 191 as a final judgment 188, 191 temporary, made perpetual, 352 191 decree for injunction, 353 192 Inquiry of dcnnages after judgment by the court 139 verdict on assessment of 140 judgment on the assessment.... 140 in replevin — after judgment for plaintiff, 505 270, 277 verdict, 489, 5U0 277 judgment, 507 277 Insane jterson. See Pai ties to action. Insane ivoynan dower of. See Dower. Insanity of part}-, order for trial of, 9a.... 17 committee appointed to deter- mine, etc., 419 228 of woman found, etc., 420 228 entry finding, 802 393 of prisoner found by examining court, 907 •. 454 of convict found, etc., 972 482 entry tinding no, 973 483 Insolvent (tebfors 3GG voluntary assignments by 3G7 See Assignment ; Assignor. commissioner of insolvents ap- pointed, 7d4 380 dav set for creditors to appear, 767 381 Inspection of documents 87 Instrument written, decree correcting, 528.... 286 Interest on judgments, how calculated.... 97 to be charged by building associ- ation ..'. 120 on judgment by confession 131 Interpret'' r oath (»f 444 Inter roga tories order for answer of 33 judgment when not answered... 33 answer to, enforced by attach- ment 33 PAGE Inventory to include appraisement of real estate, 566 307 order for return of, 590 314 on failure of executor to return attachment ordered, 591. 314 order committing to jail, etc., 592 314 letters revoked, 593 314 guardian removed for failing to iile, 696 353 return of, how enforced 355 of assets, etc., of partnership re- turned and filed, 808.... 395 Investment of money given as dower of ii>- sane woman ordered, 423 229 in case of sale of entailed estate, ordered, 474 261 of unclaimed money ordered, 662. 341 monev of ward bv guardian 354 order for, 698.. .1 3-54 ol monej'. bv administrator, pend- ing suit, 780 384 Irrelecunt matter stricken from pleading 31 Issue triable only by court, finding on, 99 joined, general finding on 99 order making up for jury, in pro- ceedings to contest will, 523 285 order for re-trial of in district court, ')2(; 286 Jail special administrator committt-d to. 578 310 committal to, on failing to return inventory, 592 314 committing one to. refusing to answer, 595 315 sentence sending to 480 Joint session of common pleas 8 forms in 8 opening minutes of 8 opening daily sessions of 8 minutes, how signed '■' in Hamilton county '■' Journal all judgments and orders entered on 10 signing of by judge 10 orders of judges at chambers to be entered on 231 Journal entries defined 10' 626 INDEX. PAGE Journal entries in chambers 9 in vacation 9 in general term 492 Judfje pi-esiding, to sign minutes 9 appointment noted 9 assignment of, noted... 9 signing chamber entries 9 orders made out of court by 10 signing of journal by 10 authority of, in aid of execution, 163, 164 minutes of, in supplementary proceedings 174 at chambers has power in habeas corpus 231 orders of, to be entered on jour- nal 231 probate — question submitted to, by ad- ministrator, 668 343 one of examining court, 903.... 453 Judgment in chambers 9 in vacation 9 includes what 10 how headed 10 summary of, annexed to, note 13 defined 10, 96,97 must be entered on journal 10 in entering, names of parties set out in full 10 indexingof 10, 11 may be given oil demurrer to pe- tition being sustained... 28 entry of 29 after demurrer to petition over- ruled 29 after demurrer to answer sus- tained 30 when interroeatories not answer- ed ...^ 33 after tender made before suit 39 after tender, for assessed value... 40 after tender, allowing perform- ance 40 when tender not sufBcient 40 on verdict after tender proved... 41 after offer to confess, etc 42 offer to confess 42 on offer to allow, etc., accepted... 42 after offer to allow, etc.. rejected. 42 after offer to confess part 43 of abatement 44 on controversy submitted 64 on trial by the court, when en- tered 62 Judgmeni. on report of referee. See Report of referee. exception to, need not be taken... 91 interest on, how calculated 97 costs included in 97 agreements incorporated in 97 should dispose of all parties 97 award of execution on 97 on finding previously made by th» court 98 when no motion for new trial has been made, 197 98 same, for defendant, 197a 98 motion overruled and judg- ment, 197?> .^ 98 formulae for 99 finding I., II., Ill 99 IV 100 forms of — for plaintiff, in action for money, 198 100 for one of several phiintiffs, 200. 100 against one of several plaint- iffs, 208 103 for one of several def'ts, 207... 103 against one of several defend- ants, 200 100 in favor of one defendant and against another, 201 101 by default against one defend- ant, and on submission against another, 202 101 on counter-claim or set-ofl' after petition dismissed, 210 104 for balance, after admitting counter-claim, 205 102 for defendant, on petition and counter-claim, 209 103 when counter-claim exceeds plaintiff's claim, etc., 2\0a 104 for plaintiff, for amount ad- mitted by answer — bal- ance waived, 203 102 same— case continued as to balance, 204 102 for defendants for costs, 206.... 102 of dismissal. See Di'smissal. may be given with decree for sale, 106 to what extent, 7iofe 106 persoiuil, with decree for sale, note 106 personal, after decree for sale 118 judgment, 266 118 upon failure to answer 122 only for amount on summons... 123 can not be rendered against in- fants 123 INDEX. 527 Judgment for less than claim 123 what proof reqiiinid VIZ, VIA finding for 124 forms of 124,125 case sent to referee, etc 120 iSee Reference. case sent to jury 128 to assess damages 12H verdict on assessment 12H judgment on verdict 129 remittitur 12!) entry of 12!) order for loO by confession 1:50 how made loO interest on lol when defendant aj>j)ears \m-y- sonally 1 on petition filed 1 when no petition filed 1 when defendant appears by at- torney 1 judgment 1 manner of giving and entering... 1 on verdict 1 when entered V.Vi when verdict is special 13:5 follows overruling of motion... 1M3 forms of 133,1 on the pleadings, and notwith- standing verdict 135, 130 non obstante veridicto 135, 136 on the pleadings 130 and case referred 137 and case sent to jury 137 notwithstanding verdict 137 forplaintiff 137 after damages assessed by jury, 138 and inquirv of damages is or- dered T 138 inquiry of damages after 139 for costs 141 vacated after term, liow 143, 144 entries for, 272, 273 1J5 new trial after, -nofe 145 new party to 140 judgment making 140 revivor of 147 See Revivor of judr/ntrtit. execution on dormant, set aside .. 153 representative made party to, 281 .■ 149 enforcement of 151 (See E.recuiioji. satislaction of, vacated, 292 150 order that property be applied to, when made 171 order, 313 171 when in hands of third party, 314 172 P.VGE Judgment order that receiver pay off, 317... 173 order that receiver apply funds to, 318 174 will be rendered against gar- nishee, when 181, 182 of amercement, surety made party to, 367 199 in bastardy case — for maintenance, 380a 204 necessary finding in, note 2U4 can imt be for gross sum, 7iote.. 204 money on bond forfeited, ap- plied to payment of. 204, 205 attached property applied to payment of 205 reduced on death of child, 383.. 205 against executor, form of ;.... 321 in common pleas on appeal from probate court, 779 384 in district court — on error, form of, note 3 390 which court below ought to have rendered, Jiote 399 of a justice, error in 403 See Error. in obedience to a mandate, 829. 405 foreign, action on 426 judgment on, 866 426 arrest of granted, 970, !'77 485 affirmed on error, 979 485 in capital case, 981 480 reversed on error, 980 486 Jurisdiction what essential to, in proceedings in aid of execution 164 continuing, in divorce case, note.. 216 of justice, judgment reversed for want^if, 827 404 Juror punishment of 54 for refusal to serve 54 for disobeying order >54 for misbehavior 55 proceedings against struck jury dismissed 55 jury discharged lor sickness of... 59 order substituting 60 withdrawn and case continued... 61 for grand jurv in place of one sick, 919 460 oath of 488 Jurors order fixing number of for year.. 48 amended 48 order for additional apportion- ment of 48 drawn for special term 50 528 INDEX. PAGE Jury. See Petit jury; Grand jury. order for trial by, question not put in issue by pleading, 2 13 verdict, 3 14 order for, to try question of sanity of party, 9« 17 impaneled and sworn 56 polling of 56 discharge of, before verdict 59 for sickness, etc 59 by consent 60 being unable to agree 60 waived 63 finding vn 99 case sent to — after judgment by default 1*28 after judgment on pleadings... 137 after judgment, notwithstand- ing verdict 138 ordered in appropriation case, 783 386 impaneled, 7S6 387 to absess value of abandoned road-bed, etc., 795 390 to try question of insanity of prisoner, 928 '.. 464 entry of verdict, 929 464 oath of 444 how made up in capital case 470 entry, 948 471 how made up in other case 472 order for, to view place, 949 472 discharge of, before verdict 476 polling of. 477 grand, oath of 488 petit, oath of 488 Justice of the jieace appeal from, to common pleas 79 replevin cases c(;rtified fi-om 273 See Rejdevin. order increasing number of, 803.. 393 citation, etc., in case of contest, 804 394 error in judgment of. 403 See Error. judgment reversed for want of jurisdiction of, 827 404 K/n next, notified of will presented for probate. 542 294 Land. See Heal estate. fraudulently assigned as dower, decree for recovery of, 418 227 discharged of dower of insane woman 228 PAGE La7id occupation of before appropri- ation 391 Larceny verdict of 478 should assess value, note 478 Law separate finding of 63 what regarded as conclusion of, 7iote 64 Lease of premises subject to mechanic's lien, 877 435 of real estate by guardian 361 See Real estate. Leasehold estates when right of re-entry exists 426 judgment may include what 426 sales of how much 426 judgment forfeiting lease, etc., 867 427 judgment for rent atid sale of premises, 868 427 confirmation of sale, how much.. 428 Legatee order for distribution of stock and bonds to, 623, 624... 324 Legislature member of, proceedings against stayed 24 Letters of guardianship. See Guardimi. testamentary — order granting, 566 307 of administation revoked — order for, 593 314 Levy of execution, when set aside 153 on goods in hiinds of receiver 195 See Goods. illegal, of taxes enjoined, 517 282 Lien of divorce decree, on real estate, note 217 for street assessment — decree enforcing, 861 422 of mechanics — lu>w enforced 434 personal judgment and decree for sale, 876 434 order to lease premises, 877 435 of vendor — decree for sale on, 887 440 on property sold determined, when, note 112 INDEX. 529 Life estate how set off in partition proceed- inirs 234, 235 in undivided interest, decree for sale, free of, 451 245 sale confirmed, 452 245 Loarting money of ward by guardian 354 order for, 608 '. 354 LuiKiilc guardian of 302 See (luardiuit. dower interest of wife of 362 trustee of non-resident 364 See Trustee. Mandamus 397, 400 issued by what courts 406 order to show cause why writ should i\ol be allowed, 830 406 writ of — order allowing alternative, etc., 831 406 order allowing peremptory, etc., 832. 407 order allowing after notice, etc., 833 407 order refusing, 834 407 judgment allowing peremptory, when no answer mutle to alternative, 835 408 on trial, 836 408 when damages given, 837 408 when case sent to jury for as- sessment of damages, 837rt 409 judgment for costs, alternative writ obeyed, 838 409 judgment for delendant, 839 409 judgment for plaintiff and line impo-sed, 840 409 special order for auditor to levv ta.\, etc., 841 '.. 410 Mandates how entered on journal 405 order for execution on 405 judgment in obedience to, 829.... 405 form of 503 MarruKjc decree declaring void, 412 221 of executrix, etc., letters granted, 585 312 Married women [Repealed and omitted in body of book.] Master Commissioner trial by — liow conducted 70 regular or special 70 order appointing re.f!;ular 71 how special appointed 70 what cases referred to 70 report of 70 judgment on, and appeal 70 order of reference to 71 to special master 71 undertaking of, •note 71 testimony taken by, used as depo- sition, note 71 special, when to give bond, note.. 72 report of confirmed and judg- ment 72 exceptions to report of, in part sustained <^ exceptions to report sustained, and report set aside 1'^ reference to, as before the code... 73 report of must be confirmed.... 73 order confirming 74 order of, to take an account.... 74 to ascertain a fact '4 special — may sell real estate 106 order for 109 give bond when 106 sheriff may sell as, note 108 bond ordered 109 order for, to make conveyance, 289 155 to report names of stockholders... 160 to report value of equitable in- terest, etc 100 to take examination of garnishee, 177 authority in partition cases, note, 243 may sell on chattel mortgage, note 423 Means compelling defendant to disclose. 160/ Mechanics lien. See Lioi. Member of legislature proceedings against stayed 24 Metes afid bounds dower by, waived. See Dower. 530 INDEX. Minutes. See Jourval. opening of. See Opening minuies. closing of. See Closing minutes. of joint session, liow signed 9 in Hamilton county 9 posting of, to appearance docket, note 13 of judges in supplementary pro- ceedings 174 31inor custody of awarded, 432 233 guardiansJaip of. See Guardian. guardian appointed for, when un- der fourteen years, 686... 350 guardian appointed on selection of, 687 351 on failure to select, 688 351 removing to another state 355 trustee of non-resident 364 See Trustee. Minority of executor, administration dur- 309 309 granted to other, of age, 5' Misbe/iavior in presence of court 206 punishment for, 384 206 Misdemeancr after conviction of, order for rec- ognizance to keep the peace, 894 449 sentence for, suspended, 966 481 by court of error, 983 487 Misjoinder demurrer sustained for, and sev- eral petition, allowed, 37. 28 Mistake judgment vacated for 145 Mojiey in hands of third person sub- jected, etc deposited in lieu of bail order for safe keeping of, 319... order refunding, 320 garnishee ordered to pay into coiu-t, 329 order complied with, etc., 330... order that garnishee retain, 331... order for receiver to invest, 357... given as dower of insane woman invested, 423 secured to insane woman, as dower, by mortgage, 424. found in hands of foreign execu- tor distributed, 626 unclaimed, order for investment of, 662 payment to distributee, 663 160 175 175 176 180 180 181 194 229 230 325 341 341 PAGE Money citation against executor for fail- ing to paj', 664 341 loaning and investing by guard- ian, 698 354 order for, 698 354 foreign guardian authorized to receive. 708 355 order for investment of pending suit, 780 381 Mortgage. See Sale of mortgaged, property. given to indemnify foreclosed 113 deed and lease declared to be a... 115 satisfaction of, ordered to be en- tered 117 to building association foreclosetl, 119, 122 received from guardian in lieu of bond, 689 351 chattel 423 foreclosed when court has ju- risdiction of parties 423 judgment and decree for sale, 862 423 confirmation 423 Mother suggestion of death of, 382 205 Motions continuance at end of term 7 when to be filed by leave 37, 38 order for 38 order for and notice ordered.... 38 granted or overruled 38 for new trial — when filed 92 after judgment entered 92 made within the term 92 granted after verdict 92 granted after report of ref- eree 93 granted after decision by the court ! 93 overruled 93 overruled and judgment en- tered, 1976 98 for new trial after verdict 133 overruled and judgment, 252, 2ij-2a 135 to quash indictment overruled, 933 465 for new trial granted, 974 484 overruled, and sentence, 975.... 484 in arrest of judgment granted, 976, 977 485 case reserved to general term on, 985 492 ISa)He action in wh(.)se 15 of real party may be substituted, 15 INDEX. 531 Narnt of party may be added to or stricken from title 15 maiden, divorced wife restored to, 217 of person, decree clmni^inj^, 520.. 283 of town, etc., decree ciianging, 521 284 of incorporated company, decree changing, 522 284 of party — corrected on plea in abatement, 9:W 46G stricken from pleading 85 order for 35 added to process 35 order correcting 35 real substituted for fictitious.... 3G Nnini'S of parties set out in full in enter- ing judgment, etc 10 liaturuLizaiion admission after declaration of in- tention, 878 435 admission of discharged soldier, 879 430 of person couiiug to tiie U. S. under eighteen years of age. 880r. !! 43G of seaman, 881 43(i alien renouncing title, 882 437 SegotidOlc jKiprr. See Sotrs. subjected to payment of judg- ment how.. 160 should be produced IGO innocent holder of. IGO, IGl New pariy. See Parties to nctlon. Neil- trial motion for when tiled 92 on motion made within the term, 92 after verdict, 194 92 after report of referee, 195 93 after decision by the court, 195;/. 93 motion for, overruled, 1956 93 on petition after the term 93 judgment for, 196 93 judgment adverse to, 196a 94 judgment for, after final judg- ment, 270 144 judgment adverse to, 271 144 by reason of mistake, etc., 272.... 145 by reason of fraud, etc., 273 145 granted to defendant construct- ively summoned, 274 145 after judgment vacated, note 145 jgranted in appropriation case, 787 387 PAGE New trial reversal, for error in iefusing, 816, 400 order granting, 974 484 order refusing, 975 484 Next of kin letters of administration granted to, 567 307 declining administration, 568 307 Nolle prosequi i entry of, 965 479' Non-resident doing business in the state, admin- istration of assets of, 579 311 when owner of property appro- priated, how protected, 793 389 Nonsuit ordered unless interrogatories an- swered 33 Notes. See NeyotidOle j>a/>er. when cost of protest included in judgment 97 part of several due and sale de- creed 112 confirmation and distribution... 119 should be filed in court, when 124 disposition of when attached 178 order that receiver collect, etc., 339 184 order that executor distributes, 660 340 Notice of appeal 7G by administrator or executor... 76 by one of several parties 76 in proceedings in aid of execution. 165 how served, )iote 165 of injunction, what required 189 of appeal from order refusing to admit will tt) probate, 547, 548 296 of hearing of executors' claim, etc., G14 321 of appointment of executor, al- lowed, 622 323 of petition to sell real estate, ordered, 704 356 of filing accounts ordered, 775.... 383 publication of approved, 776... 383 of appeal from probate to com- mon pleas court 383 Oath for jur}- 444 for witness 444 for interpreter 444 for referee 444 of foreman of grand jury 488 of grand juror 488 532 INDEX. PAGE Occupation of land before appropriation 391 Occupying claimant may have benefit of law in ac- tions to recover real es- tate 252, 253 proceeding by, separate from ac- tion of ejectment 254 how proceedings begun 255 entry of application, 465 255 drawing of jury 255 order setting aside assessment, 4b(i 25G where waste and rents exceed the value of the improve- ment? 256 judgment for balance, 467 256 where the value of the improve- ments exceeds the waste and rents 256 occupant entitled to costs 256 judgment when successful claimant elects to take the land, 468 257 when he ele<;ts to take the value without improve- ments, 469 257 Offer to confess jiidcimeuf judgment after, 81 42 judgment alter ofier, etc., ac- cepted, 82 42 judgment after offer rejected, 83.. 43 judgment after offer to confess part, 84 43 Office decree of ouster from, 845 411 Officer. Sec names of nrrious offcers. emercement of 197-200 after being amerced may sue out execution, 368 200 Ope7ii>ig of settled account of administra- tor, 658 340 Opening minutes of district court — special term 1 regular term 3 daily sessions 4 in common pleas — adjourned term 5 special term 6 separate session 7 joint session 8 daily session 8 Order defined 10 final, defined 10 PAGE Order must be entered on journal 10 standing, for costs 152 amercement of officer for failing to execute, 365 199 in proceedings in aid of execu- tion 164 to be reduced to writing 264 entered on journal 164, 166 for arrest,reniises in par- tition pi'oceedings. See I'lniiiiun. must elect or d<'cline, )i()fe 243 assignee of bankrupt sub.-titutetl for bankrupt 419 Part Hi on master commissioner selling in, )u,ie : 243 decree for, should be specilic 234 manner of setting off dower i?i... 23.4 selling of life estate 231, 23,.3 taxes to be paid, voir 1.35 where no dower is to he assigned, decree for, 430fc 235 decree for amicable, 437 230 witiiout commissioners, 438.. 230 guardian may consent to, noir \ 230 •counsel fee in proceedings in 2;'.7 rule for 23'.t where dower is to be assigned — • general decree for, 439 237 decree, when money value in lieu of dower asked, 440. 238 confirmation where property has l)een divided by metes and bounds 238 decree of, 441 238 decree of, in amicable jiartition, 442 239 confirmalion where property could not be divided by metes and bounds 240 PAOK Partition when one party elects lo take premises — - decree when he has settled, etc., 443 240 decree when he makes pay- ment to sheriff, 444 241 decree when he is ordered to pay all cash, 445 242 when no one elects to take tlie premises — ■ decree for, and sale, 440 242 sale confirmed, etc., 447 243 confirmation and sale where? prop- erty could not he divided by metes and bounds, and money value isgiveu in lieu of dower 244 when no one elects to take )i remises — decree for confirmation and sale. 448 244 same, when dower or life es- tate extends only to un- divided interest, 451 245 sale confirmed, 452 245 order for revaluation of premises, 453 240 succeeding sheriff to make deed, 455 \ 247 Pari)ter surviving, may apply for apprais- mont of assets 395 a.ssets taken by, 809 395 artnersh!pt> 394 apprai-sers of assets appointed, 800 395 on application of executor, 807. 395 inventory, etc., of iissets filed, 808...'.. 395 assets taken bv surviving part- ner, 809 ■ 395 Peace warrant discharge on failure of prosecu- tion, 891 447 discharge from recognizance, 892. 448 order that party enter into secur- it}' to keep the peace, 893 448 after conviction of misdemean- or, 894 449 Peytnliy entries allowing on appeal 78 not allowed on appeal 79 allowed on affirmanc-e in error, 821 402 not allowed, 822 402 534 INDEX. PAGE Pending case arbitration in 200 order for, 371 201 Feneieniiary sentence sending to. 480 Perpefuation of testimony order allowing examination witness, 529 final order of approval, 530.... of Person decree changing name of, 520. Personal property. See .S'rt^e. sale of by assignee , 287 283 Petition amended — filed by real party in interest... causes of action in, separately stated appeal dismissed for want of amended, for making new parties on distribution of estate, 6(J6 supplemental, for making new parties on distribution of estate, GG6 Petit jury. See Juror, Jurors, Jury. regular — to be full at beginning of term, how kept full journal entries concerning entry on return of venire for.. ordered to appear when order to fill panel of order for second order for new tiilesmen for array set aside new jury, how formed oath of.. .5.^ Place order for jury to view, 040 Plea in bastard}^ case of "not guilty," and order for trial, 378... of "guilty," and order for maintenance, 381 in abatement — .sustained, prisoner committed, 934 prisoner bailed, 935 name corrected on, 93(j of not guilty after demurrer over- ruii-d. 937 •. 15 27 81 342 342 49 49 49 49 50 50 50 51 51 52 53 488 472 203 Plea in bar, verdict for defendant, etc., 939.. 467 verdict against defendant, etc., 940 4G7 of guilt J' — and prisoner remanded, 947.... 468 and sen;ence, 942 468 of smaller otiense, 943 468 of not guilty, 944 468 retracted, etc., 945 469 Pleadings time for extended 31 order for 32 how to be amended 31, 34 stricken from files for want of verification 31 substitution of — order for 31 redundant matter stricken from.. 31 order for making definite, etc 32 filed by leave 32 received 32 name of party stricken from 35 order fur 35 payment of costs, condition to amendment 35 supplemental, leave to file 36 amended in disti'ict court 77 amendment of, in case of vari- ance 90 judgment on 135 entry of 136 and case referred 137 and case sent to jury 137 in amei-cement proceedings 197 order substituting copies of, 810.. 398 on reversal of justice's judgment, vtde ; 404 in proceedings in error from jus- tice, note 404 Polling the jury 56, 477 Possessicni of real estate — quieting 248 decree for, 456 248 order for surrender of, 458 249 Posi'nig minutes to appearance docket 13 205 ; Preface I for decrees for sale 107,108 I 465 Pregnancy 466 of convict 482 466 rrrjudirr 466, case dismis.^ed without, 213 105 INDEX. 535 PAGE Preynises decree for sale on 109 order to sell on, 2'JO 15tl view of, in ap])r()priation case, or- dered, 784 380 Prea'idlny judtic to sign minutes of joint session... 9 appointment noted 9 Prhicipdl n demurrer sustain- ed, 938 4G7 counsel assigned for indigent 4G8 discharged hv examining court, 903..'. 453 admitted to hail hy examining court, 904..' 454 remanded to jail by examining court, 905..." 454 found to be insane, 90G 454 when not indicted, discharged, 922 4G1 recognized, 923 4G1 discharged for variance, 927 4G3 insane — order for jury to try question, 928.....' '. 4G4 entry of verdict, 929 4G4 indijrent, counsel assigned for, 930 465 committed after indictment quash- ed, 931 4G5 after jilea in abatement sus- tained, 934 465 bailed after indictment quashed, 932.... 465 after plea in abatement sus- tained, 935 4GG discharged, after demurrer to in- dictment sustained, 938.. 467 trial iii absence of, 953 473 detained after indictment quash- ed, 955 474 discharged, when not tried, 958, 959 474, 475 discharge of, refused, 9G0 475 recaptured, sentenced, 969 481 death sentence, 971 482 insane or pre;:nant 482 PAGE Pr'iHoner insanity of, found, 972 482 found not insane, 973 483 Privilege Jrorii arrest 159 order for discharge, 301 159 Prizc-fifjhts recognizance not to engage in, ordered, 896 449 accused discharged, 897 450 Probate court. See Courts. Probate of vnlls For titles of journal entries re- la tine/ to, sec pages 290 and 291. order for, 542 294 when last witness comes, 543... 295 when commission returned, 544, 545 295 refusal of, 547 296 of spoliated will, ordered, 552 298 Proceedings against member stayed ... .f le: ^lati 24 Proceedings iu aid ff execution 159 subjecting money, etc., to pay- ment of judgment IGO decree subjecting equitable in- terest to payment of judgment, 302 160 by examination of debtor — nature of the proceedings 162 authority of judge in 163 authority of court in 1G3, 167 title of case 163,166 instituted without alHdavit or proof 164 by whom issued ,, 164 orders to he reduced to writ- ing 164 entered on journal 1G4 record of orders filed, etc 164 copy of order served as sum- mons 164 referee apjiointed 1G4 when pr(jceedings di^mi-'^.^efl.... 164 order for defendant to appear, 303 1G5 notice to defendant 1G5 how served 165, IGG referee appointed, 304 166 institut>d upon iitfidavit or proof of jiropcrty. 166 when commenced IGG 53G INDEX. PAGE Proceedings in aid of execution order for defendant to appear, 305 167 made by court, 30(j 167 when commenced by an f)rder of a rres t 1 68 warrant alternative 168 when proceedings discharged... 168 order for arrest, 308 168 warrant for arrest 169 order for undertaking, 309 169 order appointing referee, 310... 169 against third parties — before judge 169, 170 order for appearance of third pai'ty, alter execution, 311 170 same, before execution, 312... 170 form of notice 170 application of property discov- ered 171 order for may be made 171 how enforced 171 receiver appointed, when 171 order for application, etc., 313.. 171 when in hands of third party, 314 172 order appointing r'^ceiver, 315. 172 order for receiver to sell, 316.... 173 how sale approved 173 order for receiver to pay oS judgment, 317 173 order for receiver to apply funds, 818 .'. 174 minutes of the judge 174 Process person appointed to execute 1, 12 name added to 35 amercement of otlicer for failing to execute, 365 199 Promissory note See Negoiinble ■paper. Proof what required in iudgmcntbv de- fault '. .' 123 case referred, for taking 126 Property order for jury to view 59 attached. See Aifnc/ud j)roj)erf)/. perishable, order for sale of, 327.. 178 in hands of garnishee, order for delivery of. 179, 180 order that garnishee retain, 331... 181 sale of bv garnishee, ordered, 838 183 held by trustee 196 PAGE Property order for deposit of, 361 196 order for delivery of, enforced, 362 196 of wife, husband enjuined from interfering with 215 restored to wife, on divorce 216 husband enjoined from disposing of, 413 .'; 221 given for a religious use, decree for sale'of, 476 262 discovered after inventory filed appraised, 597 316 personal — sale of dispensed with, GOO 317 subsequently ordered, 601 317 order for private sale of, 602.... 317 at less than appraised val- ue, 608 317 sale of, in regular course of trade 318 public sale alter failure of pri- vate, 604 318 sale of confirmed, 609 319 fraudulent transfer of prevented. 374 appropriation of 385 See Appropriation of prnpcrtji. decree vesting in trustees, 888 441 Prosecuting attorney allowed to bring action of quo warranto, 842 411 member of bar substituted for, 843 411 one of examining court, 903 453 attorney appointed to assist, 916.. 459 order appointing assistant, 917... 459 Prosecution case dismissed for want of, 214... 105 Protest when cost of included in judg- ment 97 PubUcatioa order approving 26 against unknown heirs, order for approved 26 on foreign will presented for rec- ord ordered, 550 297 for non-resident executor, 665 342 of notice of filing accounts or- dered, 775 383 approved, 776 383 Punishment for misbehavior, 384 206 for disobedience of order of court, 389 208 INDEX. 537 PAGE Punishmeni for contempts, 392 209 Purchaser at judicial sale failing to pay 154 4^uashing an appeal costs in case of. 81 judgment for 81 (Question of fact not put in issue — order for trial of, by jury, 2 13 verdict, 3 14 order referring, 4 14 of sanity of j'arty, order for trial of, '.»«.' 17 finding and order on submitted, ti07 342 submitted to probate judge by administrator, 068 343 reserved to common pleas, 669. 343 judgment construing, 670 343 (^uietin;! title (ntd ptiysessioit by wiioui action brought 248 issue not triable by jury 248 decree, 456 248 Qiio Warranto 397 officer allowed to bring action, etc., 842 410 member of bar substituted for prosecutor, 843 411 order that notice be given. 844... 411 decree of ouster from office, 845.. 411 order for deliver}' of booiis, etc 412 attachment for disobedience of... 412 decree of ouster against directors, etc., 846^ 412 and order for new election, 847. 413 decree dissolving corporation for non-user, 848 413 report of tru.stee approved, 849. 414 ouster from exercise by corpora- tion of illegal power, 850 414 order that directors of bank give security, 851 415 bond approved, 852 415 judgment for defendants. 853 415 Real actiotis 247 to quiet title and recover posses- sion 247 See Quietiuff title and jwssess- ion ; also see Possession. recoupment by vendee, etc 248 kSee Recoupynent. PAGE Real estate. See Land. order to subdivide 116 situated in more than one county. 116 order for sale of, in attachment, 338 183 how confirmed 184 order for conveyance of, in di- vorce case 216 title in fee conveyed, note 210 as alimony, 411 219 quieting title and possession to... 248 decree for, 456 248 order for surrender ofi458 250 recovery of 251 what decree must find 251 may be tried ly jury 251 recovery of — decree for, 400 251 decree for defendant, 461 252 . verdict in action for 252 judgment on verdict, 462 253 for defendant, may be what. 253 motion for new trial overruled and judgment for plain- tiff, 463 253 when right of termiiiales dur- ing action, decree for damage,-, 464 254 when tried by jury, forms.... 254 completion of contract concern- ing 258 See Contract. conveyance to heirs, judgment, 572 259 order for appraisement of, by ex- ecutor, 566 307 by administrator. 567 307 sale of. by <'xecutors, see iS'«/e 327 fraudulently conveyed, recovered by executor 327 sale of, by guardian 356 See Sale. order for subdi\ ision of. 705 356 leasing of, by guardian 361 freeholders appointed to report, etc., 717 362 order for, 718 362 of lunatic, idiot or imbecile .... 363 convevance of, declared void. ' 741 371 See Conveyance. how administered after 371 sale of, bv assignee, order for, 748 374 order for private, 749 375 in common pleas, 753 377 sale of, completed bv assignee, 751 .' 376 sale of, on street assessment.. .420, 421 conveyance of. See Conveyance.. 423 638 INDEX. Real party in inierest. See Parties to actlo7i. Receiver to eollect from stockholders and pay judgment against corporation 160 in proceedings in aid of executor whien iippointed 171 by whom appointed 171 order appointing, 315 172 order for, to sell, 310 173 how sale approved 173 ordered to pay oil" judument, 317 r 173 ordered to apply luiuls, 318 174 appointed to take possession of attached property, 326... 178 to collect notes, due bills, etc... 184 order for, 339 184 order for, how drawn 192 order for delivery of possession of real estate to 193 his possession can not be inter- fered with without leave tif court 193 how suit brought against 193 notice given to whom 193 order allowing, 355 194 order appointing, 354 193 ordered to bring suit, 355 194 ordered to invest money, 357 194 order confirming report and dis- charging, 358 194 goods in custody of 195 See Goods. appointed in proceedings for dis- solution of corporation, 398 211 ordered to pay dividend, 399, 400 212 account of referred, 401 212 allowed, 402 212 of property being wasted, etc., 413" 221 Recognizance in bastardy case — taken, 374 203 released, 375 203 new, ordered, 376 203 ' forfeited, 377 203 ordered in habeas corpus, 431 232 order that debtor enter into, 765. 381 filed and approved, 766 381 binding during term when 451 PAGE Recogniza7ice new should be taken when 452 how recorded 452 record of, when taken by court, 899 452 of one's own recognizance, 900. 452 order for new, at end of term, 901 452 fixed in case of felony, 902 453 fixed by examining court, 908.... 455 new, taken, 910 455 forfeited, 913 456 forfeiture of, opened up, 914 457 of witnesses on change of venue, 947 469 after arrest of judgment, 986 485 Recognized prisoner delivered, and committed to jail, 909 455 in vacation, 911 456 and new recognizance taken, 910 455 in vacation, 912 456 Record how waived 139 order to abbreviate 139 of copy of will from other coun- ty, 546 296 from other state, 549 297 in second county, 550 297 of foreign will — order lor publication, 550a 297 order for, 55 1 298 of will destroyed, copv admittled to, 553 .'. 299 perfect transcript of may be or- dered 402 but not an amendment of. 402 diminution of 402 See Dhnrnution of record. of witnesses before grand jury. .. 461 of reprieve, 970 482 introduced into bill of excep- tions 497 Recorder^ n office decree to be recorded in. .228, 236, 239 Recovery of real estate. See Real estate. of property — new party made in actions for.... 20 party substituted forsheriif in ac- tion Ibr 21 Recoupment by vendee in action for recovery of purchase-money 249 decree finding lien, and for re- coupment, 457 249 INDEX. 539 PAGE Recoupinent decree finding adverse estate, and surrender ordered, 458 250 same, and order for paj-ment of balance, etc., 459 250 Redundant mattcr stricken from pleadings 31 Referee trial before. See Tr-ial by ref- ercen. order to compel report of. G8 report of. See Report. in proceedings in aid of execu- tion 1G4, 105, 166 order appointing, ;5U4, 31U..166, 169 of claim against executor ap- proved of, 610 319 report of confirmed, etc., 611, 612 320 set aside, etc., 613 320 question submitted to probate judge, as, 668 343 in matter of claim against es- tate, judgment on award of, 683 348 oath of 444 Reference See Referee; Master comtnifi- sioner. order for, of question not put in issue, etc., 4 14 of case in default 125 to take account 126 after default found, 239 127 to take proof of a fact 126 judgment on report stating ac- count 126 judgment on report finding facts 127 after judgment on the pleadings. 137 of question of priorities in at- tachment, 341 185 of receiver's accounts, 401 212 order of, on claim disallowed by executor 347 judgment on the award, 683... 348 Reformaiion of deeds, decree, 865 425 Religious use sale of property given for, 476... 262 confirmation, 477 262 Remayidirig from district court to common pleas 79 PAGE Remanding in decree for sale 79 Remittiiur 129 entry of 129 order for 1 30 of part of damage, etc 138 new trial ordered unless made, etc 139 Retnoval of ward to another state, guard- ian 355 of case to U. S. circuit court, 883 437 to district court of another r unty.884 438 of case friiiii superior to common pleas court. 986 492 rients, issues, and jirofiis dower assigned as of. 223 See Doicer. assignment of dower by execu- tor approved, etc., 637... 332 Repleviii when property has been delivered to plaiutiff. 264 bond takes place of )iidp<-ily... 265 plaintitT acquires ownership of property replevied.. 265 what finding or verdict for de- fendant nmst find 265 heirlooms replevied 260 order for sheriff lo retain, 478 265 in ca.se of judgment on de- nuirrer against plain t- ♦ iff 266 what is found thereby 266 demui-rer to petition sustain- ed, 479 266 and damages assessed for defendant by the court, and judgment, 480 267 and finding against defend- ant's right to damages. and judgment, 481 267 and case sent to jury, 487. 270 demurrer to petition sustain- tained, judgment against plaintiff, and case con- tinued, 482 267 damages assessed for de- fendant by the court, 483 268 finding against defendant's right to damages, and judgment, 484 268 demurrer sustained, damages 640 INDEX. PAGE Replevin assessed by the court for defendant, and judg- ment, 485 269 demurrer sustained, finding against defendant's right to damages, and judg- ment, 486 269 demurrer sustained, judg- ment against plaintiff, and case sent to jurv, 488 270 verdict for or against de- fendant, 489.. .^ 270 judgment on verdict for defendant, 490 271 judgment on verdict against defendant, 491... 271 in case of plainiitf's failure to prosecute his action 271 effect of default 271 finding for defendant, dam- ages assessed by the court, and judgment, 492 272 finding against right of de- fendant to damages, and judgment for costs. 493.. 272 verd'i<'t for or against defend- ant, 494... .7 272 judgment on verdict, 495 — 273 replevin certified from a jus- tice 273 when plaintiff in default... 273 when certified 273 when detVinhmt to file pe- tition 274 damages assessed by the court for defendant, 498 274 finding against delend- ant's right to damages, 499 274 verdict for or against de- fendant, 500 275 judgment on verdict, 501.. 275 in case t)f defendant's default title necessary, noie 276 judgment for plaintiff, dam- ages assessed by the court, 502 275 for nominal damages, 503. 276 judgment for plaintiff, dam- ages waived, 504 276 judgment for plaintiff, and case sent to jury on in- quiry of damages, 505... 277 in case of submission of the issue to the court or a jury — trial of, by jury 277 PAGB. Replevin trial by the court 277 finding by the court, and judgment for plaintiff, 508 278 finding for defendant, 609.... 278 verdict of jury, 510 278 judgment on verdict, 511 278 in part for each, 514 279 proceedings when the properiy has not been taken, or has been returned w the d>- fendant action to proceed as one for damages only 280 costs 280 Repmri of referee — when confirmation required.... 65 order to compel 68 judgmen.t on report finding facts and law 68 after motion overruled 68 judgment on report of, finding facts 69 after motion overruled 69 set aside, new trial granted 69 before another referee 69 of master commissioner 70 of referees in arbitration confirm- ed, etc., 611, 612 320 set aside, etc., 613 320 of commissioners in insolvency... 347 should be confirmed 347 of grand jury 461 entry on, 921 461 Representative of party — action contitiued against 19 proceedings against, stayed 24 made party, etc 45 of deceased partv made party to judgment, 281 149 Rt jirieve record of, 970 482 Reservation of case in probate court to com- mon pleas, 669 343 of case to supreme court, 885 438 from special to general term 490 on bill of evidence, 984 492 on motion, 985 492 Resignation of guardian accepted, 701 354 of assignee accepted, etc., 732 368 of one of two assignees, etc., 743. 369 INDEX. 541 Restraining order in proceedings in aid of execu- tion 1G5 how granted 188 its limitation 188 no appesil from order dissolving.. 188 how enforced 188 by whom granted 188 endorsed on petition 188 entered on journal 189 order allowing, 34G 18'.:t Rttaxniion of costs 143 order lor 143 Return of sheriff amended 153 leave granted, 284 153 Revaluation. of premises in partition proceed- ings, 453 240 order to sell without, 454 240 Revivor of aciion. a matter of right 44 by consent 44 order for, 91 40 case stricken from docket when not revived 47 same, after notice given 47 conditional order of — always made when revivor not by consent 44 on death of plaintiff, 88 45 on death of defendant, 8'J 40 final order of, 90 40 judsrment taken without, is void- able 44 suggestion of death 44 representative nuide party, etc, 87. 45 by supplemental pleading 45 Revivor of judgment dormant by lapse of time — before code 147 continuation of former suit 147 conditional order of, on motion. 147 when payments have been made, 277 148 service of, how made, note... 148 final order of, on motion, 278... 148 when payments have been made, 279 148 judgment of. on petition, 280... 149 when party dies before satisfac- tion 149 representative made party, 281. 149 conditional order of, 282 150 service of, note 148 final order of, 283 150 PAGE Road-bed appropriation of abandoned 389 See Appropriation of property. Rule allowed 84 discharged 84 judgment on 84 in case of contempts 207 order allowing, 385 207 discharged, 388 208 disobedience of punished, 391... 209 Sale order for, may issue from wbat courts, note 79 remanding cause in decree for.... 79 of mortgaged property 106 may be by special master lOG judgment for money at same time 106 when execution may not issue on decree for 106 when execution may issue on decree for 107 preface to decrees for 107, 108 on default, preface to decree.... 107 decrees for 108-117 time for payment before, note.. 108 ordered on premises 109 terms other than cash 109 German advertisement dis- pensed with 109 liens determined when 112 when situated in more than one county 116 confirmation and distribution... 117 decree for 117 building association decrees 119 See Building associations. on execution — of goods and chattels, order for private, 285 153 of lands and tenements 153 may be set aside or confirmed.. 153 terms of can not be modified... 153 purchaser at, failing to pay 154 decree of confirmation of, 288.. 154 on premises, ordered, 290 156 -vacating satisfaction of judg- ment, 292 150 in favor of officer, 293 157 new appraisement ordered, 294, 295 157 order for, on time, 205 157 for certain amount, directed, 290 158 fraudulent, mav be declared void, etc....'. 160 of mortgagor's interest to pay judgment 100 542 INDEX. Sale of equitable interest, to pay judg- ment '. 160 of perishable property ordered, S27. 178, 184 of property attached, order for, etc., 338 183 of real estate, completion of con- tract for... 258 See Conivact. of entailed estates. See Entailed estaies. private authorized 261 of property given for religious use, decree, 476 262 of personal property by executor — order dispensing with, 600 317 subsequently ordered. 601 317 at private sale, 602 317 return of, ordered 319 at less than appraised value, 603 317 in regular course of trade 318 public, ordered after failure of at private, 604 318 order confirming, G09 319 of desperate claim authorized. 606 318 at private sale, 607 319 of real estate by executors for payment of debts, etc... 327 in what courts 327 after fraudulent conveyance. .. 327 proceedings appealed from 327 not granted, on bond given, 629 327 found not necessary, 630 328 where made, 7ioie 328 where there is no dower to be assigned 328 on appraisement in inven- tory, 631 328 bond required of executor.... 328 appraisement ordered, 632... 329 in case widow has waived dower, etc., 633 330 confirmed and decree for sale, 634 330 where there is dower to be as- signed — assignment and appraise- ment ordered, 635. 331 confirmed and decree for sale, 636 331 assignment of dower rents and profits, and appraise- ment confirmed and de- cree for sale, 637 332 for certain amount ordered, 839. 333 private decree for, 641 333 PAGE Sale order for, after appraisement confirmed, 642 334 on report of otfer, 643 334 of real estate by guardian — notice to defendant of petition for, 704 356 guardian ad litem, in 356 appraisement of premises. See Appraisement. decrees for, 710, 711, 712.... 359, 360 order for private, 713 360 on report of offer made. 714. 361 confirmed and deed ordered. 715 361 when widow has waived dower bv metes and bounds, 716 361 confirmation and distribution, decree for, 644 334 after private sale, 645 335 decree, where dower bj' metes and bounds was waived, 646 335 of equitable interest by executor, decree for, 647 336 confirmed, 648 336 of real estate by assignee, order for, 748 374 order for private, 749 375 confirming of. 375 of personal property bj' assignee. 375 order for private, in course of business confirming pri- vate, 750 375 at public auction, after, etc 375 completion of, by assignee, 751... 376 contract of, bv assignor, enforced. 752.: 376 of real estate by assignee in com- mon pleas, 753 377 decree for in district court, 817... 400 where order for, to issue from, note 401 of personal property on chattel mortgage 423 may be by master commis- sioner, )iote 423 governed by what rules, note... 423 of real estate — on street assessment 420, 421 in courts of equity how governed, note 423 when enforced by attachment 424 Sale hill order for return of 319 Sanity of party to action, order for trial " of, 9a 17 INDEX. 54J PAGE Sail sf action of mortgn;40 ordered to be en- tered 117 of judgment — order vacatins;, 292 156 in favor of officer, 293 157 Sealed vfrdict order lor 59 Sennuni admitted to citizensiiij), 881 43G Search warrnnt order tliat certain things taken be destroyed, 898 450 [Repc^alod and omitted in body of book ] Secnrit]) order for additional, in attach- ment, 342 185 for costs — See Costs. Senate. See Meinber of legislature. Sentence pronounced on verdict, 903 478 on plea of guilty, 9(J4 478 teslimonv given in mitigation of, "note ...:. 479 forms of 479, 480 execution of, suspended 480 may begin in future, note 480 for misdemeanor suspended, 966.. 481 for felony suspended, 967 481 carrying suspended, into execu- tion, 968 481 of escaped prisoner, when cap- tured, 909 481 of death, of escaped prisoner when recaptured, 971 482 pronounced after new trial re- . fused, 975 484 suspended in capital case, 982...... 487 in other case, 983 487 Separate finding of facts njul law.... 63 Separate session of common pleas . form of opening Separate session of closing 7 daily sessions of 8 openinsi ■' closing 8 Service of summons set aside 25 constructive order approving publication... upon unknown heirs new, made on new petition ordered by publication in appro- priation case, 782 Services allowance to executor, for special, 059 20 26 26 31 380 340 of attorney paid for, 659 340 .'/ of proceedings against member of legislature.... 24 unpaid subscription to, subjected, etc 160 distribution of, by executor or- dered, 623 324 without bond being required, 624 324 after debts are paid, 660 340 Stockholders names of, how reported, etc 160 judgment and execution against, for judgment against corporation 160 dividend to, ordered. 400.. 212 enforcing individual liabilitv of, ''887a 439 Striick-jitrii. See Jurors. how made up 53 order to summon bystanders for.. 53 order appointing person to act in place of olBoer 53 Subdivision of real estate ordered 116 of real estate sold by guardian ordered, 705 356 Suhjeciing Subjecting equitable interest to payment of judgment 160 .decree lor, 302., 160 Subject of action how one claiming, made party... 20 party claiming barred, when '. 21 Submission of question to probate judge, as referee by agreement, 668 '.. 343 SubscriptidJi to stock subiected to payment df judg- ment, etc 160 Substitutiiiij name of I'cal ]iarty in interest 15 order fir, 5 16 guardian of infatit for next friend, 6 16 name or party on transfer of in- teres't 20 party claiming subject of action.. 21 one claiming subject of action for detendant 21 appraiser in sale by executor, 638 Suggestio)! of death of partg. 332 44 Suit. See Actions. against receiver, liow brought... . 193 order allowing, 355 194 hy receiver, order for, 355 194 on bond of executor authorized, 675 345 Sunnnoi/:i service of, set aside 25 how served upon unknown heirs. 26 amended must beserved 35 name added to 35 constructive — new trial after 145 Superior court See Courts. Suppleiaeutal pleadiiigs leave to file 36 action revived by 45 Supplemev tary proceedings See Proceedmgs in aid of exe- cution. Surety money to payment of judgment. 160 | for costs; judgment against. 142 INDEX. 545 .S-^rety officer made party to judcjmt'nt of amercement, 307 199 certifying in judgment which is principal and which surety 281 entry, 515 281 judgment in favor of, for plaint- iff failing to jjrosecute principal, 51ti 281 on bond of administrator, order releasing, 671 344 may have boiid nf indemnity 345 additional on guardian's bond or- • dered, Gi)l 352 released, new bond ordered, 699.. 354 order releasing from bond of as- signee, 739 ......;.... 37Q Surveyor — guardian authorized to cmplov, 705 .*.. 356 Survivor authorized to complete contract for sale of real estate, 470 258 Talesmen when and how summoned 51, 53 who may not be 51 order for venire for, etc 51 when array set aside 52 I entry on return of venire for 52 selected by the court 5:; for grand jury, order for 45J< Taxefi what to lie j>aid from proceeds of sale, 118. nolr 155 what paid in partition cuses, nofr 155 order for })ayment of.. .241-248, 24G decree enjoininsj illegal lew of, 517 r T ! 282 decree enioining collection of il- legal, 518 282 judgment for recovery of, illegal- ly assessed, ol9 T.... 283 special order for auditor to lew, 841 .".. 410 Temporarii injimctioii See Injunction. Tender on contract for payment of mon- ey ." 39 judgment after 39 on C(intract for payment of other article than money.. 40 judgment after for assessed val- ue 40 PAGE Tender judgment after allowing per- formance 4Q judgVnent when not sufficient.. 40 verdict after, assessing value... 41 judgment on verdict 41 verdict finding insufficient 42 Terms of court district contiouing of 1 special 1 order to put on journal 1 form of opening 1 order for, made by judges... 2 regular 2 form of- opening 2 of closing 4 cornytioii plens adjourned •'> order for, where entered 5 order for 5 form of opening 5 closing of .. 5 special order for character of. should go in journal.! 6 form of opening '5 of closing 6 Testimony arrest of, from jury. See Arrest of fe.stiminiy froiii jury. taken before re:eree reduced to writing 67 taken by master commissioner, when used as deposition. 71 of prisoner — (>rder for oral 86 perpetuation of 287 order allowing examination of witness, 529 287 tintil order of approval. 530 ... 288 of one witness taken on will be- ing presented for pru- bale, 539 293 as to signature of dead or absent witness, taken. 539^/ 203 commission to take, of witiie.~> to will, 540 293 after one sworn, 541 294 of witnesses taken and will pro- bated, 542 294 of last, witness coming, 543, 545 295 commission to take, 951 473 may be given to mitigate sen- tence, note 479 when to be set out in bill of ex- ceptions, ?iote 493, 494 exceptions to ruling out 495 to refusal to receive 496 546 INDEX. Time for settlement by executor, ex- tended, 598..'. 316 for presenting claims to commis- sioners in insolvencj' ex- tended, 677 '3-46,347 Title of case put at head of entry 10 of ex parte case 11 of cause, may be changed 15 of entries in contempts of court.. 207 to real estate — quieting of 248 decree for, 456 248 defective, order for -reconvey- ance, 458 .'.. 250 decree quieting independent, in action tor recover\ , 461. 252 alien must renounce, 882 437 of case in criminal procedure 446 of case alter name corrected 466 Tou->i dec.-ee eluinging namb of, 521 284 Transfrr fraudulent, prevented 374 Transo'ipt failure of appellant to fik in com- mon pleas 7'.i perfect, may be ordered. 402 order for, 823 403 order for, complete, 823 403 Tr(n/e sale of property in regular course of 318 Trial of question not put in itsue 13 order t\>v. by jury, 2 13 verdict 14 of question of >;inity, order, 9rt.. 17 by the court 62 judgment (MiU-red when 62 what Bndini; inadt.' 62,63 findintron i 64 how conducted 65 report on 6o review of referee's decision 65 appeal vacates rejiort of ref- eree 66 order of relerence lor trial 67 order of reference to asi-ertain and report facts 67 substituting referee 67 Trial order to compel report of ref- eree 68 after motion overruled 68 judgment on report finding facts 68 afti'r motion overruled 69 repirt set aside, new trial 69 before another referee 69 by master commissioners 70 how conducted, etc 70 appeal from 70 See fuither. Muster covunis- siouer. order for in bastardy case, 378, 379 ". 203, 204 separate, of parties jointly in- dicted, note 469 of capital offense 470 jury formed. 948 471,472 in prisoner's iibsence, 953 473 order for separate, 954 474 new granted, 974 484 refused, 975 484 Trust may bi^ executed by trustee of foreign will,'563 302 by li-ustee appointed by foreign court, 564 '. 302 ■/;■/■.-''■■• .'luLM- appointing, for insane party. 7.; 10 order appointing, for paity be- eonii;)g, or discovei'ed to be in>ane 16 order reinovini;, 9 17 property held by 196 order' for deposit, 361 196 delivery of, enforced, 362 196 vacancy in board of, dechtred, ' 4(4, 405 21:!, 214 new, in board of, ap|iointed, 405.. 214 appointed in decree foi- alimony,. 220 appointed in cash of ^u !e oi en- tailed estate. 474 261 order apiiroving bond, 475 262 testamentary old appointed under will, 561 Ijiii new one ajipointed. 5(i2 301 of foreign will authorized to exe- ^ ente trust, 5f.3 302 apjiointed by foreign court, au- tlioi'ized to execute trust, 564 302 under foreign will appointed, 565 302 of non-residents 364 order appc)inting, 724 364 ordered to pay money over to foreign guardian, 725.... 365 INDEX. 547 Trustee generally, and their accounting... 365 entries relating to, how made.. 3C5 involuiilarv assignments — appointed on assignee being re- moved, 730 oiJ8 on assignee resigning, 732 3iiH on death, etc., ofa.ssignee, 734.. 369 additional, ai)|)oinied, 735 3Gli day fixed I'or election of, 736... 37U chosen by creditors approved and tippointed, 737 370 order for removal of, 738 370 appointed, iti case of convey- ance hciiii:; declared void, 741 372 duties of 378 by probate court. 743 373 decree vtisling property in, 888... 441 Under taking. See Bond. order for new in appeal 82 in proceedings in aid of execution order for, 309 IDO Unknown /leir.'^ order for publication against 26 nuist be complied with, note.... 2ij publicatit)n against, approved 26 Usr religious, decree for sale of prop- erty given for, 476 262 Vdcnncu in board of trustees declared, 401, 405 '. 213 Vacathiff satisfaction of judgment. 202 15f'( in favor of officer, 293 157 VdCd^ion entries in .^ 9 form of 9 Venire for petit jury, when returned 44G for grand jurv, entry on return of, 915 458 special for grand jury ordered, 915 458 entry on return of 458 in capital case, entrv on return of, 948 .' 471 Venue change of. See Change of venue.. 469 Verdict on question of fact not put in issue, etc., 3 14 entry on return of 56, 57 filed with clerk and eiitcied un journal, noie 50 general and special 58 must find what 58 forms of. 58 general, for damages 58 general, for defendant 58 Vuluc of estate, estimate of filed by ex- ecutor, 566 by administrator, 567 Variance developed on the trial material, amendment allowed .... immaterial, amendment allowed . prisoner discharged for, 927 Ve7idor's lien decree for sale on, 887 Ve7iire order for issue of to coroner for grand jury, when returned... 307 307 89 89 90 90 463 440 446 special ■)o general, willi special finding... 59 sealed 59 order fur 59 when judgment entered on 133 judgment on special 133 forms of judgment ()n 133. 134 judgniiMt notwithstanding 135 . .f guilty iti Ipiistardy case, 380 204 in replevin csise — must find wl)at 265 ferms of 279 entry of, in appropriation cum'. 786 387 general entry on I'eturn of 961... 476 forms of. 478 Verificniinn of plcaduifi 31 want ot, cause for striking plead- ing from files 31 certificate of, amended 34 Vietc of property, order for 59 of premises in appropriation case ordered, 784 386 of place, t)rder for, 949 472 Vouc Iters examined and allowed. 653. .. 338 Wiiiver of ji'ri/ .i .'. — 63 Warrant of attorneij 130 Womnit ,-•■■' in proceedings in aid of execu- tion 168 548 INDEX. PAGE Warrant alternative to order 168 where issued, and who by 168 form of. : 169 Waste iudgment of, asrainst executor, ^ " 617 1 322 when amount can not be ascer- tained, 618 , 322 Wearing apparel decreed to wife 217 Widow dower of. See Dower. waiving dower by metes and bounds, 7iote 237 must be notified of will being presented for probate, 542 204 election of, under will 29';) citation for, 554 299 entry of election, 555, 55t3..299, 300 commission issued to take of, 557 300 when widow unable to make, 559 301 election entered for, 560... 301 letters of administration granted to, 567 807 declining administration, 568 307 allowance of, set otf, 588 313 increased, 589 313 diminished 314 waiving dower, sale of real es- tate .■ 3.30 waiving dower by metes and bounds, in sale by guard- ian, 706 357 asking for dower in property sold by guardian 357, 358 -Wife. See Married rromev. of idiot, lunatic, or imbecile 363 of man joining certain religious sects, 873 432 decree giving property to, 874. 433 Will contest of. 285 court may not set aside, without jury 285 order making up issue for jury, 523 285 verdict of jury, 524 286 judgment on verdict, 525 286 order in district court for re-trial of the issue, 526 286 Jor titles of journal entries relni- ing io wills, see pages 290 and 291. PACK Will admitted to probate, 542 294 when last witness comes, 543.... 295. when commission is returned, 544, 545 295 from other counties in Ohio ad- mitted to record, 546 296 from other state admitted to rec- ord, 549 297 copy of, admitted, etc., 650 297 foreign — publication ordered, 550a 297 admitted to record, 551 298 spoliated 298 admitted to probate, 552 298 when record destroj-ed, 553 299 election of widow under 29^ See Election. trustees appointed under, 561 301 foreign — trustee of authorized to exe- cute trust, 563 302 trustee under, appointed, 565... 302 mav dispense with bond of exec- utor, 566 307 being proved, former administra- tion revoked, 584 312 order construing question arising in, 670 343 guardian named in, appointed, 686 350 order on appeal admitting to probate, 889 442 refusing to admit to probate, 890. 443^ Wif/iess can not recover fees, when 84 rule for allowed 84 discharged 84 judgment on 84 attachment against 84 order for 85 discharged 85 judgment on attachment 85 proceedings against and ]Hiiiish- ment of 85 refusing to be sworn 85 discharged from imprisonment... 86 commission to take deposition of. 87 order for (examination of, to per- petuate testimony. 529... 287 to will, testimonv of, taken, 539, 542 ! 293, 294 in case of death or absence, 539r( 293 commissiim to take testimonv of, 540 .'. 293 after one sworn, 541 294 See Comniissio)i. if infirm or feeble 294 INDEX, 549 H'ltneaa liuit urii) coming, Uxliroony taken, bi.i 29& oath of. 444 recognized to HpjM'ar, etc., 904.... 464 puniHiiud for rciufting to anftwor b.'furu grand jury, !tl8... 46'J record of, beforn grand jury 4C1 rufiignizuncu of, takiMi. 947, 960 4GW.474 of prisoner in piMiitunliary, etc., •JW) 473 commiMion to take loKliniony, yr,! 473 prisoner dischargi'd to b«H-ome, %•-' 478 ]l'iiin(i}i tiinrried. S«*e Mtirrirt/ toomrn. inKano, dower of diM-harged 228 See J)uwrr. entry llnding insanity of, 420 228 order uj '-ommiuionflr .>3l 288 order laying <>il dutrict* in coun- ty. 632 289 U'reekn order appointing commiMioi" r of, 681 Wrtt of execution. See Execution. Writ of poue-uion, not* 117 WritxHy Soo Doeumrnls. Written itulrumrnl decree correcting error in, 628.... 208 B '^ ^1 vt ^ ^c^Awaan-# '^m% % § l5< ^ ?;. 5j ^ ^, T^ji5|U}f»iv^;-: c^- -S? r>(r* ^A n iiTi^t^ •VL'3/,",;j"5\j) i I i ,t>5 IIIIIIIIIIIIIIIIIMIIIIIIIIIIIIIIIIIIIIIMIIIIIIIIIIIIIIIIIIIIIIIIIIII AA 000 853 194 9 ; .i.C^FTA-PCP/ Q .4:^ 8- ^ 1^ «r 0Sf^?k ATW^ A, .«• I EIPE.IK A n9. f