THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
<o
I I
CODE
PRACTICE AND PRECEDENTS
EMHKACINtJ ALL
ACTIONS AND SPECIAL PROCEEDINGS
t'NDKR THE
CIVIL CODE OF OHIO
AND APPLICABLE TO THE
PRACTICE IN ALL CODE STATES
BY
ALFRED YAPLE
Or THB I'INCINNATI lUtt
VOLUME I
CINCINNATI
ROBERT CLARKE & CO
L888
T
COPYEIGHT
BY ROBERT CLARKE & CO
1887
ELECTROTYPED BT
CAMPBELL & CO.
CINCINNATI, OHIO.
DEDICATION.
TO THK
YOUNG MEN OF THE BAR,
FROM WHOSE RAYKS WILL-COME THK KDTl'KK liRKAT LAWYERS AND JURISTS OF THE
Col NTRY,
THIS WORK,
Wiy< OIKFIDEMCB AXI> A RKAI.IZINO 8KXSE OP ITS MAXT DEFECTS, BUT IX THE HOPE
THAT IT MAT AID THEM, IX 8OMK IlKCKKE. TO IMI'BoTK I'lMX WHAT IT COXTAIK8,
rROM ONE WHO DESIRES TO BK A IIH.I'KK TO TlloSK IX WHOSE I'KuKESSlOX AND
K S8KIM. CAREERS HE PCELB A DEEP SOLU'ITfUl , 1- DtlUC \TKH BY
THE AUTHOR
748702
PREFACE.
the present day, when law books ami legal publications of
all kinds are showered from the press in a deluge, and no law-
yer, by devoting to the task all his time, would be able to read
them, the announcement of a new work of the class, if it does
not demand from the author an apology to the profession, does
require him to answer satisfactorily the question, (.*// /.//.'
M v answer is, that no book has been written a- yet which fills
the vacancy that the ** Code Practice and Precedents" was de-
signed and aims in a measure to supply. It is in no sense a
merely cumulative work. Its purpose, in addition to inducing
reful study, is to work out and to illustrate, practically, tin
Civil Code of this state and its auxiliary provisions, by con-
structing therefrom proper Forms and Precedents, with such di-
rections and instructions as will teach their application and use
in MM*, put into the hands of the lawyer for prosecution and
initiation in court. And in his effort to accomplish such
task, the author has endeavored to incorporate and make part of
>rk his practical experience of many years at the bar and
on the bench, working out re-nlts by the methods he. in practice,
adopted, and upon which the lawyer who may study them will be
enabled to improve.
The tir*l part of the work, while mainly designed for Ohio
lawyers, and, for that rea>on, made reliably practical in this
state, is intended to be a u-eful a--i>tant in all states which have
adopted codes of civil procedure; and it will, I trust, prove valu-
able- in such code >tatr>. if its j, Inn and //////,/ be observed, and
Mtutory |pp>vi-ion> of the state relating to the same subject
matter be consulted to determine in what respect changes, to
coiupjy with the reijuirements of such legislation, will be neces-
sary. And, in fact, in view of the constant changes made b\
the legislature in our own (' : should examine
!i the statutory provisions controlling the matter in hand at
IV PREFACE.
the time he is instituting any proceeding, or taking any legal
steps, or giving any professional advice, involving statute law.
The second part, it is hoped, may prove to be an aid to the pro-
fession in code states other than Ohio. It is principally devoted
to what would have been the requisite forms of the various ac-
tons as they existed before the enactment of the Code, and to
tvhat were cognizable only in the court of chancery, by adapting
the precedents in each to the Code.
Proceedings before justices of the peace and in the probate
court, further than the taking of appeals from their judgments
and orders, and how the same are to be reviewed upon petition
in error, do not come within its scope ; nor is it designed to
supply the place of any treatise upon Code Pleadings, Provis-
ional Remedies, Judgments, Executions, Homestead Exemption,
Habeas Corpus, Mandamus, or Quo Warranto, etc. On the con-
trary, if it do not fail of its object, the study of such special
works will be promoted by it.
The notes, and text apart from the Code provisions, are de-
signed, principally, to teach and illustrate the practical applica-
tion of the law.
The method, especially in Part One, is mainly inductive. The
facts, or subject constituting a cause of action, are given to the
lawyer, and for and with him are, in the form of a civil action,
worked through courts and their officers to a final conclusion, of
the matter in charge, aided by the employment of all auxiliary
proceedings, with the statutory provisions and decisions of the
Supreme Court upon them, etc. And the same course is then
pursued as to defenses, and defending against such actions and
proceedings, and how parties injuriously affected by erroneous
proceedings of a court are to seek redress, either in the same, or
other courts.
Enough, I trust, has been said to show the utility of such a
work, the only question being how well or imperfectly it is exe-
cuted. This can be determined alone by the body of men before
whom it now stands for judgment of condemnation or approval
the Bar and the Bench. A. Y.
TABLE OF CONTENTS-VOL I.
PA.BTL
PREFACE i
INTRODUCTION 1
1. Success in the practice of the law 1
2. Code system 3
3. Statement 4
4. Study of the Code 5
5. Legal preparation 5
6. Legal principles more important than cases 7
7. The law no longer to be mastered from reports 8
8. Codification of substantive law 13
9. Limitations upon right of trial by jury li
10. The lawyer's success II
11. Explanatory , 1*
CHAPTER I.
Cinu ACTION UPON PROMISSORY NOTE, ETC.
1. Against maker and first and second indorsers by holder _.'<
2. Pleadings, proceedings, writs, etc
3. Forms 1-4. 25
CHAPTER II.
ATTACHMENT.
1. Proceedings, orders, undertakings, etc 31
2. Forms f>-37 31-56
IMIAITKK III.
ATTACHJIKNT BKKIUIK DEBT Dcr
1. Proceedings, order*, iindtTtakiii:.'- i-tc
2 Forms38-42 57-60
CHAPTER IV.
GARNISHMENT.
1. All proceedings, etc., and remedies in 61
2. Forms 4;i-59 I1-7B
(vii)
Vlll TABLE OF CONTENTS VOL. I.
PAGE.
CHAPTER V.
RECEIVER IN ATTACHMENT.
1. Forms 44-77 76-86
CHAPTER VI.
ARREST AND BAIL.
1. Constitutional and statutory provisions relating thereto, with
notes of decisions of Supreme Court 87
2. Proceedings, etc., in 98
3. Forms 78-101 98-108
CHAPTER VII.
CONSTRUCTIVE SERVICE OF DEFENDANTS.
1. Statutes and notes of Supreme Court decisions relating
thereto, etc 109
2. Proceedings to effect .such service 116
3. Forms 102-106 116-118
CHAPTER VIII.
WHEN PLAINTIFF'S PETITION is CONFESSED BY DEFAULT OF DEFENDANT.
1. Judgments against defendant; garnishee; in favor of sheriff
for recovery of attached property, etc 119
2. Forms 107-111 119
CHAPTER IX.
COMPLETE RECORD OF CASE AND DOCKETS.
1. Statutes providing for and governing the same; acts of con-
gress as to certifying judicial records, with notes of decis-
ions of Supreme Courts of State and United States, etc 125
2. Forms 112-114 130-133
CHAPTER X.
EXECUTION.
1. Statutes governing, and notes of decisions of Supreme Court,
etc 134
2. Form (prescribed by statute) 115 134
CHAPTER XI.
LIEN OF JUDGMENTS AND TRANSCRIPT OF JUSTICE'S JUDGMENT, GIVING PREFER-
ENCE WHEN LANDS ARE SOLD ON EXECUTION.
1. Statutory provisions and notes of decisions of Supreme Court. 155
TABLE OP COMKNIS VOL. I. IX
CHAPTER XII.
PROPERTY EXEMPT FROM EXECUTION AND HOMESTEAD EXEMPTIONS AND SPECIAL
EXEMPTIONS.
PAGE.
I Statutes ami notes of decisions of Supreme Court, etc ........... 164
CHAPTER XIII.
TRIAL OF RISIIT OF PROPERTY WHEN CHATTELS LEVIED ON AUK CLAIMED BY
Tin is it PERSON.
1. Statutes and notes of Supreme Court decisions .................. 176
'2. Fonns, with directions and explanations under Chapters XI,
XII, and XIII, 116-1 to ............................................... 178-205
CHAPTER XIV.
PROCEEDINGS IN AID OK EXECUTION BY EXAMINATION OF DEBTOR AXD DEBTOR
OF JUDGMENT DEBTOR I^KKISKXCK IN, KTC.
1. Statutes and Supreme Court decisions providing for and gov-
erning same ............................................................... 206
_' Forms, etc., I fifi- 187 ...................................................... 211-221
CHAPTER xv.
PROCEEDINGS AS FOR COSTEMPT AGAINST PARTY OR WITNK-S DISOBEYING ORDER
OF JUI.I;K in: UKFKHKE. ,
1. Statutes, etc., governing saint- ........................................... -JJ2
2. Forms 188-193 ............................................................... 222-221
CHAITEI: xvi.
ARREST AFTER JUDGMENT OR EXECCTION AGAINST THE PERSON
I Statutes and notes of Supreme Court decisions ....................
J Forms 194-21X) ............. .................................
CHAITKi; XVII.
Sin HIKK "ii < 'i HK
:itutes and Supreme Court decision < ......... ........... 232
2. K..rm-i 311-20:; .................................... :5-237
CHAPTKi; XVIII.
REVIVOII OF DORMANT .Ii JM;MET.
1. Statutes and decisions of Supn-nn- Court . ; ...................... 238
2. K..rrn.2< 1-209... .. 239-212
X TABLE OF CONTENTS VOL. I.
CHAPTER XIX.
SUIT ON OFFICIAL BOND OF SHERIFF OB CLERK.
PAGE.
1. Statutes providing for such bonds, and actions upon same, with
notes of Supreme Court decisions 243
"2 Form 210 245-247
CHAPTER XX.
I. ACTION TO SUBJECT EQUITABLE ASSETS OF JUDGMENT DEBTOR. II. BY CRED-
ITOR TO SET ASIDE FRAUDULENT CONVEYANCE MADE BY DEBTOR. III. To
DECLARE CONVEYANCES MADE BY FAILING DEBTOR, ETC., IN TRUST, ETC., TO
BE FOR THE EQUAL BENEFIT OF ALL CREDITORS.
1. Equitable assets; statutes and decisions upon, etc 248
2. Statutes as to interrogatories, and Forms 211-212 251
3. Fraudulent conveyance; statutes and decisions upon, etc 254
4. Forms 213-223 259-265
5. Trust assignments which inure to all the creditors 265
6. Statutes and decisions as to same 266
7. Forms 224-225.. 269-271
CHAPTER XXI.
ACTION UPON JUDGMENT.
1. Form 226 272
CHAPTER XXII.
DEFENDANT'S DEFENSE TO AN ACTION.
1. Statutes, notes of decisions, notes and remarks, etc , 274
2. Form 227, appointing person to serve process., 286
CHAPTER XXIII.
, THE CODE CIVIL ACTION.
1 Defined; how, where, and by whom to be brought, and against
whom, with all Code provisions and notes of decisions of
the Supreme Court relating thereto, etc 288
CHAPTER XXIV.
PLEADINGS.
1. All the provisions of statute and notes of decisions of Supreme
Court, etc 329
TABLE uT NTS Vol.. 1. XI
CHAPTER XXV.
I. ATTACHMKXT, G BOUNDS or, ETC.
PAGE.
1. Grounds of ; statutory provisions and decisions 367
How obtained 369
xecution and return of.
4. Disposition of attached property 37ti
II. GARNISHMENT.
I. Receiver in attachment
'_' K>ference to master to report upon priorities 383
3. Exercise of power to keep attached property in the custody of
the law 3S3
4 When ntt-.ichfd property claimed by a third person 383
5. Wlien jurisdiction in attachment acquired, proceedings do tx>t
abate by death, etc 383
6. Motion to discharge attachment 3s4
7 Proceedings after judgment 385
8. Error : n cases discharging or refusing to discharge attach-
ment * , 386
III. ATTACHMENT BEFORE DKBT DCK.
I. i i rounds of such attachments, etc 387-389
CHAPTER XXVI.
K> viroR or ACTIONS
HAITKR XXVII.
COWOCCT or THE DKFKXSE AGAINST AN Aon
. 1. Setting aside Rummons or service and return thereof
2. Demurrer to petition ! 399
3. Answer
1 Denial of execution of instrument sued on 400
'. Illegal consideration and indorsement afu-r du< 4o7
ainitrg consideration i
7. Infancy 108
8. Ratification after arriving at majority 409
9. Duress, etc. ^ 409
10 Jn-aiiity ... 411
II. Drunkenness 411
I'J. Coverture -112
i:i. Release or discharge 413
M. Want of consideration 413
l"i. Failure of consideration 414
Xll TABLE OF CONTENTS VOL. I.
PAGE.
16. Statute of limitations 414
17. Statuteof limitations of another state 415
18. Replies to special defenses 416
19. Accord and satisfaction 419
20. Payment 420
21. Statute of frauds 421
22. Defenses of indorser 422
23. Forms 228-263 395-423
CHAPTER XXVIII.
LIMITATION OF ACTIONS, STATUTES AND NOTES OF.
1. Supreme Court decisions. 425
2. Actions concerning real property ; 426
3. Other actions 429
4. General notes of decisions, etc 436
CHAPTER XXIX.
PREPARATION FOR TRIAL OB HEARING OF A CAUSE AT ISSUE.
1. Modes of taking testimony, affidavits, depositions, etc., with
statutes and decisions, etc 441
2. Forms 264-268 449-452
3. Admission and inspection of documents, etc., with subpoena
duces tecum 452
4. Forms 269-280 456-461
5. Action for discovery 461
6. Form in, 281 461
7. Competency of witnesses and evidence 462
8. Means of securing attendance of witnesses 469
9. Forms 282-294 472-476
10. How jury summoned and impaneled, generally, and struck
juries, etc.; also struck juries in Hamilton county 476*
11. Challenge to array of 484
12. Causes of challenge 485
13. Peremptory challenges -. 486
14. Exemptions from jury service 487
15. Jury commissioners in Cuyahoga and Hamilton counties and
obtaining jurors 491
16. Trial by jury; variance; verdict 496
17. Trial by the court 514
18. Trial by referees 519
19. Trial by master commissioners 525
20. Forms to obtain additional jurors, 295-J96 479
21. Venire for petit jurors, Form 297 480
22. Special venire for jurors, Form 29S 482
TABLK OK CONTESTS VOL. I. Mil
PAGE.
23. Application for and order. Forms 290-301 .......................... 483-484
24. Certified list of struck jury. Form 302 ................... ............. 490
25. Certificate of commissioners of selection of names of jurors
in Cuyahoga and Hamilton counties, Form 303 ............... 493
26. Oath of jurors on voir dire, Form 304 ................................. 504
-7 <teth of and order to *iew premises, Forms 305, 306 ............. 505
_'v lurmsas to jury. ."07-309 .............. '. ................................ M3-514
29. Forms when trial to court, 309-310a .................................. 515
30. Forms on submission of agreed rase. 31 1-313 ..................... 518
31. Forms when trial is by referee, 314-320 ............................ 522-525
CHAPTER XXX.
EXCEPTIONS AXI> BILLS OF EXCEPTIONS.
1. Statutes, decisions, and forms ........................................... "'J>
2. Forms 321-331 ................................................................. 538-o48
CHAPTER XXXI
MOTION POR NEW TKIAI. FII.KU HI-RIM; TIIK TRIAL TERM.
1. Statutes, decisions, and forms ............................................ 549
2. Forms 332-333 .............................................................. 556-557
CHAPTER XXXII.
MOTION POR JtflXiMENT, NOTWITHSTANDIXO THK VERDICT, AMI FoR ARREST OP
.Jt'DOMEXT, AND UPOX SPECIAL VERDICT AND FINDINGS.
1. Statute*, decisions, and forms ............................................ 558
2. Forms in arrest of judgment; for judgment notwithstanding
the verdict, and upon the special findings, 334-341 ............ 559-561
CHAPTER XXX1I1.
TENDER AND OFFER TO COXPESS JUDOMEXT TutiR EFFECT AS TO JUDGMENT FOR
COSTS.
1. Statute* decisions, and forms, etc ....................... .......... >' _'
2. Form* 342-351 ............................................................. 566-570
CHAPTER XXXIV
IMCEM, HOW TBIKH.
1. Statutes, decisions, and forms ....................................
2. Form of affidavit for continuance un<lt>r Ku!.* XXIV. of Su-
preme Court, 352. .................................................... 575
XIV TABLE OF CONTENTS VOL. I.
CHAPTER XXXV.
JUDGMENTS.
AGE.
1. Statutes, Decisions, forms, etc 577
2. Form of verdict where counter-claim or set-off is pleaded,
353 v * 588
3. Form of judgment in case of money tendered, 354 595,
4. Same if property tendered, 355 595
Same after offer to confess judgment, 356 597
5. .Judgment by confession, 357 597
6. Forms on warrant of attorney, 358-360 598-599
7. Judgment for admitted part of claim, Form 361 599
8. Forms of judgment on dismissals, 362-363 599
9. Forms in relation to security for costs, and proceedings
against surety, 364-367 600-601
10. Forms of other judgments, 368-370 601-602
CHAPTER XXXVI.
NEW TRIAL AFTER JUDGMENT TERM.
1. Statutes, decisions, forms, etc 603
2. Forms 371-387 611
CHAPTER XXXVII.
MAKING PARTIES TO JOINT CONTRACT OR INSTRUMENT PARTIES TO A JUDGMENT.
1. Statutes, decisions, forms, etc 621
2. Forms 388-390 ." 623
3. Forms of petition and judgment in action upon such con-
tract, 391-392 625
4. Against partners as individuals where judgment was against
them in the firm name, 393-394 626
5. Petition to make sureties on bond of executor, etc., parties to
the judgment against principal, 395 627
6. Forms as to revivor of judgment against personal representa-
tives of deceased judgment defendant, 396-399 629-630
CHAPTER XXXVIII.
I. JURISDICTION AND PROCEDURE IN ERROR.
1. Statutes, decisions, forms, etc 631
2. Forms 400-417..., 659
TABLK OP CONTENTS VOL. I. XV
II. WRIT or ERROR FROM SCPKEMF. COURT UK THE UKITCD STATES TO STATE
< 'ofRTS.
FAO*.
1. Legislation of Congress, <Uvi>i.m* of Supreme Court of th-
United States, lorm*. -u- 671
2. Forms 418-421 674-67i
III. ERROR xou DISCH \i:i\c OR HKH SINI TO DISCHARCK AS ATTACHMENT.
1. Statutes, forms, etc., 4J-4'J: f>77-67y
2. Other forms in proceedings in error in state courts, 424-432.. 679-684
CHAPTER XXXIX.
I. APPEALS TO CIRCUIT FROM COMMON Pi. HAS COORT
1. Statutes, decisions, etc 685
II. AIPKAI. TO COMMON PLEAS FROM PROBATE COURT
1. Statutes, decisions, etc 6'.>
III. UMDKB ONE MILE ASSESSMENT PIKES 702
IV. APPEALS TO COMMON PLEAS COURT FROM JUSTICES OF TIIK PEACE AND
MAYORS
1. Statutes, decisions, <tc 703
V. IN ARBITRATIONS HKKOKE A .JrsTics OF THK Pi A. t 709
VI. APPEAL FROM BOARD OF ( OCNTY COMMISSIONERS 710
VII. APPEAL PROM ASSESSMENT OK DAMACKS IIT MCMCIPAI. COR-
PORATIONS 711
VIII. APPROPRIATION OF PROPERTY BY 711
1. Forms 4:;:i-4)7 712-729
CHAPTKl; XI.
1 HKMOTAL OP CAUSES PROM A STATE COI-KT TO TIIK CIRCUIT COURT OP TBK
UNITED STATES.
1. Federal statutes, decisions of the Supreme Court of the
United States, forms, etc 731
XVI TABLE OF CONTENTS VOL. I.
II. TERMS OF UNITED STATES COURTS IN OHIO AND WHERE HELD.
PAGE.
1. Northern District of Ohio, Western and Eastern Divisions
what counties comprise each division 736
2. Southern District of Ohio, Western and Eastern Divisions
what counties compose each division 736
3. Forms 468-473.... .. 745-748
INTRODUCTION.
SUCCESS in the practice of the law requires that the lawyer should
ho able to make his knowledge of legal principles practically available
in the institution and conduct of actions and defenses in courts of
justice. This is a need soon realized by beginners, and by those com-
ing to the bar from abroad. Indeed, it is felt, in a greater or less
degree, by every one during the whole course of professional life.
Tbe writer's opportunities were so unfavorable that, when admitted
to the bar shortly after coming to the age of majority, he had never
attended a law school, or spent a day in the office of a lawyer. The
first he entered was one opened for himself, and which next day was
yed by fire iu the conflagration of Chillicothe, Ohio, in April,
1852.
Judge Thurman had then recently gone upon the Supreme bench,
and his cases came into the hands of another, who employed the au-
thor (we then had the common-law actions and practice) to draft
I>K ailin.'s, which task, with the aid of Tidd's and Chitty's Practice,
iui'l Chitty's Pleadings, Swan's Practice and Precedents, and Wilcox's
Forms, was undertaken. How to put in practice the little he knew
was the rugged difficulty encountered at the threshold; and still
vividly remembered are the doubts, fears of fatal blunders and fail-
exposing ignorance and causing ridicule, entailing laborious days
ami wakfful nights, with the ghosts of demurrers and non-suits enter-
ing into his troubled dreams, and hovering over his bed as nightmares.
Knowing that the fruits of all litigation, however trifling or impor-
tant, or protracted and exciting, with all its incidents, tame or tragic,
were finally embodied in a prosy, dry, and short detail called the
" Record the authentic history of the essentials of the suit all else
but fading memory, a vanishing mist, no time was lost in learning
what composed such record, and what would not become part of it
unless made so by proper legal steps being taken. Good fortune fa-
vored ur court with a clerk, at that time serving in office, who had
l>ecn appointed by the judges before his then election, and whose
father and brother had preceded him in the office, and in which lie
had been employed from youth; and then, in mature manhood, was
an example of Lord Bacon's illustration : "An ancient clerk, skillful
(1)
2 INTRODUCTION.
in precedents, wary in proceeding, and understanding in the business
of a court, an excellent finger of the court, many times pointing the
way to the judge himself" the late Angus Lewis Fullerton, recog-
nized by the Supreme judges who held the court, and the bar prac-
ticing there, to be the first of all the clerks in Ohio. He spared
neither time nor pains to teach the then inexperienced beginner all
that could be learned of practice in a clerk's office properly conducted
and kept. This alone was sufficient to give confidence and courage,
if it did not go far to confer fitness for the practice itself.
But, on July 1, 1853, the technical learning and rules of pleading
at common Jaw and in chancery were, except as to cases then pending,
swept away by the taking effect of our present Code of Civil Pro-
cedure. After its passage and before it took effect, it was carefully
read, with the report of the commissioners who framed it, and Van
Santvoord on the New York Code, five times, and the writer flattered
himself that he was already fitted for an adept in practicing it
though by no means thinking, as many seem to do now, that its ob-
ject is merely to permit any thing to be done, in any manner.
On June 30, 1853, a large railroad contractor failed and absconded.
With night came many anxious and excited creditors, impatient to
bring suits and attach property to secure their claims. At midnight
the old system would die, and, immediately after, the Code be born.
Petitions, affidavits for attachment and garnishment, forms of under-
takings, notices to garnish ees, what the clerk should do, directions
under the Code to the sheriff, etc., were to be prepared. The doubts,
the embarrassment, the confusion, the uncertainties and hesitancy,
when dispatch was imperative, with no decided case to guide, and Tidd,
Chitty, Swan, and Wilcox inapplicable, if not wholly unreliable, can
not now be fully realized by the Code practitioner. With these books
upon the table, the exclamation was: " Oh, my masters, friends, and
guides, are you all dead too lying there before me on the cooling
board?"
The experience of the whole bar was the same the old lawyer as
helpless as the young and all had cases to bring that night. There
was, during those distressing hours, occasion for the employment of
the recording angel's tears to blot out the imprecations on the Code,
bestowed upon it plentifully by the Chillicothe bar. Subsequently,
the fruits of the various attachments were applied pro rota to the
claims of the many creditors, as was done under the preceding prac-
tice, every lawyer fearing to attack the proceedings of the others lest
his own should be held fatally defective. It was by the teaching of
such examples, enforced by years of subsequent experience and ob-
INTRODUCTION. 8
serration, that fixed in the author's mind the conviction of the neces-
sity tor such a work as ho has now prepared. If it falls short of what
it Mii^ht to he, it may suggest a right method of applying in practice
legal knowledge :ui<i attainments; and suggestion is often better for
another than to work out and fully exhaust a matter for him ; it en-
ahlcs him to develop properly his own powers, and to surpass what
the originator could do.
com-: >YSI-KM.
The system of pleading prescribed by the Code of Civil Procedure
is that of statement of the facts constituting the cause of action, de-
or reply to the defense -fuels, as distinguished from evidence
proving those facts, and from averments of mere conclusions of law.
In some instances only are the forms of the pleadings prescribed, as,
. unple, in actions upon accounts, promissory notes, and other in-
struments for the unconditional payment of money ; the attaching to the
pleadings (without making them part thereof) of copies of instruments
i-ni{, nclng indebtedness, and upon which the action is brought or the
:in<Kl ; actions for the recovery of tlie possession of, or to
quirt Ute title to, real estate ; actions of replevin ; and the j>erformance
ditions precedent in contracts, it being made sufficient to aver
that the party has duly performed all the conditions thereof on his
be performed, without stating the performance of all such con-
ditions by enumerating them.
facts to be alleged in pleadings, generally, are ultimate facts,
which in their legal effect constitute a good cause of action, or defense,
or replication thereto each cause of action and defense to be em-
liraced in a single count. When such a pleading is read, we may be
certain that if the facts alleged in it are established by sufficient com-
evidence, there is in law a good cause of action, or defense, or
reply to such defense; hence, approved precedents in pleading are
; l>e relied on, as containing the law of the case, than re-
i decisions of courts other than of the Supreme Court of our own
state, or of the United States when the matter is federal in its char-
acter. They may be the embodied illustration of many reported de-
cisions. Daniel Webster and the late Justice Willes of England, who
made it a part of their legal education to copy with their own hands
approved ; tl in pleading', and especially in I D the case,
ami special pleas, are examples of their value in forming the lawyer.
In the lit'.- of Lord Chancellor Kldou, by Twiss, is the following
(Vol. I., p. 98):
"He told Mr. Fairer that he had never been in the office of any
pecial pleader or equity draftsman. ' How then,' asked Mr. Farrer,
4 INTRODUCTION.
'did you acquire your knowledge of pleading?' 'Why,' answered
Loi'd Eldon, 1 1 copied every thing I could lay my hands upon.' Two
large volumes of precedents, thus copied by him, he lost, and would
often regret. He supposed he had lent them to some friend, but
could not recollect to whom. Of such borrowers, he would sometimes
say, ' That, though backward in accounting, they seemed to be prac-
ticed in book-keeping.'" And from this it would seem the borrowers
of valuable law books in that day were the same in remissness as
those of the present.
And under our code, except in the instances above given, and, per-
haps, in a few others, every pleading is made up of a statement of
the ultimate facts which constitute the special case cause of action,
defense, or reply ; and, therefore, requires in its preparation a full and
accurate knowledge of the law of the subject; and, aided by such
knowledge, code pleadings may be brought to the highest attainable
degree of perfection as a system. It trains the lawyer in that most
essential requisite of success,
STATEMENT.
He first states his facts in his pleadings. At the trial he is guided
by such pleadings in stating the evidence, his case, and the law. The
power, gift, or acquirement of statement is the most valuable weapon
or shield of the lawyer. A novice is likely to assume that it is r- triv-
ial matter, a mere thing of course easy to state a case ; but nothing
is more difficult. It was said By the late Henry Stanbery, a model
lawyer, and noted for his felicity and power of statement, that he had
studied and practiced it from the beginning of his professional career,
and after forty years of constant effort, felt still his deficiency in this
great requirement.
Contrast the lawyer, beginning a trial to a court or jury, who begins
by saying that he will " read" his petition to impart a knowledge of
what he claims, with the one who arises, and, without the aid of a pa-
per, states his case and the substance of the evidence by which he will
support it, in so clear a manner that all understand just what it is for
which he invokes judicial aid. He has predisposed in all minds a con-
viction of the truthfulness and justice of his cause ; the jury take it as
so far proven that it will require a great deal from the other side to
change their minds ; and the court that now hears of the matter for
the first time, feels that the lawyer knows it thoroughly, and is dis-
posed to rely much upon him fearing to combat his views lest it will
expose ignorance on the part of the judge. The mere "reader" of
his pleadings, or the unskilled in statement, will be regarded by court
INTRODUCTION. 5
and jury as knowing about as little of his case as themselves, and they
will look upon all that he may say or do with hesitation and doubt.
The unmethodical, careless pleader, becomes confused and unreliable in
his knowledge aud application of legal principles. Good precedents in
pleading embody all the law of every part of the case, as deduced
from reported decisions, whether they be many or few. They teach
the law by example and illustration.
And whenever the facts warrant, and the insertion of a few words in
:i pleading will prevent the consideration of a question of law, they
fhould be employed, as real questions enough will arise necessarily
without needlessly occasioning them. The law applicable to every
case is evolved from its facts. They must, therefore, be accurately as-
certained ami kept in mind.
STUDY THE CODE.
Oue great objt-ct of this work is to induce and ?ecure<A study of the
Code, und its provisions are arranged and annotated with that end in
It serves as a text. To use knowledge it is necessary to
have knowledge. It is essential that every lawyer should be well
grounded in the principles and state of the law, by " keeping
up with it," and especially to know the law involved in the case which
he undertakes to conduct in court. He must be master of the Code.
Yet, if the bar of the state were to answer how long it has been since
they have read the Code consecutively, or made a study of all its pro-
is apprehended that few of them could say that they had
given special consideration to it for year-. CVrtainly they have not
. it the attention formerly 1> upon Chitty's Pleading, and
Mitford and Story's Equity Pleadings, the Kijuity Draftsman and Cur-
ti-' Precedents. Many of the profession treat the Code as if it were
but the substitution of empiricism fur science.
LEGAL PREPARATION.
On most subjects the law is sufficiently certain, but what rule or
rules apply to and govern a given state of facts is often difficult, and a
prevalent source of error. The fact* of every case must be carefully
ascertained and studied, and this is an ever-recurring, never <
lal>r inij>osed upon the bar and bench. In no other way can it be
learned what Viey are, or how they are to be understood ; but when
this is doiit! the law of the case often suggests itself t<> ono wh. ha*
mastered its principles. To learn the facts t mu-t first di-
rect his attention, then to the law arising out of them, und next to the
mode of presenting them before the court for adjudication. His gen-
6 INTRODUCTION.
eral study should be of standard text- writers (as they deduce the rules of
law from all the decisions upon each subject), including works which treat
of topics or branches of the law, such as the Statute of Frauds, Trusts,
Specific Performance, etc., arid from them and the leading cases re-
ferred to by their authors, get a full and clear comprehension of juris-
prudence, with the qualifications of, and exceptions to, the various rules
of law ; then he should learn what, if any, changes have been made
by the statutes of the state, and what his own Supreme Court has de-
cided. Such statutes and decisions, wherever they speak, give the law
that must govern ; or if the matter be within the sphere of authority
conferred upon the federal government, the legislation of the Congress
and the decisions of the Supreme Court of the United States, are of
paramount authority. Where such legislation and decision are silent,
recourse must be had to the common law, as decided in England, or by
courts under English authority, and in the several states of the Union.
Some questions may not be settled in our state by legislation or by the
Supreme Court, and the law elsewhere be in conflict ; that is, it is vari-
ously determined elsewhere. Here our condition and recognized needs,
as compared with those of the places where such questions have been
judicially considered, must be taken into account, and the reason of
the law invoked.
Such cases, as they arise, should be brought to, and the law declared
by, our Supreme Court, as the certainty of the law in nearly all such
classes of cases is more important than its absolute correctness ; for,
where there is diversity in the rule, neither determination of it can
work great injustice.
The lawyer should always go into court thoroughly prepared in the
law pertaining to every branch of his case, and properly noted in his
brief. If without long experience at the bar, and the case be an im-
portant or difficult one, he should have the assistance of a senior law-
yer of ability and weight, specially fitted for the trial of the class of
cases to which it belongs. The young practitioner will often be sur-
prised at the use made of his preparation some portions of it not used
at all, because it does not become necessary to do so, and it is best not
to make it a subject for discussion ; or when required, at some turn of
the cause, it will be employed with skill as a weapon of attack or de-
fense. The preparation and labor of the junior counsel often gain the
case, but with them and himself alone it would have been lost. What is
said rather than who says it ought to weigh, but the reverse is often
the case, and nowhere occurs more frequently than in court in the
trials of actions. The rules of evidence and how to apply them every
lawyer should have "at his finger's ends," as frequent and long dis-
elusions of questions I:IM>H tin- admissiliility ami com|*-U'ncy of evidence
should, as much as possible, !; prevented l>y :i court which regards the
dispatch of bn~ I paramount necessity. Hen- tin- i>ouer and ef-
fectivenesaofclearstaiement come prominently in play. Much useless
wastoof th" valuahlo time of courts would IHJ avoided if lawyers knew
en* !!_' h of the Code and the law tuteuchthem what ijiu-st ions not to make
r di-
RELY UPOX LEGAL PRIXCIPLRS, RATHER THAN UPOX MERE CASES.
In law, and in the preparation of < in matters of physical
science, the Baconian or inductive method should be employed. Ari.~
- method assumes the possession of full knowledge of the matter,
and how to prove to others that such is the case. The Baconian sys-
tem assumes that the subject is not known or understood, and teaches
how to acquire the requisite knowledge.
Courts are important business organizations, and should be made ef-
as such. They are not designed as places when; lawyers and
judges keep law school to carry on their legal studies, or for mere de-
They are to meet the pressing needs of men, whose rights are
t*> be ascci -turned, and.enforced without denial or delay.
The judge, if qualified for his place, is well-grounded in the law, of
which he will have a good understanding so goon as the case is prop-
erly stated. He chiefly needs to learn the facts arid niuch of the
preparation of the lawyer, which should always be made and ready to
be employed if occasion arise, will not be required ; but this is a re-
lief, not a, cause for mortification to him.
If the court and the lawyer suppress their previous knowledge, fail
to call it to their aid, fearing to trust or rely upon it, and keep their
reason in abeyance, groping for and taking up their time with the
p-ading and hearing of case after case, all the elements of which are
not the same as that on trial, which differences are in danger of being
'Veriookedorunheed.il, much valuable time will be wasted to little
purpose, and the danger of a wrong determination of the case in hand
Anally increased. Cases can only furnish analogies at best, and dit-
-es make those an Pleading. The more cases,
all varying i;> circumstance, that are produced, the greater the danger
of errr, if they are to guide and control, owin^ to the increased num-
ber of imperfect analogies to be considered. At most, cases can only
evidence and illustrate a legal rule or principle, or a qualification of,
or exception to it, which often may be more clearly seen and better
realized and applied without being burdened with them. Too
they are but unsafe crutches for legal cripples. l' rid -. many re-
ported decisions are not s"iind law, and, if tiny ar.- not those of our
8 INTRODUCTION.
own Supreme Court, they should not be followed. They are but advi-
sory, while those of our Supreme Court are authority. Who at the bar
or upon the bench has failed to observe how differently the same reported
case is regarded according to the form in which it is presented ? If in
a newspaper, wholly disregarded ; when in a periodical, quoted apolo-
getically, looked at askance, and not mentioned by the judge in his decis-
ion ; but when bound in tanned sheep-skin, in a massive volume, ven-
erated with a reverence bordering on adoration, and quoted with an
air of triumph, and made by the court the solid ground upon which to
place its feet. The lawyer should, as a rule, only refer to the reports
and argue his cases.
THE LAW CAN NO LONGER BE MASTERED FROM REPORTS.
Owing to their great and rapidly increasing number, and their im-
mense cost, it is no longer possible to depend upon the various reports as
the sources of the law. They are only reliable when in accord with, and
true witnesses of, the law ; and, unless in the hands of those knowing
how, when, and for what to use them, are as often a hinderance as a
help a jack o'lantern as a beacon light. Of course, every lawyer
should be familiar with the reports of the Supreme Court of his own
state, and of the United States. He should have digests of the others
that he may be able to consult them when necessary. No case should
be relied on or quoted in a brief without examination and study lest it
prove to be a weapon for the adversary. If legal principles are not
kept in mind as a touchstone, and do not guide and control the judg-
ment, reported cases can be so selected and multiplied as to mislead.
Implicit reliance, too, upon reported cases, tends to destroy the study of,
and adherence to, legal principles. In Harris' Life of Ld. Chancel-
lor Hard wicke (vol. 1, p. 246), published in 1847, is the following:
" Some of the arguments of the Attorney-General " (then Sir Philip
Yorke) " contained in Strange's Reports are quite of a philosophical
character; and the reasoning, which is almost entirely from first prin-
ciples, is often of the highest kind.
"In Sir Philip Yorke's time ; lawyers and judges were far less bound
by precedent than they are in these days. Hence, on the one hand,
greater inducements were held out to argue, and to decide cases, en-
tirely from principle, and, by a necessary consequence also, to study
this more deeply, and to cultivate the mind more assiduously for deal-
ing with pursuits of this nature. Had Bacon and Hale lived in these
days" (1847) "of multitudinous decisions and reports, and new acts of
parliament, and rules of pleading, it is impossible that they could ever
have found leisure to enter so much into the world of general literature;
INTBODUCTION. 9
to store their minds so fully with knowledge, and to give BO many of
their researches to the public."
If multiplied reports, new acts of parliament, and rules of pleading,
were such a clog upon judicial development and the administration of
the law in 1847, in England, who can estimate the impediment of
crude legislation, changes of systems of pleading, and the accumulation
ix>rts State, Federal, English, Irish, Scotch, Canadian, and
Colonial in 1887 ! Cases are too frequently but disjecta membra of
the law, and not the whole law of the subject.
Dr. Buckham, in his work on Medico-Legal Relations to Insan-
ity (j>. 19-24), gives references to the following rulings of judges,
the cases being found in his appendix (pp. 221-250), which show the
confusion liable to be occasioned by authorities.
1. " General insanity would necessarily preclude a trial, as a person
in that condition can make no defense whatever." Bearddeij, C. J.
2. " That you are of unsound mind, I believe, but that is no reason
why vou should not be punished, as an example toothers." Kram-
wll, B.
To execute an insane person is against law, and of extreme in-
humanity and cruelty," and can be no warning to others." Ld. Coke.
-4. " To relieve from responsibility, insanity must be absolute ; a man
know no more than an infant, a brute, or wild beast." Tracy, J.
.">. " Absolute insanity is not necessary ; if the prisoner was insane
with reference to Vie crime charged, it is sufficient." Bearddey, C. J.
6. " It must be clearly shown that the accused did not know right
from wrong. Partial insanity is no bar to responsibility." English
Jutlrpg in < 'onference.
7. " Th- i>:-.--'diiii: opinion designated exquisitely inhuman and ab-
surdly impracticable." Ladd, J.
8. " The teat liea in the word power. Had the accused power to
know rii'lit from wrong, and had he power to adhere to the former and
avoid the Utter?" Brewder, J.
9. " The law does not recognize uncontrollable impulse if the pris-
oner knew right from wnm^." Alderaon, B.
10. "There is an uncontrollable impulse, or irresistible inclination
to kill, which, when proved, relieves from responsibility." Gibson,
C. J.
11. }' If he knew he was committing an act against God and nature,
he is responsible." Ld. Lyndhur*t.
12. " If the person acted under uncontrollable impulse, notwith-
standing his knowledge, the act was not his act ; hence, he is not re-
sponsible." Shaw, C. J.
10 INTRODUCTION.
13. " Moral insanity is held to be a good defense by all enlightened
jurists." Robertson, J.
14. "Moral insanity is not a good defense. It is a most startling,
irresponsible, and dangerous doctrine, unknown to the courts of last
resort in either Britain or this country." Williams, C. J.
15. "If he did not know the act he was doing was wrong, he is
not responsible." Tindal, C. J.
16. " If he knew the act was wrong at tlie time he committed the deed,
he is responsible." Parke, B.
17. " The defense must prove absolute alienation beyond all doubt,
such insanity as would prevent the accused from knowing that murder
was a crime against the laws of God and nature, and there is no other
proof of insanity that will excuse murder or any other crime." Sir
James Mansfield.
18. " An insane man can not commit a crime. If there is a doubt
of the insanity, how can a jury say a sane man committed the crime ?
A reasonable doubt as to insanity should avail as much as a doubt of
any matter of fact." Crawford, J.
19. "The onus of proving insanity is on the accused, and if left in
doubt, the jury should convict." Rolph, B.
20. "The onus of proof of insanity, as well as guilt, rests on the
state after the presumption of sanity has been removed by the defense."
Cooky, C. J.
21. "The proof of insanity to acquit should be as strong as the
proof of guilt to convict." Hornblower, C. J.
22. " If the jury entertain a reasonable doubt of insanity, they ought
to acquit." Doe, J.
23. "A preponderance of evidence in favor of insanity should ac-
quit." Shaw, C. J.
24. " Whether there is such a mental disease (dipsomania) is a
matter of science and of fact, not of law." Smith, C. J.
25. " If he knew the act was a crime forbidden by law, he was re-
sponsible." Ld. Brougham.
26. " There is no legal test of insanity. When the judge gives a
legal test of insanity, he either testifies to a question of fact, or the ex-
pert witness has testified to a question of law. Thus the law is brought
into conflict with itself." Doe, J.
27. "The introduction of medical opinions and theories in the sub-
ject of insanity has proceeded upon the vicious principle of considering
insanity a disease." Ld. Chan. Westbury.
28. " Judges and lawyers, profoundly ignorant of insanity, have in-
vaded the province of medical experts, the province of those who know
I"
all that is known on the subject, and for legal tests use ex pi
lete medical theories." Doe, J.
29. " Ordinary men of the world are just a-s competent as witnesses
as medical experts in insanity cases." Hrnmmll. II.
30. " Medical experts are infinitely letter ijnalifird to judge of in-
sanity than court-* or lawyer*." Lathi, J.
'. 1. " Expert tr.-tirnony is. not only of no value, but worse than
that." Davit, J.
" Expert testimony is of great weight, and de.-erve* the r< -
ful consideration of the jury as competent evidence." Shun . < . ./.
33. "The whole di!?iculty is that courts have undertaken to declare
that to be law which is a matter of fad. All symptoms and all tests
of mental di.- a-e are purely matters of fact for the jury and not mat-
f law tor the judge." Doe, J.
Instances might be multiplied, and like illustrations given of
>-d dcfisions in other classes of cases. The late Mr. Justice
Grove, of England, deeply versed in general science as well as in law,
the author of "The Co-relation and Conservation of Forces," has
/ed that our language is so imperfect a means of accurately im-
parting our thoughts to others, that it is liable to be widely misappre-
1 and misapplied, when separated from its context from the
matter concerning which it was employed. It may have been appro-
priately used in the case in which it was uttered, which should always
nprehended with it, hut as formulating a general rule, entirely
Upou the subject of insanity, those who have known and observed
the person, his ad- and conduct, have little difficulty I" know, if such
be the fact, tluit h< i- And as this knowledge is made up
of fact and opinion, such jn-rsons should be, aa they are in Ohio.
y ii|xn the .-nl.jrct, though n >t experts; but on the
comp : such opinions, conflicting decisions can be produced
fn>m tin- lxK>ks of rep -rt- in numbers. Except in acute raving insan-
ity in ra-es of confirmed, chronic mental alienation, the unfortunates
do know right from wrong, in general, and may reason correctly on
many tilings. The insanity is manifested in the false assumption of
some />rmiV, orpremiaot, the same beini; il-lifinn. Conduct proceed-
run such delusion is insane, and the p criminally re-
spousihlc f >r it.
The foregoing examples will serve to show that, if legal principles
are not kept in mind, it is easy to mislead or be misled by extracts
from a series of cases selected fr a purjwse.
The rule as to expert testimony is that it i- n c. ivaMe n- tond'-
12 INTRODUCTION.
prove some fact or facts pertinent to the issue, about which unskilled
persons, without a personal knowledge of them, are not competent to
give their opinions, and its weight is such, as in the minds of the ju-
rors, or court trying the case, it ought, reasonably, under all the cir-
cumstances, to have.
If it be emotional insanity, or insanity at the time of the act, when the
person was admittedly sane before and afterward, or some other like
ethereal matter, intangible, and necessarily based upon speculative
reasoning, to excuse a crime clearly proven, sensible men can give to
it but slight consideration ; for no skill can ascertain the real fact.
If the question be whether a certain compound of material ingredients
will ignite, and their presence account for a fire, not otherwise to be ex-
plained, the testimony of a chemist upon the matter would be weighty.
In Ohio, it is settled that if the crime be proven beyond a reasona-
ble doubc upon the accused, he must be convicted, unless it is proved
by the preponderance of the evidence (not beyond a reasonable doubt)
that he was, at the time, insane. This dispenses with the necessity of
parading all the decisions upon this subject at a trial in our courts.
Again, what the degree of insanity must be to. excuse crime, or ren-
der the person incapable of doing a binding act, such as making a
will, or contract, is determined variously. The sound rule is that the
person should know right from wrong, understand what he is doing,
and have the sane power to control volition, that is, act from real
premises and not from delusive ones.
Lord Coke, in the foregoing quotation, was condemning what was,
from the reports, supposed to be "the law of England bringing that law
to judgment. The first quotation from Baron Bramwell would apply
to a case of feigned insanity by an eccentric criminal, to escape pun-
ishment for the commission of his crime.
The various decisions and dicta of judges upon the value of the tes-
timony of experts may be reduced to less glaring conflict, if the inat-
teis about which such testimony was received, and such holdings
made whether the subjects were such as skilled persons could or
could not know with approximate accuracy be attended to. So, it
will be seen that safety from error lies in keeping in mind the rule of
law, its qualifications and exceptions. If this be done, any great pa-
rade of, and labor bestowed upon, the examination of reported cases,
will not be necessary in the trial of the mass of causes, and would be
an unnecessary waste of time. Judges, especially, should be masters
of the science and rules of law, familiar with their application, and
rely upon that knowledge and experience, rather than exchange them
for the "say-so's "of others in cases in many respects dissimilar in
IKTKOl- 13
their elements. This will enable them to determine promptly and
eorrectly cases in which the facia arc new. To seek the support of
x>me reported case, and failing to find one, causes only doubt and
delay. Such judges will often find themselves " stalled " on the dead
level in the broad highway of the law. So, in view of the negation
of educated legal judgment by lawyers and judges, and the fixed
habit of intellectual fear, destroying comprehension, and distrustful
alike of sound reason and hophistry, the labor of preparing briefs con-
taining references to pertinent reported decisions, should be performed
to i iir-iire MK-I v>s iii every cause. They are to be presented to the court
if it be found necessary to do so, as too many are unwilling to run the
risk of knowing any law unless it is shown to them, or is read, at the
time, in some law book.
In 1800, Judge Swan, in his "Code Pleading and Precedents,'
rendered great service to the profession iu teaching the true method
of studying and applying the provisions of our Code, which was
baaed upon that of the State of New York, to the decisions of
which state the empirical, mere case lawyer would resort for a knowl-
edge of that of Ohip. At p. 126, n. (c), Judge Swan remarks upon
the baneful influences of the old system in producing such decisions,
and adds: "These decisions present a mass of crude ami c .inflicting
rulings. They are entitled to little confidence. ... In giving a
construction to our Code, therefore, many of the decisions of th<
York courts must be rejected, and all must be rerei\v<l with great
caution." That this was true at that day, and such reports but false
guides, the decisions of the higher courts of New York, giving to the
Code a fair interpretation and its proper effect, beginning since shortly
before that period, abundantly prove.
CODIFICATION.
Where there is a conflict in the law, it being oppositely or variously
held in the several state, federal, and English courts, and not settled
in this state by statutory enactment, or by the Supreme (.' >urt, there is
a necessity for its codification, where equity rather than the rules of the
common law should be declared, when they arc not in accord.
Iu view of the facts that the vast nutn' : legal re-
ports render it imp .inu all of tln-m i> .the same
ions so ns t render them indispensable trui<l< s t> jn-.i.-t : i-:il legal
knowledge, and the certainty that, under th-- \> i:r.r onlrr of things,
th":r future increase is appalling to contemplut. their cost alone be-
ing greater than the average savings of the lifetime . ,f the professional
career of the lawyer the new generation of the profession will have pre-
14 INTRODUCTION.
sented to it the problem of a general codification of the entire body
of the law. Were this now done, the ever present and necessary
labor of getting at the facts of every case would remain ; and the
difficulty of applying the proper legal rules to such facts would be as
now. The present veneration for and reliance upon reported cases,
and the abnegation of self-reliant judgment in deference to what is
said in them, would bring into existence, in rapidly accumulating
numbers, books of reports of cases decided under the codification,
which, among a certain school of the profession and judiciary, would
be held in higher estimation than such codified body of the laws itself;
treatises upon various parts of such code would multiply. For a time,
owing to judicial caution and timidity, the construction would be al-
most literal; and as words must fail to inform and direct the mind in
every thing that will require its exercise, frequent instances of defects
in the law would be discovered, and marked .injustice be done in the
courts. This would lead to incessant legislative "tinkering," or to
judicial decisions based upon the equities and reason of the law, and
to cure its imperfect expression in such Code ; and most likely both
occurrences would take place. Here again would come " the battle
of books," rendering the administration of law uncertain by unset-
tling it.
In an old country, where all its natural resources have been fully
developed, the condition and state of its society fixed, and its people
homogeneous, and where legal precedents have never had the force of
authority, but reports of decided cases are considered merely as illus-
trations of the law, as, in countries where the law is founded upon the
civil law, codification possesses advantages that do not exist with us,
where all is the reverse. Lord Mansfield threw off the shackles of
" the authority of cases" more than any other English judge, per-
haps, has ever done ; but he did not question such authority, only de-
nied the accuracy of the reporters, and thus adapted the law to the
requirements of the modern age. Experience attests the fact that
legislation designed to prevent rather increases litigation, to promote
certainty produces confusion ; and to put ignorance, inexperience,
feebleness, indolence, and carelessness upon a level and at par with
their opposites invariably fails.
Mr. Pomeroy, in the preface to his recent work on Equity Juris-
prudence (pp. v-vii) makes the following remarks upon the tendency
of codes of practice to narrow rather than improve and enlarge ju-
dicial conceptions:
"While the 'Supreme Court of Judiciary Act' was pending be-
fore the British Parliament, there appeared in the Saturday Review a
IXTKumvriOX. 15
of articles written by one of the ablest lawyers and most pro-
found thinkers of t'n- Knirlish bar, which pointed out u grave danger
threatening the jurisprudence of England in the plan, as then pro-
posed, for combining legal and equitable rights and remedies in the
same action, and administering them by the same tribunal. The
writer showed, us the inevitable result of the system, that equitable
principles and doctrines would gradually be suppressed and disappear
in the administration of justice; that they would gradually be dis-
placed and supplanted by the more inflexible and arbitrary rules of the
law, until in time equity would practically cease to be a distinctive
branch of the national jurisprudence. The reasoning of these re-
markable articles was so cogent and convincing that it produced a
deep impression, not only upon the English bench and bar, but even
upon Parliament, and it ultimately led to an amendment of the act
by the addition of the following clause, which has undoubtedly :r.
the anticipated danger : 'Generally in all matters in tr/uV/i thrr? i'. any
conflict or variance betuxen the rules of equity and the rule* of common latf,
with reference to the tame matter, tfie rule* of equity fliall jtrfmiL'
' I have referred to this incident simply for the pu indicating
its application, under like circumstance?, to the law of our own coun-
try. The arguments of the English essayist were purely a priori, and
were confined to the judicial system of England. They would apply
with equal force to a large portion of the American state*; and the
correctness of his conclusions is established by the judicial experience
of those commonwealths during the past thirty years. Since the fir-t
New York Code of Practice, in 1848, about one-half of the states and
territories' pted the Reformed Procedure. As the central 0.11-
-ystem istheabolitionof all external distinctions between
actions at law and suits in equity, the union of legal and equitable
- and remedies in one proceeding, and the suh<titution of many
important equitable in place of legal methods, it wa* confidently sup-
posed that iu the progress of time the dortri;. 1 ob-
tain a supremacy over those of the law in the udminis: ration of jus-
tice, and that the entire jurisprudence of the state would gradually
become more equitable, more informed with equitable notions. It
must be confessed, I think, that the experience of the past thirty years
in these states points to a directly contrary result Every careful ob-
server must admit that in all the states which have adopted t!
ire there has been, to a greater or lest degree.
ing, decrease, or disregard of equitable principles in the admi::
tion of justice. I w >uld not IH> misunderstood. There has not, of
course, been any conscious intentional abrogation or rejection of equity
16 INTRODUCTION.
on the part of the courts. The tendency, however, has plainly and
steadily been toward the giving undue prominence and superiority to
purely legal rules, and the ignoring, forgetting, or suppression of equi-
table notions. The correctness of this conclusion can not be ques-
tioned nor doubted; the consenting testimony of able lawyers who
have practiced under both systems corroborates it ; and no one can
study the current series of state reports without perceiving and ac-
knowledging its truth. In short, the principles, doctrines, and rules
of equity are entirely disappearing from the municipal law of a large
number of states, and this deterioration will go on until it is checked
either by legislative enactment or by a general revival of the study of
equity throughout the ranks of the legal profession.
"I would not be understood as condemning the Reformed Procedure
on this account. The tendency which I have mentioned may be
checked ; the danger is incidental, and can easily be prevented. A
brief legislative enactment, substantially the same as that added to
the English Adjudicature Act, would render the system perfect in theory,
and would secure to equity the life and prominence which properly be-
long to it, and which should be preserved. The State of Connecticut
has incorporated the clause into its recent reformatory legislation; that
it should not have been added to all the Codes of Procedure is very
surprising."
And in a note, the author adds : " The reality of the danger" (fore-
told by the English essayist), " and the importance of the legislative
enactment by which it was averted, are most unmistakably shown in
the current series of English reports. Able common-law judges, taking
a part in the decision of equity causes, are frequently represented as
attacking, and even denouncing, equitable principles and doctrines
which have for centuries been treated by the court of chancery as fun-
damental and elementary principles which have been most fruitful in
results, and have been applied in numberless forms to the equity juris-
prudence. Can there be a doubt that equity, exposed to such judicial
attacks from members of the highest court, would gradually have
succumbed, and finally ceased to be a distinctive part of the English
municipal law ?"
Thus, may be perceived the unreliability of reported cases as trusty
guides when culled and paraded for a purpose. There are two classes
of the legal mind; the one acute, scholastic, learned, possessing great
clearness and subtlety, whose manifestations exert great influence
upon the minds of others; the other is deep, broad, comprehensive,
and creative, and molds the law, without overturning it, to the require-
ments of ever developing, ever varying human affairs. Lord Coke, in
1NTRODUCT1 17
Kngland, and Chief Justice Shaw of Massachusetts, are illustrious
examples of the first, and Lord Mansfield and Chief Justice Marshall,
of the second school. Reversals and affirmances of cases by reviewing
courts depend largely upon the class of mind, as here defined, control-
ling them. These conflicting opinions seem alike convincing and con-
clusive. This is an inherent cause of uncertainty in litigation. Codi-
fication can not remove it. That codification of the law of many
subjects would be beneficial admits of little doubt, and by doing the
work gradually and thoroughly, so as to familiarize the judiciary and
the profession with the proper modes and rules of construction, codifi-
cation of the entire body of the municipal law may be achieved in
due time.
LIMITATIONS UPON THE RIGHT TO TRIALS BY JURY.
Courts are created and should be organized to subserve the needs of
communities, and of individuals, who have surrendered their claims to
self-redress to the people aggregated as the state. Every case is the
parties', not the attorneys' or the courts.' Courts, therefore, ought to
be in the highest degree effective business agencies, where rights and
legal duties are determined and enforced speedily, impartially , and by
t.-iMished legal rules. The requirements of this active age, with its
telegraphs, railroads, steam navigation and employment, and tele-
phones, obliterating, in so great a degree, both space and time, by
whicli the distant are enabled to talk as if face to face, and to traverse
continents and oceans with lightning speed, are certainly not met by
the present legal mechanism of the law for the dispatch of litigation.
So plain to the observation and experience of the business world has
this become that they are creating their own tribunals to arbitrate
their differences, and thus speedily ending them at little or no expense
for the services of others; and, in so doing, feel that their possible
sacrifices will be less than the costs, loss of time and business, and
vexations and protracted delays in a court of justice, and where the
uncertainty of the final result in going through a series of courts is
taken into account.
They have been compelled to this from absolute necessity. What
to the business man, whose solvency may depend upon meeting his ob-
ligation on a day certain in the near future, is even a large sum of
money that c:m not be awarded to or made available by him for firr
or more yean to come. This is one-fourth of the business life of the
average business man, and at the end of these long years, paying out
money all the time, he knows- not how much of what is adjudged to
be his will be due to others as fees ; for him the outcome is likely to
18 INTRODUCTION.
verify Lord Bacon's description of the case of a suitor who resorts to a
court for redress, likening the court "to the bush, whereunto, while the
sheep flies for defense in weather, he is sure to lose part of his fleece."
Chief among the causes of the inadequacy of courts to deal, as
they require, with the business interests of men is the all embracing
system of jury trials, which institution the community has outgrown,
and which has become a serious hinderance instead of a help to legal
administration, and a protracted, cumbersome, and expensive method
of marring rather than doing justice.
In great business, commercial and manufacturing cities, proper
juries, in important civil eases, are not attainable. The business
urgencies of business men, and the employments of others fitted for
jury duty, make it ruinous to them to serve as jurors ; they all shun
and seek to escape from the duty, in which as a rule they succeed.
But, at the call of every case in all the courts for trial, hours, and
often days are spent in obtaining a jury to try it; and, when obtained,
it is generally composed mainly of such materials as to inspire the
confidence of neither the parties, their counsel, nor the court. It is
an appeal to ignorance and lack of acquaintance with the subject-mat-
ter to be tried, for the settlement of the parties' claims and rights.
Were it not that the law has brought down and preserved to us this
institution of other days and wholly different times, the litigants
would not for a moment entertain the proposal to make them the ar-
biters of their case. Were they to do so, selecting such arbitrators as
are obtainable as jurors, the court being put out of view, their folly
would raise a doubt of their sanity. Add to this the dangers of jurors
being corrupted, or unduly influenced, and confidence in this mode
of trial is wholly destroyed. Besides, jury trials are laborious, tedious
undertakings. Days are consumed in matters of trivial detail, argu-
ment, illustration and repetitions, where hours ought to suffice for a
proper trial; and then the result is entirely uncertain, as the subjects
under consideration are of a nature of which few if any of the jurors
have knowledge, either in practice or theory. The conviction of men
is, "This won't do." Their confidence is gone, never to be restored,
and they create their own boards of arbitration. In cases involving
ordinary questions and the things of common every-day life, with
which all are familiar, jury trials have been and yet might be well
enough if men generally could serve upon them, but the important
litigation is mostly of a different character, arising out of, and requir-
ing in those who decide upon it, familiarity with the industrial and
business specialties created in this age.
In criminal cases, where the punishment is death, or imprisonment
IXTRrtDITTMN. 19
iu the penitentiary, the right of trial by jury should be inviolate; in
other cases as may be provided bylaw. In trials of torts, such as
slander and libel, for assault and battery, malicious posecution, etc.,
and in cases of unliquidated damages, a trial by jury is proper, as men
generally are competent from experience and observation in ordinary
life to understand and deal with such matters; and courts, as iuchan-
miglit often submit certain issues to a jury, taking their verdict
ns advisory to the court Tins subject, owing to the difficulty of ob-
taining proper juries, the delays and protraction of jury trials, and
their uncertainty, presses itself upon the attention of all who realize
the imi>ortance of maintaining the judicial department of the govern-
iii' -MI, the balance wheel and regulator of the constitutional system. A
remedy here is essential to the efficiency a: id usefulness of our courts,
and to confidence in them. From his experience and observation dur-
ing l.is circuit practice in England, in his day, John Scott, afterward
L<>nl Eldon, bears this testimony : " The greatest objection to the trial
by jury appears to be founded upon the fact, that men of low condition
serve as jury men. No man can have gone a circuit without seeing
twelve men upon jury, who, if they did not im illicitly follow the di-
reHinn* ofthejiulyr, would be quite incompft* -at t > form an opinion upon
any ease at all complicated iu the fact-* which constitute it The lower
orders of jurymen are easily corrupted." TwiisJ IA/O of Lord Eldon,
vol. 1., p. HIT.
With n< it i-s fatal to a verdict if the judge trenches upon the un-
limited and unrestrained province of the jury ; and if the judjze should
be given the power exercised in England, the practical question would
be why the needless and expensive clog of a jury in administering
, win n the judge really decides the case? In large commercial
.-- j>r >j> r jurors can not afford to serve, and iu one way or another
escape the duty. The place is largely filled with " the lower orders of
jurymen who are easily corrupted."
TIII: LAWYER'S SUCCESS.
Hut, under any system of practice that can be devised, the acquire-
ment and observance of correct business principles and habits are in*
dispensable to the lawyer's success in his profession: Withcut these
no talents or learning, however brilliant or great, will avail. With
them much legal business can be properly done without much knowl-
edge of law. Not to possess and use them is to fail in the end.
Habits of industry, system, and temperance should be constantly
maintained. Without continuous, systematic hard work no lawyer
can succeed, nnd without temperance he can possess neither the power
20 INTRODUCTION.
nor the health for such continued application as his profession inex-
orably demands. If, too, lawyers would endeavor to avail themselves
of every opportunity to dispatch business in court with the same per-
sistency that one or the other side does without any benefit to his cause
in the end, to delay or postpone it, the amount done would be great,
indeed, compared with what is now accomplished. The mind should
be trained and kept true to itself. Sophistry destroys its self-reliance
and the confidence of convictions resulting from its processes of reason-
ing. The lawyer is not the judge, and he may fairly present to the
court all that can be claimed for his client upon the facts of the case.
In the course of his experience he will lose cases that he is convinced
he should have gained, and succeed where he doubted success, or an-
ticipated an adverse decision. He can not always know whether he
is right or wrong in view of the event. Justice Grove remarked that
it was said of some deceased barrister, that he never urged upon a court
a proposition which he did not believe to be sound law; "but," he
observed, " I wish to have urged upon me all that can be said on the
side of both the parties, and when that is done, I, whose duty it is to
do so, will judge; that is not the province of the counsel." But the
right or wrong of most cases, and the probable result of their deter-
mination in court, is often about as easily determined by an honest
mind as by legal learning, and confers the power to safely advise the
client; and the most valuable services a lawyer can render a client is
to properly advise him. Without honesty the lawyer may acquire
notoriety, but can not achieve fame ; for notoriety is not fame. And
there may be successful practitioners, for a time at least, but there can
be no great lawyers without the possession of STERLING INTEGRITY.
EXPLANATORY.
Pursuant to the inductive plan of the First Part of this work, the
lawyer is, at the beginning, presented with the subject of a CIVIL AC-
TION to be prosecuted in a court of record and general jurisdiction, to
final judgment and satisfaction. He is given a case and instructed
what to do and shown how to do it. Every possible thing that can
arise in its prosecution is thus worked out. In doing this the whole
law is collected, arranged, and presented for the experienced lawyer as
well. For convenience, I select the court of Common Pleas, as there
will be found no difficulty in substituting the name of another court
of co-ordinate jurisdiction when the case is brought in such court.
The provisions of what is called " THE CODE OP CIVIL PROCEDURE,"
now scattered through our Revised Statutes, are given in the words
of the statute, and the notes of the decisions of the Supreme Court,
INTRODUCTION. 21
construing or giving effect to them, are placed under each section.
No derision of any state court inferior to the Supreme Court is re-
ferred to, as such decisions are not authority, though many of them
are valuable. They will be found in digests and legal periodicals.
The Code is arranged in the order of the chapters of this work,
that it may be studied to better advantage than in the numerical
succession of the sections, as given in the Revised Statutes, while the
numbers of such sections are preserved. The aim is to induce the study
of the Code, so as to perfect the lawyer in special pleading as a science,
and to remove what seems to be a fatal mistake of many, that it is
but r, mass of crude empiricism, rendering skill in pleading unneces-
sary, aud justifying inaccuracy, carelessness, and want of system.
For the notes of such decisions, the author acknowledges his indebted*
ness to MR. JAMES M. WILLIAMS, editor of the Revised Statutes, who
kindly permitted their use.
In so far as it has been deemed necessary to incorporate procedure
it-ral courts in this work as the extent of the adoption of the
state practice in such courts, and the removal of causes from the state
to federal courts the author has availed himself, with permission, to a
limited extent, of the aid of MR. DESTY'S notes in his work on " Fed-
eral Procedure," sixth edition a work not ouly valuable, but indis-
pensable to the federal judge, and to those of the profession who
practice in the courts of the United States ; and also the work of
Mr. Bump, and the Manual of Mr. Boyce. Obligations to others are
acknowledged, where use has been made of their labors in all cases
giving them due credit.
The sections of the statute referred to are those of Williams' edi-
tion of the Revised Statutes of Ohio, 1886, in tJiree volumes, I., II.,
and III., Supplement. The Supplement contains the laws in force,
passed since January 1, 1880, aud in force January 1, 1880, not em-
braced in Vols. I. ami II., which contain the revision of the laws to
January 1, 1880. Changes made by 83 v. are given, so that the statu-
tory provisions are those in force January 1, 1887.
The statutes at large are : Chase, three volumes, containing all the
il laws enacted from the organization of the North-western Ter-
ritory, in 1788, to and including the year 1833, and a reference to the
1 '.,! laws and private acts passed during the same period; Curwen's
Statutes at Large, in four volumes, from 1834 to 1860, inclusive of
lth years, with references to the local acts and private statutes passed
during that period (the laws were published, as now, in annual vol-
umes, the general laws and thcloral and privau- urisuftrr 1M1!> in sepa-
rate volumes until the taking effect of the Constitution of 1851, in
22 INTRODUCTION.
September of that year, since which time all the acts and resolutions
of every session of the legislature have been published in single vol-
umes) ; Sayler's Statutes, in four volumes, containing the general laws,
with references to those of a local or private character, from 1861 to
1875, inclusive of both years. The statutes in force were collated by
Swan in 1833, 1841, and again in 1854; by Swan and Crilchfield, two
volumes, in 1860, and a Supplement thereto by Swan and Sayler in
1868. Curwen also published the statutes in .force, in one volume, in
1854.
There have been four editions of the Revised Statutes since the re-
vision of 1879, in two volumes until 1884, when Vol. III. Williams'
Supplement appeared, containing the laws in force from 1879 to
January 1, 1884. In 1881, Jordan also published a volume, called
" Jordan's Repeals and Supplement" to Ohio Statutes until revision
of 1880, which embraces many provisions not contained in the author-
ized revision. The present edition of Williams is that of 1886. These
statutes are quoted, for example : 1 CHASE, p. ; 1 CURWEN, or Cur.,
p. ; 1 SAYLER, or Say., p. ; Swan's Stat. (41) ; Swan's Stat. (54) ;
Cur. Stat. (54); 1 S. &C.; S. & S.; 1 Rev. Stats., sec. ; Rev. Stats.
; Sup., p. , sec. ; Jord. Stat., p. ,
After the admission of Ohio to the Union, February 19, 1803, by
the president's approval of the action of Congress admitting the state,
the first session of the legislature began March 1, 1803, and the second
session December 5, 1803 ; and the sessions were annual until the
adoption of the Constitution of 1851, which provided that they should
be biennial. But, except in "the year 1855, there has been a session
of the legislature held every year since the admission of the state to
the Union. Hence, the number of the annual volumes of the laws,
up to 1855, is two less than the year of the century; and, beginning
with and since the year 1856, three years behind the year of the cen-
tury. An act of 1854 is quoted, 52 v. ; and of 1856, 53 v. .
38 v. is of the year 1840 ; 60 v. of the year 1863. There is no volume
for the year 1855. Before 1856 the number of the volume is two less
than the year; beginning with 1856, and since, three less. The local
laws above spoken of are quoted, Vol. , O. L. L., p. .
The first published volume of the reported decisions of the Supreme
Court is that of one of its judges, John C. Wright, and is composed
mainly of the decisions of that court upon the circuit, in the several
counties of the state. It is quoted W. There are also twenty volumes
of the reported decisions of the Supreme Court in Bank, or full bench,
rendered under the Constitution of 1802, styled, "Ohio Reports.' 1
INTi:<'|,i en 23
< MIC v liin.c. ti,. .- venth, is in two
pans, quoted, 7 O. 1 pi., <>i 7 < ). '_' pt.
With the organization of the .Supreme Court, under the (W-titutiou
of 1851, on February t>, 18,/J, :i n -w > -ri > of reports was instituted,
called "Ohio Suite Retorts." Of this series forty-three volumes have
been published, ami t!i<> publication of the forty-fourth volume begun.
They are quoted, 1 O. S.; 43 O. S., etc.
When a case is quoted and two pages of the volume are given in
figures separated by a comma, the first indk-aie.s the page upon which
the syllabus of the case is found, and the second where the point for
which the case is cited is considered, or the opinion of the court
begins as, Babcock v. Camp, 12 O. S. 11, 33.
Repetitions in this work of sections of the Code are excused on the
ground of solicitude for the study, comprehension, and mastery of it
by the Ohio lawyer. It constitutes the text. With its provisions at
the tongue's and finger's ends, and the decisions of the Supreme Court
in mind, the lawyer will prove his easy mastery, and achieve success,
over those who, to their neglect, rely upon and collect with great labor
and expense, rejxirts from afar. The obvious and plain are more lia-
Mc t be overlooked and mistaken than the abstruse and difficult in the
l< termination of causes. The A, B, CTs of the law are often over-
looked, though that which lies near is often a safer guide than what is
sought afar. But, it should not be understood that the study of the
law, generally, is to be contemned or neglected. On the contrary, not
only should the thorough knowledge of our own system of law be ac-
quired, but that of the Roman Civil Law, International Law, public
and private, the laws of nations, the historical growth and develop-
ment of laws from their origin, comparative law, and as much of every
branch of science and learning as possible; for every human acquire-
ment may be necessary to assist the lawyer, if be be a man capable of
making practical use of what he knows. He should employ all his
attainments, not for self-display, but in aid and advancement of the
cause in which he may be engaged. Such a lawyer, with such a pur-
pose, and so equipped, will be found surpassing, in his efforts, all pre-
vious expectations formed f hi.s powers.
No more forms of Journal Entrln are given than are deemed nec-
essary to illustrate and apply the provisions of the Code. Clerks
should provide themselves with Mr. Wilde's excellent book of Journal
Kntries, and Green's* Ohio Supreme Court I'l-adice.
In nearly all aeries of legal reports the opinion pronounced consti-
tutes the decision of the court, the head-notes, or fyllabi, being the
work of the reporter. This is true of the Ohio Reports, and the Ohio
24 INTRODUCTION.
State Reports, before the adoption, in 1858, of Rule VII., as found in
5 O. S. Since that time, the syllabus, framed and agreed upon by the
court, constitutes the statement of what is decided by it, the language
of the judge announcing the same being his opinion as to all that is not
fairly covered by the syllabus. The syllabus is " confined to the points
of law, arising from the facts of the case, that have been determined
by the court."
Of the twenty volumes of " Ohio Reports," Charles Hammond was
the reporter of the first nine, formerly often quoted as 1st Ham., etc.;
P. B. Wilcox reported vol. 10 ; Edwin M. Stanton, vols. 11-13 ; Hi-
ram Griswold, vols. 14-19 ; William Lawrence, vol. 20. " Ohio State
Reports," George W. McCook, vol. 1 ; Robt. B. Warden, vol. 2 ;
Warden & Miller, vol. 3 ; Warden, vol. 4 ; L. J. Critchfield, vols.
5-21 ; Moses M. Granger, vols. 22, 23 ; E. L. De Witt, vols. 24-42 ; and
Geo. B. Okey, the present reporter, vol. 43. Vols. 27, 28, 30, 32,
and 33, are the reports of the decisions of the first Supreme Court
Commission, and vols. 40 and 41 of the second Commission. The
earliest volume of Reports, Tappan, is confined to cases decided in the
Court of Common Pleas. Judge Benjamin Tappan was the reporter.
Finally, in view of the fact that statutes are so frequently changed
by the legislature, the necessity of actually turning to and consulting
their provisions, as often as the subject occurs in practice, no matter
how well the lawyer thinks he understands it, is again earnestly im-
pressed upon the attention of the practitioner.
CODE PRACTICE AND PRECEDENTS.
CHAPTER I.
CIVIL ACTION UPON PROMISSORY NOTE AGAINST THE MAKER
AND INDORSERS, AND PROCEEDINGS IN ATTACHMENT AND
GARNISHMENT AND ARREST.
As affording opportunity to employ the greatest number of Code
provisions, the following cause of action has been selected, this work
being written as though there were present with the author a lawyer
unfamiliar with the practice under the Code, and to whom every part
of it is directly addressed to inform and instruct him, that he may be
prepared in practice to make use of his general legal knowledge. In
so doing, the law is, at the same time, set forth for the experienced
Code practitioner. Every chapter is intended to be complete in it-
self, and yet part of an interdependent whole. It begins by giving
the lawyer a case to conduct through every stage, and by the employ-
ment of every possible auxiliary process and proceeding.
PROMISSORY NOTE TO BE SUED UPON.
CINCINNATI, O., July 1, 1884.
One year after date I promise to pay to the order of John Jones on*
thousand dollars. Value received. JOHN SMITH.
$1,000.00.
Indorsed : JOHN JONES.
1 1 con EVANS.
TIIK PETITION.
[Form 1. f 5086, 3172, 5107.]*
The State of Ohio, County Court of Common Pleas.
John Doe, Plaintitl.
John iftnith. John* Jones, and Hi-ph f Petition -
'Evans, DrftMidant*.
The plaintiff says that there is due to him from the defendant, John
Smith, as maker, and John Jones as first, and Hugh Evans as second in*
See Table of Sections for pace of thlt work at which inch section* are found.
(26)
26 CODE PRACTICE AND PRECEDENTS.
dorser, upon the promissory note a copy of which, with all the indorse-
ments thereon, is hereinafter set forth the sum of one thousand dollars,
with interest thereon from July 1, 1885. Said promissory note, with all
the indorsements and credits thereon, is in the following words and fig-
ures: [Here copy note and indorsements, and the credits, if any.]
On the day the said note became due no part of it was paid, although
then presented to the said John Smith [or as provided in the note] for pay-
ment by said John Doe, indorsee and owner land protested'] of all of which
the said John Jones and Hugh Evans had then due notice. [Or facts
excusing demand and notice.^
Whereupon the plaintiff, John Doe, the owner and holder of said
promissory note, asks for a judgment against said John Smith as maker,
and John Jones and Hugh Evans as indorsers of said promissory note,
for one thousand dollars ($1,000), with interest from July 1, 1885; for
costs, etc. EDWAKD COKE, Attorney for Plaintiff.
Verification, 5102 When not required, 5103, 213.
The State of Ohio, County, ss.
John Doe, the above named plaintiff, swears that he believes the facts
stated in the foregoing petition to be true.
(Signed,) JOHN DOE.
Sworn to before me by said John Doe, and by him signed in my pres-
ence, this day of , 1885. , Clerk of said Court.
[Or, Witness my hand and notarial seal, etc.
, Notary Public in and for County (Ohio).]
[Or, Witness my hand and seal, etc. , Justice of the Peace.]
Verification by agent or attorney. If verified by the agent or attorney
of the plaintiff, the form of the affidavit may be drawn from section
5109, post, 358.
The State of Ohio, County, ss.
Edward Coke makes oath that he is the attorney of the above named
plaintiff, John Doe; that [the above pleading is founded upon a written
instrument for the payment of money only, and said instrument is in the
possession of the affiant], etc.
1. Security for costs, who, when, and how to be given Effect of not giv-
ing. If the plaintiff be a non-resident of the county, or a partnership
suing in its company name, security for costs should be given at the
commencement of the suit ; otherwise the plaintiff will be compelled
subsequently, on motion, to do so ; and failing to comply with the
order of the court in this regard, his action may be dismissed by the
court in pursuance of an order made by it to dismiss if such secur-
ity be not given in compliance with t,l>e order. The surety for costs
must be a resident of the county in which the action is brought, and
-IL ACTION t I -MX PROMISSORY NOTE, ETC. 27
approved by the clerk of the court. The surety may biud himself for
such costs by indorsing the summon?, or >i;.rnin., r his name to the peti-
tion, as security for costs.
2. Deposit of money for. In lieu of giving such security for costs,
the plaintiff may deposit with the clerk of the court such sum of
money, as security for costs in the case, as, in the opinion of the clerk,
will be sufficient for the purpose. The court, if satisfied such amount
deposited is not sufficient, may require the same to be increased, or
personal security given.
3. When not required. If one of several individual plaintiffs reside
in the county where suit is brought, and the others do not, no security
for costs can be required to be given.
PRECIPE FOR SUMMONS TO BE FILED WITH THE PETITION, OR BEFORE
SUMMONS is ISSUED.
4. Precipe to be filed for the issue of all process. All writs and or-
ders for provisional remedies, and process of every kind, must be
i by the clerks of the several courts ; but, before being issued, a
pivripe shall be filed with the clerk demanding the same. 4959,
. 5037, 6714.
[Form 2. \\ 4959, 5036, 5037.]
The State of Ohio, County Court of Common Pleas [or, Superior
Court of ]
John Doe. Plaintiff,
-.] w.
John Smith. John Jones, and Hugh
Evans, Defendant*.
To Clerk:
Issue a summons in this case returnable according to law. Indorse:
"Amt. claimed, $1,000, with interest from July 1, lJvS.">, against John
Smith as maker, and John Jones and Hugh Evans as indorsers of prom-
issory note, for which the plaintiff will take judgment accordingly if de-
fendants fail to answer "
This day of . 188-V EDWARD COM, Attorney for Plaintiff
THE SUMMO
[Form 3. l\ 5037, 5039, 5097, 49". I. ]
The State of Ohio. County, as.
To the Sheriff of County. Ohio:
You are hereby commanded to notify John Smith, John Jones, and
Hugh Evans, defendants, that they have I 1 by John Doe, the
plaintiff, and that they are required to answer by or on the day of
. A. D 18 . or the petition will be taken as true, and judgment ren-
dered against them accordingly.
Precipe for Summons.
28 CODE PRACTICE AND PRECEDENTS.
You will make due return of this writ by or on the day of ,
A. D. 18.
Witness my hand and the seal of the Court of Common Pleas of ,
county, this day of , A. D. 18 . , Clerk.
[SEAL or COURT.]
SEC. 4954. Style of process. Process shall be under the seal of the
court from which it issues, be styled " The State of Ohio,
county," be signed by the clerk, and bear date the day it is actually
issued.
INDORSEMENT ON SUMMONS BY THE CLERK.
1. On summons to agree with precipe, and delivered to sheriff, and when
coroner. This indorsement should conform substantially to that given
in the precipe for the writ.
The summons is by the clerk to be delivered to the sheriff of the
county; or, in case the sheriff is a party to the action, or otherwise
disqualified to act, into the hands of the coroner of the county, whose
duties will be the same in regard to it as those of the sheriff. 5037.
The officer is to indorse on the writ the time of receiving it.
2. When returnable. The summons is returnable by the officer tc
whom it is directed on the second Monday after its date ; or, at the
option of the party having it issued, on the fourth Monday after its
date. The time in which the defendant is required to answer is on or
before the third Saturday after such Monday. 5039, 5041, 5042.
3. Attorney's care before taking judgment, or making entry. Before
taking a judgment against the defendant, or asking the court to make
any entry upon its journal in the cause, which requires proper service
of process upon the defendant, and to the validity of which his pres-
ence or default is essential, the plaintiff's attorney should carefully
examine the summons, the indorsement upon it, where any indorse-
ment is required by statute, and the officer's return of service of the
same; and if any defect or omission is found, have the same, if facts
exist making it amendable, amended.
4. Amendments of returns, etc. Like examination and care are
requisite as to all that is officially done in actions and proceedings of
every kind by others than the attorney interested in their binding
force and validity. He should take notfiing for granted, but examine
every thing not done by himself. It is essential to the commencement
of every action that a summons be issued, although orders of attach-
ment, or for the arrest of the defendant, are also sued out in such
actions.
CIVIL ACTION UPON PROMISSORY NOTE, ETC. 29
SHERIFF'S RETURN TO BE INDORSED ON THE SUMMONS, OR ON A
PAPER ATTACHED TO IT BY THAT OFFICER,
SEC. 4966. The sheriff shall indorse upon every writ or order the
day and hour it was received by him.
[Form 4. $ 5041-5047.]
Received this writ on the day of , 18 , at o'clock, M.
[August , 1885.] Served the within [or, attached] writ of summons
by delivering to each of the within named defendants, John Smith, John
Jones, and Hugh Evans, personally, a copy of such summons, with the
indorsements thereon. , Sheriff of County.
i f not personally served as to all or any, the return should say, " by
leaving a copy at his [naming the person or persons] usual place of resi-
dence."
If any can not be found, the return should name such, and read : " Not
found within county."
1. How served on corporation. A summons against a corporation
may be served : 1. Upon the president, mayor, chairman, or president
of the board of directors or other trustees, or other chief officer ;
Or (2), if its chief officer be not found in the county, upon its
cashier, treasurer, secretary, clerk, or managing agent ;
Or (3), if none of the aforesaid officers can be found, by a copy
left at the office or usual place of business of such corporation, with
the person having charge thereof.
2. Railroad company. If the defendant corporation be a railroad
company, whether foreign (that is, incorporated by the laws of another
state, territory, or government than Ohio), or created under the laws
of this state, and whether the charter thereof prescribes the manner
and place, or either, of service of process thereon, the summons may
be served : (1) Upon any regular ticket or freight agent thereof;
Or (2), if there U no such agent, then upon any conductor, in any
county in this state in which such railroad is located, or through which
it passea.
3. River transportation company. An incorporated river transporta-
tion company, whether organized under the la ws of this or another
state, may be served by serving the summons upon the master, < r
other chief officer, of any of its steamboats or other craft, or upon
any of its authorized ticket or freight agents, at any port wb<
transacts business.
4. What sheriff's return should ttate. To show proper service of a
summons upon the above clasae* of corporations, except an incorpo-
30 CODE PRACTICE AND PRECEDENTS.
rated river transportation company, the sheriff's return must state that
the service by copy was upon one of the persons or agencies named or
specified in the first mentioned class; or, if made upon one of the
second or third specified classes, that none of the preceding persons or
classes could be found in the county. The service and return in such
cases should be carefully made to secure a valid judgment by default,
in case of a failure of the corporation to answer or appear to the
action.
5. Foreign life insurance companies. Foreign life insurance compa-
nies appoint agents in each county where they transact business, upon
whom service of summons against such companies may be made.
Foreign insurance companies may be sued and served with process in
any county where the cause of action, or some part thereof, arose.
5044, 5045, 5047, 5043.
ATTACHMENT. 31
CHAPTER II
ATTACHMENT.
AT or after the commencement of an action, an order of attachment
is obtainable in certain cases, on grounds specified by statute, and may
be necessary to the realizing of any money by the suit
AFFIDAVIT FOR ATTACHMENT AGAINST A DEFENDANT.
[Form 5. 5522.]
Court of Common Pleas of County, Ohio.
The State of Ohio, County, M.
John Doe. Plaintiff, |
-.] vs. > Affidavit for Attachment.
.T<>hn Smith et al., Defendants. )
John Doe, the plaintiff herein [or, A. B., the attorney ; or, C. D., th*
agent of John Doc, the' plaintiff herein], makes oath that he is com
mencing herewith [or, has commenced] a civil action in this court against
John Smith, John Jones, and Hugh Evans; that his said action is for th
recovery of money [and, if against a non-resident of this state, or a foreign cot'
poration. add, upon a debt (or, demand) arising upon contract (or, judg-
ment; or decree, as the ease may be); or if for causing death, say, for wrong-
fully causing the death of (E. F.) by a negligent (or, wrongful) act].
That said claim is just.
That the amount which this affiant believes the plaintiff ought to re-
cover is dollars, with interest at the rate of per cent per year,
from the day of , A. D. 18 .
And that the defendant, John Smith [and tuck other defendants as th
same ground of attachment exists against], is a foreign corporation.
[Or. a non-resident of this, the State of Ohio.]
[Or. has absconded with the intent to defraud his creditors.]
[Or, has left th<- county of his residence to avoid the service of a sum-
mons upon him (or, them.)]
[Or, so conceals himself that a summons can not be served upon him
(or, them.)]
[Or, is about to remove his property [or, a part of his property] out of
the jurisdiction of this court, with the intent to defraud his creditors.]
[Or, is about to convert his property (or, a part of his property) into
money, for the purpose of placing it beyond the reach of his creditors.]
[Or, has property (or, has rights in action) which he conceals.]
[Or, has assigned (or, removed or disposed of) his property with the
intent to defraud his creditors.]
32 CODE PRACTICE AND PRECEDENTS.
[Or, has assigned part (etc., as last above enumerated.)]
[Or, is about to dispose of his property with the intent to defraud his
creditors.]
[Or, is about to dispose of a part of his property with the intent to
defraud his creditors.]
[Or, fraudulently contracted the debt and incurred the obligation.]
[Or, criminally contracted the debt and incurred the obligation.]
And further affiant saith not.
The above named affiant, John Doe, swears that the facts stated in the
foregoing affidavit are true.
(Signed,) JOHN DOE.
Sworn to before me by said John Doe, and by him signed in my pres-
ence, this day of , A. D. 18 .
Witness, etc. , Clerk.
1 . Should be sworn to positively, why. The facts stated in an affidavit
for an attachment should be sworn to positively by the plaintiff, his
agent, or attorney, and not according to belief only. If verified ac-
cording to mere belief, the facts upon which such belief is founded
must be stated in the affidavit.
2. When more tJian one affidavit proper. Where there is more than
one defendant, and it is sought to attach the property and effects of
all, but a separate or distinct ground of attachment exists against
each, the better practice will be to prepare a separate affidavit against
each defendant, although, if the distinct grounds for attachment
against the several defendants be properly and separately stated in a
single affidavit, it will not be set aside for such reason. The same
may be said as to a single affidavit for attachment and garnishment.
3. All existing grounds should be stated in, why. If several grounds
of attachment exist against a defendant, they should all be stated in
the affidavit, and coupled with the conjunction "and," not "or."
To allege that the defendant has done one or another of two or more
distinct acts, material to the plaintiff's right to obtain an order of at-
tachment against the defendant's property, is uncertain, and would be
a sufficient ground to set aside all the attachment proceedings.
By joining in the affidavit all the grounds for attachment that exist
against the defendant, the proceedings in attachment can not be set
aside if any one of the causes stated therein is sustained, though all
the other alleged grounds may be shown to have no existence.
UNDERTAKING FOR ORDER OF ATTACHMENT.
4. Foreign corporation, or non-resident of state, none required Terms,
plaintiff" and defendant, plural. If the ground of attachment be that
ATTACHMENT. 83
the defendant (a term which is plural as well as singular) is a foreign
corporation, or a non-resident of this state, the order of attachment
m:iy be issued against such foreign corporation, or non-resident de-
ft'inlaiK, but not against any ci'rprati'>n, or defendant resident in
this Ktate, without an undertaking.
IHt/'/i not to issue without umlrri'ik'unj. In all other cases, the order
of attachment shall not be issued by the clerk of the court until there
i-uted in his office, by sufficient surety of the plaintiff, to be ap-
1 by the clerk, an undertaking, in a sum equal to double the
amount of the plaintiff's claim, to the effect that the plaintiff shall
pay the defendant, against whose property the order of attachment is
to be issued, all damages which he may sustain by reason of the at-
tachment if the order prove to have been wrongfully obtained.
5. Plaintiff" need not si<jn. It is not essential to the validity of such
undertaking that the plaintiff (which terra is plural as well as singular
in numl>er) should siirn the same; for the plaintiff is liable to the
fame extent as the surety or sureties if the order of attachment prove
to Lave been wrongfully obtained, though, in such case, the plaintiff
liable, and can not be sued, upon the undertaking for breach of
: lition ; but a separate suit must be brought therefor against him.
Proper Hint he sltould, why. It is proper, therefore, if the plaintiff lie
IT --at, that he should execute such undertaking as principal.
Subrogation of surety. If the order be wrongfully obtained, and
the surety compelled to pay the defendant damages by reason th
after full payment of such damages, the surety is subrogati.l t > the
hint's rights, and may collect the same, with interest, from his
principal, the plaintiff in attachment, whether the latter executed the
undertaking, or ut.
7. Part ies only liable on undertaking for actual damage*. The patties
thereto, in an action upon such undertaking, can only be made liable
to the defendant when sued thereon, for the amount of actual damages
MHtained by the defendant.
Tine plaintiff'*, liability for malicious prosecution. If the plaintiff ma-
liciously, and without probable cau*e., procures such attachment, he incurs
u liability to the attachment defendant for malicious prosecution, inde-
pendently of MIC!I undertaking.
8. Action vpon, {Jiouyh not set aside, u -h> ' to discharge not
triable by jury Action on triable by jury. An action by the attachment
defendant upon the undertaking, against the persons executing it, may
be maintained though the attachment is nt set a.-ide, or if sought to
be set aside, the motion of the defendant t that object be
3
34: CODE PRACTICE AND PRECEDENTS.
overruled, and the attachment sustained; for, proceedings to dis-
charge an attachment can not be tried by a jury only by the court
while an action upon such undertaking is one in which the parties
have the right of trial by jury. The same rule is applicable to an
action for maliciously and without probable cause suing out the attach-
ment.
9. Undertaking necessary to validity of attachment. The execution
and acceptance thereof by the clerk of such undertaking, in cases
requiring it, is a condition precedent to the legal validity of the order
of attachment, though, without it, the attachment is only voidable ;
and in accepting it the clerk acts quasi judicially. This duty he may
perform by his lawful deputy.
UNDERTAKING FOR ORDER OF ATTACHMENT.
[Form 6. 5523,]
Court of Common Pleas of County, Ohio.
John Doe, Plaintiff, ITTJJ.I- t r\ A * i it v
-KT -i Undertaking for Order of Attach-
1^1 O. " I Vo. i
John Smith, John Jones, and Hugh j & "
Evans, Defendants.
We, John Doe, as principal, and and as his sureties, do
hereby undertake and bind ourselves, jointly and severally, unto John
Smith and [here name all the attachment defendants'}, in the sum of dol-
lars [double the amount of the plaintiff's claim], to the effect that the
said plaintiff, John Doe, shall pay the defendant, John Smith, all dam-
ages which he may sustain by reason of the attachment in this cause if
the order prove to have been wrongfully obtained.
This day of , A. D. 18 . JOHN DOE, Principal.
Witness: J. L., Clerk. A. B., Surety.
C. D., Surety.
This undertaking and the sureties approved and accepted by me, this
day of , A. D. 18 . , Clerk of said Court.
PRECIPE FOR ORDER OF ATTACHMENT.
[Form 7.]
Court of Common Pleas of County, Ohio.
John Doe, Plaintiff, ~\
\ ' y .,, T -, vs \ , TT , ] Precipe for Order of Attachment.
John Smith, John Jones, and Hugh j
Evans, Defendants. J
To Clerk :
In this case, issue an order of attachment against the said defendant,
John Smith [and all defendants against whom attachments are to le taken ouf\ }
returnable according to law.
This day of , 18 . EDWARD COKE, Attorney for Plaintiff.
ATTACHMKNT. 35
ORDER OF ATTACHMENT.
[Form 8. -^524.]
The State of Ohio, County, ss.
To the Sheriff of said County :
John Doe has this day [or, on the day of , A. D. IS ] sued
John Smith, John Jones, and Hugh Evans, to recover of them the sum
of one thousand dollars, with interest at the rate of percent per
ye ir, from the first day of July, 1885, and on the necessary affidavit
being filed, has obtained an order of attachment against the said [the de-
fend mt, or defendants against whom the affidavit for attachment has been made],
in said action.
this H to command you to attach the lands, tenements, goods,
chattels, stocks, and interest in stocks, rights, credits, moneys, and effects
of th<t said , defendant, in your county, not exempt by law from
applied to the plaintiff's claim, or so much thereof as will satisfy
the plaintiff's said claim of $ [add in interest to date], and the probable
costs of this action, not exceeding fifty dollars; and of this order, and
your proceedings thereon, to make due return by the day of ,
A. n. :
Witness my hand, and the seal of the said court, this day of ,
A. i>. 18 . . Clerk.
[SEAL or CODBT.]
1 . Wlien returnable Issued when Action commenced. If the order of
attachment bo issued when the summons i<, it i< \n IH> made returna-
ble at the same time as the summons. If issued subsequently \ the
summons, it is to be made returnable itoenty days after the date of
issue.
loot day Sunday. If the twentieth day be Sunday, it may be re-
turned on the day following, Monday. 5526.
-. To other counties Can not be brought against unnecessary party, and
issued to other counties to serve necessary jxirties. When the defendants
are more than one, and one be served within the county whore the
Miit is brought, summons may be issued to and served UJHUI the other
hints in other counties of the state; but an unnecessary party
':m not bo made a defendant and served with a summons in one county
where the suit is brought so as to get service upon other necessary
Jefemlant, residing in other rmintit -s of the state. At
, 110. S. :J74.
3. Several orders may {MM Which taxrd in c-t*. Orders of attach-
ment, however, may be Usued to the sheriff:* of different counties ; ami
several of them may, at the option of the plaintiff, be issued at the
same time, or in succession, before judgment. Only such as are executed
36 CODE PRACTICE AND PRECEDENTS.
will be taxed in the costs recoverable against the defendant, unless
otherwise directed by the court.
4. Issued to another county, when returnable. When issued to another
county a. summons may, at the option of the plaintiff, be made return-
able on the third or fourth Monday after its date, which return day
must be stated therein. Orders of attachment, when issued to other
counties at the same time summons are so issued, are to be made re-
turnable at the same time the" summons is. If afterward, within twenty
days from the date of issue.
5. How several executed against same defendant and time of receiving,
indorsed on. Orders of attachment against the same defendant are to
be executed by the sheriff in the order in which they are received by
him. He should, therefore, indorse on the order the day, hour, and
minute of its reception by him. 5528.
How executed. He is required to execute the order without delay. He
shall go to the place where the defendant's property is, and there, in the
presence of two freeholders of the county, declare that, by virtue of the
order, he attaches the property at the suit of the plaintiff ; the officer, with
the freeholders, who shall be first sworn by him to make a true inven-
tory and appraisement of all the property attached, shall make a true
inventory and appraisement of the same, which must be signed by the
officer and freehold appraisers, and returned by the officer, with the
order of attachment.
6. WJien real property is attached. When the property attached is
real property, the attaching officer shall leave with the occupant
thereof, or, if there be no occupant, in a conspicuous place thereon, a
copy of the order, certified by him to be such copy ; and when it is
movable personal property, and can be come at, he shall take it into
his custody, and hold it subject to the order of the court.
7. Heal estate leaseholds. All leasehold estates other than such as
are perpetual, that is, renewable forever, are personal property how-
ever long the term of years may be. Perpetual leases are to be taken
as real property.
SHERIFF'S INDORSEMENT AND RETURN UPON AN ORDER OF AT-
TACHMENT.
[Form 9. % 5537.]
Received this order July 1, 1885, at 10 o'clock and 25 minutes A. M.
Executed the same forthwith, on , the day of , 1885, at 12 o'clock
M., by attaching the real and personal property of the defendant, John
Smith, mentioned and described in the inventory and appraisement at-
tached hereto and returned herewith. Said inventory and appraisement
ATTACHMENT. 37
were made by mo, officially, and by A. B. and P. D , two freeholders of
s:\id county, appointed and first sworn by me to make a true inventory
an.! aiipraisfinfiit of all said attached property; an<l I also left with L. P.,
the occupant ol'.viid real property, a copy of the within urd-r [or, if litre
bt NO occupant : and I also, on the door of the dwelling-house, a conspicuous
>n .-.ii 1 attached real property, posted a copy of the within order].
I liavi- taken all .-aid personal property into uiy custody, and hold th-
ko the order of the court, this day of , IS .
, Sheriff.
If no property of the defendant cau be found in the county, the re-
turn of the sheriff may be :
[Form 10.]
Nothinj! l>elonging to the defendant, John Smith, specified in the within
<>rl- r found in said county by mo to attach. , Sheriff.
[Form 11. 5528.]
Inventory and appraisement of property of John Smith, attached by
virtue of the order of attachment issued in the action of John Doe against
John Smith, John Jones, and Hugh Evans, p.'iidini; in the Court of Com-
mon Pleas of County, Ohio, by G. II., sheriff of said county, and A. B.
an. I i'. D., freeholders of said county, by said sheriff chosen and sworn to
make tho same with him.
1 1 re describe the p-:rsnal property attached, and appraise the value of every
' }>irl which it not properly parcel of a single whole or lt.~\ Appraised by
> . [ Here describe the real estate attached ; \f in serrate tracts, appraise
each tract separately. ~\ Appraised by us at $ . , Sheriff!
Done this day of , A. D. 18 , as witness our signatures.
A R )
( . I( > Appraisers.
SHERIFF'S RETURN, How KXTKRKD BY CLKKK.
. 1. H "/(/ process din. Tho date of the return of all process is in-
; l>y the clerk upon the same, such date being the t inn-
it i- ti!i<l in his office by tho sheriff; and such rctmn is -ntcn-d upon
tho appearance docket by the clerk. After the return day natn ,1 in
PI-IT. -.-. it becomes dead, and its execution after such dute is of no
validity.
llelttue and return of properly t 'ml-rinkiny Hmo satisfied Lia-
bility on Hii'lrrtakiny. When pn)jxjrly is attached, and aft.-r it i< i;i-
vntoricd and appraised, the attachment di-lcmlant, or person in u
posse^i 'ii it wits found, may have tin- -.ru<- n-li-asi-il from tin- :i
ment and delivered by the sheriff to him. 1 ! : : . - ; h person,
38 CODE PRACTICE AND PRECEDENTS.
in' the presence of the sheriff, must execute an undertaking to the
plaintiff in the action, with sufficient surety, resident in the county, to
the effect that the parties to the same are bound to the plaintiff in
doable the appraised value of the property, that the property, or its
appraised value in money, shall be forthcoming to answer the judgment
of the court in the action. Such undertaking takes the place of the
attached property, which is released thereby; but after a judgment, in
favor of the plaintiff, such undertaking may be satisfied by returning
to the sheriff such attached property, and if it be made to appear to the
court that any part of such property has been lost or destroyed by un-
avoidable accident, the value thereof will be remitted to the persons
bound in the undertaking. If, after judgment in favor of the plaint-
iff, the defendant does not return to the sheriff the attached property,
or satisfy the court of its loss or destruction by unavoidable accident,
the appraised value of the property not so returned is recoverable upon
the undertaking from the persons executing the same.
Care of officer in taking. The sheriff should exercise sound judgment
in accepting such surety, as the acceptance of irresponsible security,
pecuniuarily, without making reasonable inquiry as to the sufficiency
of the party, or parties, will render him liable to the plaintiff for the
appraised value of the attached property, in case it can not be subjected
for such causes to the plaintiff's judgment.
UNDERTAKING TO SHERIFF FOR THE DELIVERY TO THE DEFENDANT
OF THE ATTACHED PROPERTY AFTER ITS APPRAISEMENT.
[Form 12. 5529.]
The State of Ohio, County Court of Common Pleas.
John Doe, Plaintiff, ")
?ohn~S ] mith, John'lones, and Hugh [ Delivery Undertaking.
Evans, Defendants. J
The property of the defendant, John Smith, having been attached upon
an order of attachment issued in this cause by said court, and an inventory
and appraisement of the same made, said property and its appraised value
being stated therein, which inventory is made part hereof, and said John
Smith desiring to have the same delivered to him by the sheriff, it being
appraised at dollars :
Now, in consideration of such delivery to said John Smith, we, John
Smith, J. K., and L. M., jointly and severally undertake and bind our-
selves to the said plaintiff, John Doe, in the sum of dollars [double the
appraised value}, that the said property, or its appraised value in money,
shall be forthcoming to answer the judgment of the court in this, the said
ATT A< HMKNT. 39
action, unless we shall be excu-e<l \>y the court from performance
hereof.
This day of , A. n. 18. JOHX SMITH.
Attest: .1. K.
, Sheriff. I. M
The foregoing [or, within] undertaking accepted and approved by me,
said J. K. and L. M. being residents of said county, this day
..f , 18. . Sheriff.
RETURN OK THE SHERIFF OF THE TAKING OF DELIVERY UNDERTAK-
ING AND DELIVERY OF ATTACUI:D PROPERTY TO DEFENDANT.
.1 1 1 1 '
.1
[Form 13. I o:,4o.]
Court of Common Pleas of County.
John Doe, Plaintiff,
Xo. .] i*.
John Smith and others, Defendants.
In this case I have delivered the property mentioned in the inventory
and appraisement herein to John Smith, on the execution by him, and J.
K. and L. M., his sureties, who reside in said county, in my pres-
ence, of an undertaking to the plaintiff, John Doe, in the sum of
dollars, that being double the amount of the appraised value of said at-
tached property, conditioned according to law. Said undertaking is re-
turned herewith, this day of , A. i>. IS . , Sheriff.
1. Rrturn. If such delivery undertaking be executed at the time
of the appraisement, the substance of the f >regoing return can be
stated in the return of the attachment, Form 8. In case no delivery
undertaking be executed, the sheriff must retain the attached property
to be disposed of according to the order of the court, or a judge
thereof, in vacation.
2. Delivery of attached property to defendant Restitution of attached
property. After the return by the sheriff of the order of attachment,
the defendant, whose property has been attached, or other pers-m in
his behalf, may obtain the discharge of the same, at any time before
judgment, by causing an undertaking to be executed t > tin- plaintiff, by
sufficient surety, resident in tho county, to bo approved by the court,
in double the amount of the plaintiff's claim, as stated in his affida-
vit, to the effect that tho defendant shall perform the judgment of the
court. < Then restitution will be made of the uroju-rty attached, or the
proceeds thereof, if sold.
Garnithfc discharged In vacation, how undertaking given. The same
undertaking will also discharge the garnishee, if there be any. In
vacation, such undertaking may be executed in the presence of the offi-
cer having the order of attachment in his hands, or, after the return of
the order, before the clerk, with the same effect as if executed in court,
40 CODE PRACTICE AND PRECEDENTS.
the sureties, in either case, to be approved by the officer before whom
the undertaking is executed.
[Form 14. JOURNAL ENTRY, 5545.]
John Doe, Plaintiff, ) -p.. , e ^
. -1 ' ( Discharge of Property from Attach-
John Smith et als., Defendants. ]
On the giving of an undertaking to the plaintiff, as required by law,
the property attached herein [or, the proceeds of the sale of the property
attached herein] is released from attachment, and ordered to be surren-
dered to said John Smith. The parties executing said undertaking,
which is hereby approved, are John Smith and and . Amount
of same, dollars.
The precipe to the clerk, the issuing of the order to the sheriff to de-
liver the property, and the form of his return can be easily framed.
3. Preservation or sale. The court, or a judge thereof, in vacation,
may make proper orders for the preservation of the property during
the pendency of the suit, and may direct a sale of property when, be-
cause of its perishable nature, or the cost of keeping it, a sale will be
for the benefit of the parties ; the sale shall be public, after such adver-
tisement as is prescribed for the sale of like property on execution, .and
shall be made in such manner, and upon such terms and credit, with
security, as the court or judge, having regard to the probable duration
of the action, may direct.
4. Proceeds of sale. The sheriff is required to hold and pay over
all proceeds of the sale collected by him under the same requirements
and responsibilities of himself and sureties as are provided in respect
to money deposited in lieu of bail, for which see post ARREST AND
BAIL.
5. Obtaining order. To obtain such order for the preservation of
the attached property during the pendency of the suit, or for its sale,
a motion asking for the order should be filed in the cause, which mo-
tion will be granted by the court, or judge in vacation, as of course,
or upon affidavits stating such facts as will j ustify the making of the
order.
6. Motion for, and affidavits in support of. The motion for an order
for the preservation of the attached property during the pendency of
the suit should specify the property sought to be preserved, its situa-
tion, condition, and nature, and what is asked to be done in order to
preserve it. A motion to obtain an order for the sale of attached
property, because of its perishable nature, or the cost of keeping
it, should describe the property sought to be sold, its nature, and the
ATTACHMENT. 41
expense of keeping it, if the sale be asked on that ground. All such
millions should be supported by one or more affidavits. The court, or
judge in vacation, will make such order, or refuse the same, as the
- shown may warrant.
\ A -KINO AN ORDER FOR THE PRESERVATION OP ATTA
I'KOl'ERTY DUKINd Till: I'l M>KNCY OF THE ACTION.
[Form 15. 5544.]
i '-HI it of Common Pleas of County.
John Doe, Plaintiff, |
No. .] v. > Motion.
John Smith and others, Defendants. )
The plaintiff, by Edward Coke, his attorney, moves for an order to re-
quin- ;ind provide for the preservation of the following property attached
by virtuo of the order of attachment issued in this ca.-f, t > wit : [Dticribe
the property.] It is now situated as follows: [Describe situation ] Its present
condition is as follows: [Stateit.~] If not properly preserved, it will become
greatly les-.-ne.l in value, or entirely lost and destroyed.
Tin- plaintiff, therefore, asks for an order providing for the proper pres-
rviuion of the same, by [here sttte what is asked to be done with or to it], or
such other order as may be deemed proper.
EDWAKU COKE, Attorney for Plaintiff.
MOTION ASKING FOR THE SALE OF ATTACHED PROPERTY DURING
THE PKNI>I:NCY .r TIM: ACTION.
[Form 16. .".44 ]
The State of Ohio, County Court of Common Pleas.
John Doe Plaintiff. ) Mot ion for Order of ^ becaufle of
' John Smith et als., Defendant-. [ ******* of Keying, etc.
The plaintiff, by Edward Coko, hi* attorney, moves the court for an order
. 1 the following property attached under an order of attachment i>-
i this action, to wit: [Ducrilf it .] It is now situated as follows:
'.] Its conditition is as follows: [Stale it.] Tho necessary expense*
of k.M-png it amount to dol' r week ; or, month, etc.], while
its appraised value is $ , and its nalo will !.. Tor tho l<uc!ii of the
parties.
The plaintiff, therefore, asks for an order for the sale of x:ii<l property,
.-ith'-r for cash or upon such term* of credit as the court or judgn may
prescribe. EDWARD <'<>KK, Attorney for Plaintiff.
1. Motion for order to ttU. A in-ti-n to ..Main an order to sell such
property because of its perishable nntun- can roadily lo drawn from
the above form, and often can be >t;r..-.i id it as an additional ground
for asking sale of the property.
42 CODE PRACTICE AND PRECEDENTS.
2. Affidavit. In support of such motion one or more affidavits should
be prepared and submitted, with the motion, to the court or judge in
vacation.
3. Notice of. The motion may be heard ex parte, or the court or
judge in vacation may require notice of the time and place of hearing
it to be given to the attachment defendant, or his authorized attorney
or agent if he be absent.
AFFIDAVIT IN SUPPORT OF MOTION TO OBTAIN ORDER TO PRESERVE
OR SELL ATTACHED PROPERTY.
[Form 17. 5544.]
Court of Common Pleas of County.
John Doe, Plaintiff, )
No. .] vs. I Affidavit of O. P.
John Smith and others, Defendants, j
And now comes O. P., of the county of ^ , and State of , and
makes solemn oath that he knows the property attached in this case by
the plaintiff, and its situation, condition, and nature; that provision should
be made for its preservation [or, that it should be sold, because of its per-
ishable nature ; or, that the cost and expenses of keeping it, such sale be-
ing of benefit to all the parties]; that he further states the following facts
in regard to it: [Here state such facts and circumstances as are within the affi-
ants knowledge and material as tending to show why the order should be made.~\ [If
for a sale, and that he believes said property can be sold to best advantage upon a
credit of not less than months (or for cash)]. And further affiant saith
not. O. P.
Sworn to and subscribed before me, this day of , A. D. 18 .
Witness my hand, etc.
How made. Such affidavits may be made before any officer au-
thorized by law to administer oaths.
1. Filed only. They are to be filed with the clerk, but are not to
be recorded by him.
2. Notice of. If the court, or judge in vacation, requires notice to be
given to the defendant of the motion he will indorse such requirement
upon the motion, fixing the number of days before the hearing the no-
tice shall be given, and of the time and place of the hearing, which
indorsement must be substantially embodied in the notice required ;
aud before the hearing the court or judge will require the party mak-
ing the motion to satisfy him that the notice has been given as re-
quired.
ATTACHMENT.
NOTICE OF THE HEARING OF MOTIOX FOR TTTB PRESERVATION OR
SALE OK ATTACHED PROPERTY.
[Fora 18.]
The State of Ohio, - County Court of Common Pleas.
John Doe, Plaintiff, |
.] 9*. > Notice.
lohn Smith and others, Defendants. )
To John Smith [the party who OUJH* or is in possession of the attached
You are hereby notified that on the - day of - , A. D. 18 , at
o'clock M., or as soon thereafter as counsel can be heard, at the court-
house of said county before said court [or, before X. Y., a judge of said
cou: t in vacation at, etc ] a motion will be heard for an order to sell [or
to preserve] the attached property mentioned in said motion, which is
on file in said cause. The motion is made by the plaintiff, and affidavits
pport of it will be used by him.
This - day of - , 18. EDWARD COKE, Attorney for Plaintiff.
1. Service of notice How proved. An indorsement of acknowh .1--
im-nt of 6tTvice, stating the time thereof by the party or his attorney
or agent, will be sufficient. The service should be by copy. If the
plaiutifl's attorney serve it his professional statement of the fa
the court or judge will be taken as sufficient evidence of such service.
ved by a third person his affidavit of such service will be requisite,
- service is not acknowledged in writing aud the party fuiU to
appear at the hearing.
JOURNAL ENTRY OF THE DECISION OF THE COURT OR JUDGI: IN
VACATION UPON SUCH MOTIOX.
[Form 19.]
John Doe, Plaintiff, )
J vs. > Order of Sale [or, to Preserve Property].
.J..hn Smith t als. Defendants. )
This day the motion heretofore filed herein on the - day of - ,
18 , to obtain an order for the sale [or foi the preservation] of the at-
tached property therein mentioned came on to be heard by the court [or,
by and before X. Y., a judge of said court in vacation], and the same be-
ing heard by said court [or, judge] upon the evidence adduced, nu-1 th<>
j.r.'iiiiiftnt.i of counsel, and the court [or, the said judge] being fully ad-
:i the premises, doth grant said motion [or, so much thereof a* the
court deems proper, to wit, as to (here decribe th property as to which the mo-
lion it granted), and denied as to the residue].
Wherefore, it is ordered by the court [or, by said judge in vacation]
that said attached property be sold at [state the p'oet] by the wiid -li.-niVat
44 CODE PRACTICE AND PRECEDENTS.
public sale, after such advertisement as is prescribed for the sale of like
property on execution, for cash on the day of sale [or, upon the following
terms of credit, to wit: (state terms)'], and the proceeds of such sale the
sheriff shall hold and pay over as prescribed by the further order of the
court. [And for good cause shown the court orders that no notice of the
sale be published in a German newspaper.]
INDORSEMENT.
To Clerk: Enter within order. X. Y. , Judge.
1. How entered by clerk. If made in term time such order will be
entered by the clerk upon the daily journal of the court ; if in vaca,
tiou, upon the journal kept for entries authorized by law to be made
in vacation.
2. Personal property Advertisement of sale of. If the property so
ordered to be sold by the sheriff is personal property, the sheriff must,
before proceeding to sell the same, cause public notice to be given of
the time and place of sale for at least ten days before the day of sale,
which notice shall be given by advertisement in a newspaper printed
in the county, or, if no newspaper is printed therein, by posting ad-
vertisements in five public places in the county, two of which shall be
put up in the township where the sale is to be held. In case the sale
be upon a credit the purchasers must give security to the acceptance
of the sheriff.
3. Real estate. If real estate,- which term includes leaseholds re-
viewable forever, before the same can be sold by the sheriff, he must
cause to be given public notice of the time and place (which place,
unless another be fixed in the order of sale, is the court-house in the
county) of sale, for at least thirty days before the day of sale, by ad-
vertisement in a newspaper printed and of general circulation in the
county, or, if no newspaper is printed in the county, in a newspaper
of general circulation therein, and by putting up an advertisement of the
^ame upon the court-house door, and in five other public places in the
county, two of which shall be in the township where the lands and tene-
ments are situate ; when the advertisement is made in a weekly news-
paper published weekly it will be sufficient to insert the notice in five
consecutive numbers thereof; but if there is published both a daily
and weekly edition of the newspaper selected for such advertisement,
and the circulation of the daily in the county exceeds that of the
weekly, or, if the lands and tenements taken in execution are situate
in any city in this state, and there is published therein both a daily and
weekly edition of the newspaper selected for such advertisement, and
ATTACHMENT. 45
the circulation of the daily in such city exceeds that of the weekly,
it shall be sufficient to publish tin- advertisement in the daily once a
week for five consecutive weeks before the lay of sale, each insertion
to \te on the same day of U& week; but the expense of such publication
in n daily newspajHir shall not exceed the cost of publishing the same
in a weekly newspaper. If a daily newspaper of which no weekly
t diiion is published be selected for such advertisement, thirty full days
must elapse between the first publication and the day of sale, the pub-
\ieaiiou to be on the same day of the week in consecutive weeks.
4. Ako to be published in German newspapers. In every county in
which there is a city wherein is printed and published a newspaper in
the (rerman language, which was established and issued before the
*-o->tteenth day of April, 1879, and which has a circulation of at least
/i'v hundred and fifty copies to bona fide subscribers within the county.
die notice of sale required to be published as aforesaid shall, in addi
lion to the publication therein required, be published in such news.
papi r in the German language, for the same time and in the same
manner, if the appraised value of the property exceeds five hundred
dollars ; and if two "or more such papers are printed and published
therein the publication may be in either.
I low dispensed willi. The court shall, on motion <>f the defend,
ant, and may without motion, for good cause shown, dispense with such
publication.
<">. Bohemian newpaper. In any county, the court may, if it deems
the interests of the defendant require it, in addition, direct the publi-
cation of the notice in a newspaper printed in tho Bohemian lan-
guage.
7. Effect of mistake in. No error or mistake in translation, or in
such authmi/.ed publication in such newspapers, shall delay the pro-
credings, or affect the title of the property sold ; but if occasioned by
the mistake or negligence of tho publisher, no compensation will be
allowed him lor such publication. 5394
8. Personal property. Personal property may bo sold at such pub-
lie sale for less than its appraised value.
'.'. Real estate. The real estate mus-t sell for at least tioo-third* of its
appraisement; and, for the purpose of making sale of real estate, the
nherUf should cause it to be appraised' as upon execution, in addition
to the appraisement when attached, 'which will have performed its of-
fice.
46 CODE PRACTICE AND PRECEDENTS.
PEECIPE FOR ORDER OF SALE OF ATTACHED PROPERTY.
[Form 20.]
Court of Common Pleas of County.
John Doe, Plaintiff, ^
No. .] vs. j-Precipe for Order of Sale, etc.
John Smith et als., Defendants. J
To Clerk :
In this case issue an order of sale, returnable as an execution, for the
sale, in accordance with the order in that behalf herein, of the attached
property so ordered to be sold, this day of , 18 .
EDWARD COKE, Attorney for Plaintiff.
ORDER OF SALE ISSUED TO THE SHERIFF BY THE CLERK.
[Form 21. 5544.]
The State of Ohio, County, ss.
To the Sheriff of County, greeting: Whereas, on the day of
, 18 . in the case of John Doe against John Smith, John Jones, and
Hugh Evans, pending in the Court of Common Pleas of said county,
the following order of sale was granted, to-wit:
It is ordered by the court [or, judge of said court in vacation] that
said attached property be sold at by the sheriff at public sale, after
such advertisement as is prescribed for the sale of like property on exe-
cution, for cash [or, upon the following terms of credit :] And
the proceeds of such sale the sheriff shall hold, and pay over as prescribed
by the further order of the court.
The following is the list [or, description] of said property, with the ap-
praisement thereof : [here enumerate the same] ; [or, a list of said property,
with the appraisement thereof, is hereto attached].
You will duly execute this order, and make due return of your pro-
ceedings thereunder, on or before the day of , 18 [sixty days
after the date of the writ].
Witness my hand and the seal of said court, this day of , A.
D. 18.
[SEAL OP COURT.] , Clerk.
1. Personal property, advertisement of sale of First day excluded and
last included. If the property to be sold is personal property, tlie
sheriff, on receiving the order of sale, will cause an advertisement of
the time and terms of such sale to be published in some newspaper
printed in the county for at least ten days previous to the day of sale.
Once a week for two consecutive weeks will be sufficient. The day of
the first publication is excluded from the computation of ten days.
The general rule for the computation of time is to exclude the first
day, and include the last in determining length of time.
ATTACHMENT. 47
SHERIFF'S SALE OF ATTACHED PROPERTY.
[Form 22. 5385.]
On the day , 18 , beginning at o'clock *., will be sold
by me at public sale to the highest bidder, at [here state the place of salt],
the following personal property, described and appraised as follows:
[Here give list of property and its appraised value.] The terms of sale are:
[Here state terms."} Said property has been attached and ordered to be sold
by me, in the action of John Doe against John Smith et al., pending in
the Court of Common Pleas of County, Ohio.
, Sheriff of County.
To Printer : Publish once a week for two consecutive weeks.
When the publication is complete, the printer of the newspaper in
which it has been published, or some one in the office acquainted with
tlu: facts, should file an affidavit in the clerk's office, attaching thereto
v of such printed notice, showing the due publication of the sam
in such newspaper.
AFFIDAVIT OF PRINTER VERIFYING PUBLICATION OF ADVERTISEMENT
OF SALE.
[Form 23.]
The State of Ohio, County, ss.
It. S. makes solemn oath that he is the printer [or, one of the printers}
of [name of newspaper], a newspaper printed in said county, and that
he knows the advertisement attached hereto was printed in said news'
paper on the day of , and again on the day of , 18 ,
and further saith not.
Printer's fee, $ , [or, publisher's].
Sworn to and subscribed before me, this day of , 18 .
, Clerk
1. Proof of publication Approval of . The proof of such publication
may be presented to the court and the approval of tin- jmL
thereon, <>f which approval the clerk will make an entry ujxin the
journal thus, after styling the cause: " Proof of publication of order
for ths sale of attached property, approved by the court." Such ap-
proval H not essential; but the clerk will file the affidavit the saint- as
all other papers in the cause required to be filed.
2. The sheriff's return of the order of sale. On the return day of the
onler of sale, or before, the sheriff will make a written return to the
clerk of what he has done under the writ. If the property or any of
48 CODE PRACTICE AND PRECEDENTS.
it has not been sold, further orders of sale can be issued for what is
unsold until the sale of all is effected.
[Form 24.]
Received the within order on the day of , A. r>. IS , at
o'clock M., and caused notice of the time, place, and terms of the sale
thereof to be published in the [name of newspaper], a newspaper printed
in said county, for more than ten days prior to the day of ,
18 , said day of sale ; arid at said time and place sold said property at
public sale to , he being the highest bidder, for $ , cash, which said
purchaser then and there paid to me [or, if sold on credit, state purchaser or
purchasers, the amount of the promissory notes of same, and the names of their re-
spective sureties] this day of , 18 . G. H., Sheriff.
1. How entered by cleric. The clerk will .enter such return, and all
others made by the sheriff upon process and orders issued to him upon
the appearance docket, which the clerk is required to keep.
2. Real property. (See Forms 20 and 21.) If the property to be
sold is real estate, the precipe for and order of sale issued by the clerk
can readily be drawn from forms 20 and 21.
THE APPRAISEMENT OF ATTACHED EEAL ESTATE ORDERED ro BE
SOLD BY THE SHERIFF.
[Form 25. 5389.]
John Doe } On Order of Sale in Attachment Appraisement
No. .] vs? > taken on August 10, 1885, at the Township of ,
John Smith et als. ) in County, Ohio.
Whereas, the sheriff of county, by virtue of an order of sale issued
from the Court of Common Pleas of said county, returnable on the
day of , A. D. 18 , in attachment proceedings in favor of said John
Doe against said John Smith and , has been by said order of sale
commanded to sell the following described lands and tenements, attached
in said action, as the property of said John Smith and , to wit: [Here
describe the premises. .]
Now we, the undersigned, T. U., W. V., and B. A., three disinterested
freeholders of the vicinity and residents of said county, summoned by
said sheriff to appear at the time and place first above mentioned, to ap-
praise said premises, met, and upon and after actual view of said prem-
ises, forthwith, do find and estimate the real value in money of said prem-
ises to be dollars [$ ].
In testimony whereof, we have hereunto set our hands and seals the day
and year first above written. T. U. [SEAL.]
Attest: W. V. [SEAL.]
G. H., Sheriff. B. A. [SEAL.]
ATTACHMENT. 49
SHERIFF'S CERTIFICATE.
I do certify that the above named appraisers were disinterested free*
holders and residents of said county, and were first duly sworn by me to
impartially appraise said lands and tenements, on tin- day and year in
said appraisement mentioned, and that the above id the return of their
appraisement in the premises. , Sheriff of County.
[DMi]
OATH OF APPRAISERS.
You, and each of you, do solemnly swear [or. affirm under the pains and
penalties of perjury] that you will well, truly, and impartially appraise, at
their true value in money, upon actual view and examination of the same,
the lands and tenements by me shown you, as you shall answer unto God.
Seal not essential. It is not essential to the validity of the appraise-
ment that the appraisers should affix seals to their signatures.
Return of appraieement. The sheriff should forthwith return into
the clerk's office a copy of the appraisement, which the clerk will file,
and enter the date of filing upon the appearance docket.
ADVERTISEMENT OF SALE OF ATTACHED REAL ESTATE.
[Form 26. 5393.]
By command of an order of sale from the Court of Common Pleas of
County, I shall expose to public sale, at the door of the court-house
in [or at such place as it named in the order of sale], on the day of
, A. D. 18 , at o'clock A. M. [or, p. M., or toy, between the hours of
A. M. and o'clock p. M.], the following described real property,
to wit : [here describe the property'}, attached as the property of John Smith
at the suit of John Doe against John Smith and others, appraised at
$ . Terms of sale : [Here state terms at contained in the order of sale."}
[Date.] , Sheriff of County.
To Printer : Publish every week for five (5) consecutive weeks.
1. Publisher'* affidavit. When the publication has beeen completed,
the publishers of the newspaper, or some one connected with it and
acquainted with the facts, should make his affidavit thereto and file it
in the clerk's office. The clerk will note the filing on the appearance
docket.* A copy of the printed notice should bo attached to such affi-
davit.
AFFIDAVIT OF PUBLICATION.
[Form 27.]
The State of Ohio. County, ss.
B. S. makes solemn oath that he is [one of the printer*] of [here state th*
4
CODE PRACTICE AND PRECEDENTS.
name of the newspaper^, a weekly [or, daily] newspaper printed, published,
and of general circulation in said county [if published in a daily newspaper
of which there is also a weekly edition, say, and which daily has a greater cir-
culation in said county than the weekly edition thereof], five weeks con-
secutively, the first publication being on the day of , A. D. 18 ,
and the last on the day of , A. D. 18 , and further saith not.
Printer's fee, $ [or, publisher's]. R. S.
Sworn to, etc. [as in Form 23, ante].
And see remarks as to approval by the court, same form. The
affidavit above given can readily be varied to conform to the require-
ments of the law as to such publication in the cases mentioned, ante,
following Form 19.
THE SHERIFF'S RETURN OF THE ORDER OF SALE.
[Form 28.]
Received the within order of sale on the day of , A. D. 18
at o'clock M., and caused notice of the time, place, and terms of
said sale to be printed and published in [name of the newspaper, a
daily or weekly'] newspaper, published and of general circulation in said
County, Ohio, for more than thirty (30) days prior to the day of
, IS , said day of sale, and at the said time and place, to wit, at
, at o'clock M., sold said property at public sale, to , he
being the highest and best bidder therefor, for the sum of dollars
($ ), in cash, which was by him paid to me, that sum being [more thati]
two-thirds of the appraised value thereof [or, if upon credit, slate terms and
compliance therewith by the purchaser, as indicated in Form 23, ante.~\
[Date.'] , Sheriff of County.
MOTION TO CONFIRM SALE.
[Form 29.]
Court of Common Pleas of County.
John Doe, Plaintiff, ) Motion to Confirm Sale of Real Es-
No. .] ^ vs. y tate etc
John Smith et als., Defendants. J
The plaintiff, by his attorney, Edwark Coke, moves the court to confirm
the sale of the real estate herein made by the sheriff on the day of
, 18 , and for an order upon the sheriff to execute a deed to the pur-
chaser, the said [name of purchaser. .]
EDWARD COKE, Attorney for Plaintiff.
1. How long fled before confirmatian. The motion must be filed in
the clerk's office before confirmation of the sale, usually, unless all
the parties interested consent to immediate confirmation, three days
before, but the time may be regulated by a rule of court.
- '
ATTACHMENT.
[RMATION OF SALE AND OllDER TO EXECUTE SHERIFF'S DEED
TO THE PURCHASER.
[Form 30. 5398.]
John Smith et als , Defendants. )
No. .] *. > Order Confirming Sale, etc.
John Doe, Plaintiff, J
This day this cause came on to be heard upon the motion to confirm
the Mile made by the sheriff on the day of , A. D. 18 , and upon
producing' the proceedings of the sheriff, and the sale of the premises by
him made in pursuance of a former order of this court, and the same be-
ing examined and found by the court, in all respects, in due form of law.
it is ordered by the court that said proceedings and sale be, and the same
are hereby approved and confirmed, and the said sheriff, or his successor
as sheriff of said county for the time being, execute and deliver to the
said purchaser [name purchaser] a deed in fee-simple for said lands and
tenements, by said sheriff sold as aforesaid. And it is further ordered
that the said sheriff hold and pay over said purchase-money, to wit,
dollars ($ ), as may be prescribed by the further order of the court.
Indorsement: " Enter within order.' 1 II. Y., Judge.
1. Re-appraisement of real property. If real estate has been twice of-
ft-n <! for sale, and returned by the officer " not sold for want of bid-
" on motion filed for that purpose, the court may set aside the ap-
praisement and order a new appraisement of the same. The granting
of the motion, and the order setting aside the appraisement and grant-
ing a new one, by reason of having been twice offered for sale and not
sold, is entered upon the journal of the court by the clerk.
[Form of Entry 31. 5416.]
John Doe ]
No. .] vs. > Appraisement Set Aside, etc.
John Smith et als. j
It being made to appear to the court that the real estate attached herein
has been twice regularly offered for sale, according to law, by the
sheriff, and could not be sold for want of bidden, it is ordered that the
appraisement thereof be and the same is hereby set aside, and said sheriff
a new appraisement thereof to be made.
A new order of sale, embracing such order of re-appraisement, u|x>n
the filing of a precipe, will be issued, and the like proceedings be had
under it as upon the first order of sale.
Setting atidc tales of real edale on motion will be treated with the sub-
ject of sales on execution.
52 CODE PRACTICE AND PRECEDENTS.
SALE OF ATTACHED PERSONAL PROPERTY AT PRIVATE SALE.
1. The court from which the order of sale issues, or a judge thereof
in vacation, may on good cause shown, on application of either party,
and due notice to the adverse party, make an order directing the
sheriff, or other officer holding the process, to sell such goods and
chattels at private sale for cash, specifying the time, not extending be-
yond the return day named in the order of sale, during which such
sale will continue ; but before such private sale is made, the court
shall order such personal property to be appraised by three disinterested
persons, and the property shall not be sold for less than two-thirds the
appraised value thereof.
2. Motion for order. The party interested to obtain such order to
sell attached property at private sale, should file, in the clerk's office,
a motion to obtain the same.
[Form 32. 5387.]
Court of Common Pleas of County.
John Doe, Plaintiff, ) Motion for Qrder of gale of Personal
John Smith et'als. Defendants, j Property at Private Sale.
And now comes the plaintiff, John Doe, and, for good cause to be shown
on the hearing hereof, moves for an order of sale of the personal property
attached herein at private sale. . *
EDWARD COKE, Attorney for Plaintiff.
NOTICE TO ADVERSE PARTY OP TIME AND PLACE OP HEARING
SUCH MOTION.
[Form 33.]
Court of Common Pleas of County.
John Doe, Plaintiff, |
No. .] vs. > Notice.
John Smith et als., Defendants, j
To John Smith [the adverse party interested in the property} :
You are hereby notified that a motion has been filed and is pending in
said court in this case to sell the personal property held in attachment
[or, the following specified personal property], at private sale; and will
be heard upon affidavits, in said court [or, by and before H. Y., judge of
s*ud court, in vacation, at , in ] upon the day of , A. D.
18 , beginning at o'clock M., or as soon thereafter as counsel can
be heard. EDWARD COKE, Attorney for Plaintiff.
[Date.]
ATTACHMENT. 53
Service and proof of same. See remarks in connection with Form 17.
Affidavits in support of should state facts showing good ground for
selling at private sale. They can be drawn as indicated by Form
16.
ORDER TO SELL PERSONAL PROPERTY AT PRIVATE SALE BY THE
SHERIFF.
[Form 34. 5387.]
_ -' ohn Doe ' Pi"* I Order to Sell Personal Property at Pri-
John faith et als., Defendant. ) vate Sale in Att *>t-
This day the motion heretofore filed herein to sell tho personal prop-
erty [or, the following personal property, describing it], on the day
of . A. D., 18 , came on to be heard by the court [or, by and before
II . Y , a judge of said court in vacation] and the court [or, judge] having
heard all the evidence adduced by the parties, and the arguments of
counsel, and being fully advised in the premised, doth grant said motion,
and order i lie sheriff, in whose possession said property is, to sell the same
at private sale, at not- less than two-thirds of its appraised value, within
[sixty] days from the entry hereof, during which period such sale may
continue ; and before said sale is commenced such personal property shall
be appraised by three disinterested persons. The return of this order by
the sheriff and his proceedings under the same to be made on or before
the d:iy of , 18.
1. Order of sale issued on precipe. On a precipe being filed, the
clerk will issue the order of sale to the sheriff, both of which can be
readily prepared from Forms 20 and 21.
Appraisement and sheriff's return of order can be drawn from Forms
25 and 24.
2. Repossession by officer of attached property, The court may order
the officer to repossess himself of the attached property which has
pawed out of his hands, for the purpose of selling it, the same not
having been sold or converted into money. The offirrr, under such
order, has the same power to take the property as he would have under
an order of attachment
3. Relate* only- to property that has been attached and taken into the
possession of the officer. If the property is in the possession of a person
other than the attachment defendant, who will not voluntarily surren-
der it to the officer, or who claims a right to, or lien upon it, the officer
can not seize it The plaintiff should institute proceedings in gam Ali-
ment against such possessor.
4. After final judgment. After judgment in favor of the plaintiff
54 CODE PRACTICE AND PRECEDENTS.
against the defendant whose property has been attached, and delivered
to him upon a delivery undertaking (Form 12), the court may com-
pel the delivery to the officer, for sale, of any of the attached prop-
erty, and may proceed summarily ou such undertaking to enforce the
delivery of the property, or the payment of the money due upon the
undertaking, by rules and attachment as in cases of contempt.
[Form 35. FOB REPOSSESSION OF PROPERTY. 5557.]
John Doe ]
No. .] vs. > Order for Repossession of Attached Property.
John Smith. )
In this case the sheriff [or, the plaintiff] having satisfied the court
that the following property attached by him [or, the sheriff] has passed out
of his [or, the sheriff's] hands, to wit : [Describe or enumerate the property.^
It is ordered by the court that the sheriff repossess himself of the same
without delay, in whose hands soever the same may be.
1. Issued to sheriff. Upon a precipe being filed, the clerk will issue
such order to the sheriff, who will execute it, and make return of the
order and what he has done under it forthwith.
2. How'order obtained. To obtain such order, it will be proper for
the plaintiff first to file a motion asking for the granting of the same.
3. If the party has put the property out of reach. Should the person in
whose hands such property may have come, after it has been attached,
have made way with it so that the sheriff can not get it, the sheriff is
given the power by statute to s'ue such person. The plaintiff can also
maintain such action, the sheriff's remedy being but cumulative. No
judgment against such person can be rendered until judgment is ob-
tained by the plaintiff in the action against the attachment defendant ;
for, if judgment should be finally rendered against the plaintiff upon
the cause of action upon which he caused such order of attachment to
issue, neither the plaintiff nor the sheriff would be entitled to its
value.
Statement of such cause of action. The form of stating a cause of
action in a petition upon a written instrument for the payment of
money only, as in the foregoing Form 1, would be unauthorized ; but
the facts constituting the cause of action would have to be stated.
[Form 36. 5060-5108.]
The State of Ohio, County Court of Common Pleas.
G. H., as Sheriff of County, Ohio, Plaintiff, |
No. .] vs. > Petition.
Q. R., Defendant. j
1. The plaintiff says that he is and has been during and at the time
hereinafter mentioned sheriff of said county.
ATTACHMENT. 55
2. That, by said court, on the day of . \. o. IS , an order of
attachment was duly issued to him as such sheriff in a certain action
pending in said court, wherein John Due was plaintiff and John Smith
and were defendants, commanding him, as such sheriff, among
other things, to attach the property, etc.. of the said defendant, John
Smith [name all the dt-fendtnts against whom the order issued].
3. That, by virtue of said order, on the day of , A. D. 18 , he
duly attached the following property of said John Smith [name th^ persons
whose property trot attached"], took the possession thereof, and caused the
same to be duly appraised, as such sheriff, to wit : [Here mention and describe
the property. ]
4. That afterward, about the day of , A. D. 18 , said property
came into the hands of the defendant, Q. R.
5. That afterward, on the day of , A. D. 18 , said court duly
made a certain order requiring the plaintiff as such sheriff to retake and
repossess himself of such above-mentioned property.
6. That the plaintiff, as such sheriff, has duly demanded from the said
defendant, Q. R., the redelivery to him, as such sheriff, of all said property,
with which demand the said defendant wholly failed and refused to com-
ply, and still does so. -
7. That said defendant, Q. R., on or about the day of , A. D.
18 , wrongfully converted all said property to his own use; and
8. That the value of the same then was about [state value as believed]; [or,
according to appraisement] dollars.
And, by reason of the premises, the said plaintiff, as such sheriff, asks
for a judgment ngainst the defendant for [any larger sum than alleged value,
at alleged damages, are not held as sworn to] dollars, and costs, etc.
EDWARD COKE, Attorney for Plaintiff.
[Verification.'] G. H., the above-named plaintiff, swears that he believes
the facts stated in the foregoing petition to be true. G. II.
Sworn to before me by said G. (I., and by him signed in my presence,
this day of , A. D. 18. , Clerk.
PRECIPE FOR SUMMONS.
[Form 37. I 4959.]
Court of Common Pleas, County, Ohio.
G. H., as Sheriff of County, Ohio, Plaintiff, )
No. .] . vs. \ Precipe for Summons
Q R., Defendant )
To the Clerk :
i--uo a summons in this case returnable according to law. Indorse:
' A int. claimed, $ " amount for which judgment is asked in the pet*
'.ion~\. EDWARD COCK, Attorney for Plaintiff.
[Date.]
1. Summons, indorsement of clerk upon, service by sheriff, and hia
56 ' CODE PRACTICE AND PRECEDENTS.
return of same, and all other proceedings, except attachment against
a foreign corporation, or non-resident of this state, may be had in the ac-
tion as under Form 1 ; and if the defendant obtained the property from
the sheriff on a promise to return it on demand, and fails or refuses on
demand to do so, the sheriff may sue him for breach of his contract
and obtain an order of attachment, though such recipient of the prop-
erty be a non-resident of the state.
The statements of the foregoing petition will be sufficient to make a
case upon contract by stating, in lieu of parapraph 4, "that after-
ward, about the day of , A. D. 18 , said property came
into the hands of the said defendant in consideration of his agreement
with the plaintiff, as such sheriff, to redeliver the same to the plaintiff,
as such sheriff, on demand by him for the redelivery of the same,
which he has failed to do, but has departed from this state so that no
demand can be made upon him ;" and by omitting paragraph 7 from
such petition upon contract.
ATTACHMENT BEFORE DEBT DUE. 57
CHAPTER III.
ATTACHMENT BEFORE DEBT DUE.
. When a debtor has sold, conveyed, or otherwise disposed of hia
property, with the fraudulent intent to cheat or defraud his creditors,
ur to hinder or delay them in the collection of their debts; or is about
to make such sale, conveyance, or disposition of his property with such
fraudulent intent; or is about to remove his property, or a material
part thereof, with the intent, or to the effect, of cheating or defraud-
ing his creditors, or of hindering or delaying them in the collection of
their debts, the creditor may bring an action on his claim before it is
due, and have an attachment against the property of the debtor.
2. How attachment granted. Such attachment may be granted by
the court in which the action is brought, or a judge thereof.
Affidavit for. But, before such action can be brought, or such at-
tachment granted, the plaintiff, or his agent, or attorney, shall make
an oath, in writing, showing the nature and amount of the plaintiff's
claim, that it is just, when it will become due, and the existence of any
our, or more, of the grounds for attachment above enumerated.
11 "V ground stated. Good practice requires that the affidavit should
set forth the grounds and circumstances showing the existence of the
alleged grounds for attachment, and not merely the words of the
statute sworn to positively ; yet, if the court or judge think proper to act
upon such affidavit positively sworn to (not according to mere belief),
stating the ground in the words, substantially, of the statute, it will be
deemed a matter of form not affecting any substantial right of the de-
fendant, and not a proper cause for reversal upon petition in error.
What order to specify. The order of the court or judge granting the
attachment shall specify the amount for which it is allowed, not ex-
ceeding a sum sufficient to satisfy the plaintiff's claim and the proba-
ble costs of the action.
3. .Undertaking. The order of attachment, as granted by the court
or judge, shall not be issued by the clerk until there is executed in
his office such undertaking ou the part of the plaintiff as is directed
in attachment cases, where the action is for money due. Form
6, ante.
4. No judgment before dfbt i due. The plaintiff in such action can
not have judgment on his claim before it becomes due, as such pro-
58 CODE PRACTICE AND PRECEDENTS.
mature judgment would violate the obligation of a contract; but the
proceedings in attachment may be conducted without delay; and
such proceedings are had as in cases of attachment upon claims due
at the time of action brought.
Ifilie court or judge refuse to grant an order of attachment, the ac-
tion shall be dismissed, but without prejudice to a future action; and
in all actions brought upon causes not due, application for attachment
must be made, so suit should be brought only against such defendants
as against whom orders of attachments for property can be obtained.
CAUSE OF ACTION NOT DUE.
CINCINNATI, Ohio, July 1, 1885.
One year after date I promise to pay to the order of John Jones one
thousand dollars. Value received. JOHN SMITH.
$1,000.00.
Indorsed: JOHN JONES.
HUGH EVANS.
5. If, for sufficient reasons, the claim is in danger of being lost to
the plaintiff and one or more of the debtors have committed any of the
acts justifying the attachment of property before a debt falls due, the
petition against such parties may be drawn as follows :
[Form 38. 5564.]
The State of Ohio, County Court of Common Pleas.
John Doe, Plaintiff, |
vs. > Petition.
John Smith, Defendant. )
The plaintiff, John Doe, says that he is the holder and owner by indorse-
ment, for a valuable consideration, of the promissory note hereinafter-
mentioned.
That on the first day of July, 1885, [the date] the defendant, John
Smith, made his certain promissory note of that date, payable to the order
of John Jones [thepayee] one year after the date thereof, for the sum of one
thousand dollars, for value received by him, and then delivered the same
to said John Jones ; that said John Jones duly indorsed and delivered
the same to Hugh Evans, and said Hugh Evans afterward duly indorsed
and delivered the same to the plaintiff a copy of said promissory note,
with all the credits and indorsements thereon, is hereto attached, marked
"A," and made part hereof and that said promissory note will become
due on July 3, 1885 [when the third day of grace is Sunday or a holiday,
negotiable paper is payable on the second clay of grace], when there will be due
to the plaintiff from the defendant as maker of the same the sum of
one thousand dollars ($1,000), with interest until paid; and for which
when due, with costs, etc , he asks judgment against the defendant.
Attorney for Plaintiff.
ATTACHMENT HEFORE DEBT DUE. 59
"A."
Copy of the note and all the credits and indorsements thereon, attached
to and made part <>f the foregoing petition.
[Here copy note and all indartemcntt.']
The verification will be the same as at Form 1.
Prccipe and summons the same as Forms 2 aud 3.
ATTACHMENT AFFIDAVIT.
[Form 39. 5565.]
The State of Ohio, County Court of Common Pleas.
John Doe, Plaintiff, }
vs. > Affidavit for Order of Attachment
John Smith, Defendant. )
John Doe, the above named plaintiff [or, N. M., who is the agent, or W.
Y.. the attorney of said plaintiff, John Doe], makes oath that the nature
of the plaintiffs claim in this action is, that it is founded upon a prom-
issory note made by the defendant, for the payment of money only, to
wit, one thousand dollars on July 1, 1886; that said claim is just; that
it will become due oh July 3, 1886; and that said John Smith has dis-
: of his property with the fraudulent intent to cheat and defraud his
creditors, and to hinder and delay them in the collection of their debts,
[or i>t tier ttatutory ground, in thewords of the ttatute.~\ And to accomplish such
fraudulent purpose, the said John Smith, after the making by him of the
sai<l promissory note, and without retaining enough other property subject
to execution to pay said debt, when the same becomes due, about the
<l.iv ->f August. 1S85, conveyed all his real estate, without any real <>r val-
uuUo consideration, to his son, William Smith, to defraud, hinder, and
delay his creditors.
And further saith not. Joax Dog.
Sworn to and subscribed before me by said John Doe this day of
. A. D. 18. , Clerk.
Order granting. If the court, or judge thereof, grant the order of
attachment, he will sign the following journal entry :
[Form 40. g5567.]
Court of Common Pleas of County.
John Doe, Plaintiff, }
vs. > Order of Court [or, Judge] Granting Attachment.
John Smith, Defendant. )
Upon the execution, and acceptance thereof by the clerk of an under-
taking according to law, an order of attachment is granted to the plaintiff
against the property, etc., of the defendant, in this case, for the sum of one
thousand dollars and dollars, the probable costs of the action.
D. Y., Judge.
60 CODE PRACTICE AND PRECEDENTS.
Upon a precipe being filed with the clerk for the issuing of the
order, and giving the required undertaking, the order will be issued,
and like proceedings had thereafter as in ordinary attachment cases.
Refusal of court or judge to attow. If the court or judge refuse to
allow the order of attachment, the form of refusal may be thus :
[Form 41.]
Court of Common Pleas of County.
John Doe, Plaintiff, j
No. .] vs. > Refusal of Attachment.
John Smith. J
In this case the granting cf an order of attachment in favor of the
plaintiff against the property of the defendant is refused.
H. Y., Judge.
Dismissal of the action. After such refusal by the court, or a judge
thereof, the following entry in the cause should be made upon the
journal.
[Form 42. 5566.]
John Doe ]
No. .] vs. > Dismissal of Action without Prejudice.
John Smith, j
An order of attachment having been refused in this case, the same is
hereby dismissed at the costs of the plaintiff, without prejudice. No
record.
Note. To have no record made Avoids making additional costs.
GARNISHMENT. 61
CHAPTER IV.
GARNISHMENT.
1. Affidavit and order. When the plaintiff, his agent or attorney,
makes oath, in writing, that he has good reason to believe, and does
believe, that any person or corporation, to be named in the affidavit,
has property of the defendant in his possession, describing the same
as nearly as can be done, generally, upon a precipe therefor being
filed in the clerk's office, an order of garnishment against such person
or corporation, named in the affidavit, will be issued. 5530.
2. When possession of the property can not be obtained, the officer shall
leave with the garuishee a copy of the order of attachment, with a
written notice that he appear in court and answer, under oath, all
questions put to him touching the property of every description, and
credits, of the defendant, in his possession or under his control, and
disclose truly the amount owing by him to the defendant, whether due
or not. And if the garnishee be a corporation, any stock therein held
by or for the benefit of the defendant, at or after the service of the
notice. 5530, 5547.
3. When and how garnishee to answer. If the order of attachment
be returned during a term of the court, and twenty days before the
close thereof, the garnishee shall appear at that term, and answer; but
if the order of attachment be returned during vacation, he shall ap-
pear and answer at the term next after its return. It is customary
for the garnishee to prepare and swear to his answer and file it in the
clerk's office, and not personally appear in or before the court, unless
the plaintiff shall, on motion to the court, and motion granted by it,
require him to do so. Strictly, it is provided, that the answer <>f the
garnishee shall be made before the clerk of the court of the county in
which he resides, or, if he resides out of the state, before the clerk
of the Court of Common Pleas of the county where he was served, or
where the action is pending; and a special examination of the gar-
uishee may be had by order of the court in which the action is pend-
ing. When the answer of the garnishee is mode in another county
than that in which the suit is pending, the clerk of the former shall
transmit such answer to the clerk of the latter, in the same manner
depositions are required to be directed and transmitted. >> l~-
62 CODE PRACTICE AND PRECEDENTS.
4. How garnishee served. If the garnishee is a natural person, the
copy of the order of attachment and notice requiring him to answer
shall be served upon him personally, or left at his usual place of resi-
dence; and if a corporation, they shall be left with the president
or other principal officer, or the secretary, cashier, or managing agent
thereof. And if such corporation is a railroad company, they may
be left with any regular ticket or freight agent thereof, in any county
iii which the railroad is located. Garnishees are bound from the time
of such service upon them.
5. Slieriff and other officers may be garnislied. The service of pro-
cess of garnishment upon the sheriff, coroner, clerk, constable, mas-
ter commissioner, marshal of a municipal corporation, or other officer
having in his possession any money, claim, or other property of the
defendant, or in which the defendant has ail interest, binds the same
from the time of such service, and will be a legal excuse to such of-
ficers, to the extent of the demand of the plaintiff, for not paying
such money or delivering such claim or property to the defendant, as
by law, or the terms of the process in his hands, he would otherwise
be bound to do. 5538.
6. How garnishee may discharge himself from liability. A garnishee
may pay the money owing to the defendant by him to the officer hav-
ng the attachment, or into court, which will discharge him from lia-
bility to the defendant for any money so paid, not exceeding the
plaintiff's claim, and he shall not be subjected to costs beyond those
caused by his resistance of the claim against him. And if he disclose
the property in his hands, or the true amount owing by him to the
defendant, and deliver or pay the same according to the order of the
court, he shall be allowed his costs. 5548.
7. And if, after judgment is rendered in favor of the plaintiff in
attachment against the defendant in the attachment, though an ac-
tion may be pending against such garnishee for an unsatisfactory dis-
closure by answer, the garnishee may deliver up all the property and
credits of the defendant in attachment in his possession and pay all
the money due from him, as the court may order, and be discharged
from liability, and the costs of proceedings against him shall be paid
out of the property and money so surrendered, or as the court deems
right and proper.
8. Liability of garnisJiee. If the garnishee appear and answer, and
it be discovered on his examination that at or after the service of the
order of attachment and notice upon him, he was possessed of any
property of the defendant, or was indebted to him, the court may
order the delivery of such property, and the payment of the amount
QAiOilSllMKNT.
owing by him to the defendant, into court; or the court may permit
tin; garnishee to retain the property, or the amount .s > owing, upon
the execution of an undertaking to the plaintiff, by .-ufficient surety,
to the effect that the amount shall be paid or the property forthcoming,
as the court may direct. 5550.
9. As to garnishment of railroad company in certain cases after
judgment, see 5405, 5471.
10. Failure of gamisfiee to appear, or answer satisfactorily. If the
garnishee fail to appear and answer, or if he appear and answer, and
his disclosure be not satisfactory to the plaintiff, or if he fail to comply
with the order of the court to deliver the property, or pay the money
into court, or to give the undertaking above mentioned, the plaintiff
may proceed against him by civil action; and thereupon such pro-
ceedings may be had as in other actions, and judgment may be ren-
dered in favor of the plaintiff 1 for the amount of property and credit.-
of the defendant of every kind in possession of the gnrnishee, and for
what may appear to be owing by him to defendant, and for the cost*
of the proceedings against him. 5551.
11. When judgment against garnishee to be rendered. Final judgment
in such action can nrt be rendered against the garnishee until the a--
tion against the defendant in attachment is determined by a judgment
against him in favor of the plaintiff* in attachment. 5553.
12. When garnishee not to pay costs of action. If the plaintiff pro-
ceed against the garnishee by action, for the cause that his disclosure
was unsatisfactory, unless it appear in the action that such disclos-
ure was incomplete, the plaintiff shall pay all costs of such action.
5552.
13. Wlitn defendant in attachment substituted for plaintiff. When the
claim of the plaintiff* in attachment is satisfied out of the judgment
against the garnishee, and a balance still remains due upon such judg-
ment, the defendant in attachment may, on motion, be substituted as
the plaintiff* in the judgment and enforce satisfaction of the same.
5552.
14. Oarnishee in contempt of court. If the garnishee fail to appear
and answer, as required by the notice served upon him so t > do, tin-
court may proceed against him by attachment for contempt. 5549.
W lien judgment is rendered against the plaintiff in attac/iment in
favor of the defendant in attachment, the attachment is discharged,
and the property attached, or its proceeds, will be returned to the de-
fendant in attachment. >
16. How judgment in favor of attachment plaintiff satisfied. If judg-
ment be rendered in favor of the plaintiff* in attachment against the
64 CODE PRACTICE AND PRECEDENTS.
defendant in attachment, in the action in which the order of attachment
was issued, it will be satisfied as follows : s ) much of the property re-
maining in the hands of the officer, after applying the money aris-
ing from the sale of perishable property, and other of the defend-
ant's moneys in the hands of the officer, personal and real, if any,
whether held by legal or equitable title, as may be necessary to satisfy
the judgment, shall be sold by order of the court, under the same re-
strictions and regulations as if the same had been levied on by execu-
tion ; and the money arising therefrom, with the amount which may
be recovered from the garnishee shall be applied to satisfy the judg-
ment and costs. If there be not enough to satisfy the same, the
judgment shall stand, and execution may issue thereon for the residue,
in all respects as in other cases ; and any surplus of the attached
property, or its proceeds, after such judgment is satisfied, shall be re-
turned to the'defendant in attachment. 5555.
17. Attachment defendant not personally served. If the attachment
defendant has not been personally, but only constructively (that is,
by publication) served with process, and has not appeared to the ac-
tion, while the judgment will be rendered for the plaintiff for the full
amount of the claim he establishes before the court, so as not to estop
the plaintiff in another action against the defendant, such judgment
will be of no validity beyond the amount of the property sequestered
by the proceedings in attachment. No execution can issue upon it to
collect the balance due from the defendant. As to such excess in
amount over what is realized by the attachment, the judgment is void
sis against the attachment defendant. See Leonard v. Lederer, post, 121.
18. Officer's return. The officer is required to return upon every
order of attachment what he has done under it, and the return must
show the property attached, and the time it was attached. When
garnishees are served, their names, and the time each was served,
must be stated. And he must return with the order all undertakings
given under it.
19. When property is claimed by a third person. If personal property
which has been attached be claimed by any person other than the de-
fendant, the officer shall have the validity of such claim tried ; and
such proceedings will be had thereon, with the like effect, as if the
property had been seized upon execution, and claimed by a third per-
son. See 5444-5446.
20. When garnishee can not be ordered to deliver property, or pay over
money, upon his answer. If the garnishee does not admit, in his an-
swer, that he holds property or rights of the defendant in attachment,
GARNISHMENT. 66
which belong to the defendant absolutely ; or denies that he is, in fact,
ill-It -bted to the defendant; or that such property is claimed by him aa
his own; or, that some third person claims it, or to be entitled to the
debt due from the garnishee, the court can make no order upon the
iraniishee. The plaintiff will be required, if he desires to pursue the
.Mriisiiee, to bring his action against the garuishee for the unsatiafac-
'iv disclosure made by his answer- and in such action he may join,
is a defendant with the garuishee, any third party claiming a right to
the thing sought to be sequestered by the proceedings in garnishment.
AFFIDAVIT TO PROCURE PROCESS OF GARNISHMENT.
[Form 43. 5530.]
Court of Common Pleas of County.
John Doe, Plaintiff, ]
No. .] v. [ Affidavit for Garnishment of Will-
John Smith, John Jones, and Hugh I iam Nokes.
Evans, Defendants.
John Doe, the above named plaintiff [or, , agent; or, , attorney
of the above named plaintiff, John Doe], makes solemn oath, that he has
good reason to believe, and does believe, that William Nokes, a resident
of county, Ohio, has property of the said John Smith in his posses-
sion [describing it, as: consisting of a debt due to said John Smith from
said William Nokes, amounting to about dollars, due or to become
dii**] ; and this affidavit U made for the purpose of garnisheeing t>aid
William Nukes. JOHN DOK.
Sworn to and subscribed before me by said John Doe, this day of
, A. D. 18 . , Clerk of aaid Court.
PRECTPE FOR ORDER OF ATTACHMENT AND GARNISHMENT.
[Form 44.]
Court of Common Pleas of County.
John Doe, Plaintiff,
No. .] w.
John Smith, John Jones, and Hugh
Precipe for Order of Attachment,
ana for Garnishment of William
Note
Evans, Defendants.
To Clerk: .
Issue an order of attachment in this case against the defendant, John
Smith, returnable according to law; and also command the sheriff to
notify William Nokes that he has been garnisheed by the plaintiff, and
requiring him to answer according to law.
[Date.] EDWARD COKK, Attorney for Plaintiff.
5
CODE PRACTICE AND PRECEDENTS.
ORDER OF ATTACHMENT AND FOR NOTICE TO GARNISHEE.
[Follow Form 8, ante, and add :~\
And also notify William Nokes, in writing, that he has been garnisheed
by said plaintiff, and that he is required to appear and answer as such
garnishee, according to law, on the day of , A. D. 18 [or, on the
first day of the next term of our court]
Witness, etc. , Clerk.
WRITTEN NOTICE TO GARNISHEE.
[Form 45. 5530.]
Court of Common Pleas of County, Ohio.
John Doe. Plaintiff, ) XT .. TTT-IT XT i_ n
M- _ 1 [ Notice to William Nokes, Gar-
John Smith et als., Defendants. [ nishee -
To William Nokes.
Sir: This is to notify you to appear in said court on the day of
, A. D. 18 [or, on the first day of the next term of said court], and
answer, under oath, all questions put to you touching the property of
every description, and credits of the defendant, John Smith, and and
, in your possession or under your control, and disclose, truly, the
amount owing by you to said defendant, John Smith, and and ,
whether due or not [and if the garnishee is a corporation, add: and any ami
all stock held in your corporation by or for the benefit of the said de-
fendant, John Smith, and and , at or after the service of this
notice], and fail not under the penalties inflicted by law.
\_Date.~\ , Sheriff of County.
SHERIFF'S RETURN.
[Form 46. 5554.]
Received the within order of attachment on the day of , 18 ,
at o'clock M. [if property of defendant is attached, follow Forms 9 and
11, ante], and served William Nokes, garnishee, with a copy of the same
on the day of , A. D. 18 , at o'clock M., personally [or,
by leaving a copy of the same at his usual place of residence]; and also
at the same time and in the same manner served him with a copy of the
notice hereto attached and returned herewith. [If a corporation, state the
service upon a proper officer thereof, ."]
[Dale.'} , Sheriff
Garnishment may be made, in any county in the state, when an
order of attachment is issued to such county.
Tlie answer of the garnishee may he made by questions put to him, as
in the taking of a deposition, or, if satisfactory to the plaintiff, by a
OARNISIIMKNT. 67
written statement signed and swum to by the garnishee, and if the
garnishee be a corporation, by some officer of such corporation.
ANSWEK OF GARNISHI i
[Form 47. :*547.]
Court of Common Pleas of County.
John Doe. Plaintiff. ) Answer of William Nokes, Gar-
^ O. * I V. r " U
John Smith et als., Defendants. )
This day personally appeared in court William Nokes, who for his an-
swer as garnishee herein, being first duly sworn, says that he is indebted
to the said defendant, John Smith, and and , in the sum of
dollars, upon a promissory note made by him to said John Smith, and
and , about the day of , A. D., 18 , payable days
after the date thereof, nnd the same is now due, with interest from the
day of , 18 , and that he baa no other property of any descrip-
tion, or credits of the said defendants, in his possession, or under his con-
trol, nor does he owe said defendants any thing, in any manner whatever,
other than as above stated, nor has he had at or after the service of the
notice upon him to answer herein any other property of said defendants.
WILLIAM NOKES.
Sworn to and subscribed before me by said William Nokes, this
day of , A. D. 18. , Clerk of said Court.
'''KR WHEN NOTHING is ADMITTED TO BE DUE UNCONDITION-
ALLY BY THE GARNISHEK.
[Fora 48.]
c..u:t "f Common Plea*, County.
No _.] J hn Doe i ;/ laintiff; [Answer of William Nokes, Gai^
John Jmithet als., Defendants. j nishee -
William Nokes, garnishee herein, being first duly sworn to answer,
under oath, all questions put to him touching the property of every de-
ocription, and credits, of the defendant, John Smith, and and ,
in hid possession or under his control, and to disclose, truly, the amount
owing by him to the defendant, John Smith, and and , whether
due or not [ J if a corporation, to the annccr rf t/ie officer of the corporation
making the answer, add: and any stock in said corporation held by or for
the benefit of said 'defendant], at or after service of the notice of gam is h-
nit-nt herein, for answer says:
That he purchased of the said defendant, John Smith, nnd and
, about the day of , A. n. 18 , a farm in said county for the
um of dollars, which became ,due [or, will be due] on the day
>f , A. n. IS , which purchase is evidenced by a written contract,
Mgtn d by the parties, a copy of which is hereto attached, marked "A,"
and made part hereof, affiant, at the time of the making of said coutrac^
68 CODE PRACTICE AND PRECEDENTS.
having paid dollars; that, on or about the day of 7 A. D.
18 , one James Stiles notified him that said contract and indebtedness
had been, for a valuable consideration, assigned to him, said James Stiles,
and that he is the owner thereof. Said notice of assignment was given
before the service upon me of the notice of garnishment herein; and
that the foregoing is a full and true answer, to all which affiant has been
required to answer under oath. WILLIAM NOKES.
Sworn to and subscribed before me by the said William Nokes, this
day of , A. D. 18 . , Clerk of said Court.
1. From the foregoing, the answer of the garnishee can be prepared
in cases where he disputes the attachment defendant's right, though a
prima facie one, and sets up a claim in himself adverse to such de-
fendant. Such claim can not be adjudicated, nor can an order be
made against the garnishee, upon such answer.
2. When the answer of a garnishee discloses an absolute right in the
defendant in attachment to the thing disclosed in his answer, an order
may be taken upon the garnishee.
ORDER UPON GARNISHEE BASED ON His ANSWER.
[Form 49. 5550.]
John Doe, Plaintiff, 1 Order upQn Garnishee) upon his
'-I vs ' l Answer
John Smith et als., Defendants. )
Upon the admissions and statements contained in the answer herein
of William Nokes, as garnishee herein, it is ordered by the court that
said garnishee, William Nokes, pay to the clerk of this court the sum of
dollars, and upon doing so, he shall be discharged from garnish-
ment, and from all liability on account thereof to said defendant, John
Smith, and . And said clerk is ordered to hold said money subject
to the further order of this court.
1. If property, or promissory notes, accounts, etc., it may be best to
require the garnishee to deliver the same to the sheriff, or, if a re-
ceiver has been appointed and qualified, to such receiver.
2. When garnishee's disclosure is unsatisfactory, as in Form 48, the
plaintiff, if he desires to pursue the property, etc., in the hands of the
garnishee, must institute a civil action.
GARNISHMENT. 69
PETITION IN SUCH CASE.
[Form 50. g 5551.]
Tho State of Ohio, County Court of Common Pleas.
John Doc, Plaintiff, I
-.] & > Petition.
William Nokes and .lames Stiles, Defendants. )
I'ln- plaintiff, John Doe, for a cause of action ngainst the defendants,
says, that in said court he has duly brought, and the same is still pending
therein, a civil action against John Smith, John .Junes, and Hugh Evans;
ili.a in said action he caused an order of attachment to be duly issued
against the said defendants, John Smith, and and , which order is
still in full force, the same not having been set aside, or in any manner dis-
charged; that in said action he has caused the defendant, William
-. to be duly garnUheed; that in response to the notice of garnish-
ment served upon him, the said William Xokes answered in writing,
under oath, as follows: \_llere give sul/stnnec of t/ie answer, omitting the caption
and signature and certificate to oath to answer], which disclosure is unsatis-
factory ; that said [describe what it is] in the hands of said William Nokes
it owned by, and the property and effects, absolutely, of said John Smith.
and and ; that said James Stiles has no interest, in fact, therein,
or i L'lit thereto, but that he pretends to own the same for the purpose and
with the intent to prevent the plaintiff from subjecting the same to the
satisfaction of his said claims set forth in his said action, and that the
said property, rights, and effects in the hands and under the control of
aid William Nokes is of the value of dollars.
Wherefore the plaintiff asks for a judgment against the said defendant,
William Nokes, for dollars, and ngainst said Stiles, barring him from
any and all claim to the aforesaid property, etc., for costs, and for such
relief as the plaintiff may be entitled to upon the facts of the case.
EDWAKO CoKf, Attorney for Plaintiff.
Affidavit, precipe fur summons, etc., as in other actions brought for
money only.
1. Interpleader by yarniahet If the garnishee wishes to relieve him-
self from the costs and expenses of such action, he should file the fol-
lowing affidavit of interpleader, und comply with the order of the
court made after the filing of the same. This affidavit is a code
suli-titutt- for the bill of interpleader in chancery.
[Form 51. $5016.]
The State of Ohio, County Court of Common Pleas.
John Doe, Plaintiff, I WilUain No|wV Affidftvit
William Nokes and James Stiles. Defendant*. ) of I ter P leader -
Now comes the defendant, William Nokes. and before answer to the
petition herein, makes solemn oath thai James Stiles, without collusion
70 CODE PRACTICE AND PRECEDENTS.
with him has [or, makes] a claim to the subject of the action mentioned
in the plaintiff's petition, and that he is ready to pay or dispose of the
same as the court may direct; and on full compliance hy him with such
order as the court may make in the premises, asks to be discharged
from all liability to the parties, and to be hence dismissed with his costs,
etc. (Signed,) WILLIAM NOKES.
Sworn to before me, and subscribed by said William Nokes in my
presence, this day of , A. D. 18 . , Clerk.
1. Order of court upon. The court may make an order for the safe
keeping of the property, or for the payment of the money into court,
or deposit therein of the subject of the action or delivery thereof to
such persons as it may direct.
2. Order and notice to the third person, claimant. The court will also
make an order requiring such third party ta appear within a reasonable
time, that is, on or before a day named, and maintain or relinquish his
claim agaiust the attachment defendant.
3. How third party to be served with order. On precipa filed, the clerk
will issue such order, copied from the journal of the court, to the
sheriff, or such other person as the court may direct, with a copy of
which such claimant must be served.
4. Where service may be made. The claimant may be served with
such copy of the order wherever found, in or out of the state, as the
subject is in the hands of the court for distribution, and any one
claiming an interest therein must appear in the court and assert his
rights, or lose them.
5. Failure of claimant to appear. If the third party, the claimant
mentioned in the affidavit of interpleader of the garnishee, fail to ap-
pear, the court may declare him barred of all claim in respect to the
subject of the action against the attachment defendant, which will, in
legal effect, determine it to be the property of the attachment defend-
ant, and subject to the attachment plaintiff's money demand set forth
in his action.
6. If claimant appear, he will be allowed to make himself defendant,
and to answer, setting forth the facts upon which he bases his claim to
the subject garnisheed, in lieu of the garnishee, and the matter of
such claim will then be litigated, as other cases are, between such claim-
ant and the plaintiff in the attachment suit. The garnishee will be dis-
charged from all liability to either of the parties in respect to such
garnished subject, upon his compliance with the order of the court
for the payment, deposit, or delivery thereof.
GARNISHMENT. 71
ORDER OF COURT.
[Form 52. 5016.]
John Doe |
No. .] r*. > Order upon Interpleader.
William Nokes et al. j
This day this cause came on 10 be heard by the court upon the affidavit
of interpleader 61ed herein by the said defendant, William Nokes: Where-
upon, and the court being fully advised in the premises, it is ordered that
said William Nokes pay into court into the hands of the clerk the said
turn of dollars in hi.* hands as disclosed by him in his answer as
garnishee, stated in the petition herein [or, that he deposit in court with
the clerk the said choses in action in his possession and mentioned in his
answer as garnishee, as stated in the petition herein [or, that he deliver
the said property in his possession as disclosed by his answer as garnishee, as
stated in the petition herein to the sheriff of said county ; [or, to ,
who has been appointed and has qualified as receiver in this action ; or,
in tin* action of said John Don gainst John Smith, and now pending in
this court]. And upon full compliance with the foregoing order, it i* ad-
judged by the court that said William Nokes be discharged and freed
from all liability to the plaintiff herein, and to the said James Stiles, with-
out liability for costs.
\nl it is further ordered by the court that said James Stiles be re-
quired, on the day of . A. i>. 18 , to appear in this court and
action, and maintain or relinquish his claim against the defendant, Will-
i DM Nokes, to \J>ert state the'tubject w/iic/i Stiles claim*].
>py of this order is required to be served upon said James Stiles by
the sheriff of said county [or, by , of county, and State of
], who is hereby appointed for that purpose and directed to serve the
Mime upon said James Stiles, and is to make return of service, or pro-
ings under this order, before said day of , A. D. 18 .
Vnd. on failure to appear, said James Stiles shall be barred of all claim
in respect to the subject of this action against the said William Nokes
and John Doc
-.An order for the safe keeping of the property can bo drawn readily
fr-m what the first part of the foregoing form suggest*.
When service of the order upon the claimant third part)* is made by a per-
on appointed by the court, Mrvico mut be verified by hi* affidavit.
When a third person serve* a copy of such order, his affidavit is necessary to
prove such service, while an Ohio sheriff's return of the fact is sufficient.
72 CODE PRACTICE AND PRECEDENTS.
JOURNAL ENTRY WHEN GARNISHEE DEPENDANT COMPLIES WITH
THE ORDER OF THE COURT.
[Form 53. 5548.]
John Doe ]
No. .] vs. > Entry Discharging William Nokes from Liability.
William Nokes et al. )
The said William Nokes, having fully complied with the order of the
court herein made upon his affidavit of interpleader, it is ordered by the
court that he be, and he is hereby discharged from all liability to said
James Stiles and John Doe, or either of them, in respect to the subject
of this action, without liability for costs.
JOURNAL ENTRY AGAINST THE CLAIMANT THIRD PERSON FAILING
TO APPEAR AS REQUIRED BY THE ORDER OF THE COURT.
[Form 54. 5016.]
John Doe ]
No. .] vs. > Judgment Barring James Stiles, etc.
William Nokes et al. )
In this case, the court finds that said James Stiles has been duly served
with a copy of the order to appear and maintain or relinquish his claim
against William Nokes, etc., and has wholly failed to appear, but has
made default; and, being still in default, the court being fully advised in
the premises, doth order and adjudge that said James Stiles be and he
is hereby barred of all claim in respect to the subject of the action herein
as against the defendants, William Nokes and John Doe, and each and
every of them.
And the costs of the proceedings herein in interpleader are to be taxed
as costs made by the plaintiff, John Doe.
JOURNAL ENTRY WHEN THIRD PERSON APPEARS.
[Form 55. 5016.]
John Doe )
No. .] vs. > Entry of Appearance of James Stiles, Claimant.
William Nokes et al. )
In compliance with the order served upon him to appear and maintain
or relinquish his claim to the subject of the action herein, this day ap-
peared James Stiles, and, on his motion, is made defendant herein in lieu
of said William Nokes, who, having fully complied with all the orders of
the court in the premises, is discharged from all liability to either of the
other parties in respect to the subject of the action herein.
[And, by leave of court, the answer of said James Stiles is filed; or,
and leave is given said James Stiles to file his answer to the plaintiff's
petition within days from this date.]
Note. To facilitate the trial of the cause, the answer should be prepared and
filed at the time of making the entry of appearance.
GARNISHMENT. 78
INJUNCTION AGAINST ATTACHMENT DEBTOR.
If a debtor of the attachment debtor be garnisheed, who owes the
attachment debtor ou a negotiable instrument not due, the attachment
(lcl)tor may negotiate such paper in the usual course of business, and
the holder for value may collect the same from the garnishee, notwith-
Ctanding the garnishment. Howev. Htrtnesa, 11 O. S. 449; Secorv.
Witter, 39 O. 8. 218. In such a case, it will be advisable to file a
supplemental petition (5119) against the defendant in the action,
whose debtor owing him upon such negotiable paper has been gar-
nisheed, and obtain an injunction against the defendant in attachment
The garnishee need not be made a party to such supplemental peti-
tion, as he is bound by the process of garnishment. For injunction,
-S 5571-5586. No injunction can operate until an injunction un-
dertaking or bond is executed and approved and accepted. 5576.
[Form 58. 5119.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, 1
Joh'u~sLth, John*Jone ,and Hugh | Supplemental Petition.
Evans, Defendants.
The said plaintiff says that, since the commencement of this action, he
has duly ciused an order of attachment to issue ngainst the property, etc.,
of said defendant, John Smith, and one , to be garnisheed. in said ac-
tion; all of which will more fully and at large appear, reference being
had to the record of the same herein ; that said garnishee is the maker
of, and owes to, the said John Smith, upon a certain promissory note, not
yet due, the sum of about dollars, which note was made by said ,
garnishee, payable to said John Smith, or order, months after the
date thereof, for thn sum of dollars, or about that MUM. and dated on
the day of , 18 , or about that date, which period lias not .yet
elapsed.
That said John Smith can and may indorse said promissory note to an
innocent holder for value, which will cause groat injury and damage to
the plaintiff, by defeating entirely such said garnishment [the said John
Smith being insolvent]; and in which event said parnishe will bo bound
to pay .the amount of said note to such indorsee, and released from pay-
ing the same in this action toward satisfying the claim of the plaintiff
herein. [If the party hat attempted l> ntt/otiale such paper, ttate the fact* in
addition to the foregoing. ~\
Wherefore the plaintiff prays for an order of injunction restraining the
said John Smith from negotiating, or in any way transferring said prom
74 CODE PRACTICE AND PRECEDENTS.
issory note before the same shall become due, or until after the determi-
nation of the proceedings in attachment and garnishment in this action;
and for all proper relief. EDWARD COKE, Attorney for Plaintiff.
[Verification in positive form, i. e., that the facts stated are true, not
merely believed to be true.]
Upon such pleading positively verified, or supported by affidavits,
move the court to grant an injunction. Notice to the defendant of
such application will not be required, as that might be the means of
defeating the object sought by the injunction ; though the court may
grant a temporary restraining order until the application is heard and
determined. 5574. Upon such application the court, or a judge of
the court in vacation, may grant the following order:
[Form 57. H 5574, 5575, 5576, 5577.]
John Doe )
.No. .] vs. } Order of Injunction.
John Smith et als. j
An order of injunction is granted in this case against said John Smith,
ns prayed for in the supplemental petition herein. Injunction under-
taking fixed at $ - , conditioned according to law, with surety, to the
approval of the clerk of the court.
UNDERTAKING.
[Form 58. 5576.]
Jonh Doe, Plaintiff, ) Injunction Undertaking, $ -- ; -
- -J
"- - f
John Smith, et als., Defendants, j
We, John Doe, as principal, and - , as surety, jointly and severally
undertake to said John Smith, in the sum of - dollars, to secure him
all damages he may sustain, if it be finally decided that the injunction in
this action ought not to have been granted.
This - day of - , A. D. 18 . JOHN DOE, Principal,
-- , Surety.
The above undertaking and surety approved by me, this - day of
- , 18. - . Clerk.
File precipe with clerk to issue order of injunction.
ORDER OF INJUNCTION.
[Form 59. 5577.]
The State of Ohio, - County, ss.
To the Sheriff of said County, Greeting:
Whereas, in the action of John Doe against John Smith and others, pend-
ing in said court, an injunction has been granted against said John
Smith, whereby the said John Smith is commanded, restrained, and en*
GARNISHMENT. 75
1 from negotiating, or in any nrny transferring, before the enme shall
become due, or until after the determination of the proceedings in attach-
ment and garnishment in said action, the certain promissory not--, in
substance as follows: [Here give sufficient description of same.] You will
forthwith notify said John Smith that ho U hereby commanded accord-
ingly ; and make due return of this writ.
In witness whereof, I have hereunto set my hand and the seal of said
court, this day of , A. n. 18 .
[SEAL OF COURT,] , Clerk.
Disobedience of the injunction by the party enjoined is punishable
as a contempt of court.
76 CODE PRACTICE AND PRECEDENTS.
CHAPTER V.
RECEIVER IN ATTACHMENT.
1. The officer who attaches property, as has been stated, has, when
no receiver is appointed, all the powers, and may perform all the duties
of a receiver appointed by the court or judge, and may, if necessary,
commence and maintain actions in his own name, as such officer ; and
he may be required to give security other than his official under-
taking
2. Appointment of receiver. SEC. 5543. The court, or a judge thereof,
in vacation, in cases of attachment, may, on the application of the
plaintiff, and on good cause shown, appoint a receiver, who, before he
enters upon.his duties, must be sworn to perform them faithfully, and
execute an undertaking to such person, and in such sum as the court
or judge shall direct, to the effect that he will faithfully discharge the
duties of receiver in the action and obey the orders of the court therein.
5539-5542.
3. Wlio not eligible. No party, attorney, or person interested in an
action, shall be appointed receiver therein, except by the consent of
the parties.
4. Whom to notify of appointment. The receiver must forthwith
notify, in writing, or in print, the persons who are indebted to the
defendant in attachment, of his appointment, personally, or by copy
left at residence ; and, from the date of such service, the debtors shall
be liable to the plaintiff in attachment for the amount of money and
credits of the defendant in attachment in their hands, or due from
them to him, and shall account therefor to the receiver. 5541.
5. Duties and powers of receiver. The receiver shall take possession
of all notes, due bills, books of account, accounts, and all other evi-
dences of debt, that have been taken by the sheriff or other officer as
the property of the defendant in attachment, and shall proceed to set-
tle and collect the same, and, for that purpose, may commence and
maintain actions in his own name, as such receiver ; but, in such ac-
tions, no right of defense by the parties sued shall be impaired or af-
fected. Their rights of defense will be as complete as if suit had
been brought by the attachment defendant. 5541.
6. A receiver is the officer of the court; and, as the court can not be
sued, neither can its agent, whose acts, subject to its approval, are the
RECEIVER IN ATTACHMENT. 77
acts of the court. This is true of receivers, generally, except that, by
statutory provision iu Ohio, a receiver of a railroad company, ap-
pointed by a court of the state, may be sued in its courts, without first
obtaining leave to sue him from the court which appointed him.
10. But a receiver of a railroad company, appointed by a fed-
eral court in this state, can not be sued, as such, without permis-
sion of the court which appointed him. Persons having causes of ac-
tion against a receiver intervene by petition, stating their cause of
action or claim, in the court and in the cause in which such re-
ceiver has been appointed. A receiver can not of legal right main-
tain, in his own name as such, an action in another state than that
in which he is appointed, though, in some states, receivers appointed
in other states may maintain suits, as such, by comity. The legal
title to, or ownership of, the subject over which a receiver has power is
not in him ; for it is not in the court appointing him, and of which he
is the mere hand. The court which appoints a receiver may, in it?
discretion, authorize third persons to sue him as such, but this right
should not be granted except in special cases.
8. A sheriff's official bond cover* property coming into his hands in
attacliment, his sureties therein being liable upon the same; but if, for
special reason?, it is deemed best, the plaintiff in attachment may file
a motion in the cause to require the sheriff to give security other than
his undertaking. 5544. On such undertaking, it would seem his
official sureties would not be liable.
MOTION TO REQUIRE SHERIFF TO GIVE ADDITIONAL UNDERTAKING
IN ATTACHMENT.
[Form 60. 5543.]
Court of Common Pleas of - County.
Doe. Plaintiff, ) M<jtion ^ Hequire Sheriff to Give Ad(Ji .
John Smith et als., Defendants. ) tional Undertaking.
The plaint iff moves the court to require the sheriff, G. II., who has at
tached nnd holds as such sheriff* the property and Hlocts of said defend-
ant, John Smith, to give security herein, other than his official under-
taking, to secure the value of the property, etc , so by him attached, etc..
heroin. EDWARD COKE, Attorney for Plaintiff.
A copy of the motion should bo served upon the sheriff.
78 CODE PRACTICE AND PRECEDENTS
ORDER OF COURT REQUIRING SHERIFF TO GIVE OTHER UNDER-
TAKING.
[Form 61. 5543.]
John Doe, Plaintiff, } r\ A D ou * /" rwi.
vr [ Order to Require Sheriff to Give Other
1.1 O. . I ViS. r YY T . -I
John Smith et als., Defendants. j
In this cause, the motion heretofore filed herein to require the sheriff
G. H., to give security herein other than his official undertaking, came on
to be heard by the court, which, being fully advised in the premises, doth
grant said motion ; whereupon, it is ordered by the court, that said G. H.,
as sheriff of said county, within days from the date of the entry
of this order, give an undertaking, with sufficient surety or sureties, to the
approval of the court, to the plaintiff herein, John Doe, or whom it may
concern,* conditioned that he will faithfully discharge all his duties and
obligations under the orders of attachment [and garnishment] herein, and
obey and perform all the orders of the court in such behalf made and to'
be made in this cause.
* Note "whom it may concern." If the plaintiff fail in the action, and
judgment be rendered for the defendant, the defendant will be the party in in-
terest in such undertaking, and entitled to sue upon it in his own name; and
this he might do, perhaps, if executed only to the plaintiff in attachment.
SPECIAL UNDERTAKING OF SHERIFF IN SUCH CAGE.
[Form 62. 5543.]
In the Court of Common Pleas of County, Ohio.
John Doe, Plaintiff, |
No. .] vs. I In Attachment.
John Smith, John Jones, and Hugh j Special Undertaking of Sheriff.
Evans, Defendants. J
In compliance with the order of the court heretofore made in this
cause, we, G, II., as sheriff of said county, and and as his sure-
ties in this behalf, jointly and severally, undertake unto said plaintiff, John
Doe, and whom it may concern, that G. II., as such sheriff, shall faithfully
discharge all his duties and obligations under the orders of attachment
[and garnishment] herein, and obey and perform all the orders of the
court in such behalf, made and to be made in this cause.
This day of , A. D. 18 G. H., Sheriff.
, Surety.
, Surety.
RECEIVER IN ATTACHMENT. 79
JOURNAI KNTKY OF APPROVAL.
[Form 63. 5543.]
John Doe |
No. .] v*. V Approval of Sheriffs Special Undertaking.
John Smith el als. )
This day camo G. II., sheriff, etc., and presented to the court his under-
taking, other than his official undertaking, with and his sureties,
to the plaintiff, John Doe. and whom it may concern, conditioned as re-
quired by the former order of this court, which undertaking, and the suf-
ficiency of such sureties, are hereby accepted and approved by the court;
and the clerk is ordered to take and retain the custody of the same.
1. Motion for the appointment of receiver. When it is deemed best
to have a receiver appointed, a motion in the cause should be filed,
asking for such appointment.
'2 IT/io to name receiver. The party who moves for the appointment
of a receiver is granted the right to nominate him. He must be a
proper person and legally qualified to discharge the trust; hut the
court receives such nomination as merely advisory.
">. It has the full and sole power of appointment, and may select
whom it choses.
\i>t!ri- <>f application. The court, in its discretion, or judge, in va-
ca'i'Hi. may require the plaintiff in attachment to serve notice of the
application for the appointment of a receiver upon the defendant in
attachment, and garnbhees, if there be such.
[Form 84. 5539.]
Court of Common Pleas of County.
John Doe, Plaintiff, |
No. .] w. > Motion for Receiver.
John Smith et als., Defendants. )
I'h" plaintiff asks for the appointment of a receiver in this case of the
property and effects of , attached herein, etc.
EDWARD COKR, Attorney for PhiintitF
ORDER TO NOTIFY DEFENDANT OF THE MOTION.
[Form 65.]
John Doe ]
No. .] w. > Order to Notify, etc., for Appraisement of Receiver.
John Smith et als. j
In this ca;.e it is ordered by the court [or, by X. Y., Judge of said court]
that the plaintiff, in writing, notify the defendant in attachment, . of
the time and plaje of hearing the motion for the appointment of a re-
80 CODE PRACTICE AND PRECEDENTS.
ceiver herein, which notice shall be given days before the hearing of
Buch motion.
If granted by a judge in vacation, and such order is made, he should
sign it. Such order is to be properly entered by the clerk upon the
journaV
[Form 66. FORM OP NOTICE.]
Court of Common Pleas of County.
John Doe, Plaintiff, ) v * TV. o -*v. r -w *
^ -i ' I Notice to John ISmith of Motion to Ap-
John Smith et afs., Defendants. | P oint Receiver.
The said defendant, John Smith, will take notice that the said plaint-
iff, on the day of , A. D. 18 , at o'clock M., or as soon
thereafter as counsel can be heard, will apply to the court, at the court-
house in said couuty [or, to X. Y., in vacation, a judge of said court at
] for the appointment of a receiver of the property and effects at-
tached in this action, etc., for which his motion has been filed in said
court.
[Date.'] EDWARD COKE, Attorney for Plaintiff.
1. How served and service proven. A copy of the notice should be
served personally upon the defendant whose property has been attached,
and for which a receiver is asked, or left at his usual place of resi-
dence. Service should be proved by the affidavit of the person mak-
ing it.
ORDER APPOINTING RECEIVER.
[Form 67. 5589.]
John Doe j
No. .] vs. > Order Appointing Thomas Wilson Receiver, etc.
John Smith et als. J
This day this cause came on to be heard upon the motion of the
plaintiff for the appointment of a receiver of the property and effects of
the defendant, John Smith, attached herein, and was duly heard by the
court [or, by X. Y., a judge of said court, in vacation] upon the evidence
adduced and the arguments of counsel; on consideration whereof, and
the court [or, said judge] being fully advised in the premises, it is ordered
that Thomas Wilson be, and he hereby is, appointed receiver herein; and
before entering upon his duties he shall take an oath faithfully to perform
them, and execute, with surety approved by the court [nr, judge; or,
<)lerk], an undertaking to said plaintiff, John Doe, for the benefit of whom
it may concern, in the sum of dollars, conditioned according to law ;
whereupon said receiver shall take possession of all notes, due bills, books
of account, accounts, and all other evidences of debt that have been taken
by the sheriff [or other attaching officer] as the property of the defendant
RECEIVER IX ATTACHMENT. 81
in attachment herein, John Smith, and shall proceed to settle and collect
the same, and, for that purpose, he may commence and maintain actions
in liis own name, as such receiver; and he shall hold all money collected
t'V him, and property which conies into his hands, subject to the order of
the court. He shall receive from the sheriff [r attaching officer], who is
hereby required to deliver the same to him, all the property attached
li.-rcin and in his possession; and said receiver is further required, forth'
with, to give written or printed notice of hi.s appointment as receiver
herein, to all the persons indebted to the defendant in the attachment;
and to abide and perform all the orders of the court made upon him
herein.
[And thereupon came said Thomas Wilson, appointed receiver herein,
and was duly sworn to faithfully perform his duties as receiver in this
cause, and gave his undertaking, conditioned according to law, in the sum
of - dollars, with - and - as his sureties, which undertaking and
sureties are approved by the court [or, by me, in vacation, as a judge of
said court]. The clerk of this court shall receive and retain the custody
of such undertaking until the further order of the court.
UNDERTAKING OF RECEIVER.
[Form 68. 5589, 5539.]
Court of Common Pleas of - County.
_ John Doe, Plaintiff; \ Undertaking of Thomns Wilson,
John Smith and others, Defendants, j Receiv ".: in the Sum of * --
i Thomas Wilson, having been duly appointed and sworn ns receiver
in this action of the attached property and effects of John Wilson, attach-
ment defendant herein, with - and - as his sureties, he and they
hereby, jointly and severally, obligate themselves and undertake to said
John Doe, for the benefit of whom it mny concern, in the sum of -
dollars, that he, said - , will faithfully discharge all and singular his
duties as such receiver herein. - ,
[Form 89.]
The within undertaking and sureties approved by me, this - day of
- , A. o. 18 . - , Judge [or, Clerk].
1. Where kept. Such undertaking should be deposited with the clerk,
and its custody retained by him.
2. Receipt of receiver to tkeriff. When the sheriff or attaching officer
It 'livers the attached effects to the receiver, he should take the receiv-
er's receipt for the same, and make his return to the court accordingly.
6
82 CODE PRACTICE AND PRECEDENTS.
Form 70.]
Court of Common Pleas, County.
John Doe, Plaintiff, |
No. .] vs. > Report and Return of Sheriff
John Smith et als., Defendants, j
In this case I, on the day of , A. D. 1,8 , delivered the follow-
ing property and effects attached herein and held by me, as sheriff, as the
property of said defendant, John Smith, to Thomas Wilson, receiver
herein, and have taken and held his receipt for the same,
List of attached effects delivered : [Here specify tkem.~$
[Date.] G. H., Sheriff of County.
1. Duties of receiver are the same as those of the sheriff, had no re-
ceiver been appointed. It is his duty to collect the assets in his
hands and hold the money realized by him, as the sheriff would do, to
abide the event of the action. He can not invest money in his hands
at interest, except by the consent of the parties in interest; and, for
his protection, he should obtain an order of the court authorizing him
to do so.
His reports, etc., to the court. He must report to the court his ac-
tion as such receiver, when required, and, at the close of his trust,
should make a final report.
2. Receiver's compensation. In his report, he should state the amount
of His claim for his services as receiver, which amount will be ap-
proved, or his compensation .fixed, by the court. When his final re-
port is approved aud he has fully executed his trust, he should have
an entry made upon the journal of the court, approved by the judge,
releasing and discharging him from all liability, and finding that the
conditions of his undertaking have been fully complied with, and the
same satisfied.
ACTION BY RECEIVER AGAINST DEBTOR OP ATTACHMENT DEFEND-
ANT.
[Form 71. g 5540, 5590. ]
The State of Ohio, County Court of Common Pleas.
Thomas Wilson, as Receiver, etc., Plaintiff, )
No. .] vs. > Petition.
Richard Roe, Defendant. j
Thomas Wilson, the plaintiff, says that he was, on the day of ,
A. D. 18 , duly appointed and qualified as receiver, and is now acting as
such, by the Court of Common Pleas of County, Ohio, in a cause
pending in said court wherein John Doe is plaintiff und John Smith,
John Jones, and Hugh Evans are defendants, it being cause No. in
RECEIVER IN ATTACHMENT. 83
said court, and in which action the property, etc., of said John Smith; in-
clu<ling the 8uV>ject-matter of the cause of action, hereinafter mentioned,
has been duly attached, and is in the possession of the plaintiff, as such
receiver.
And the plaintiff further says that there is due to him, as receiver as
aforesaid, from the defendant, Richard Roe, on the account of said Rich-
ard Koe to said John Smith, a copy of which account is hereto attached
ami made part hereof, marked "A," the sum of dollars, with interest
from tin- day of , A. D. 18 .
Whereupon, he, as such said receiver, asks for a judgment against
said Richard Roe for the sum of dollars, with interest from the
day of , A. D. 18 ; for costs, etc.
EDWARD COKE, Attorney for Plaintiff!
"A."
Copy of account attached to and made part of the within petition.
[Here state the account and attack it to the petition.]
Verification of petition, precipe for summons, indorsement upon
summons, as in Forms' 1 and 2.
.\ fl fr. In such receiver's action, all provisional remedies, as by attachment,
garnishment, arrest of debtor, etc., may bo obtained, in proper case, as fully
as if the defendant in attachment had brought the action before the attachment
was obtained. Before resorting to such remedies, however, it will bo best for
the receiver to obtain a special order of the court authorizing him to institute
and carry on such proceedings.
A sheriff, acting as receiver, has the same powers as a receiver duly
appointed by the court.
The order authorizing receiver so to sue may be as follows :
[Form 72.]
John Doe ] Order authorizing Thomas Wilson,
No. .] ft. > Receiver, to Sue, etc., Richard
John Smith et als. ) Roe.
In this cause, for good cause shown, the court doth authorise said
Thomas Wilson, as receiver herein, to institute and maintain nn notion
gainst Richard Rote upon the account alleged to be due from said Richard
Roe to laid John Smith, and in said action, to take such orders of attach-
ment, garnishment, and orders of arrest, etc., as may, in the judgment of
said receiver, be deemed proper ; for the necessary costs and expenses of
such action and proceedings, the fund in the hands of said receiver shall
be chargeable.
84 CODE PRACTICE AND PRECEDENTS.
REPORT OF RECEIVER TO THE COURT.
[Form 73. 5542.]
Court of Common Pleas of County.
John Doe, Plaintiff,
No. .] vs.
John Smith et als., Defendants.
Final [or, first, second, etc.~\ report of Thomas Wilson, receiver herein,
to the court:
The receiver charges himself with the following effects of the said John
Smith, received by him from E. H.. sheriff of said county:
[Here give list and descriptions, sufficient to identify, of effects that came into
receiver's hands from all sources.]
I have realized upon the same the following sums of money, from the
following named persons, at the times hereinafter stated:
[Here specify same.~\
No more than the above sums of money could be realized by me than
as above stated.
I report the following assets worthless:
[Here give list and amounts.]
I credit myself as follows :
First, the costs paid in my appointment, etc. [here give items']] also all
outlays [here give items].
I charge myself as receiver herein the sum of dollars.
[If special services have been rendered, enumerate (hem, e/c.]
All of which is respectfully reported and submitted by me to tho
court.
[Dale.] THOMAS WILSON, Receiver.
1. No affidavit -necessary. As a receiver is a sworn officer of the
court, he need not make affidavit to the correctness of his report, as it
is made under his oath as receiver.
2. Report may be excepted to. Any person interested may file ex-
ceptions to the report of the receiver, specifying what is excepted to.
If such interested person is not a party to the action, he must ask and
obtain leave of the court to file such exceptions.
CONFIRMATION OF RECEIVER'S REPORT.
[Form 74.]
John Doe | Confirmation o f Report of Thomas
*- -J T . Q v f:, . , Wilson, Receiver.
John Smith et als. j
This day this cause came on to be heard upon the report heretofore
filed herein of Thomas Wilson, receiver; and the same being carefully
examined by the court, is hereby approved and confirmed, he being al-
lowed dollars for his services as receiver. And the court finds that
RECEIVER IN ATTACHMENT. 85
there is in the possession of said Thomas Wilson, as such receiver, the sum
of dollars, which he shall hold and pay over as hereafter ordered by
this court
If tbo report bo approved only in part, and disapproved in part, the
order should specify what is disallowed; and the receiver may be required to
i-tate the account anew according to tbe findings ot tbe court, when tho order
iiBrmation will be made upon tbe restated account, or amended report.
ORDER OF COURT REQUIRING RECEIVER TO INVEST THE MONEY
IN His HANDS AT INTEREST.
[Form 75. g 5501.]
John Doe )
No. .] v9. > Order for Receiver to Invest Fund in His Hands.
John Smith et als. )
I'.y tin- consent of all the parties to this action interested in the same,
giv.-u in open court, it i* ordered by the court that Thomas Wilson, the
receiver herein, invest, at interest, the sum of dollars, now in his
hamU as such receiver, for n time not exceeding months, and for
which he is to lake good and sufficient security.
-When the receiver has complied with ouch order, he should report the
fuel tu tln I'uii't, ppt-ci Tying to whom, and fur what time, and upon what terms
tbe loan was made, nnd the j-ecurity taken by him for it< repayment.
He then should obtain an entry of approval and confirmation by tbe court
of his investment, which may bo as follows:
[Form 78.]
In tho Court of Common Pleas of County.
John Doe, Plaintiff, I Rfport of Rcceiver Thomaa
John Smith et'als., Defendants. ) of !v--lment of Fund.
I respectfully report to the court, that, in compliance with its order
herein, I have invested the sum of dollars, by loaning the same to
, with and his sureties; for which I have taken their joint
and several promissory note, payable to my order, as receiver in this
cause, months after date, with interest from date at the rate of
per cent per annum, and dated tho day of , A. D. 18 .
Respectfully submitted, THOMAS Wn_sox, Receiver.
AlTUOVAL AMD CONFIRMATION OF RECEIVKIl'.S REPORT OF INVEST-
m
[Form 77.]
jj o ( I Approval and Confirmation of the Report of Invest-
John Smith et als. ) ment b * ihe Receiver - Thomas Wilson.
This day the report filed herein by Thomas Wilson, receiver, etc., wa
86 CODE PRACTICE AND PRECEDENTS.
carefully examined and considered by the court ; on consideration whereof
the court doth approve and confirm said report of investment of the said
sum of dollars, and the security by the receiver taken for the same.
Note. Not until after the cause (Form 1) is disposed of by final judgment,
and payment of the fund to the party thereby entitled to the same, accord-
ing to the order of the court, will the receiver, or sheriff acting as receiver, be
discharged from final liability for the fund, etc., in his hands.
AKKEM AM BAIL. 87
CHAPTER VI.
ARREST AND BAIL.
When practical. If sufficient cause therefor exists, the plaintiff in
mi action may cause the arrest of the defendant. As the plaintiff will
be liable, in the first instance, for the defendant's board and keeping
in the jail, this remedy is only practical when the plaintiff feels as-
sured that the defendant is able to discharge the obligation and costs,
and that his arrest will result in obtaining payment of his demand.
Females can not be arrested for debt.
Comtitutionul provision. No person shall be imprisoned for debt iu
any civil action, on niesne or final process, unless in cases of fraud.
Art. I., 15, Constitution of 1851.
(a) This constitutional provision clearly contemplates legislation
before any arrest can be made iu civil actions, though fraud may
have intervened. Courts, therefore, whether of general or limited
jurisdiction, have now no common-law power to authorize arrests in
such cases, and the power to do so must have been conferred by ex-
press legislation ; in other words, this provision of our state constitu-
tion does not execute itself, tipice v. Steinruck, 14 O. S. 213-218.
(6) The provision of the act of April 7, 1863 (60 O. L. 66, 2),
authorizing the arrest on execution of a party against whom a fine
has been adjudged and his imprisonment until such fine be paid, or he
IM- otherwise discharged according to law, is not unconstitutional. In
dl, 26 O. 8. 195.
(e) And it would seem that a peremptory order of a court upon a
party to pay a sum of money can not be construed, upon its non-pay-
ment, into a contempt of the court, and the party imprisoned for its
non-payment, unless it be shown that he has the money, or is pe-
cuniarily able to comply with the order of the court, or has voluntarily
disabled himself .from doiug so by putting his money or property out
of hia hands to defeat such order. Union Bank of Rochester v. Union
Ikmk of Sandutky, 6 O. 8. 262.
(<f) The provision in the bastardy act (29 O. L. 433) directing the
putative father to be committed to jail in default of giving security to
perform the order of the court charging him with the maintenance of
his illegitimate child, is not in conflict with this section. The sum in
which the defendant is charged with the maintenance of the child, is
88 CODE PRACTICE AND PRECEDENTS.
not a debt within the meaning of this provision of the constitution.
Musser v. Stewart, 21 O. S. 353 ; Perkins v. Mobley, 4 O. 8. 663 ;
Hawes v. Cooksey, 13 O. 242-245.
Statutes in relation to arrest and bail. In view of the strictness re-
quired in such proceedings, it is best that the practitioner should have
them before his eyes, when he proposes to act upon the authority of
these statutes.
Arrest in civil action only as prescribed by statute. SEC. 5491. A de-
fendant in a civil action can be arrested before judgment in the man-
ner prescribed by this title, and not otherwise ; but this provision shall
not apply to proceedings for contempt, nor to actions prosecuted or
judgments obtained in the name of the State of Ohio to recover fines
or penalties.
By whom and ivhen an order of arrest may be made. SEC. 5492. An
order for the arrest of the defendant shall be made by the clerk of the
court in which the action is brought, when there is filed in his office
an affidavit of the plaintiff, his authorized agent or attorney, made
before a judge or clerk of any court of the state, or a justice of the
peace, stating the nature of the plaintiff's claim, that it is just, and
the amount thereof, as nearly as may be, and establishing one or more of
the following particulars :
1. That the defendant has removed, or begun to remove, any of his
property out of the jurisdiction of the court, with intent to defraud
his creditors.
2. That he has begun to convert his property, or a part thereof,
into money, for the purpose of placing it beyond the reach of his
creditors.
3. That he has property, or rights of action, which he fraudulently
conceals.
4. That he has assigned, removed, disposed of, or begun to dispose
of his property, or a part thereof, with intent to defraud his creditors.
5. That he fraudulently contracted the debt, or incurred the obli-
gation, for which suit is about to be or has been brought.
6. That the money, or other valuable thing, for which a recovery is
sought in the action, was lost by playing at any game, or by means
of a bet or wager. The affidavit shall also contain a statement of the facts
claimed to justify the belief in the existence of one or more of such par-
ticulars.
(a) A notary public is not named as an officer before whom such affi-
davit for arrest may be made ; and he can not exercise, under 118,
such power. State v. Lee, 21 O. S. 662 ; and 4956. where, in part
ARREST AND BAIL. 89
throe (embracing 5492) of this revision, special provision is made as
to service, pleadings, competency of witnesses, or in any other respect,
inconsistent with the general provisions in this title, the special pro-
vision shall govern, unless it appears that the provisions are cumulative.
(6) The plaintiff is to say, if he does not know the precise amount,
nearly as he is able to state, and which amount named is not
greater than the amount justly due him from the said defendant."
Under the constitution of 1802, and the statute passed under the
sunn-, an affidavit for a capias ad respondendum, describing the plaint-
iff's claim as "in or about the sum of $4,930," was held not to be
sufficiently certain. Herf v. Shuke, 10 O. 263.
(c) An order of arrest, which is based on an affidavit which does
not contain a statement of the facts claimed to justify the affiant's
belief is void for want of legal authority in the officer to issue it, and
an arrest under it is illegal. Spice v. Steinruck, 14 O. S. 213.
(d) But a statement of facts in an affidavit which has a legal ten-
dency to induce such belief, though such facts may be slight and in-
conclusive, will, nevertheless, sustain the order until it is reversed
upon error, or set aside, which it will be upon motion ; the issuing of
the order under such circumstances is regarded as a mere error of judg-
ment. Ib.
(e) The winning of money by any species of gaming, or gambling,
or by means of a bet or wager, is construed to be ipso faetn fraudu-
lent by this section uuder art. 1, sec. 15 of the Constitution of the
state. The question has not arisen before the Supreme Court. Such
winning may, in certain cases, be fraudulent in fact
Not to be i*ued unless bond be given. SEC. 5493. The order of arrest
shall not be issued by the clerk until there is executed, by sufficient
sureties of the plaintiff, a written undertaking, to the effect that the
plaintiff shall pay to the defendant all damages, not exceeding double
the amouut of the plaintiff's claim stated in the affidavit, which he
may sustain by reason of the arrest if the order prove to have been
wrongfully obtained.
(a) In an action upon such undertaking, if the arrest has been
wrongfully obtained, the arrested defendant's recovery would be lim-
ited to double the amount of the plaintiff's claim, whatever the proof
might be as to the extent of such damages beyond double such
amount. Of course, his recovery might be less, according to his actual
damages; but if the order of arrest was maliciously, and without
probable cause, sued out by plaiutiif, the arrested defendant's damages
90 CODE PRACTICE AND PRECEDENTS.
in such action would not be limited by the amount specified in such
undertaking, that being ex parte. See ATTACHMENT ; Pettit v. Mercer y
8 B. Mon. 51 ; Drake on Attachments, sees. 152-183 ; Tomlinson v.
Warner, 9 O. 103.
When it may issue. SEC. 5494. The order may be made to accom-
pany the summons, or at any time afterward before judgment.
To whom order of arrest delivered, and its contents. SEC. 5495. It shall
be addressed and delivered, with a copy of the affidavit, to the sheriff,
and shall specify the names of the parties, the court in which the ac-
tion is brought, and the amount of the plaintiff's claim stated in the
affidavit, and shall require the sheriff to arrest the defendant, and
hold him in bail in double that sum, and to make return of the order
on a day to be named therein, with the undertaking of the bail, if any
be given.
(a) The name must agree in sound (idem sonans) with the name
of the party. In Smith v. Madison, 7 O. R. (2 pr.) 236, the writ
describes the plaintiff as Brazilla Smith, instead of Barzilla Smith, and
J. P., for justice of the peace, in designating the officer taking the
affidavit. The writ was held to be sufficient.
(6) The insertion of the mere initial letters of the plaintiff's Christian
name is a fatal defect in the description of the person. Herf v.
Shulze, 10 O. 263. And the defendant's full name should be given, if
known, and if not the fact stated, and such description of him as' to
identify him and give him some assumed name. Where he has con-
tracted in writing by the initials of his Christian name, it will be suf-
ficient to so designate him, if his full name be unknown, and the fact
stated in the affidavit for the order of arrest.
(c) The copy of the affidavit delivered to the sheriff with the order
rf arrest, will enable him to determine if a legal ground to justify
him in making the arrest exists. If it does not, he should not exe-
cute the order ; as to do so would render him liable to an action for
false imprisonment by the party arrested, and he can not be made
liable in damages to the plaintiff for refusal to arrest upon such order
based on an affidavit stating no legal ground for arrest.
Where returnable. SEC. 5496. The return day of the order of arrest,
when the order is issued at the commencement of the action, shall be
the same as that of the summons ; and when issued afterward it shall
be fifteen days after it issued.
(a) The return day of the order, except when issued after the com-
mencement of the action, whica is fifteen days, unless the last day be
ARREST AND BAIL. 91
Sunday, when it la returnable on Monday, the sixteenth day, is ihe
same as that on summonses issued and to be served within the county,
i. e, the tecond Monday after it is issued, as orders of arrest can not be
issued to other counties.
How executed. SEC. 5497. The sheriff shall execute the order by
arresting the defendant and delivering to him a copy thereof and of
the affidavit; and if the defendant can not be found before the return
day the plaintiff may have further orders, without other affidavit or un-
dertaking, until the defendant is arrested ; but an order of arrest shall
not be issued to any other than the county in which the action is
brought
(a) The sheriff may, as it is for alleged fraud, arrest the defendant
upon such order anywhere within the state, but can not break and
enter the defendant's dwelling-house to do so; nor can such arrest be
made on Sunday or the Fourth of July. See 5457, 5458.
What to be done w_Wt defendant. SEC. 5498. The defendant, when
arrested, shall be committed to the jail of the county, and kept in cus-
tody until discharged by law.
ndant may deposit money and be discharged. SEC. 5499. The
defendant may, before or after giving bail, deposit with tjie sheriff, or
in court, the amount of money specified in the order of arrest ; where-
upon, he shall be discharged, or his bail, if any has been taken, shall
be released.
M itey deposited to be paid into court. SEC. 5500. The sheriff shall
pay into court the money received by him in lieu of bail ; and if re-
ceived in vacation he shall pay it on the first day of the next term ;
and if received during the term, he shall pay it immediately.
Court to have control of the money. SEC. 5501. The court shall make
proper orders for the safe-keeping of money deposited in lieu of bail,
and may direct the sheriff to keep the same, and, after final judgment
in the action, shall order it to be paid to the party entitled thereto,
according to the result.
Slieriff and wretiet liable for the money. SEC. 5502. Money so de-
posited with the sheriff, or directed b> the court to be kept by him,
shall be held upon his official responsibility ; and he and his sureties
shall be liable, and may be proceeded against for any default in rela-
tion thereto, as in other cases of delinquency.
K Vim and how bail to be taken. SEC. 5503. Bail may be given by the
defendant on his arrest, or at any time afterward, before judgment;
it shall be done by causing sufficient bail to execute a written under
92 CODE PRACTICE AND PRECEDENTS.
taking to the plaintiff, in the prese nee of the sheriff, to the effect that
if judgment be rendered in the action against the defendant he wHl
render himself amenable to the process of the court thereon ; and the
undertaking, when accepted, shall be returned to the clerk's office,
and the defendant shall be discharged.
(a) The bail on an undertaking under this section is exonerated if
judgment be rendered for the defendant on the merits, although upon
a second trial had as a matter of right, or appeal, or upon a new trial
after the reversal of such judgment in favor of -the defendant by pro-
ceedings in error, a judgment be finally rendered in the action
against the defendant arrested. Duncan v. Tindall, 20 O. S. 567.
In such case, when the second trial as a matter of right (now no
longer allowed in this state), or the appeal, or proceedings in error are
perfected, new proceedings in arrest should, be instituted for the pur-
pose of obtaining such bail.
In attachment cases, the law provides that if final judgment be ren-
dered in favor of the defendant in attachment, the property attached
shall be delivered to him. Yet, if upon a new trial after a reversal
of the judgment by proceedings in error, such property has not been
so delivered, and the plaintiff obtains a judgment against the defend-
ant in attachment, the attachment is not discharged or such prop-
erty released from it. Danford v. Carter, 4 Iowa, 230.
Plaintiff may object to the bail. SEC. 5504. The plaintiff, or his attor-
ney, may object to the bail for insufficiency, at any time within ten
days after the undertaking is given, by serving upon the sheriff a
written notice that he does not accept the bail ; a failure to serve such
notice shall be deemed an acceptance of the bail, and the sheriff shall
be exonerated from liability; and when the undertaking is given
after the return of the order of the arrest, the plaintiff shall have notice
thereof.
Notice of justification. SEC. 5505. The sheriff, or the defendant,
may within ten days after the receipt of such notice, give to the
plaintiff, or his attorney, notice in writing of the justification of the
same or other bail before a judge or clerk of the court in which the
action is brought, a probate judge, or a justice of the peace, at a time,
not less than/ve nor more than ten days thereafter, and a place, to be
specified therein ; and if other bail be given, a new undertaking must
be executed.
Manner of justification. SEC. 5506. For the purpose of justification,
each of the bail must attend before the proper officer, at the time and
ARREST AND BAIL. 93
place mentioned, and may be examined on oath touching his suffi-
ciency, in such manner as the officer deems proper.
Allowance of bail. SEC. 5507. If the officer find the bail sufficient,
he shall indorse his allowance on the undertaking, and cause it to be
til.-il with tlie clerk ; and the sheriff shall thereupon be discharged from
liability.
Mlten sheriff liable as bail, and how discharged. SEC. 5508. If, after
tin- arrest of the defendant, he escapes, or be rescued, or bail be not
tukt 'ii, or l>e adjudged insufficient, or a deposit be not made, the sheriff
shall l>e liable as bail ; but he may discharge himself from liability by
putting in sufficient bail at any time before judgment.
(a) In an action against a sheriff for the escape of a debtor impris-
oned under an order of arrest, a defense that the escape occurred on
account of the insufficiency of the county jail can not be sustained.
Kepltr v. Barker, 13 O. 8. 177.
(6) And the commissioners of the county are not liable, in such
case, to the sheriff for not providing a sufficient jail. The Board of
Commissioners of Brown Co. v. Butt, 2 O. 348, overruled by Miyhel* v.
Commissioners of Hamilton Co., 7 O. S. 109.
(c) In an action against the sheriff for permitting the escape of a
prisoner in custody under civil process, and the prisoner was by law
privileged from arrest, the privilege is personal to the party to whom
it appertains, and can not be made available to the sheriff in bar of the
action Gill v. Miner, 13 O. 8. 182.
SEC. 5509. See pott ARREST AFTER JUDGMENT.
Bail adjudged insufficient liable to sheriff. SEC. 5510. The bail ad-
judged insufficient shall be liable to the sheriff for the damages he may
fusbuu by reason of the insufficiency.
Liability of bail, how fixed. SEC. 5511. The liability of the bail shall
be fixed iu the same manner provided in section 5509 for fixing the
liability of the sheriff as bail [i. t. the sheriff must first return the defendant
" not found "] ; and the bail can be proceeded against in an action only.
(a) Where suit is brought on an undertaking given before judg-
ment in a civil action for discharge from arrest, the court in which the
cause u pending has power, at any time before judgment is rendered on
the undertaking, to grant the bail further time in which to surrender
the judgment debtor. Wright v. Coller, 35 O. 8. 131. The action was
brought against the bail after judgment had been rendered in the
plaintiffs action against him, for the plaintiff.
94 CODE PRACTICE AND PRECEDENTS.
Surrender of defendant a discharge of bail. SEC. 5512. A surrender
of the defendant to the sheriff of the county in which he was arrested,
with a delivery of a certified copy of the undertaking of the bail,
whether such surrender is made by the defendant himself, or by his
bail, shall discharge the bail ; such surrender may Le made at any
time before the return day of the summons in an action against the
bail ; the sheriff shall give to the bail a written acknowledgment of the
surrender, and hold the defendant in his custody, upon such copy of
the undertaking of bail, as upon an order of arrest ; and the clerk of
the court shall, on the production to him of the sheriff's acknowledg-
. ment of the surrender, enter on the undertaking an exoneration of the
bail. -
(a) See note a, to section 5511.
Bail may arrest defendant. SEC. 5513. The bail may, for the pur-
pose of surrendering the defendant, arrest him at any time and place
before he is finally charged, or, by a written authority indorsed on a
certified copy of the undertaking, may empower any person of suitable
age and discretion to do so.
For what causes bail may be exonerated. SEC. 5514. The bail shall
be exonerated by the death of the defendant, or by his imprisonment .
in a state prison, or by his legal discharge from the obligation to render
himself amenable to the process of the court, or by his surrender to
the sheriff of the county in which he was arrested in the execution of
such process, within the time fixed in section 5512, or within such further
time as the court in which the action is pending may allow.
Note. Can not surrender and be discharged after the judgment against bail.
Whetstone \. Riley, 7 O. S. 514. /y^
Bail may be substituted for a deposit of money. SEC. 5515. If money
be deposited by the defendant, as provided in section 5499, bail may
be given and justified, upon notice, as prescribed in section 5505, at
any time before judgment; and thereupon the court in which the
action is brought, on being satisfied that the bail has been given and
adjudged sufficient shall direct the money deposited to be refunded to
the defendant, and it must be refunded accordingly.
Wlien proceedings against bail may be stayed, and bail discharged. SEC.
5516. If, at any time before or after judgment against the bail, pro-
ceedings in error be commenced on the judgment against the principal,
in the suit in which their undertaking was taken, the court may, on
motion, stay proceedings against such bail for a reasonable time, on
payment by them of all costs that have accrued against them ; and if,
on such proceedings, the judgment against the principal be reversed,
ARREST AND BAIL. 05
and the principal be discharged from such suit, the bail shall be dis-
charged from thr undertaking.
(a) Quere t If Duncan v. Tindatt, 20 O. S. 567, will not be inappli-
cable when a judgment against the arrested defendant is merely re-
versed by a reviewing court, and the cause remanded for a new trial.
Mode of vacating order of arregt or reducing amount of Vie bail. SEC.
.V>1 1 . A defendant who is arrested may, on motion, at anytime before
judgment in the action, apply to the court in which suit is brought, if
in session, and, in vacation, to a judge thereof, or to any judge of
a court of record of the state, to vacate the order of arrest, or to reduce
the amount of the bail ; and the court or judge shall allow him such
time for preparation, and the hearing of the motion, as is just and rea-
sonable ; but reasonable notice of such motion must be given t > the
plaintiff.
Motion may be supported and opposed by affidavits. SEC. 5518. When
the motion is made upon affidavits on the part of the defendant, but
not otherwise, the plaintiff may oppose the same by affidavit", or other
evidence, in addition to the evidence on which the order of arrest via*
made
(a) All the evidence, except documentary, should be reduced to
writing, sworn to and signed by the witnesses, and presented to the
court, or judge in that form, but the court or judge may permit oral
testimony to be given instead thereof.
Jail fees, how paid. SEC. 5519. A person who causes another to bo
committed to jail under the provisions of this chapter shall be liable,
in the first instance, for the jail fees, and shall, if required by tho
jailer, pay such fees weekly in advance ; and the fees so paid shall be
part of the costs in the case.
(a) The fees for keeping prisoners in jail are fixed by the county
commissioners, not to exceed fifty cents per day. 1235.
(6) This section has no application to a case of imprisonment of a
defendant by order .of court, after conviction under the bastuni .
Hootman v. Schriner, 15 O. S. 43.
When sheriff may discluirge prisoner. SEC. 5520. The sheriff or jailer
may discharge a person imprisoned on raesue or final process issued in :i
civil proceeding, at any time when there is n > money in his hands t >
pay for the sustenance of such prisoner; or ho may detain the pris
oner, and hold the adverse party liable for such sustenance.
(a) The jailer, to exercise the right of discharge, should first notify
96 CODE PRACTICE AND PRECEDENTS.
the plaintiff that he requires the jail fees to be paid weekly, iu ad-
vance.
(6) Neither the sheriff nor county commissioners are bound to feed
an insolvent debtor iu jail. Wadsworth v. Wetmore, 6 O. 439.
If the sheriff or jailer demand from the judgment creditor the pay-
ment of jail fees weekly, in advance, and such demand is not complied
with, he may permit the prisoner to go at large. Gill v. Miner, 13
O. S. 182.
\ ,'.
WHO PRIVILEGED FROM ARREST WHO, WHEN, AND WHERE.
PRISON BOUNDS.
WJio are privileged from arrest, and when. SEC. 5457. The following
persons are privileged from arrest, viz:
1. Members, clerks, sergeants-at-arms, doorkeepers, and messengers
of the senate and house of representatives, duriug sessions of the gen-
eral assembly, and while traveling to and from such sessions, allowing
one day for every twenty-five miles of the distance, by the route most
usually traveled ; and whoever arrests any such person in violation
of this provision shall forfeit and pay one hundred dollars, to be re-
covered by civil action, in the name and for the use of the person in-
jured.
2. Electors, while going to, returning from, or in attendance at
elections.
3. Judges of the courts, while attending court, and also during the
time necessarily employed in going to, holding, and returning from
the court which it is their duty to attend.
4. Attorneys, counselors at law, clerks, sheriffs, coroners, constables,
and criers, and all suitors, jurors, and witnesses, while going to, at-
tending, or returning from court.
5. Officers and soldiers of the revolutionary war, and females, on
any mesne or final process for any debt, claim, or demand arising upon
contract.
6. Israelites, and such other persons as religiously observe the last
or any other day of the week as a day of worship, on such day, within,
going to, or returning from their places of worship, or during the time
of service, and while going to and returning therefrom.
7. A person doing militia duty under the order of his command-
ing officer, or while going to or returning from the place of duty or
parade.
(a~) See Constitution, art. 2, 12 ; art. 5, 3.
When and where arrests may not be made. SEC. 5458. No person shall
ARREST AXI> BAIL. 97
be arrested during a sitting of the senate, or house 01 representatives,
within the hall where such session is being held, or in any court of
ju>tice, during the sitting of such court, or on the first day of the
week, commonly called Sunday, or on the fourth day of the month of
July.
Doc* not extend to crimes, etc. SEC. 5459. Nothing in this subdivision
contained shall be construed to extend to coses of treason, felony, or
breach of the peace, or to privilege any person herein specified from
being served at any time with a summons or notice to appear ; and all
arrests, not contrary to the provisions herein contained, made in any
place, or on any river or water-course within or bounding upon this
state, shall be deemed lawful.
(a) Felony, under the laws of this state, embraces crimes punisha-
ble by imprisonment in the penitentiary, or by death. 6795. And
all indie, .ble offenses are " against the peace of the state." Constitu-
tion, art 4, 20.
SEC. 5460. . . . (not applicable to actions).
How and when prisoner may be discharged. SEC. 5461. A person ar-
rested contrary to the provisions of this subdivision shall be discharged
by a writ of habeas corpus, or in a summary way, by motion before the
court from which the process issued, at the cost of the party who sued
out the process.
(a) See HABEAS CORPUS.
Prison bounds fixed. SEC. 5462. A person imprisoned for debt shall
be entitled to the privilege of prison bounds, which shall be co-exten-
sive with the limits of the county, but such prisoner shall not, in any
instance, pass over or without such limits.
(a) But, if the plaintiff 1 entice the imprisoned debtor beyond the
county, so as to make an escape, with a view to sue the surety on the
undertaking for prison bounds, his own act would defeat his right to
recover. It would be a fraud upon such surety, and a freeing of the
r from the imprisonment by the plaintiff* himself.
When prisoner entitled to benefit of prison bounds. SEC. 5463. A pris-
oner shall not be entitled to the privilege of prison bounds until he
gives bond to the creditors, with two or more sureties, resident in the
county, approved by the justice or mayor who issued the process, or,
in other cases, by the probate judge, in double the sum for which he
7
98 CODE PRACTICE AND PRECEDENTS.
stands committed, for his safe continuance in the custody of the jailer,
within the limits of the prison bounds, until legally discharged, which
bond shall be lodged with the sheriff until the creditor demands the
same ; and when the condition of the bond is broken, the creditor
may put the bond in suit, and have judgment entered against the
sureties for the debt, interest, and costs for 'which the prisoner stands
committed.
(a) A bond is an obligation, under seal, for a sum certain, in its na-
ture a penalty, to become void upon the performance of the conditions
mentioned in it.
In all proceedings under the Code of Civil Procedure, the terms,
" bond" and " undertaking," are synonymous. 4947.
(6) A certificate of discharge given by a commissioner of insolvents,
to a debtor who has given bond for the prison limits, discharges the
surety on such bond, notwithstanding the proceedings are afterward
dismissed in the Common Pleas. Van Horne v. Whitton, 9 O. 100.
(c) It is a good defense to an action on a bond given under this sec-
tion, that no order was made by the court or judge authorizing its
issue, or that such order was made without the necessary preliminary
proof, or that the order of arrest has been quashed. Hyatt v. Robin-
son, 15 O. 372.
Joint bonds given in separate suits are void ; and a bond is void
unless the defendant is actually in prison, and that fact is recited in
the bond. Lytle v. Davies^ 2 O. 277.
AFFIDAVIT FOR ORDER OF ARREST.
[Form 78. $ 5492.]
Court of Common Pleas of County, Ohio.
John Doe, Plaintiff, 1
No. .] vs. I Affidavit for Arrest of John
John Smith, John Jones, and Hugh ( Smith.
Evans, Defendants.
John Doe, the above named plaintiff, makes solemn oath that he has
commenced in said Court of Common Pleas of County, Ohio, where
the same is now still pending, before judgment [or, is commencing a civil
action in said Court of Common Pleas of County, Ohio], a civil ac-
tion against the said John Smith, and John Jones, and Hugh Evans
the said John Smith as maker, and the last two as indorsers; that the
nature of his claim is as follows: Upon a promissory note for one thou-
sand dollars, made by said John Smith, on July 1, 1884, payable to the
said John Jones, one year after the date thereof, and which was, before
it became due, indorsed by said John Jones to said Hugh Evans, and by said
Hugh Evans, for a valuable consideration, indorsed to the plaintiff, who is
the holder and owner thereof, the same being due to the plaintiff and wholly
ARREST AXD BAIL. 99
unpaid and unsatisfied; that said claim in just; that the amount due to
the plaintiff thereon from said John Smith as maker, and said John
Jones and Hugh Evans as indorsers of said promissory note, is one thou-
sand <li i ir-, with interest from the first day of July, A. o. iSS.j; and that
the naid defendant, John Smith, has removed [or, begun to remove] some
of hi* property, consisting of a large and valuable lot of goods and mer>
rlrui'li-.-. from his store in the city of Cincinnati, Hamilton county, Ohio,
to the city of Indianapolis, in the State of Indiana [or, to some place un-
u to this affiant], out of the jurisdiction of said court, and with the
int.Mit to defraud the creditors of him, the said John Smith. And the
facts claimed by this affiant to justify his belief in the existence of the
aforesaid charge are that said John Smith in largely indebted to divers
persons, and has not, without said stock of goods and merchandise, suffi-
cient property, real or personal, within the jurisdiction of said court, sub-
ject to execution, to satisfy said claim, and he secretly, on or about the
day of , A. D. 18 , in the night, removed the said goods and
merchandise from his said store, and shipped them to said Indianapolis,
consigning them to one , who is his confederate in said fraud, with the
intent to conceal their identity and ownership, and prevent their being
taken by legal process to' satisfy the plaintiff's said claim, and the claims
of his other creditors ; and when inquired of by the affiant, on or about
the day of , A. D. 18 , concerning such shipment of said goods
and merchandise, said John Smith falsely, and with the view to deceive
the plaintiff, dented to affiant that he had shipped the same, but stated
that they were all still in his said store, where he intended they should
remain ; and further this affiant saith not.
(Signed,) Joax DOE.
Sworn to before me by said John Doe, and by him signed in my pres-
ence this day of , A. D. 18 .
, Clerk of Court Common Pleas.
Note. The affidavit may be made before a judge or clerk of any court of the
state, or a justice of the peace; but, perhaps, not before a notary public.
UNDERTAKING FOR ORDER, TO BE GIVEN BEFORE THE SAME is
ISSUED.
[Fora 79. 5493.]
In the Court of Common Pleas of County, Ohio.
John Doe, Plaintiff.
No. ]
John Smith, John Jones, and
Undertaking for Order of Arrest of John
Smith. $ .
Hugh Evans, Defendants.
Whereas, on the day of , A. D. 18 , said John Doe duly
filed in this court his certain petition against said John Smith [and said
other above named defendants], asking the recovery of a judgment
against them for the sum of one thousand dollars, with interest from
July 1. 1885, upon a promissory note made by said John Smith, payable
100 CODE PRACTICE AND PRECEDENTS.
to the order of said John Jones one year after the date thereof, and in-
dorsed by said .John Jones to said Hugh Evans, and by said Evans to the
said plaintiff, and judgment in said action, still pending, has not yet been
taken. And whereas, the affidavit for order of arrest of said defendant,
John Smith, has been duly made, as required by law, by said John Doe,
and is duly filed in this court : Now we, John Doe as principal, and - ,
- , and - , his sureties, do hereby, jointly and severally, undertake to
said John Smith, in the sum of two thousand dollars [not exceeding
double the amount of plaintiff's claim'], to pay him all damages which
he may sustain by reason of his arrest, under the order of arrest
[to be] issued herein, if such order prove to have been wrongfully ob-
tained.
This - day of - , A. n. 18 . [Signed by the parties.']
This undertaking and the sureties named therein accepted and ap-
proved by me. - , Clerk of - County Common Pleas.
PRECIPE FOR ORDER OF ARREST.
[Form 80.]
Court of Common Pleas - County, Ohio.
John Doe, Plaintiff. ) -n f r\ j r * r T i.
XT -i ( Precipe for Order of Arrest of John
No. .] vs. > o -,i
John Smith et als., Defendants. )
To Clerk :
Issue an order for the arrest of the defendant, John Smith, returnable
on the - day of - , A. D. 18 [if issued at same time as summons,
the return day is the same as that of the summons, on the second Mon-
day ; if afterward, on the fifteenth day thereafter, unless that day be Sun-
day, then on Monday, the sixteenth day] ; also issue a copy of the affi-
davit for order of arrest. EDWARD COKE, Attorney for Plaintiff.
ORDER OF ARREST.
[Form 81. 5495.]
The State of Ohio, - County, ss.
To - , Sheriff of - County, Ohio, Greeting:
Whereas, in the Court of Common Pleas of said - county, John
Doe, as plaintiff, has brought a civil action, which is still pending, against
John Smith, John Jones, and Hugh Evans, defendants, to recover the
amount of one thousand dollars, with interest at the rate of -- per cent
per annum, from the first day of July, A. D. 18 , the amount stated in the
affidavit herein filled to obtain the issuing of this order of arrest of the
defendant, John Smith, a certified copy of which affidavit is delivered to
you with this order :
You, as such sheriff, are therefore hereby required to arrest the said
John Smith, and hold him to bail in double that sum, and to make return
ARREST AND RAIL. 101
of this order on the day of , A. D. 18 , with the undertaking of
the bail, if any be given.
Witness my hand, and the seal of said Court of Common Pleas, thin
day of , A. D. 18 .
[SKAL or COCBT.] , Clerk of County Court of Common Pleas.
The clerk will also make out and deliver to the sheriff a certified
copy of the affidavit, and certify it, which certificate may be as follows:
[Form 82.]
I hereby certify that the foregoing [above, or, within] is a full and true
copy of the affidavit filed in the Court of Common Pleas to procure an
order for the arrest of John Smith, in an action pending in said court,
wherein John Doe is plaintiff and said John Smith and John Jones and
Hugh Evans are defendants.
Witness my hand, and the seal of said Court of Common Pleas, this
day of , A. D. 18 .
[SEAL OF COURT.] , Clerk of County Court of Common Pleas.
Note If the sheriff, at the same time, receives a summons for service, he
will serve and return it as other summonses.
He should indorse upon the order of arrest and the copy of the affidavit, the
day and hour of receiving the same, and execute and return them as required
by such order.
SHERIFF'S RETURN.
[Form 83. 2 M97.] [State time of receiving and serving.']
I have executed the within order by arresting the defendant, John
Smith, and delivering to him a copy thereof, and also of the affidavit
filed, upon which said order was issued, and* committed him to the jail of
said county, on the day of , A. D. 18 [or if the arrested
defendant gives bail, fry, instead of '' committed," etc., thereupon the
said John Smith, with and , bis sureties, executed to said
plaintiff. John Doe, an undertaking as bail, as required by law, in the
sum of dollars, which undertaking was accepted and approved by
me as sheriff, and is returned herewith, and said John Smith, defendant,
was discharged by me] ; [or if money it deposited with the sherif, toy :
the *aid defendant thereupon deposited with me, as sheriff the sum of
dollars, the amount, with the interest, specified in the order of arrest,
which sum I now have with me, to pay into court, us provided by law f
atxl >.ijil defendant, John Smith, was discharged by me].
[Date.] , Sheriff of County, Ohio.
102 CODE PRACTICE AND PRECEDENTS.
UNDERTAKING OP BAIL TO SHERIFF.
[Form 84. 5503.]
Whereas, in an action pending in the Court of Common Pleas of
County, Ohio, wherein John Doe is plaintiff, and John Smith and others
are defendants, said John Smith has been arrested upon an order of arrest
issued in said action for the sum of dollars, with interest at the rate
of per cent per annum, from , A. D. 18 , as appears from said order
of arrest, and is now held in the custody of the sheriff of said county [or,
is imprisoned in the jail of said county upon such order of arrest].
Now we, John Smith, as principal, and and as sureties of
said John Smith, in the presence of said sheriff, jointly and severally un-
dertake to the plaintiff, said John Doe, to the effect, that if judgment be
rendered in said action against the said defendant, John Smith, he will
render himself amenable to the process of the court thereon.
[Date.] [/Signatures of the parties.]
Executed in my presence. G. H., Sheriff of County.
Note. The sheriff must return such undertaking to the clerk's office.
WHEN, AFTER GIVING BAIL, THE DEFENDANT DEPOSITS THE MONEY
WITH THE SHERIFF, OR IN COURT.
[Form 85. 5499.]
John Doe ) Entry of Deposit of $ with the Sheriff [or, Court],
?oh7s J mTth et als. ) and Release of Bai1 '
In this cause, it being made to appear to the court, that said defendant,
John Smith, has deposited with G. H., as sheriff [or, in court, with J. L.,
the clerk], the sum of dollars, the amount of money specified in the
order of arrest herein, it is ordered by the court that said John Smith be
forthwith discharged from arrest, and and , his bail, be and they
are hereby released from liability upon their undertaking as bail for said
John Smith.
ORDER AS TO THE MONEY DEPOSITED BY DEFENDANT.
[Form 86. 5499.]
John Doe | E . f Mo p aid into Court b sheriff.
No. .] vs. > <g_^
John Smith et als. )
This day, in this cause, G. H., sheriff, paid into this court the sum of
dollars, which was received by him from said defendant, John Smith,
in lieu of bail, and the same is in the hands of the clerk to abide the
further order of the court.
ARREST AND BAIL. 103
[Form 87. 5501,5502.]
John Doe )
"So. .] v*. > Order for Safe- keeping of Money.
John Smith et als. ) $ .
In this case, it is directed by the court that O. H . the sheriff, keep the
gum of dollars, the amount of money deposited by the defendant,
.'iiti Smith, in lieu of bail, until after final judgment in this cause.
INSUFFICIENCY OF BAIL TAKEN BY SHERIFF NOTICE.
[Form 88. 5504.]
Court of Common Pleas of County.
John Doe, Plaintiff, )
No. .] vs. I Notice to Sheriff.
John Smith et als., Defendants.
To G. H. Sheriff of said County.
Sir: You are hereby notified that the said plaintiff, John Doe, objects'
to the bail, for insufficiency, taken by you in the undertaking herein of
said John Smith, as principal, and and , as his sureties, on the
day of , A. D. IS- 1 -, and that the said plaintiff does not accept the
same.
This day of , A. D. 18 . JOHN DOE,
By EDWARD COKK, his Attorney.
Note. The notice must be served upon the sheriff within ten days after the
taking of the bail, or the bail will be held to have been accepted by the
plaintiff.
NOTICE TO PLAINTIFF, OR Hia ATTORNEY, OF JUSTIFICATION OF
THE BAIL.
If the undertaking is given after the return of the order of arrest,
the sheriff must notify the plaintiff, or his attorney, of the taking of
bail.
[Fora 89. 5504,5505.]
Court of Common Pleas of County.
John Doe, Plaintiff, |
-.] vs. > Notice.
John Smith et als., Defendants. )
To John Doe ['>r, Edward Coke, attorney of said John Doe] :
V.m are hereby notified that, on the day of , A. D. 18 , after
the return of the order of arrest herein, I took , , and , as
bail for the said John Smith, by the execution to you by said John
Smith, as principal, and and , as his sureties, tin undertaking in
the sum of dollars.
This day of , A. D. 18. G. H.. Sheriff of County.
104 CODE PRACTICE AJSD PRECEDENTS.
NOTICE TO PLAINTIFF OF JUSTIFICATION OF BAIL, AFTER NOTICE TO
THE SHERIFF THAT THE BAIL is NOT ACCEPTED ON THE ALLEGED
GROUND OF INSUFFICIENCY.
[Form 90. 5504, 5505.]
Court of Common Pleas of County.
John Doe, Plaintiff, j
No. .] v*. > Notice of Justification of Bail.
John Smith, et als., Defendants. )
To John Doe [or, Edward Coke, attorney of John Doe].
Sir: Your notice objecting to the sufficiency of the bail, etc., taken
herein, was received on the day of , A. D. 18 . I, therefore,
hereby give you notice, that, on the day of , A. D. 18 , at
o'clock M., or as soon thereafter as the matter can be heard, before H.
Y., a judge of said court [or, J. L., clerk of said court; or, , the pro-
bate judge of said county ; or, , a justice of the peace of said county],
at , I will justify said bail, or other bail ; and, if other bail be given,
a new undertaking- will be executed.
[Date.~\ OK H., Sheriff of County [or, JOHN SMITH, Defendant].
Note. The time of hearing must be not less than five, nor more than ten days
thereafter.
EXAMINATION OF THE BAIL BEFORE SUCH OFFICER OATH.
[Form 91. 5506.] .
You do solemnly swear, in the presence of God [or, you do sincerely
and solemnly affirm, under the pains and penalties of perjury], that you
will true, full, and direct answers make to all questions put to you touch-
ing your sufficiency as bail for John Smith, in the sum of dollars
[the amount stated in the undertaking"], who has been arrested and held to
bail in the civil action of John Doe against John Smith and others, pend-
ing in the Court of Common Pleas of County, Ohio.
The examination is to be in such manner as the officer deems proper ;
that is, oral, or by the questions and answers reduced to writing, and
signed by the party examined. The latter is the preferable method.
[Form 92. 5506.]
In the Court of Common Pleas of County.
No _ J j hn Do ^ PIaintiff ' ) Examination of Bail in Justification,
John Smith et als., Defendants. )
The examination of , as bail for the defendant, John Smith, in an
undertaking for his discharge from arrest under the order of arrest
herein, on the day of , A. D. 18 , before , at , in pur-
suance of notice.
ARREST AND BAIL. 105
, being [by me] first duly sworn [or. affirmed], answers, under oath
[or, affirmation], as follows.
1st Question. -.
Answer. , etc. [Signature of person examined.']
I, , hereby certify that the foregoing is the full and complete ex-
amination of , in the cause and matter hereinbefore stated.
[Dale, and officer's signature and official seal.'}
INDORSMENT, ETC., UPON UNDERTAKING.
If the officer decides the bail to be sufficient, he will indorse such
finding on the undertaking for bail, and return and file the same in
the clerk's office. He will pursue the same course if he holds the bail
to be insufficient.
[Form 93. 5507.]
I find the bail named in the within undertaking to be sufficient.
[Or, I find the bail named in the within undertaking to be insufficient,
and the same is not accepted.]
[Date and sg nature, with official designation.]
Note. If the bail be adjudged insufficient, or a deposit of money bo not
made, the sheriff will be liable as bail ; but he may discharge himself at any
time before judgment by putting in sufficient bail.
The bail adjudged insufficient will be liable to the sheriff.
And if, after judgment, the sheriff return the execution against the body of
the detendant " not found " such return will fix the liability of the bail upon
the undertaking, and he may be sued thereon by the plaintiff; and such return
if a condition precedent to fixing the liability of the bail. \ 5509.
SURRENDER OF DEFENDANT AND DISCHARGE OF BAIL.
The bail should obtain from the clerk a certified copy of the un-
dertaking executed by him, or them, and surrender the defendant to
the sheriff of the county in which he was arrested, with the delivery
of a certified copy of the undertaking of such bail; and such sur-
render, if made by the defendant himself, or by his bail, shall dis-
charge the bail, and may be made at any time l>cfore the return day
of tiie sum UK ins, if the bail be sm-d on such undertaking by the
plaintiff.
Writtfn acknowledgment of surrfndtr. The sheriff shall give to the
i<-h acknowledgment, and hold the defendant in his custody upon
such copy of the undertaking of the bail, as upon an order of arrest.
106 CODE PRACTICE AND PRECEDENTS.
[Form 94. 5512]
Court of Common Pleas of - County.
John Doe, Plaintiff, J Acknow i e dgment of Surrender by
-
.., vs - , and - .Bail.
John Smith et als, Defendants. J
This - day of - , A. D. 18 , - and - , bail of the said defend-
ant, John Smith, arrested and held to bail in this action, duly surrendered
said John Smith to my custody, and delivered to me a certified copy of
the undertaking of said bail. G. H., Sheriff of - County.
Entry of exoneration of bail. On the production to him of the sher-
iff's acknowledgment of the surrender to him, the clerk of the court
shall enter on the undertaking of the bail, which is to be kept in his
custody, an exoneration of the bail.
[Form 95. 5512.]
The within named bail, - and - , having this day produced to me,
and which is filed in the cause, the acknowledgment of the surrender of
said John Smith to him by - , sheriff of - county, the said bail
named in the within undertaking are exonerated from all liability by rea-
son of the same.
[Date.] - , Clerk of the Court of Common Pleas of - County.
Bail may apppoint agent to arrest defendant. Such agent must be a
person of suitable age and discretion to make the arrest properly, and
his authority to do so must be indorsed by the bail on a certified copy
of the undertaking of bail.
[Form 96. APPOINTMENT OF AGENT. 5513.]
We, - and -- , the bail named in the within certified copy of our
undertaking for John Smith, therein named, authorize and empower - ,
to arrest said John Smith and deliver him into the custody of G. H.,
sheriff of - county, Ohio, and take for us his written acknowledgment
of such surrender, and file the same with the clerk of the Court of Com-
mon Pleas of -- County, to have our undertaking exonerated.
\_Date and signatures of the bail.]
Money deposited in lieu of bail, how refunded. Bail may be given by
undertaking, and money deposited in lieu thereof refunded by order
of the court in which the action is brought ; but such bail must be
given and justified, before judgment, and upon notice (see Form 86)
to the plaintiff or his attorney.
ARREST AND BAIL. 1(1?
[Form -97. 5515.]
John Doe }
No. .] vs. > In Arrest Order to Refund Deposited Money.
John Smith et als. )
In tiiis case, the court being satisfied that bail has been given by the
said defendant, John Smith, and adjudged sufficient, it is hereby direccd
and ordered by the court that the money, amounting to dollars,
ited herein by [said John Smith], in lieu of bail, with G. H., sher-
iff [of, J. L., clerk of this court], be refunded to [the defendant] by said
<i H., sheriff [or, J. L., clerk of this court].
MOTION OF DEFENDANT FOR DISCHARGE, OR TO REDUCE BAIL.
After his arrest, the defendant, at any time before judgment in the
action, on motion, may apply to the court in which suit is brought, if
in session, and, in vacation, to a judge thereof, or to any judge of a
court of record of the state, which term includes probate judges, to
vacate the order of arrest, or to reduce the bail.
[Form 98. g 5517.]
John Doe, Plaintiff,. |
No. .] vt. > Motion to Vacate Order of Arrest.
John Smith et als., Defendants. )
The defendant, John Smith, moves the court to vacate the order of ar-
rest issued herein, and upon which he has been arrested, for the reasons
following:
1. \_Here state the grounds of the motion as, that the affidavit upon which
said order of arrest was issued is insufficient in law to authorize the ar-
rest of the defendant; or, that the defendant is privileged from arrest
for the following reasons, etc.'] [And the defendant will use affidavits in
support of this motion.] JOSEPH CHITTV,
Attorney for John Smith, the Defendant.
ENTRY UPON MOTION.
[Form 99. 5517.]
John Doe |
No. .] vt. > On Motion to Discharge from Order of Arrest.
John Smith et als. \
Upon, the defendant's motion filed herein to be discharged from the
order of arrest, the court doth set the hearing of said motion on tli<-
day of , A. D. 18 , at o'clock M.. and requires the defend-
ant to give said plaintiff, or his attorney, Edward Coke, day*' pre-
vious notice of the time and place of the hearing of the said motion.
108 CODE PRACTICE AND PRECEDENTS.
NOTICE OF HEARING OF MOTION.
[Form 100. 5518.]
Court of Common Pleas of County.
Jonn Doe, Plaintiff, ) v , . T T, r r -PJ j /-. i
jj o n vg (Notice to John Doe [or, Edward Coke,
John Smith et als., Defendants, j bis Attorne yJ-
To John Doe and Edward Coke, his Attorney :
You are hereby notified that the motion filed herein by the defendant
to be discharged from the order of arrest herein will be heard by said
court, at the court-house in said county, on the day of , A. D.
18 , at o'clock M., or as soon thereafter as the court can hear the
same [and defendant will use affidavits in support of his said motion].
This day of , A. D. 18 . JOHN SMITH,
By JOSEPH CHITTY, his Attorney.
DISCHARGE OF DEFENDANT FOR NON-PAYMENT OF JAILER'S FEES.
[Form 101. 5520.]
Court of Common Pleas of County.
John Doe, Plaintiff, ) Ret urn of Defendant's Discharge for
John Smith et'als., Defendants. ] Non-payment of Jailer's Fees.
In this case, on the day of , A. D. 18 , I duly demanded from
John Doe, the plaintiff, the sum of dollars, for one week's jailer's
fees, in advance, for the keeping of said defendant, John Smith, in the
jail of said county, which sum said John Doe has wholly neglected to
pay, and thereupon, on the day of , A. D. 18 , I discharged said
John Smith from imprisonment under the order of arrest herein.
[Date.'] G. H., Sheriff and Jailor of said County.
Note. For further forms and proceedings, see AKREST AJTEB JUDGMENT.
CONSTRUCTIVE SERVICE OP DEFENDANTS. 109
CHAPTER VII.
CONSTRUCTIVE SERVICE OF DEFENDANTS.
Certain classes of actions can only be brought in the county where
the subject of the action is situated, and in which service may be
made upon the defendant by publication.
Wlien actions to be brought where property situated. SEC. 5022. Ac-
tions for the following causes must be brought in the county in which
the subject of the action is situate, except as provided in the next two
sections:
1. For the recovery of real property, or of an estate or interest
therein.
2. For the partition of real property.
3. For the sale of real property under a mortgage, lien, or other
incumbrance or charge.
(a) Whether an action to subject a debtor's interest in land to the
payment of a judgment mud be brought in the county where the land
is situate, or may be brought in the county where the judgment was
rendered. Butler v. Birkey, 13 O. 8. 518.
(6) An administrator desiring to charge incurabered lands with the
payment of debts, may proceed, under the Code, in the county where
the land is situate, have the liens marshaled, the property sold, and
proceeds distributed. Calkins v. Johnston, 20 O. S. 539, 549.
When part of the property is situated in more tfian one county. SEC.
5023. When the property is situate in more than one county, the ac-
tion may be brought in either; but in actions to recover real property,
this can only be done when the property is an entire tract
In actions for specific performance. SEC. 5024. An action to corn-
1" 1 the specific performance of a contract of sale of real estate may
be brought in the county where the defendants, or any of them, re-
side.
(a) See, for confirmation of rule, Owens v. Ball, 13 O. S. 571.
(6) Under these Uiree sections, a defendant must reside out of the
state, or his residence not be ascertainable, to warrant service upon him
by publication.
110 CODE PRACTICE AND PRECEDENTS.
Constructive service may also be made by publication in the following
cases :
When service by publication may be made, SEC. 5048. (Sup., p.
330.) Service may be had by publication in either of the following
cases :
1. In actions under said sections 5022, 5023, 5024, when the de-
fendant resides out of the state, or his residence can not be ascer-
tained.
2. In actions to establish or set aside a will, when a defendant re-
sides out of the state, r his residence can not be ascertained.
3. In actions in which it is sought by a provisional remedy to take,
or appropriate in any way, the property of the defendant, when the
defendant is a foreign corporation, or a non-resident of the state, or the
defendant's place of residence is unknown, .and in actions against a cor-
poration incorporated under the laws of this state, which has failed
to elect officers, or to appoint an agent, upon whom service of sum-
mons can be made, as provided by section 5044, and which has no
place of doing business in this state.
4. In actions which relate to, or the subject of which is, real or
personal property in this state, when the defendant has or claims a
lien thereon, or an actual or contingent interest therein, or the relief
demanded consists wholly or partly in excluding him from any interest
therein, and such defendant is a non-resident of the state, or a foreign
corporation, or his place of residence can not be ascertained.
5. In actions against executors, administrators, or guardians, when
the defendant has given bond as such in this state, but at the time of
the commencement of the action is a non-resident of the state, or his
place of residence can not be ascertained.
6. In actions where the defendant, being a resident of this state, has
departed from the county of his residence, with intent to delay or de-
fraud his creditors, or to avoid the service of summons, or keeps
himself concealed with like intent.
7. When a defendant in a petition in error has no attorney of
record in this state, and is a non -resident of and absent from
the same, or has left the same to avoid the service of summons in
error, or so conceals himself that such process can not be served upon
him.
8. In an action or proceeding under sections 5354 to 5365, in-
clusive, or to impeach a judgment or order for fraud, or to obtain an
order of satisfaction thereof, when a defendant is a non-resident of
the state.
When residence of the defendant is known. In any such case, when
CONSTRUCTIVE SERVICE OP DEPENDAN 111
the residence of a defendant is known, it must be stated in tho pub-
lication; immediately after the first publication, the party making the
e shall deliver to the clerk copies of the publication, with the
r postage, ami the clerk shall mail a copy to each defendant, di-
rected to his residence named therein, and make an entry thereof on
the appearance docket; and in all other cases, the party who makes
rvice, his agent or attorney, shall, before the hearing, make
uiul file an affidavit that the residence of the defendant is unknown,
and can not, with reasonable diligence, be ascertained.
(a) A lunatic defendant may be brought into court by publication.
Sturget v. Longtcorth, 1 O. 8. -644.
(6) To authorize service by publication under the third clause of the
foregoing section, on a non-resident, he must have property, or debts
owing to him, within the state, and the relief sought must consist in
taking, by provisional remedy, or by appropriating, in some man-
ner, such property or debts. Williams v. Welton, 28 O. S. 451.
(c) Jurisdiction may be acquired under this section, in an action
for the recovery of mojjey against a non-resident of the state, having
property in this state, sought to be taken by attachment. National
Bank v. L. S., etc., R. Co., 21 O. 8. 221.
(d) A personal judgment, in an action to foreclose a mortgage, can
not lie rendered against a non-resident defendant who has been served
by publication only under this section. Wood v. Stanbery, 21 O. 8.
141
(0) A finding by the court that notice has been given non-resident
defendants by publication, according to law, can not be collaterally im-
peached, in an action in a court of this state. Fowler v. Whitnnan. '1
O. 8. 270; Richards v. Skiff, 8 O. 8. 586; Hammond v. Davenport, 16
O. 8. 177.
(/) If the court has neither jurisdiction of the subject-matter, nor
of the person, by personal service, in the state, or appearance by the
lant, its proceedings are void. Pelton v. Platner, 13 O. 209;
Arndt v. Arndt, 15 O. 33; Daniels v. Stevens, 19 O. 222, 238.
(g) Administrators, to subject lots of real estate held by different
owners to the payment of the debts of the intestate, and some of the
owners being nob-residents of the state, may, in actions brought by
tin-in for such purpose, bring in the non-residents by publication.
CWfci/w v. Johnson, 20 O. 8. 539.
Affidavit necessary. SEC. 5049. Before service by publication can be
made, an affidavit must be filed that service of a summons can not be
made, within this state, on the defendant to be served by publication,
112 CODE PRACTICE AND PRECEDENTS.
and that the case is one of those mentioned in the preceding section ;
and when such affidavit is filed, the party may proceed to make service
by publication.
Sow publication to be made. SEC. 5050. The publication must be made
for six consecutive weeks, in a newspaper printed in the county where
the petition is filed; or, if there is no newspaper printed in the county,
then in a newspaper printed in this state, and of general circulation in
such county ; if it be made in a daily newspaper, one insertion a week
shall be sufficient; and it must contain a summary statement of the'
object and prayer of the petition, mention the court wherein it is filed,
and notify the person or persons thus to be served when they are re-
quired to answer.
(a) Notice by publication, if so specific as to advise the defendants
of the nature of their interest sought to be affected, is sufficient. Gary
v. May, 16 O. 66.
(6) The notice will be presumed to contain all that is requisite, when
it is found by the court to have been given according to law. Bu-
chanan v. Roy, 2 O. S. 251.
(c) When the publication is made to subject attached property, or
property, etc., in the hands of a garnishee to the judgment to be
obtained in the action, no description of such property is necessary in
the publication. Core v. Oil, etc., Co., 40 O. S. 636.
But when the petition in the action describes property sought to be
sold, recovered, or affected in any way, the same must be described in
the publication, as it must contain " a summary statement, etc., of the
petition."
When service completed and how proved. SEC. 5051. Service by
publication shall be deemed complete at the date of the last publication,
when made in the manner and for the time prescribed in the preceding
sections ; and such service shall be proved by affidavit.
(a) A copy of the published notice, with the affidavit of one of the
publishers that it was inserted and published in the paper, as required
by the order of publication, is sufficient. Kay v. Watson, 17 O. 27.
(6) Such notice first published in a weekly newspaper on Friday,
November 8th, and weekly thereafter, on the same day of the week,
until December 13th, six insertions, held complete on December
13th, and the defendant was in default by not answering on or before
the third Saturday thereafter. Core v. Oil etc., Co., 40 O. S. 636.
Personal service out of the state. SEC. 5052. When service may be
COXST11LCTIVE SERVICE OF DEFENDANTS. 118
made by publication, personal service of a copy of the summons ami
petition may !> made out of the state.
An affidavit made out of the state, verifying the return of such
service, mu-t IK- made before a person authorized by statute to take
depositions. Fitch v. Campau, 31 O. S. 646.
(b) Personal service, out of the state, can not be made upon a non-
resident, in an action to recover a judgment for money only, to be en-
1 by execution. William* \. Welton, 28 O. S. 451.
(c) Such service, where the suit is for the conveyance of lands with-
out this ttate, will not confer jurisdiction over the person so served.
Penn v. Hayward, 14 O. S. 302.
Service upon unknown heirs, etc. SEC. 5053. (Sup., p. 331.) When
an heir or a devisee of a deceased person is a necessary party, and it
appears by Affidavit that his name and residence arc unknown to the
plaintiff, proceedings against him may be had without naming him,
ami the court, or a judge thereof, shall make an order respecting the
publication of notice, but the order shall require not less than six
weeks' publication.
(a) A decree, under 11 statute authorizing proceedings against the
unknown heirs of decedent, held valid. Sullivant v. Weaver, 10 O. 275.
Procedure when defendant* not all served. SEC. 5054. When service
has been made on one or more defendants, but not on all, the plaintiff
may proceed as follows :
1. If the action is against defendants indebted upon contract, he may
proceed against the defendant served, unless the court otherwise direct
2. If the action is against defendants sewrally liable, he may, without
prejudice to his rights against those not served, proceed against the
defendants served.
(a) A judgment against defendants jointly liable, part of whom only
were served, is void against the parties not served, but voidable (on
petition in error) only as to those served. Newberg v. Munshowfr, 29
O. S. 617 ; Ath v. McCabe, 21 O. S. 181. See Douglas v. Mune, 16
O. 271
But when the liability is teveral, the judgment is void as to those not
served. Larimer v. Clemmer, 31 O. 8. 499.
(6) Where & joint suit against all the obligors in a bond is the only
remedy of the plaintiff, it is error to render a several judgment against
one, leaving the action to proceed against the others. Antker v.
Adams, 23 O. 8. 543.
8
114 CODE PRACTICE AND PRECEDENTS.
(c) This section authorizes a judgment against such joint contractors
as have been " served" with a summons in the action, in those cases
only where the action was commenced by filing a petition and issuing
a summons against all of the joint contractors. Bazett v. Belcher, 31
O. S. 572.
Lis pendens Notice to third persons. SEC. 5055. When the sum-
mons has been served, or publication made, the action is pending so as
to charge third persons Avith notice of its pendency ; and while pend-
ing, no interest can be acquired by third persons in the subject-matter
thereof, as against the plaintiff's title.
(a) The purchase of the subject-matter of a suit is a nullity, as
against the plaintiff. Ludlow v. Kid, 3 O. 541.
(6) A conveyance, pendente lite, of the subject-matter of the suit, is
good between the parties, but can not vary the rights of the litigants.
Bennet v. Williams, 5 O. 461.
(c) To authorize the application of this rule, the prosecution of the
plaintiff's action must be close and continuous. Fox v. Reeder, 28
O. S. 181.
(d) The doctrine of Us pendens does not apply to negotiable papef
before due. Stone v. Miott, 11 O. S. 252 ; Howe v. Harlne, 11 O.
8. 449, 456.
(e) Nor does it apply to a party in interest who is not made a party
to the suit. Irvin v. SmMi 17 O. 226 ; Gibler v. Trimble 14 O. 323.
(/) The rule properly ap'plies where the object of the suit is to re-
cover, specifically, a described piece or real estate, or to affect the title.
Hamlin v. Bevans, 7 O. (1 pt.) 161, 164. And it can apply only
in cases where it is sought to recover or affect the plaintiff's rights in
a subject-matter specifically described in his petition. Pending the
suit, the property can not be conveyed by defendant to defraud, or hin-
der, or delay his creditors. The defendant, pending a general action
against him, may sell any of his property and confer a good title upo
the p .rchaser in good faith, etc.
($) A party having title to land under decree in chancery conveyed
in good faith before citation: on error served upon him, held, reversal
of the decree did not divest the purchaser's title. Taylor v. Boyd, 3
O. 338. But a petition to charge an equitable interest in lands to
satisfy a judgment is Us pendens, although such judgment was after-
ward reversed, but re-obtained on the new trial. Stoddard v. Myers, 8
O. 203 ; Gibbon v. Dougherty, 10 O. S. 365.
(/i) Service of summons by a person (other than a deputy sheriff)
appointed by the sheriff for that purpose, without indorsing his au-
CONSriCUCTiVB SERVICE OP DEFENDANTS. 115
thority on the summons, does not charge third persons with notice of
th" nondency of the action. Barry v. Hodey, 30 O. S. 344. But an
, nince of the defendant effected by obtaining leave to answer is
snllu-ieut to charge third persons with notice. Brundage v. Biggs,
25 O. S. i
(i) A bill in chancery (petition) to subject an equitable interest in
Ian. I. not showing a judgment upon which it is based, and that there
was no property to satisfy it, does not prevent the assignment of such
equity to a third person, pending the suit, dark v. Strong, 16 O. 317.
(k) A debtor of an execution debtor, after service of the order, in
proceedings in aid of execution, can not discharge himself by paying
the execution debtor. Union Bank of Rochester v. Union Bank of San-
dusky, G O. S. 254.
(T) When a creditor's bill not a Us pendens against one who pur-
cli:isi-s under a superior lien not questioned in the creditor's suit Por-
ter v. Barclay, 18 O. S. 546.
(m) What proceeding* for alimony will operate to prevent aliena-
tion pendent* lite. Tolerton v. WiUard, 30 O. S. 579.
IAS pendens as to suits in otficr counties. SEC. 5056 (Xoticc to tliird
penon*). When any part of real projxirty, the subject-matter of an
action, is situate in any county or couuties other than the one in which
the action is brought, a certified copy of the judgment in such action
must be recorded in the recorder's office of such other county or coun-
tii -, before it shall operate therein as notice so as to charge third per-
sons, as provided in the preceding section ; but it shall operate as such
notice, without record, in the county where it is rendered ; but this
section shall not apply to actions or proceedings under any statute
which docs not require such record.
(a) As where an order of attachment is issued from one county,
where the action is pending, to another, and real estate be there at-
tai-hcd, etc.
IVm.icATiox IN CASES IN wnicn AN ORDEU OF ATTACHMENT HAS
BEEN ISSUED AND PROPERTY ATTACHED, OR GARNISIIEED, TO
WHICH THIS CHAPTER is LIMITKD.
The issuing of a summons is a condition precedent to the commence-
ment of every action, whether service can only be had by publication
or not 5036.
116 CODE PRACTICE AND PRECEDENTS.
[Form 102. 5048,5049.]
Court of Common Pleas of County.
John Doe, Plaintiff, [Affidavit for Publication as to John
JNO. .1 VS. f Q 'fV
John Smith et als., Defendants, j
John Doe, the above named plaintiff, makes solemn oath that service
of a summons can not be made upon the said defendant, John Smith,
within this, the State of Ohio; that his residence is in the State of
county of , and his post-office address is , with ; [or, his place
of residence can not, by reasonable diligence, be ascertained, and is un-
known]; that, in this action, an order of attachment has been duly
issued and levied upon the property of the defendant, John Smith, which
property is sought by such proceedings in attachment to be appropriated
toward the satisfaction of such judgment as the plaintiff may obtain
against the said defendant, John Smith, in this action.
And further affiant saith not. (Signed,) JOHN DOE.
[Date.]
Sworn to and subscribed before me by said John Doe, this day of
, A. D. 18. , Clerk.
NOTICE BY PUBLICATION.
[Form 103. 5050, 5051.]
Court of Common Pleas of County.
John Doe )
No. .] vs. > Notice.
John Smith et als. )
John Smith, the above named defendant, will take notice that, on the
day of , A. D. 18 , John Doe, the plaintiff, in said court, duly
commenced a civil action against him to recover against him [and others]
the sum of dollars, with interest at the rate of per cent per
annum, from the day of , 18 [upon a promissory note made by
said John Smith to John Jones, and by him indorsed to Hugh Evans, and
by said Evans to the plaintiff; said note bearing date on the day of
, 18 , and payable in after date, with interest at the rate
of per cent per annum after maturity] , and for said sum and inter-
est the plaintiff asks judgment against said John Smith, as maker of
said promissory note, etc. An order of attachment in said action has
been duly issued against the property of said John Smith.
Said John Smith is required to answer the petition in said action on
the day of , A. D. 18 , or judgment will be taken against him
by default for said amount, with interest and costs.
[Date.'] JOHN DOE, Plaintiff
EDWARD COKE, Attorney.
To Publisher : Publish above weekly for six (G) consecutive weeks, in
, beginning on the day of , 18 .
EDWARD COKE, Attorney.
CONSTRUCTIVE SERVICE OF DEFENDANTS. 117
Mailing notice to defendant when his residence is known, and entry
of clerk on the appearance docket. This is essential to the validity
of the attachment proceedings, and can not be omitted.
[Form 104. g 5l)4S, last paragraph.]
John Doe )
.] vs. > Of Notice Mailed to John Smith.
John Smith et :iN. ]
i in the day of , IS , tho plaintiff delivered to the clerk of
this court, with the requisite postage stamps, the following printed no-
tice, which said clerk, on the same day, duly mailed to said John Smith,
addressed and directed to him at , in county, and State of .
[Here copy notice mailed.]
PROOF OF PUBLICATION.
[Form 105.]
Tin- State of Ohio, County, ss.
makes oath that he is the publisher of , a daily [or, weekly]
newspaper, printed and of general circulation in said county ; that
the attached notice was printed in said news-paper six (fi) times, in con-
secutive weeks, on the same day of each week, beginning on the
day of , 18 , and the lost insertion was on the ? day of , 18 .
And further saith not. [Signed, sworn to, etc."}
[Zfcte.]
APPROVAL OF PUBLICATION BY THE COURT.
[Form 106.]
John Doe |
No. .] M. > Publication Approved.
John Smith ct als. j
In this case tho notice filed herein, requiring said John Smith to answer
the petition, is found by the court to have been duly published for six
consecutive weeks, as required by law ; and such publication is hereby
approved by the court.
When default of defendant occur*. If the defendant fails to answer
or demur to the petition, or file some motion which excuses such
failure, or obtains from the court further time to answer, he will,
utt r the third Saturday after the return day of the summons, or serv-
ici i.y publication, be in default, the petition stand as confessed, and
judgment can be taken against him by default.
SBC. 5097. The answer or demurrer by the defendant shall IMJ filed
on or before the tfiird Saturday, and the reply or demurrer by the
118 CODE PRACTICE AND PRECEDENTS.
plaintiff on or before the fifth Saturday, after the return day of the
summons, or service by publication.
(a) The defendant is not excused from filing his pleading within
the rule because the plaintiff has failed to 1 comply with an order of the
court to give security for costs. Newsom v. fiau, 18 O. 240.
PLAINTIFF'S PETITION CONFESSED BY UEFALLT. 119
CHAPTER VIII.
PROCEEDINGS WHEN THE PLAINTIFF'S PETITION IS CON-
FESSED BY THE DEFAULT OF THE DEFENDANT.
A judgment in such case can be taken against the defendant, in an
action for money only, for the amount indorsed upon the summons, and
no more ; and if no indorsement of the amount is upon the summons,
no judgment can he taken.
// tiie claim is unliquidated, the court, on submission to it, or by
sending the case to a jury to assess the amount of the plaintiffs dam-
ages, will render judgment for the amount proven, or fixed by the ver-
dict of a jury, against the defendant.
JUDGMENT BY DEFAULT WHERE ALL THE DEFENDANTS HAVE BEEN
PERSONALLY SERVED BY SUMMONS.
[Form 107. .0133.]
John Doe
Final Judgment $ , with Interest at
per cent from ,
No. .] v*.
John Smith, John Jones, and
liu<*h Evans.
This day this cause was submitted to the court by the. plaintiff, and the
court finds that all the said defendants have been duly served by sum-
mons, and are in default for answer or demurrer to the petition herein,
the petition is taken as confessed by them; whereupon it is adjudged by
the court that the said plaintiff, John Doe, recover against the said John
Smith, nsi maker, and the said John Jones, as first, and said Hugh Evnns
as second imlorser of the promissory note described in the petition, the
sum of dollars [the turn it the principal with the interest addtd thereto to
thefir.it day of the term at which judgment it rendered] [to draw interest at the
rate of j>er cent per annum from the first day of the present term of
this court, to wit, , IS], together with hi* costs in this behalf in
curreti, taxed at dollars.
(a) The words, "and for which execution is awarded," are some-
times made the conclusion of the judgment entry. This i. unneces-
sary. Tin- law awards the right to issue execution upon the judg-
ment.
(6) The legal rate of interest is six per cent, and where no greater
rate of interest than six per cent is specified in the writing upon
120 CODE PRACTICE AND PRECEDENTS.
which judgment is rendered, no rate of interest need be specified in
the judgment. 3181.
But, parties may stipulate in such writing for interest not greater
than eight per cent, in which case it may be convenient to specify such
rate in the judgment to avoid the liability to future mistake when is-
suing execution. 3179.
(c) The first day of the term will be taken notice of judicially by
the court rendering the judgment, and, perhaps, by all the courts of
the state; but, after the lapse of time, it can only be ascertained in fact
by examination, and it is well to specify or indicate it in or by the
judgment. The date from which a judgment shall bear interest,
other than the first day of the term, should be specified in the judg-
ment entry.
AFTER PUBLICATION, JUDGMENT BY DEFAULT, IN ATTACHMENT.
[Form 108. 5555.]
_ John Doe \ in Attachment, Judgment by Default,
J hn snhnjone8 ' and f
This day this cause was submitted to the court by the plaintiff, and the
court finds that the said defendants, John Jones and Hugh Evans, have
been duly served personally by summons, and the said defendant, John
Smith, by publication, and all have failed to answer or demur to the peti-
tion herein, and are in default, and the petition, as to all of them, is taken
as confessed. (
It is, therefore, adjudged by the court that the plaintiff, John Doe, re-
cover of the said defendants, John Smith as the maker, and John Jones
as first, and Hugh Evans as second indorser of the promissory note in the
petition described, the sum of - dollars, and his costs in this behalf
incurred, taxed at - dollars.
And it is further ordered and adjudged by the court, that so much of
the attached property of the defendant, John Smith, remaining in the
hands of G. H., sheriff of said county [or, of - , receiver in this action],
after applying the money, -- dollars, arising from the eale of perishable
property of said John Smith attached and sold herein, and so much of
the personal property, and lands and tenemetns, whether held by legal or
equitable title, as may be necessary to fully satisfy this judgment, with the
interest and accruing costs, shall be sold under the same restrictions and
regulations as if the same had been levied on by execution ; and the money
arising therefrom [with the amount which may be recovered from
- , garnishee herein] be applied to satisfy this judgment and such said
costs ; and if there be not enough to satisfy the same, this judgment shall
stand, and execution may issue thereon for the residue, in all respects as in
PLAINTIFF'S PETITION CONFESSED BY DEFAULT. 121
other causes; and in case there be a surplus, after fully satisfying this
judgment and said costs, such surplus of property, or its proceeds, shall
be returned by said sheriff [or, receiver] to the defendant. John Smith;
and thU cause in continued to execute and fully carry out this judgment.
(a) If the only jurisdiction of the defendant acquired l>y the court
is l>v publication, the judgment rendered against such defendant, in ex-
cess of his property within the jurisdiction of the court, sought to be
-tercd, disposed of, or affected in any way, is void; but it is
proper to take judgment for the full amount of the plaintiff's claim, as
the statute provides, so that he will not have estopped himself by such
judgmcut in a subsequent action against the defendant Leonard v.
Lederer, Supreme Court, December 18, 1883, Weekly Law Bulle-
tin, December 24, 1883, pp. 450, 1 [for some reason this case has not
been published in the O. S. Reports]; Pennoyer v. Xeff, 95 U. 8.
'to) 714.
The syllabus of Leonard v. Lederer is as follows: A judgment of
$300 was rendered by a justice of the peace in an action for breach of
contract, but there was no service of a summons or appearance of tho
1. r' n.laiit. An attachment was issued at the commencement of tho
action, on the ground that the defendant was a non-resident of the
county ; property was seized, publication of notice made, and tho
sum of $80, realized from the attachment, was applied to the judg-
ment. The defendant, who resided in another county, had notice of
the attachment proceedings during their pendency. The plaintiff
caused an execution to issue to the county in which the defendant w
ftiilril. on a transcript filed in the Court of Common Pleas in which the
judgment was rendered. Held:
1. That it was the duty of the justice of the peace, in such case, to
render judgment in favor of the plaintiff for the full amount of his
claim, if within the jurisdiction of the justice.
The provision of the statute, that, in such case, the judgment
shall stand, and execution may issue thereon for the residue, in all re-
spects as in other cases ( 5555, 6507), has relation to cases in
which the defendant was summoned or appeared, and can not apply
to cases of that character, consistently with tho constitution, where
the on\y service was by publication *>f notice.
3. The defendant was entitled to an injunction against tho enforce-
ment of such execution.
122 CODE PRACTICE AND PRECEDENTS.
JUDGMENT IN ACTION OP SHERIFF OR RECEIVER FOR REPOSSESSION
OF ATTACHED PROPERTY, UNDER FORM 36, IN FAVOR OF SAME.
[Form 109. 5204.]
G. II., as Sheriff of County. |
No. .] vs. } Judgment, $ j .
Q. R. I
This day this cause came on to be heard, and was submitted to the court
by the plaintiff, a jury being by him waived in open court, the defendant
failing to appear; and thereupon the court doth find that the said defend-
ant, Q. R., has been duly served personally with summons, and has failed
to answer or demur to the petition, and is in default, and said petition is
taken as confessed. Whereupon, the court having heard the evidence
adduced to it, the arguments of counsel, and being fully advised in the
premises, doth find the value of the said property in the petition
mentioned and described, and which has been wrongfully converted by
the defendant, as in the petition alleged, to be dollars, and doth ad-
judge that the plaintiff, as sheriff of said county, recover of the said de-
fendant, Q. R., the said sum of dollars, with his costs in this behalf
incurred, taxed at dollars.
(a) Judgment, in a case of the nature of the above, may be ren-
dered before judgment is obtained against the defendant in attachment
in the principal action, because the sheriff, or attaching officer, has the
right to the property, or its value, to hold to abide the result of such
action against the defendant- in attachment, and which property has
been wrongfully converted to his use by the defendant in the officer's
action.
JUDGMENT AGAINST GARNISHEE IN AN ACTION BASED UPON His
UNSATISFACTORY ANSWER, UNDER FORM 50.
[Form 110. 5551, 5352, 5553.]
Tohn Doe ]
No. .] vs. > Judgment, $ , with Interest from , 18 .
William Nokes j
This day this cause came on to be heard, and the defendant, William
Nokes, having failed to answer or demur to the petition, and being in de-
fault, the petition is taken as confessed against him, he having been per-
sonally served with a summons herein, and thereupon, the defendant be-
ing absent, the plaintiff, in open court, and with the consent of the court,
submitted this cause for trial to the court, and the evidence .adduced be-
ing heard, and the arguments of counsel, and the court being fully ad-
vised in the premises, doth find the value of the property mentioned in
the petition, to be dollars.
Whereupon, and after the rendition of the judgment in this court in
PI.AINTIFF'S PETITION -ED BY DKF.U LT.
favor of said plaintiff, John Doe, in his notion No. - , again-t .John
Smith nnd others, defendants, the court doth adjudge that said |>laintitl
John Doe, by reason of the premises, recover against the said defendant,
William Nokes, the sum of - dollars. And it appearing that said de-
fendant's said answer ns garnishee was incomplete, it is further ordered
by the court that if said William Nokes deliver up all the property and
credits of said John Smith in his possession, or under his control, and pay
all the money due from him to said John Smith to the clerk of this
court [or, to the sheriff of this county], forthwith, he shall be discharged,
and the costs of this action, to be taxed, paid out of the property and
money so surrendered [or, and his costs in this behalf incurred taxed at
- dollars] ; [or tvch order at the court may deem j
(o) In Core v. Oil Co., 40 Ohio St. 636, the judgments against Core
and the garuishee, Gross, were rendered on the same day, and the
judgment against the garnishee did not state that it was rendered after
the judgment against the defendant in. attachment, Core; but this did
not affect it, as the presumption was that the court did its duty.
IX ACTIOX AGAINST GARXISIIEE IX WHICH Hfi HAS
FILED AX AFFIDAVIT OF INTERPLEADER, UNDER FORMS 50, f>l
\M> 52.
[Form 111. g 5016, 5551.]
John Doe ]
No. .] vt. > Judgment
William Nokes et al. )
This day, after the rendition of the judgment in favor of the said
plaintiff, John Doe, against John Smith, the defendant in attachment in
the case of said Doe against said John Smith and others, being cause No.
- . in this court, this cause came on to be heard, and the said James
Still-*, named in the affidavit of interpleader herein of said William
Nokes, garnishee, etc., who has been duly notified so to do, having failed
to appear and make himself defendant to this action in lieu of said
William Nokes, or to answer or demur to the petition herein, and being
in default, the plaintiff submitted this cause to the court, which finds
that the said property mentioned in the record herein is tne property of
aid John Smith, and has been duly garn isheed in the hands of said
William Nokes by said John Doe, in his Raid action and attachment pro-
ceedings against said John Smith and others.
Whereupon, the court doth adjudge that said James Stiles be and he is
hereby barred of all right or claim to said property, credits, mone\
as against said John Doe and William Stiles, or either of them, and thai
the same be sold by - , in whose custody they are, as upon execution
at law, and the proceeds [or if money paid by garnithee according to a
previous order of court'] be applied to satisfying the costs of this action,
and the costs of said action of John Doe against John Smith and others,
124 CODE PRACTICE AND PRECEDENTS.
and the residue to the satisfaction of the plaintiff's said judgment in said
last named action, and if any thing remain thereafter, the same shall be
paid to the defendant, John Smith.
Note. If the money has been paid, and is in the hands of the clerk, the
sheriff, or a receiver, the account can be stated, and the payments ordered in the
entry, and when paid the proper receipts given and satisfaction entered upon
the journal.
(a) In Core v. W. Vet. Oil and Oil Land Co. et als. , decided by tho
Supreme Court at the same time as Core v. Oil Co., 40 Ohio St. 636,
but not reported, Blair, whom Gross, the garnishee, slated in his affi-
davit of interpleader owned the claim garnished by the Oil Company in
his hands, was served with notice in West Virginia by a person resid-
ing there and appointed by the court, in its order, to make such service
upon Blair, the alleged claimant. This notice was held sufficient.
The fund was in the court for distribution, and it was incumbent on
claimants having notice to appear and set up their rights, or by not
appearing they surrendered them.
(6) If property be attached, and it is ascertained that before the
service of the order of attachment the attachment debtor has sold it
to a third person, who owes him therefor, and such third person is gar-
nished, the attachment is not abandoned. Id. 636.
COMPLETE RECORD OP TI1E CASE AND DOCKETS.
CHAPTER IX.
THE COMPLETE RECORD OF THE CASE AND DOCKETS
When final judgment is rendered in a cause, it becomes the duty
of the clerk of the court to make a complete record of it.
Qfrk to indorse filed every pleading and paper, and make complete
record. SEC. 1245. The clerk shall indorse on every pleading or paper
in a cause filed in his office the time of filing, and enter all orders,
decrees, judgments, and proceedings of the courts of which he is by lav
the clerk, and make a complete record of every cause, unless such
record is by law, or the order of the court, dispensed with, and pa;
over to the proper parties all moneys coming into his hands as clerk.
(a) "Decrees" were formerly made by courts of chancery in this
state. They were, pro confesso, interlocutory, and final ; but now the
final determination of the rights of the parties, in a civil action, is
called "a judgment;" and a direction of a court or judge, made or
entered in writing, is " an order." 5310.
(6) Other dockets and court calendars are made by the clerk for
the convenience of the court and litigants, usually by the order or a
rule of the court.
SEC. 1246. The clerk shall make a complete record of each cause
within sit months after final judgment or order of the proper court,
unless by order on the journal a record is dispensed with ; and on his
failing to make such record within the time above named he may be
removed by the Court of Common Pleas.
(a) The clerk of the Court of Common Pleas is also clerk of the
Circuit Court within his county.
Rooks to be kept by clerk. SEC. 4957. (Sup. , p. 326. ) The clerk of the
Court of Common Pleas shall keep at least five books, to lie called the
ii[>[x>arance docket, trial docket, journal, record, and execution docket,
and an index to the trial docket and journal direct, and to the ap-
pearance docket, record, and execution docket, direct and reverse.
Entries on appearance docket and their rffect. SEC. 4958. The clerk
shall enter on the appearance docket, at the time of the commence-
ment of an action or proceeding, the names of the parties in full, with
names of counsel, and forthwith index the case, direct and reverse, in
126 CODE PRACTICE AND PRECEDENTS.
the name of each plaintiff and defendant; he shall also enter, at the
time it occurs, under the case so docketed, the issue of the summons,
or other mesne process or order, and the filing of each paper ; and
he shall record in full the return on such writ or order, with the date
of its return to the court, which entry shall be evidence of such service.
(a) It is convenient also to note on the appearance docket the date
of each entry and the page of the journal at which it is entered.
Clerk to file and preserve papers. SEC. 4960. The clerk shall file to-
gether, and carefully preserve in his office, all papers delivered to him
for that purpose, in every action or proceeding.
Indorsement on papers. SEC. 4961. The clerk shall indorse on every
paper filed with him the date of the filing thereof; and upon every
order for a provisional remedy, and upon every undertaking given un-
der the same, the date of its return to his office.
(a) A paper left with the clerk to file, by order of the court, or
which the party may file as a matter of right, is legally filed, though
the clerk fails to indorse it as filed.
Clerk to keep the books and make records. SEC. 4962. The clerk shall
keep the journals, records, books, and papers appertaining to the court,
and record its proceedings.
Record of orders out of court. SEC. 4963. Orders made out of court
shall be forthwith entered by him in the journal of the court, in the
same manner as orders made in term.
General provisions as to duties of clerks. SEC. 4965. The clerk of
each of the courts shall exercise the powers conferred and perform the
duties enjoined upon him by statute and by the common law ; and in
the performance of his duties he shall be under the direction of
his court.
Judgments must be entered on journal. SEC. 5331. All judgments
and orders must be entered on the journal of the court, and specify
clearly the relief granted or order made in the action.
Record to be made, unless waived. SEC. 5332. The clerk shadl make
a complete record of every cause as soon as it is finally determined,
unless such record, or some part thereof, be duly waived.
When to be made up and signed. SEC. 5333. The clerk shall make
up such record in each cause in the vacation next after the term at
which the same was determined ; and the presiding judge of the court
shall, at the next term thereafter, subscribe the same.
(a) The signature of the presiding judge is not essential to the va-
lidity of the record. Osburn v. State, 7 O (1 pt.) 212.
COMPLETE RECORD OF TUB CASK AVD DOCKETS. 127
What miu4 (jo int> tlie record. SEC. 5334. The records shall be made
up fr-'iu the (M'tiiion, th<> process, the return, pleadings subsequ- n
thereto, reports, verdicts, orders, judgments, and all material acts ami
proceedings of the court; but if the items of an account, or the copies of
papers attached to the pleadings, are voluminous, the court may order
the record to be made by abbreviating the same, or inserting a perti-
nent description thereof, or by omitting them entirely, and evidence
mutt not be recorded.
(a) A record is the history of a cause from its commencement, the
issuing of the writ, until final judgment is rendered. Noble v. Sltearer,
6 O. 426, 427.
(6) A record is made up of judicial proceedings for the purpose of
preserving the evidence of what was transacted. If, in making up
this record, the clerk omit any material fact, which papers on file, or
entries on the minutes or journals, show to have existed, such omis-
sion can not prejudice the party further than to put him to the incon-
venience of hunting up the proofs ; and as the record is but an au-
thorized copy of originals, such originals are evidence wherever such
recorded copy would be.
When transcripts certified from inferior to superior courts are prund
defective, it is not uncommon to allege diminution oj the record, and
issue process to such inferior court for a more complete record, for-
m-rly called a certiarari, to supply a complet record, which writ is abol-
ished, and an order substituted in its stead. In such case, the omitted
fact, if found in proper form, is added to the record, and certified by
the inferior court as a part of it. Mitchell v. Eytter, 7 O. (1 pt.) 257,
Cochran v. Loring, 17 O. 409, 432; Newman v. Cincinnati, 18
O. 323, 331 ; Suteli/e v. State, 18 O. 469; Morgan v. Hurndt,
i./.
(r) But entries in dockets or calendars not required by law to be
kept, and entries made by the judge on his docket, are not evidence
of \\hat they contain, but are the mere statements of the persons nmk-
iu_' them. Moore v. Brown, 10 O. 198.
(d) What shall constitute the record of a case is regulated by stat-
ute, and any paper the statute authorizes to become part of the record
may be made part thereof without an express order of the court to
that effect. Smith v. Board of Education, 27 O. 8. 44.
Other papers only become part of the record when made so by or-
der of the court.
(e) A reviewing court on error has no control of the records of the
court below, aud can not, therefore, make any correction or change
128 CODE PKACTICE AND PRECEDENTS.
therein, but such corrections or changes must be sought in the court
where the record is made. Ib.
This will apply to matters of substance, but an obvious clerical error
may be corrected, or disregarded, or read as it should be.
(/) The order, decrees, and minutes of the Court of Common
Pleas in those cases in which no final record is made, or is required to
be made, are legal evidence and matter of record, if the court was in
the exercise of its legitimate power and authority. State v. Dawson.
6 O. 251, 253.
Courts to cause records to be completed. SEC. 5335. When the ju-
dicial acts or other proceedings of any court have not been regularly
brought up and recorded by the clerk thereof, such court shall cause
the same to be made up and recorded within such time as it may di-
rect ; and when they are made up, and, upon examination, found to
be correct, the presiding judge shall subscribe the same.
No record to be made. When the action has been dismissed without
prejudice to a future action, as provided in section 5314, no record is
to be made, nor in any action in which, in open court, at the term at
which the final order or judgment is made, both parties declare their
agreement that no record shall be made (section 5337), but in actions
dismissed without prejudice to a future action, the clerk shall make a
complete record of the proceedings upon being paid therefor by the
party requesting it. 5338.
After f Mai judgment, subsequent proceedings are not entered as part of the
complete record, but are entered upon the clerk's execution docket, where
the case is numbered, as in the appearance docket, and according to the
number of the execution ; and the sheriff also keeps a cash book, and
for executions directed to him from other counties, a foreign execution
docket.
Execution docket and entries upon the same. SEC. 5423. The clerk of
the Court of Common Pleas shall enter upon the execution docket the
names, in full, of the parties to the cause in which an execution is
issued, the number of the cause upon the appearance docket, the num-
ber of the execution, the date of its issue, the amount of the judgment,
the costs due each person or officer, the time when the judgment was
rendered, and the date of the return, and the return shall be recorded
therein in full.
Index to execution docket. SEC. 5424. The clerk shall keep an index to
the execution docket, showing, in separate columns, the names of all the
parties against whom, and in whose favor, an execution has been issued,
OMPI.K1E RKCORD OP THE CASE AND DOCKETS. 129
the number of the execution, aud the number of the cause upon the
appearance ducket.
Proceeding* vchen order of tale istued in ctue not on the trial docket.
^4'2't. When an order of sale is issued in a case not on the
trial docket, the clerk shall enter it on the execution docket, and enter
the subsequent proceedings had in pursuance thereof, in the same
manner that executions and proceedings thereon are entered ; when a
rale of real estate is made in pursuance of such order, it shall be con-
firmed in all respects as sales on executions are confirmed ; aud after the
sale the officer shall be governed in all respects by the law relating to
sales on execution.
(a) A case is nt to be placed on the trial docket by the clerk in
which nothing remains to be done except to execute an order for
the sale of real or personal property, and t > distribute the proceeds as
directed by the order ; and if it becomes necessary, the cause may be
redocketed, on the application of either party, whereupon it shall stand
in nil respects as if it had remained on the docket Cases in all stages
bear the appearance docket number. 5132.
Bettering dtvtroyed record*. (Sup., p. 346, 5339a, 6, c, d, .)
SEC. 5339. The clerk shall keep an index, direct and reverse,
of all judgments by names of parties alphabet ically arranged, showing
in separate columns the name of the judgment debtor, the name of the
judgment creditor, the amount of the judgment, and the year and term
when it was rendered, the page of the journal on which it is entered,
the volume and page of the final record, the number of the suit, the
number and the time of issue of the execution aud satisfaction thereof,
when it appears to have been made. Applies to justices and mayors.
83 v. 207.
(Section 1255 repealed. 83 v. 39.)
(a) A judgment ceases to be living, that is, becomes dormant, and
will require to be revived before execution can be issued upon it, if no
executiou be sued out within five years from the date of the judgment,
or if five years intervene between the date of th last execution issued
on such jugdment and the time of suing out another execution thereon,
and such judgment become* dormant and ceases to operate as a lien
upon the .lands of the judgment debtor. 5380.
But this section does not apply to a decree (judgment) for the sale
of specific property. Beaumont v. Herrick, 24 O. S. 445.
Sheriff 't foreign execution docket, what to be copied in. SEC. 1212.
There shall be kept in the office of the sheriff of each county of the
9
130 CODE PRACTICE AND PRECEDENTS.
state a foreign execution docket, to be furnished at the cost of the county,
in which docket the sheriff or coroner shall, on the receipt by him of
any execution, order of sale, or other process issuing from any court
of any county of the state, other than that in which he resides, make
any entry of the date of such writ, when received by him, from what
court and county issued, the date and amount of judgment or decree ;
also copy in such book the full description of the property and real
estate which he levies upou or offers for sale, the same as is indorsed
upon or contained in said writ; also copy into said book his return on
such writ, when he makes the same, including the bill of costs; and
shall, for the use of the persons entitled to the same, retain all fees due
in such cases t.o residents of his county, and pay the same over on de-
mand to such persons, and shall make a direct and reverse index of
each case so entered ; and such entries st> made shall be notice to sub-
sequent purchasers and creditors of the matters contained therein.
Sheriff's cash book Wlud to enter in cash book. SEC. 1214. There
shall be kept in the office of the sheriff a cash book, to be furnished :it
the cost of the county, in which book the sheriff or coroner, on receipt
by him of any money, in his official capacity, s!;all make an entry of
the date and amount of the same, the title of the cause, the name and
number of the writ or process on which received ; and if received on
sale of real estate in partition or otherwise, where the sale has been for
part cash, and notes and other evidences of indebtedness are taken
for part of the purchase-money, he shall make an entry on said cash
book of the date, number, and amount of said notes so taken by him.
(a) Such books or dockets are to be kept in the sheriff's office, open
to the inspection of all persons for a fee of twelve and one-half cents, and
are to be delivered to, and kept by, successors in office, without muti-
lation, as public property. 1215, 1216, 1213.
COMPLETE RECORD.
[Form 112. \l 5332-5336, 5338.]
John Doe, Plaintiff,
?- J . T , vs r - , TT ,1 Civil Action.
.Tohn Smith, John Jones, and Hugh
Evans, Defendants.
Pleas continued and held at the court-house in - , within and for the
county of , in the Judicial District [or, Circuit] of the Court
of Common Pleas [or, of the Circuit Court] of the State of Ohio, before
the Honorable , judge of said court, of the term of [October],
to wit, on the day of [November], [date of final judgment], in the
year of our Lord one thousand eight hundred and .
Be it remembered that, heretofore, to wit, on the day of , in
COMPLETE RECORD OP THE CASE AND DOCKETS.
the yearof our Lord one thousand eight hundred and .John Doe filed
in the clerk's office of the said Court of Common Pleas the following pe-
tition against John Smith. John Jones, and Hugh Evans, to wit:
PETITION.
[ Here copy the petition. It it beat, in order to make a neat and compact record, tn
tmit t/ie caption, at lea-it after the recording of the petition, of every paper recorded,
'./ caption having served its purpose of identifying such paper*.]
PRKCIPE.
And, at the same time, said John Doe filed the following precipe, in the
words and figures following: [Here copy the precipe, omitting the caption ]
SUMMONS.
And thereupon a summons in the following words and figures was issued
in said cause indorsed as follows: [Here copy the summons and indorsement
upon it. ]
SHERIFF'S RETURS.
And afterward, on the day of , A. n. 18 , the sheriff of said
county returned said summons to the clerk's office in said county, which
return is as follows : [Here copy the sheriff's return.'] [If more than one sum-
n,on.i is issued to the sheriff of the same or other counties <f the state, they, with the
<. must also Le recorded in their order, as above indicated.]
AFFIDAVIT FOR ATTACHMENT.
And, on the day of , A . 18 , the following affidavit to obtain
an order for the attachment of the property, etc., of the defendants, ,
, , was filed in said clerk's office. [Here copy affidavit.]
UNDERTAKING FOR ATTACHMENT.
And, on the day of , A. i>. 18 , the following undertaking to
obtain such order of attachment, wa* entered into and given, f Here copy
undertaking, with indorsements of approval of same, etc.]
ORDER OF ATTACHMENT.
And thereupon. "on the day of , A. D. 18 , the following order
of attachment was issued in aid causo: [Here copy the order of attachment,
etc.]
NOTE. The clerk will thus pruceed to record, in tbeir regular order, al)
pleading*, writ", and returns of samo; all nffidnvita and undertakings requisite
t>i obtain tuch writs; all motions filed in the cau.->o, and all the journal en trie*,
down to and including the final judgment, or order. But no evidence, either
in the form of affidavits, depositions, writings, document*, or otherwise, U to b*
132 CODE PRACTICE AND PRECEDENTS.
recorded not even bills of exceptions (unless the party require it) which are
simply to be filed, and only the journal entries of thoir allowance and signing
go into the complete or final record. 5302.
With the final judgment, or order, the complete record closes:
II. Y., Presiding Judge.
ATTESTATION AND CERTIFICATE OF RECORD.
[Form 113.]
The State of Ohio, County, ss.
I hereby certify, that the foregoing is truly taken and copied from the
records and proceedings of the Court of Common Pleas, within and for
said county of .
In testimony whereof I do hereto subscribe. my name and affix the soal
of said court, this day of , A. D., 18 .
J. L., Clerk of the Court of Common Pleas of County.
(a) The above form and the following one, 114, were held to bo suf-
ficient by the Supreme Court of the United States in Ferguson v. liar-
wood, 7 Cranch, 408, where it was specially objected to the foregoing
form, that it did not purport to be a full copy of tho reeord of all the
proceedings in the case.
When presiding judge's certificate, in addition, is requisite. The act of
Congress of May 26, 1790, provides: "That the records and judicial
proceedings of the courts of any state shall be proved or admitted in
any court within theUnited States, by the attestation of the clerk, and
the seal of the court annexed, if there be a seal, together with a cer-
tificate of the judge, chief justice, or presiding magistrate, as the caso
may be, that the said attestation is in due form." And by the second
section of a supplementary statute, passed March 27, 1804, all the pro-
visions of the statute of 1790 are made to " apply as well to the public
acts, records, judicial proceedings, and courts of the respective territories
of the United States, and countries subject to the jurisdiction of the
United States, as to the public acts, etc., of the several states.
(ft) If such complete record is to be used as evidence within the state,
the judge's certificate is not necessory, though if required for any pur-
pose in a federal court within the state, it may be safe to have
the judge's certificate. Such certificate is easily obtained, and will
prevent objection on that ground. W hen a question can be prevented
from arising in a case by doing something, or embodying a statement in a
COMPLETE RECORD OF TUB CASE AND DOCKETS. 133
pleading or entry, *nch thing should always be done, or sitcJi statement made,
<IA it nuiy rave mudi delay, labor, and hazard.
(c) Without such judge's certificate, in addition to that of the
dork, such record is not competent, or admissible in evidence in the
courts of another state, whetherstate or federal courts. 9 ('ranch, 122.
(d) If the court have no seal, that fact must be stated in the cer-
tificate of the clerk or judge.
JUDGE'S CERTIFICATE.
[Form 114.]
I, , presiding judge of the Court of Common Fleas, within and for
the county of , and State of Ohio, do certify that J. L. is clerk of said
court, and that his attestation aforesaid is in due form of law.
This (\ny of , , A. p. IS .
II. Y., Presiding Judge of the Court of in and for Co., O.
(o) It is not necessary to authenticate tho signature of such judge,
or that he is such. The act of Congn-ss does not require it ; and
Congress is vested with p;>wer to declare what shall l>e requisite to ren-
der such records competent evidence. A certificate of the clerk that
such judge is judge i.s unnecessary and a mere nullity.
(6) The clerk's certificate to the record of a federal court renders it
competent evidence in all courts, state as well as federal, without the
certificate of the judge. It is only state and not federal courts that
are mentioned iu the act of May 26, 1790.
.
134 CODE PRACTICE AND PRECEDENTS.
CHAPTER X.
EXECUTION.
When execution may issue. An execution may issue so soon as final
judgment is rendered in a cause, or upon the entry of an order, spe-
cially awarding execution for what is specified therein, whether the
final or complete record be made up or not. And when the party en-
titled to have the execution issued has not done so, or the execution
issued at his instance has not been satisfied as to costs, execution may
issue as follows :
SEC. 1321. {Sup., p. 86.) When the party recovering neglects
to sue out execution immediately, or after such execution has been re-
turned without satisfaction of costs, the clerk may, for his own benefit,
or shall, at the instance of any person entitled to fees in the bill of
costs, taxed against either party, issue against the party indebted to
such clerk or other person, for such fees, whether plaintiff or defend-
ant, an execution to compel the party to pay his own costs, in the fol-
lowing form, to wit :
[Form 115.]
The State of Ohio, County, ss.
To the Sheriff of County, Greeting:
Whereas, in a certain civil action lately prosecuted in the Court
of County, wherein was plaintiff and was defendant, the
costs * of said were taxed at dollars, cents. You are there-
fore commanded, that of the goods and chattels, or for the want of goods
and chattels, of the lands and tenements of the said , in your county,
you cause to be made the costs aforesaid, with interest thereon from the
day of , A. i>. 18 [the date of the judgment], until paid, and costs
that may accrue. And if you shall levy and make said costs and inter-
est, do you have the same before the Court of County, within
sixty days from the date hereof, to render unto the persons entitled to
the same; and have you then and there this writ.
Witness my hand, and the seal of the court, this day of ,
A. D. 18.
[SEAL.] A. B., Clerk.
(a) The former statute required the order of the court to authorize
issuing an execution for costs, but this requirement is omitted in the
present statute. Under the former statute, a general and standing
EXECUTION. 135
onler of the Court of Common Pleas, directing the clerk to issue ex-
ecution for liis own benefit, and at tin- instance of any |>erson entitled
:-, will authorize tin- clerk, without any special order, to issue
such execution. Elliott \. Mlery, 11 O. 300.
When issued at the instance of u j>er?on other than the clerk, a
precipe for such execution should he filed before the writ issues.
(6) Interest on the plaintiffs costs, which are carried into his judg-
ment, i- authorized, but not on accruing costs incurred by him, but not
paid. This has been the law of Ohio except for the two years from
to 1854, inclusive. EmmiU v. Krophy, 42 O. 8. 82, 91, 93, 94.
(c) Every party is liable for the costs he makes in a cause.
SEC. 1322. (Sup., p. 86.) In all transcripts given by justices of the
peace, the costs of each party shall be stated and set forth separately;
and in nil causes taken from the Common Pleas Court to the Circuit
Court, on error or appeal, the clerk of the Common Pleas Court shall
certify to the Circuit Court the costs of each party separately ; anil
the clerk of the Circuit Court, in like manner, shall certify in the
mandate to the Common Pleas Court, for execution, the costs, in the
Circuit Court, of each party separately ; and the costs of the 1 >-in.r
party in the Circuit Court, as well as the costs of the successful party,
shall be collected by process from the Common Pleas Court in the
manner prescribed in section 1321, excepting costs, the collection of
which H provided for in the next section. 1323.
How co*ta entered in judgment and on record Plaintiff can mi release
corf* due to oilier*, carried into his judgment SEC. 1319. (Sup. , p. 85.) OB
the rendition of judgment in any cause, the costs of the party i
erinir, together with his debt or damages, shall be carried into his
judgment; and the costs of the party against whom judgment is ren-
dered shall bo stated in a separate clause of the record or docket entry ;
but no party in whoso favor judgment for costs has been, or may h< n
after be rendered in any cause, shall have power to release, satisfy. <>r
discharge, in whole or in part, any of such costs, unless the same shall
ecu previously paid by such party to the clerk of the court, or
to the person entitled thereto, or the same shall have been legally
assigned or transferred t such party by the person or person* in
whose' name or names such costs stand taxed upon the record or
docket
(a) The party recovering can not have included in his judgment
sts made by the adverse party, and if so included, the judg-
ment as to such costs will be reversed on error. Rtusdl v. Qilct, 31* O.
"J3.
136 CODE PRACTICE AND PRECEDENTS.
Indorsement on execution of costs of party condemned, and how made.
SEC. 1320. The clerk, or justice of the peace, issuing execution for
such judgment as aforesaid, shall indorse thereon the amount of the
costs of the party condemned ; which costs shall be collected by the
officer to whom such writ is directed, in the same manner and at the
same time in which the judgment mentioned in the execution is col-
lected.
Costs, execution for, and form of. SEC. 1323. (Sup., p. 86.) The costs
adjudged against either party on continuances, amendments, or under
any special rule, may be collected at any time after judgment or order
of court awarding such costs, by process, to be issued from the court
wherein such judgment or order is made ; which process shall be in
the form prescribed in section 1321, with the following alteration:
After the asterisk (*), instead of the word " of," these words shall be in-
serted: "adjudged against the said : , on continuance ;" [or,
"amendment," or otherwise, as the case may be] ; and if the special rule
for payment of costs be in the Circuit Court, the writ shall be so al-
tered as to make it returnable to that court.
Applies to costs in all causes. SEC. 1324. In all causes heretofore
prosecuted or pow pending in any of the courts of this state, in Avhich
the costs have been or may be taxed and entered agreeably to the
foregoing provisions, the same may be collected by the process herein
provided.
Itemized bill of costs to be made and filed by clerk. SEC. 1266. The
clerk shall, in every case, immediately on the rendition of judgment,
make out and file with the papers in the cause an itemized bill of his
costs therein, including the judgment; and lie shall not issue an ex-
ecution in any cause for the costs of himself or of any other officer,
or receive any costs for himself or any other officer, unless an item-
ized statement has been rendered as required by law.
Execution, how issued and directed. SEC. 5372. An execution is a
process of the court, issued by the clerk, and directed to the sheriff
of the county ; and executions may be issued to the sheriffs of differ-
ent counties at the same time.
Kinds of execution. SEC. 5373. Executions are of three kinds:
1. Against the property of the judgment debtor, including orders
of sale.
2. Against the person of the judgment debtor.
3. For the delivery of the possession of real property; in which
case the writ shall contain a specific description of the property, and a
command to the sheriff to deliver the property to the person entitled
thereto ; and the writ may also require him to make the damages re-
EXECUTION. 137
covered for withholding the possession, and costs, or costs alone, out
of the property of the person who so withholds the p ^session.
Style of procftw. SEC. 4954. Process shall be under the seal of the
court from which it issues, be styled " The State of Ohio, County,"
be signed by the clerk, and bear date the day it is actually issued.
Execution without the seal of the court is void. Bool v. Kin-i
SO 11.
(6) Process bearing proper test, signed by deputy clerk, is sufficient,
though more technically correct for the deputy to sign for his principal.
Walker v. Bank of CirdeviUe, 15 O. 288.
(e) A slight impression upon process, after the lapse of many years,
i.s [> resumed to be a seal. Heighioay v. Pendleton, 15 O. 735.
And when a judgment obtained upon unsealed process is re*
vivcd without objection, the want of a seal does not impair its valid-
ity. Id.
When a defendant appears to the action, it renders a summons un-
necessary, as the object of a summons is only to effect the appearanco
of the defendant.
,>erty fiibjecl to levy and sale. SEC. 5374. Lands and tenements,
including vested interests therein, and permanent leasehold estates re-
neuahlc forever, and goods and chattels, not exempt by law, shall bo
sulij.M-t to the payment of debts, and shall he liable to be taken on ex-
ecution and sold as hereinafter provided.
The command and indorsement of the irrit of execution. SEC. 5381.
The writ of execution against the property of the judgment debtor,
issuing from any court of record, shall command the officer to whom
it is directed, that of the goods and chattels of the debtor he cause to
be made the money specified in the writ, and, for want of goods and
chattels, that he cause the same to be made of the lauds and tene-
ments of the debtor; but an execution issued on a judgment rendered
against a partnership, by its firm na*ne, shall operate only on the
partnership property ; and the exact amount of the debt, damages,
and costs for which the judgment is entered shall be indorsed on the
execution.
(a) A decree ift chancery, in the supreme court of the county,
was remanded to the Common Pleas for execution, and the clerk of
that court issued merely a certified transcript of the decree, conUiinin^
no description of the land, except by reference to other parts of the
record, and it was held that a sale made upon such writ was not void,
but irregular, and that it was rightfully set aside. Rhonemiu v. Cor-
vrm, 9 O. S. 366.
138 CODE PRACTICE AND PRECEDENTS.
In what cases no preference given to executions. SEC. 5382. When
two or more writs of execution against the same debtor are sued out
during the term in which judgment was rendred, or within ten days
thereafter; and when two or more writs of execution against the same
debtor are delivered to the officer on the same day, no preference shall
be given to either of such writs; but if a sufficient sum of money be
not made to satisfy all executions, the amount made shall be dis-
tributed to the several creditors in proportion to the amount of their
respective demands ; in all other cases the writ of execution first de-
livered to the officer shall be first satisfied ; and the officer shall in-
dorse on every writ of execution the time when he received the same ;
but nothing herein contained shall be so construed as to affect any
preferable lien which a judgment on which execution issued has on
the lands of the judgment debtor.
(a) An execution issued on a judgment rendered in another county,
though during the term of the court in the county where the lands
lie, if levied upon the same during the term, or within ten days
thereafter, will give a prior lien to an execution issued upon a judg-
ment rendered during such term.
(6) A judgment is a lien upon the debtor's lands within the county
for five years from its rendition, but a junior judgment by execution
and levy obtains a priority over a senior judgment upon which no
execution has been issued and levy made within a year after its rendi-
tion. A mortgage is a Ren from the time it is left for record in the
recorder's office.
In Holliday v. Franklin Bank, 16 0. 535; Brazee v. Lancaster Bank,
14 O. 318, it was held that when there is a senior judgment and
no levy within the year, a junior judgment and a levy within the
year, which gave it precedence over the senior judgment, and an in-
tervening mortgage which had precedence over the junior judgment,
the lien of the senior judgment should prevail over both the other
liens. This prevented one of the lien-holders taking the fund from
another, in a perpetual round. Such mortgage and Jwmestead prevail
over the senior judgment. 5440. Van Thornily v. Peters, 26 O.
S. 475.
(c) This section only applies to liens which are equal, and not to
cases where, upon other principles one party has a preferable lien.
Patton v. Sheriff, 2 O. 395 ; Waymire v. Staley, 3 O. 366 ; Bank v.
Roosa, 13 O. 334.
(d) If judgment liens be equal, and executions upon both be issued
and levied upon lands within the county, within one year from their
EXECUTION. l:;.i
rendition, neither can acquire a preference over the other. Northern
Bank v. Roo*a t 13 O. 334.
Goods and chattrla to be first token ; for want thereof lands to be levied on.
SEC. 5383. The officer to whom a writ of execution is delivered shall
proceed, immediately, to levy the same upon the goods and chattels of
the debtor; but if no goods and chattels can be found, the officer shall
indorse on the execution the words " no goods," and forthwith levy
the same upon the lands and tenements of the debtor which are liable
to satisfy the judgment
\l~lien officer may take bond for their delivery. SEC. 5384. When a
sheriff 1 , coroner, or other officer levies, by virtue of an execution, upon
any goods and chattels which afterward remain upon his hands unsold
for want of bidders, for the want of time to advertise and sell, or for
any other reasonable cause, the officer may, for his own security, take of
the defendant an undertaking, with security, in such sum as he deems
sufficient, to the effect that the property shall be delivered to the offi-
cer holding an execution for the sale of the same, at the time and
place appointed by such officer, either by notice given in writing to
tin- defendant in execution, or by advertisement published in a news-
pa |MT printed in the county, naming therein the day and place of sale ;
aii'l if the defendant fail to deliver the goods and chattels at the time
and place mentioned in the notice to him given, or to pay to the officer
holding the execution the full value of such goods and chattels, or the
amount of the debt and costs, the undertaking shall be considered us
broken, and may be proceeded on as in other cases.
ce of tale of goods on execution. SEC. 5385. The officer who
- upon goods and chattels by virtue of an execution issued by a
court of record shall, before he proceeds to sell the same, cause public
notice to be given of the time and place of sale, for at least ten days
before the day of sale, which notice shall be given by advertisement
published in a nc\vspa[>er printed in the county; or, if no newspaper
is printed therein, by posting advertisements in five public places in
uuty, two of which shall be put up in the township where the
wile la to be held.
(a) The newspaper must be one printed in the English language,
that being the legal language of the state. Publication in any other
than one printed in the English language must be authorized or
required by statute.
Alias execution against unsold goods, SEC. 5386. When goods and
chattels levied upon by execution can not be sold for want of bidders.
140 CODE PRACTICE AND PRECEDENTS.
or want of time, the officer who makes the return shall annex to the
execution a true and perfect inventory of the goods and chattels re-
maining unsold ; and the plaintiff in such execution may thereupon
have another execution issued, directing the sale of the property levied
upon ; but such goods and chattels shall not be sold unless the time
and place of sale be adverted as directed in the preceding section.
(a) When property easily removable is seized in execution, but left
in the possession and use of the defendant, a delay for an unreasonable
time to offer the property for sale, with the sanction and assent of the
plaintiff, \\ill have the effect of postponing such levy to one made
upon a junior execution. Acton v. Knowles, 14 O. S. 18.
(6) The question whether the delay, if any, was reasonable or un-
reasonable, depends on the circumstances surrounding the parties and
the property seized in execution, and is a question for the jury, under
the instructions of the court. Ib.
(c) A writ of sale under this section presupposes a previous valid
levy ; but when there is a mere paper levy, which is void (the officer
failing to possess himself of the property by levy under the writ), or
when there has been a valid levy which has become fraudulent and
void as against subsequent creditors, such an order of sale is inopera-
tive as against subsequent executions actually levied on the property.
Murphy v. Swadener, 33 O. S. 85.
(c?) When a writ of sale founded on such void levy contains a clause
authorizing an additional levy under section 5388, it is valid as ufi.fa.
execution only, which may be levied upau the property specified in the
original void levy, as well as upon other property. Ib.
(e) Fieri facias (that you cause to be made) is the ordinary execu-
tion issued upon a judgment t;> be levied upon the debtor's property.
The "writ of sale" above mentioned is the writ of vemlit'wni exponas
(that you expose to sale), and orders the officer to sell property pre-
viously levied upon by him. This is what is meant by a vendi with a
fi. fa. clause, provided for in section 5388.
(/) Where a sheriff levied upon a growing crop of wheat, and with
the consent of the creditors, but without an order of court authorizing
a private sale, agreed to sell the wheat to a purchaser, when threshed,
for cash on delivery at a warehouse, and did deliver the same in pur-
suance of such agreement of sale, but before he could receive the
money from the purchaser, the wheat was replevied from the purchaser
upon a chattel mortgage, after condition broken, filed subsequently to
the levy upon the growing crop, it was held that the levy still sub-
sisted, and gave the execution creditors the right to the same in prefer-
EXECUTION. 141
once to the subsequent mortgagee. Houk v. Condon, 40 O. S. 569.
35387.
Public and private sale of goods on execution, SEC. 5387. All sales
of goods and chattels shall be at public auction ; but the court from
which on execution or order of sale issues, or a judge thereof in vaca-
tion, may, on good cause shown, on application of either party, and
due notice to the adverse party, make an order directing the sheriff,
or other officer holding the pr;>ccss, to sell such goods and chattels at
private sale for cash, specifying the time, not extending beyond the
return day of the process, during which such sale will continue; but
before such private sale is made, the court shall order such personal
property to be appraised by three disinterested persons; and the prop-
erty shall not be so sold for less than two-thirds the appraised value
thereof.
Furtiter writ of execution may direct another levy, if tiiefirzt be insufficient.
SEC. 5388. When a writ is issued directing the sale of property previously
taken in execution, the officer who issues the writ shall, if requested
by the person entitled to the benefit thereof, or his agent or attorney,
add thereto a command to the officer to whom the writ is directed,
that if, in his opinion, the property remaining in his hands not sold is
insufficient to satisfy the judgment, he shall levy the same upon
lands and tenements, goods and chattels, or either, of the judgment
debtor, ns the law permits, sufficient t. satisfy the debt
(a) See note () to section 5386.
Land A to be appraised before sale by tiirec freeholders. SEC. 5389.
When execution is levied upon lands and tenements, the officer who
rn:ik( the levy shall call mi inquest of three disinterested freeholders,
who shall l.e residents of the county where the lauds taken in execu-
tion are situate, and administer to them an oath impartially t > ap-
praise the property BD levied upon, upon actual view, and such free-
holders shall forthwith return to such officer, under their hands, an es-
timate of the real value of the property in money.
(a) In directing a sale of real estate, especially where a title i.s to
para, a court is not at liberty to order a sale without appraisement,
Wilit \. Laylor, 1 Q. 509. But a sale made to one not n jwirty to the
nrtion, without appraisement, vests in him a good title. Allen v.
l'<iruh t 3 O. 187, overruling Patrick v. Ousterout, 1 O. 27.
(6) Where there are two executions and levies of the same date,
nti'l an appraisement 0:1 each, and a second appraisement on one, no
valid sale can bo made on the other upon such second appraisement.
142 CODE PRACTICE AND PRECEDENTS.
Daniels v. McBain, 2 O. S. 406, 408. This case reversed the order
confirming the sale, and was prosecuted by the judgment debtor
against the judgment creditor.
(c) Where the appraisers described an improved lot as containing
thirty feet, and valued it at $ 260 per front foot, which description was
carried into the advertisement of sale and return, and it subsequently
appeared that the lot was only twenty-seven feet front, the court could
not modify the terms of the sale, and deduct from the aggregate pur-
chase-money the price paid per foot front for the deficiency. Trust Co.
v. Goodln, 10 O. S. 557. But if the purchaser had been actually
misled by such description, and bid off the property under mistake as
to quantity, and otherwise would not have bid the sum he did, upon
principle, he could have had the sale set aside on his motion.
(d) The return of the sheriff is prima facie evidence of the amount
and nature of the appraisement. On petition in error to reverse an
order of confirmation, it can not be assigned forerror that the findings
of the court were contrary to the evidence, and the copy of the ap-
praisement deposited with the clerk can not be considered by the re-
viewing court, unless embodied in a bill of exceptions. Wilson v. Scott,
29 O. S. 636.
Copy of appraisement to be deposited with clerk. SEC. 5390. When
the officer receives the return he shall forthwith deposit a copy thereof
with the clerk of the court from which the writ issued, and immedi-
ately advertise and sell such real estate, agreeably to the provisions of
this chapter.
Extent of lien Sale for debts due the state without appraisement. SEC.
5391. If, upon such return, it appear by the inquisition that two-
thirds of the appraised value of the lands and tenements so levied upon
is sufficient to satisfy the execution, with costs, the judgment on which
the execution issued shall not operate as a lien on the residue of the
debtor's estate, to the prejudice of any other judgment creditor; but no
tract of laud shall be sold for less than two-thirds of the value re-
turned in the inquest; and nothing in this section contained shall affect
the sale of lands by the state; but all lands, the property of individ-
uals indebted to the state for any debt or taxes, or ia any other manner,
except for loans heretofore authorized by the legislature, shall be sold
without valuation, for the discharge of such debt or taxes, agreeably
to the laws for such case made and provided.
Property of certain officers to be sold without valuation. SEC. 5392. If
the property of a clerk, sheriff, coroner, justice of the peace, or*
constable, or of a collector of state, county, municipal corporation, or
EXECUTION. 11)
tax, be levied on, for or on account of any money by him
or received in his official capacity, the property so levied on
.hall IT M)1<1 without valuation.
The notice of the tale of lands. SEC. 5393. Lands and tenements
taken in execution shall not be sold until the officer causes to be given
public notice of the time and place of sale for at least thirty days be-
fore the day of sale, by advertisement in a newspaper printed and of
general circulation in the county ; or, if no newspaper is printed in the
county, in a newspaper of general circulation therein, and by putting
up an advertisement of the same upon the court-house door, and in
jive other public places in the cninty, two of which shall be in the
township where the lands and tenements are situate ; when the ad-
vertisement is made in a newspaper published weekly, it shall be suffi-
cient to insert it in five consecutive numbers thereof, but if there is
published both a daily and weekly edition of the newspajwr selected
for such advertisement, and the circulation of the daily in the county
Is that of the weekly, or, if the lands and tenements taken in
execution are situate in any city in this state, and there is published
both a daily ar.d weekly edition of the newspaper selected for such ad
vertiseraent, and the circulation of the daily in such city exceeds that
of the weekly, it shall be sufficient to publish the advertisement in the>
daily once a week for five consecutive weeks before the day of sale,
each insertion to be on the same day of the week; but the expense of
Mich publication in a daily newspaper shall not exceed the cost of pub-
lishing the same in a weekly newspaper, and all sales made without
such advertisement shall be set aside, on motion, by the court to which
the execution is returnable.
(a) The word " city" is synonymous with " municipal corporation,"
as used in this section.
(6) When a newspaper is printed and of general circulation in the
county, it is sufficient for the sheriff to advertise sales upon execution
in it, and it is not required that he should put up notices on the door
of the court-house and at other places. Fitch v. Duiilap, 2 O. 78.
(c) In computing the time for which notice of the sal.- should In- ad-
vertised, the day on which the notice was first published may be in-
cluded,* and the dny of sale roust be excluded and when the notice is
published in a daily newspaper, it is sufficient if the first publication
l>c thirty days before the day of sale. Hagtrman v. Saving* Automation,
25 O. 8. 186.
(rf) When notice of the time and place of sale by a sheriff is ad-
-ed for thirty days l>efore the day of sale, in a weekly newspaper,
it is no objection that the first number containing the notice was
144 CODE PRACTICE AND PRECEDENTS.
printed and published in advance of the day of the week on which the
publication was usually made. Wilson v. Scott, 29 O. 8. 636.
Publication of notice in German and Bohemian newspaper Mistakes in
not to affect validity of sale. SEC. 5394. In any county in which
there is a city wherein is printed and published a newspaper in
the German language, which was established and issued before the
seventeenth day of April, one thousand eight hundred and seventy-
nine, and which has a circulation of at least five hundred and
fifty copies to bona file subscribers within the county, the notice
required by the preceeding section shall, in addition to the publication
therein required, be published in such newspaper in the German lan-
guage, for the same time, and in the same manner, if the appraised
value of the property to be sold exceeds five hundred dollars, and if
two or more such papers are printed and published therein, the publi-
cation may be in either; but the court shall, on motion of the defend-
ant, and may without motion, for good cause, dispense with such pub-
lication; and in any county, the court may, if it deem the interests of
the defendant require it, direct the publication of the notice in a news-
paper printed in the Bohemian language, in addition to the publica-
tion required by the preceding section ; but no error or mistake in
translation, or in any publication authorized by this section, shall de-
lay proceedings, or affect the title of property sold ; and if any
such error or mistake occur by the negligence of the publisher, he shall
not be entitled to compensation for the publication.
Return of the tvrit and record thereof Part of the record of the court.
SEC. 5395. The sheriff shall indorse on the writ his proceedings thereon,
and the clerk shall immediately, upon the return thereof, record at
length, in the execution docket, or other docket provided for that pur-
pose, all such indorsements, and the record shall be held to be a part
of the record of the court.
Duty of sheriff where money made without sale of real estate. SEC.
5396. If the sheriff collect any part of a judgment by virtue of an
execution without the sale of real estate, he shall pay the same to the
judgment creditor, or his attorney, upon demand made therefor at his
office, and if the execution be fully satisfied, he shall return it within
three days after he has collected the money thereon.
When execution to be returned, sixty days. SEC. 5418. The officer to
whom a writ of execution is directed shall return such writ to the
court to which it is returnable within sixty days from the date thereof.
(a) The return of a sheriff, as to the description of property levied
EXECUTION. 145
upon, can not be amended so as to prejudice other liens intervening
between the time of levy and the date of the amendment ; and if an
amendment be made, the lien of the levy will only operate, as to third
persons, from the time of amendment. Trust Co. v. Insurance Co., 13
20.
1 6) The date of a return, indorsed by a sheriff* on a writ of execu-
tion issued to him, is not conclusive evidence of the time when such
writ was returned by him to the court, and such writ may be returned
to the court when in session, without passing, in fact, through the
hands of the clerk, or being filed in his office. Cockling v. Parker, 10
O. 8. 28.
(c) On injunction granted to stay execution after a levy on chattels,
the sheriff is bound to restore the chattels levied on to the owner.
Bisbee v. hall, 3 O. 449.
(d) A defect in the description of the property in a levy may bo
supplied by paroL Matthews v. Thompson, 3 O. 272 ; Douglas* v. Ale-
Coy, 5 O. 522.
Purchaser failing to pay punished for contempt. SEC. 5397. The
court from which any execution or order of sale issues shall, upon no-
tice, and motion of the officer who makes the sale, or of an interested
party, punish as for contempt any purchaser of real property who
fail* to pay the purchase-money therefor.
(a) The sheriff may return the fact of the sale to the purchaser,
and of his failure to pay the purchase -money, whereupon a resale may
be had, at such purchaser's risk, he being notified that it would be so
n:i'lf, and such purchaser will be liable for all the costs and legal ex-
penses of a resale, and for the difference between the amount realized
at such resale and that bid by such purchaser, when his bid was greater
than the sum realized at such resale.
Confirmation of sale Order for deed to purchaser. SEC. 5398. If, upon
the return of any writ of execution, for the satisfaction of which lands
anil tenements have been sold, it be found by the court, on careful ex-
amination of the proceedings of the officer, that the sale has been
made, id all respects, in conformity to the provisions of this title,
the clerk shall be directed to make an entry on the journal that
the court is satisfied of the legality of such sale, and that the officer
make to the purchaser a deed for the lands and tenements ; and the
officer, on making the sale, may retain the purchase-money in his
hands until the court examines his proceedings, when he .-hall pay the
10
146 CODE PRACTICE AND PRECEDENTS.
same to the person entitled thereto, agreeably to the order of the
court.
(a) When a judgment debtor pays the judgment in full, after a
sheriff's sale of his lands to satisfy it, it is error in the court thereafter
to confirm such sale against the debtor's objections. Reed v. Radington,
42 O. S. 292.
(6) On a motion to confirm a sale, the court has discretionary pow-
ers ; and if it appear that the notice was published in a paper not of
general circulation in the county, it may refuse to confirm the sale.
Craig v. Fox, 16 O. 563.
The "discretion" mentioned is a legal discretion. "By this is
meant, not the exercise of an arbitrary and capricious will governed
by the mere pleasure of the court, but, as compared with the absolute
right of a party to a judgment at law for.damages upon the breach of
a contract, a sound judicial discretion, controlled by fixed rules and
principles, in view of the special features and incidents of each case."
When legal or recognized equitable rights are shown to the court to
belong to a party, it is as much a matter of course for a court to en-
force them as to give damages for the breach of a contract. It is " the
equitable decision of what is just and proper under the circumstances."
Any other discretion of a judge would be "the law of tyrants ; al-
ways unknown, different in different men, casual, and dependent upon
constitution, temper, and passion. In the best, it is oftentimes caprice ;
in the worst, it is every vice, folly, and passion to which human na-
ture is liable."
(c) On a motion to confirm a sale, the court can look only to the ex-
ecution, and proceedings under it, and can not look into irregularities
in obtaining the judgment, or in the order awarding execution. Buck-
ingham v. Alexandria Soc. , 2 O. 360 ; Piatt v. Piatt, 9 O. 37.
(d) The proceedings of the sheriff must be examined and approved
by the court, and an order made by the court directing it to be exe-
cuted, before the execution of a deed to the purchaser; and if thi-i
course be not shown to have been pursued, a deed by the sheriff to the
purchaser will not be received as evidence of title. Curtis v. Norton,
1 O. 278.
See sections 5401 and 5402, as to such deed being prima facie evi-
dence of title, and what recitals it must contain.
(e) When a defect in the description of lauds sold at judicial sale
does not affect the price for which the same was sold, the judgment debtor
can not resist a. confirmation of the sale on the ground that the pur-
chaser does not acquire a valid title. Wilson v. Scott, 29 O. S. 636.
The debtor, in such a case, would be a mere volunteer for the pur-
KXKCUT1 147
chaser, and volunteers have no flatus in court, and will not be heard
by it.
(/) When the court refused to confirm a sale for the reason that tho
purchase-money had not Ix-on paid, and, without condition or qualifi-
a, ordered tin' sheriff to pneed to sell the premises as theretofore
onliTed.it was he-Id, that no notice having been given to the purchaser
at tho first sale that the resale would be at his risk, he was authorized
.;ard the sale to him as abandoned. Galpin v. Lamb, 29 O.
s. Q
(9) An appeal does not lie from an order confirming, or refusing to
: 11, a sale; a petition in error furnishes the only mode of review.
v. Shenett, 13 O. S. 574. Nor does it lie from the order of the
ito C'ourt setting aside a sale made by an assignee for the benefit
of creditors. Altman v. Seiberling, 31 O. S. 201.
(A) When a sale is confirmed without notice to the purchaser, and
he afterward makes a motion to set aside the sale, which is overruled,
the matters relied on in his motion are adjudicated by the entry over-
r ;ii:ig his motion, and can not be used by him as a defense in an ac-
tion against him for the purchase- money. Mayer v. Wick, 15 O.
8. 54-.
. master commissioner may convey real estate. SEC. 5399. (Sup. , p.
Real property may be conveyed by a master commissioner or
special master only, when, by an order or judgment in an action or
ding, a pnrty is ordered to convey such property to another, and
jleets or refuses to comply with the order or judgment, and the
i \< directed to convey on failure of tho party to comply with the
. when 8|>ecific real property is sold by a master under an order
r judgment of the court; but no court within this state shall make or
issue an order t<> any master commissioner for the sale of any real es-
tate, unless there exist some special reason or reasons why the sale of
said real estate should not bo made by the sheriff of the county where
said decree or order shall be made, which said reason or reasons, if the
court shall find any such to exist, shall bo embjdied by said court in
and made part of its judgment, order, or decree ordering such sale.
(a) An order of sale to the " sheriff or master," without naming
htm. and executed by a master, is good after confirmation of the sale
by him. Mcrhrtnir*' Atno'n v. CfQmner, 29 O. 8. 651.
When slicriff may act for and a* master commissioner. SEC. 5400. A
master commissioner or special master, who sells real property, shall
have the same power to administer oaths that is conferred upon the
148 CODE PRACTICE AND PRECEDENTS.
sheriff; a sheriff may act as a master commissioner, and shall, also, on
notice, and for a reasonable compensation to be paid by the master
commissioner out of his fees, attend and make sale for any such com-
missioner who, by reason of sickness, is unable, to attend ; and sales
made by a master shall conform, in all respects, to the laws regulating
sales of lands upon execution.
Deed of sheriff , master, etc. Recitals. SEC. 5401. An officer, includ-
ing a master commissioner and a special master, who sells real prop-
erty, shall, on confirmation of the sale, make to the purchaser a deed,
which shall contain the names of the parties to the judgment, the date
and amount of the judgment, the substance of the execution or order
on which the property was sold, the substance of the officer's return
thereon, and the order of confirmation ; and the deed shall be exe-
cuted, acknowledged, and recorded as is provided with respect to
other deeds.
Effect of deed of sheriff, or master, etc. SEC. 5402. The deed shall
be prima facie evidence of the legality and regularity of the sale; and
all the estate and interest of the person whose property the officer so pro-
fessed to sell and convey, whether that interest existed at the time ,he
property became liable to satisfy the judgment, or was acquired subse-
quently, shall be thereby vested in the purchaser (but levied upon and
sold under the writ).
(a) A deed no longer requires to be sealed by the party executing it,
unless a corporation. " Private seals are abolished, and the affixing of
what has been known as a private seal to any instrument whatever,
shall not give such instrument any additional force or effect, or in any
way change the construction thereof." 4 (Sup., p. 2).
(6) A sheriff's deed takes effect from the day of sale, and passes the
interest the judgment debtor had at the time of the levy. Boyd v.
Longworth, 11 O. 235. A sheriff's or master's deed on a sale under
proceedings foreclosing a mortgage vests in the grantee all the interest
of the mortgagor at the time of the execution of the mortgage.
(c) It is sufficient that a sheriff's deed recites so much of the execu-
tion and proceedings as show a clear and undoubted authority for the
execution of the deed. Armstrong v. McCoy, 8 0. 128 ; Perkins v. Dib-
ble, 10 O. 433. And its recitals of the judgment, execution, levy, and
sale are prima facie evidence that the land it conveys was levied upon
and sold; but such evidence may be rebutted by other evidence that
the land levied upon and sold is not the land covered by the deed.
Longworth v. Bank, 6 O. 536.
(d) The deed for lands sold on execution may be executed by a dep-
EXECUTION. 149
Qtv sheriff, whether the sale of the hinds was made by him or the prin-
cipal sheriff. JIaines v. Lindsey, 4 O. 88.
fee may be required in advance. SEC. 5403. The officer
who makes a levy, or holds an order of sale, may before giving notice
of t'.ie sale, demand of the plaintiff, his agent or attorney, the fees of
the printer for publishing such notice ; and in such case the officer
shall not be required to make such publication until the fees are paid.
Wliere sales take phx Who can not purchase since March 29, 1841.
>404. All sale* of lands or tenements under execution or order,
of sale shall be held in the county in which such lands and tenements
are situate, and at the court-house, unless otherwise ordered by the
court ; and purchases of real or personal property, by the officer mak-
ing sale thereof, or by any appraiser of such property, shall be con-
'I fraudulent and void; but this section shall not effort, un-
less for fraud, sales by executors, administrators, or guardians, prior to
March 29, 1841.
Alia* execution ayainai lnnh. SEC. 5405. If lands and tenements
levied on, or ordered to be sold, bo not sold upon one execution, other
executions may be issued to sell the same.
Proceedings when creditors direct sejMrate levies to be made on separate jtar-
eels of land. SEC. 540G. When two or more executions come to tho
hands of an officer, and it is necessary t > levy on real estate to satisfy the
same, and either of the judgment creditors, or his assignee, requires the
officer to make a separate levy to satisfy his execution, or executions,
the officer shall obey the directions ; but t'.ie officer who makes tho levy
on behalf of the creditor who.se execution may, by tho provisions of
this chapter, be entitled to a preference, shall have tho choice of such
part of the real property of the judgment debtor or debtors as will bo
sufficient, at two-thirds of tho appraised value, to satisfy tho same ;
when two or more executions, which are entitled to no preference as to
each other, are put in tho hands of tho samo officer, he shall, when
n- jiiired, levy the samo ou so|Kirate parcels of the real property of the
I i<L'inent debtor or debtors, if, in the opinion of the appraisers, the
same may !> divided without material injury; and if tho real property
of such debtor or debtors be not sufficient, at two-thirds of its appraised
value, to satisfy all tho executions chargeable thereon, such part of
the same shall be levied on, to satisfy each execution, as will bear tho
NIMH* proportion in value to the whole, as the amount due on tho
execution bears to tho amount of all the executions chargeable thereon,
as near as may be, according to the appraised value of each separate
parcel.
150 CODE PRACTICE AND PRECEDENTS.
Successor of sheriff may make deeds for land sold by predecessor Order
of cow t on proof and clerk's certificate. SEC. 5407. If the term of serv-
ice of the officer who makes sale of any lands and tenements expires,
or if such officer die, be absent, or unable from any cause to make a
deed of conveyance of the property sold, any successor of such officer,
o.i receiving a certificate from the court from which execution issued
i'.ir the sale of the lauds and tenements, signed by the clerk, by order
of the court, setting forth that sufficient proof has been made that the
sale was fairly and legally made, and, on tender of the purchase-money,
or if the same, or any part thereof, has been paid, then, on proof of
s:ich payment, and tender of the balance, if any, may execute to the
purchaser, or his legal representative, a deed of conveyance of the
lands aud tenements sold ; and such deed shall be as good and valid in
law, and have the same effect, as if the officer who made the sale had
executed the same.
(a) If the sale has been confirmed and the former officer ordered to
make a deed to the purchaser, a successor will be ordered to make the
deed on showing to the court that no deed was made by the former offi-
cer. The former sheriff's cash-book will show the payments made by
the purchaser, and the return of the writ or order will prove what
terms of the sale have been complied with by the purchaser, in cases
where the court has not previously ordered a deed to be executed.
After satisfaction of execution, balance to be paid to defendant. SEC.
5408. When, on any sale made as aforesaid, there is in the hands of the
officer more money than is sufficient to satisfy the writ or writs of exe-
cution, with interest and costs, the officer shall, on demand, pay the
balance to the defendant in execution, or his legal representatives.
Reversal of judgment not to effect title of purchaser. SEC. 5409. If a
judgment, in satisfaction of which lands or tenements are sold, be
thereafter reversed, such reversal shall not defeat or affect the title of
the purchaser; but in such case restitution shall be made, by the
judgment creditor, of the money for which such lands or tenements
were sold, with lawful interest from the day of sale.
(a) This section was doubtless enacted upon the theory that the
debtor party had it in his power to institute proceedings in error to
reverse the judgment upon which the execution or order of sale issued
and upon which the sale of his lands was made, and, by giving an error
bond, could have prevented such sale; otherwise he could be deprived
of his property without " due process of law ; " compelled to take a
specific sum of money for it, or rather a claim against the plaintiff
EXTOUTION. 151
for a sjH.viHi' -=11111 of money, even if tiie plaintiff .-houid l* insolvent,
and nt \t i i niiik-il t<any thin- t'r-.in the defendant wh owned the laud.
Remedy of jmrcJuuer at *>tlc, if sale invalid Subrogation to rights of
creditor Creditor not compelled to refund. &KC. 5410. If, upon sale
of property on execution, the title of the purchaser is invalid by rea-
< >n of a defect in the proceedings, the purchaser may be subrogated
to the right of the creditor against the debtor, to the extent of the
money paid and applied to the debtor's benefit, and, to the same ex-
-h:ill have a lien on the property sold, as against all persons, ex-
cept fronaji/e purchasers without notice; but this section shall not In-
construed t > require the creditor to refund the purchase-money, by
reason of the invalidity of any such soles.
Remedy in tax and otfier invalid sales. SEC. 5411. The last section
shall apply, also, to all sales by order <:f court, sales by executors,
administrators, guardians, and assignees, and to all sales for taxes.
Proceedings to vacate satisfaction of judgment Motion and notice to
defendant. SEC. 5412. -When a plaintiff in execution, or his agent,
has, in good faith, ordered a levy of execution upon property not sub-
ject thereto, and the same has been sold and applied on his judgment,
and a recovery therefor has been had against him by the owner of the
property, the person so recovered against, and having paid the amount
recovered, may, on motion in the court having control of the judg-
ment, upon giving the judgment defendant notice of such motion,
the satisfaction, BO made from the sale of the property on exe-
cution, vacated, and shall be entitled to collect the judgment.
Relief of officer who levies upon and selli wrong property in good faith.
SEC. 5413. When an officer to whom an execution has been issued
upon a judgment levies the execution, in good faith, upon property not
subject thereto, and sells the same, and applies the proceeds in satis-
faction, or part satisfaction, of the judgment, and a recovery is had
against him for its value, the officer, upon jmymont of such value, and,
on motion before the court having control of the judgment, and a show-
ing to the court that due notice of such motion has been given to the
defendant named in the execution, may have the satisfaction of such
judgment, so made from the sale of such property, vacated, and ex-
rut ion shall issue therefor, for the use of such officer, the same as if
-;:<': i levy and sale had not been made.
/' meily when one defendant or of co-mtreties, etc., teho pays for such prop-
rritj. SKC. 5414. When u defendant in a judgment, or a surety or co-
Min-ty of such defendant, ha-, by mistake, directed an execution issued
on the judgment to be levied on property not liable to such execution,
152 CODE PRACTICE AND PRECEDENTS.
and thereby caused such judgment to be wholly or in part satisfied,
and has been compelled to pay the owner of such property therefor, he
shall be adjudged to have the same rights against any co-defendant in
such judgment, and against any co-surety or principal, in respect of
the debts on which such judgment is founded, as though such satis
faction had, by due process of law, been made out of the property
of such defendant, surety, or co-surety, so directing such levy.
New appraisement for sale on execution. SEC. 5416. When real es-
tate, taken on execution and appraised, and twice advertised and of-
fered for sale, remains unsold for want of bidders, the court from
which th3 execution issued shall, on motion of the plaintiff, set aside
such appraisement, and order a new appraisement to be made, or set
aside such levy and appraisement, and award a new execution to issue,
as the case may require ; and when such real estate, or any part
thereof, has been three times appraised as aforesaid, and thereafter twice
advertised and offered for sale, and then remains unsold for want of
bidders, the court may direct the amount for which the same shall be
sold.
Of mortgaged premises, etc. SEC. 5417. When premises are ordered
to be sold, and having been twice advertised and offered for sale, re-
main unsold for want of bidders, the court from which the order of sale
issued shall, on motion of the plaintiff or defendant, order a new appraise-
ment, and may also order that the land be sold on time, as follows:
One-third cash in hand, one-third in nine months from the day of sale,
and the remaining third in eighteen months from the day of sale, the
deferred payments to draw six per cent interest, and to be secured by
mortgage on the premises.
(a) No credit can be given on sales on execution without the con-
sent of all the parties interested. Such sales must be for cash.
(SEC. 5418, given ante.)
How judgment against principal and surety entered Execution in such
cases. SEC. 5419. When judgment is rendered in a court of record
within this state, upon an instrument of writing in which two or more
persons are jointly or severally bound, and it is made to appear to the
court, by parol or other testimony, that one or more of the persons so
bound signed the same as surety or bail for his or their co-defendant,
the clerk of such court, in recording the judgment thereon, shall cer-
tify which of the defendants is principal debtor, and which surety or
bail; the clerk shall issue execution on such judgment, commanding
the officer to cause the money to be made of the goods and chattels,
lands and tenements, of the principal debtor, or, for want of sufficient
EXECUTION. 153
property of the principal debtor to make the same, that ho cause the
fame to be made of the goods and chattels, lands and tenements, of
the surety or bail; and the property, both personal and real, of the
principal debtor, within the jurisdiction of the court, shall be ex-
hausted before any of the property of the surety or bail shall he taken
in execution.
(a) If the court should refuse, in n proper case, to permit such cer-
titi'-ate to be entered, and the facts appeared in a bill of exceptions, it
would be corrected on error; but n bare omission can only l>e cor-
rected in the court where the judgment is rendered. Kelly v. Collins,
11 O. 310.
(6) If sureties neglect, when judgment is rendered, to cause the
entry to be made that they are sureties, chancery will not compel the
judgment creditor to first exhaust the property of the principal. El-
liott v. EUmore, 16 O. 27.
The reason is, such sureties had a plain remedy provided by statute
to enable them to have this done, of which they neglected to avail
themselves. Chancery will not relieve against such neglect, flic*
also Day v. Ramey & Co., 40 O. 8. 446.
(c) Such finding by the court, and certificate iu the judgment, do
Dot conclude the parties in a subsequent action for contribution ; and
the effect is n it changed by the fact that tho defendant* appeared at
the trial and filed answer, and each alleged that he was surety and tho
others principal debtors. Gatrh. v. Simpkin*, 25 O. 8. 89.
In an action between plaintiff and several defendants, all tho de-
fendants are principals so far as the issues in the action are concerned.
The right of a surety to be certified as such u to affect the collection
of the. judgment on execution.
(d) When the holder of a joint and several obligation sues tho
surety alone, the surety can not, by cross-petition or otherwise, bring
in his principal, to the end that the certificate of suretyship may bo
put into the judgment, although the holder knew that such relation-
ship exists. Wilkins v. Batik, 31 O. fl. 565.
() The consent of parties to u judgment in open court, at the time
it is rendered, (hut one or more of the defendants may lie certified na
sureties, is sufficient. Peter* v. Me William*, 36 O. S. 155.
SEC. 5420. Relates to appraiser's fees fifty cents per day ; and tho
penalty for failure to serve as appraiser, without reasonable excu-\
fifty cents, to bo recovered before a justice of the peace, etc.
Button iMued io another rou-ity tn-ty fa rftnrnfd by mail. SEC. 5421.
When execution is issued in any county, and directed to the sheriff
154 CODE PRACTICE AND PRECEDENTS.
or coroner of another county, the sheriff or coroner having the execu-
tion may, after having discharged all the duties required of him by law,
transmit such execution by mail to the clerk of the court who issued
it; and on proof made by such sheriff or coroner that the execution
was mailed soon enough to have reached the office where it was issued
within the time prescribed bylaw, he shall not be liable for any amerce-
ment or penalty if it does not reach the office in due time.
Money not to be forwarded by mail, unless, etc. SEC. 5422. No sheriff
or coroner shall forward by mail any money made on such execution,
unless he be specially instructed to do sa by the plaintiff, his agent, or
attorney of record.
Note. When lands are sold at any judicial sale, the taxes unpaid and a
lien upon such lands are to bo ordered by the court to be paid out of the pur-
chase-money. If such lands have been sold at delinquent or forfeited tax sale,
the tax purchaser's claim and lien for the money paid by him at such sale can not
be ordered to be paid out of the purchase-money, unless he is made a party.
The purchaser at the judicial sale takes his title subject to the tax purchaser's
claim and lien ; unless such tax purchaser by some wrongful or fraudulent act or
conduct brought about such tax sale.
SEC. 2854 provides that, when any real estate shall be sold at ju-
dicial sale, or by administrators, executors, guardians, or trustees, the
court shall order the taxes and penalties, and the interest thereon
against such lauds, to be discharged out of the proceeds of such sale.
LIKN OF JUUGMK.NTs, ETC. 1 ..">
CHAPTER XL
UTS* OF JUDGMENTS, GIVING PREFERENCE TO PROCEEI
SALE OF LANDS ON EXECUTION, ETC.
When lien of judgment attadie* to lands or goods. SEC. 5375. Such lands
and tenements, within the county where the judgment is entered, shall
be bound for the satisfaction thereof from the first day of the term at
which judgment is rendered ; but judgments by confession, and judg-
ments rendered at the same term at which the action is commenced,
shall bind such lands only from the day on which such judgments
an- rendered; rfnd all other lands, as well goods and chattels of the
<ld)t >r, shall be bound from the time they are seized in execution.
(a) The judgment named in this section is the final judgment, an<)
DIM- which is conclusive' of the matters in controversy between the par-
uid upon which execution may issue forthwith ; but an order that
tin* defendant pay the amount due on a contract for the purchase of
land, to the clerk of the court within thirty days, and in default
thereof that execution issue therefor, is a final judgment, ami oper-
ates as a lien upon the debtor's lands within the county. Lindley \.
./i, 33 O. 8. 376.
(A) The existence, validity, and extent of the judgment lien are
r.s purely legal, and dependent upon statutory provisions; and if
it fail at law, it can not be aided in equity. Douglas v. Hiuton, 6 O.
1 "''. Final judgments and money decrees of the Circuit Court of tin?
UuitedStaU'SMvco-er tensive with the district in which such court is
hell ; and some Circuit O >urt decisions have declared such liens co-
extensive with the state, though composed of more than one district ;
but as t > this query f
(c) The lien of the judgment of a court of record is co-extensive
vith the territorial jurisdiction of the court. Miller v. Murphy, I < >
Hi And the lion of a judgment of the Superior Court of Cincin-
nati extends t > all the lands of the debtor within the county, as \v. il
a> u ithin the city of Cincinnati. KUbretk v. Dm, 24 O. 8. 379. And
the judgment of tho United States Circuit Court operates as a lien
upon the lands of tho judgment debtor within the district. SeUen T.
(Jbnrin, 5 O. 398, 410; Corwin v. Benham, 2 O. 8. 36; Lawrence T.
Bdger, 31 O. 8. 175.
(d) A decree for alimony to be paid in installments does not operate
156 CODE PRACTICE AND PRECEDENTS.
as a lien upon the real estate of the defendant, unless made a charge
thereon by the decree itself. Olin v. Hunger/Orel, 10 O. 268.
(e) In order that a judgment may operate as a lien, the judgment
debtor must have a legal interest in the land, and such as can be sold
on execution to satisfy it, and, therefore, it does not bind an equitable
interest. Jackman v. Hattock, 1 O. 318 ; Baird v. Kirtland, 8 O. 21.
And where laud has been conveyed absolutely, and the grantee cove-
nants to reconvey upon the payment of a stipulated sum, to secure
which the conveyance was made, the equity remaining in the grantor
can not be sold on execution, and the lien of a judgment against him
does no"t attach to it. Baird v. Kirtland, 8 O. 21. But it does attach
to one in possession of the land, though it is not determined whether the
purchaser on execution takes any equitable interest which the possesser
has in the premises. Haines v. Baker, 5 O. S. 253. A possessory title
is legal and not equitable in its character.
A lien attaches to a vested remainder, held by a legal title. Law-
rence v. Belger, 31 O. S. 175. But it has not been decided whether
this may be sold on execution.
The rule is that an equitable, as contradistinguished from a legal es-
tate in lands, can not be levied on and sold upon execution ; but must
be reached by a creditor's action as provided in section 5464.
(/) The lien of a judgment or mortgage is not lost by the organiza-
tion of a new county which includes the incumbered lands within its
limits. Davidson v. Root, 11 O. 98.
(g) The lien does not attach, to real estate the title to which is ac-
quired after the term of the court at which the judgment is rendered.
Miller v. Murphy, 4 O. 92. Nor to lands conveyed in trust before the
judgment is rendered. Massilon Bank v.Bell, 14 O. S. 200. Nor to lands
which are contracted to be sold, except to the extent that the purchase-
money remains unpaid. Butler v. Brown, 5 O. S. 211 ; Lefferson v.
Dallas, 20 O. S. 68. Nor to the land and water-power leased of the
st-3 te. Buckingham v. Reeve, 19 O. 399. But the lien covers and includes
a water right or easement appurtenant to laud. Morgan v. Mason, 20
O. 401.
(/t) Where a judgment was confessed upon proceedings issued during
the term, it was held that its lien was inferior to the lien of a judg-
ment subsequently rendered at the same term, in an action upon which
process issued before the term ; and the fact that execution upon the
confessed judgment was issued and levied within ten days after the
term, and upon other judgments afterward, and within the year, did
not alter the case. Riddle v. Bryan, 5 O. 48. But under the act of 1831
(3 Chase, 1710), a judgment entered during the term by confesssion
LIEN OP JUDGMENTS ETC. 167
was held to create a lien from the first day of the terra, which'was
superior to that of a mortgage executed before but not recorded until
after the commencement of the term. Jackson v. Luce, 14 O. 514.
(a) The lien of a judgment recovered under section 4364 (liability
of owners of buildings, etc., leased f>r illegal sales of intoxicating
liquors, for fines, etc.,) is limited to the real estate of the judgment
debtor, and the liability of real estate not owned by the judgment
debtor is fixed by the commencement of a suit by the jndgment cred-
itor to enforce it ; and if the debtor sell and convey his real estate
before such suit is brought, it can not be subjected to the payment of
the judgment. Bellinger v. Griffith, 23 O. S. 619.
(Jt) Goods and chattels are, as against subsequent levies, bound from
the time they are seized in execution; but when an officer, under a
promise of indemnity for his neglect, and to enable the debtor to raise
money to satisfy the execution in his hands, allows the debtor to
retain absolute possession and control of the property, with power of
use aud sale in the usual course of business, such levy is void, and the
goods and chattels are subject to seizure ou execution in favor of other
rrt'ditore. Murphy v. Swadener, 33 O. S. 85 ; Tovmaendv. Corning, 40
O. 8. 335.
(/) When a valid levy has been made upon goods and chattels in
the hands of the officer, a constructive levy of subsequent executions
r tilling into his hands before sale, may be made by indorsement merely ;
but whcu the original levy is a mere paper levy, and therefore void,
a constructive levy of actual executions will not bind the property
against subsequent executions actually levied thereon. Ib.
(in) Where the land of one is about to be sold on a void judgment,
he has a right to appear in court and move to set aside the execution,
though not a party to the judgment. Miller v. Peters, 25 O. S. 272.
(n) Land of a purchaser at judicial sale can not be levied on before
such purchaser obtains his deed therefor and takes possession"; and if
such levy be made, it will be postponed to one made after such pur*
chaser has received his deed. Gomll v. Keleey, 40 O. S. 117.
The deed is necessary to vest the Icyal title in the purchaser. The
order confirming the sale and ordering the deed to be executed, gives
the purchaser the complete equitable title.
(o) When a levy is made upon goods and chattels sufficient to sat-
isfy the judgment, they arc taken out of the poMMfollof the debtor, and
tli j I'lgment is satisfied, and sureties released; but a levy upon hinds,
as they remain in the debtor's puftse*ion, does not satisfy the judgment.
Levies on lands may be released a-id other lands, or goods and chattels,
levied upon. Ford v. Gcauga County, 7 O. (2 pt.) 14**:
158 CODE PRACTICE AND PRECEDENTS.
v. Rodgers' Exr., 5 O. 169 ; Norton v. Curtis, 5 O. 178. As to when
levy on lands may satisfy debt against a surety, see Day v. Ramey, 40
O. S. 446.
Lien of judgment of Supreme Court Lien of judgment of Common Pleas
Court continues if case appealed to the Circuit or is taken to the Supreme
Court. SEC. 5376 (Sup., p. 351). A judgment of the Supreme Court,
for money, shall bind the lauds and tenements of the debtor, within the
county iu which the suit originated, from the first day of the term at
which the judgment is entered, and all other lands and the goods and
chattels of the debtor, from the time they are seized in execution ; but
the lien of a judgment of the Common Pleas Court, in an action which
is appealed by the judgment debtor to the Circuit Court, and is thence
removed into the Supreme Court, shall not be thereby divested or va-
cated, but shall continue till the final determination of the action
in the Supreme Court.
Transcript of judgments of justices and mayors may be filed in the Com-
mon Pleas, and proceedings upon same What clerk and justice or mayor to
do if judgment is paid or stayed in ten days When costs of transcript and
clerk's costs to be paid by plaintiff. SEC. 5377. The party in whose favor
a judgment is rendered by a justice of the peace or mayor of a munici-
pal corporation, may, at any time after the day the judgment is ren-
dered, if the same be not appealed or stayed, file in the office of the
clerk of the Court of Common Pleas of the county in which the judg-
ment was rendered a transcript thereof, having certified therein the
amount, if any, paid thereon ; and thereupon the clerk shall enter the
case on the execution docket, together with the amount of the judg-
ment, and the time of filing ihe transcript; but if, within ten days
after the rendition of the judgment, the judgment debtor pay the same,
or give bail for stay of execution, the justice or mayor shall forthwith
certify that fact to the clerk of the Court of Common Pleas, who shall
enter a memorandum thereof upon the execution docket ; aud the costs
of the transcript, the filing thereof, and of the entry on the docket,
shall be paid by the party who files the transcript, and not be taxed to
the other party.
Tlie lien of such judgment, and when it begins Lien as against other
transcripts filed in vacation and judgments rendered at the next term. SEC.
5378. Such judgment, if the transcript be filed in term time, shall be
a lien on the real estate of the judgment debtor within the county from
the day the transcript is filed ; and if filed in vacation, the judgment
shall, as against the debtor, be a lien from the day it is filed, but as
against other transcripts filed in vacation, and judgments rendered at
LIKN OP JUDGMENTS, KTC. 159
t)ie next term of the court, it shall be a lien only from the first day of
ilie next term.
n t ion ujmi, but lien of section 5378 remains. SEC. 5379. Exe-
cution may IK- issued on such judgment at any time after filing the
transcript, as if the judgment had been rendered in court; but the lien
shall remain as provide J in the preceding sjction.
\Mtni judgment becomes dormant and ceases to be a lien. SEC. 5380.
If execution on a judgment rendered in any court of record in
this state, orn transcript of which has been filed ns provided in section
. be not sued out within five years from the date of the judgment,
or if five years intervene between the date of the last execution issued
on inch judgment and the time of suing out another execution thereon,
Moll judgment ^hall become dormant, and shall cease to operate as a
lien on the estate of the judgment debtor. (For proceedings to revive
dormant judgment*, see JUDGMENT.)
(ft) This section does not apply to a decree or final order for the sale
of specific property. Beaumont v. Herrick. 24 O. S. 4-15. Such cases,
tliou^h left off the docket as required by statute, section 5132, arc
pending in court until the sale of the pro|>erty and distribution of it-
cds. .
(6) Where a judgment has become dormant during the jwndency
<>f a provisional injunction against execution thereon, the court will,
mi <lis.solutim of the injunction, order execution to issue for the bal-
ance equitably due. Weltli v. Childs, 17 O. S. 319. But see section
>U.\ Sup., p. 352.
(c) But where the judgment debtor sold and conveyed the land t :i
purchaser without notice, who paid the purchase -money, and the judg-
ment became dormant because of an injunction preventing the issuing
of an execution, the purchaser took the land discharged of the lieu.
Tnckrr v. Shade, 25 O. S. 355.
In such a case, the judgment creditor has his remedy upon the in-
junction bond, which has to be given before an injunction con
operate.
(<f) Proceedings in error do not operate as a supersedes and pre-
vent the judgment from becoming dormant, or remove the nec
of suing. out execution within five years. Lytlc v. Oin. Mfg. Co. t 4 O.
459. But see section 5415, Sup., p. 352.
(e) Tin? taking of an execution from the clerk's office, by the plaint*
ill" or his attorney, and returning the same without delivering it to the
sheriff, is not a suing out of execution within this section ; the writ
must be actually or constructively delivered to the sheriff. Kelly v.
Vincent, SO. S. 415.
160 CODE PRACTICE AND PRECEDENTS.
(/) Execution issued on a dormant judgment will be set aside on
motion, and the goods, etc., levied upon restored to the judgment
debtor. Lytlev. Gin. Mfg. Co., 4 O. 459. But, query, whether a ju-
dicial sale of real estate upon process upon a dormant judgment can
be impeached on that ground, except by a petition in error to reverse
the order of confirmation. Beaumont v. Herrick, 24 O. S. 445.
(<jf) A judgment creditor who brings, or was properly made a party
to, an action to subject mortgaged land to sale, and to ascertain and
marshal liens thereon, will not lose his right to share in the proceeds
of the sale because his judgment became dormant pending the action.
Lawrence v. Bdger, 31 O. S. 175 ; Dempsey v. Bush, 18 O. S. 376.
A mortgage is regarded in equity merely as a security for the mort-
gage debt ; and the lands of a mortgagor are subject to the lien of a
judgment rendered against him, though a suit be necessary against
him and the mortgagee to sell such laud and marshal liens, as land
O O '
must bring at least two-thirds of its appraised value, which a purchaser
would not give and hold the land liable for the mortgage debt.
(h) A senior judgment creditor, who has not issued execution for
more than five years, is not entitled to money made by a sale of real
estate under an execution upon a junior judgment. Lyile v. Gin. Mfg.
Co.,4O. 459.
(i) Where land is subject to two liens, the elder a judgment and
the other a mortgage, and the judgment becomes dormant, its priority
is lost, and the mortgage .becomes the paramount lien. Miner v.
Wallace, 10 O. 403. See n. b to section 5382 ; Holliday v. FranUin
Bank, 16 O. 535; Brazee v. Lancaster Bk., 14 O. 318; Van Thornily
v. Peters, 26 O. S. 471 (Homestead).
(Ic) The title of a purchaser from the judgment debtor is, on the
judgment becoming dormant, discharged from the lien, and the sub-
sequent revivor of the judgment will not affect the title of such pur-
chaser. Norton v. Beaver, 5 O. 178 ; Minor v. Wallace, 10 O. 403 ;
Hutchinson v. Hutchinson, 15 O. 301 ; Tucker v. Shade, 25 O. S. 355.
(Z) As between successive purchasers from the owner of real estate
subject to a lien against him, of several parcels, and the lands are
greater in value than the amount of such lien, the last tract sold by
such owner must be first sold to satisfy such lien the rule being " the
last first," as the debtor would have been liable to have what he re-
tained sold to satisfy the lien, before the part sold. It is the date of
the sale, and not of theefeeeZ of conveyance, that fixes this equity of the
parties. Sternberger v. Henna, 42 O. S. 305. See HOMESTEAD.
Lien of judgment, as to other creditors, restricted to two-thirds of ap-
praisement, except for debts due the state, etc., when sufficient to satisfy judg-
LIKX OF JUIXJMKNTS, ETC. 1I1
nunt Tjands not lobe sold for less iiuin tico-lhinl* t'lfir appraitiA value,
except for debit due the state, unless, etc. SKC. 5391. If, upon such re-
turn (a provided in section 5390), it appear by the inquisition that
two thirds of the appraised value of the lauds and tenements so levied
upon is sufficient to satisfy the execution, with costs, the judgment on
which the execution issued shall not operate as a lien on the residue
of the debtor's estate, to the prejudice of any other judgment creditor :
but no tract of land shall be sold for less than ttvo -third* of the value
returned in the inquest; and nothing in this section contained shall
affect the sale of lands by the state ; but all lands, the property of in-
dividuals indebted to the state for any debt or taxes, or in any other
manner, except for loans heretofore authorized by the legislature, shall
be sold without valuation, for the discharge of such debt or taxes,
agreeably to the laws for such case made and provided.
When judgment loses preference as a lien as aifiin.4 *ub*equent bonafidc
judgment creditors How long after mandate from Circuit or Supreme
(hurt Time of appeal, petition in error, injunction, etc, excluded. SEC.
54 1 5 (Sup. , p. 352). No judgment, on which execution is not issued and
levied before the expiration of one year next after its rendition, shall
operate as a lien on the estate of a debtor to the prejudice of any
other bona fide judgment creditor; but in all cases in which judgment
is rendered in the Circuit Court or Supreme Court, and a special man-
date is directed to the Common Pleas Court to carry the same into
execution, the lien of the judgment creditor shall continue for one
year after the 6rst day of the term of the Common Pleas Court to
which such mandate is directed ; or, if the mandate be entered on the
journal in vacation, after it is so entered; and in computing such
period of one year, the time covered by an appeal of the case, or by an
injunction against the execution, or by proceedings in error, or by a
vacancy in the office of sheriff and coroner, or by the inability of such
officers, shall be excluded.
(a) A levy on other property within the year will not save the lien
ujvm property not levied on. Shuee v. Fergueton, 3 O. 13G.
(6) A judgment creditor, prevented by the operation of the statut.'
requiring the property of a principal to be first exhausted before i<mt
to that of a surety, from making a levy within the year, loses hit
priority. Earnfit v. Winan*, 3 O. 135. But, qu^ry, dcH not such
statute operate now as an injunction, and full within the saving pro-
vision of the above section ?
(c) When a levy is set aside, the parties are in the same situation
as if no levy had been made ; and, therefore, a levy made within the
11
162 CODE PRACTICE AND PRECEDENTS.
year, and set aside after the expiration of the year, loses its lien as
against a subsequent judgment upon which a levy is made within the
year and continued to the sale. McCormick v. Alexander, 2 O. 65 ;
Fatten v. Sheriff, etc., 2 O. 395; Waymire v. Staley, 3 O. 366. And
when a judgment is modified and a levy set aside at the same term,
the lien of the judgment is not preserved by section 5360, which
applies only to modifications after the term. Riblet v. Davis, 24 O.
S. 114.
(d) A junior judgment levied within the year, on a particular piece
of property, has a preferable lien to a senior judgment which was not
levied within the year, although it was in fact levied before the levy
of the junior judgment. Shuee v. Fergueson, 3 O. 136; Thompson v.
Atherton, 6 O. 30. And the lien of the junior judgment, as to all
lands on which the senior judgment was not levied, must continue
one year from its date, to the exclusion of the senior judgment, if the
junior judgment was rendered before the levy was made on the senior
judgment ; and a levy upon the senior judgment, though after the year,
if made before the date of the junior judgment, will have the prefer-
ence. Shuee v. Fergueson, supra.
(e) If there are several judgments, and none of them have been
levied within the year, they stand on an equal footing, and the cred-
itor who first sues out execution and levies has the preference. Shuee
v. Fergueson,, 3 O. 136 ; Sellers v. Corwin, 5 O. 398.
(/) A sale upon a junior judgment levied within the year passes
the title, although a sale had been previously made upon a senior judg-
ment which had not been levied within the year; nor is this result af-
fected by the fact that, at the time of the sale on the junior judgment,
the previous sale on the senior judgment had been set aside by the
Common Pleas, when the order setting aside the sale was subsequently
reversed by the Supreme Court. Walpole v. Ink, 9 O. 142.
(gr) The lien of a senior judgment which has not been levied within
the year will not be defeated by a sale upon a junior mortgage made
within the year from the decree of foreclosure, and the judgment
creditor may, after levy, bring his action to clear away the cloud
upon his title, or he may charge the fund arising from the sale in satis-
faction of his judgment. Meyers v. Hewitt, 16 O. 449.
(K) As between a senior judgment not levied within the year, an in-
tervening mortgage, and a junior judgment levied within the year, the
senior judgment has the first lien, the mortgage the second, and the ju-
nior judgment the last. Brazee v. Lancaster Bank, 14 O. 318 ; Sotti-
day v. Franklin Bank, 16 O. 533. See Babbett v. Morgan, 31 O.
S. 273; Van Thornily v. Peters, 26 O. S. 471 (Homestead).
LIEN OF JUDGMENTS, ETC. 168
(f) In determining the question of priority between the lien of a
judgment and the lien of a mortgage filed for record on the first day
of tin- term, if the mortgage be left in the recorder's office for record
the court actually convenes, its lieu will l>e superior to that of the
jmljrrm-nt. Follett v. Hall, 16 O. Ill, and Hollulay v. Bank, 16 O. 533.
Aii'l \\licre the judges had, under a statute, fixed 10 o'clock A. M. as
the hour for tho commencement of the term, and their order was en-
t- TI 1 on die journal, the record was held to be conclusive as to the
when the term began, and the lieu of the judgment is superior
to that of a mortgage delivered for record at 11 o'clock A. M., although
the fact was that the court did not actually convene till afternoon.
Davit v. Messenger, 17 O. S. 231. And where the record fails to show
the hour at which the court convened, the session will be presumed to
have commenced at 10 o'clock A. M., that being the hour, on the fink
day of the term, fixed by statute for the return of the venires for the
grand and petit juries, and at which the court, when a different hour
has not been prescribed, ought to have been opened. Hemingway v.
Davit, 24 O. S. 150.
(jfc) A levy upon lands under execution subsists for five years, that
is, until the judgment becomes dormant
164 v CODE PRACTICE AND PRECEDENTS.
CHAPTER XII.
PEOPERTY EXEMPT FROM EXECUTION.
It is important for the officer holding an execution to know upon
what property he can, and upon what he can not levy; and for the
execution debtor, what he must claim before it will be exempt.
What property of unmarried women is exempt from execution. SEC.
5426. Every unmarried woman may hold the following property ex-
empt from execution, attachment, or sale, to satisfy any judgment or
order, to wit : 1. Wearing apparel, to be selected by her, not exceeding
in value one hundred dollars. 2. One sewing-machine. 3. One knitting-
machine. 4. A. bible, hymn-book, psalrn-book, and any other books
not exceeding in value twenty-Jive dollars.
Beneficiary funds exempt. SEC. 5427. Any beneficiary fund, not ex-
ceeding five thousand dollars, set apart, appropriated, or paid, by any
benevolent association or society, according to its rules, regulations, or
by-laws, to the family of any deceased member, or to any member ol
such family, shall not be liable to be taken by any process or proceed-
ings, legal or equitable, to pay any debt of such deceased member.
Certain property of benevolent societies exempt. SEC. 5428. The regalia,
insignia of office, journals of proceedings, account-books, and the pri-
vate work, belonging to any benevolent society in this state, shall be ex-
empt from seizure or sale to satisfy any judgment or decree hereafter
rendered against such society.
Property kept and used to extinguish fires exempt Owner may mortgage
it. SEC. 5429. All property used, or kept to be used, by any munici-
pal corporation or fire company, for the purpose of extinguishing fire,
shall be exempt from execution and sale to satisfy any judgment or
order arising upon contract or otherwise ; but the owner thereof may
create valid liens thereon by bill of sale or mortgage.
Exemptions to heads of families and widows From what time the three
months to date. SEC. 5430. Every person who has a family, and every
widow, may hold the following property exempt from execution, at-
tachment, or sale, for any debt, damages, fine, or amercement, to wit :
1. The wearing apparel of such person or family; the beds, bedsteads,
and bedding necessary for the use of the same ; one cooking-stove
and pipe; one stove and pipe used for warming the dwelling; and
fuel sufficient for the period of sixty days, actually provided and de-
PROPERTY EXEMPT FKOM EXECUTION. 165
I for tin- use of such person or family. 2. One cow, or, if the
debtor owns no cow, household furniture, to be selected by him or
her, not exceeding thirty-Jive dollars in value ; two swine, or the pork
therefrom, or, if the debtor owns no swine, household furniture, to be
delected by him or her, not exceeding fifteen dollars in value; fix
sh<vj>, the wool shorn from them, and the cloth or other articles manu-
factured therefrom, or, in lieu thereof, household furniture to be se-
i by the debtor, not exceeding fifteen dollars in value ; and suffi-
cient food forsuch animals for the period of sixty days. 3. The bibles,
hymn-books, psalm-books, testaments, and school-books used in the
family, and all family pictures. 4. Provisions actually provided and
.ed for the use of such person or family, not exceeding Jiffy dol-
lars in value, to be selected by the debtor; and other articles of house-
hold and kitchen furniture, or either, necessary for such person or fam-
ily, to be selected by the debtor, not exceeding fifty dollars in value.
5. One sewing-machine; one knitting-machine; and the tools and
implements of the debtor necessary for carrying on his or her trade
or business, whether mechanical or agricultural, to be selected by him
or her, not exceeding one hundred dollars in value. 6. The personal
earnings of the debtor, and the personal earnings of his or her minor
child >r children, for three months, when it is made to appear, by the
affidavit of the debtor, or otherwise, that such earnings are necessary
to the support of such debtor, or of his or her family ; and such pe-
riod of three months shall date from the time of issuing any attach-
ment or other process, the rendition of any judgment, or the making
of any order, under which the attempt may be made to subject such
earnings to the payment of a debt. 7. All articles, specimens, and
cabinets of natural history or science, whether animal, vegetable, or
mineral, except such as may be kept or intended for show or exhibi-
tion for mouey or pecuniary gain.
Special exemptions to physician*, draymen, etc. SEC. 5431. Every
II who is the head of a family, and engaged in the business of
ilraying for a livelihood, shall, in addition to the exemptions Specified
: -\ the preceding section, hold one horse, harness, and dray exempt
tr ..in execution ; every head of a family who is engaged in the business
i iculture, shall, in addition to the exemptions provided f>r in tho
liiu' section, hold exempt from execution one horse, or one yoke
>t' cattle, with the necessary gearing for the same, and one wagon ; ami
every head of a family who is engaged in the practice <>f mr.licine,
hall, m addition to the exemptions specified in vii.l section, li .1-1 M
horse, one saddle and bridle, and also books, medicines, and instru-
166 CODE PRACTICE AND PRECEDENTS.
ments pertaining to his profession, not exceeding one hundred dollars in
value, exempt from execution.
Appraisal of exempted property. SEC. 5432. In all cases where it is
necessary to ascertain the amount or value of personal property ex-
empt under this subdivision, it shall be estimated and appraised by
two disinterested householders of the county, to be selected by the officer
holding the execution, and by him sworn to impartially make such ap-
praisement.
Exemptions are property rights of the debtor, and are to be enforced by
all courts. SEC. 5433. The provisions contained in this subdivision
with respect to exemptions shall apply to all courts in this state, in-
cluding justices of the peace and mayors' courts, so that a person shall
be entitled to all the exemptions in any case or proceeding, or before
any court or officer, that he may be entitled to in any other case or
proceeding, or before any other court or officer.
(a) The exemptions from execution or sale allowed to " every per-
son who has a family," under the provisions of the act of April 16,
1873 (70 v. 132), may be claimed by any debtor against whom an
action is prosecuted in the courts of this state, whether such debtor is
or is not a resident of this state. Sproid v. McCoy, 26 O. S. 577.
(6) Under the provisions of the Code of Civil Procedure relating to
attachments and proceedings in aid of execution, the earnings of the
debtor for the next three months preceding the levy of an attachment,
or the issuing of an order for the examination of the debtor, are
exempt from being applied to the payment of his debts, when the
same are necessary for the support of his family. Snook v. tinetzer,
25 O. S. 516.
(c) A citizen of this state may be enjoined from prosecuting an at-
tachment in another state, against a citizen of this state, to subject
to the payment of his claim the earnings of the debtor, which, by the
laws of this state, are exempt from being applied to the payment of
such claim. Ib.
(d.) Personal property which becomes exempt from execution only
when selected by the judgment debtor, is, until such selection is made,
subject to levy and sale. There is no presumption of law that the
judgment debtor has selected or will claim to hold any particular item
of personal property as exempt from execution, in lieu of a home-
stead, although he may not own any other property from which se-
lections might be made. Carpenter v. Warner, 38 O. S. 416.
(e) The terms, " every person who has a family," and " every per-
son who is the head of a family," would seem, upon principle, to be
PROPERTY EXEMPT PROM EXECUTION. 167
limited to a person legally bound to support or provide for the \<-
constituting .urh family.
HOMESTEAD EXEMPTION.
// mextead exemption does not apply to mortgage executed by husband and
nor to vendor's or mechanic's, etc. , liens, or taxes. SEC. 5434. (Sttp. , p.
The subsequent sections of this subdivision (3) shall not extend
t * a judgment rendered on a mortgage executed by a debtor and hi-
wife, nor to a claim for manual work or labor, lex* than one hundred
dollars, nor to impair the lien by mortgage, or otherwise, of the vendor
for the purchase- money of the premises in question, nor the lien of a
mechanic, or other person, under any statute of this state, for ma-
terials furnished or labor performed in the erection of the dwelling-
house thereon, nor for the payment of taxes due thereon.
Who entitled to txemption Who may demand When neither husband
nor wife can make tnrh demand. SEC. 5435. Husband and wife living
together, a widow or a widower living with an unmarried daughter, or
unmarried minor son, may hold exempt from sale, on judgment or
order, a family homestead not exceeding one thousand dollars in value ;
and the husband, or, in case of his failure or refusal, the wife, shall
have the right to make the demand therefor; but neither can make
such demand if the other has a homestead.
(a) A widow may hold exempt from execution a homestead, not ex-
ceeding one thousand dollars in value, although she is not " living
with an unmarried daughter or unmarried minor son." Allen v. Ru*-
ieU. 39 O. S. 336.
Preceding section applies to owner of superstructures and lessees. SEC.
5436. A person owning the superstructure of a dwelling-house occu-
pied by him or her as a family homestead, although the title to the
land upon which the same is built is in another, and also lessees, shall
be entitled to the benefit of the preceding section, in the same man-
ner as the owner of the freehold or inheritance ; but this section shall
not be construed to prevent a sale of the fee-simple, subject to the
bap*.
(a) A tenancy of. a house, stable, and parcel of land, for a single
year, where the debtor does not claim the same as a homestead, is not
an ownership of a homestead, within the meaning of this section, so
as to deprive the holder of the benefit of the exemption of personalty
from execution, in lieu of homestead. und-r section 5441 . iS '"/'-- I*
148). CaldweU v. Casper, 15 O. 8. 27U.
Homestead for decedenfs family. SEC. 5437. (Sup., p. 352.) On peti-
168 CODE PRACTICE AND PRECEDENTS.
tion of executors or administrators to sell, to pay debts, the lands
of a decedent who has left a widow, or a minor child unmarried,
and composing part of the decedent's family at the time of his death,
the appraisers shall proceed to set apart a homestead as provided iu
the next section, and the same shall remain exempt from sale on ex-
ecution, and exempt from sale under any order of the court so long
as the widow, if she remain unmarried, or any unmarried minor child,
resides thereon.
(a) Under a previous statute, the widow, after all the children of
the intestate arrived at full age, was held not to be entitled longer to
hold a homestead previously set off to her, and that the lands could
be sold to pay the unpaid debts of the decedent. Taylor v. Ihorn, 29
O. S. 569.
The above amended section changes this so long as such widow re-
mains unmarried, and entitles the widow to homestead.
(6) A homestead had been assigned by metes and bounds, under the
act of 1850, sections 5435 et seq., to the widow and unmarried minor
children of a decedent, in a proceeding in the Probate Court by an ex-
ecutor to sell lands to pay debts : orders of such court in the proceed-
ing, directing and confirming a sale of the real estate so assigned,
subject to the homestead, and while the same is occupied as such
homestead, are not merely voidable, but void. Wehrle v. Wehrle, 39
O. S. 365.
How homestead set off Either party may complain of assignment When
widoiv of debtor may make application for re-appraisement, etc. SEC.
5438. The officer executing any writ of execution founded on a judg-
ment or order shall, on application of the debtor, his wife, agent, or
attorney, at any time before sale, if such debtor has a family, and if
the lands or tenements about to be levied upon, or any part or parcel
thereof, constitute the homestead thereof, cause the inquest of ap-
praisers, upon their oaths, to set off to such debtor, by metes and
bounds, a homestead not exceeding one thousand dollars in value ; such
assignment of the homestead shall be returned by the officer along
with the writ, and shall be copied by the clerk into the execution docket ;
and if no complaint be made by either party, no further proceedings
shall be had against the homestead ; but the remainder of the debtor's
lands and tenements, if any there be, shall be liable to sale on execu-
tion; upon complaint of either party, and upon good cause shown,
the court out of which the writ issued may order a re-appraisement
and re-assignment of the homestead; but if no application be made
PROPERTY KXEMFT FROM EXECUTION. 169
during the life-time of the debtor, it may be made by the widow of the
judgment debtor at any time before a sale.
When homestead not divisible Rent over 8100 per year, payable quarterly
To whom rent paid If rent not paid homestead may be sold Homestead
may be re-appraised once in two yean When cods of to be paid by execution
plaintiff, and when taxed a cost* in the cause. SEC. 5439. When the
hi!u stead of a debtor in execution consists of a house and lot of land
which, in the opinion of the appraisers, will not bear division without
manifest injury and inconvenience, the plaintiff in execution shall re-
ceive, in lieu of the proceeds of a sale of the homestead, the amount
over and above one hundred dollars, annually, adjudged by the appraisers
as a fair and reasonable rent for the same, until the debt, costs, and
interest are paid ; the rent over and above one hundred dollars shall
be payable in quarterly payments, commencing tiiree months from the
time of the levy of the execution, and may be paid to the plaintiff in
execution, or to his assigns, or to the clerk of the Court of Common
Pleas of the county in which the homestead is situate, and the clerk shall
give to the person paying the same a proper receipt, and enter the same
on the execution docket without charge ; if the rent be not paid quar-
terly, as above provided, or within ten days after each and every pay-
ment becomes due, the officer shall proceed and sell the homestead, in
the same manner as is provided in other cases for the sale of real estate,
but it shall not be sold for less than its appraised value; the plaintiff
in execution, the judgment debtor, or any other person to whom, under
any law of this state, such homestead has been set off, may cause the
homestead to be re-appraised once in tico years, in the same manner
as provided for in the preceding section, and the rent shall, after such
re-appraisement, be paid in accordance therewith ; and if such re-ap-
praisement be made at the instance of the plaintiff in execution, an I
the appraisement be not increased one hundred dollars over the amount
of the next previous appraisement, the costs thereof shall be paiil l>y
til-- plaintiff in execution; but in all other cases the costs of the re-ap-
praisement shall !> taxed as costs in the original case.
Allotoanre in lieu of homestead, an: I nf proceed* of sale, titereof.
5440. When a homestead is charged with liens, some of which, as
;i_Miu-t the head of the family, or the wife, preclude the allowance of
a liomeltead to either of them, and others of such liens do not preclndo
such allowance, and a sale of sucli homestead is had, then, after tho
payment, out of the proceeds of such sale, of the hens so precluding
such allowance, the balance not exceed ingjfae hundr&l dollars, shall be
awarded to the head of the family, or the wife, as the case may be, in
170 CODE PRACTICE AND PRECEDENTS.
lieu of such homestead, upon his or her application, in person, or by
agent or attorney.
(a) By the act of March 25, 1850 (48 v. 29), the homestead hav-
ing been sold under a claim which precludes the allowance of exemp-
tion, leaving a surplus, the debtor may insist upon his allowance of
such surplus, as against creditors whose claims do not preclude the al-
lowance of a homestead. Jackson v. Reid, 32 O. S. 443.
(6) If a debtor voluntarily abandoned his homestead before claiming
it as exempt, his right is gone ; but the court having found that there
has been no such abandonment, that finding can not be reversed on
error unless the bill of exceptions sets forth all the evidence upon
which the court based its action. Ib.
(c) An insolvent debtor conveyed all his property, including his
family homestead, certain liens on which precluded its exemption, to
an assignee for the benefit of his creditors ; afterward the assignee
brought an action for the sale of the homestead and to marshal liens,
in which action a sale was ordered for the payment of the preferred liens,
reserving, however, to the debtor the right to demand such exemptions
as the law might allow ; before the sale the family dwelling-house was
entirely destroyed by fire, and the debtor and his family removed from
the premises without intending to rebuild the house; and thereafter
the premises were sold under the decree for more than enough to pay
ithe preferred leins. Held: 1. That there was no abandonment of the
iright of homestead, which continued in the debtor until the property
'tvas sold. 2. That out of the" surplus, after payment of the preferred
liens, upon the application of the debtor's wife, an allowance to her be
imade in lieu of the homestead. 3. This section, 5440, does not apply
IL.O debts contracted before its passage; but independently of it, the debt-
or's right to the exemption attaches to the surplus of the proceeds of
:such sale, as against creditors whose claims do not preclude the allow-
ance of a homestead. Kelly v. Duffy, 31 O. S. 437 ; Cooper v. Cooper,
24 O. S. 488.
(d) Where the execution debtor's loife owns land, which is their
homestead, but before the levy upon goods they have removed from
it, and it is not then their homestead, the debtor may claim exemption
of personal property in lieu of homestead. Ryan v. Miller, 40 O. S.
232.
(e) Where the goods of an unmarried man, not the head of a fam-
ilv, are attached, and after the levy of the attachment he marries and
demands that the property be set off to him in lieu of homestead, hr
is not entitled to such set-off. Sdders v. Lane, 40 O. S. 345.
(/) Where an insolvent assigns all his property for the benefit of
PROPERTY EXEMPT FKOM EXECUTION. 171
his creditors, reserving all property to which he may be entitled under
the exemption and homestead laws, has the tools and implements nec-
essary for carrying on his trade set off to him, and before the sale of
his assigned real estate, which is afterward sold, demands $500 of the
proceeds thereof in lieu of homestead : Held, that he is entitled to
the same. Kuhn v. Nieberg, 40 O. S. 631.
(/) Where a judgment becomes a lien on the debtor's land, and
afterward, but before the property was about to be levied upon or
seized under an order of sale issued by the same plaintiff upon a
judgment and order setting aside a conveyance t > the judgment debt-
or's wife as fraudulent against creditors, the debtor made such land
his homestead by moving upon it, it is held that he is entitled to
homestead against such judgment lien. Wildermuth v. Koenig, 41 O.
8. 180.
(A) If a deed from husband to wife, through a trustee, be set aside
as fraudulent against creditors, the land being the homestead of the
debtor, and incumbered by mortgage, paramount to the right of home-
stead, to within $700 of the amount of the mortgaged debt, 8500 may
be allowed the debtor out of the proceeds of the gale of the land in
lieu of homestead. Bill* v. Bite, 41 O. 8. 206.
(t) If the land constituting the homestead of the judgment debtor
be incumbered by mortgage, paramount t > the right of homestead, the
mortgage having become absolute for condition broken, for more than
the entire value of such laud, and goods of such debtor be levied on,
he can not hold $500, in personalty, levied upon, in lieu <>f homestead*
His homestead is still in such mortgaged land. Bartram v. J/cGrodben,
41 O. 8. 377.
(Jk) The transcript of a judgment of a justice of the peace, duly filed
in the office of the clerk of the Common Pleas Court of the county, be-
comes a lien upon the judgment debtor's lands within such county.
And such lien is not lost or removed from such land if it is sot off t > the
debtor as a homestead. The right to have and hold a homestead is a
personal privilege, which can not be conveyed to another, and is lost by
neglect or refusal to claim it, or by abandonment When the right*
of homestead are removed or cease, liens on such property may bo
enforced by due process of law; and the homestead property is subject
to a judgment and execution lien both before and after its assignment.
McGnnb v. Thompson, 42 O. 8. 139.
(0 It is no defense to an action to subject lands, alleged to have
been fraudulently conveyed, to the payment of a judgment lieu, that
the debtor is entitled to hold such lands as a homestead. If, in such
action, the fraudulent character of the conveyance is established, and
172 CODE PRACTICE AND PRECEDENTS.
it is further found that the premises are subject to a mortgage lien
paramount to the right of homestead, payment of the costs and mort-
gage lien may be decreed out of the proceeds of the sale, but not to
the payment of the judgment lien to the exclusion of the debtor's right
to $500, in K.--U of homestead. Roigv. Schultz, 42 0. S. 165.
By whom and when $500 worth of property may be selected and held ex-
empt from debt, etc. SEC. 5441. (Sup., p. 352:) Husband and wife
living together, a widower living with an unmarried daughter or minor
son, every widow and every unmarried female having in good faith the
care, maintenance, and custody of any minor child or children of a
deceased relative, residents of Ohio, and not the owner of a homestead,
may, in lieu thereof, hold exempt from levy and sale real or personal
property to be selected by such person, his agent or attorney, at any
time before sale, not exceediug^ve hundred dollars ($500) in value, ia
addition to the amount of chattel property otherwise by law exempted.
(a) When land is sold on a mortgage executed by husband and
wife neither of whom has a homestead, the wife, as against a,
judgment creditor, who is a party to the action, is entitled under this
section to the exemption of a sum not exceeding $500, out of the sur-
plus, after the satisfaction of the mortgage debt, although no demand is
made till after the sale is confirmed and the money is in the hands of the officer
for distribution. McConville v. Lee, 31 O. S. 447.
(7/) The members of an insolvent copartnership are not entitled to
the statutory exemptions out of the partnership property after it has been
seized upon execution by firm creditors, notwithstanding all the part-
ners join in demanding the exemptions. Gaylord v. Lnhoff, 26 O. S. 317.
But when the members of a firm, acting in good faith, dissolve the
partnership, and one member sells his interest in the partnership prop-
erty to the other, the latter, the purchaser, will not be deprived of the
benefits of the exemption statutes agaiust debts thereafter asserted
against him, though such debt was a partnership debt due at the time
of the dissolution of such copartnership ; nor will the fact that such
partnprs then knew the firm to be insolvent make any difference.
Mortley v. Flannagan, 38 O. S. 401.
(c) If the husband own but a single article of personal property, and
it is of less value than $500, and it be levied upon to satisfy his debt,
his wife is entitled to demand and have such article set off in lieu of
homestead. Regan v. Zceb, 28 O. S. 483.
(d) If personal property of the debtor be levied upon, and he claims
the exemptions allowed by law, and he and the officer making the levy
fix upon a place to meet, select, and appraise the property to be ex-
empted, and the debtor purposely fails to attend, he thereby waives
PROPER1Y EXEMPT PROM EXECUTION. 173
his right to select and hold such property exempt. Butt v. Green, 29
O. S. 667. But this would not preclude the wife's right to have $500
worth of such property set off in lieu of homestead.
() Under the proviso contained in section 5435, husband and wife
can not each, at the same time, hold the exemption provided by statute ;
and when the real estate, occupied as a family homestead, is owned by
either the husband or wife, neither can hold exempt from execution
tin- personal property allowed by section 5441 in lieu of homestead. >
,iell v. Edwards, 23 O. S. 603.
(J ) The words ' ' personal property " in this connection include credits
and mdueys selected by the debtor. And such credits and moneys se-
lected by the debtor can not be taken and held under an order of at-
tachment or garnishee process. Chilcote v. Conley, 36 O. S. 54
Conley v. Chilcote, 25 O. S. 320.
(</) The right given by section 5441 to a debtor who is the head of
a family, and not the owuer of a homestead, to hold exempt from levy
and sale property therein mentioned, to be selected by him " at any
time beforse sale," applies as well to property levied on by attachment
as by execution ; and ah order for the sale of attached property, made
in the attachment proceedings, does not prevent the debtor from exer
rising his right of selection after the making of such order of sale. Qosf
v. Sinclair, 38 O. S. 530. And when the debtor, pending the suit and
levy by attachment, assigns all his property for the benefit of his
creditors, except only such as he may lawfully hold exempt from exe-
cution, he may select for exemption property so attached. Ib. And
see Niehau* v. Paul, 43 O. S. 63.
Homestead in property mortgaged by the husband. SEC. 5442. No sale
of real estate made under a mortgage which is not executed by the
wife of the debtor, if he has a wife, shall in any manner affect the right
of the debtors's wife or family to have a homestead set off under the
provisions of this subdivision (3).
On principle, it would seem, as the obligation of a contract can not l>
impaired, lands mortgaged, such mortgage being executed by an unmarried man
who afterward marries, can not be claimed under tho homestead law.
Dower not affected by thit subdivision (3). SEC. 5443. Nothing in this
subdivision (3) contained shall be so construed as in any way to impair
the right of dower, or the mode provided by law for enforcing that
right
174 CODE PRACTICE AND PRECEDENTS.
NOTES TO SUBDIVISION III., R. S.
1. The owner of the chattel property which is exempted by law from execu-
tion and sale for the payment of debts is not divested of the right of disposing
of it by pledge in security for the payment of his debts; and in case of a pledge
or chattel mortgage, the owner clearly waives the benefit of exemption, so far
as the incumbrance is operative. Frost v. Shuw, 3 O. S. 270.
2. Where, by the terms of the chattel mortgage, the mortgagee has the right
to the possession of the property at the maturity of his debt, and having re-
duced the debt to judgment, he sues out execution upon which the property is
sold, the debtor sustains no injury in the right of possession of the property
which would support an action of trespass, even though the chattels thus mort-
gaged and sold belonged to the enumerated articles exempted by law from exe-
cution. Ib.
3. There ara certain enumerated articles which are absolutely exempted from
execution, and which the officer is bound at his peril to notice and not take on
execution, unless turned out by the debtor by a waiver of his right of exemp-
tion; but there are other articles, the exemption of which from execution de-
pends on selection to be made by the debtor. And where the exemption depends
on the selection to be made by the debtor, the selection should be made at the
time of the levy, if the debtor be present; but if not present, then it should be
made, and notice given to the officer, within a reasonable time thereafter, and
before sale. And without such selection, the right to the benefit of the exemp-
tion does not exist as to those articles which the statute authorizes the debtor to
select. Ib.
4. In an action of trespass against the officer for a seizure and sale on execu-
tion of chattels, which are exempted by law from execution and sale on the se-
lection of the debtor, it is indispensable, in order to sustain the action, that the
plaintiff establish his right to the exemption by proof of his selection of the
property for the purposes contemplated by the statute. Ib.
6. As to the spirit in which these statutes are to be construed, see Burgess v.
Everett, 9 0. S. 425. Liberally construed.
6. A debtor does not lose the right to have a homestead set off to him by
leasing the premises for a year, 'and going with his family to another county for
temporary purposes merely. And the homestead, having been regularly set off
under the statute, "no further proceedings" can be had against it while the
right to the homestead so set off continues. And the question, whether a home-
stead so set off under the statute has subsquently become subject to " further pro-
ceedings," should be first presented to and be determined by the court under
whose process such proceedings are sought, before the same are had. Wetz v.
Beard, 12 O. S. 431.
7. The humane policy of the homestead act seeks not the protection of the
debtor; but its object is to protect his family from the inhumanity which would
deprive its dependent members of a home. And, in aid of this wise and hu-
mane policy, the whole act should receive as liberal a construction as can be
fairly given to it. We think its provisions protect the debtor's family as
PROPERTY EXEMPT FROM EXECUTION. 175
gainst bit creditors, in the enjoyment of an actual homectend, irrespective of
the title or terms by which it is held. Sears v. Hanks, 14 O. S. 298.
8. Judgment creditor*, at whose suit a conveyance made by their debtor ha*
been set asido as a fraud upon their rights, can not, upon execution issued under
-o in the case, set up the fraudulent conveyance and claim it as a bar to
the debtor's assertion of bis right to have a family homestead exempted from
ale on execution. Ib.
9. The proper time for the assertion of the debtor's claim under the statute,
to have such homestead exempted from pale, is when the sheriff or other officer
it about to execute the writ of execution or order of sale; and the claim is
available as well against decretal orders of sale as against executions founded
on judgments at law. Ib.
10. The debtor mortgaged his homestead. He also, by another mortgage,
mortgaged other lands not part of his homestead. Doth mortgages were fore-
closed, and the homestead sold. Before the sale, the debtor demanded an allow-
ance of $600 out of the surplus proceeds of the sale in lieu of homestead. The
proceeds of the sale of the homestead tract, which was first sold, were insuffi-
cient to satisfy the mortgage upon it. The other lands, after satisfying the
mortgage upon them, left a surplus. Held, that the debtor was entitled to
allowance, in lieu of homestead, out of such proceeds. Siehaiu v. Paul, 43 O.
S ' I
SPECIAL EXEMPTIONS, AND NON-EXEMPTIONS, FROM EXECUTION.
1. A notary public's seal and register are exempt from execution. J 118.
2. The debtor's burial lot in a cemetery u also exempt, g 1469.
8. Cemetery lands. & 3578.
4. Certain property of railroad companies. J 3299.
6. No exemption in case of judgments under liquor laws based upon unlawful
ales (section 4363), excvpt as in section 6430.
6. No exemption against judgment under gaming laws. 4275.
7. No exemption of homestead property for taxes due thereon. { 5434. (Sup-,
p. 852,)
8. No exemption for taxes and penalties under " Dow Liquor Law."' (88 T.
168, | 4.)
176 CODE PHACTICE AND PRECEDENTS.
CHAPTER XIII.
TRIAL OF THE RIGHT OF PROPERTY WHEN CHATTELS LEVIED
ON ARE CLAIMED BY A THIRD PERSON.
Proceedings when goods levied on are claimed by a third person. SEC.
5444 (Subdivision IV.) If the officer, by virtue' of a writ of execution
issued from any court of record of this state, levy such execution on
goods and chattels claimed by a person other than the defendant, such
officer shall forthwith give notice, in writing, to a justice of tJie peace
of the county, in which shall be set forth the names of the plaintiff
and defendant, together with the name of the claimant, and at the
same time furnish the justice a schedule of the property claimed ; the
justice shall, immediately upon the receipt of the notice and schedule,
make an entry of the same upon his docket, and issue a summons, di-
rected to the sheriff, or any constable of the county, commanding him
to summon jive disinterested men, having the qualifications of an
elector, who shall be named in the summons, to appear before him, at
the time and place therein mentioned, which time shall not be more
than three days after the date of the writ, to try and determine the
right of the claimant to the property in controversy ; the claimant
shall give two days' notice, hi writing, to the plaintiff, or other party
for whose benefit the execution was issued and levied, his agent or at-
torney, if within the county, of the time and place of trial ; and he
shall, moreover, prove to the satisfaction of the justice that such no-
tice was given, or that it could not be given by reason of the absence
of the party, his agent or attorney.
(a) The provisions of this subdivision (IV.) do not apply to seizures
by constables on executions issued by justices of the peace. Armstrong
v. Harvey, 11 O. S. 527.
(6) The trial provided by this section can only be had at the in-
stance of the claimant, and not at the sole instance of the sheriff, and
against the will of the claimant. Jones v. Carr, 16 O. S. 420.
The claimant can replevy the property from the sheriff, or sue him
for its value, for wrongful conversion, or for trespass. The sheriff
levies on property at his peril.
(c) When a third person claims chattels levied on by the sheriff on
execution, and prosecutes his claim under this subdivision (IV.), and
the finding is against him, the claimant can not afterward have an ac-
TRIAL OF TUK KW11T OF PROPERTY, ETC. 177
tiou of trespass against the glicrijf for the same goods. Patty v. Mans
field, 8 O. 369.
(d) Proceedings for a trial of the right of property resulting in on
order of restitution, and a return of the property pursuant to the order,
are no bar to an action by the claimant against the officer for the
seizure and detention of the property. Abbey v. Searb, 4 O. S. 598.
Nor, in such case, are they conclusive of the right of property, in an
action by the claimant for the wrongful caption and detention of the
property against the officer, who, in disregard of the order, sold the
property on execution. Armstrong v. Harvey, 11 O. S. 527.
() A sale by a constable of property seized on execution, pending
a trial under the statute of the right thereto before a justice of the
peace, will not oust the jurisdiction acquired by the justice, but ho
may proceed to final hearing as if such sale had not been made.
RHymer v. Sargent, 11 O. S. 682. And when such trial was set for
the day preceding that fixed for the sale, and the justice continued
the hearing until the succeeding day, the cause may still proceed,
though not terminated until after the sale. Ib.
Trial of Vie right of property. SEC. 5445. The jurors, summoned as
aforesaid, shall be sworn to try and determine the right of the claim-
ant to the property in controversy, and a true verdict to give according
to the evidence , if the jury find that the right to the goods and chat-
tels, or any part thereof, is in the claimant, they shall also find the
value thereof, and the justice shall render judgment upon such find-
ing for the claimant, that he recover his costs against the plaintiff in
execution, or other party for whose benefit the execution is issued, and
also that he have restitution of the goods and chattels, or any part
thereof according to the finding of the jury; but if the jury find
that the right to the goods and chattels, and every part thereof, i- u t
in the claimant, the justice shall render judgment on such finding in
favor of the plaintiff in execution, or other party for whose benefit the
execution issued, and against the claimant, for costs, and award exe-
cution thereon ; if the jury fail to agree, and be discharged, costs shall
be taxed, to abide the final event of the proceeding before the justice,
and another jury shall be summoned in like manner as before; a judg-
ment for the claimant, unless an undertaking be executed, as provided
in the next section, shall be a justification of the officer in returning
" no goods" to the writ of execution, by virtue of which the levy was
made, as to such part of the goods and chattels as were found to be-
long to the claimant; and the same fees shall be allowed and taxed by
12
178 CODE PRACTICE AND PRECEDENTS.
the justice, for himself, officers, jurors, and witnesses, as are allowed
by law for like services in other cases.
Proceedings when jury find for claimant. SEC. 5446. If the jury
find that the property, or any part thereof, is in the claimant, aud the
plaintiff in execution, at auy time within three days after the trial,
tender to the officer having the property in his custody on execution
an undertaking, in double the amount of the value of the property as
assessed by the jury, with good and sufficient sureties, payable to the
claimant, to the effect that they will pay all damages sustained by
reason of the detention or sale of the property, the officer shall deliver
such undertaking to the claimant, and proceed to sell the property as
if no trial of the right thereto had taken place, and shall not be liable
to the claimant therefor.
(a) If the claimant refuses to try his .right to the property under
this statute, he will lose no right by such refusal. He can not be com-
pelled to submit his property rights to the determination of five jurors
and a justice of the peace, when the opposing party will not be con-
cluded by a finding and judgment in his favor, but may substitute an
undertaking, with sureties, for such property. By availing himself
of this remedy, the claimant estops himself from asserting other rights
than it provides for him. Ralston v. Oursler, 12 O. S. 105.
(by As to when, in case an action is brought against the officer
holding an execution for taking other than the debtor's property, the
execution plaintiff may be substituted as defendant in place of the of-
ficer, see section 5018, Svp., p. 248; and, as to interpleader by such
officer, see section 5017.
(c) A sheriff is not liable to the successful claimant for selling the
chattels on the writ, when the plaintiff in execution had tendered a
bond as provided in this section, and the claimant refused to receive
it. Ralston v. Ourskr, 12 O. S. 105.
EXECUTION, TO BE ISSUED ON PRECIPE.
[Form 116. 5381.]
The State of Ohio, County, ss.
To the Sheriff of County, Greeting:
Whereas, in a certain civil action lately prosecuted in the Court of of
county, wherein John Doe was plaintiff and .John Smith, John Jones,
and Hugh Evans were defendants, the said plaintiff recovered a judgment
against the said defendants, which judgment is entitled to draw interest at
the rate of per cent per annnm from the day of , A. D. 18 ,
the first day of the term of said court at which said judgment wasrenderedi
TRIAL OF TUB RRJI1T OF PROI'LKIY, LTC. 179
for the sum of dollars and c>nt-', together with hi* costs, taxed
at- dollars and cents, to draw interest from said day.
You are, therefore, hereby commanded that of the goods and chattels
not exempt by law, of the said John Smith, John Jones, and Hugh Evans,
you cause to be made the money specified in this writ, together with the
costs accruing upon the same; and, for want of goods and chattels, that
.use the same t > be made of the lands and tenements of the said
John Smith, John Jones, and Hugh Evans.
Ami you are further hereby commanded to make return of this writ,
with your proceedings under the same, before the Court of [Common
Pleas] of county, within sixty days from the date hereof, and have
th'ii :md there the money made by you upon this writ, to render unto
the persons entitled thereto; and have you then and there this writ
Witness my hand and the seal of the court, this day of , A.
18.
[SKAL.]
Ir.l >i -.ernent of clerk [exact amount ofdeLt, damages and coals'] : " Defend-
ant, oosti $ ." ( la-^u.)
ffote. For interest on tho costs of tho party recovering judgment and carried
into tho same, but not on other cost*, see Emmitt v. Brophy, 42 O. S. 91-93.
EXECUTION WHEN ONE OF DEFENDANTS is CERTIFIED AS SURETY
ix THE 'JUDGMENT.
[Porm 117. g 5419.]
Tin- State of Ohio, County, ss.
To the Sheriff of - - County, Greeting :
Whereas, in a certain civil action upon an instrument of writing lately
prosecuted in the Court of [Common Fleas] of county, wherein John
Doe w&- plaintiff and John Smith, John Jones, and li ujh Evans were de-
fendant!!, the said [Hugh Evans] being certified in said judgment as surety
for said John Smith and John Jones, which judgment is entitled to draw
interest at the rate of per cent per annum from the day of ,
A n. 18 , the first day of the term of said court at which said judgment
was rendered, for the sum of dollars and cents, together with
hU costs, taxed at dollars and cents.
You are, therefore, hereby commanded : First, that out of the goods and
chattels not exempted by law of the said John Smith and John .lone.*,
you cause to be made the money specified in this writ, together with the
costs accruing upon the same, and. for want of goods and chattels, that
you cause the same to be made of lands and tenements of the said John
Smith and John Jones. And, second, for want of goods and chattels, lands
and tenements of said principal debtors sufficient to satisfy th6 same,
you cause said moneys to be mode of the goods and chattels not exempt
180 CODE PRACTICE AND PRECEDENTS.
by law of said surety [Hugh Evans] and, for want of goods and chattels,
that you cause the same to be made of the lands and tenements of said
Hugh Evans.
And you are further commanded, etc. [as in the preceding Form 1 16].
SHERIFF'S SALE OP GOODS AND CHATTELS LEVIED UPON ON EXE-
CUTION NOTICE OF SALE SHERIFF'S SALE OF PERSONAL
PROPERTY.
[Form 118. 5385.]
Notice is hereby given that, on the day of , A. D. 18 -, com*
mencing at o'clock M , I will offer for sale at public vendue, at [the
place of sale], the following personal property: [Here give a li&t of the prop-
erty.] Which said personal property has been levied upon by me as the sher-
iff of county, to satisfy an execution issued by the [Common Pleas
Court] of said county in favor of John Doe, plaintiff, against John
Smith, John Jones, and Hugh Evans, upon a judgment obtained by him
against them in said court.
Levied upon as the property of John Smith.
Terms of sale: Cash on the day of sale.
[Date.] , Sheriff of County.
To Publisher : Publish for two consecutive weeks.
PROOF OF PUBLICATION.
[Form 119. 5385.]
State of Ohio, County, ss.
I, , make solemn oath that the annexed advertisement was pub-
lished by consecutive weekly insertions in the .a [daily; or,
weekly] newspaper printed in the county of , more than ten days
next preceding the day of , A. D. 18 ; and that he then was the
[publisher] of said newspaper. .
Sworn to, etc. [as other affidavits are verified.]
Note. If no newspaper bo printed in the county, the above advertisement
can be posted in fioe public places, as provided in section 6385.
Goods and chattels levied on upon execution may be sold by the
officer at private sale.
MOTION IN SUCH CASE.
[Form 120. 5387.]
Common Pleas Court of County.
John Doe, Plaintiff, )** o 11 -n T i
jq- -i v ' s I Motion to Sell Property Levied on at
John Smith et als., Defendants. ) Private Sale -
In this cause, upon an execution issued upon the judgment herein on
the day of , A. D. 18 , the sheriff has levied upon [a stock of
TRIAL OF TI1E RIGHT OF PROPERTY, ETC. 181
dry-goods in the store of , at ], ns the property of , which can
not be sold to advantage at public sale, but will bring a greater sum of
money, if sold by the officer holding the execution at private sale; the
plaintiff! therefore, moves the court [or. the judge of this court in vaca-
tion] to make an order directing the sheriff [or other officer holding the J.TO-
*] to sell such goods and chattels so levied on at private salo for cash,
according to the statute in such case made and provided.
EDWARD COKK, Attorney for Plaintiff.
The hearing of the within motion is set for the day of . A. D.
18 , at o'clock M. in said court [or. before , judge of said
court, at ]; and the said [plaintiff] is required to give the paid
written notice of said motion, and of the time and place of hearing the
same days before the day of such hearing.
[Date.] II. Y., Judge.
NOTICE OF Sucn MOTION AND OF ITS HEARING.
[Forml2L 5387.]
Common Pleas Court of County.
John Doe, Plaintiff, ) NoUce of Mf)tion fo ^ p ropcrty
John Smith et ais , Defendants, j ***** on at Private Sale "
To John Smith, John .lone:*, and Hugh Evars [name all the jtarties who
have a claim in the property nr an interest in the tails/action of the judgment] :
You are hereby notified that a motion has been filed in this case l>y said
John Doe. the plaintiff, to sell the goods and chattels levied upon by exe-
cution in this cause, for cash, according to law. Said motion will be heard
in said court [or, by , judge of said court, at ] on the day of
, A. D. 18 , at o'clock M., or as soon thereafter as tho same can
be heard. And the motion will be supported by affidavits.
[Date.'} JOBX DOE,
By EDWARD COKE, his Attorney.
Note. It service of tho notice is not acknowledged in writing by the party
on whom it it required to be served, like all notices, it mut b proved by the
oath of the person making the service.
ORDER GRANTING THE MOTION TO SELL AT PRIVATE SALE.
[Form 122. 5387.]
.John Doe 1 Qrder Gran(inp jkf otion ^ sll Property Levied on,
JoT,n Smith et als. J " at Privat Sale '
This day, the motion heretofore filed herein to have tho goods nn-1
chattels levied upon on the execution Uued herein to the sheriff sold by
the sheriff at private sale for cash, etc.. came on to be heard by the court
[or, before . a judge of said court in vacation]; and the court [or.
said judge] being satisfied that due notice of tin- pendency and time and
182 CODE PllACTiCE AND PRECEDENTS.
place of hearing said motion has been given to the said ; and the
court [or, said judge] thereupon, for good cause shown, doth hereby order
and direct the sheriff to sell the said goods and chattels, levied upon and
now held by him as such sheriff, under the execution issued herein, at
private sale, for cash, for not less than two-thirds of their appraised value ;
and that he make due return of such execution and his proceedings there-
under according to law. Said property to be first appraised by three dis-
interested persons, to wit: [Name tliem.~\
Note. The sheriff, or parties interested, should make reasonable advertise-
ment or give publicity of such private sale; nnd for doing so, the sheriff should
allowed what it may cost him as a part of the expenses of the sale. If the
order to sell at private sale is refused, the forms of entry of such refusal will
present no difficulty to the attorney.
APPRAISEMENT OF PROPERTY LEVIED ON AND ORDERED TO BE SOLD
AT PRIVATE SALE.
[Form 123. 5387.]
Common Pleas Court of County.
John Doe, Plaintiff, ]
No. .] vs. I Appraisement of Personal Prop-
John Smith, John Jones, and Hugh f erty Levied Upon on Execution
Evans, Defendants.
We, , , and , three disinterested appraisers appointed by the
order of said court, to which this appraisement is attached, having been
first duly sworn well and truly to appraise at its full value in money.
the goods and chattels hereinafter mentioned, and shown to us by ,
sheriff of said county, as held by him by levy upon an execution in his
hands issued upon the judgment in this action, do, on fully examining
the same for the purpose of ascertaining the value thereof, appraise the
same as follows: [Here appraise each article or parcel as specified in the lcvy.~\
Given under our hands, this day of , A. D. 18 .
[Names of appraisers.]
Kote. The sheriff will return the appraisement attached to the order of tho
court, with the execution. This section, 6387, is silent as to such appraisers tak-
ing an oath well and truly to appraise such property at its true value in money
but it will be best to make such oath, which may be taken before any officer au-
thorized to administer oaths.
WHEN THE PROPERTY LEVIED ON CAN NOT BE SOLD FOR WANT
OF BIDDERS on TIME VENDITIONI EXPCNAS.
[Form 124. 5386.]
The State of Ohio, County, ss.
To the Sheriff of the County of , Greeting:
Whereas, by our writ, we lately commanded you that of the goods and
TRIAL OF THE RIGHT OP PROPERTY, KTC. 183
chattels, and for want thereof, then of the lands and tenements of John
Smith, John Jones, and Hugh Evans, in your county, you should cause
to be made the sum of - dollars and -- cent*, and - dollars and
- cents, costs of suit, wiih interest from the - day of - , A. D. 18 ,
which, by the judgment of our Court of Common Pleas, within and for
said county, at ihe -- term thereof. A. i>. I** . John Doe recovered
against the said John Smith, John Jones, and Hugh Evans, with interest
thereon, at the rate of - percent per annum, from the -- day of - ,
\. I-. 18 , until paid, together with the further sum of -- dollars and
- cent:*, costs of increase on said judgment, and interest thereon from
the same date, and also the costs that might accrue; and that you should
have the said money before our said Court of Common Pleas within sixty
days from the date of said writ, to render, etc., and that you should have
then there this writ. And you at that date returned to us, in our said
- 'ourt of Common Pleas, that, by virtue of said writ to you directed, you
had, on the - day of - , A. D. 18 , levied the said writ upon certain
goods and chattels of the said John Smith, to wit: [enumerate them]; [or
lor want of poods and chattels of any of the said defendants, you levied Un-
said writ upon certain lands and tenements of the said John Smith (</V-
tcrifjiny their.)], which said goods and chattels [or, lands and tenement-J
were then remaining in your hands unsold. Therefore, we command you
that those goods and chattels [or, those lands and tenements] you expose
to sale*; and have the money arising from such sale before our said
Court of Common Pleas within sixty days from the date of this writ, to
render unto the persons entitled to the some, etc.; and have you then
there this writ.
Witness, etc.
VEXDI, WITH Fi. FA. CLAUSE.
[Form 125. { 5388.]
[Insert at *, in Fvrm 119, the following :]
You are also hereby commanded, that if, in your opinion, the property
remaining in your hands not sold is insufficient to satisfy said judgment
and costs, that then you cause the same to bo made of those, goods and
chattels [nr, lands and tenements], and of other goods and chattels not
exempt by law, and for want thereof, then of the lands and tenements
[or, other lands and tenements] of the said - , the judgment defendants,
within your county.
[O>netudf as afler.the *. in Form 124.]
(a) Ou a judgment rendered against a partnership, by its firm
name, in suits authorized by section 5011, execution can ouly be !
upon partnership property. 5381.
(6) If execution be issued t> another county, it should be directed
to the sheriff; or, in n proper case, to the coroner of such county :
184 CODE PRACTICE AND PRECEDENTS.
"To the Stieriff of [the name of such county], Greeting." The form
of such execution is the same as when issued to the sheriff, etc., of the
county iu which the judgment is rendered.
UNDERTAKING OF DEFENDANT WHEN PERSONAL PROPERTY is NOT
SOLD FOR WANT OF BIDDERS, TIME, OR OTHER CAUSE.
[Form 126. 5384.]
Court of Common Pleas of County, Ohio.
John Doe, Plaintiff, ]
Johr7Smith, John' '.Tone* and Hugh ^delivery Undertaking.
Evans, Defendants.
Whereas, on execution No. , issued in this cause, , the sheriff of
said county, levied upon the following goods and chattels, to wit: [here
specify the property] ; which remain unsold for [want of bidders, want of
time to advertise and sell, or other reasonable cause to be stated}.
Now, therefore, in pursuance of the statute in such case made and pro-
vided, we, John Smith, as principal, and and , as sureties, do
hereby, jointly and severally, undertake unto the said , as sheriff as
aforesaid, in the sum of dollars [such reasonable sum as the officer deems
sufficient}, to the effect that the said property shall be delivered to the of-
ficer holding an execution for the sale of the same, at the time and
place appointed by such officer, either by notice given in writing to the
said defendant in execution, or by advertisement published in a newspaper
printed in said county, naming therein the day and place of sale; and if
the said defendant in execution fail to deliver the goods and chattels
at the time and place mentioned in the notice to him given, or to pay to
the officer holding the execution the full value of said goods and chattels
or the amount of the d^bt and costs, this undertaking shall be considered
as broken, and may be proceeded on as in other cnses.
In witness whereof, the parties have hereunto subscribed their names,
this day of , A. D. 18 . , Principal.
, Surety.
, Surety.
WJien, for want of goods and chattels sufficient to satisfy the execution,
lands are levied upon, they must be appraised. Such appraisement must
be made by three disinterested freeholders, residents of the county where
the lands lie, under oath, and upon actual view of the premises. The
officer holding the execution, or his deputy executing it, administers
the oath. Houses and buildings should be carefully examined by the
appraisers, with a view to ascertaining the value in money of the lands
to be appraised. Leaseholds renewable forever are real estate. Leases
for years, however long the term, are personal property. An affirma-
tion is included by the term oath.
TRIAL 0V TUK RIQUT 0V PUOPEUTY, TO. 166
OATII OP APPRAISERS.
[Form 127. g 5389.]
The State of Ohio, - County, ss.
You, - , - , and - , nnd each of you, do solemnly swear [or, solemnly
afBrm, under the pains nnd penalties of perjury] that you will impar-
tially appraise the lands and tenements to be shown you, and levied on by
ino under the execution which I hold, upon actual view, at their true value
in money, and this you do as you shall answer to God.
Sworn to, etc. - , Sheriff of - County.
INQUEST OF APPRAISERS.
[Form 128. 538J.]
We, the undersigned appraisers, freeholders of said - county, having
been first duly sworn so to do, upon actual view of tho same, impartially
appraised the following described lands and tenements, levied upon \ y
execution, In the case of John Doe against John Smith and others, as tho
property of - , at - dollars in money, said lands and tenements
being described as follows : [ Here describe the real estate levied on. If separaH
tracts are levied on they should be appraised separately.'} The following do
scribed lands and tenements levied upon by execution as tho property of
- , to wit: [describing the parcel} at - dollars. [Second, etcJ}
In witness whereof, we have hereunto subscribed our names, this
day of -- , A, n. 18 . - ,
~~
Note. A " freeholder " is one who is the owner of an estate in lands in fee*
Impli', for his own life, or tho life of another, or by Inase renewable forever
f n-.-liold estate in lands.
The sheriff or officer executing the writ must forthwith deposit a
copy of tho inquest of appraisement with the clerk of tho Court of
Common Plena from which tho writ issued. 5390. A copy of tlio
oath administered to the appraisers should be returned with the inquest
itself. If tho execution be from another .county, such copy may be
transmitted to tha clerk of tin couuty who issued the writ by mail.
6420.
186 CODE PRACTICE AND PRECEDENTS.
FORM OF SUCH HETURN BY THE OFFICER.
[Form 129. g 5390.]
Common Pleas Court of County.
John Doe )
No. .] vs. > Execution No. .
John Smith et als. )
The annexed is a true copy of the inquest of appraisement, including
the oath of the appraisers, of the lands and tenements therein described,
levied upon by me, by virtue of said execution, as the property of said
defendant,
[Date.] , Sheriff of County.
Note. If any party interested as plaintiff or defendant objects to such ap-
praisement for any reason, such as that one or more of tlie appraisers was not
a freeholder, or resident of tho county, or the appraisement was not made upon
actual view, or is too low, or too high, etc., it will be advisable to file a motion
in the court of tho county from which the execution issued, to set the same
aside for such reasons and avoid incurring tho costs, etc., of a sale, or attempted
sale. The practice is ntt settled as to whether a motion to set aside the sale for
objections reaching only the appraisement can be made after tho sale is reported
and stands for confirmation, some judges being liberal and others strict in this
respect, holding that after the sale objections to the appraisement are waived,
and still others who impose tho costs subsequent to tho appraisement upon the
party excepting to it and obtaining a new appraisement. If valid objections to
the gale exist and the appraisement is also materially defective, objections to the
latter are usually joined in the motion to set aside both, and a new appraisement
ordered. On re-appraisement, Forms 127, 128, and 129 arc applicable.
MOTION TO SET ASIDE APPRAISEMENT BY PLAINTIFF.
[Form 130.]
Court of Common Pleas of County.
John Doe 1
tfo. ] vs. \ Motion to Set Aside Appraisement of Real Estate.
John Smith et als. )
Tha said plaintiff moves the court to set aside the appraisement, and
for a new appraisement, of the lands and tenements appraised upon exe-
cution in this case, a, copy of which is on file in the clerk's office in this
county, for the reasons following:
1. [Here state and number the grounds of the motion.]
EDWARD COKE, Attorney for Plaintiff.
TRIAL OF THE RIGHT OF PROPERTY, ETC. 187
ENTKY SUSTAINING TIII: MOTION.
[Form 131.]
v , [Appraisement Set Aside and New Appraisement
k . f Ordered.
John Smith et als. )
This day the motion heretofore filed herein to set aside the appraise-
ment of the real estate levied on upon execution in this cause, came on
to be heard by the court, and the court having heard nil the evidence ad-
duced upon such motion, and the arguments of counsel, and being fully
advised in the premises, doth grant said motion ; and it is thereupon
ordered by the court that the said appraisment be and thesnme is hereby
het aside and held for naught, the costs of said appraisement [to be taxed
as part of the costs of the cause, and the costs of and incurred upon this
motion to be taxed ;] and a new appraisement of said premises, ac-
cording to law, is hereby ordered.
Xotc. The evidence in eueh cases is properly presented by affidavits and
documents ; though the court, in its discretion, may hear oral evidence.
ENTRY WHEN THE MOTION is OVERRULED.
[Form 132. J
John Doe )
No. .] v*. > Motion to Set Asido Appraisement Overruled.
John Smith et als. )
This day the motion heretofore made herein to set aside the appraise-
ment of the real estate levied upon on execution in this cause, came on to
be ln-iird by the court, and tho court having heard nil the evidence ad-
lui--d, and the arguments of counsel, and being fully advised in the prem-
ises, doth overrule said motion, nt tho cost* of , taxed at dollars
and cents [to nil of which the (plaintiff) excepts.]
(a) See BILL OP EXCEPTIONS.
(6) Lands can not be old for less than twoJhirda of their appraised
value. 5391.
NOTICE OP SALE OF LANDS ON EXECUTION SHERIFF'S SALE OP
. REAL ESTATE ON EXECUTION.
[Form 133. 5393, 5394 5404.]
On the day of , A. D. 18 , beginning at o'clock M., at
the door of the court-house, in county, Ohio [or, on the premises, etc.,
if o ordered by the court (section 5404)], I will offer at public sale the fol-
lowing described real estate, to wit: [here describe it at in appraisement],
levied upon by Execution No. , in the case of John Doe against
John Smith et als., upon a judgment rendered in said case, being
188 CODE PRACTICE AND PRECEDENTS.
No. , in the Court of Common Pleas of the county of . Appraised
at $ [or, first above described tract appraised at$ , etc.]
Terms of sale: Cash on the day of sale. Must sell for not less than two
thirds of the appraisement.
[Date,~] , Sheriff of County.
Note. If such notice is published in a weekly newspaper printed and of gen-
eral circulation in the county, it will bo sufficient to insert it in five consecutive
numbers thereof; if there is published both a daily and a weekly edition of such
newspaper, and the circulation of the daily in the county exceeds that of the
weekly, it may be published for five consecutive weeks in the daily before the
day of sale; or, if the lands are situated in any city (municipal corporation)
where such selected newspaper is published both daily and weekly, and the cir-
culation, insuch city, exceeds that of the weekly, five consecutive weekly publi-
cations in such daily will be sufficient, before the day of sale. Each insertion in
a daily is required to be on the same day of the week, each week ; without such
notice of sale as is required in this section, 5393, the sale must bo set aside by
the court to which the execution is returnable.
The court shall on motion of the defendant, and may without motion, for good
cause, dispense with publication in a newspaper printed in the German lan-
guage, within the county, though established and issued prior lo April 17, 1879,
and having a circulation within such county of at least five hundred and fifty
bona fide subscribers. Before the commencement of publication, an entry
should be made in the cause, if desired, upon the journal, dispensing with such
publication. No mistakes in such publication, or in a Bohemian newspaper,
when authorized to be published therein by the court, will delay or affect the
sale; but may deprive such publisher of his costs for the publication.
PROOF OF PUBLICATION.
[Form 134. 5393.]
The State of Ohio, County, ss.
I, , make solemn oath that I am the publisher [or, have charge of
the publication] of , a weekly newspaper published and of general
circulation in said county of , and that the printed notice hereto at-
tached was published five consecutive weeks in said weekly newspaper,
the date of the first publication being on the day of , 18 , and
the last on the day of , A. D. 18 . .
Sworn to and subscribed before me by said , this day of ,
I s . , Clerk.
IF IN DAILY EDITION.
[Form 135. 5393.]
The State of Ohio, County, ss.
I, , make solemn oath that I am the publisher [or, have charge of the
publication] of , of which there is both a daily and a weekly edition
published in the city [or, municipal corporation] of , in the county of
TRIAL OP THE RIGHT OF PROPERTY, ETC. 189
. Ohio, and of general circulation in said county, the said daily
having a larger circulation in said county [or, in said city, etc., if ike
property it therein titrate] than said weekly edition; and that the printed
notice hereto attached was published in said daily , on the same day
of each week, for five consecutive weeks, the first publication being on
, the day of , 18 , and the last publication on , the
day of , A. o. 18. .
Sworn to, etc.
PROOF OF GERMAN PUBLICATION.
[Form 136. 5394.]
I, , make solemn oath that I am the publisher [or, have charge of
the publication] of , a daily [or, weekly] news-paper printed and pub-
lished in said county, in the German language, and which was established
and issued before April 17, 1879, and which has a circulation of at least
five hundred and fifty copies to bona fide subscribers within said county;
and that the notice hereto attached, printed in the German language, was
published once a week for five consecutive weeks, tm the same day of the
week, in said daily [o-, weekly] newspaper, the first publication being on
, the day of , 18 , and the last publication on , the
day of , A. D. 18 . .
Sworn to, etc.
Note. Whore the property is so situated and the surroundings are such that
notice of the sale in the German language can not be reasonably expected to
promote a sale, or enhance the price of the same, it is the duty of the court,
when the fact* are called to its attention by any one interested, to dispense with
ocb German publication, if the defendant fails to do so.
ENTRY DISPENSING WITH PUBLICATION IN GERMAN.
[Fora 137. 25394.]
John Doe )
No. .] it. > Dispensing with Publication in German Newspaper.
John Smith etals. )
For good cause, the court doth hereby order that publication of notice
of sale of the real estate levied on by execution in this cause, in a news-
paper printed and published in the German language in this county, be
and the same is hereby dispensed with.
(o) And when the court deems that the interests of the defendant
require that such notice be published in a newspaper printed in the
Bohemian language, in addition to English and German publication
or English alone when German is dispensed with an order to that
effect will be requisite to authorize such publication.
190 CODE PRACTICE AND PRECEDENTS.
[Form 138. 5394.]
John Do* ) Order to Publish Notice of Sale of Real Estate in
r i~ o ?' i "Bohemian Newspaper.
John Smith et als. )
In this case, the court deeming that the interests of the defendant in
execution require it, doth direct the notice of sale of the real estate levied
on by execution in this case also to be published for five consecutive
weeks before the day of sale in a newspaper printed in the Bohemian lan-
guage.
Proof of such publication can easily be drawn from Forms 134-136.
APPROVAL OF PUBLICATION BY THE COURT.
[Form 139. 5393.]
John Doe ]
No. .] vs. > Approval of Publication.
John Smith et als. j
On producing to the court the printed notice and proof of the publica-
tion thereof, of the sale of the real estate levied upon by execution in this
case, ill the newspaper, the court doth find the same sufficient in
law, and hereby approves the same.
Note. This approval of the court is not essential to the validity of the sale
it being included in the order of confirmation of the proceedings of the sheriff
and of the sale made by him under the writ.
NEW APPRAISEMENT WHEN REAL PROPERTY HAS BEEN TWICE OF-
FERED FOR SALE.
[Form 140. 5416.]
John Doe |
No. .] vs. > Order for New Appraisement, etc.
John Smith et als. )
On motion of the plaintiff and it being made to appear to the court that
the lands and tenements taken on execution and appraised herein, have
been twice duly advertised and offered for sale, and remain unsold for
want of bidders, it is ordered by the court that said appraisement be and
the same is hereby set aside, and a new appraisement ordered to be made.
Note. The proceedings governing such new appraisement will be the same
as those of the first.
The court, in such case, may also, on motion of the plaintiff, set aside the levy
and such appraisement and award a new execution to issue, as the case may
require.
On order* of sale (which see) the property may be sold on terms of credit
5417-
TRIAL OF THE RIGHT OF PROPERTY, ETC. 191
MOTION TO SET ASIDE LEVY, ETC., AND FOR NEW EXECUTION.
[Form 141. 5416.]
Court of Common Pleas of County.
jj [ Motion to Set Aside Levy and Appraisement and
John Smith etals. ) for a New Execution.
The said plaintiff moves the court to set aside the levy and appraisement
heretofore made under the execution issued herein, and award a new
execution to issue, for the reasons following:
1. Said premises have been twice advertised and offered for sale under
said execution, and remain unsold for want of bidders.
2. Said defendant in execution has other real estate subject to execu-
tion from which an execution can be much more speedily satisfied than
from the lands and tenements now levied upon.
3. And for other reasons to be shown to the court on the hearing of this
motion. EDWAHD COKE, Attorney for Plaintiff.
ORDER GRANTING SUCH MOTION.
[Form 142. 5416.]
I Order Setting Aside Levy and Appraisement and
John Smith et als. j Awardin g New Execution, etc.
Upon the motion of the plaintiff heretofore filed herein, and the court
finding that the lands and tenements levied on by execution have been
twice appraised and offered for sale, and remain unsold for want of bidders,
and that the case requires it, it is ordered by the court that such said
levy and appraisement be and the same are hereby set aside, and a new
execution awarded to issue.
\Vm:x REAL ESTATE HAS BEEN THREE TIM ES APPRAISED AS PRE-
IHED BY SECTIONS 5416, 5417, AND TWICE OFFERED FOR SAM:
UNDER EACH APPRAISEMENT, THE COURT MAY DIRECT THE
AMOUNT FOR WHICH IT MAY SELL.
I Order Directing Writ for which Premises may be Sold.
")
[Form 143. 5410.]
John Doe
Johnliith etals. f Amoullt tixed - '
On motion of the plaintiff, and it being made to appear to the court
that, upon execution, the real estate levied upon was twice advertised
and offered for sale, and not sold for w.mt of bidders, when, on motion
of the plaintiff, the appraisement was set aside and u new one ordered,
and two subsequent te-appraisements thereof were had upon the same
grounds as the first order for a new appraisement was ordered by the court,
and said lands and tenements still remain unsold for want of bidders, the
192 CODE PRACTICE AND PRECEDENTS.
court doth fix the amount for which said premises may be sold, on execu-
tion herein, according to law, at dollars.
Note. The motions by the plaintiff under these section.*, 5416, 5417, may be
oral ; or, if required by the court, they must be in writing and filed in the
cause.
THE RETURN OF THE EXECUTION BY THE SHERIFF OR OFFICER
EXECUTING IT.
[Form 144. g 4966, 5418, 5396, 5395.]
Received the within writ of execution on the day of , A. D. 18 ,
at o'clock M.; and on the day of A. D. 18 , at o'clock
M., levied the same upon the following goods and chattels taken as the
property of the said John Smith [here give list] and thereupon I caused
public notice of the sale of the same to be published in the , a news-
paper printed in said county, and of the time and place of such sale,
a copy of which printed notice is returned herewith, as part hereof; and,
in pursuance cf such notice, I exposed at public sale and sold said goods
and chattels for the sum of dollars, which sum I now hold.
[Date."] , Sheriff of County.
[Itemized costs on writ.]
Kote. If the officer collect the amount of the execution, or any part of it,
without the sale of real estate, he shall pay the same, on demand, to the plaintiff
or his attorney ; and if the execution, in such case, be fully satisfied, it must be
returned within three days after the collection of the money. 5396.
And upon the return of an execution, the clerk must immediately record the
return at length on the execution docket. This applies to all returns upon
executions. 5395.
RETURN WHEN GOODS AND CHATTELS NOT SOLD FOR WANT OF
TIME, ETC.
[Form 145. 5386.]
Received this writ of execution on the day of , A. D. 18 , and
levied the same upon the goods and chattels of said defendant, , a
true and perfect inventory of which is hereto annexed, and the same, ror
any part thereof, were not sold for want of bidders [or, for want of time to
advertise and sell.]
Inventory of goods and chattels levied uoon and unsold. [Here give list
of 8ame.~\
[Give items of costs on execution.']
[Date.']
Note. If part of the property be sold, and a part not, the return can bo
framed from the above and preceding Form, 144.
Tho return upon a vendi, with ft. fa. clause, will be the same as in Forms 144
and 145, as the property must be advertised. 5386.
TRIAL OF TIIK KHMIT K I'll 'I'KKTV, I 193
RETURN WHI.N KXECUTION DEBTOR is ENTITLED TO BENEFIT OP
EXEMPTION AND HOMESTEAD LAWS IN PERSONAL PROPERTY.
[Form 146. 5430, 5441 (Sup., p. 352 )]
Received this writ of execution on the day of , A. D. 18 , at
o'clock M.; and executed the same as follows: Said execution
l.-t'tor, John Smith, being the head of a family elected to hold all per-
sonal property by law exempt from execution ; and said debtor having no
beep [or, the wool shorn from them, and no cloth or other articles manu-
factured therefrom] chose in lieu thereof the following articles of house-
hold furniture of the value of fifteen dollars, to wit: [Here give Hit, etc.,
at to each, selection.] Thereupon, I caused the values of all said articles
of personal property to be then and there duly appraised by and ,
two disinterested householders of the county, they being first duly sworn
by me to impartially make such appraisement, and they did appraise all
said articles of personalty at the value aforesaid.
And thereupon, on said day, at o'clock M., I levied this writ
upon the following goods and chattels, etc. [as in Form 144].
.Vote. If the officer holds.two or more executions against the same debtor,
ued out during tbe same term of the court in which such judgments were ren-
dered, or within ten days thereafter, the executions are equal and must be satis-
fled pro rata, if not satisfied in full. This does not apply where there are pri-
orities of liens on real estate. \ 538*2.
RETURN SETTING OFF HOMESTEAD.
[Form 147. 5441, 5438 (Sup., p. 352.]
Received this writ of execution on the day of , A. D. 18 , at
o'clock M. " No goods." And thereupon, as the property of the
execution debtor, John Smith, I, on the day of , A. D. IS, at
o'clock M., levied the same on the following lands and tenements,
situated in said county of : [Describe the property.] And thereupon
said John Smith, being the head of a family, demanded [or, , wife of
aid John Smith; or, , agent, or attorney of said John Smith, de-
manded] the assignment to him of his homestead in said premises. And
thereupon, by the oaths of , , and , three disinterested
freeholders, to well and truly appraise at the true value of the same in
nvmry. upon actual view of the same, and a true inquest make of said
appraisement, I caused an appraisement of the same to be made by said
appraiser^ a copy of which was forthwith filed in the clerk's office by me.
Said premises were appraised At dollars.* And said appraiser*, at
the name time, being duly sworn by me so to do, set off and assigned to said
John Smith, as and for his homestead, the following described real estate,
part and parcel of the above described tract of land so levied upon : [Her,'
it], and appraised the same, upon actual view, at [not to exceed
13
194 CODE PRACTICE AND PRECEDENTS.
$1,000] dollars; and also, in like manner, appraised the residue of said
premises, exclusive of the lands embraced in said homestead, at
dollars.
I then caused said premises, not including said homestead, to be ad-
vertised for sale in the , a newspaper published and of general
circulation in said county [and in the ; , a newspaper printed in
the German language within said county, and qualified by law to make
such publication], at the court-house in said county [or such place as the
sale was ordered to be made], on the day of , A. D. 18 , beginning at
o'clock M.; a copy of which printed notice, with assignment of
homestead, is returned herewith, and as part hereof; and at said time
and place, I offered said lands and tenements for sale, at public outcry;*
and bid therefor the sum of dollars, and he being the highest
and best bidder, and the same being two-thirds [or, more than two-thirds]
of the appraised value of said premises, I then and there struck off and
sold the same to said , who has paid me the said sum of - dollars
therefor, which I now have in my hands.
[Items of caste.]
[Date.] , Sheriff of County.
INQUEST OF APPRAISERS AND ASSIGNMENT OF HOMESTEAD OATH.
[Form 148. 5389, 5438.]
The State of Ohio, County, ss.
We, , , and , do each solemnly swear [or, affirm] that we
will impartially appraise the lands and tenements now pointed out and
shown to us by , sheriff "of said county, upon actual view, at the true
value thereof in. money; and that we will also assign to John Smith his
homestead in said premises, not exceeding in value one thousand dollars,
according to law, and this we do as we shall answer unto God.
[Dote.] , )
, > Appraisers.
Sworn to, etc. , Sheriff of County.
INQUEST.
[Form 149. 5389, 5438.]
We, the undersigned appraisers and freeholders of said county,
having been first duly sworn [or, affirmed] so to do, upon actual view of
the same, impartially appraise the following described lands and tene-
ments, levied upon as the property of John Smith, upon execution in the
case of John Doe against John Smith and others, at dollars in money.
Description of real estate: [Here describe it.~\
And we also set off and assign by metes and bounds to said John Smith
as and for his homestead the following described part and parcel of said
estate, to wit : [Here describe it.'] And we do appraise the same at
[not exceeding $1 ,000] dollars in money.
TRIAL OF TIIK RIGHT OF PROPERTY, ETC. 195
And we do, in like manner, and upon actual view, appraise the said
lands and tenements, not included in said homestead, at - dollars in
money.
In witness whereof, we have hereunto subscribed our names, this -
day of - , A. D. 18. - , j
- , > Appraisers. ,.
The foregoing is the appraisement of the lands and tenements levied
ii:. on on execution No. - , by me, issued by the Court of Common Pleas
of -- county, in the cose of John Doe against. John Smith and others;
and the assignment of homestead in said premises to said John Smith,
and appraisement of the value of the same.
[Date.] - , Sheriff of -- County.
Note. When the homestead is not divisible, tho same will bo appraised, and
alo its yearly rental value, payable in quarterly payments, commencing three
months from the time of the levy of the execution. If such yearly rental be
appraised at less than one hundred dollars, the debtor will hold the premises as
a homestead; if at more, the rent over and above one hundred dollars per year,
payable quarterly, MS aforesaid, is to be paid by the debtor, and on his failure to
do so the property may be sold to satisfy the execution debt, at not less than its
appraised value. } 5439.
(a) When hind levied upon is not the homestead, and the debtor
has no homestead, the real estate, to be selected by the debtor, as-
signed in lieu thereof, must not exceed Jive hundred dollars in value.
5441 (Sup., p. 352).
If pernonal property be selected by the debtor, not exceeding five
hundred dollars in value, is a-ssigned in lieu of homestead, the ap-
praisers will make an inventory and appraisement of the same. Form
149 will suggest the proper method.
(6) The homestead may be re-appraised every two years, as provided
in section 5439.
(e) The homestead may be claimed, and must be assigned, at any
time before the sale. 5438. And where, owing to paramount liens,
it can not be claimed as against the same, an amount not exceeding
fivr hundred dollars may be claimed from the proceeds of the sale
Mich liens are satisfied. 5440.
MOTION i "i: RK-APPRAIHKMKNT OP HOMESTEAD.
[Form 150. g 5439.]
Court of Common Plea* of - County.
John Doe |
No. .] r.i. > Motion for Re-appraisement of Homestead.
John Smith et aid. I
And now comes said John Doe [or, defendant; or, bolder of homestead},
196 CODE PRACTICE AND PRECEDENTS.
and moves the court for an order for the re-appraisement of the home-
stead assigned herein to said John Smith, which was more than two years
ago. EDWARD COKE, Attorney for Plaintiff.
ORDER OF RE-APPRAISEMENT OF HOMESTEAD.
[Form 151.]
John Doe ]
No. .] vs. > Order to Re-appraise Homestead.
John Smith et als. j
In this case, the motion filed herein by [the plaintiff] for a re-appraise-
ment of the homestead assigned on execution herein to said John Smith,
on the day of , A. D. 18 , is granted, and it is ordered that the
sheriff of this county cause said homestead to be re-appraised according
to law, and make due return of the same.
Note. If the re-appraisement is made at the instance of the plaintiff, and is
not one hundred dollars above the first, the costs thereof are to be borne by
him ; if by the defendant, or holder of the homestead, the costs are taxed to the
case. 5439.
A copy of the order will be issued to the sheriff, who will execute it in the
same manner as a real estate appraisement upon a levy by execution.
RETURN OF SHERIFF WHEN REAL ESTATE NOT SOLD FOR WANT OF
BIDDERS, BUT HOMESTEAD HAS BEEN ASSIGNED.
[Form 152.]
[Follow Form 147 to last *, and add :]
And no one having bid for said premises two-thirds of the appraised
value thereof the same was not sold for want of bidders.
[Date.] , Sheriff of County.
CONFIRMATION, ETC., OF SHERIFF'S SALE, ETC.
[Form 153. 5398, 5408.]
John Doe j Confirmation of Sale, and Deed Ordered to be Made
TU ~o j * -li. i I to the Purchaser, .
John Smith et als. J
This day the return of the writ of execution issued in this case was
produced to the court by the plaintiff, and the proceedings and sale of
the sheriff [or, officer] under the commands and requirements of such
execution being carefully examined by the court, and found by the court,
in all respects, in conformity to law, and the court being satisfied of the
legality of such said sale, which is hereby approved and confirmed by the
court, it is ordered that the sheriff, , or the sheriff for the time being,
make to the purchaser, , a deed for said lands and tenements so sold
to said purchaser, and out of the money arising from said sale, it is further
ordered by the court, that said sheriff pay, first, all the costs and expenses
of this cause, not specially ordered to be paid by others than said defend-
TRIAL OF T11K KltillT OF PROPERTY, ETC. 197
ant; teeond, the amount of the plaintiff's said debt in full to the plaintiff
or his attorney, Edward Coke, on demand ; and the residue to said de-
fendant, John Smith, on demand.
Regularly, a motion should be filed to confirm the tale.
MOTION TO SET ASIDE SALE.
[Fora 154.]
< ominon Pleas Court of County.
John Doe )
No. J vt. \ Motion to Set Aside Sale, etc. ,
John Smith et als. j
The plaintiff [or, defendant] moves the court to set aside the sale of
the premises returned by the sheriff [or other officer] herein for the reasons
following : [Here state and number the grounds of the motion].
EDWARD COKE, Attorney for Plaintiff.
.Vote. The evidence for, and against the motion, if resisted, will be upon af-
fidavits and the papers in the ease, unless the court, in its discretion, admit oral
testimony.
When the motion is dispond of by the court, an entry sustaining or over-
ruling the motion, as the case may be, should be prepared by the attorney and
entered upon the journal of the court. The action of the court can be reviewed
only .-ii petition in error; the evidence being embodied in a bill of exceptions.
SHERIFF'S DF.EI> TO THE PI'RCHASER.
[Fora 165. -0401, 540]
Whereas, in the Court of Common Pleas of county, and State of
Ohio, on the day of .A. D. 18 , John Doe duly commenced a
civil action against John Smith, John Jones, and Hugh Evans, for the
recovery of money against them; and in said action such proceedings
were had in and by said court, that, at the term thereof, A. D. 18 ,
which began and was held at the court-house in said county on the
day of . in aid year, the said John Doe duly recovered a judgment
npunst the said John Smith. John Jones, and Hu^h Evans, for the sum
of dollars, and dollars, the plaintiff's costs, to draw interest
Ir -in the day of , *. D. 18 .
And. whereas, on th day of . A. D. 18 . upon said judgment,
nn .'xecutioii was duly issued to the sheriff [or t>thfr ofieer] of said
roiinty. commanding him that, of the jroods and chattels of said John
S-nith, John Join-, and Hugh Evans, he cause to be made the said jml>j-
.lebt. costs, interest, und accruing costs, etc.. and for want of *\\c\\
.ind chattels, that the same be made of the lands and tenements nf
i'l_ f rn<Mit creditors, within said county, or either of them, which
writ of execution wa made returnable uccordins to luw; and there l*eing
<U an. I chattel* of *aid execution defendant*, within - !! county,
whereon to levy sufficient to satisfy said writ of execution, suid sheriff
198 CODE PRACTICE AND PRECEDENTS.
[or other officer] did duly levy the same upon the lands and tenements,
situate within said county, of the said John Smith ; said lands and tene-
ments are described as follows, to wit: [Here describe the premises as in the
levy, appraisement, etc.~\
And thereupon, the said sheriff [or other officer} did cause said lands
and tenements to be duly appraised on their oath, upon actual view, by
three disinterested freeholders of said county, at the sum of dollars,
a copy of which was forthwith returned, according to law,, to the office
of the clerk of said county; and thereupon said sheriff duly caused said
premises to be advertised for more than thirty days preceding the
day of -, A. D. 18 , the day of sale, for public sale at the court-house
[or other designated place], on said last named day, the sale beginning
at o'clock M.
And whereas, at said time and place, said lands and tenements were
duly offered at public sale by said sheriff [or other officer], and , the
purchaser, having bid therefor the sum of dollars, and he being the
highest and best bidder for said premises, and the same being more than
two-thirds of the appraised value thereof, the same were, by said sheriff
[or other officer], struck off and sold to said purchaser, , for said sum
so bid by him, and which said amount of money was then and there duly
paid by said purchaser to said sheriff [or other officer].
And whereas, at the term of said court, A. D. 18 , on the day
of , in said year, the said sheriff [or other officer], having duly re-
turned said writ of execution, and his proceedings and said sale made
under the same, the said Court of Common Pleas, within and for said
county, did find, on careful examination of the proceedings of said
sheriff [or other officer], that the said sale was made, in all respects, in
conformity to law; whereupon an entry was made on the journal of said
court that the court was satisfied of the legality of such said sale, and
that the said sheriff [or other officer] make to the said purchaser, -, a
deed for said lands and tenements all of which said proceedings in the
premises will more fully and at large appear, reference being had to the
records in said cause in said court, which reference is hereby expressly
made and had.
Now, therefore, know all men by these presents, that I, , as sheriff of
said county, Ohio, in consideration of the premises and of the sum of
dollars, to me in hand paid by said purchaser, , of the county of
, and State of , do hereby bargain and sell, grant and convey,
unto the said , his heirs and assigns forever, all and singular the lands
and tenements, with the appurtenances, hereinbefore described being all
the title thereto of said John Smith. To have and to hold said premises,
with the appurtenances, unto the said , his heirs and assigns, forever,
as amply and as fully as I, as such sheriff, [or other officer'], can convey
by virtue of the proceedings, judgments, execution, sales, orders, etc.,
hereinbefore mentioned and referred to.
In testimony whereof, the said , as sheriff [or other officer] of the
TRIAL 0? TUB RIGHT OP PROPERTY, I 199
county of . and Stat- of Ohio, has hereunto subscriU <1 in, name [and
affixed his goal ]. this day of . A. D. I
, as Sheriff of County, Ohio. [SEAL]
\Vitm---
Signed, [sealed], and acknowledged in presence of
1. .
J. .
;ite of Ohio, Count .
Thin day personally appeared before me, a notary public within and for
unty. , sheriff of said county, and acknowledged the signing
[aud sealing] of the foregoing deed of conveyance to be his voluntu
and deed as such said sheriff, for the uses and purposes therein named.
This day of , A. D. 18 , as witness my hand and official nota-
rial seal.
[KOTABUL SEAL.] ,
Notary Public within and for County, < >hio.
(a) It is the order of confirmation that vesta in the purchaser at ju-
dicial* sale the complete equitable title. The officer's deed vests the
legal title of the execution debtor in such purchaser.
(6) By section 5402 such deed is made prinia facie evidence of title
in the purchaser, and the order of confirmation of the sale need not
be produced to render such deed competent evidence.
(c) Sec. 4, Sup., p. 2, abolishes private seals, and affixing such seal
a scrawl being regarded as such seal can give no instrument whatever
any additional force or effect, or in any way change the construction
thereof. Official seals, as of notaries public, corporation?, etc., are still
required by statute. Deeds executed prior to March 29, 1883, must
have the seal of the grantor to vest the legal title in the grantee, sec-
tion 4106, of that date, not being curathv uf preceding det'rctivo deeds.
(d) Section 4106 (Sup., p. 206) requires deeds only to be rigned
aii.l acknowledged by the grantor, in the presence of tiro witnesses,
who shall attest the signing and subscribe their names to the Attesta-
tion. It may be acknowledged by the grantor before a judge of record
in this state, or a clerk thereof, a county surveyor, a justice of the
peace, notary public, or the mayor or other presiding officer of a mu-
nicipal corporation, who shall certify the acknowM-rm. nt on thesm*
staef on which the instrument is written or printed, and subscribe his
name thereto. If he have an official seal, he must affix it.
As to acknowledgments taken out of this state, see section 4111.
200 CODE PRACTICE AND PRECEDENTS.
WHEN TERM OF SERVICE, ETC., OP SHERIFF, ETC., EXPIRES ORDER
UPON SUCCESSOR TO MAKE DEED TO PURCHASER.
[Form 156. 5407.]
-KT [Order Requiring Successor of Sheriff' to Make
John SmTth et als. j Deed to Pu haser.
In this case, it being made to appear to the court that since the order
confirming the sale of real estate herein and directing the sheriff to
make a deed therefor to the purchaser, -- , the term of the then sheriff
has expired, and that -- has become and now is his successor in office.
It is, therefore, ordered by the court that the present sheriff, - - [o?
other officer], execute a deed for said premises to said - , said pur,
chaser, to whom the sale of the same has been confirmed by this court.
Note. The substance of the foregoing order should be recited in the deed
after the recital of the orderof confirmation, and directing the deed to be made.
When, under section 5406, the sheriff levies on real property by direction of the
plaintiff in execution, he should specify in his return that he did so by such di-
rection, and when the officer has the election, between executions, to levy on this
or that tract and exercises his power of election, the facts should also be stated
in his return of the writ.
Reversal of the judgment, to satisfy which real estate has been
sold, will not affect the title of the purchaser. The defendant in ex-
ecution whose property is so sold must look to the judgment creditor for
restitution. 5409.
WHEN PROPERTY NOT SUBJECT TO EXECUTION HAS BEEN SOLD AKD
THE PROCEEDS APPLIED ON EXECUTION.
[Form 157. 5412.]
Court of Common Pleas of - County.
John Doe |
No. .] vs. > Motion to have Satisfaction Vacated.
John Smith et als. j
The plaintiff moves the court to vacate the satisfaction of the judgment
from the proceeds of the property sold on execution in this case, for the
reason that the said property was not subject to execution, but that the
plaintiff, in good faith, ordered a levy of the execution on the same, which
was sold and applied on his judgment herein; and a recovery in the sum
of - dollars has been had against him by - , the owner thereof, and
he has paid the said amount so recovered against him. Wherefore he asks
to have such satisfaction vacated, and he declared entitled to collect said
judgment, as if no such sale and satisfaction had been had.
EDWARD COKE, Attorney for Plaintiff.
TRIAL OF TUB REOUT OP PROPERTY, ETC.
NOTICE OK Si-cu MOTION TO JUDGMENT DEFENDANT.
[Form 158. 5412.]
To John Smith, John Jones, and Hugh Evans:
You are hereby notified that a motion, of which the following is a copy,
has been filed in the Court of Common Pleas of County, Ohio, and
will be heard in said court on the - day of - , A. D., 18 , at - o'clock
M., or as soon thereafter as counsel can be heard.
COPT OF MOTION.
[Here copy motion m_/W/.]
You will then assent to or contest said motion.
[Dofc.] EDWARD COCK. Attorney for Plaintiff.
ORDER GRANTING SUCH MOTION.
[Form 159. 5412 ]
Jonh Doe I
No. .] vs. > Vacation, etc., of Satisfaction of Judgment.
John Smith et als. j
This day the motion filed herein to hare satisfaction of the judgment
heretofore rendered in this cause vacated, and to entitle the said plaintiff
to collect the same, came on to be heard by the court ; and the court doth
find that due notice of the pendency and object of such motion has been
given the said defendants named in the execution, and that the grounds
stated in said motion are true. It is therefore ordered by the court that
the satisfaction so made from the sale of such property on execution be,
and the same is, hereby vacated; and the said plaintiff entitled to collect
aid judgment, as if said sale on execution and such satisfaction had not
been made.
(a) When the sheriff, or other officer, as provided fur in section
5413, has made a like mistake in the levy upon and sale of property,
and he has been compelled t<> pay the value of the same, the fortn of
obtaining redress is sufficiently indicated by the preceding one, 159.
l'h< -am.- can easily be applied to the ease of a defendant, or surety,
under section 5414.
\VIM:N TITLE OF PURCHASER is INVALID BY REASON OF DEFECT
IN THE PROCEEDINGS SUBROGATION.
[Form 180. g 5410.]
Court of Common .Pleas of - County.
John Doe I Motion of - Purchaser to be Subrogated to
John~*LS..t.U f KighUofPhuntiff
And now comes -- , the purchaser of the premises told, confirmed, and
202 CODE PRACTICE AND PRECEDENTS.
conveyed to him upon execution herein, and moves the court for subroga-
tion to all the rights of the said plaintiff in execution against the said debtor,
John Smith, for the reason that the said sale to him of said premises has
been declared invalid by the court of and held for naught by reason
of defect in the said proceedings on execution, and the said premises, in
consequence thereof, are wholly lost to him. He paid for said premises
the sum of dollars, for which amount, with interest, etc., he asks to
be so subrogated. JOSEPH OHITTT, Attorney for [the purchaser.]
[Form 161. 5410.]
John Doe 1
No. .] vs. > Subrogation of to the Eights of John Doe, etc.
John Smith et als. )
This day the motion filed herein by for subrogation, etc., came on
to be heard by the court; and the court doth find the statements, all and
singular, contained in said motion to be true, and being fully advised in
the premises the court doth hereby order and adjudge that said be
and he is hereby subrogated, to the amount of dollars, with interest
from the day of , A. D. 18 , to all the rights of the said plaintiff
in execution, John Doe, as against the said defendant in execution, John
Smith, and he shall have a lien on the said real property so sold, to the
same extent as said plaintiff, except as to bona fide purchasers thereof
without notice, the said plaintiff not being liable to refund such purchase-
money, by reason of the invalidity of such said sale.
(a) By section 5411, the same rule applies to all sales by order of
court; by executors, administrators, guardians, assignees, and for
taxes.
(6) By " defect in the proceedings" is meant those substantial er-
rors which have occurred in the issuing or proceedings under the exe-
cution, by reason of which the title of the purchaser is invalid. Re-
versal of the judgment for errors in obtaining such judgment does not
affect the title of a purchaser of lands at judicial sale. 5409.
TRIAL OF RIGHT OF PROPERTY WHEN CHATTELS LEVIED ON ARE
CLAIMED BY A THIRD PERSON NOTICE fiY OFFICER TO JUSTICE
OF THE PEACE.
[Form 162. 5444.]
To , Justice of the Peace within County, Ohio:
You are hereby notified that I, as oheriff of said county, in the
case of John Doe against John Smith, John Jones, and Hugh Evans, in
the Court of Common Pleas of said county [or county from which the execu-
tion was issued], on an execution issued upon the judgment in said cause,
in favor of said plaintiff against said defendants, have levied said execu-
TRIAL OP THK RIGHT OP PKOPERTY, ETC. 208
(ion upon the goods and chattel* of the >ni>l .Tohn Smith, a schedule of
which said goods and chattels is furnished herewith; and said goods and
chattel* are claimed by .
You will, therefore, make an entry hereof and of said schedule upon
your docket.-and proceed in the premises according to the statute in such
case made and provided. [Schedule.]
[Here give tilt of the property levied on]
[Date] , Sheriff of County
PROCEEDINGS OF JUSTICE OP THE PEACK DOCKET ENTBY.
[Form 163. 5444]
. 18 [month'] [day].
This day the following notice, in writing, and schedule of goods and
chattels was given to me by , sheriff [or other officer] of county :
[Here copy notice and schedule in full]
Same day, issued a summons, directed to , sheriff of said
county, commanding him to summon [here name five men], disinterested
men, each having the qualifications of an elector, to be and appear before
me, on the day of , A. D. 18 , at o'clock M. [not more than
three days after the date of the writ], to try and determine the right of the
claimant, said , to the said property in controversy, in said schedule
mentioned.
And on the day of . A. n. 18 . the following return of said
writ of summons was made : " Summoned the within named [name the five
jurors], with u copy of this writ, personally " [or at usual plate of residence].
, Sheriff of County.
[Date amt timi of trial] This day came the said [the five jurors], the
jurors so summoned as aforesaid, and also said , the claimant of tin-
goods and chattels mentioned in said schedule, and also , the said
plaintiff in execution; said jurors duly sworn by me to try the right of
property of said claimant to the goods and chattels in snid schedule men-
tioned. And said claimant, having first proved service, in writing, upon
the plaintiff in execution, of notice of the time and place of this trial,
two days before this date [or. such party and no agent or attorney of his
were within the county], thereupon produced, and caused to be ttworn
and examined, ns witnesses in his behalf, the following persons [name
claimants witnesses], and rested his CM*; and thereupon the said ,
plaintiff in execution, produced, caused to be sworn and examined, on hi*
behalf, the following persons [here name the execution plaintiff's >ritnesfes],
whereupon both parties rested; and the jury retired for deliberation,
mfter which the following verdict was rendered by the jury : " We, the jurv.
do find that the right to all the properly mentioned in said schedule is in
and belong* to , the claimant.' And that the value ( \
dollars. .Foreman
Wherefore it is considered and adjudged by me that nil and singular
the goods and chattels in the foregoing schedule are ih- p'roperty of "aid
204 CODE PRACTICE AND PRECEDENTS.
, claimant herein, and that he have restitution of the same; and that
he recover of said John Doe, the said plaintiff in execution, his costs in
this behalf expended, taxed at dollars ; John Doe's costs taxed at
dollars.
Note. If part only of the property be found by the jury to belong to the
claimant, the jury will specify the same in their verdict, and the value thereof,
and judgment will be rendered in favor of the claimant for the same, with res-
titution, and costs. If the jury find that the right to the goods and chattels,
and every part thereof, is not in the claimant, the judgment will be for the ex-
ecution plaintiff for costs, with an award of execution thereon. If the jury
fail to agree, and are discharged, the costs are to be taxed to abide the event
of the suit, and another jurv summoned as before. 5445.
Subpoenaing witnesses, and docket entries of the same, will be as in other
cases ; also the taxation of costs.
OATH OF JURORS.
[Form 164. 5445.]
You and each of you do solemnly swear [or, affirm] that you will well
and truly try and determine the right of -, claimant in this case, to
the property in controversy mentioned in the schedule shown to you in
this cause, and a true verdict give according to the evidence.
Note. If the finding be for the claimant, and no undertaking be given to in-
demnify the sheriff, as hereinafter shown, the sheriff, or ofiicer, is, as to such
goods, justified in returning the execution "no goods." g 5445.
If the claimant declines to appear and prosecute his claim before the justice,
the proceeding will fail, and the claimant's rights remain unaffected. Jones v.
Carr, 16 O. S. 420.
If he do so try his claim, and the finding is against him, his rights as against
the officer holding the execution are concluded. Patty v. Mansfield, 8 O. 370.
UNDERTAKING OF INDEMNITY TO THE SHERIFF WITHIN THREE DAYS
AFTER FINDING IN FAVOR OF CLAIMANT.
[Form 165. I 5446.]
Whereas, on a certain writ of execution issued from the Court of Com-
mon Pleas of County, Ohio, in the case of John Doe against John
Smith, John Jones, and Hugh Evans, upon a judgment rendered by said
court in favor of said John Doe against them for the sum of dollars,
and dollars costs, with interest from the day of , A. D. 18 ,
directed to the sheriff of said county, said sheriff, on the day of
, A. D. 18 , did levy upon the goods and chattels, as the property of
said John Smith, to satisfy said writ and the costs accruing thereon a
schedule of said chattels being attached hereto and thereupon said
chattels were claimed by as his property, and the said sheriff did
thereupon give due notice, in writing, with a schedule, etc., of such claim
to , a justice of the peace of said county, before which justice, in
TRIAL OF Till Kl',111 OF PllOPKllTY. KTC. 205
pursuance of tb> statute in such ca*e made and provided, ou ili>> Tay
of , A. D. 18 , a trial by a jury of fiv.- disinterested men, having tin
qualification of electors of said county, of the right of the said .claim-
ant to said property in controversy, was d-.ly had before said justice of
the peace, which jury, th.-n and there, by their verdict, found the right of
property to said goods and chattels in said claimant, and assessed the value
of tho sume to be dollars, upon which finding and verdict said ju*-
tice of the peace then and there duly rendered a judgment for said claim-
ant; also that he have restitution of said goods and chattels, and recover
of the said John Doe his costs in said proceedings incurred and ex-
pended.
Now, therefore, and within three days after said findings and judgment.
we, , as principal, and and as sureties, do hereby, jointly and
severally, undertake to , said claimant, in the sum of dollars
[double the amount of the appraised value of the property], that we will pny all
damages sustained by reason of the detention or sale of Mid property
upon such eaid levy by execution.
In witness whereof, we have hereunto subscribed our names this
day of , A. D. 18 .
The above undertaking tendered to and accepted by me this
of , A. D. 18 ; and on the same day by me delivered to .said
claimant. , Sheriff of County.
Note. The officer will then proceed to sell such property as if no trial of the
right thereto had taken place, and shall not he linblo to tho claimant therefor,
whose sole remedy will bu upon the undertaking.
206 CODE PRACTICE AND PRECEDENTS.
CHAPTER XIY.
PROCEEDINGS IN AID OF EXECUTION BY EXAMINATION OF
DEBTOR.
Examination of debtor after return of execution. SEC. 5472. When an
execution against the property of a judgment debtor, or of one of several
debtors in the same judgment, issued to the sheriff of the county where
he resides, or if he does not reside in the state, to the sheriff of the county
where the judgment was rendered, or a transcript of a justice's judg-
ment has been filed, is returned unsatisfied, in whole or in part, the
judgment creditor shall be entitled to an order from a probate judge,
or a judge of the Court of Common Pleas, of the county to which the
execution was issued, requiring such debtor to appear and answer con-
cerning his property before such judge, or a referee appointed by such
judge, at a time and place within the county, to be specified in the
order.
Examination of debtor before return of execution. SEC. 5473. After the
issue of an execution against property, and upon proof by the affidavit of
the judgment creditor, or otherwise, to the satisfaction of the Court
of Common Pleas, or a judge thereof, or a probate judge, of the county
in which the debtor is found, that the judgment debtor has property
which he unjustly refuses to apply toward the satisfaction of the judg-
ment, such court or judge may, by order, require the judgment debtor
to appear at a time and place in such county, to answer concerning
the same ; and such proceedings may thereupon be had, for the appli-
cation of the property of the judgment debtor toward the satisfaction
of the judgment, as are prescribed in this subdivision (III., Tit. 1,
Div. 5, Ch. 2).
(a) A judgment creditor, seeking to subject choses in action by a
proceeding in aid of execution under this section, is not required to
make a previous demand upon his debtor to so apply the choses in action,
or show a refusal to apply. If the debtor has such property, it is his
duty to take such steps as will make it available for the judgment, and
a failure to discharge such duty toward a creditor who has obtained
judgment and issued execution may be charged as an unjust refusal.
Edgarton \. Hanna, 11 O. S. 323.
When order of arrest may issue, and proceedings thereon. SEC. 547-1.
Instead of the order requiring the attendance of the judgment debtor, a;
PROCEEDINGS IN AID OK EXECUTION. 207
provided in the two preceding sections, the judge may, upon proof, in
writing, to his satisfactiou, by affidavit of the judgment creditor, or
otherwise, that there is danger of the debtor leaving the state, or con-
reaiing himself to avoid the examination herein mentioned, issue a
warrant requiring the sheriff to arrest and bring before him the debtor;
such warrant can be issued only by a judge of the Court of Common
. or the probate judge of a county in which the debtor is found,
and the sheriff can execute it only within that county; in executing
tliv warrant the sheriff shall deliver to the debtor a copy thereof, and
of tlie testimony on which it issued ; the debtor, when brought before
the judge, shall be examined on oath, and other witnesses may be ex-
amined on either side; and if it appear in the examination that there
is danger of the debtor leaving the state, or that he has property which
he unjustly refuses to apply to the judgment, he may be ordered to
enter into an undertaking, with surety, in such sum as the judge may
prescribe, that he will attend before the judge or referee for examina-
tion, from time t > time, as shall be directed ; and in default of entering
into such undertaking, he may be committed to the jail of the county,
by warrant of the judge, as for contempt.
(a) Upon such committal, as for contempt, it would seem the execu-
tion creditor will nut be liable for jail fees.
i:\AMIXATION OF DEBTOR OF JUDGMENT DEBTOR.
Examination of debtor of judgment debtor Effect of such order Abfiee
to defendant, etc. SEC. 5475. After the return of an execution against
the property of a judgment debtor, or of one of several debtors in the
same judgment, and upon proof, in writing, by affidavit, or otherwise,'
to the satisfaction of the judge, that a person or corporation has prop-
erty of such judgment debtor, or is indebted to him, the judge may,
by an order, require such person or corporation, or any officer or member
of the corporation, to appear at a specified time and p. ace, within the
county in which such person or corporation is served with the order,
and answer concerning the same ; the service of the order shall bind
the property in the possession or under the control of such person or
CorjMiration from the time of service; and the person or corporation so
1 with the order shall be liable to the judgment creditor for all
property, money, and credits in his hands belonging to the judgment
<i l)tr, or due to him from such person or corporation, from the time
vice; but if; on the filing of the affidavit of the judgment cred-
itor, hfe agent or attorney, the judge is satisfied of the existence of any
of the grounds upon which an order of attachment may be issued, as
provided in section 552 1. the order may be issued before the ittitt and
208 CODE PRACTICE AND PRECEDENTS.
return of the execution; and the judge may also require notice of such
proceeding to be given to any party in the action, in such manner as
may seem to him proper.
(a) In proceeding in aid of execution, under this section, a debtor
of the execution debtor, against whom an order of the judge is issued,
can not, after the service of the order upon him, discharge himself
from the proceeding by payment to the execution debtor of his indebt-
edness, the service of the order having the effect of a lispendens. Union
Bank of Rochester v. Union Bank of Sandusky, 6 O. S. 255.
(6) Where, in a proceeding before a judge, under this section, an
order is made, after the examination, discharging such person as hav-
ing no property of the debtor in his hands subject to the satisfaction
of the judgment, without some exception taken at the time, and some
step to suspend the effect of the order, and on petition in error to which
the judgment debtor alone is a party, the action of the judge making
such order can not be reviewed. Query, whether such a proceeding is
not merely ex parte and preliminary, and not subject to review on
error. Welch v. Pitts., Ft. W. & C. R. Co.-, 11 O. S. 569.
(c) The word " person" includes a corporation.
Answer compulsory, but not admissible to prove fraud in prosecution of
the party. SEC. 5476. No person shall, on examination pursuant to
this subdivision (III.), be excused from answering any question on the
ground that his examination will tend to convict him of a fraud ; but his
answer shall not be used as evidence against him in a prosecution for
such fraud.
(a) This section does not apply to a civil action based upon discov-
eries made in a proceeding under section 5472. Goode v. Patterson,
40 O. S. 345.
Referee. SEC. 5477. The judge may, in his discretion, order a ref-
erence to a referee agreed Upon, or appointed by him, to report the
evidence or the facts.
Continuance of proceedings. SEC. 5478. The judge or referee, acting
under the provisions of this chapter (2), may continue his proceedings
from time to time, until they are completed.
Attendance of parties and witnesses enforced. SEC. 5479. A party or
witness may be compelled, by an order of the judge, or by subpoena,
to attend before a judge or referee, to testify.
Note. The subpoena, on a precipe therefor filed with the clerk, will issue
from the clerk's office commanding the attendance of the party or witness
named, at the time and place specified therein.
PROCEEDINGS IN AID OP EXECUTION. 209
Referee examination to be certified Oath. SEC. 5480. If before a ref-
eree, the examination must be taken by the referee, and certified to
the judge. All examinations and answers before a judge or referee
lie on oath ; and when a corporation answers, the answer must
be on the oath of an officer thereof.
Note. Oath of referee. The referee must be sworn well and faithfully tc
hear and examine the cause referred to him by the order of reference, and to
make a just and true report thereon, as prescribed by the order, according 10
the best of his understanding. The oath may be administered by any one au-
thorized to take depositions, g 5217.
How disobedience of order punished. SEC. 5481. If a person, party,
or witness disobey an order of the judge or referee, duly served, he
may be punished as for contempt ; and such judge or referee may
enforce order, and punish for contempt, in like manner as justice* of
the peace. See sections 605-607.
(a) Where a debtor of the judgment debtor placed money in the
hands of another, to defraud the creditors of the judgment debtor,
but the receiver of the money claimed it as a gift to himself, in a pro-
ceeding by the execution creditor, in aid of execution, under section
'>47~>, against the receiver, and in opposition to his claim of gift, the
court found such receipt to have been fraudulent, ordered its payment
over upon the execution claim, and ordered the party imprisoned for
his refusal to comply with such order, it was held that the order of im-
pris >nment was void, and the person entitled to be discharged on ha-
beas corpus, as the party having the money claimed to own it. His claim
could not be tried in such proceeding. White v. Gatft, 42 O. S. 109.
Debtor may pay execution against his creditor. SEC. 5482. After the
issue of execution against property, a person indebted to the judgment
debtor may pay to the sheriff the amount of his debt, or so much
thereof as may be necessary to satisfy the execution ; and the sheriff's
receipt shall be a sufficient discharge for the amount so paid, or directed
to be credited by the judgment creditor on the execution.
(a) The same rule, in connection with section 6705, making the
civil code, in certain cases, applicable to the justice's code, applies to
an execution held by a constable and issued by a justice of the peace.
Halianan v. Owe, 15 O. S. 176.
may order property to be applied on execution Penonal earning*
of debtor exempt, when and how AjtfuLivit. etc., in such case. SBC. 5483.
The judge may order any property of the judgment debtor, or money
14
210 CODE PRACTICE AND PRECEDENTS.
due to him, not exempt by law, in the hands either of himself or
other person, or of a corporation, to be applied toward the satisfaction
of the judgment ; but the earnings of the debtor for his personal serv-
ices, at any time within three months next preceding the order, can not
be so applied, when it is made to appear by the affidavit of the debtor,
or otherwise, that such earnings are necessary for the use of a family
supported wholly or partly by his labor.
(a) A judge can not, under this section, enforce the payment of a
debt, in tJie absence of fraud, by imprisonment for contempt, but may
direct the application of the proceeds of the debt, when collected by
a receiver or otherwise. Union Bank of Rochester v. Union Bank of
Sandusky, 6 O. S. 255 ; Const., art. I, sec. 15.
(6) The mode of applying property under this section is the same
as under section 5475. The court or judge acting under this section is
not authorized to settle disputes between the debtor and third persons,
or to enforce the collection of claims by order of payment and attach-
ment; where claims are to be collected, the appointment of a receiver
is the proper course. Edgarton v. Sanna, 11 O. 8. 323.
(c) The earnings of a debtor for three months next preceding the
levy of the attachment, or the issuing of an order for the examination
of the debtor, are exempt, where necessary for the support of his fam-
ily. Snook v. Snetzer, 25 O. S. 516.
A non-resident of the state entitled to the benefit of this provision.
Sproul v. McCoy, 26 O. S. 577.
Judge tnay appoint receiver, and prohibit transfer, etc., of property. SEC.
5484. The judge may, by order, appoint the sheriff of the proper
county, or other suitable person, a receiver of the property of the judg-
ment debtor; and he may also, by order, forbid a transfer, or other
disposition of, or any interference with, the property of the judgment
debtor not exempt by law.
Liability of sheriff on official bond Undertaking by receiver. SEC.
5485. If the sheriff be appointed receiver, he and his sureties shall
be liable on his official bond as such receiver; and if another person
be appointed, he shall take an oath and give an undertaking as in other
cases.
Proceedings when another has an ascertainable interest in the property,
and sale of debtor's interest. SEC. 5486. If it appear that the judgment
debtor has an interest in real estate, in the county in which the pro
ceedings are had, as mortgagor, mortgagee, or otherwise, and his in
terest can be ascertained as between himself and the person holding the
legal estate, or the person having a lien on or interest in the same, with
PROCEEDINGS IN T AID OF EXECUTION. 211
out controversy as to the interest of such person holding such legal es-
tate, or interest therein, or lien on the same, the receiver may be or-
dered to sell and convey such real estate, or the interest of the debtor
tin -ivin. Such sale shall be conducted in all respects in the same man-
ner as is provided for the sale of real estate upon execution ; and the
proceedings of wile shall, before the execution of the deed, be ap-
jirovt-.l by the court in which the judgment was rendered, or the trun-
:>t filed.
Order*, etc., to be signed by the judge, filed witfi the clerk, awl minute
made on execution docket. SEC. 5487. The order mentioned in sections
."> ITi'. .~>473, and 5475, shall be in writing and signed by the judge who
male* -s the same, and shall be served as a summons; and the judge
shall reduce all his orders to writing, which, together with a minute of
his proceedings, signed by him.self, shall be filed with the clerk of the
court of the county in which the judgment is rendered, or the tran-
script of the justice is filed, and the clerk shall enter on his execution
docket the time of filing the same.
( '"iii}fnMition of probate judge. SEC. 5488. The probate judge shall
be allowed for his services under this subdivision (III.) the sum of three
dollars in each case, and such fees as are allowed by Jaw to clerks of
tlu- Court of Common Pleas for similar services.
Allowance of cods, tax&l a costs in t!ie case. Sec. 5480. The judge
shall allow to clerks, sheriffs, referees, receivers, and witnesses, such
compensation as is allowed for like services in other cases, to be taxed
as costs in the case, and shall enforce by order the collection thereof,
from such party or parties as ought to pay the same.
Note. The compensation of referees and receivers is not fixed by law. It
most be fixed by the judge or court in each case. The coals of clerks, sheriff*,
and witnesses are prescribed by statute.
AFTER RETURN OF EXECUTION ORDER TO EXAMINE DEBTOR.
[Form 186. \ 5472.]
jjohn Doe ) Q^^ fof Examination O f j onn Smith in Aid of Ex-
JohnSmifhet.l, j ecution '
This day, it having been made to appear to me, as a judge of the Court of
Common Picas of County [or, probate judge of county], in which
execution upon the judgment in this case was issued, that an execution
gainst the property of the said judgment debtors [or, judgment debtor,
John Smith,] duly issued to the sheriff of said county, where John
Smith, one of the said debtors, resides [or, where said judgment w;i
dered. said John Smith not residing therein], and has been by said sheriff
duly returned unsatisfied in whole [or, in part]. It is, therefore, ordered by
212 CODE PRACTICE AND PRECEDENTS.
me, as such said judge [or, probate judge], that said debtor, JohnSmith.be
and he is hereby required to appear, on the day of , A. D. 18
at o'clock M., at , in said county of , before me as such
judge [or, before , who is hereby appointed referee for that purpose
and is to certify the said examination to such judge], and then and there
answer under oath fully concerning his property of every kind and nature
whatsoever, and not depart until he shall have fully answered concerning
the same.
\_Dale.~\ , Judge of the Court of Common Pleas of County.
Note. This order will be entered on the journal of the court by the clerk,
who, on a precipe being filed therefor, will issue a copy of such order to the
sheriff [or other officer], under the seal of the court, commanding such officer
to execute the order and make return thereof to such judge, or referee, on or
before the time fixed for such examination.
SHERIFF'S RETURN OF SUCH ORDER.
[Form 167. 5472.]
Received the within order on the day of , A. D. 18 , at
o'clock M., and on the day of , A. D. 18 , at o'clock
M., served the within named John Smith personally [or, at his usual
place of residence] with a copy of the same..
[Date.] , Sheriff of County.
REFEREE'S RECORD.
[Form 168. 5217.]
Court of Common Pleas of County.
John Doe | Proceedings before , Referee, under the Order
ru~~c -fi v i 1 hereto attached
John Smith et als. J
I, , appointed referee in and by theorder'of , judge of the Court
of Common Pleas [or, probate judge] of county, in this cause, to ex-
amine John Smith, the debtor, in execution, do solemnly swear that I will
well and faithfully hear and examine the said cause and matters referred
to me by the order of reference herein, and make a just and true report
therein, as prescribed by said order, according to the best of my under-
standing and ability. , Referee.
Sworn to, etc.
This day of , A. D. 18 , the following return was made to m^
by , sheriff of said county : [ Here copy return of sheriff of the order. ]
And thereupon, on the day of , A. D. 18 , at the time and place
mentioned in said order, came said John Smith, who being first duly
sworn by me to answer fully and truly concerning his property of every
kind and nature whatsoever. Present: Edward Coke, attorney for plaint-
iff, and Joseph Chitty, attorney for said John Smith.
PROCEEDINGS IV AID OP EXECUTION. 213
EXAMINATION.
1. Question by plaintiff's attorney : .
Answer: .
[Continue questions and answers until the examination it elated, numbering each
question in itt order. I/ the party is questioned by his attorney, number such ques-
tions in the same manner. When the examination is concluded, the party examined
will t'lin it, and the referee certify the same, with his minutes, to the judge issuing
the order, with an itemized statement of th-- costs.'}
[The referee should state his charge for his services, which will be sub-
ject to the approval of the judge issuing the order, and sign his report:]
, Referee.
REFEREE'S CERTIFICATE.
[Form 169. g 5480.]
I hereby certify that the foregoing proceedings and the examination of
said debtor in execution, John Smith, were duly had and taken before
me us therein stated. , Referee.
When property is disclosed by the debtor applicable to the payment
of the judgment, without qualification, such as will preclude the judge
from making such order, the judge will make an order that such prop-
erty, or money due to the debtor, not exempt by law, in the hands of
either himself or another, be applied toward the satisfaction of the
judgment.
ORDER.
[Form 170. 5483.J
Court of Common Fleas of County.
I To Apply Property, etc., toward Satisfaction of Judg-
, , raent, etc.
John Smith et als. j
Upon the report of , referee herein, and the disclosures contained
in his examination before such referee, it is hereby ordered by me as
judge of tho Court of Common Pleas [or, Probate < 'ourt] of county.
that the following property to wit: [Here specify it ] ; [r, the sum of
dollar*, money due to said debtor, John Smith, from ] be applied to-
ward the satisfaction of the said judgment of said John Doe against said
John Smith and others, rendered at the term of the Court of Com*
mon Pleas of county, A. D. 18 , for dollars debt, and dol-
lam, costs of said plaintiff, with interest from the day of , A. i.
18.
And said John Srnjth >* hereby ordered to deliver said property [r. th>-
-vi<lfnce of said money so owing to him by said ] to the sheriff of
sai<l county of forthwith, the coat* of these proceedings to be taxed
a* p*rt of the costs in the case.
, Judge of the said Court of Common Pleas.
214 CODE PRACTICE AND PRECEDENTS.
Note. If, upon his examination, no ordor c:in be made upon the debtor, the
judge will make, and sign officially, an order dismissing the proceedings in aid
of execution, and tax the costs as part of the costs in the case, or against such par-
ties as he finds ought to pay the same. 5489.
ORDER OF DISMISSAL.
[Form 171. 5489.]
Court of Common Pleas of County.
John Doe }
No. . vs. > Order Dismissing Proceedings in Aid of Execution.
John Smith et als. J
Upon the report of , referee appointed under the order for the ex-
amination of John Smith, judgment debtor, concerning his property, etc.,
heretofore issued by me as judge of said court, and the examination of
said John Smith before said referee, it is ordered that said proceedings be
and the same are hereby dismissed ; and the costs of said proceedings,
etc., are to be taxed as part of the costs in the case [or against ], and
execution awarded therefor.
, Judge of the Court of Common Pleas of County.
EXAMINATION OF DEBTOR AFTER THE ISSUE, BUT BEFORE THE
RETURN OF EXECUTION AFFIDAVIT.
[Form 172. 5473.]
Court of Common Pleas of County.
John Doe "|
No. .] vs. [ Affidavit to Obtain Order to Examine John Smith.
John Smith et als. J
The State of Ohio, County, ss.
John Doe, the above named plaintiff, makes solemn oath that, upon his
judgment in this case in this court, he has caused an execution to be duly
issued to the sheriff [or other officer] of said county of , against the
said judgment defendants* which writ of execution has not yet been re-
turned; that said defendant in execution, John Smith, is to be found
within this county; and that said John Smith has property, consisting
of [here give designation of the same as nearly as can be ofone], which he un-
justly refuses to apply toward the satisfaction of the said judgment of
the plaintiff a certified copy of which said execution is hereto attached
and made part hereof; and further saith not. JOHN DOE.
Sworn to, etc.
PROCELU1N..S IN AID OF EXECUTION. lilO
ORDER OF COURT OR JUDGE.
[Form 173. 5473.]
Court of Common Pleas of County.
John Doe |
.] M. V Order for Examination of John Smith.
.loli n Smith et als )
Upon proof being made herein by said John Doe to the satisfaction of said
court [or, Judge of said court ; or, . probate judge of said coun-
ty], that an execution has been issued upon th^judgmeu therein against said
defendants to the sheriff of said county, in conformity to law, and
not yet returned, and that said judgment debtor, John Smith, has prop-
erty which he unjustly refuses to apply toward the satisfaction of said
judgment; wherefore, it. is ordered by [the court; or, by me, as such judge
as aforesaid] that said John Smith be and he is hereby required to ap-
pear before the undersigned, a judge of said court [or, , who is hereby
appointed referee for such purpose, and required to certify to me, as such
judge, his examination and proceedings in the premises], on the day
of , A. D. 18 , at o'clock *., at , in said county, to answer
concerning the same.
[Date.] , Judge of the Court of Common Pleas of County.
Note. The same proceedings may be bad under this order as under Form
m
EXAMINATION OF DEBTOR OF JUDGMENT DEBTOR.
[Form 174. 5475.]
Court of Common Pleas of County.
John Doe 1 Affidavit for Order to Examine , a Debtor, etc.,
.Iohn"s ] m7thetal..i of John Smith.
The State of Ohio, County, ss.
John Doe. the above named plaintiff, mrxkes solemn oath that an execution
has been duly issued upon the judgment in this case and returned unsatis-
fied in whole [or, in part] a certified copy of which execution and of tln>
return of the name is hereto attached and made part hereof; and tint
, a person [or, , a corporation located in] residing in said county
of . has property of said judgment debtor, John Smith [or, is indebted
to said judgment debtor, John Smith]; and further saith not.
Sworn to. <-tc. Joax DOB.
At to when ord-r mxv i--i ! ivnrn execution, see hut part
af section and AFFIDAVIT FOR AriACUMCXT, Form 8.
216 CODE PRACTICE AND PRECEDENTS.
ORDER REQUIRING SUCH DEBTOR OF JUDGMENT DEBTOR TO AN-
SWER, ETC.
[Form 175. 5475.]
Court of Common Pleas of County.
jJohn Doe ) Order Requ j ring f an Alleged Debtor of said
T i. a ^i'u i I John Smith, to Answer, etc.
John Smith et als. j
In this case, it having been proved to my satisfaction as a judge of said
Court of Common Pleas of said county [or, , probate judge of
said county], that , a person resident in said county [or,
, a corporation located in said county], has property of [or, is
indebted to] one of said judgment debtors, John Smith; and an execu-
tion herein upon said judgment having been duly issued and returned
wholly unsatisfied [or, unsatisfied in part] ; it is hereby ordered by me, as
such judge, that, on the day of , A. D. 18 , at o'clock M., at
, in said county, said [or, said corporation by the officer or member
thereof served with a copy of this order] appear before me as such judge
[or, the probate judge of said county ; or, an appointed and named ref-
eree], and answer concerning the same.
[Date.~] , Judge of Court.
The order may also require notice to be given to any party to the
action.
Note. Form 168 will indicate sufficiently the method of examination, etc.
ORDER UPON SUCH DEBTOR OF JUDGMENT DEBTOR.
[Form 176. 5475, 5483.]
Court of Common Pleas of County.
John Doe ) Order Requjring to PaV( etc ( pi amt iff Money
, f Owed to John Smith, etc.
John smith et als. J
Upon the examination of [or, of , an officer (or, member) of
, a corporation], in pursuance of an order issued herein, it is found
by me, as judge of said court [or, as probate judge of said county of ],
that he [or, it] has property of said John Smith, consisting of [here describe
it]; [or, is indebted to said John Smith in the sum of dollars, evi-
denced as follows : the nature, etc., of the indebtedness^.
Wherefore, it is ordered that said' deliver said property, and that
the same be applied toward satisfying the sai-d judgment of said John
Doe against the said John Smith [or, that said pay said sum of
money, amounting to dollars, to the said John Doe instead of said
John Smith, toward satisfying said judgment]; and the costs of this pro-
ceeding are to be taxed as part of the costs in the case.
[Date.'] , Judge of the Court of Common Pleas of County.
PROCEEDINGS IN AID OF EXECUTION. 217
.Vote. Form 171 will suggest the proper entry when the proceeding* are dis-
missed after the examination.
EXEMPTION OF PERSONAL EARNINGS OP THE DEBTOR.
[Form 177. g 5483.]
Court of Common Pleas of County.
Xo l h v D0e I Affidavit of John Smith for Exemption of Personal
John Smith et als. j E nings, etc.
The State of Ohio, County, ss.
John Smith, the above named defendant, makes solemn oath that the
aid sum of money, amounting to dollars, owing to him by , and
nought to be appropriated to the plaintiff's judgment herein, is the earn-
ings of this affiant for his personal services, within three months next
preceding the date of this affidavit, and that nil of the same is necessary
for the use of a family, to wit, himself and his wife and their minor
children, who are supported wholly [or, partly] by the labor of this
affiant JOBS SMITH.
[Date.]
Sworn to, etc.
ORDER EXEMPTING SUCH PERSONAX, EARNINGS.
[Form 178. 5483.]
Court of Common Pleas of County.
John Doe j
No. .] vt. > Exempting John Smith's Personal Earnings, etc,
John Smith et als. j
In these proceedings in aid of execution, it being made to appear to
me, as a judge of Mid court before whom the same are pending that the
amount of dollars, owing by to said John Smith, are his earn-
ings for his personal services, within threo months next preceding the
date of this order, and that such said earnings are necessary for the use
of a family supported wholly [or, partly] by his labor, it is ordered by me
as such judge ns aforesaid, that all said above mentioned earnings be and
they hereby are exempted from being applied toward the satisfaction of
the plaintiff's said judgment; and that said John Smith hold the same,
exempt from said demands of the said plaintiff [auto, tte.~]
[DaU.] , Judge of, etc.
218 CODE PRACTICE AND PRECEDENTS.
ORDER DENYING SUCH EXEMPTION.
[Form 179. 5483.]
Court of Common Pleas of -- County.
jTohn Doe ) Order Refusing to Exempt Claimed Personal Earn'
T u Lr ^'u i f ings of John Smith, etc.
John Smith et als. j
Upon the application and demand made herein by the said defendant,
John Smith, to have exempted from being applied toward the satisfaction
of the said plaintiff's judgment herein, of the sum of - dollars owing
to said John Smith by - , on the ground that the same is the earnings
of the said John Smith for his personal services, within three months
next preceding the date of this order, and that such earnings are neces-
sary for the use of a family supported wholly or partly by his labor, after
hearing and considering all the evidence adduced in support of said ap"
plication and demand, the same is hereby denied; and thereupon it is
further ordered that said - pay said money, and that the same be ap-
plied toward satisfying the said judgment of said plaintiff against the
said John Smith. [Order as to costs.~\
[To all of which the said John Smith excepts; and thereupon pre-
sented his bill of exceptions in that behalf, stating and containing all the
evidence adduced to said judge upon the trial and hearing of such appli-
cation and demand, and asked that the same be allowed and signed by
said judge according to law, which is accordingly done, and said bill of
exceptions is filed as part of the record herein, but is not to be entered
upon the journal.]
- , Judge of the Court of, etc.
Note. The order of a judge granting or denying such demand can not be re-
^ersed upon proceedings in error without a bill of exceptions is taken, embody-
ing all the evidence. See BILL OF EXCEPTIONS.
ARREST OF DEFENDANT INSTEAD OF REQUIRING HIS ATTENDANCE AS
PROVIDED IN SECTIONS 5472, 5473.
[Form 180. 5474.]
Court of Common Pleas of - County.
John Doe )
No. .] vs. y Affidavit for Order of Arrest of John Smith, etc.
John Smith et als. j
The State of Ohio, -- County, ss.
John Doe, the above named plaintiff, makes solemn oath that an exe-
cution has bf>en duly issued upon a judgment in this case rendered
in his favor against said John Smith, John Jones, and Hugh Evans,
at the - tprm of the Court of Common Pleas of - County,
Ohio, A. D. 1 8 , for th^ sum of -- dollars, the principal debt, and
dollars, hi-* costs, drawing interest from the -- day of - , A. D.
18 , whicn judgment is unsatisfied a copy of said execution, with
PROCEEDINGS IN AID OP EXECUTION. 219
the indorsement* [and return] thereon, is hereto attached and made part
hereof; that he is entitled to have John Smith examined and answer, con-
cerning his property, in aid of execution, according to the statute in such
case made and provided; but that there is danger of the said debtor,
John Smith, leaving this state, and concealing himself to avoid such ex-
amination ; that [said John Smith has removed all his household goods
and effect* to some place beyond this state, and has caused his wife and
family to remove to some place unknown to affiant, and is misleading all
inquirers as to his whereabouts, and making false statements as to where he
will be, from day to day, and has threatened to keep out of the way so
that he can not be found and compelled to submit himself to such ex-
amination in this case, and has done all said acts for the purpose of avoid-
ing auch examination].
Wherefore affiant asks for the arrest of said John Smith, as provided by
law in such cases. JOHH DOB.
Sworn to before me by said John Doe, and by him signed in my pres-
ence, this day of, etc.
AV>fe. All evidence adduced to the judge, upon which a warrant for such ar-
rest is granted and Usued, must be in writing, as a copy of all of it must be
erv-J upon the debtor with the warrant of arrest.
ORDER OF JUDGE GRANTING SUCH WARRANT.
[Form 181. g 5474.]
Court of Common Pleas of County.
John Doe )
No. .] v. \ Order Granting Warrant of Arrest of John Smith.
John Smita et als. )
% A warrant for the arrest of John Smith, if found within the county of
, Ohio, to be brought before me, as a judge of said court, to answer
concerning his property, upon the written evidence, a copy of which is,
with said warrant, to be served upon amid John Smith, is hereby granted,
to be returnable before me, as such judge, at , in said county of
forthwith.
[Date ] . Judge of the Court of Common Pleas of County.
WARRANT OP ARREST.
[Form 182. { - r ,474.]
The State of Ohio, County, ss.
To the Sheriff of County, Greeting :
You are hereby commanded to arrest, forthwith, if found in said county,
John Smith, and bring and have him before me, a judge of the Court of
Common Pleas [or, Probate Court] of said county, at , in said
county, to answer concerning his property before me as such judge, with ref-
erence to the application thereof toward the satisfaction of a certain judg-
ment in favor of John Doe against him [and others] lately rendered by
our said Court of Common Pleas of said county ; and have you then
220 CODE PRACTICE AND PRECEDENTS.
there this writ, and make due return of the same to me as such judge, to-
gether with your proceedings under the same.
[Date.'] , Judge of the Court of Common Pleas of County.
Note.- If the officer find the debtor within the county (and he can not make
the arrest out of such county) he must, at the time of such arrest, serve the
party with a copy of such warrant, and also a copy of all the testimony on
which it issued, and forthwith bring him before such iudge.
SHERIFF'S RETURN OF WARRANT WHEN HE HAS ARRESTED THE
DEBTOR.
[Form 183. 5474.]
Received the within warrant on the day of , A. D. 18 , at
o'clock M., and executed the same by arresting the within named
John Smith on the day of , A. D. 18 , at o'clock M.,
within said county; and, at the same time, I delivered to him a copy
of the warrant with a copy of all the testimony on which the same issued;
and I now have here present the body of the said John Smith.
[Items of costs.'} , Sheriff of County.
EXAMINATION OF DEBTOR (AND OTHER WITNESES) UNDER OATH
WHEN BROUGHT BEFORE THE JUDGE UPON SUCH WARRANT
EXAMINATION.
[Form 184. 5474.]
John Smith, being first duly sworn by me, testifies as follows:
1. Question by Edward Coke, attorney for John Doe.
Answer.
2. Question by same.
Answer, etc.
Note. When the examination is concluded, the debtor will subscribe it, and
so as to every witness who may b& examined by either party. The judge will
also certify to the same being all the evidence adduced upon such examination,
and sign such certificate.
ORDER REQUIRING DEBTOR TO ENTER INTO AN UNDERTAKING.
[Form 185. 5474.]
Common Pleas Court of County.
John Doe ) Qrder Requiring John Smith to Give Undertaking,
Tu~~'d Si. i etc. Amount, $ .
John Smith et als. )
It appearing in the examination had herein, upon the arrest of said
John Smith, that there is danger of his leaving the state to avoid answer-
ing concerning his property [or, that said John Smith has property which
he unjustly refuses to apply to the judgment of said John Doe against
him], it is Hereby ordered that said John Smith be and he is hereby re-
quired to enter into an undertaking to said John Doe, with surety to be
PROCEEDINGS IN AID OF EXECUTION. 221
approved by me, in the sum of dollars, conditioned that he will at*
teiui before me as such judge, or a referee who may he appointed for such
purpose, for examination, from time to time, as may be directed; and in
default of entering into such undertaking.it is further ordered by me
that said John Smith bo committed to, and kept in confinement in, the
jail of said county by my warrant as such judge, as for contempt
\_Date.~\ , Judge of the Court of Common Pleas of County.
UNDERTAKING OF ARRESTED DEBTOR.
[Form 186. 5474.]
Whereas, in certain proceedings in aid of execution, in the matter
of the judgment of John Doe against John Smith, John Jones, and Hugh
Evans, pending and had before , a judge of the Court of Common
Pleas of County, Ohio, in pursuance of the provisions of section 5474
of the Revised Statutes of Ohio, the said judge has ordered said John
Smith to enter into an undertaking, with surety, in the sum of dol-
lars, conditioned according to law.
Now we, John Smith, as principal, and , as surety, jointly and sev
erally, undertake to said John Doe, in the said sum of dollars, that
said John Smith will attend before said , asjudgeof said court, or be-
fore any referee who may be appointed for such purpose, for examination
concerning his property, from time to time, as he may e directed.
[ZXite.] .Ions SMITH, Principal.
, Surety.
The within undertaking accepted and approved by me, this day of
, A. D. 18 . , Judge of the Court of Common Pleas, etc.
WARRANT OP COMMITMENT OF DEBTOR FOR FAILURE TO ENTER
INTO UNDERTAKING.
[Form 187. 25474.]
The State of Ohio, County, ss.
To the Sheriff of County, Ohio, Greeting:
Whereas, in certain proceedings in aid of execution pending before me
as a judge of the Court ot Common Pleas of said county, under and
in pursuance of section 5474 of the Revised Statutes of Ohio, John Smith
was by me duly required to enter into an undertaking, with surety, to
John Doe, in the sum of dollars, conditioned that said John Smith
would attend before me as such judge of said court, or before a r
who might be appointed for such purpose, for examination concerning hi*
property, from time to time, as he should h* directed, and said John
Smith is in default of entering into such undertaking.
You are, therefore, hereby commanded to commit said John Smith to
the jail of said county, and therein keep him imprisoned, as for con-
tempt, until he shall be discharged by due course and proce** of law.
[ Date.] , Judge of the Court of < 'onimon Pleas of County.
CODE PRACTICE AND PRECEDENTS.
CHAPTER XV.
PROCEEDINGS AGAINST PARTY OR WITNESS DISOBEYING OR-
DER OF JUDGE OR REFEREE. | 5481.
Punishable contempts. SEC. 605. A justice may punish, as fora con-
tempt, persons guilty of the following acts, and no others : 1. Dis-
orderly, contemptuous, or insolent behavior toward the justice, tending
to interrupt the due course of trial, or other judicial proceeding be-
fore him. 2. A breach of the peace, boisterous conduct, or violent dis-
turbance, tending to interrupt the due course of a trial, or other judi-
cial proceeding. 3. Willful resistance in the presence of the justice,
to the execution of a lawful order, or process, made or issued by him.
Arrest, trial, and sentence. SEC. 606. A -warrant of arrest may be is-
sued by such justice, on which the person so guilty may be arrested
and brought before the justice, when an opportunity to be heard in his
defense, or excuse, must be given. The justice may thereupon dis-
charge him, or may convict him for the offense, and adjudge a pun-
ishment by fine or imprisonment, or both ; such fine not to exceed
twenty dollars, and such imprisonment ten days.
Docket entry (warrant of commitment), what to contain. SEC. 607. The
conviction, specifying particularly the offense and the judgment thereon,
must be entered in his docket; a warrant of commitment to the jail
of the county, until the fine is paid, or for the term of imprisonment,
may -then be issued; such warrant must contain a transcript of the
entry in the docket, and the same must be executed by any constable
to whom it is given, and by the jailer of the county.
[Form 188. 5481 ; 605, 606, 607.]
Court of Common Pleas of County.
John Doe )
No. .] vs. V Charge against John Smith for Contempt.
John Smith et als. ]
In this cause, a proceeding in aid of execution under and in accordance
with the provisions of section 5472 [or 5473, or 5475] of the Revised
Statutes of Ohio, in such case made and provided, the said John Smith
did, on the day of , A. n. 18 , when duly ordered so to do by me,
as judge of said Court of Common Pleas of said county [or, as pro-
bate judge of said county; or, , referee, duly appointed and sworn
DISOBEYING ORDER OP JUD(JE OR REFEREE. 223
herein], willfully refuse, and still BO refines toanower under oath concern-
ing his property [/r othrr alleged act or acts of contempt]. It is, therefore, or-
dered by me that a warrant for the arrest of said John Smith issue herein,
directed to the sheriff of said county, returnable before mo forthwith.
and that said John Smith be required to show cause before me why he
should not be punished for such contempt.
, Judge of the Court of Common Pleas of said County.
[Do*]
WARRANT FOR ARREST.
[Form 189. 5481,606.]
The State of Ohio, County, sa.
To the Sheriff of said County, Greeting:
Whereas, on the day of , A. n. 18 , it was duly charged before
me that John Smith, being duly ordered by me so to do, in a certain
proceeding in aid of execution, in the case of John Doe against John
Smith and others, before me duly pending as a judge of the Court of Com-
mon Pleas of said county [or, probate judge, etc.- or, referee, etc."], then
mid there willfully refused, and still so refuses, to answer before me un-
der oath concerning his property; wherefore it was duly ordered by me
as such judge [or, referee, etc.] that a warrant issue for the arrest of said
John Smith to answer before me such said charge of contempt, etc.
You are hereby commanded to arrest said John Smith, and have him
before me forthwith, to answer to said charge of contempt
This day of , A. u. 18 .
, Judge of the Court of Common Pleas of County.
RETURN OF THE ARRESTING OFFICER.
[Form 190. g 5481, 605-607.]
Received the within writ on the day of , A. D. 18 , at
o'clock *.; and upon [the same day, at o'clock *.] arrested
aid John Smith, and have his body now present.
[Cottitemt.]
[ Date.} , Sheriff of County.
JUDGMENT.
[Forml9L 5481, 606, 607.]
In the Matter of the Charge of Contempt against John Smith :
In this case, the said John Smith having this day been brought before
me, and the charge of contempt heroin being read and fully made known
to him, and n full opportunity given htm to be hoard in hi-* defense or
excuse, I find that said John Smith is guilty of the said contempt w
charged, to-wit, willfully refusing to answer under oath concerning his
property, in the proceeding in aid of execution, in the case of John Doe
against John Smith and others, pc iding before me us a judge of the
224 CODE PRACTICE AND PRECEDENTS.
Court of Common Pleas of said county [or, probate judge; or, referee,
etc.'] :
It is therefore ordered and adjudged by me, that said John Smith be
and he is hereby fined the sum of twenty dollars, and that he be im-
prisoned in the jail of this, , county ten days, and until said fine is
paid, and that he pay the costs of these proceedings, taxed at dol-
lars.
Note. A docket entry of the 'proceedings in contempt must be made and
certified by the judge or referee; and if the judgment be imprisonment in the
jail of the county, a transcript of such proceedings must accompany the war-
rant of commitment.
WARRANT OF COMMITMENT TO JAIL.
[Form 192. 607.]
The State of Ohio, County, ss.
To the Jailer of said County, Greeting :
You are hereby commanded to receive, commit, and imprison John
Smith in the jail of said county, as adjudged and ordered in and
by the transcript of the proceedings and judgment, copied herein, to wit:
[Here make transcript of the proceedings and judgment.~\
And this warrant shall be your authority for your acts in so doing.
, Judge of said Court of Common Pleas of County, Ohio.
OFFICER'S RETURN OF COMMITMENT.
[Form 193.]
[State day and hour of receiving warrant of commitment] ; and on the
day of , A. D. 18 , executed the warrant of which the within is a
copy, by delivering the body of said John Smith to , the jailer of said
county, at the jail of said county, with said warrant of commitment.
[Date, etc.'] , Sheriff of said County.
As to receiver in proceedings in aid of execution, see RECEIVERS IN
ATTACHMENT, Forms 56-73.
EXECUTION AiJAlXST THE 1'KKaOX, ETC.
CHAPTER XVI.
EXECUTION AGAINST THE PERSON OR ARREST AFTER JUDG-
MENT.
Requisite* of execution against the person. SEC, 5447. An execution
against the person of the judgment debtor shall require the officer to
arrest such debtor, and commit him to the jail of the county until he
pays the judgment, or is discharged according to law.
(a) The imprisonment of a judgment debtor upon execution operates
as a satisfaction of the judgment so long as the imprisonment con-
tinues, and so if he is discharged from such imprisonment with the
assent of the execution creditor ; but if he escapes or is discharged
without the assent of the creditor, it is not satisfaction of the judg-
ment. Bwcrett v. Zigler, 19 O. 362. Such execution against the per-
son is the capias ad eatitfaciendum of the common law.
Arrest of the defendant before judgment is analogous to the com-
mon law writ of capias ad respondendum, though more comprehensive.
White v. Gates, 42 O. S. 111. And the discharge from imprisonment
of the debtor, with the assent of the plaintiff, will not be a satisfaction
of the debt for which the defendant was arrested in cases of arrest be-
fore judgment.
(6) A sheriff can not be amerced for not executing a writ under
this section from another county, unless the indorsement " funds de-
posited " is made upon the writ ; nor can a tender of his fees be sub-
stituted in the place of such indorsement. Duncan v. Drakeley, 10
O. 45.
This was because the clerk of the county whence such writ issued
was required by statute to indorse upon it : " Funds are deposited to pay
the sheriff on this writ," and subscribe his name thereto. (29 v. 226.)
For what cawte* execution against the person may issue. SBC. 5448. An
execution against the person of the debtor may be issued upon any
judgment for the payment of money : 1. When the judgment debtor
has removed, or begun to remove, any of his property out of the j uris-
diction of the court,- with intent to prevent the collection of the money
due OD the judgment 2. When he has property, rights in action,
evidences of debt, or interest or stock in a corporation or company,
which he fraudulently conceals with the like intent. 3. When he has as-
15
226 CODE PRACTICE AND PRECEDENTS,
signed or disposed of all or part of his property, or rights in action, or'
lias converted the same into money, with iutentto defraud his creditors, or
with the intent to prevent such property from being taken in execution.
4. When he fraudulently contracted the debt or incurred the obliga-
tion upon which the judgment was rendered. 5. When the judgment
was rendered for money, or other valuable thing, lost by playing at any
game, or by means of any bet or wager. 6. When he was arrested on
an order before judgment, and has not been discharged as an insolvent
debtor, or the order has not been set aside as improperly made.
(a) Part 5 of the above section assumes that money won and received
in gambling, or upon a bet or wager, is conclusively fraudulent under art.
1, sec. 15 of the Constitution. Query? Illegality and fraud are not
synonymous.
By ivhom and how such order of arrest allowed. SEC. 5449. An ex-
ecution against the person of the debtor, except as prescribed in sec-
tion 5451. can be issued only when allowed by the Supreme Court,
the Circuit Court, the Court of Common Pleas, or the Probate Court,
or any judge of either, upon being satisfied, by the affidavit of the
judgment creditor, or his attorney, and such other evidence as may be
presented, of the existence of one or more of the particulars mentioned
in the preceding section.
(a) " That the debtor is about to dispose of his property with intent
to defraud his creditors," sufficient under 46 v. 75. Hockspringer v.
BaUenburg, 16 O. 304.
May be issued by justice of the peace. SEC. 5450. A justice of the
peace may issue an executio'n against the person of a judgment debtor,
upon being satisfied of the existence of one or more of the same par-
ticulars, by like affidavit and evidence.
When order of arrest issued of course. SEC. 5451. When the judgment
debtor was arrested before judgment, and has not been released from
imprisonment by an application for relief as an insolvent debtor, and
the order for such arrest has not been adjudged improper, an execu-
tion against the person of such judgment debtor may issue of course.
Discliarge by delivery of property. SEC. 5452. A person taken in execu-
tion as aforesaid shall be discharged by delivering or setting offto the offi-
cer who serves the writ, if issued from a court of record, real or personal
property, or if issued by a justice of the peace, personal property ouly,
sufficient to satisfy the judgment and costs for which the writ issued.
(a) Under a former statute (act of February 11, 1815, section 36), a
defendant arrested upon execution for a fine may surrender land in
1IXECUTIOX AGAINST Till: IMIUSoX, i;fC. - -~
arge of hi* h.idy, anil the land could be sold without valuation.
lant turns out mil estate to release his body,
th 1: ii "f the judgment on other land* of the defendant is not thereby
discharged. Douglas v. irotfor?, 11 O. 42.
^ priwn bouiufe, but execution mm/ i*#ue, againtt property. SEC.
A j**rson imprisoned under the provisions of this subdivision (V.)
shall be entitled to prison bound*, as prescribed by law ; but in case
the [HI -"ii is out of jail in prison bounds, ttie judgment creditor, upon
wi)"se judgment he was imprisoned, shall be entitled to execution
airainst the lands and tenements, goods and chattels, of the debtor,
and all other remedies prescribed by law for the collection of debts.
'm bounds co-extensive with county, 5402 ; bond for, 5463.)
'/i of imprisoned debtor docs not discharge judgment. SEC. 5454.
The death of a person under arrest in an action shall not satisfy the
judgment; but an execution may issue on the judgment as if no arrest
had been made.
If arrested before judgment, debtor mutt be charged in execution icitlun
ten days. SEC. 5455. If a person who is imprisoned under an order of
urn -t made before judgment be not charged in execution within ten
day- after judgment, he shall be discharged from such imprisonment.
H7//vi and by whom debtor may be released from imprisonment, on account
of inability, etc. SEC. 5456. A person imprisoned under this subdivision
(V.), or upon an order of arrest before judgment, in civil cases, who is un-
able to perform the act, or endure the imprisonment, may be discharged
therefrom upon such terms as are just, by the court out of which the
process issued, or a judge thereof, or by the court in which the judg-
ment was or might have been rendered, or a judge thereof.
Li'tbility of sheriff a* bail, how fixed ami enforced. SEC. 5509. The re-
turn of" not found " upon an execution against the body of the defend-
ant shall be necemnry to fix the liability of the sheriff as bail, which
liability shall be the amount of the judgment, interest and costs, and
this liability can be enforced only in a separate action against him, or
a_-:ii n.-t him and his sureties on his official bond, as in other cases of de-
linquency.
(a) This section has application to cases of imprisonment before
judgment where the debtor has not been released or discharged from
imprisonment, and is charged in execution against his person after
judgment.
(6) If the sheriff fails to make such return, he may be amerced. See
AMERCEMENT.
228 CODE PRACTICE AND PRECEDENTS.
WHEN JUDGMENT DEBTOR WAS ARRESTED BEFORE JUDGMENT. AF-
FIDAVIT.
[Form 194. 5451, 5448.]
Court of Common Pleas of County.
John Doe, Plaintiff, ) A ~, . . ,, T , .,
xr i ( Affidavit for Arrest, etc., of John Smith.
JNo. . vs. > f . T !
John Smith et als., Defendants. j after Jud S ment -
John Doe, the above named plaintiff, makes solemn oath that the
above named John Smith was duly arrested and imprisoned in this action
before the rendition of the judgment herein; that, at the term, A. i>.
18 , of said Court of Common Pleas, in said action, he, the said John
Doe, duly recovered a judgment against said John Smith [and others] for
the sum of dollars, and dollars costs, with interest from the
day of , A. D., 18 , which judgment is [wholly] unsatisfied, and in full
force and effect in law; and that said John Smith has not been released
from said imprisonment by an application for relief as an insolvent debtor,
or discharged as an insolvent debtor, and the order for such arrest has not
been adjudged improper or set aside as improperly made; and further
saith not. JOHN DOE.
Sworn to, etc.
Note. Perhaps, in such case, no affidavit for the order of arrest is requisite.
PRECIPE FOR ORDER OF ARREST.
[Form 195. 4 y59 -]
John Doe, Plaintiff, 1 p . f Q d f A f j h
JMo. .] vs. > o '..,
John Smith et als., Defendants, j
To Clerk :
Upon the judgment in this" case, issue an order for the arrest of said
John Smith to satisfy the judgment herein in favor of said John Doe and
Against said John Smith, returnable according to law.
[Date.~] EDWARD COKE, Attorney for Plaintiff.
Note. This must be done within ten days after judgment.
ORDER OF ARREST AFTER JUDGMENT.
[Form 196. 5447, 5496, 5396.]
The State of Ohio, County, ss.
To the Sheriff of said County, Greeting :
You are hereby required and commanded to arrest John Smith, and
commit him to the jail of said county of , until he pays, or is dis-
charged according to law, the judgment obtained against him [and others],
at the term, A. n. 18 , of our said Court of Common Pleas, for the
sum of dollars, and dollars, costs, with interest from the
day of , A. D. 18 , together with the accruing costs ; and if said judg-
EXECUTION' AGAINST THE PERSON, ETC. 229
ment and all costs be paid, you will return, with the money to be paid to
the persons entitled thereto, this writ within three days after such pay-
ment; and if not so paid in full, within fifteen days from the date hereof,
together with your proceedings under and by virtue of the same.
In witness whereof I have hereunto set my hand and affixed the seal
of said court, this - day of - , A. n. 18 . - , Clerk.
[SEAL.]
ndnnU' and accruing costs indoncd.~\
The dtfriff 1 * returu will state the day and hour he received the order
of arrest, ami then what acts he did under it, with the items of costs
made upon the same, and he will sign aud return it to the clerk.
PRISON BOUNDS DEBTOR'S UNDERTAKING.
[Form 197. 5463.]
Whereas, in the case of John Doe against John Smith, John Jones, and
Hugh Evans, in the Court of Common Pleas of - County, Ohio,* at the
- term thereof, A. D. 18 , the said John Doe recovered a judgment
against said John Smith [and - ] for the sum of - dollars, and -
dollars costs, with interest thereon from the - day of - , A. u. 18 ,
upon which judgment, on the - day of - , A. D. 18 , the said John
Doe caused to be issued out of said court an order to the sheriff of said
county requiring him to arrest the said John Smith, and commit him to
the jail of said - county until he should pay suid judgment, or is dis-
charged according to law ; * and by said sheriff, upon such order of arrest,
the said John Smith has been arrested by said sheriff and is now im-
prisoned in said jail, etc.
Xnv, we, John Smith, as principal, and - and - , as his sureties,
do hereby, jointly and severally, undertake and bind ourselves unto the
said John Doe, in the sum of - dollars [double the sum for which fie stands
fommitletf], that the suid John Smith, in consideration of hereby obtaining
thi- privilege of prison bounds, co-extensive with said - county, >hio,
will safely continue in the custody of the jailer of said -- county, with-
in tip- limits of said prison bounds, that is, within said - county, until
legally discharged.
In testimony whereof we have hereunto signed our names, this -
<l iv i if - , A.'D., 18 .
Attest: -Joiiv SMITH. Principal.
Suretiaa.
____ i
Tin above [or, within] bond approved by me this day of ,
A i, IS. , Probate . I udge of County, Ohio.
Lodged with me this day of , A. o. 18 , and, on demand by
him. delivered by me to aaid John Doe, this day of , A. D. 18.
. Sheriff of County.
230 CODE PRACTICE AND PRECEDENTS.
[If the defendant i$ arrested upon an order of arrest issued in the action before
judgment, .insert between the * and *, instead of what is there contained, the fol-
lowing :]
On the day of , A. i\ 18 , the said John Doe caused to be is-
sued an order of arrest against said John Smith, commanding the sheriff
to arrest ?aid John Smith and hold him to bail in the sum of dollars,
which order was in due form of law.
AFFIDAVIT FOR ORDER OF ARREST AFTER JUDGMENT, WHEN THE
DEBTOR HAS NOT BEEN ARRESTED BEFORE JUDGMENT.
[Form 198. 5448 5449.]
Court of Common Pleas of County.
John Doe ]
No. .] vs. ( Affidavit for the Arrest, after Judgment,
John Smith, John Jones, and j of John Smith.
Hugh Evans.
John Doe, the above named plaintiff, makes solemn oath that, at the
term, A. n. 18 , of the Court of Common Pleas of county, Ohio,
in the action of said John Doe, as plaintiff, against the said John Smith,
and John Jones, and Hugh Evans, as defendants, he duly obtained a
judgment, which is still in full force and wholly unsatisfied, for the sum
of dollars, and dollars, costs, with interest from the day of
, A. D. 18 ; and that said John Smith has [here state one or more of the
grounds mentioned in section 5448, absolutely] ; and further saith not.
JOHN DOE.
John Doe, the above named affiant, being duly sworn by me, says the
matters, all and singular, stated in the foregoing affidavit, are true.
Subscribed by him in my presence.
[Date.~\ [the official.]
AFFIDAVITS IN SUPPORT OF APPLICATION FOR ORDER OF ARREST.
[Form 199. 5449.]
Court of Common Pleas of County.
John Doe, Plaintiff, } Affidavit of , in Support of Appli-
No. .] vs. > cation for Order of Arrest, after Judg-
John Smith et uls., Defendants. ) ment, of John Smith.
And now comes , who, being first duly sworn, deposes and says:
[Here slate the facts known to the witness in relation to what acts the debtor has
committed falling within one or more of the Jive grounds contained in section 5448. J
And farther saith not. , [the affiant.]
Sworn to and subscribed by before me, this day of, etc.
EXECUTION AGAINST THE PERSON, ETC. 231
ALLOWANCE OF ORDER OF ARREST.
[Form 200. g 5449.]
Court of Common Pleas of County.
John Doe ) Order Allowing Order of Arrest of John Smith
-i iv^ru?r .\iionmi: \jr\
John S.n'th et K f After Jud 8 ment
In tiii* case, it having been made to appear to my satisfaction by the
if!id;ivit of snid John Doe and other evidence presented to n.e, that said
John .Smith hat [here ttate, as that, removed his property out of the juri-
diction of said court, with intent to prevent the collection of the money
due to said John Doe from said John Smith on the said judgment ren-
dered in said action by said court] ; an execution against the person of
the said debtor, John Smith, upon the judgment herein, is hereby al-
b ad
[Date.] , Judge of the Court of Common Pleas of County.
For form, of the order of arrest, see Form 196. Under such order,
the same proceedings may be had as in cases of the arrest of the debtor
before judgment.
For discharge ot insolvent debtors by the commissioner of insolvents,
see INSOLVENT DEBTORS, 6359-6383 ; 5627 (BASTARDY).
232 CODE PRACTICE AND PRECEDENTS.
CHAPTER XVII.
AMERCEMENT OF SHERIFF AND CLERK.
Causes for which slieriff or other officer may be amerced. SEC. 5594.
If an execution or order of sale directed to an officer come to his
hands to be executed, and he neglect or refuse to execute it ; or, if he
neglect or refuse to sell property of any kind which by any writ or
order he is directed to sell ; or fail to call an inquest, or to return to
the clerk's office a copy of the certificate of appraisement made by the
inquest ; or neglect to return to the proper court an execution or order
of sale to him directed on or before the return day thereof;, or neglect
to return a correct inventory of personal property taken on execution,
unless he return that the amount of the judgment, including costs,
has been paid to him; or neglect, on demand, to" pay to the person
entitled thereto any money by him collected or received for the use
of such person, at any time after he collects or receives the same; or
neglect or refuse, on demand, 'to pay to the judgment debtor all money
by him received on any sale made, beyond what is sufficient to satisfy
the writ or order of sale, with interest and costs, such officer shall, on
motion in court, and notice thereof, in writing, as provided in the next
section, be amerced in the amount of such judgment, including costs,
with ten per cent thereon, to and for the use of such plaintiff or de-
fendant, as the case may be.
(a) A sheriff is liable to be amerced only in cases which come within
the spirit as well as the letter of the statute. Duncan \. Drakeley,
10 O. 45 ; Webb v. Anspach, 3 O. S. 522 ; ConJding v. Parker, 10 O.
S. 28; Langdon v. Summers, 10 0. S. 77; Moore v. McClief, 16 O.
s. 50:
(6) The date of a return indorsed upon the writ is not conclusive
against the sheriff of the time it was returned, and a writ may be re-
turned to the court when in session, without passing through the hands
of the clerk, or being filed in his office. Conkling v. Parker, 10 O.
S. 28.
(c) When the judgment creditor issues his execution, not for the
amount of the judgment and his costs, but for the judgment and the
whole costs of the case, which is a substantial addition to the amount,
he can not amerce the sheriff for not returning it on or before the re-
turn day. 5396. Moore v. McCltf, 16 O. 8. 50.
AMERCEMENT OF SHERIFF AND LKRK. 233
(d) When the return <>f the sheriff* shows upon its face a due exe-
cution of the writ, the plaintiff, on u motion t<> amerce, can not go
behind it, but is left to his remedy by action for a fake return. Bank
niyin, 12 O. 220.
(c) A sheriff having returned upon an execution, " property sold
and money made in full," and, pending a motion to amerce him for
not paying over the money, on leave of the court, amended his return
by stating that the property, by order of the plaintiff in execution,
had been sold upon credit, except a small sum, which he had been en-
joined from paying over. Held, that the facts stated in the amended
return constituted a legal defense to the motion to amerce. Langdon
v. Summer*, 10 O. S. 77; Webb v. Antpach, 3 O. S. 522.
Query: Whether a motion to amerce for not paying money made
upon execution can be sustained unless the writ has been returned.
Webb v. Anspach, 3 O. S. 522 ; Dainon v. Holcomb, 1 O. 275.
Query: Whether a sheriff who receives money paid to discharge a
levy on personal _ property, after the return, or return day of the writ,
can be amerced for a refusal to pay the money thus made. Webb \.
Antpach, 3 O. S. 522.
(jf) The judgment against a sheriff amerced for neglect to execute
final process should include the amount of the original judgment, in-
terest thereon, costs, and ten per cent upon the whole sum thus made
up; and the judgment of amercement draws interest as other judg-
ments until paid. Graham v. Xewton, 12 O. 210.
Xoticf of motion to be. given officer. SEC. 5593. If the officer resides
in the county in which the motion is made, the notice shall be served
upon him at least ttm days before the motion is heard ; but if he is an
officer of another county, the notice shall be served upon him, or left
at his office, at least fifteen days before the first day of the term at
which the motion will be heard, or sent to him by mail at least *!jiii
days before the first day of such term.
(a) On a motion to amerce, it is not necessary that a plea or answer
be filed, or an issue be made up between the parties. Wadsworth v.
7'arwww, G O. 449.
But the facts which warrant the judgment of the court must be set
out In the motion, and ajijx-ar upon the record. Graham \. Arid/j,
12 O. 210.
(6> Any but the* xligh test variance In-tween the notice of the motion
and tin; motion it#*lf will IKJ fatal. HW> v. ^iiny>ar/i, .'J O. S. .VJ'J.
This is because the remedy is summary, the proceeding involving
234 CODE PRACTICE AND PRECEDENTS.
a penalty, when there is an ordinary remedy given by civil action upou
the sheriff's bond.
Amercement for not serving or returning process. SEC. 5596. If an
officer fail to execute any summons, order, execution, or other process,
directed to him, or to return the same, as required by law, unless he
make it appear, to the satisfaction of the court, that he was prevented
by unavoidable accident from so doing, he shall be amerced, upon mo-
tion and notice, as provided in section 5594, in a sum not exceeding
one thousand dollars, and be liable to the action of any person aggrieved
by such failure ; but he shall not be liable to an action or amercement
for a failure to execute any such process directed to him from any
county other than that in which he was elected, unless his fees are de-
posited with the clerk who issued the process, and an indorsement of
that fact is made and subscribed by such clerk on the process, at the
time of its issue, in these words: "Funds are deposited to pay the
sheriff on this process."
(a) A sheriff can not be amerced for not executing a capias ad satis-
faciendum (ca. sa.~) from another county, unless the writ is indorsed:
" Funds are deposited to pay the sheriff on this writ," and such indorse-
ment is subscribed by the clerk. And a tender of his fees can not be
substituted in place of such indorsement. Duncan v. Drakeley, 10
O. 45.
Clerk may be amerced for not paying over money. SEC. 5597. If a clerk
of a court neglect or refuse, on demand, to pay to the person entitled
thereto any money by him received in his official capacity for the use
of such person, he may be amerced, on motion and notice, as provided
in section 5594.
Amount of amercement for not paying over money. SEC. 5598. When
the cause of amercement is the refusal to pay over money collected, the
officer shall not be amerced in a greater sum than the amount with-
held, with ten per cent thereon.
Surety of officer may be made party to the judgment by action. SEC.
5599. A surety of an officer may be made party to the judgment ren-
dered as aforesaid against such officer, by action, but the goods and
chattels, lands and tenements, of such surety, shall not be liable to exe-
cution when sufficient goods and chattels, lands and tenements, of the
officer against whom execution is issued, can be found to satisfy the
execution ; and either party may proceed against the officer by attach-
ment. See section 5366.
AML'KCEMKXT OP SHERIFF AND CLERK. 235
Subrogation of officer and execution in kit favor on original judgment.
SEC. 5600. If an officer who U umerccd has not collected the amount
of theoru/ina/ judgment, he shall be permitted to sue out an execution,
and collect, for his own use, the amount of the judgment, in the name
of the original plaintiff.
Monox TO AMERCE SHERIFF.
[Form 20L 5594.]
Tin- State < f Ohio, Common Pleas Court of County.
John Doe, Plaintiff, ")
Ni , _ , t" a fa *'3 j. Motion to Amerce , Sheriff) etc.
Sheriff of County, f
And now comes the said plaintiff, John Doe, and moves the court to
amerce , the sheriff of said county, and render judgment against
him upon such amercement for the sum ot dollars, judgment debt,
And dollars, the costs of the plaintiff assessed in and by such judg-
im-iit, with interest thereon from the day of , A. D. IS , and ten
per cent additional upon said sums of money, and the costs of these pro-
ceedings in amercement, to be taxed, to ar.d for the use of said John Doe,
for the reasons following :
That said John Doe, in the Court of Common Pleas of County
Ohio, at the term thereof, A. D. 18 , in a certain action then there
duly pending, wherein said John Doe was plaintiff and John Smith and
John Jones and Hugh Evans were defendants, duly recovered a judgment
against them for the sum of dollars, and dollars, costs, which
draws interest at the rate of percent per annum from the day of
, A. D. 18 , and which judgment is in full force and wholly unsatisfied;
and on the day of , A. D. 18 , the plaintiff caused an execution
upon said judgment to be issued, commanding said sheriff to cause to be
made of the goods and chattels of said defendants, and for want thereof,
from their lands and tenements, the amount of said judgment and costs,
with in to rest as aforesaid, etc., returnablesixty days after the date thereof,
which said writ was duly received by said _, as such said sheriff, on the
day of , A. D. 18 , at o'clock M ; and he did afterward, on
the day of , A. D. 18 , duly return said writ, with the indorsement
\hfrt copy the indnrtem<nt\i and thereafter, on the day of . A. i>.
18 , the said John Doe did demand the said sum of money due to him
i the hands of said sheriff, from the said sheriff, , at his office,
who then and there neglected and refused to comply with Raid <lem.in<l.
ur any part thereof, and still refutes so to do; whereupon the said John
Bo asks for the amercement of said sheriff, , as aforesaid.
EDWARD COKE, Attorney for Plaintiff.
236 CODE PRACTICE AND PRECEDENTS.
NOTICE TO SHERIFF AFTER FILING SUCH NOTICE.
[Form 202. 5595]
To , Sheriff of County, Ohio.
You are hereby notified that, on the day of , A. D. 18 , in the
Oourt of Common Pleas of County, Ohio, the undersigned filed his cer-
tain motion to amerce you, which motion is still there pending, and will
be heard and determined by said court on the day of , A. D. 18
at o'clock ., or as soon thereafter as the same can be heard ; and
which motion is in the words and figures following, to wit : [Here copy
the motion fully and accurately, as a variance may be fatal."]
You are further required to appear and answer to said motion at said
time and place ; this day of , A. D. 18 . JOHN DOE.
By EDWARD COKE, his Attorney.
Note. If he be the sheriff of the county, the notice must be served at least
jfwodays before the day fixed for the hearing; if of another county, fifteen days
and if served by mail, sixty days.
If service be not acknowledged, in writing, by the sheriff, the service of a.
copy on him must be proved on the hearing of the motion by the person serving:
it. Within the county the service must be personal ; in another county, per-
sonal or by copy left at his office, if not served by mail.
Other grounds for amercement of the sheriff or clerk, and notice of the motion
therefor, can readily be framed from the two preceding forms. The record and
evidence of demand and refusal will furnish the evidence to support the motion
on the merits.
JUDGMENT OF AMERCEMENT AGAINST SHERIFF ON MOTION TO
AMERCE.
[Form 203. 5594.]
In Amercement.
John Doe [ Judgment against , Sheriff, etc.
JN -~-J C! , .. */' ^ 1$ , with Interest from the
, Sheriff of - County. J Day of J8 __
This day this cause came on to be heard by the court upon the motion
and notice thereof, to amerce said , sheriff of said county ; and the
court, being fully advised in the premises, doth find upon the evidence
adduced that due notice of the said motion and the hearing of the same
has been served upon the s:\id , said sheriff, and that the said several
matters stated and contained in said motion are true; whereupon.it is
hereby adjudged by the court that the said John Doe recover against the
said ( said sheriff, the sum of dollars [the amount of the judg-
ment, costs, and interest thereon, and ten per cent additional], and
dollars, his costs in this behalf incurred and expended, with inter-
AMERCEMENT OF SHERIFF AND CLERK. 237
t from the day of , A. o. 18 , to and for the use of said John
Doe.
XoU. The record will be made up ,of the motion notice, and judgment. Any
matter of evidence upon which the judgment is based must be embodied in a
bill of exceptions.
The form of an action to make the sureties on the official bond of
the officer parties to the judgment (section 5599) will be given under
section 5366 relating to making parties not served, parties to the
judgment.
238 CODE PRACTICE AND PRECEDENTS.
CHAPTER XVIII.
REVIVOR OF DORMANT JUDGMENT.
When a judgment is revived, after becoming dormant, its collection
is enforced in the same manner as though it had remained alive.
How dormant judgment may be revived. SEC. 5367. When a judg-
ment, including judgments rendered by a justice of the peace or
mayor, a transcript of which has been filed in the Court of Common
Pleas for execution (section 5377), becomes dormant (section 5380), it
may be revived in the same manner as prescribed for reviving actions
before judgment (sections 5148, 5150, 5152), or by action; when
either party to such dormant judgment, his agent or attorney, makes
affidavit showing that the adverse party is a non-resident of the state,
and that such judgment remains unsatisfied in whole or in part, and
the amount owing thereon, service may be made by publication, as in
other cases; if sufficient cause be not shown to the contrary, the judg-
ment shall stand revived for the amount which the court finds to be
due and unsatisfied thereon; and the lien of the judgment for the
amount due shall be revived, and shall operate from the time of the en-
try of the conditional order, or the filing of the petition.
Note. A judgment properly rendered against a defendant, upon service of a
summons duly made, ceases to be operative only by reason of statutory provis-
ion, and, therefore, maybe restored to its original force and effect, by service by
publication, after the judgment debtor has removed from the state.
(a) If a judgment is obtained on unsealed process, and such judg-
ment is afterward revived without objection, the want of a seal does
not impair the validity of the judgment. Hcighway v. Pendleton, 15
O. 735
But query : If this be so where such judgment was taken without
the appearance of the defendant, and the revivor was taken by default
also, by publication only.
(6) Where a judgment is revived it is revived with all its incidents,
as between the parties. Norton v. Beaver, 5 O. 178.
(c) But the title of a purchaser from the judgment debtor is, on the
judgment becoming dormant, discharged from the lien, and the subse-
quent revivor of the judgment wiil not affect the title. Norton v.
Beaver, 5 O. 178 ; Minor v. Wallace, 10 O. 403 ; Hutchinson v. Hutch-
KEYIYOK OF LollMANT JUDGMENT. 239
trwon, 15 O. 301 ; Tucker v. Shwle, 25 O. P. 358. And see notes to seo-
.Jrix.Mi.N r Ln
MOTION FOR CONDITIONAL ()i:in:i: OF UKVIVOROF DORMANT JUDG-
MENT.
[Form 204. g 5367, 5150.]
Court of Common Pleas of - County.
John Doe, Plaintiff,
-.] t. I Motion forCondition.il Order of Revivor
John Smith, John Jones, ami I of Dormant Judgment.
Hugh Evans, Defendant-
J.ilm Do,-, th<- abovt- named plaintiff, moves herein for the allowance of
a conditional order of revivor of tin- judgment rendered in this action in
his favor and against the said d'-S'iidants at the - term, A. . J8 , of
said court, to wit, on the - day of - , A. D. IS [the first day of s<ich
term~\, for the sum of - dollars, and - dollars, c^sts, with interest [at
te of - percent j-r annum] from the - day of - , A. D.
18 , which judgment is wholly unsatisfied, and upon which no execution
has been sued out [.-ince tlu> - day of - , A u. 18 ]; said order to
the [full amount of said judgment and costs], with interest from
the - day of - , A. D. IS . EDWARD COCK, Attorney for Plaintiff".
CONDITIONAL ORDER OF REVIVOR OF DORMANT JUDGMENT.
[Form 205. 5150,5152]"
Court of Common Pleas of - County.
John Doe, Plaitnilf, "j
No. .] r*. I Conditional Order of Revivor of
John Smith, John Jones, and Hugh I Dormant Judgment.
Evans, Defendants.
In thia cause, on the motion of said plaintiff, John Doe, and it being
made to appear to the court [nr, to - , .1 judge of said court in vacation],
that the said judgment herein has become and is dormant, and that
there is still due thereon the sum of - dollars, and - costs, with
interest from the - day of - , A. D. 18 . It is therefore ordered
that said John Smith, John Jones, and Hugh Evans be, and they are
hereby ordered to show cause why the said judgment for said sums of
should not be revived, on or before the - day of - , A. n.
18 [the return da;/ of the order, if rrvrd personally, '. the nrrnnd Monday after
x. and the answer day the third Saturday then-after ; if by publication, the
da>i it the third Saturday afl.-r tix weeks publication}; and. in default
of such showing, that said judgment to stand revived for said sums
of money.
Not*. --It the conditional order be allowed by a judjjo of the court, in va-
cation, he will sign it as such judge, and tlio same will bo entered on the journal
by the clerk.
240 CODE PRACTICE AND PRECEDENTS.
CONDITIONAL ORDER OF REVIVOR ISSUED TO THE JUDGMENT DE-
FENDANT.
[Form 206. 5150, 5152.]
The State of Ohio, County, ss.
To the Sheriff of County, Greeting:
Whereas, in the case of John Doe against John Smith, John Jones, and
Hugh Evans, in the Court of Common Pleas of County, an order in.
the following words and figures has been duly made and entered, to wit:
[Here copy the conditional order ofrevivor.~\ You are hereby commanded to
serve this writ upon the said John Smith, John Jones, and Hugh Evans,
who are required to answer unto the same by [the third Saturday after the
second Monday^, and make return of the same on the day of , A.
I). 18 [the second Monday after the issue of such writ].
Witness my hand and the seal of said court, this day of , A. n.
18-.
[L. s.] , Clerk.
Note. The sheriff will indorse and return the writ in the same manner as a
summons.
ORDER OF REVIVOR.
[Form 207. 5152.]
John Doe j
No. .] vs. > Order Reviving Judgment.
John Smith et als. )
This day this cause came on to be heard by the court, and the court
finding that said defendants have [each and every of them] been
duly served with a copy of the conditional order of revivor heretofore
issued herein, and have failed and still fail to show sufficient cause why
said judgment herein should not stand revived as prayed for by said
plaintiff, it is ordered by the court that the said judgment herein, for
the sum of dollars, and dollars costs, with interest [at the rate
of per cent per annum] be, and the same doth stand revived against
the said John Smith, John Jones, and Hugh Evans, and every of
them; and that the plaintiff recover against them, jointly and severally,
his costs in and about this proceeding of revivor, incurred and expended,
taxed at dollars.
Service of conditioiial order of revivor by publication. The motion and
conditional order are sufficiently indicated in Forms 204 and 205.
RBVlVuR OF DOhMANT JUDGMENT. -41
AFFIDAVIT FOR PUBLICATION.
[Form 208. g 5367.]
Court of Common Pleas of County.
John Doe, Plaintiff,
No. .] v. I Affidavit for Publication of Con-
John Smith. John Jones, and Hugh " ditional Order of Kevivor
Evans, Defendants.
F >lm Doe, the above named plaintiff, makes solem oath [or. affirms un-
der the pains and penalties of perjury] that the judgment heretofore ren-
dered in this cause by this court in his favor against the said John Smith,
John Jones, and Hugh Evans, at the term, A. D. 18 , thereof, for
- dollars, and dollars costs, with interest [at the rate of per
cent per annum] from the day of , A. D. 18 , is [wholly] un-
satisfied, and lias become dormant; that a conditional order for the re-
vivor of said judgment has been duly granted and entered upon thu
journal of said court; that the amount owing by said defendants to the
plaintiff upon said judgment is the said amounts, with interest as above
stated; and that the said John Smith, John Jones, and Hugh Evans are
each and all non-residents of this, the State of Ohio. This affidavit is
made for the purpose of serving the conditional order of revivor herein
upon said defendants by publication. JOHN DOE.
Sworn to, etc.
NOTICE BY PUBLICATION LEGAL NOTICE.
[Form 209. g 5050, 5051, 5052.]
To John Smith, John Jones, and Hugh Evans, who reside in ,
county, in the state of [if retidencca are known, s'.ate them ; if not to
itate a copy of the conditional order need not be mailed to the defendant as in
attachment case*] :
You are hereby notified that, in the case of John Doe against you,
in the Court of Common Pleas of County, and State of Ohio,
upon the judgment heretofore rendered against you in favor of said
John Doo, at the term of said court, A. D. 18 , which judgment has
become dormant, a conditional order of revivor of said judgment has
been entered in said court, in the sum of dollars, and dollars
costs, with interest [at the rate of per cent per annum] from the
day of , A. D., 18 , for which amounts said judgment is unsatisfied,
.iii-l requiring you [and every of you] to show cause in said court why
udgment should not be revived against you for the amount! of
money stated as aforesaid, by the day of , A. D. 18 , or the same
will stand revived accordingly. JOBX Doc.
[Dole] EDWARD COKK, Attorney.
Note. The day named to show catue should be the day following the fix
weekly insertion* of the notice in a newcpaper printed in the county where the
16
242 CODE PRACTICE AND PRECEDENTS.
matter is pending. 5152. The proof of such publication -will be as in other
cases of service by publication.
The final order of revivor can be drawn from Form 207.
Revivor of judgment by action is reserved to revivor of actions gen-
erally.
SUIT UPON OFFICIAL BOND OF SHERIFF OR CLERK.
CHAPTER XIX.
SFIT UPON OFFICIAL BOND OF SHERIFF OR CLERK.
Who may sue on official bond. SEC. 4994. When a person forfeits
hi- ixmd, or renders his sureties liable, auy persou injured thereby, or
who is by law entitled to the bench" tot' the security, may bring an action
thereon, in his own name, against the person and his sureties, to re-
cover the amount to which he is entitled by reason of the delinquency,
which action may be prosecuted on a certified copy of the bond; and
the custodian of the bond shall deliver such copy to any person claim-
ing to be so injured, on tender of the proper fee ; but the provisions of
this section as to the form of the action shall not be imperative, if pro-
vision is otherwise made by law ; nor shall a judgment for one delin-
quency preclude the same or another party from an action on the same
in-trument for another delinquency.
(a) An action on an official bond must be brought within ten years
after the cause of action accrues (section 4984), unless a different limi-
tation is prescribed by statute.
(6) Where an officer may rightfully retain, until called for, money
received in his official capacity, no action accrues until demand is made.
State v. Newman, 2 O. 8. 567.
(c) In an action against the surviving obligors of an official bond, the
personal representatives of the principal are not necessary parties.
Hunt v. Gayior, 25 O. 8. 620.
BOND OF SHERIFF AND CORONER.
Bond. SEC. 1203. The sheriff and coroner shall, each, within ten
days after receiving their commissions, and before the first Monday of
January next after their election, give bond to the state, with two or
sureties, approved by the county commissioners, in any sum fixed
hy the county commissioners, not more than fifty thousand dollars nor
leas than five thousand dollars, conditioned for the faithful perfomvance
of their respective duties ; which binds, with the approval of the county
commissioners and the oath of office of the sheriff and coroner, respect-
ively, indorsed thereon, shall be filed with the county auditor.
244 CODE PRACTICE AND PRECEDENTS
OFFICIAL BOND OF THE CLERK.
Bond. SEC. 1241. Before entering upon the discharge of his duties,
the clerk shall give bond to the state, in such sum as may be fixed by
the county commissioners, not more than forty thousand dollars and
not less than ten thousand dollars, with sureties to be approved by the
commissioners, and conditioned that he will pay over all moneys tliat are
by him received in his official capacity, and that lie will enter and record all
the orders, decrees, judgments, and proceedings of Hie courts of which he is
by -law the clerk, and faithfully and impartially disclutrge and perform all tlie
duties of his office; which bond, with his oath of office and the approval
of the commissioners indorsed thereon, shall be deposited with the
treasurer of the county.
Additional bond, if required by court. SEC. 1326. If, in the opinion
of the court, at any time, the official bond of any clerk of the Court
of Common Pleas, or other court of record, is not sufficient in form, or
becomes insufficient, for want of responsible sureties to secure the pay-
ment of the sum specified in such bond,- the court, on motion, shall
order its clerk to give additional bond, with responsible sureties, in the
sum required by law, with the proper conditions.
(a) If a sheriff is his own successor, and fails to give a new bond,
the sureties at his first election are not liable for defaults committed
under the second. State v. Croolcs, 7 O. (2 pt.) 221.
(6) Previous to the act of 1868 (65 v. 115), when a sheriff who was
his own successor had received money in his official capacity during
the first terra, which was in his hands when he gave bond and quali-
fied for his second term, and he subsequently failed, on demand, to pay
to the party entitled, the sureties on his bond for the second term were
not liable. Sidner v. Alexander, 31 O. S. 378.
(c) When a- sheriff, being so required, gives additional bond, either or
both set of bondsmen are liable to the party injured. State vs. Croolcs,
7 O. (2 pt.) 221.
An additional bond covers the same duties as the original for the
same period. A new bond, as has been settled, does not, but only cre-
ates a liability from the time of its execution.
(d) If a statute is passed after the execution of an official bond, im-
posing duties upon the officer not required of him when such bond was
executed, the sureties on such bond are liable for the failure of their
principal to perform such new duties ; and where the condition of the
bond is expressed as during his continuance in office, the expiration of his
term will not relieve them from liability for money collected during his
term, although demand therefor was not made until after such expi-
8DIT UPON OFFICIAL BOND OF SHERIFF OR CLERK. 245
ration. King v. AYr/wfo, 10 O. 8. 80; Sidner v. Alexander, 31 O. S.
378.
(e) A clerk is not bound to issue process without a written precipe
is filed. State v. Coffee, 6 O. 150.
(/) Sureties on the original and additional bonds are co-sureties,
the same as if liable together on a single instrument
copy OF BOND TO BE ATTACHED TO AND FILED WITH THE PETITION.
HV copy to be filed with pleading. SEC. 5085. When an action,
counterclaim, or set-off is founded upon an account, or on a written
instrument as evidence of indebtedness, a copy thereof must be attachedto
find filed with the pleading; and if not so attached and filed, the rea-
son for the omission must be stated in the pleading.
(a) The omission to attach or file a copy of the record with the peti-
tion in an action founded on a forfeited recognizance is not a ground of
demurrer. It must be taken advantage of by motion to make more defi-
nite. Calvin v. State, 12 O. S. 60, 66.
(6) Copies of written instruments attached to and filed with the
petition form no part of the pleading, and the sufficiency of the reason
frivcn for the omission to so attach and file them is to be decided by
the court, and does not affect the merits of the action. Larimore v.
',//.<, 29 O. S. 13. But see Byers v. Farmers Ins. Co., 35 O. S.
606.
(c) In actions founded upon written agreements, other than for the
unconditional paymentof money only (section 5086), it is not good plead-
ing to copy the written instrument into the pleading, nor to attach a
copy, making it a part thereof, and upon motion a reformation of the
pleading will be ordered. Crawford v. Satterfield, 27 O. S. 421.
Such attaching and filing is mere profert of such instrument, as evi-
of what the pleading is based upon.
PETITION UPON SHERIFF'S OFFICIAL BOND.
[Form 210. g 1203.]
'I'll.- Suite of Ohio, Court of Common Pleas of County.
John Doe, Plaintiff, |
- ] vs. > Petition.
A K, C. D., and E. F.. Defendants. )
John Doe, the said plaintiff, for acause of action against the said defend-
A. B , C. D., atid E. F., says that said A. B., as sheriff of said
rounty, tli<I, with said C. D. and E. F., as his sureties, on or about the
day of , A. D. 18 , duly execute his official boml as such said sheriff,
which bond wad duly accepted ami approved according to law, a duly cer
246 CODE PRACTICE AND PRECEDENTS.
tified copy of which is hereto attached and filed herewith, to the State of
Ohio; and which bond was, before its approval, duly executed by said C.
D. and E. F., as sureties of said principal, A. B., in the sum of dol-
lars, conditioned that said A. B. would faithfully perform his duties as
such said sheriff, said bond being indorsed with the oath of office of ^aid
A. B., etc., and filed with the auditor of said county.
That, in said Court of Common Pleas of said County, at the term
thereof, A. D. 18 , the plaintiff, John Doe, in a certain civil action wherein
he was plaintiff, and John Smith, John Jones, and Hugh Evans were de-
fendants, duly recovered a judgment against the said John Smith, as
maker, and John Jones and Hugh Evans as indorsers of the promissory
note in said action mentioned, for the sum of dollars, and dol-
lars, costs, with interest [at the rate of per cent per annum], from
the day of , A. D. 18 , which judgment is still in full force and
[wholly] unsatisfied.
That on or about the day of , A. D. 18 , the plaintiff caused an
execution to be duly issued out of said court upon said judgment, and de-
livered to said A. B. as such said sheriff, which execution, among other
things as prescribed by law, commanded him, as such said sheriff, of the
goods and chattels, and in default thereof, from the lands and tenements,
of the said John Smith, John Jones, and Hugh Evans, to make the said
amount of said judgment, interest, and costs, and costs accruing upon
said writ, etc., and to make due return of said writ on the day of
, A. D. 18 , etc. That upon said writ of execution, the said A. B., as
such said sheriff, caused to be made the amount in full, of the said judg-
ment, interest, and costs, and, on the day of , A. D. 18 , duly re-
turned said writ, stating said facts in his return of the same.
And that, afterward, on or about the - - day of , A. D. 18 , at
the office of said sheriff in said county, the plaintiff did demand from
said sheriff the amount of money due to him upon said execution, and
so as aforesaid in the hands of said A. B., as such said sheriff, but the
said A. B. did then and there neglect, fail, and refuse to pay to the
plaintiff, and still so neglects, fails, and refuses, said moneys so due and
payable to him by said A. B., or any part thereof.
Wherefore the plaintiff asks judgment against the said defendants for
the sum of dollars, with interest from the day of , A. D.
18 ; for costs, etc. EDWARD COKE, Attorney for Plaintiff.
Verification, precipe for summons, with statement of am unt claimed,
etc.; summons and indorsement thereon as in other actions for the re-
covery of money judgments. A copy of the official bond is to be at-
tached to and filed with the petition.
Note. In actions where one or more of the defendants are principals, and
the others sureties, all are principals as to the plaintiff, and he so treats
them in his petition. As between the defendants themselves, the sureties have
the right to be certified as such in the judgment that may be rendered.
SUIT UPON OFFICIAL BOND OF SHERIFF OR CLEKK. -47
In actions upon such bonds, their legal substance should be stated in the pe-
tition, the condition of the bond fully set out, and the facts alleged constituting
the breach of such condition.
Upon all the forms of undertakings given in the proceeding portions of this
work, where forms of petition in actions brought upon them are not given, it is
presumed petitions may be drawn by the aid of examples that have been
furnished. The facts constituting the breach or breaches of their conditions
must, in every case, be stated. In such actions, the plaintiff may avail himself
of all provisional remedies, as by attachment, etc., that he could in the original
action.
248 CODE PRACTICE AND PRECEDENTS.
CHAPTER XX.
ACTION TO SUBJECT EQUITABLE ASSETS OF JUDGMENT DEBTOR
ACTION OF CREDITOR TO SET ASIDE FRAUDULENT CON-
VEYANCE MADE BY DEBTOR.
While civil actions to reach equities of the judgment debtor in
property, and to set aside conveyances of his property made to hinder,
delay, or defraud his creditors, fall more especially within the scope of
the second part of this work, they are yet a means to enforce the col-
lection of a judgment debt, where proceedings in aid of execution
would prove ineffectual, owing to the claims or asserted interests of
others than the judgment debtor in such property, and are proper to
be illustrated here.
ACTION TO SUBJECT EQUITABLE ASSETS.
When judgment creditor may proceed against equitable assets, etc. SEC.
5464. When a judgment debtor has not personal or real property sub-
ject to levy on execution sufficient to satisfy the judgment, any equita-
ble interest which he has in real estate, as mortgagor, mortgagee, or
otherwise, or any interest he has in any banking, turnpike, bridge, or
other joint stock company, or in any money contract, claim, or chose
in action, due or to become due to him, or in any judgment or order, or
any money, goods, or effects which he has in the possession of any
person, or body politic or corporate, shall be subject to the payment of
the judgment, by action^
Note. In actions under this section, by describing the property the equitable-
interest in which of the judgment, debtor is sought to be subjected by the plaint-
iff toward the payment of his judgment, the plaintiff, by filing his petition and
obtaining service upon the defendants, acquires a Lien upon the same, called a
lien by creditor's bill; and such action is also & Us pendens, preventing any per-,
son thereafter acquiring a right to the thing so sought to be subjected, paramount
to that of the plaintiff, unless the property sought to be subjected be a negotia.
ble promissory note negotiated before due, for value, to a person without notice
As to such, an injunction should be obtained, restraining their transfer. If,
however, such property has been conveyed by the debtor, with intent tt
hinder, delay, and defraud his creditors, no such lien can now be obtained
in Ohio, as it formerly could, by bringing an action to set aside such conveyance
and to subject the property to the plaintiff's judgment. The test is: Must a
fraudulent conveyance by the debtor be set aside to reach the defendant's equity
or property? If so, it comes under the section next given.
ACTION TO SUBJECT EQUITABLE ASSETS, ETC. 249
(a) The issuance and return of an execution is not essential, if the
fact that the judgment debtor has no property subject to levy and sale
is averred in the petition. GUmon- \. Miami Exp. Co., 2 O. 294;
Piatt v. St. Ctair, 6 O. 227 ; < 'lark v. Strong, 16 O. 317; Bomberger v.
Turner, 13 O. S. 263.
(6) The judgment debtor may be compelled to disclose his means to
pay the debt and the names of his debtors. Mier* v. Zan. & M. Tp.
1 1 O. 273; Cailwallader v. Gran. Alex. Soc., 11 O. 292. And a
judgment creditor may pursue different interests of the judgment
<lei >tor and against different persons in the same petition. 11 O. 292.
(c) A judgment creditor acquires no lien, in equity, upon the choses
in action of his debtor, until a bill is filed to subject them. Douglas*
v. Hiwton, 6 O. 156 ; and where several judgment creditors are pursu-
ing the same equitable assets of their common debtor, they are entitled
to satisfaction, in the order in which their liens attached, by the filing
of their bills. Mien v. Zan. <fc M. Tp. Co., 11 O. 273.
(d) In a suit to enforce the collection of a judgment, the judgment
debtor can not urge, as a defense, any error or irregularity in the action
in which the judgment was recovered, as that would be to impeach
such judgment in a collateral proceeding. Faha v. Taylor, 10 O. 104.
(e) When it appeared that the creditor had an execution levied on
real estate, not disposed of, the proceeds of which could not be known,
and that there was other property not levied on, the relief was refused.
It did not appear that he had no adequate and complete remedy at law ;
without it so appears, equity will not interpose to grant relief. Hubbell
\ /' rrin, 3 O. 287. And a bill to subject equities can not be main-
tained against a county. Boalt v. William* Co., 18 O. 13.
(/) Salaries of officers of municipal corporations, due and unpaid,
may be subjected by judgment creditors of such officers to the pay-
ment of their judgments, under the provisions of this section. New-
ad- v. Ftnik, 15 O. 8. 462. But they, doubtless, could claim the bene-
fit >!' the three months' statute, exempting the personal earnings of the
debtor in certain cases.
(furry: If the salaries due legislators or state or county officers
can l>e so subjected, as it might break down the administration of
such department or branch of the public service.
(g) A judgment creditor of a corporation may compel a subscriber
t-> it* stock to pay him the amount due on his subscription. Henry v.
1 -..illum, etc., R. Co., 17 O. 187.
A judgment creditor of an insolvent railroad corporation may
join, in the same action, a claim to compel payment of unpaid sub-
scriptions for stock and a claim to enforce the individual liability of
250 CODE PRACTICE AND PRECEDENTS.
stockholders for the satisfaction of his judgment. Warner v. CaUender,
20 O. S. 190. And where a judgment creditor proceeds to subject the
debtors of the defendant to the payment of his judgment, to an ex-
cessive amount, the defendant should apply to the court to compel the
plaintiff to select whom he will hold ; and in default of his making
such selection, the court will do so and discharge the residue. Gilmore
v. Miami Bank, 3 O. 502.
(i) In an action to subject the equitable interest of a mortgagor in
land, it is not necessary to tender the money due to the mortgagee.
In such a proceeding, the equitable interest of the mortgagor may be sold.
Mattocks v. Humphrey, 17 O. 336.
(k) An action can not be maintained to subject moneys owned by
one partner, as his individual property, to pay a partnership debt, until
the partnership property liable to execution is exhausted. Hubble v.
Pen-in, 3 O. 287.
(I) The fact that the maker of a negotiable note has been decreed to
pay the amount thereof into court, to be applied toward the satisfac-
tion of a judgment against a defendant in such proceeding, who was
the payee, or holder of such note at the time of the service of process
upon such defendant holder, does not constitute a defense to a subse-
quent action on the note by a bona fide holder thereof, who received
the same for value, and without actual notice of the pendency of the
proceeding in chancery, after the service of process upon his indorser.
Stone v. Elliott, 11 O. S. 252. Such maker should have insisted upon
being indemnified against such contingency by the plaintiff, as a con-
dition of paying such money ; or the plaintiff should have enjoined
his debtor from negotiating it. Then, if he did so, he would be pun-
ishable as for contempt.
(m) If a creditor of the "judgment creditor procures an assignment
of the judgment to him to secure the debt the judgment creditor owes
him, he may maintain a creditor's bill on such judgment against the
judgment debtor, without reducing his claim against the judgment
creditor, and which the judgment was transferred to secure, to judg-
ment. And it makes no difference if his demand against the judgment
creditor is barred by the statute of limitations. Only his debtor, the
judgment creditor, can avail himself of such statute; and he can
waive it. Welsh v. Childs, 17 O. S. 319.
(n) Where a judgment, upon which the action to subject a debt
due the judrnent debtor was based, was set aside at a subsequent term
for irregularity, and re-entered, and a supplemental petition based upon
the latter judgment was filed, the proceeding was lis pendens, and did
ACTION- TO SUBJECT EQUITABLE ASSETS, ETC. -">!
not authorize the debtor of the judgment debtor to pay the latter his
<l,-l)t. Gibbon v. Dmiglvrty. 10 O. S. 365.
(o) For supj)lementai pleadings, see section 5119.
INTERROGATORIES ANNEiED TO PLEADINGS.
i-rogatorie may be annexed to a pleading. SEC. 5099. A party
may HUIR-X to his pleading, other than a demurrer, interrogatories per-
tinent to the issue made in the pleadings, which interrogatories, if not
demurred to, shall be plainly and fully answered under oath, by the
party to whom they are propounded, or if such party is a corporation,
by the president, secretary, or other officer thereof, as the party pro.
jHiunding requires.
When interrogatories to be cnimararf. SEC. 5100. When annexed to
the petition, the interrogatories shall be answered within the time lim-
ited for answer to the petition ; when annexed to the answer they shall
be answered within the time limited for a reply (the second Saturday
afar answer day section 5097) ; when annexed to the reply, they shall
be answered within the time allowed for an answer; but further time
may be allowed in all cases by the court, or a judge thereof in va-
cation.
//</ miJticers to interrogatories enforced. SEC. 5101. Answers to in-
terrogatories may be enforced by nonsuit, judgment by default, or by
attachment, as the justice of the case may require ; and, on the trial,
such answers, so far as they contain competent testimony on the issue
or issues made, may be used by either party.
PETITION TO SUBJECT EQUITIES OF JUDGMENT DEBTOR TO SATISFY
THE JUDGMENT.
[Form 211. ;>464 ; 1 1 O. 292.]
The State of Ohio, Court of Common Pleas of County.
John Doe, Plaintiff,
No .] M.
Inhn Smith, John Jones, and Hugh - Petition.
KV.II,-. G. H., J. K., and L. M , De-
fendants.
John Doe, the plainiff. says that, at the term, A. n. 18, of the
t of Common Pleas of County. Ohio, in a civil action then there
!!!. ling, and brought by him against them, he duly obtained a judgment
in plaintiff, against the said defendants, John Smith. John Jones. an<l
Hugh Evans, as defendants, in the sum of dollar*, and dnl!
costs with interest [at the rate of - per cent per annum] from the
day 6f . A. D. 18 , which said judgment*!* still in full force and
252 CODE PRACTICE AND PRECEDENTS.
[wholly] unsatisfied [together with dollars, accruing costs incurred
by the plaintiff in and about attempting by legal process to enforce said
judgment]; that, on or about the day of , A. D. 18 , he duly
caused an execution to issue out of said Court of Common Pleas of <said
county, which was duly delivered to the sheriff of said county, who
afterward, on or about the day of , 18 , duly returned the said
writ of execution, "No goods or chattels, lands or tenements, of any of
.said defendants found by me whereon to levy to satisfy this writ, or any
part of the amount specified therein. Costs upon this writ, $ ;" [or r
all said judgment defendants, John Smith, John Jones, and Hugh Evans,
are wholly insolvent, and neither of them owns any goods or chattels,
lands or tenements, subject to execution, whereby the said moneys, or any
part thereof, can be made].
That said defendant, John Smith, has an equitable interest as mort-
gagor, said defendant, G. H., being the mortgagee, in and to the following
described real estate, situate in said county, Ohio, and described as
follows : [Here describe the lands. ]
That the amount due to said G. H. from the said John Smith upon said
mortgage, the plaintiff is unable to state, the knowledge thereof being in
the possession of said John Smith and said G. H.
That said defendant, John Jones, has a quantity of wheat, consist-
ing of about bushels, stored in the warehouse and in the possession
of said I. K., in the city of , in said county, which said I. K.
claims the right to hold for the payment of warehouse storage charges,
and moneys advanced to said John Jones upon a bill of lading of said
wheat, before its arrival at his said warehouse, but how much is due on
such accounts, or whether any thing, from said John Jones to said I. K. t
the plaintiff is unable to state, not having the means of knowing.
And that said Hugh Evans became the owner and holder of ten shares,
of $100 each, of the capital stock of the Railroad Company, a cor-
poration under the laws of this state, and of great value, but has placed
the same in the hands of th'e said L. M., as the latter alleges and claims,
as collateral security for a debt which said Hugh Evans owes to him, but
of the amount of such indebtedness, if any exists at this time, the plaint-
iff is ignorant, he not having the means of knowing the ame.
Wherefore the plaintiff asks that all said defendants may be required
to answer this petition, the said G. H., I. K., and L. M. fully and truly
setting up and disclosing, in their respective answers, the nature and ex-
tent of their respective claims to and interests in the respective proper-
ties aforesaid; and that the same may be subjected to the plaintiff's said 1
judgment, etc.; for costs, and for all relief to which the plaintiff, upon
the facts, may be entitled; also that said G. H., I. K., and L. M., each
answer the interrogatories hereto annexed, and propounded to them re-
spectively. EDWARD COKE, Attorney for Plaintiff.
Sworn to, etc.
ACTION TO SJ'HJKi'T EQUITABLE ASSETS, ETC. 253
INTERROGATOR IKS A\\KXKI> TO TIIK FOKK;>IM; Prrrnos.
II
First interrogatory. [ Here follow with ths ^nation* put t<> ,-achJ\
No statement of the plaintiff* claim need be indorsed upon Ibe sum-
mons, the action not being for money, but for " rclirf."
If it is established to tbe sntisfaction of the court that any interest in any of
the property bnlones to the defendants, or cither of them, a judgment will be
rendered subjecting the same to tbe plaintiff's judgment.
[Form 212. 5464.]
John Doe I
No. .] tw. > Judgment.
John Smith et als. )
This day this cause came on to be heard upon the petition of the
plaintiff, the answers of tbe said G. II., I. K., and L. M , and the replies of
the plaintiff thereto the said John Smith, John Jones, and Hugh Evana
having failed to answer or demur to the petition, and all being in default
and the testimony adduced by the parties respectively, and was argued
by counsel ; on consideration whereof, and the court being fully advised
in the premises, the court doth find :
First. That the said G. II. has a valid and subsisting mortgage upon the
aid real estate in the petition described, the amount due upon said mort-
gage from said John Smith being dollars, with interest [at the rate
of - per cent per annum] from the day of , A n. 18 , ami
subject to said mortgage, the said real estate is the property of the said
John Smith.
Second. That tbe said I. K. has a lien upon said wheat in his said
warehouse for storage and advances of money made upon the same to
aid John Jones, as stated in his answer herein, for the aggregate sum of
dollars, with interest on dollars from the day of , A. D.
18 , and subject to said lien, the property in said wheat is in said John
.1 :..
Third. That said L. M. holds the said shares, of the face value of
dollars each, of the capital stock of said corporation, as collat-
eral security for the sum of Hollars, with interest [at tlu rate of
per cent per annum] from the day of , A. D. 18 , and subject to
aid sum of money, with interest M iforetaid, the said Hugh Evans is
the owner of said stock.
Fourth. And that, in law and equity, said plaintiff is entitled to sut>jf<-t
all the said property rights, in and to Mid respective properties, of the sai-l
John Smith. John Jones, and Hugh Evans, to the payment of his aaid
judgment, amounting in all to dollars, with interest [nt the rate >t
per cent per annum] from the day of . A. D. 18 , which
amount is still due and wholly unpaid.
Whereupon, it is ordered and adjudged by the court that said property
be sold, as upon execution at law, subject to the said respective claims of
254 CODE PRACTICE AND PRECEDENTS.
said G. H., I. K., and L. M., and the proceeds of such sales applied, first,
to the payment of the costs and expenses of such sales, and the costs of
this case to be taxed, and the residue toward the payment and satisfaction
of the plaintiff's said judgment, interest, and costs.
And in case the plaintiff shall so elect, and pay to the said G. H., I. K.,
and L. M., or either of them, the amount of money due to them as afore-
said, then the property, the amount due upon which has been so paid to
the party entitled thereto in full, may be sold discharged and free from
such said claim to satisfy the said judgment, interest, and costs, so as afore-
said due to the plaintiff herein.
ACTION OF CREDITOR TO SET ASIDE CONVEYANCE OR TRANSFER OF
PROPERTY BY HIS DEBTOR, TO HINDER, DELAY, AND DEFRAUD
CREDITORS.
Prior to the passage, in 1859 (56 v. 231), of the statute regulating
assignments of debtors for the benefit of creditors, the property so
fraudulently conveyed could be reached by the judgment creditor in
the same manner as equitable interests of the debtor ; and he acquired
the same priority of lien and preference over other judgment cred-
itors, as in the case of an action in the nature of a creditor's bill, to
subject equities of the debtor; and the judgment creditor could levy
execution upon the property so fraudulently conveyed before setting
aside such fraudulent conveyance. And, since the act of 1863 (60 v.
17), other contract as well as judgment creditors may maintain an ac-
tion to set aside a fraudulent conveyance ; but, since 1859, no lien can
be acquired by the filing of a petition, etc., whether the conveyance
was before or since that date. The grantee in such conveyance is, in
effect, assignee of or trustee of creditors as to the property fraudu-
lently conveyed to him.
As against creditors who were such prior to the same, a conveyance
by the debtor voluntarily, without consideration, without retaining
other property subject to execution sufficient to pay all his debts, is
fraudulent by construction of law. As to subsequent creditors, the
conveyance must have been made with the actual intent to defraud
them, to enable them to set it aside.
Such conveyances are valid and unimpeachable as between the par-
ties, and as to all the world except creditors of the grantors.
Transfers, etc., to defraud creditors, etc. SEC. 6344. All transfers,
conveyances, or assignments made by a debtor, or procured by him to be
made, with intent to hinder, delay, or defraud creditors, shall be de-
clared void at the suit of any creditor ; and the probate judge of the
proper county, after any such transfer, conveyance, or assignment
shall have been declared, by a court of competent jurisdiction, to have
ACTION TO SUBJECT EQUITABLE ASSETS, ETC.
been made, with the intent aforesaid, r in tru-t with the intent men-
1 iu the next prvivdinir station -nail, on the appli'
of any creditor, appoint a trustee according to the provisions of this
chapter (chap. 4, tit. 2), who, upon hein- duly qualified, shall proceed
l.y due course of law, t> recover possession of all property so trans-
t'-rp-d, conveyed, or assigned, and to administer the same as in other
cases of assignments to trustees for the benefit of creditors : provided,
or, that any creditor instituting a suit for the purpose aforesaid,
.-iiall cause notice of the pendency and object thereof to be published
t'-r at least/our con.<ecutive weeks iu some newspaper printed or of gen-
eral circulation in the county in which said suit shall be pending; and
all creditors who shall, within fifteen days next after the expiration of
said notice, file an answer in said action in the nature of a cross-petition,
praying to be made parties thereto, and setting forth the nature and
amount of their respective claims, and shall secure the payment of
their pro rota sharj of the costs and expenses of such action, including
reasonable counsel fees, in proportion to the amount of their said
claims, either by a deposit of money, or by an undertaking given to
the plaintiff in such sum, and with such security as the court or clerk
thereof shall require and approve, shall first be entitled, with the
plaintiff, to the benefits of such transfer, conveyance, or assignment,
in proportion to the amonuts of their respective claims ; and in case
of such notice being given, the court in which such transfer, convey-
ance, or assignment shall have been declared to have been made with
the intent aforesaid, may proceed fully to administer the trust, both as
to the creditors who are parties as aforesaid, and tho.se who have not
come in and been so made parties, distributing to the latter the surplus,
if any, after satisfying the claims of those who have preference as
aforesaid; but if such court shall not so administer the trust, or if such
notice shall not have been given, the said court shall forthwith, on de-
claring the intent aforesaid, cause a copy of the judgment to be certified
to the proper Probate Court, which shall, on its own motion, appoint a
trustee as in this chapter (4) provided; and after the costs and ex-
penses aforesaid, and the claims of the aforesaid preferred creditors
."hall have been paid by such trustee, the residue in his hands, if any,
shall inure to the equal benefit of the remaining creditors, in propor-
tion to the amount of their claims.
(a) The statute regulating assignments, etc., passed April
applies to fraudulent conveyances made before as well as after the
passage of the act, and a creditor, by filing his petition, etc., can ob-
tain no priority over other creditors of the insolvent debtor. Stanton
v Keytt, 14O. 8. 443.
256 CODE PRACTICE AND PRECEDENTS.
This was before the act of 1863, requiring publication of notice,
etc.
(6) 1. The act of February 12, 1863, amending section 17 (section
6344), applies to conveyances constructively as well as those actually
fraudulent as against creditors. 2. The only change effected by the
amendatory section is to give those instituting the suit, and such
other creditors as become parties, a preference over other creditors.
But, before such preference can be obtained, the opportunity must be
presented to all the creditors to become parties, by giving them the
required notice of the pendency and object of the suit. 3. The rights
of the parties become fixed by the decree which finally determines the
fraudulent character of the conveyance; and it is too late, after the
suit has been prosecuted to a successful result, for a party to gain the
statutory preference over other creditors by publishing the notice.
4. But, where such notice has not been given, the court, before or-
dering the funds paid over to the assignee appointed under the act,
will provide for the payment of the costs and expenses of the creditor
in prosecuting the suit by which the fund was obtained. Jamison,
Assignee, v. McNaUy, 21 O. S. 295.
(c) Any of the creditors may bring the action whether his claim has
been reduced to judgment or not. Combs v Watson, 32 O. S. 228. And
an action under this section is barred after the lapse of four years un-
der section 4982. Ib.
(d) The act of February 12, 1863, operates only upon fraudulent
transfers, conveyances, and assignments made by the debtor himself.
If an insolvent debtor purchases real estate, and with the intent to de-
fraud his creditors, causes the vendor to convey it to another, who con-
veys it to his wife, such conveyance is not within the act of 1863, but
his interest must be subjected under section 5464. Shorten v. Woodrow,
34 O. S. 645.
Under the present statute, by the words, " or procured by him to
be made," cases like that of Shorten v. Woodrow are within this sec-
tion ; and query, if that case is not overruled by Btoomingdale v. Stein,
42 O. S. 171.
(e) Where there is no other creditor than the one who brings the
action and has the conveyance set aside as fraudulent, but who pub-
lishes no notice of the pendency and object of the suit, and the court
ordered a sale of the land and the payment of the plaintiff's claim in
full : Held, error. After finding the fraud, the court, under the stat-
ute, should have caused a copy of its finding to be certified to the Pro-
bate Court for the settlement of the insolvent's estate. Loudenback v.
Foster, 39 O. S. 203.
ACTION TO SUBJECT EQUITABLE ASSETS, ETC. 257
(O The holding in HalloweU v. Baylut, 10 O. 8. 536, that where a
debtor, with intent on the part of both vendor and vendee to defraud
creditors, made sale of goods, and afterward made a general assign-
to a trustee of all his property for the benefit of all his creditors,
the legal right of tho general assignee, and the equal equities of the
creditors at large, thereupon attached to the fuuds in the hands of
tlio fraudulent vendee, and precluded any individual creditor from ob-
taining* a special lieu upon or preference over others in the distribution
of such fund, still holds, unless proceedings are had under this section.
Hut where no creditor has applied for or procured the appointment of an
assignee to execute the trust, it is competent for the court having juris-
diction of the parties to do so, and the fund arising from an action under
this section, to direct the execution of the trust, and order distribution
in accordance with its provisions; for the section affixes to property re-
covered under its provisions the same character as if transferred by
written assignment, expressing the trust Conrad v. Pancogt, 11 O. S.
685. And in an action for the recovery of property under the provis-
ion- of this section, it is a proper subject of inquiry, in determining
the character of the conveyance, whether the party making it retained
*uhVient property to satisfy his creditors. Gormley v. Potter, 29 O.
8. 597.
(y) Where property sought to be recovered by an assignee under
this section has been seized by a part of the creditors in execution, re-
covery by the assignee can not be defeated on the ground that the as-
signor had fraudulently retained possession of the property with the
consent of the assignee. The remedy against the assignee in case of
maladministration is otherwise provided for. Thomas v. Talinadgc, 16
O S. 433.
(A) An assignment by a debtor, creating therein a preference among
creditors, is void as to the preference, though the fraudulemt intent is
confined to the assignor. Harshman v. Lowe, 9 O. 93.
(\) A conveyance set aside as only constructively fraudulent will be
upheld in favor of one not guilty of actual fraud, to the extent of the
actual consideration paid (in a case of pre-existing debts), and vacated
only as to the excess of the value of the property so conveyed. Jamt-
*m'v. McNally, 21 O. S. 295.
(4) Where a party, being liable to an action for breach of promise
to marry, conveyed his real estate to another to prevent it from being
subjected to any judgment that might be obtained against him in
such action, and such action is brought and judgment obtained against
him, such plaintiff was a creditor at the time of the conveyance; and
17
258 CODE PRACTICE AND PRECEDENTS.
where the land was levied on in tli3 hands of the fraudulent grantee
to satisfy such judgment, as the property of the defendant in execu-
tion, and sold at sheriff's sale, and bought by the plaintiff in execu-
tion, who obtained a sheriff's deed therefor, it was held that she
could recover possession thereof against the fraudulent grantee, with-
out first suing to set aside the fraudulent deed. McVeigh v. Rittenour,
40 O. S. 107 ; Filler v. Schlosser, 41 O. S. 147.
The deed was void as against such creditor. Westerman v. Wester-
man, 25 O. S. 510.
(I) A voluntary conveyance to a trustee for the benefit of the
grantor's wife and children is not fraudulent against a creditor whose
claim was at the time amply secured by mortgage ; and the fact that
the mortgage security is subsequently lost by the creditor's laches does
not make such conveyance fraudulent. Stephenson v. Donahue, 40 O.
S. 184.
(m) Where a receiver of a dissolved corporation neglects or refuses
to institute proceedings to set aside a fraudulent conveyance made by
a corporation before its dissolution, a creditor may do so in place of
the receiver, by an action in the nature of a creditor's bill ; but no
questions as to liens was decided. Monitor Furnace Co. v. Peters, 40
O. S. 575.
(n) The declarations of a grantor, at the time he conveyed to
grantees, voluntarily, that such conveyance was in trust for their
wives, are admissible in evidence in an action against the assignee for
the benefit of creditors, of such grantees, to subject the property to
their debts. Harvey v. Gardner, 41 O. S. 642.
(o) Where an individual conveys property for the purpose of de-
frauding his creditors, and .dies, a court of equity will interpose at the
suit of a creditor, to set aside the conveyance. Hampson v. Sumner,
18 O. 444.
(j>) Where an execution has been levied on land which has been
conveyed by the judgment debtor, with intent to defraud his creditors,
the judgment creditor may maintain an action to set aside the fraudu-
lent conveyance in order to effect a better sale of the property. Gorm-
% v. Potter, 29 O. S. 597.
(q) Where a person, insolvent at the time, executes a note, without
consideration, to another, with warrant of attorney to confess jud<>-
ment, and judgment is taken, and execution issued and levied on the
goods of the maker of such note, the transaction is within section
6344. Bloomingdale v. Stein, 42 O. S. 168.
(r) A. mortgage void as to creditors is void as against the assignee
ACTION TO SUBJECT EQUITABLE ASSETS, ETC. 259
for the benefit of cn-lit<.r-. //<//(/* v. Tiffany, 25 O. S. 549; Liiuleman
v /,.///// EL li I'.l'indy v. Benedict, 42 O. 8. 295.
(0) A deed of assignment fur the benefit of creditors, which excepta
tnini the operation of the assignment, " all existing liens," does not
L'i\<- priority to a mortgage lien, which is void as against creditors, al-
ii valid as against the assignor. Blandy v. Benedict, 42 O. 8.
A. creditor of two insolvent debtors, who proves his claim and
t.ik- - lu~ dividend against one, loses his right to proceed against the
othi T for the unpaid balance, but no creditor of both debtors, by tak-
ing judgment against one, loses his rights to his pro rota dividends in
tin- proceeds of the property of both. Brannan v. Furcell, 41 O. S. 187.
(u) An assignment of an insolvent debtor for the benefit of cred-
<loes not take effect until it is delivered to the probate judge.
>;>.">. Hence, it is until then revocable by the assignor, and his
property is subject to execution or attachment.
PETITION TO SET ASIDE FRAUDULENT CONVEYANCE.
[Fora 213. 6344.]
Th State of Ohio, Court of Common Pleas of County.
John Doe. Plaintiff, }
-.] vt. > Petition.
John Smith and N. 0., Defendant-
John Doe, the above named plaintiff says that, on or about the day
of , A. D. 18 , in the Court of Common Pleaa of County, Ohio,
at the term thereof, in said year he duly recovered a judgment
against said John Smith, and one John Jones and Hugh Evans, for the
sum of dollars, and dollars costs, with interest from the
day of , A. i>. 18 , which judgment is still in full force and [wholly]
unsatisfied; and in and about endeavoring by law to collect said judg-
ment, interest and costs, the plaintiff bus incurred and expended
dollar*, additional costs; that, on or about the day of , A. n. 18 ,
the plaintiff caused to be duly issued and delivered to the sheriff of said
county a writ of execution against the said judgment defendants,
which said writ of execution has boon duly returned by said sheriff, in-
dorsed : " No goods or chattels, lands and tenements, of the said defend-
ants, or any of them, found whereon to levy" [or, that none of said judg-
ment defendants have any property, personal or real, subject to levy and
i-.ile on execution ; or, if the plaintiff Hat not reduced hit claim to judgmmt,
ttate the caute of action, with prayer for judgment at in bringing an action to ob-
tain judgment vpon it (32 O. S. 22*)] ; that, on or about the day of ,
A. i). 18 , after the incurring of said indebtedness to the plaintiff, the
aid defendant, John Smith, with the intent to hinder, delay, and defraud
hia creditor!*, conveyed to the said defendant, N. O., who then and there
260 CODE PRACTICE AND PRECEDENTS.
accepted the same, in consummation of a combination and conspiracy
between the said defendants, with intent to hinder, delay, and defraud
the creditors of the said John Smith, the following described real estate,
situate in said county, and described as follows, to wit: [here describe
the property, whether it be real or personal] ; and that said conveyance is void
as to the creditors of said John Smith.
Wherefore, the plaintiff asks [if the petition is on a debt not reduced to judg-
ment, for judgment against the debtor, and as follows :] that the said convey-
ance, transfer, and assignment from said John Smith to said N. O. be de-
clared void, and set aside, and that all said property be subjected to the
satisfaction of the plaintiff's said debt, etc., against said John Smith, and
his other debts, as provided by the statute in such case made and pro-
vided; for costs, and for all such relief as the plaintiff maybe entitled
to, upon the facts, in law or in equity.
Sworn to, etc. EDWARD COKE, Attorney for Plaintiff.
Precipe : No indorsement on summons necessary ; summons or pub-
lication as in other cases.
Note. If the debt arose subsequent to the alleged fraudulent conveyance, it
must be alleged that the conveyance was made and accepted with the in-
tent and purpose to defraud the subsequent creditors of the party so conveying.
If the conveyance is voluntary, that is, without or for a grossly inadequato
consideration, it is fraudulent, by construction, as against prior, but not prinw
facie as to subsequent creditors of the party conveying. And if the grantor
and grantee intend, in fact, to defraud creditors of the grantor, the conveyance
will be set aside for such fraud, though the grantee pays the full value of the
property as where the transaction was to enable the debtor to convert his
property into money, and place it beyond the reach of his creditors.
NOTICE OP PENDENCY A.ND OBJECT OP THE PETITION LEGAL
NOTICE.
[Form 214. 6344.]
Notice is hereby given to all the creditors of John Smith, of the county
of and the state of , that, in the Court of Common Pleas of
County, Ohio, on the day of , A. D. 18 , John Doe filed his certain
petition and duly commenced a civil action against said John Smith and
N. O., where the same is pending, the object of which is to have declared
void and set aside a certain conveyance executed by said John Smith to
said N. O. on the ground that the same was made and accepted between
said defendants for the purpose of hindering, delaying, and defrauding the
creditors of said John Smith, the property so conveyed being described as
follows : [Here describe the same']. All such creditors desiring to unite with
the plaintiff to set aside said conveyance and subject said property to
creditors, will appear in said court, file their cross-petitions, and give their
undertakings as to costs and expenses, as required by the statute in such
ACTION TO SUBJECT EQUITABLE ASSETS, ETC. 261
case made and provided, by or on the day of , A. D. 18 . [This
day thnuUi bejfiftetn days after four full weeks from the date of the first publica-
tion, not merely to the date of the fourth weekly insertion in the newspaper printed
r of general circulation in the county.] JOHN DOE, Plaintiff.
EDWARD COKK, Attorney.
[Date]
Proof of publication as in other cases.
ANSWER AND CROSS-PETITION OF CREDITOR WHO COMES IN IN PUR-
SUANCE OF SUCH NOTICE.
[Form 215. g 6344.]
Court of Common Pleas of County.
John Doe, Plaintiff, |
No. .] tw. > Answer and Crow-Petition of P. Q.
John Smith and N, 0., Defendants, j
And now comes P. Q.. and by leave of the court first hud and obtained,
make* himself a defendant, and file? this his answer and cross-petition in
this cane, and says that he adopts and makes part hereof, the same as if
ii specially stated and averred, all that is stated in the plaintiff's
petition, us to said conveyance having been executed and accepted between
aaid defendant!*, John Smith and N. O., fur the purpose of hindering,
delaying, and defrauding the creditors of said John Smith ; but of the
amount and validity of plaintiff's said judgment and demands he has
uK'-in-d as due to the plaintiff from said John Smith, he, the said P. Q.,
knows nothing, and demands strict proof of the same, as he does in the
case of every other creditor making an equal pro rata claim herein against
ni' I John Smith.
And for a cause [or, first cause, if there be more than one distinct cause of
action to be set forth] of action against said .John Smith this defendant says,
that, on the - day of , A. D. 18 , he contracted with said John
Smith to sell and deliver to said John Smith one thousand bushels of
wheat, the came to be delivered at , on the day of , A. D.
IS , for and in consideration of which the said John Smith agreed to pay
him, in thirty days after such said delivery of said wheat, one dollar per
Mi-h.-l; that at said time and place this defendant did duly deliver said
one thousand bushels of wheat to said John Smith, and did duly perform
all the conditions of said contract on his part to be done and performed ;
yet the said John Smith, though said thirty days from the date of said
delivery to him of said wheat are passed, has wholly failed to pay this party
forthi'itame. or for an v part thereof, and that there is* now due to this defend-
ant Irom the. said John Smith, by reason of the premises, the sum of one
md dollars, with interest from the -. day of . A. D. 18 , for
which he asks judgment against said John Smith.
He also asks that said conveyance from said John Smith to said N <
be declared void, and set aside, and said property subjected and applied,
262 CODE PRACTICE AND PRECEDENTS.
according to law, to the said debt so due this party as aforesaid, and for
all relief that he may be entitled to in law or equity.
JOSEPH CHITTY, Attorney for P. Q.
Sworn to, etc.
UNDERTAKING OP INTERVENING CREDITOR.
[Form 216. 6344.]
The State of Ohio, Court of Common Pleas of County,
John Doe, Plaintiff, ) rr j * i c T> r\ r *.
v [ Undertaking of P. Q., Intervening
* ' ^'* * I t/O . r s-] j , rfh
John Smith and N. O., Defendants, j
Whereas, in this cause, brought and pending in said court, by said John
Doe against the said John Smith and N. O., to have declared void and set
aside a certain conveyance of certain property in the petition described, on
the ground that the same was made and accepted between said parties
defendant, to hinder, delay, and defraud the creditors of the said John
Smith, reference to said petition being hereby expressly had, the said P.
Q. intervenes as a creditor of said John Smith by filing his answer herein
in the nature of a cross-petition, reference to which is hereby expressly
had, on compliance with the statute in such case made and provided.
Now, in consideration of the premises, we, P. Q., as principal, and R. S.,
as surety, jointly and severally, do hereby undertake to said plaintiff,
John Doe, in the sum of dollars, that said N. 0. will pay his pro rata
share of the costs and expenses of said action, including reasonable
counsel fees, in proportion to the amount of the said claim of the said P. Q.
In witness whereof, we have hereunto subscribed our names, this
day of , A. D., 18. P. Q.
R. S.
The above undertaking of P. Q. and R. S. is by me appproved as suffi-
cient.
[Date.l , Clerk.
[Form 217. 6344.]
-.j I Approval of Undertaking in Intervening Answer
John SmTth et als. ) and Cross-Petition of P. Q., etc.
This day came P. Q., and upon executing his certain undertaking to
the plaintiff, with R. S. as his surety, in the sum of dollars, which
undertaking is hereby approved by the court as sufficient, leave is given
said P. Q. to intervene in this action by filing his answer in the nature
of a cross-petition. Answer and cross-petition filed.
JUDGMENT SETTING ASIDE FRAUDULENT CONVEYANCE, AND FIND-
ING PRIORITIES, AND ORDER OF DISTRIBUTION.
[Form 218. 6344.]
John Doe )
No. .] vs. > Judgment Setting Aside Fraudulent Conveyance, etc.
John Smith et als. )
This day this cause came on to be heard by the court upon the petition
ACTION TO M H.I I. iT l.yt ITABLE ASSETS, KTC. 203
of the j.lniinitl th.- answers of said .John Smith and N. 0., and the an-
swer and cross -petition of 1'. Q., and the respectiv.- replies filed herein],
:ind the testimony adduced l>y the parties respectively, and was argued
by counsel. <>n consideration whereof, and the court being fully advised
in the premises, doth find thai said conveyance of said property, in the
petition mentioned, WHS made by said .John Smith for the purpose of hinder-
ing, delaying, and defrauding his creditor-, and accepted by said N. ()..
with such purpose and intent, and the same is adjudged void as against
the creditors of said John Smith; and the court doth further find that
there is now due to the said John Doe from the said John Smith the
sum of - dollars, with interest from the - day of - , A. D. 18 .
Also that there is due to said P. Q., upon the matters stated in his
answer and cross-petition herein, the sum of - dollars, with interest
from the - day of - , A. D. 18 ; and also that the said plaintiff
has given due notice as required by law of the pendency and object of
his said petition, and that by answer in the nature of a cross-petition
xaid P. Q. has duly intervened in the prosecution of this action, and no
other creditors, if any there be, have appeared herein and filed any answer
in the nature of a cross-petition.
It is, therefore, ordered and adjudged by the court that said convey-
ance from said John Smith to said N. O. be, and the same is hereby set
aside as against the creditors of said John Smith ; and that the said
property in said conveyance and the petition herein described be ap-
praised, advertised, and sold as upon execution, and the proceeds thereof
be brought into court* and distributed as follows: 1. To the payment of
the costs of this action. To said John Doe and P. Q. pro rata, in pro-
portion to the respective amounts of their said claims so as aforesaid
found due. 3. And if there shall be any amount remaining, the same to
be distributed pro rota, in proportion to the amounts of their respective
claims, to other creditors of said John Smith. 4. If any thing shall be
thereafter remaining, the same, after paying to said John Doe and P. Q.
their costs in this behalf expended, to be taxed, to be paid to the said N. U.
And it is further adjudged that the said John Doe and P. Q. recover
of the said John Smith and N. U. their respective costs in this behalf in-
curred and expended, to be taxed; and, as to such surplus, if any there
be remaining alter the payment of the said John Doe and P. Q., and
the cosu hereinbefore ordered to be paid out of the proceeds of said
property, the clerk of this court is hereby ordered and required to give
pul'lic notice in a newspaper published and of general circulation in said
- county, for - consecutive weeks to the creditors of said John
Smith to appear and file their claims against said John Smith in said
court, for the purpose of effecting an equal distribution of the remainder
of such fund, pro rata, among all the creditors of said John Smith.
may often be advisable to limit the judgment entry to what pre-
ceded tbo in the foregoing form, and make the entry of distribution, etc., after
the fund U brought into court.
264 CODE PRACTICE AND PRECEDENTS.
JUDGMENT WHEN NO NOTICE HAS BEEN GIVEN.
[Form 219. 6344.]
No -1 M I 'J U( *gment Setting Aside Fraudulent Conveyance
John Smith et als. j and Transmitting Cause to Probate Court.
This day this cause came on to be heard by the court upon the petition
of the plaintiff, the answers of said defendants, John Smith and N. O.,
and the replies of the plaintiff thereto, and the court having heard the
evidence adduced by the parties, respectively, and the arguments of their
counsel, and being fully advised in the premises, doth find that the said
conveyance of the said property in the petition mentioned and described,
to wit {here describe it], was conveyed as charged by said John Smith to
said N. 0., with the intent to hinder, delay, and defraud the creditors of
him, the said John Smith, and that said conveyance of said property was
accepted by said N. O., with the same purpose and intent; also that there
is due to the plaintiff from said John Smith, as stated in the plaintiff's
petition, the sum of dollars, with interest from the day of , A.
D. 18 , and his costs in this behalf incurred and expended, taxed to
dollars, for which judgment is hereby rendered in his favor against said
John Smith and N. O. Defendants' costs taxed at dollars. And
the court doth further find that no notice has been published or given,
as required by the statute in such case made and provided : wherefore, it
is adjudged by the court that said conveyance from said John Smith to
said N. 0. of said above described property, be, and the same is hereby
set aside and declared void as to the creditors of said John Smith. And
it is further ordered by the court that a copy of this judgment be forth-
with certified to the Probate Court of County, Ohio, to be there pro-
ceeded in according to law.
CERTIFICATE OF CLERK TO COPY OF JUDGMENT.
[Form 220. 6344.]
The State of Ohio, County, ss.
To the Probate Court of the County of :
I hereby certify that the foregoing is a true and full copy of the judg-
ment rendered by the Court of Common Pleas of County, in the
cause, No. , of John Doe against John Smith and N. O,, lately pending
in said court.
Witness my hand and the seal of said court, this day of A. D.
18.
[SEAL.] , Clerk.
NOTE. A jury trial is not a matter of right to the parties in this class of
cases, and it is better, usually, to try them to the court; but the court may refer
the issue to a jury, whose verdict will be advisory only, as other verdicts are
in chancery causes.
ACTION TO SUBJECT EQUITABLE ASSETS, ETC. 265
ISSUES REFERRED TO JURY FOR TRIAL.
[Form 221. 5131,6344.]
John Doe j
No. .] w. > Order Referring Issue to Jury.
John Smith and N. O. J
In this case, it is ordered by the court that the following issues be sub-
mitted to a jury for trial :
1. Was the conveyance of the property, in the petition mentioned, con.
veyed by said John Smith to said X. O. with intent to hinder, delay, and
defraud the creditors of the said John Smith.
2. Was said conveyance accepted by said N. O. with intent to hinder,
delay, and defraud the creditors of said John Smith.
VERDICT OF JURY.
[Form 222. 5197.]
We. the jury, find that the said conveyance was made by said John
Smith to said N. O. with intent to hinder, delay, and defraud his cred-
itors; and that said N. O. accepted said conveyance with the intent to
hinder, delay, and defraud the creditors of said John Smith.
, Foreman.
JUDGMENT UPON VERDICT.
[Form 223. 6344.]
I Judgment upon Verdict Setting Aside Fraudulent
JolinlmUh et als. J ^cyance, etc -
This day this cause came on further to be heard, and upon the verdict
of the jury herein, and the evidence adduced to the court by the parties,
and the court being fully advised in the premises, doth find that [<u t
farms 218o,u/219].
CONVEYANCES, ETC., MADE BY FAILING DEBTOR TO A TRUSTEE FOR
THE BENEFIT OF ONE OR MORE CREDITORS, WHICH INURE TO
THE BENEFIT OF ALL THE CREDITORS.
By the common law, a debtor, in contemplation of insolvency, can
prefer one or more of his creditors, though such preference exhausts
all his property ; and he could do this by a conveyance to a trustee,
not a creditor, for the benefit of such creditor or creditors, as were
preferred, and their acceptance of such preference, being wholly IKMH'
tidal to them, was presumed in the absence of proof of refusal ; ami
such preference was not evidence of an intention to defraud creditors.
IWipfo'/w v. Wheeler, 16 Pet. 106. This was the rule in. Ohio until
modified by statute.
266 CODE PRACTICE AND PRECEDENTS.
Assignments to a trustee in contemplation of insolvency inures to all cred-
itors. SEC. 6343. All assignments in trust to a trustee or trustees,
made in contemplation of insolvency, with the intent to prefer one or
more creditors, shall inure to the equal benefit of all creditors, in pro-
portion to the amount of their respective claims, and the trusts arising
under the same shall be administered in conformity with the provis-
ions of this chapter (tit. 2, ch. 4).
NOTE. If, in contemplation of insolvency, A. conveys his property to B. to
pay his creditors, C. and D., this conveyance inures to the benefit of all A.'s
creditors, though the words " trust" and " trustee * be not used. It is the sub-
stance of the transaction that characterizes its legal natiwe and effect; but if a
creditor makes such a conveyance, having enough other property subject to
execution, and not in contemplation of insolvency, the trust will be enforced
according to its terms.
(a) While all contracts for the purpose ol defrauding, delaying, or
hindering creditors have always been void, even without statute (13 Eliz. ,
c. 5), yet it is only by statute law that the insolvent's preference of one
creditor over another can be objected to ; voluntary assignments for the
benefit of creditors, even in the absence of statutory provisions, have
been universally supported, even where a part of the creditors are pre-
ferred to the exclusion of others. Atkinson v. Tomlinson, 1 O. S. 237.
(b) Where a debtor, in contemplation of insolvency, makes an as-
signment or conveyance of all his property to trustees, for the benefit
of all his creditors, at a time when it is expected that some of his cred-
itors will, within a few days, obtain judgment against him, it is not per
se fraudulent and void upon the ground that the deed contains a clause
which provides that the trustee may sell the property at private or at
public sale, and upon such -a credit as he shall deem most, expedient
and beneficial for his creditors, for this does not imply that he shall
give a credit greater than the law authorizes. When a man finds that he
is insolvent, the most just and equitable act that he can do is to sur-
render his property, in trust, for the benefit of all his creditors alike ;
and the hinderance and delay which such a course will occasion to par-
ticular creditors, who are seeking a priority of liens on the property of
the debtor by judgments at law, and speedy collections by sales on ex-
ecution, are simply unavoidable incidents to a just and lawful act, and
not being fraudulent at law, do not bring the instrument of assignment
within the operation of the statute of frauds. Hoffman v. Mackall, 5
O. S. 124.
But there are certain provisions in assignments, in contempla-
tion of insolvency, which are per se fraudulent, as, for instance,
a provision in the deed of assignment postponing the period
ACTION TO SUBJECT EQLI1ABLK \ TC. 267
of sale and payment an unreasonable time; stipulations tending
to coerce the creditors int-> compromise <>r Mease of a part of
their debts, or imposing other unreasonable conditions as to the U nns
upon which they may |articipate in the distribution of the estate, or
reserving to the assignor the control or disposition of the uses to which
the property is to be applied; the reservation of a use or benefit to the
grantor or his family, or any one not a creditor, or a reservation of the
surplus after paying certain specified debts, leaving others unpaid ; the
reservation of a power of revocation, or the introduction of such con-
ditions and contingencies as to give the debtor a control, and give him
the power to defeat the conveyance, and a provision that tiie transact inn
shall be kept secret until the debtor has secured certain advantages, or
has the opportunity to get beyond the reach of process of other cred-
<>r by which the deed is not to be recorded or does not become
effectual until other creditors bring suit Ib.
Declarations made by the assignor, that it was his intention and
i to prefer his dwn creditors, 'in preference to those to whom he
was liable as surety for others, have no effect unless inserted in the
deed, and when thus inserted their simple effect would be to brint: the
i within the statute, and that the property assigned must inure
to i he benefit of all the creditors. Ib,; Bancroft v. Blizzard, 13
O. 30.
(d) In case of an assignment of choses in action ior the benefit of
creditors, the law of the domicile of the assignor controls and d u-r-
niitir- what is a sufficient transfer to authorize the assignee to collect the
same, and where such assignment of choses in action in New York was
in conformity with the laws of that state, where the insolvent debtor
resided and transacted business, and there transferred the rich t of action
to the assignee, the assignee may maintain an action in the court* ot this
state to collect the same, although the assignment, as authorized by the
laws of New York, gives preference to certain creditors. The princi-
ples of comity between states will allow such assignee to maintain an
art ion in this state, against one of its citizens, notwithstanding such
preference, in the absence of set off or other defense to surh action, or
of any lien or charge against the claim by the debtor under the laws
of Ohio. Fuller v. Stetyik, 27 O. 8. 355.
In order to give effect to an assignment for the benefit of cred-
itors in this state, where lands in Ohio constitute a part of the property
assigned, title to such lands will not pass unless the insolvent makes a
formal deed of conveyance to the trustee, for real property can only be
transferred according to the law of the place where it is situated.
ttogm v. Allen, 3 O. 488. And, therefore, a transcript from the State
268 CODE PRACTICE AND PRECEDENTS.
of Pennsylvania, showing that an insolvent debtor had assigned his
property for the benefit of his creditors, is not competent evidence to
effect the title to real estate in Ohio. McCullough v. Rodnck, 2 O. 234.
But when an assignment is made by an insolvent debtor, residing abroad,
of lands in Ohio, in trust to sell and pay his debts, such assignment
will not be superseded by an attachment issued by a creditor in Ohio,
and levied upon the lands. Sortwett v. Jewett, 9 O. 180.
(/) One of the members of an insolvent firm can not, either before
or after dissolution of the partnership, make a valid assignment of all
the effects of the firm, for the benefit of creditors, against the will of
a copartner, or without his assent, if he is present or accessible.
Holland v. Drake, 29 O. S. 441.
But, if a partner is absent, not accessible, and could not have been,
or can not be consulted, the other may make a valid assignment of the
partnership effects for the benefit of creditors of the firm, and where
an assignment is so made, against the will or without the assent or
knowledge of the copartner, and he subsequently ratifies the assign-
ment, the ratification will relate back to the time of the execution of
the assignment, and give it effect from that date, but not so as to de-
feat the rights of third persons, acquired in good faith in the mean-
time, but when a firm is dissolved, and its property and assets divided
between the partners, the individual members can not, in contemplation
of insolvency, make an assignment of their property, both individual
and that which is derived from the firm, for the benefit of individual
creditors, to the exclusion of firm creditors. The statute relating to
assignments will so operate in such case as to secure an equality for
both classes of creditors. Miller v. Estill, 5 O. S. 508.
(gr) Partners lose their primary right to apply the partnership
property to the payment of the partnership debts by the extinguish-
ment of the partnership, and when that is gone, the right of the part-
nership creditors to enforce the application of the property which once
belonged to the former firm, to the payment of such partnership debts,
is also extinguished. Partnership creditors must work out their rights
to the partnership property through the partners, and when the powers
of the latter are at an end, the rights of creditors on what was once
the firm effects ends also. Miller v. Estill, 5 O. S. 508.
(fi) It is a rule in equity, in the distribution of the joint and sepa-
rate assets of insolvent partners, that the individual assets of a part-
ner of a firm be first applied to his debts to individual creditors, and
the partnership assets first to the partnership debts; the preference of
the individual creditors necessarily resulting as a corelative from the
ACTION TO SUBJECT EQUITABLE ASSETS, ETC. 269
priority of the joiut creditors in the joint effects, inseparable from the
relations of partners to each other. Rodgen v. Meranda, 7 O. 8. 179.
This rule does not apply when there are no joint assets, and no sur-
viving solvent partner.
In case there are joint and separate assets, and joint and separate
dcl)t>, the joint assets must first be applied to the payment of the joint
debts, and the individual assets to the payment of individual debts. If
there be any surplus in either of the funds after the payment of the
debts having the preference upon such fund, the creditors of the other
fund will share equally in the distribution of the surplus. Ib.
.V.i''. If A. convey, transfer, or assign to B. any property in payment of the
former'* debt to the latter, or on account of B.'s liability to others for A.'s in-
debted new to them, or the property conveyed toward such satisfaction be
incumbered by liens, B. can receive such property from A. and assume the pay-
ment <>f such persons to whom he is liable for A. or to discharge such liens, and
the transaction will not come under this section, other creditors can not claim
the conveyance to be for the benefit of the creditors of A.
PETITION TO DECLARE CONVEYANCE MADE IN CONTEMPLATION OK
INSOLVENCY TO A TRUSTEE FOR THE BENEFIT OF ONE OR MORE
CREDITORS, AS INURING TO THE BENEFIT OF ALL THE CREDITORS.
[Form 224. 6343.0344.]
John Doe, Plaintiff, |
No. .] w. \ Petition.
John Smith, T. U , and V. W., Defendants. ]
The plain tiff says that, at the term, A. D. 18 , in the Court of Com-
mon Pleas of County, Ohio, he duly obtained a judgment, which is
still in full force and wholly unsatisfied, against the said John Smith,
John Jonea, and Hugh Evans, for the sum of dollars, and dol-
lars, costs, with interest from the day of , A. D. 18-^, and in and
about attempting to collect said judgment upon execution, the plaintiff
has incurred and expended as additional costs the sum of dollars,
which amount is wholly unpaid; that on or about the day of ,
A. D. 18 , in contemplation of insolvency, and having no other property,
personal or real, subject to execution sufficient to satisfy plaintiff's said
judgment, interest, and costs [or, any part thereof], the said John Smith
yed [or, transferred; or, aligned] to said defendant, T. U.. in trust, to
pay his alleged creditor, the said defendant, V. W., an alleged indebtedness
from said John Smith to said V. W.. the following described property of the
aid John Smith, to wit: [here dwrihe the property}; and that said convey-
ance inures to the benefit of all th* credi tors of said John Smith, of whom
the plaintiff is one.,' as aforesaid; wherefore the plaintiff a*ks that said
conveyance from said John Smith to Raid T. U. be declared and adjudged
to be for the benefit of all the creditors of said -Tohn Smith, and that said
above described property be appropriated and distributed to tbe plaintiffs
270 CODE PRACTICE AND PRECEDENTS.
said debt due to him from said John Smith, and the other creditors of
said Smith, according to the statute in such case made and provided; for
costs, and all relief that the plaintiff may be entitled to in law or equity.
EDWARD COKE, Attorney for Plaintiff.
Sworn to, etc.
Note. Forms 214, 215, 216, and 217 will furnish a sufficient guide fur
the subsequent proceedings to judgment. As the question is so exclusively one
of law, it will not require the submission of any issue of fact to a jury.
JUDGMENT DECLARING CONVEYANCE IN TRUST TO INURE TO THE
BENEFIT OF ALL CREDITORS.
[Form 225. 6343.]
John Doe ]
No. .] vs. > Judgment Declaring Trust in Favor of Creditors.
John Smith et als. )
This day this cause came on to be heard upon the petition of the plaint-
iff, the answers of the defendants, T. U. and V. W. the said John Smith
being in default, he having failed to demur or answer to the petition and
the replies of the plaintiff to said answers, and the testimony adduced by
the parties respectively, and the arguments of their counsel; on consid-
eration whereof, and the court being duly advised in the premises, the
court doth find :
First, that there is due to the plaintiff from the said John Smith, as al-
leged in the petition, the sum of dollars, with interest, from the
day of , A. D. 18 , and also the further sum of dollars, on ac-
count of accruing costs as stated in the petition. \_If any creditors have in-
tervened and filed answers in the nature of cross-petitions, find, in the same manner,
the amounts due to each of them.]
Also, that the said conveyance, in the petition mentioned, from said
John Smith to said T. U., to pay the said V. W., a creditor of said John
Smith, was made by said John Smith, in contemplation of his insolvency,
in trust, to sajd T. U., for the purpose of preferring his said creditor, V.
W. ; that due notice of the pendency and object of the petition herein
has been published according to law, and no creditors have intervened
and filed answers in the nature of cross-petitions herein, or otherwise
complied with the statute in such case made and provided.
Wherefore the court doth find, as matter of law, that said conveyance
inured to the benefit of all the creditors of said John Smith, and that
said T. U. holds said property in trust for them, to be administered and
distributed according to law.
And the court doth hereby order that said trust be retained in this
court to be fully administered; that said trust property in the petition
mentioned and described be sold as upon execution, the proceeds brought
into court, and out of the proceeds of the sale of said property, the costs
and expenses of this action, and all the proceedings therein be first paid
in full; that then the said amounts, with the interest, so as aforesaid
found due to him, be paid to the plaintiff [or, if other creditors have intervened,
ACTION TO SUBJECT EQUITABLE ASSETS, ETC. 271
them and the amountt found due to each, and add: that then the residue
be paid pro rata, in proportion to the amount of their said respective
claims, to the plaintiff, and to said and . etc., and if any surplus
shall then remain, the same shall be distributed to the other creditors of
said John Smith, pro rata, in proportion to the amounts of their respective
claims, to be proven by them to the court *].
. If the cause is referred to the Probalu Court, follow Forms 219. 220.
272 CODE PRACTICE AND PRECEDENTS.
CHAPTER XXI.
ACTION UPON THE JUDGMENT.
While under almost any circumstances remedies as effective can be
had upon execution, as by an action founded upon the judgment it-
self, yet, at common law, which has not been changed in Ohio, an ac-
tion may be brought, even in the court by which it is rendered, upon
the judgment it'self, and all provisional remedies obtained as in other
civil actions upon contract for the recovery of money.
The fact that a judgment is dormant is no bar to suing upon it, and
it need not be revived to authorize an action upon it. To a judgment
rendered by a court of record in Ohio, there seems to be no limitation
of the time in which an action may be brought upon it in the courts
of the state. After twenty-one years, without issuing execution upon
J t, it may fairly be presumed to have been satisfied by payment, or re-
lease; but this presumption is not conlusive; it may be rebutted, as
by proving that the debtor, if living, has been insolvent during all
that time; or, if dead, that he was insolvent from its rendition until
his death, and left no estate to be administered.
As to actions on judgments, see Freeman on Judgments, 3d ed.,
432, and cases there cited.
PETITION IN AN ACTION UPON A JUDGMENT.
[Form 226. I 5085.]
The State of Ohio, Court of Common Pleas of County
John Doe, Plaintiff, ]
No. .] vs. > Petition.
John Smith, John Jones, and Hugh Evans, Defendants. )
The plaintiff, John Doe, says that, at the term, A. D. 18 , in the
Court of Common Pleas of the County of , Ohio, in a certain action
then there pending, wherein he was plaintiff and said John Smith.
John Jones, and Hugh Evans were defendants, he duly obtained a judg-
ment against said John Smith, as maker, and John Jones, as first, and
Hugh Evans, as second, indorsers, upon the promissory note, in his peti-
tion therein described, for the sum of dollars, with interest [at the
rate of per cent per annum], from the day of , A. D. 18 ,
and dollars, costs, with interest from the same date, upon which
there are subsequently accrued costs, due to the plaintiff from the said de-
fendants, amounting to the sum of dollars, and which said .judgment
ACTION UPON THK JUDGMENT. _,
U still in full foroe and [wholly] unsatisfied, together with said amount
of accrued costs a complete transcript of said cause and said judgment
[and subsequent proceedings in said cause], duly certified, is hereto at-
tached and filed herewith; and that the said several above mentioned
sum* of money, with interest as above stated, id due to the plaintiff from
the said defendants, for which, with costs, the plaintiff* asks for a judg"
ment against the said defendants.
ii to. etc. EDWARD COKE, Attorney for Plaintiff*.
Ifott. Fur proceeding* for injunction against an attachment debtor, when
he U the holder of a negotiable promissory note not due, and the maker has
been garnished, to enjoin the negotiation of such note, see INJUNCTION. Stone
T. Elliott. 11 O. 3. 262; Hove v. Hartness, ti>., 449, 456.
18
274 CODE PRACTICE AND PRECEDENTS.
CHAPTER XXII.
DEFENDANT'S DEFENSE TO AN ACTION.
So far this work has proceeded as if the defendant, practically, has
made no resistance to the demands and proceedings of the plaintiff;
but it is as important to the defendant's lawyer as to the plaintiff's to
know what a plaintiff may do, and Jww it should be done, to maintain
properly his client's rights ; and before giving the practical means of
obtaining the defendant's available rights, defenses, etc., it is deemed
proper to set forth such sections of the statute, called the " Code of
Civil Procedure," with the decisions of the Supreme Court bearing
upon them, as have not before been set forth. Some sections are re-
peated with a view to a better understanding of the matter imme
diately in hand.
DEFINITIONS.
SEC. 1. The word oath includes affirmation; and, whenever ai>
oath is required or authorized by law, an affirmation, in lieu thereof,
may be taken by any person having conscientious scruples to tak
ing an oath ; and an affirmation has the same force and effect as an
oath.
(a) Who may administer oaths. Warwick v. State, 25 O. S. 21.
(6) Verification required to be under oath must on its face show
that it is under oath or affirmation. Skinner v. Brown, 17 O. S. 33.
(c) No person shall be in-competent to be a witness on account of his
religious belief. Constitution, art. 1, sec. 7.
Words. SEC. 23. In the interpretation of Parts First and Second
(Political; Civil), unless the context shows that another sense was in-
tended, the word "bond" includes an "undertaking," and the word
"undertaking" includes a "bond;" "and" maybe read "or," and
"or "read " and," if the sense requires it; words of the present in-
clude a future tense, in the masculine, include the feminine and neuter
genders, and in the plural include the singular, and in the singular
include the plural number; but this enumeration shall not be con-
strued to require a strict construction of other words in said parts, or
in this Code.
(a) Amendment to be considered, from time of its taking effect, as
DEFENDANT'S DKI . AX ACTION. 275
part of the original law. McK&ben \. Leder, 9 O. S. 627 ; Houk v.
Minnirk, l!> O. S. 462; Bloom v. AiWin/x, 2 O. 8. 387
A Mib.stantial fliaiiif.- m:id<- ly amendment to have etH-ct in con-
rtrurtion. liolry v. 6. /,. //w. <fc 7 1 . Cb., 12 O. S. 139; Griffin v.
>. S. 299.
But a rlmngu made in language, merely, does not affect the meaning.
12 Broinr v. Hunt, 18 O. S. 311.
Contemporaneous construction, force of. Moore v. Vance, 1 O. 1 ;
:t \. Doyle, 16 O. S. 400.
\V<>nls taken ordinarily in their usual sense. Woodbury v. Berry, 18
(l - 4-36. But context or consequence may require different meaning.
H7./te v. Jr/ufe, 19 O. S. 531.
When doubt from ambiguity arises, words are not the only source
from which the meaning is to be gathered. State v. Blake, 2 O. S.
147 ; State v. Z. & M. Tp. Co., 16 O. S. 308.
In Mich cases, the construction is aided by the circumstances existing
at the time, and known. Bobo v. Wolf, 18 O. S. 463.
I'nnctiiation may aid, but does not necessarily control construction.
Albriyht v. Payne,43 O. S. 8. Punctuation and grammar may be dis-
regarded. Shriedley v. Staff, 23 O. S. 130.
The word " person " includes a private corporation. Cin. Gag., etc.,
Co. v. Avondale, 43 O. S. 257. Also municipal corporations. Springfield
v. \\'aOeer, 42 O. S. 543.
Remedial statutes to be liberally construed. Pollock v. Spiftlrl. 27
O. S. 86; Railroad*. Comrs., 31 O. 8. 338.
Penal statutes strictly. Turner v. State, 1 O. S. 422.
Statutes inpari materia to be construed together. Jones v. Carr, 16
O. 8. 420; Fuller v. Coatet, 18 O. 8. 343 ; -State v. Franklin Co., 20
O. S. 421.
Authority to do a particular thing, without specifying mode, implies
power to do it in a reasonable mode. Jewett v. Railway, 34 O. 8. 601.
When an act or several acts inpari inateria have undergone revision,
the same construction will prevail as before revision, unless the lan-
guage of the new act plainly requires a change of construction, to
MM to the manifest intention of the legislature. Stab' v. (Win*.,
' S. 326.
Where there has been such acquiescence in the decision of a court
that it has become a rule of property (real estate), such decision will
not IKJ overruled unless it violates fundamental principles, or is clearly
wrong and mischievous in its consequences. Arrotc*mitli v. Harmoning,
42 O. S. 254.
If susceptible of two constructions, one of which makes it constitu-
276 CODE PRACTICE AND PRECEDENTS.
tional and operative, and the other void, the first must be adopted.
Moore v. Given, 39 O. S. 661.
When the statute requires notice to be given, but is silent as to the
mode of giving it, actual notice is required. Id. 661.
Seals Private abolisJied. SEC. 4. Wherever an official or a corporate
seal is required to be affixed to any instrument of writing, an impres-
sion of such seal upon either wax, wafer, or other adhesive substance,
or upon the paper or material on which such instrument is written,
shall be alike valid and sufficient; private seals are abolished, and the
affixing of what has been known as a private seal to any instrument
whatsoever shall not give such instrument any additional force or effect,
or in any way change the construction thereof. (Actof April 14, 1884,
81 v. 198.)
As to seal of the state, state officers, and of the several courts, see
section 16; 83 v. 60.
Note. This act is not curative of instruments executed without the private
seal to validate which such seal was required by statute, and it is not retroact-
ive, but prospective in its operation, in this following the general rule as to the
time from which a statute begins to operate.
The statutes prescribe what officers shall be provided with seals, and the affix-
ing of which to certificates of their official acts is requisite. Corporations con-
tract by affixing their corporate seals; but when their contracts cease to be ex-
ecutory, having been performed, they are liable upon them, whether express or
implied, the same as ordinary persons, though never reduced to writing; and it
seems they may make simple contracts the same as natural persons. Ang. &
Am. Corp. 186, 187, 198, 199.
Where the statute does not prescribe the kind of seal to be employed, a
scrawl or the word "seal" is sufficient. Heighway v. Pendleton, 15 O. 735 ; Os-
born v. Kistler, 35 O. S. 99.
Interpretation of words and terms. SEC. 4947 (83 v. 74). In the inter-
pretation of Part Third (Remedial Code of Civil Procedure), unless the
context shows that another sense was intended, the word "person"
includes a private corporation ; "writing" includes printing; "oath'-
includes affirmation; "of unsound mind" includes every species of
mental deficiency or derangement ; "bond" includes an undertaking ;
"and" may be read "or," and "or" read "and," if the sense re-
quires it; words in the present include a future tense, and in the
masculine gender include the feminine and neuter genders ; and words
in the plural include the singular, and in the singular include the
plural number ; but this enumeration shall not be construed to require
DEFENDANT'S HKKKN^K TO AN ACTION. 277
a strict construction of other general words in this part. (April 14,
(a) Query : Whether statutory construction would nut be the same
without this section. Evi-n in criminal .statute* "and" may be read
" or." Miller v. State. 3 O. S. 475.
Person " includes private corporation. Cincinnati Got, etc., Co. r.
AvondaU, 43 O. S. 257.
"Insane" and "lunatic" must be limited to those who are not le-
gally competent to make a contract, or do any valid act by reason of
mental derangement. Those words do'not include idiots or the men-
tally imbecile, who are alike incompetent and irresponsible.
Construction of Civil Code. SEC. 4948. The provisions of this part
(three) and all proceedings under it, shall be liberally construed, in
order to promote its object, and assist the parties in obtaining justice ;
and the rule of the common law, that statutes in derogation thereof
must be strictly construed, has no application to this part ; but this
section shall not be so construed as to require a liberal construction of
provisions affecting personal liberty, relating to amercement, or of a
penal nature.
(a) The common -law. rule that a pleading is to be construed most
strongly against the pleader is abrogated. Hall v. Plaine, 14 O. S.
417.
But a pleading containing inconsistent statements is to be construed
against the pleader, ^fec. Sav. aiui B. L. A.D. v. CfCoiuior, 29 O. S.
(>r>l.
I'lciidings under the present system must be fairly and reasonably,
not strictly construed. McCurdy v. Baughman, 43 O. S. 78.
The lawyer should not treat ibis section as authorizing careless or un-
skillful pleading. Such pleadings can never fully answer the purposes for
which they are required. The ultimate facts of a case, in view of the rules of
law governing every part of it, should be stated with legal skill; and from such
pleading* the law maybe learned without the aid of other law book*, as they but
apply the rules of previously decided and reported cases. Hence the impor-
tant of Bludying approved precedent* in plending, as they teach the law.
to be liberally totutnittl. SKC. 501 HJ. The allegations of a
).l.':i.|i!r_ r shall be lil*-nilly construed, with a view to substantial jn-tii-c
IK- t WITH the parties.
(a) IMradings under the Code must be as liberally construed as the
stating part in a bill of chancery by courts of equity. Stunje* v. Bur-
s O. 8. 215, 218.
278 CODE PRACTICE AND PRECEDENTS.
Immaterial errors and defects. SEC. 5115. The court, in every stage
of an action, must disregard any error or defect in the pleadings or
proceedings which does not affect the substantial rights of the ad-
verse party; and no judgment shall be reversed, or affected, by reason
of such error or defect.
(a) The record must show that the error complained of was preju-
dicial. Loudenbaclc v. Collins, 4 O. S. 251 ; Hollister \. Reznor, 9 O.
S. 1 ; Ohio L. Ins. & T. Co. v. Goodin, 10 O. S. 557.
(6) A correct judgment will not be reversed because a bad reason
was given for it by the court that rendered it. Loudenback v. Collins,
4 O. S. 251; Steamboat Waverly v. Clements, 14 O. 28, 37; Baird
v. Clark, 12 O. S. 87, 90 ; Holt v. Lamb, 17 O. S. 374, 384. See fur-
ther notes to this section ERROR.
WJien special provisicn* shall govern. SEC. 4956. Where in part three
(the Code of Civil Procedure) of this revision special provision is made
as to service, pleadings, competency of witnesses, or in any other re-
spect, inconsistent with the general provisions in this title, the special
provision shall govern, unless it appear that the provisions are cumu-
lative.
Note. This section is not an enlargement of the rule of statutory construction,
but a provision for its application to a limited number of subjects. The well set-
tled and firmly established general rule is that special provisions in a statute ap-
plying to a particular subject are to govern that specific matter and to be con-
strued as an exception to all general provisions in the same or other statutes,
which, standing alone, would be broad enough to embrace and control the ex-
cepted subject-matter.
The importance of this rule cafl not be overstated, as its observance will fre-
quently prevent serious errors. To illustrate : A statute gave a justice of the
peace concurrent jurisdiction with the Court of Common Pleas in any sum not
exceeding three hundred dollars; the water-craft law, prior thereto, and not
mentioned in the justice of the peace act, gave a justice jurisdiction against a
water-craft in u sum not exceeding one hundred dollars; it was held that a jus-
'iice of the peace had no jurisdiction against a water-craft for a sum exceeding
one hundred dollars and under three hundred dollars. Canal-boat Housatonic
v. Kanawha Salt Co., 7 O. S. 261.
A statute provided that articles to form a corporation should be acknowledged
by the incorporators before a justice of the peace. An act was subsequently
passed giving notaries public power to take the acknowledgment of any instru-
ment, etc., without mentioning articles of incorporation ; it was held that a
notary public could not take such acknowledgment, and the corporation was
ousted of its franchises on quo warranto. Stale ex rel. v. Lee, 21 O. S. 662.
And also, since the amount recovered for personal injury to a married wo-
man is her separate property, and she has power to dispose of it as if she were
DEFENDANT'S DEFENSE TO AN ACTION. L'79
unmarried, this doe* not affect the statute, that the limitation of time in which
an itrtion is to bv brought .-hull not apply to a marriod woman.
(a) General I:UI_;I:I_T in oue part of a statute is to be restricted in
iu application when it would otherwise conflict with specific provisions
in another. State v. Blake, 2 O. S. 147, 151 ; Woodwortii v. &
I ' -. I'.Mi.
Where a statute gives a new remedy without impairing or de-
nving one already known to the law, the rule U to consider it cumu-
lative. Darliiuj*,'. Peck, 15 O. 65, 71.
(c) Where a statute, which confers the means of acquiring a ritrlit,
ribes an adequate special mode of determining, by a judicial in-
:ation, the fact upon which the right depends, that mode is ex-
clusive. State v. Marlow, 15 O. S. 114.
Koie. This may b further illustrated by reference to actions for damages
for wrongfully causing tin- death of a person. At common law no such ri^ht
existed. It has been given by statute, and though the damages recovered arn
for the widow mid next of kin of the deceased, if he leaves a widow, they be-
ing the beneficiaries and the real parties in interest, the action must be prose-
cuted to judgment by the administrator of the deceased. The right of action
in him is exclusive.
of bond* wlien amount u blank at the time of execution, by
surety, and filled in afterward. SEC. 6. (Sup., p. 2.) All official bonds,
and all bonds of executors, administrators, guardians, and trustees,
and all bonds required or authorized to be taken by or before any
court, judge, public board or officer, judicial or ministerial, and all
bonds of indemnity, and all other bonds conditioned to become void
upon the performance by the parties thereto, or any of them, of the
stipulations therein contained, shall bind and render liable thereon all
the obligors therein, both principals and sureties, whether at the time
of the signing of the same by such obligors, or any of them, the
amounts of such bonds be filled in or left in blank, if such amounts
be filled in before, or at the time of the approval or acceptance of such
bond ; and such filling in may he done in the absence of any or all
the obligors, and without any express authority for that purpose from
i in-ill or an of them.
._ At common law a.6o/u? implied an obligation under urn I for a stated
urn of money as a penalty, conditioned to become void upon thu performance
of the stipulations contained therein. It could not bo altered, after the signing,
waling, and delivery of it by an obligor, by the insertion, by a third per*nn, in
the obligor's absence, of any material matter; and authority to miy third per
280 CODE PRACTICE AND PRECEDENTS.
eon so to change it, required an instrument executed by the obligor of as high a
nature as the bond itself, i. e., an authority under seal.
(a) Before the act of February 25, 1869 (66 v. 15), from which
this section is derived, the penalty of an official bond could not
be inserted by a third person after the execution by the obligor, in
his absence, without an express authority under his hand and
seal. State v. Boring, 15 O. 507 ; Famulener v. Anderson, 15 O. S.
473.
(6) If the name of the surety be signed to an undertaking, but his
name does not appear in the blank space left for that purpose in the
body of the instrument, the omission does not affect the validity of the
instrument. McLain v. Simington, 37 O. S. 484.
And to charge one who has signed a bond or written undertaking,
it is not necessary that his name should appear in the body of the in-
strument. Partridge v. Jones, 38 O. S. 375.
For this reason, such blank may be filled by a third person, in the
absence of the obligor and without his authority, by the insertion of
his name in the body of the instrument, because it is immaterial. No
material portion of the obligation can be added, or erased after execu-
tion, by the obligee, except to insert the amount. If this be done, the
obligor may plead that the paper is not his writing obligatory. The
term "execution" when applied to a bond or deed includes the de-
livery of it, though the words " executed and delivered" are often em-
ployed.
Deeds and mortgages require to be signed by the grantor, witnessed
by two witnesses, and acknowledged before a proper officer by him.
For this reason no material alteration can be made in the instrument
after it is signed, witnessed, and acknowledged, as by inserting the
name of the grantee, or the description of the lands, or any other
thing essential to render it complete and fulfill the intentions of the
parties, as it requires to be witnessed and acknowledged.
Form of oath. SEC. 4950. A person may be sworn in any form he
deems binding on his conscience.
Justification of sureties. SEC. 4952. A court or an officer, authorized
by law to approve a surety, may require such person to testify, orally
or in writing, touching his sufficiency ; but this shall not, in itself,
exonerate the officer in an action for taking insufficient surety.
Wlw qualified to become sureties. SEC. 4953. Sureties must be resi-
dents of this state, and worth, in the aggregate, double the sum to be
DIFEM'AM S l.hM.NSK lu AN ACTIuN. _ - 1
secured, beyond the amount of their debts, and have property liable
to execution in this state equal to the sum to be secured.
(a) If a non-resident of the state is accepted as surety, he will be
liable. Wallace v. Scohs, 6 O. 428.
I'icfr of deputies. SEC. 4949. A duty enjoined by statute upon a
ministerial officer, and an act permitted to be done by him, may be
performed by his lawful deputy.
Xote. This would seem to be limited within the circle of official ministerial
duties, and would not authorize an act to be done by deputy which the law re-
quires to be performed by the officer in person, as in the case of selecting names
for a struck jury, by the clerk, county auditor, and recorder. Sup n g 5185.
(a) Deputy sheriff may execute a valid deed for lands sold on exe-
cution by himself or principal. Haine* v. Lindsey, 4 O. 88.
Must execute it in the name of his principal, as, "A. B., sheriff of
county, by C. D., deputy." Anderton v. Brown, 9 O. 151.
Query: If the present statute, section 4110, in relation to executing
and acknowledging deeds by attorneys in fact, does not change the
common-law rule in the case of deeds executed by a deputy sheriff.
(6) But the acknowledgment of such deed by a deputy after the
death of the sheriff is void. Id.
(e) Sale, upon order for sale under a decree in chancery, could be
made by a deputy sheriff. Craig v. Fox, 16 O. 563.
(d) Process tested by deputy clerk in his own name as deputy, with-
out using the name of the clerk, is good. Chapin v. Allison, 15 O.
566 ; Walke v. Bank of CircleviUe, 15 O. 288.
(e) Deputy clerk of Probate Court has authority to administer
oaths. Warwick v. State, 25 O. S. 21.
COMPUTATION OF TIME.
Hoic time romputfd. SEC. 4951. Unless otherwise specially pro-
vided, the time within which an act is required by (statute or by the
>mmon) law to be done, shall be computed by cxdwliny the first day
ami ini-ltcliiKj the lu.-t : and if the last !>< Sunday, it shall be excluded.
(a) This section of the Code appears to have been overlooked ly
the Supreme Court in .I/feme v. J/cCty, 17 O. S. 225. The Code re-
quired a summons to be served before tin- return day ( 5042). In
that case, the service* WM 0* the second Monday, and the court held
such service to be voidable only, nt void; and mi new summons and
service, after the periid of the statute of limitations had elapsed, the
judgment was sustained The last day for the service l>eing Sunday,
282 CODE PRACTICE AND PRECEDENTS.
the service on the next day, Monday, would seem to have been
valid.
(6) In relation to commercial paper, and the three days of grace al-
lowed thereon, the law specially provides otherwise. If the last day
of grace falls on Sunday, there are but two days of grace, in fact, the
last day being Saturday. Sup., 3176. And see when holiday falls
on Monday, but one day of grace. Sup., 3177.
(c) This section of the Code of 1853 was not applicable to the jus-
tice's code. McLees v. Morrison, 29 O. S. 155.
(d) An act to be done within six mouths may not be compelled to
be performed before the last day. Wright v. Lepper, 2 O. 297, 299.
And it is a sufficient compliance with a statute requiring depositions
to be recorded " within sixty days," if the same is done on the sixtieth
day from taking. Myers v. Anderson, Wright, 513. Service of sum-
mons in forcible entry and detainer on the sixth day of a month, re-
turnable on the ninth, is good service, three days' service before the
trial being required. Barto v. Abbe, 16 O. 408.
(e) Fractions of a day are considered in reckoning the duration of
a lien of a chattel mortgage. Seaman v. Eager, 16 O. S. 209.
(/) When the year expires on Sunday, such Sunday is not excluded
in computing the thirty days preceding the expiration of the year:
Paine v. Mason, 7 O. S. 198. And when a given number of days are
prescribed for the doing of any thing, and the last day is not a Sun-
day, all the Sundays are included in the computation.
(gr) In computing time to advertise notice of sale on execution, the
day on which the notice is first published may be included, and the
day of sale must be excluded. Section 4951 does not apply in such
case. Mercer v. Con. B. & S. Assn., 25 O. S. 186.
(h) The date of an instrument is not conclusive in computing time.
Serviss v. Stockstill, 30 O. S. 418.
When publication may be made in another county. SEC. 4955. When
it is provided by statute that a notice shall be published in a news-
paper, and no such paper is published in the county or other place
mentioned; or, if such paper is published there, and the publisher re-
fuse, on tender of his usual charge for a similar notice, to insert the same
in his newspaper, then a publication in a newspaper of general circu-
lation in the county or other place mentioned shall be sufficient.
STYLE OF PROCESS.
Concerning process and seal affixed thereto. SEC. 4954. Process shall
be under the seal of the court from which it issues, be styled " The
DRFEM\\r's DKKKN<K T' \V ACTION. 283
State of Ohio, County," to be signed by the clerk, and bear date
the day it is actually issued.
.Vote. See Constitution, art. 4. sec. 20; N/> , p. '_', sec. 16; also st><
DUTIES OF THE CLERK.
>7 >'/>., p. 326.) The clerk of the Court of Common
-hall keep at least five bonks, to be called the appearance docket,
trial docket, jnirnal, record, and execution docket, and an index to the
trial d.H-ket and journal direct, and to the appearance docket, record,
and execution dtx-ket, direct and reverse.
Entries on appearance docket and their effect. SEC. 4958. The clerk shall
enter <>n the appearance docket, at the time of the commencement of an
action or proceeding, the names of the parties in full, with names
of counsel, ami forthwith index the case, direct and reverse, in the
name of each plaintiff and defendant ; he shall also enter at the time
it occurs, under the case so docketed, the issue of the summons, or
other raesne process or order, and the filing of each paj>er; and he shall
record in full the return on such writ or order, with the date of its re-
turn to the court, which entry shall be evidence of such service.
The trial docket. SEC. 5132. The clerk shall make a trial docket
at lca-t f'l-flve days before tlie first day of each term, and the cases shall
be set for particular days, in the order in which they stand on the appear-
ance diH-ket ; a cast; in all its stages in the same court, and upon every
t or hok. and all papers filed or issued therein, shall bear the
ap|>aruncc docket number; but the clerk shall not place upon the
trial docket any case in which qothing remains to be done, except to
execute an order for the sale of real or personal property, and to
distribute the proceeds as directed by the order; and if it In-come
necessary, the case may be redocketed, on the application of either
party, whereupon it shall stand in all respects as if it had remained on
the docket.
The court calendar* provided for the several judges holding liu< Court
of Common Pletu and Superior Court or Cincinnati, in Hamilton i-ounty, ur
not the trial dockets provided for in the foregoing section. No such dorkt-t i->
used in those courts in the disposition of the legal business before them. Cases,
wii.-n at issue, am set for trial on the application of the parties, as directed by
irt, and motions and demurrers are beard ami disposed of before a ju'L"-
not trying jury causes. The clerk also makes a copy of the trial docket tor the
use of the. bar before the flnt day of the term. { 6186.
(a) A court does not lose jurisdiction of a cause trom the fact that
for several years it has been omitted from the docket by the clerk
Farmer 1 , College v. Gary, 35 O. 8. 648.
284 CODE PRACTICE AND PRECEDENTS.
To keep books and make entries. SEC. 4962. The clerk shall keep the
journals, records, books, and papers appertaining to the court, and
record its proceedings.
Record of orders made out of court. SEC. 4963. Orders made out of
court shall be forthwith entered by him in the journal of the court, in
the same manner as orders made in term.
(a) The clerk should minute on the journal the receipt of a man-
date from the Supreme Court, and its judgment and order for execu-
tion. Earl v. Shoulder, 6 O. 409 ; Chase v. Washburn, 2 O. S. 98.
(6) The journals and dockets are not complete records, but material
from which the complete record is made. Harvey v. Brown, 1 O. 268.
When record considered as made, see Young v. Buckingham, 5 O. 485,
488. Journal entry of consent to reference of cause to referee or
master, section 5210; of verdict of jury, 5201 ; of judgment, 5331;
of allowance of writ of mandamus, 6740 ; of claims for improvement
by occupying claimant, 5788 ; when to be kept open for entry of the
taking of a bill of exceptions, 5302, also section 5331.
Wlud must go into the complete record. SEC. 5334. The record shall
be made up from the petition, the process, the return, pleadings sub-
sequent thereto, reports, verdicts, orders, judgments, and all mate-
rial acts and proceedings of the court ; but if the items of an account,
or the copies of papers attached to the pleadings, are voluminous, the
court may order the record to be made by abbreviating the same, or
inserting a pertinent description thereof, or by omitting them entirely ;
and evidence must not be recorded.
AWe. See sections 5332, 5333, 5335, 5336, 5337, 5338, 5339.
The clerk is required, immediately upon the return thereof, to record
at length in the execution docket the officer's proceedings upon an
execution, or order of sale, or other final process. 5395.
Writs to issue only on precipe. SEC. 4959. All writs and orders for
provisional remedies, and process of every kind, shall be issued by the
clerks of the several courts ; but before they are issued a precipe shall
be filed with the clerk demanding the same.
(a) The clerk is not, bound to issue process without a written pre-
cipe. State v. (jaffee 6 O. 150.
Clerk to file and preserve papers. SEC. 4960. The clerk shall file to-
gether, and carefully preserve in his office, all papers delivered to him
for that purpose, in every action or proceeding.
DEPENDANT'S DEFENSE TO AX ACII\. 285
Clerk's indorsement of paper* filed. SEC. 4961. The clerk shall indorse
upon even' JUJMT filed with him tin- date of the filing thereof; and upon
.nlt-r tor a provisional remedy, and upon every* undertaking
given under tin- same, the date of its return to his offier.
(a) When :i paper is in good faith delivered to the proper officer to
U> Hied, and by him received to be kept in its proper place in his office,
r is /!/''/. The indorsement upon it by such officer of the fact and
date of tiling is but evidence of such filing. King v. Penn, 43 O. S.
.">7. Ami a paper placed in the clerk's office, either strung upon a thread,
r laid in a drawer or pigeon-hole, considered filed. Hainesv. Lindsey,
4 O. 88. The ordinary evidence that a paper has been filed is the
1. rk's indorsement upon the back of it. Ib.
Applicable to all clerks. SEC. 4964. The provisions prescribing the
duties of clerks of the Court of Common Pleas shall, so far as they are
applicable, apply to the clerks of other courts of record.
(a) It is the uniform practice for the clerk of the Supreme Court of
the state to enter mandates from the Supreme Court of the United
States. Plfjun Bank v. Knouj*, 6 O. S. 342.
Clerk under tiie direction of hi* court. SEC. 4965. The clerk of each of
the courts shall exercise the powers conferred and perform the duties en-
joined upon him by statute and by the common law ; and in the per-
formance of his duties he shall be under the direction of his court.
(a) The court may direct the clerk to correct errors in or alterations
and mutilations of files or records. Hollister v. Judge*, etc., 8 O. S.
801.
THE SHERIFF.
T<> indorte on writ time of it* receijit. SEC. 4966. The sheriff shall
indorse upon every writ or order the day and hour it was received by
him.
IPhen proce** directed to coroner or other person. SEC. 4967. Process
in an action wherein the sheriff is a party, or is interested, shall be
directed to the coroner; and if both these officers are interested, the
process shall be directed to, and executed by, a person appointed by
the court or judge.
Note. The form of appointment my be as follows :
:
286 CODE PRACTICE AND PRECEDENTS.
[Form 227. 4967.]
Court of Common Pleas of - County, Ohio.
John Doe, Plaintiff, ~\
Johr7sLth, John Jones, and | Order Appointing - - to Serve Process.
Hugh Evans, Defendants. J
In this case, it having been made satisfactorily to appear to me that
, sheriff, and -, coroner, of said county, are both interested in this
action, is hereby appointed to serve process of summons upon the
said defendants, and all other process and orders the same as said sheriff
or coroner could or ought to do were they not disqualified.
This . day of , A. D. 18.
, Judge of said Court of Common Pleas.
Note. The return of such process must be verified by the affidavit of the per-
son so appointed and executing it.
When for good cause a person may be appointed to serve particular pro-
cess. SEC. 4968. The court or judge may, for good cause, appoint a
person to serve a particular process or order, who shall have the same
power to execute it which the sheriff has; the person maybe appointed
on the motion of the party who obtains the process or order, and the
return must be verified by affidavit ; and he shall be entitled to the
fees allowed to the sheriff for similar services.
Note. The form of such appointment can be easily drawn from No. 227.
(a) The court may appoint a special master commissioner to sell
specific real property. Mayer v. Wick, -15 0. S. 548. See, specially,
section 5399, Sup., p. 352, for limitation on this power to appoint a
master to execute orders of sale of real property. The power of a
sheriff as master commissioner ceases with his term of office. McGuire
v. Ely, Wright, 520.
General duties of sheriff. SEC. 4970. The sheriff shall execute every
summons, order, or other process, return the same as required by law,
and exercise the powers conferred and perform the duties enjoined
upon him by statute and by the common law.
(a) An officer may not examine into the regularity of the proceed-
ings of the court whose process he executes. Taylor v. Alexander, 6
O. 144.
(6) An officer is not bound to execute a nugatory writ that is, a
writ void upon its face. Bool v. King, 6 O. 11. Procees is no pro-
tection to an officer, if it appears on its face that the court issuing it
DEFENDANT'S DEFKNSK TO AS ACTION. . 287
had not jurisdiction of the subject-matter or of the person against
whom it is lirvted. Chani]*ii>in Il<nil: v. Smith, 1 O. S. 4'-'.
(c) Win 11 no want of jurisdiction appears on its face, the officer is
jusiinVd. rjen v. Stoutfiiburyh, 1 O. (2 pt) 133. But the rule is
one of protection only; and although he may execute the process, he
may also, if it is void for want of jurisdiction in the court or officer
isMiini: it, refuse to execute it, and no action will lie against him for
p-i'tisal. Xewburg v. Mitnxhotcer, 29 O. S. 617.
A ministerial officer who makes an arrest in another state vio-
lates public and private right, and is entitled 'to no fees. Smith v.
Portage, 9 O. 25.
(e) A sheriff who, as such, arrests a fugitive from justice, can not
claim a reward offered for such arrest. Gilmore v. Leieu, 12 O. 281.
Sheriff may adjourn court from day to day, ij judges absent. SEC.
. p. 326). If the judge of the Common Pleas Court, or a quorum
of the judges of the Circuit Court, fail to attend at the time and
place appointed for holding the court, or if, after the calling of the
court, the judge of the Common Pleas Court or a quorum of the judge*
of the Circuit Court are unable, on account of sickness, or from any
other cause, to attend the daily sessions thereof, the sheriff shall ad
journ the court from day to day, until the judge of the Common Plea
Court attends or a quorum of the Circuit Court is convened ; but if
the judge or judges be not present within three days after the first day
of the term, or if, after the court is called, such judge or judges arc
unable, on account of sickness, or from any other cause, to be present
for ten days, the court shall stand adjourned for the term.
.
288 CODE PRACTICE AND PRECEDENTS.
CHAPTER XXIII.
ACTION.
But one form of action. SEC. 4971. There shall be but one form of
action, which shall be known as a civil action.
(a) Previous to this revision, which took effect July 1, 1880, the
term " civil action " embraced only such cases as were, before the Code
of July 1, 1853, known as "actions at law" and " suits in equity."
Barger v. Cochran, 15 O. 8. 460; Chinn v. Trustees, 32 O. S. 236. It
did not embrace proceedings in mandamus. Ib.
Note. It may be said that it did not embrace habeas corpus, quo warranto,
procedendo, nor what were termed special statutory proceedings, such as statu-
tory partition, dower, divorce, alimony, etc.
(6) In what sense the distinction between actions at law and suits in
equity is abolished, see Clayton v. Freet, 10 O. S. 544 ; Goble v. How-
ard, 12 O. S. 165, 168; Mack v. Banner, 3 O. S. 366. Rights and
liabilities, legal and equitable, as distinguished from mode of proce-
dure, are unaffected. Dixon v. Caldwelll, 15 O. S. 412, 415.
(c) When the facts entitle a party to relief, the mere form of the
action is disregarded. Neilson v. Fry, 16 O. S. 552, 556 ; Jones v.
Timmons, 21 O. S. 596, 603. The court is to be regarded as a court of
law or equity, and the petition a declaration or a bill in chancery, ac-
cording to the nature of the" case. Hager v. Reed, 11 O. S. 626, 635.
(d) A leading object of the Code is to avoid circuity and multiplic-
ity of suits. Morgan v. Spangler, 20 0. S. 38, 54 ; Penn v. Say-
ward, 14 O. S. 302, 306.
How parties designated. SEC. 4972. In such action, the party com-
plaining shall be known as the plaintiff, and the adverse party as the
defendant.
No feigned issues, substitute tJierefor. SEC. 4973. There can be 110
feigned issue ; but a question of fact, not put in issue "by the pleadings,
may be tried by a jury, upon an order for the trial stating the question
of fact to be tried ; and such order shall be the only authority neces-
sary for a trial ; or such question may be referred in the same way to
one or more persons.
ACTION. 289
Note. "Feigned issue" is defined: "An issue brought by consent of the
partial, or by the direction of a court of equity, or of such courts as possess
equity powers, to determine before a jury some disputed matter of fact, which
the court has not the puwer or u unwilling to decide." 3 Blackstone's Comm.
And, in contesting the validity of will*, the pleadings seem to be no more
thnn advisory of the nature of the evidence that will be adduced, except so far
as they may present a general issue, "whether the writing produced is the last
will (or codicil) of the testator, or not; " and this issue can only be tried and
; ni'd by a jury not by the court, even by consent of all the parties. See
section 6861.
Courts may also require the jury, with their verdict, to find, in writing, upon
particular questions of fact, to be stated in writing. } 6201. They may also
try agreed cases. The case, the submission, and the judgment will constitute
the record, ft 6207, 6208, 5209.
(a) In a proceeding to contest the validity of a will, an issue must
be made up, " whether the writing produced be the last will of the
testator, or not" Brown v. Griffiths, 11 O. S. 329. In a contested
will case final judgment can not be rendered on demurrer to an answer.
An issue must be made up to be tried by a jury. Walker v. Walker,
14 O. 8. 157; and see Holt v. Lamb, 17 O. 8. 374.
WHO MUST SUE.
General rule as to plaintiff. SEC. 4993. An action must be prosecuted
the name of the real party in interest, except as provided in sections
4 and 4995 ; but when a party asks that he may recover by vir-
of an assignment, the right of set-off, counterclaim, and defense, as
allowed by law, shall not be impaired.
Note. Tho bonafide indorsee, for value, of negotiable paper, as a promissory
note, payablu to a person, or order, or bearer, and by the payee indorsed, before
due to such holder, or delivered to him, if payable to bearer, fur value, holds
such commercial paper discharged of all rightof set-off, counterclaim, or equities
the maker may have against the payee, who so indorsed the same (section 8174).
But if such paper, in form, be void for a gaming consideration, it can not be to
indorsed and give the holder a right of action upon it in Ohio (section 4269).
Nor, if such paper is indorsed merely as collateral security for a pre-existing
debt, without any new consideration, will the right of set-off, etc., of the maker
against the payee bo taken away in this state. Roxburougk v. Meuick, O.
8. 448.
(a) The assignee of an account, or other mere chose in action, may
sue upon it in his own name, the legal as well as the equitable title be-
ing vested in him by the assignment ; and the assignor is not a proper
19
290 CODE PRACTICE AND PRECEDENTS.
party to the action, if lie has parted with all his interest in the thing
assigned. Allen v. Miller, 11 O. S. 374. And the law is that a chose
in action can be assigned without writing.
(6) An individual cau maintain an action against a township.
Harding v. New Haven Tp., 3 O. 227. But not against the board of
commissioners of a county, except as provided in section 845. Com-
missioners, etc., v. Mighels, 7 O. S. 109, overruling Com'rs, etc., v. Butt,
2 0. 348; Grimwood v. Com'rs, etc., 23 O. S. 600. Nor can they be
held personally responsible, where they act in an official capacity in
good faith and in the honest discharge of official duty. TJiomas v.
Wilton, 40 O. S. 516.
But the right of county commissioners to sue is not limited to the
cases enumerated in sections 845 and 863. Com'rs v. Noyes, 35 O. S.
201 ; ShanJdin v. Com'rs, 21 O. S. 575.
(c) An agent holding the legal title can only sue in his own name
when such agency is coupled with an interest in the subject-matter of
the suit. White v. Stanley, 29 O. S. 423. And creditors of the as-
signor are not proper parties to a suit on a note assigned for the benefit
of creditors. Allen v. Medill, 14 O. 445.
Plaintiff in suit on a bond. SEC. 4994. The rule prescribed in the
preceding section may be so applied, when a person forfeits his bond,
or renders his sureties liable, that any person injured thereby, or who
is by law entitled to the benefit of the security, may bring an action
thereon, in his own name, against the person and his sureties, to re-
cover the amount to which he is entitled by reason of the delinquency,
which action may be prosecuted on a certified copy of the bond ; and
the custodian of the bond shall deliver such copy to any person claim-
ing to be so injured, on tender of the proper fee; but the provisions
of this section as to the form of the action shall not be imperative, if
provision is otherwise made by law ; nor shall a judgment for one de-
linquency preclude the same or another party from an action on the
same instrument for another delinquency.
Note. Official bonds are given to the State of Ohio, and when the recovery
for the breach of such bond would not belong to any individual or persons, but
to the public, as defaults by county treasurers, or clerks, in not accounting for
public moneys, suits upon such bonds must be brought in the name of the state;
and to specify that it is brought/or the use of any counly, etc., is not necessary,
but surplusage. State v. Coffee, 6 O. 150; State v. Piatt, 15 O. 15; Hunter v.
Mercer Co., 10 O. S. 615; Kelley v. State, 25 O. S. 567; id. 32 O. S. 421.
But, when the breach of such bond affects only the interests of a private per-
son, as the failure of a sheriff, or clerk, to pay, on demand, money due from
ACTION*. 291
tBcially, to uch party, the latter may BUG the official bond for iU reoor-
nouzh the state is the obligee named in the bond.
l-a-nulrner v. Andmon, 16 <X S. 478, wa a cae of this kind. State Y. Orr,
16 (). S. 522; and, for the ducuuion of the right, see Cbm'ra T. Noyex, 86 O.
In an action against the surviving obligors of an official lx>nd,
the personal representatives of the principal are not necessary parties.
v Claylor, 25 O. 8. 620.
to the plaintiff", in legal contemplation for the purposes of suing,
MI r -lies are principals. Common-law precedents in pleading make no
distinction between principals and sureties, but deal with all in the
character of principals.
(6) The seizure of the goods of A. under color of process against B.,
i> a breach of an official bond for which an action will lie against the
officer and his sureties. State v. Jennings, 4 O. S. 418.
executor, trustee, etc., may sue. SEC. 4995. An executor, ad-
mini.-trator, or guardian, a trustee of an express trust, a person with
whom, or in whose name, a contract is made for the benefit of another,
or a IHTSOU expressly authorized by statute, may bring an notion \vith-
out j liningwith him the person for whose benefit it is prosecuted; and
iay sue and be sued in such name as is authorized by law.
When a promise is made for the benefit of another, he for whose
benefit it is made may bring an action for its breach, either in his own
name, or in the name of the party to whom the same was made.
Mill'-r v. Florer, 15 O. S. 148, 151 ; Thompson v. Thompson, 4 O. 8.
Davis v. Harness, 38 O. S. 397.
And this is so though the instrument be under seal, and the bene-
ficiary not named therein. Emmitt \. Brophy, 42 O. S. 82.
married woman to sue and be sued. SEC. 499G (Sup., p. 329). A
married woman shall sue and be sued as if she were unmarried, and
her husband shall IK- joined with her only when the cause of action
is in favor of or against both her and her husband. (March 20, 1884,
81 v.
(a) When the action is for wrongful act of the wife, she can only
rely on the defense of coercion by her husband when pleaded by her.
dark v. Bayer, 32 O. 8. 299. And, since the act of 1861 (58 v. B 1
the separate estate act, or Key law), debts due to a woman are extin-
guished by her intermarriage with the debtor. Smiley v. Smiley, 18
O. 8.
(6) The defect in a petition filed by husband and wift showing no
292 CODE PRACTICE AND PRECEDENTS.
cause of action belonging to them jointly, may be taken advantage of
by demurrer. Bartges v. O'Neill, 13 O. S. 72.
(c) Where a husband borrows money from his wife, she may enforce
its payment against his administrator. Huber v. Huber, 10 O. 371.
Judgment against a married woman. SEC. 5319 (Sup., p. 346). When
a married woman sues, or is sued, like proceedings shall be had, and
judgment rendered and enforced, as if she were unmarried, and her
property and estate shall be liable for the judgment against her ; but
she shall be entitled to the benefits of all exemptions to heads of fam-
ilies. (March 20, 1884; 81 v. 65.)
(a) If, in cases in which coverture would be a good defense to an
action brought against a woman in fact married, the pleadings are all
silent as to the fact of her marriage, a judgment rendered against her
is not void, but merely voidable by her. The mode of reversing such
judgment is by petition in error, alleging error in fact, in the court
which rendered the judgment. Such a judgment is not void, but only
voidable. McCurdyv. Baughman, 43 O. S. 79; Callen v. Ellison, 13-
O. S. 446. And when it does not appear that she was a married woman,
the judgment will not be enjoined unless fraud or coercion be shown.
McCurdy v. Baughman, 43 O. S. 79.
(6) In an action against a married woman upon her obligation in
writing, to pay for services rendered, or money advanced for the benefit
of her separate estate, it is not error to render a personal judgment
against her, under 71 v. 47, section 28. Patrick v. Ldttell, 36 O. S. 79.
(c) The amendments (81 v. 65, 209) to sections 4996, 5319, and
3108-3112 have no effect upon causes of action accruing before their
passage. Elliott v. Lawlwad, 43 O. S. 172.
Separate property of a married woman. SEC. 3108 (Sup., p. 201). Any
estate or interest, legal or equitable, in real or personal property, in-
cluding rights in action, belonging to a woman at her marriage, or
which may come to her during coverture, by conveyance, gift, devise,
or inheritance, or by purchase with her separate money or means, or
due as the wages of her personal labor, or growing out of any violation
of her personal rights, shall, together with the rents, income, issues
and profits thereof, be and remain her separate property. And she
may, without the consent of her husband, lease her real estate for any
period not exceeding three years. This section shall not affect the
estate by the curtesy of a husband in the real property of his wife
after her decease ; but during the life of such wife, or any heir of her
body, such estate shall not be taken by any process of law for the pay-
ACTION. 293
ment of his debts, or be conveyed or iucumbered by him, unless she
join therein with him in the manner prescribed by law in regard to
at. . , April 14, 1884; 81 v. 209; April 16, 1885; 82 v. 131.)
// / M tparate property under her golf control Power to contract. SEC.
9up., p. 201). The serrate property of the wife shall be under
her sole control, and shall not be taken by any process of law for the
of tii- husband, or be iu any manner conveyed or incumbered
l>v him, and she may, in her own name, during coverture, contract to
.Line extent and in the same manner as if she were unmarried.
April 14, 1884; 81 v. 209.)
H'lJiand not liable for contracts or torts of his wife, except, etc. SEC.
.'11 10 (Sj>., p. 202). The husband shall not be liable upon any cause of
Action existing against the wife at their marriage, nor for a tort com-
mitted by her during coverture, nor upon any contract made by her,
;>t to the extent of any separate property of the wife acquired by
i. in under an ante-nuptial contract, or otherwise. (April 14, 1884;
>1 v. -J09.)
H'/iot married tcoinan luu poive.r of hccul of family and may convey prop-
rrty as feme-sole. SEC. 3111 (Sup., p. 202). A married woman whose
lui>ituud deserts her, or from intemperance or other cuu^e neglects to
provide for his family, may, in her own name, make contracts for the
labor of her minor children, and in her own name sue for and collect
their earnings ; and she may file a petition against her husband, in the
Common Pleas Court of the county in which she resides, al'iging such
desertion or neglect, and upon proof thereof the court may enter a
judgment vesting her with the rights, privileges and liabilities of a
head of a family, as to the care, custody and control of her minor
children, and with all the powers of a feme-sole &a to disposing of her
real property, free from the curtesy of her husband. (April 14, 1884 ;
81 v. 209.)
Construction of sections 3108, 3109. SEC. 3112 (.Sup., p. 202). The
provM'-in of sections 3108 and 3109 shall not uttectauy of theprovis-
i'>n- of sections 4106, 4107, 4108 (,*clating to conveyances of real estate,
or it* incumbrance), and 4176 (curtety ami dower), nor any right which
vested prior to May 1, 1861 (the time of the taking effect of the Key act).
>il 14, 1884; 81 v. 209.)
1. In relation to her separate property and estate, a married woman may
now contract aa if she were a feme-sole. Such contract nevd not be in writing
(Elliott v. LnwHfad, 43 O. 8. 171), unless required by the statute of fraud*.
'2. By bond, bill of exchange, or promissory note, the inn v charge her separate
state as surety for her husband or a stranger. The intention no to charge her
teparate property need not be expressed in the writing, but is esr >lished by the
294 CODE PRACTICE AND PRECEDENTS.
fact of her signing it; and she can not he permitted to testify that she did not
so intend. Williams v. Urmston, 35 O. S. 296; Avery v. Van Sickle, ib. 270.
3. Whether her separate estate and property will be charged by her general
contracts, made by her as a general contractor or trader, without she expressly
undertakes so to bind it, or whether her intention to do so will be inferred from
the fact alone of making such general contracts, has not been decided by the
Supreme Court since the recent legislation above given. For example: If a
married woman, possessing separate estate, should contract to purchase any
commodity, and refuse to perform her contract, can her separate estate he
charged with the amount of the damages resulting from her breach of contract;
or if she join in a warranty of title, with her husband, in a deed conveying his
lands, and the covenant be broken, can her separate property be charged for
the damages resulting from such breach of her warranty? Such warranties are
joint, and query, if not construed to be the husband's alone? At least she must
have separate property to be liable for her general contracts, as a married
woman is not made sui juris, as & feme-sole. To understand the state of the law
and its changes, as construed by the Supreme Court, see the cases referred to
l>y Mr "Williams, in his note to the Kevised Statutes under sections 4996, 5319,
3108, 3109, 3110, 3111. Rights acquired and liabilities imposed can not be
affected by subsequent legislation, as retroactive laws can not be passed; that
is, if a right or liability was not created at the time, subsequent legislation can
not make of such past transaction a right or liability. Mere remedial laws may
change or give different remedies for prior existing obligations, duties, or prop-
erty interests. The wife can not bind her general estate by her contracts.
Logan v. Thrift, 20 O. S. 62.
In actions where the married woman is not personally liable, but which ar&
brought to charge her separate estate, the petition must state the facts from
which the right so to charge such property grows, and identify the separate
property by sufficiently describing it, and ask to charge the same for the amount
claimed, and no personal judgment should be prayed for against her, as a per-
sonal judgment can not be rendered against her in such case.
If a married woman makes any contract of the kind secondly and thirdly
above mentioned, and has, at he time, no separate estate or property, and after-
ward acquires such, it can not bo charged therefor, nor is she personally liable.
Fullis v. Keys, 35 O. S. 265. But if she, having no separate estate, should con-
tract a liability to procure such estate, and by such means obtain it, it would
seem to be chargeable therewith. Patrick \. Littell, 36 O. S. 79.
(a) A justice of the peace has no jurisdiction in an action to charge
the separate property of a married woman, as he has no chancery ju-
risdiction, at least none except when the entire relief consists of a
personal judgment for money only. Allison v. Porter, 29 O. S. 136 ;
Levi v. Earl, 30 0. S. 147, and Rice v. Railroad Co., id. 380, .over-
ruled by Williams v. Urmston, 35 O. S. 296.
Right of ivife to defend. SEC. 4997. When husband and wife are
ACTION.
sued together, the wife may defend fur her own right ; and if the hus-
band neglect t<> defend, she may also dt-tci.d lor his right.
(a) This section is not applicable to actions upainst husband and
wife in which the trial and judgment must be joint. Coolidge v. Par-
lit, 8 O. S. 594.
(6) Where husband and wile are sued for alleged trespasses by the
wife on :i private alley in which the wife in her own right claims an
ease nunl and a right of use appurtenant to a lot owned by her, and
the <-:i-- be in default for answer by the husband, the wife may make
a separate defense without prejudice from her husband's default, and,
if the defenso is good, it is complete as to both. Lowe v. Redgate, 42
O. S. 329.
How insane person and infant may sue. SEC. 4998. The action of an
insane person must be brought by his guardian ; the action of an in-
fant must be brought by his guardian or next friend ; and when the
action is brought by his next friend, the court may dismiss it, if it is
not for the beneGt of the infant, or substitute the guardian, or any per-
son, as the next friend.
(a) Minority is a fact which should be distinctly averred ; and
where the record does not show the minority, the court will presume
tin* plaintiff to be of age, and may reject the curator-ship as surplusage.
Jl'inly v. Levin, 5 O. 227.
(6) The disability of infancy of a female is removed at the age of
eighteen. Slater \. Cave, 3 O. S. 80. But until the act of February
17, 1834 (32 v. 10), a female did not reach majority until the age of
twenty-one years. Mcdintick v. Chamberlain, W. 547.
Next friend liable for cost*. SEC. 4999. The next friend shall be
liable for the costs of the action brought by him, and, when the next
friend is insolvent, the court may, on motion, require security there-
for.
.One reason Tor requiring an infant, who has no guardian, to prosecute
an action by next friend is to have a responsible party for the cost* that the de-
fendant may incur. As for the costs made by a plaintiff, the officers may re-
quire their payment as they are about to be incurred.
// ' inmne perton to defend* SBC. 5000. The defense of an insane
. must be by his legally appointed guardian, or, if there is no
guardian, or the guardian has an adverse interest, by a tnulee for the
uit, appointed by the court; and if the insanity of a party be dis-
, or he become insane, after the action is brought, it shall be
296 CODE PRACTICE AND PRECEDENTS.
thereafter prosecuted or defended by his guardian, or his trustee ap-
pointed as provided in this section.
(a) Prior to the adoption of the act from which this section is
taken, the court could appoint a guardian ad litem (for the suit) to
defend the suit for a lunatic non-resident, brought into the court by
publication ; and no decree could be taken against him without an
answer from his guardian ad litem. Sturges v. Longworth, 1 O. S. 545.
The terms " trustee for the suit " and guardian ad litem seem to be
of the same import, a mere change of phraseology.
Duties of guardian ad litem, and compensation. SEC. 5001. The court
shall require a guardian ad litem, or a trustee appointed under the pre-
ceding section, faithfully to discharge his duty, and, upon his failure
so to do, may remove him, and appoint another in his stead ; and the
court may fix a compensation for his services, which shall be taxed
in the costs against the minor or insane person.
How insanity of a party determined. SEC. 5002. When the in-
sanity of a person is not manifest to the court, and the fact of insanity
is disputed by a party or an attorney in the action, the court may try
the question, or impanel a jury to try the same.
Guardian for the suit for infant defendant. SEC. 5003. The defense of
an infant must be by a guardian for the suit, who may be appointed
by the court in which the action is prosecuted, or by a judge thereof,
or by a probate judge.
(a) It is the duty of the guardian ad litem to make for the infant
a proper defense, and for that purpose to bring the rights of his ward
under the consideration of the court for decision. Lang v. Mulford,
17 O. S. 484, 503.
The guardian ad litem must deny in his answer on- behalf of such
party all the facts alleged against him, which answer is not required to
be made under oath. 5078, 5103. This will require the plaintiff
to make out his case by sufficient proof. Such guardian must have
notice of his appointment, and accept before he is held to be such.
(6) A decree against minor defendants, rendered upon the answer
of their guardian ad litem, may be impeached and reversed for fraud.
Massie v. Matthews, 12 O. 351.
(c) Under the act of 1858 (55 v. 54J, the guardian could appear
and defend for his ward as effectually as if he were appointed guardian
ad litem. Rankin v. Kemp, 21 O. S. 651.
How appointed. SEC. 5004. The appointment may be made upon the
application of the infant, if, being of the age of fourteen years, he ap-
ACTION. 297
ply within twenty days after the return of the summons, or service by
publication ; and in case of his being under said age, or of his neglect
so to apply, the appointment may be made on the application of the
plaintiff, or a friend of the infant; but the appointment can not be
made until after service of summons, or publication.
(a) The appointment of a guardian ad iitem for minor defendants,
who have not been served with process, the fact of the non^ervice appear-
fn// in the record, does not effect an appearance for them, nor give the
e-uirt jurisdiction over them; but if the record is silent as to service,
proper service will be presumed, because the court will be presumed to
have done its duty. Moore v. Stark*, 1 O. S. 369 ; Robb v. Irwin, 15
O. 689. And see cases referred to in Williams' notes to this section.
Joinder of plaintiff's. SEC. 5005. All persons having an interest in the
subject of the action, and in obtaining the relief demanded, may be
joined us plaintiffs, except as otherwise provided.
(a) Persons having distinct, separate, and independent claims, can
not be compelled to prosecute them iu a single action. Merrill v. fjoke,
16 O.
(/>) Several parties may join in an action to restrain an illegal as-
sessment. Glenn v. Waddle, 23 O. S. 605 , Upington v. Oviatt, 24 O.
8. 232.
) As a general rule joint creditors can not, by a division of their
claim between themselves, acquire separate rights of action against
their debtor. Upjohn v. Ewing, 2 O. S. 13.
(d) The assignor of a chose in action should, if made a party at
all. be made a plaintiff, in an action against the debtor by the assignee
upon such chose in action. Allen v. Miller, 11 O. S. 374, 'Ml. If the
assignor refuse to join as plaintiff in the action he may be made a de-
fendant. 5007.
(r) In the prosecution of a partnership claim, as a general rule, all
the partners are necessary parties. Uwleau v. Haiti, 20 O. 132. And
all parties having an interest, as attaching creditors, in the proceeds
of goods attached, may be joined as plaintiffs iu an action upon the
attachment undertaking, although not named as payees therein. Rut-
ledge v. Corbin, 10 O. 8. 478. But sheriff and attaching creditors can
not join in an action against a ntranger for conversion of attached
property. Shae/er v. Marienthal, 17 O. 8. 183. See section 6215.
Joinder of defendant*. SEC. 5006. Any person may be raadp a de-
fendant who has or claims an interest in the contnf rsy advene to
iav C
I"
298 CODE PRACTICE AND PRECEDENTS.
the plaintiff, or who is a necessary party to a complete determination
or settlement of a question involved therein.
(a) This section substantially adopts the rule in equity; and all
parties entitled to litigate the same questions over again in a new pro-
ceeding are, in general, necessary parties. Penn v. Hayward, 14 O.
S. 302, 306.
In equity proceedings all persons interested should be made parties,
and a decree can have no effect except upon parties and privies. Ir-
vin v. Smith, 17 O. 226, 239. A wife who has joined her husband in
the execution of a mortgage is a necessary party to a proceeding to
foreclose and sell. McArihur v. Franklin, 15 O. S. 485.
An absolute and unconditional assignor of a mortgage is not a neces-
sary party in a suit to foreclose it. Grant v. Ludlow, 8 O. S. 2.
Beneficiaries under a conveyance of land in trust for the benefit of
creditors are proper parties in an action by a prior mortgagee to fore-
close his mortgage. Union Bank v. Bell, 14 O. S. 200.
(6) It is not correct practice to make a sheriff or officer holding an
execution a party to a proceeding to enjoin its collection. It is the
execution plaintiff who should be enjoined, except as provided in sec-
tion 5015. Allen v. Medill, 14 O. 445.
The assignor of an account as collateral security to the assignee is
not, under this section, a necessary party 'to a suit brought against the
debtor by the assignee upon the account. Allen v. Miller, 11 O. S.
374, 377.
The assignor of a judgment is a necessary party in an action by the
assignee to subject equities to satisfy the judgment where the debtor
sets up subsequent indebtedness of the assignor. Gildersleeve v. Bur-
rows, 24 O. S. 204.
An attaching creditor is a proper party to a suit in replevin by a
mortgagee of personal property, against an officer holding the prop-
erty under legal process for the satisfaction of judgments. Morgan v.
Spangler, 20 O. S. 38.
A subsequent attaching creditor can not be made a party to the
action of the prior attaching creditor against the debtor, on the ground
of interest acquired by the levy of the attachment on the same prop-
erty. Harrison v. King, 9 O. S. 388 ; Ward v. Howard, 12 O. S. 158.
In an action by an attaching creditor of a firm against its assignee
to obtain the proceeds of goods, it is not necessary to make the part-
nership creditors parties. They and the assigning partners are legally
represented by the assignee of the partners. Holland v. Drake, 29 O.
S. 441.
The rre'lit^ra f a fir-n a-' 1 proper parties to an action by a retiring
ACTION. 299
member, on a bond taken from a partner conditioned to pay the part-
nership debt*. WU*oi\ v. StiUuxll, 9 O. S. 4i7.
In an action by the assignee of the right to commissions on renewals,
conveyed by the agent of an insurance company, the assignor i< a
necessary party. V. S. L. Ins. Co. v. Hedberg, 27 O. S. 393, 396.
Joint contractors must be sued together. McArthur v. Ladd, 5 O.
:>14.
In an action against the surviving obligors of a joint and several of-
ficial bond the personal representatives of the principal are not neces-
sary parties. Hunt v. (iaylor, 25 O. S. 620.
They are proper parties to an action on a joint obligation. Pugh. v.
HoUiday, 3 O. S. 284 ; Burgoyne v. 0. L. Ins. & T. Co., 5 O. S. 586.
Tenants in possession may be sued jointly in an action of trespass
roinmittrd l>y animals kept by them in common upon the premises,
although the several animals are owned by them separately. Jack v.
Ux.lnall, 25 O. S. 255.
In suits to enforce the individual liability of stockholders in a cor-
poration, beyond their tubacriptiong, any stockholder may insist that nil
st'K/kholders be made parties. Right v. AfcCormack, 17 O. S. 86;
l',,,.<ted v. Butkirk, 17 O. S. 113.
It is not proper, against the objection of plaintiff, to admit a new
party, in an action by the holder against the maker of a note, in o n-
test the plaintiff's title and assert an equity derived through plaintiff***
assignor, who would also be a necessary party. Such relief must be
sou-lit by original action. Hillier v. Stewart, 26 O. S. 652.
A person by filing an answer, with leave of the court, thereby be-
comes a party to the action. Rosenthal v. Sutton, 31 O. S. 406.
In an action by a surety against his co-surety, to establish si trust,
and compel the latter, from the proceeds of collaterals in his hands, to
reimburse him for money paid, the person to whom payment was made
is ot a necessary party to the action. Ib.
KoU. Partic*. plaintiff and defendant, may be clawed as " necessary parties,"
' proper parlies" and "permiuiblu parties." " Improper parties " can not be
c-lmwed as parties.
Arwory party When party refiue* to join a plaintiff, to be made a
i'lnt. SEC. 5007. Parties who are united in interest must !*
joined, as plaintiffs or defendants ; but if the consent of one who should
have been joined as plaintiff* can not be obtain. !. or, if he is insane,
and tjie consent of his guardian can not be obtained, or he has no
guardian, and that fact is stated in the petition, H may be made a
defendant. See section 5014.
'
CODE PRACTICE AND PRECEDENTS.
(a) Owners of distinct parts of a lot, held in severalty, could not
be joined as defendants in an action for dower in the lot. Hughes v.
Watson, 10 O. 127, 134.
A judgment against one of two partners, upon a joint promise, is n
bar to a subsequent action against both. Sloo v. Lea, 18 O. 279 ;
Aucker v. Adams, 23 O. S. 543; Reynolds v. By. Co., 29 O. S. 602;
Averyv. Vansickle, 35 O. S. 274; Yoho v. McGovern, 42 O. S. 14;
Bank v. Hart, 5 O. S. 34. But if all the joint contractors, and the
personal representatives of such of them as may be dead are joined
in the action, but one or more of them can not be served with process,
judgment can be rendered against such as are properly served with
process, and the others subsequently made parties to the judgment.
And if one die pending the action, it may proceed to judgment against
the survivor, his death being suggested on the record.
(6) Where it was sought to make one a party to a judgment
who was originally named as a party but not served, it was a good
defense to show that no judgment could have been rendered against
him if originally served. Clinton Bank, etc., v. Hart, 19 O. 372. In
this case, after judgment had been taken against one of several de-
fendants, another defendant obtained a judgment in his favor. The
remaining defendant whom it was sought to make a party to the judg-
ment in favor of the plaintiff was permitted to show that he was not
liable. At common law, when parties sued or were sued jointly, if all
the plaintiffs were not entitled to sue, or all the defendants were not
liable, the action failed, and the judgment was no bar to a subsequent
action by the proper parties against the proper defendants. This is
changed by the Code. If too many plaintiffs sue, or too many parties
are made defendants, the action fails only as to such plaintiffs as are
not entitled to recover, and the defendants not liable obtain judgment
in their favor, or their names will be stricken out by amendment.
5114.
(c) And a person properly made a defendant can not object that
others who are not proper parties are joined with him. Guthridge v.
Vanatta, 27 O. S. 366. 5013, 5054.
(d) In common-law precedents, partners sued and were sued jointly,
and the fact that they were partners was not stated ; such fact was but a
matter of evidence to prove that a joint action was proper ; nor is it
neceesary under the Code, when partners sue or are sued, personally, to
allege the partnership. The cause of action or the liability need only
to be stated in a joint form.
(e) At common, law too, the fact being stated in the plaintiffs declara
ACTION. 301
tion, if the joint contractor not joined be without the jurisdiction of the
court, the action could proceed against the one served ; and " the rule
is well established, that where one of several'joint contractors is without
the state, so that no service can be made upon him, judgment may be
rendered against such of them as are found within the jurisdiction, and
such judgment remaining unsatisfied is no bar to a subsequent suit
ami judgment against those not served upon the original cause of ac-
i ion." Yoho v. McGovern, 42 O. S. 15. This case is distinguished from
that of the Clinton Bank, etc., v. Hart, 19 O. 372 ; id. 13. 5054, 5366.
(/) If the action was upon a joint promissory note, and was brought
before the last day of grace, in an action subsequently brought against a
joint maker who was not served with a summons, being out of the
jurisdiction of the court, such maker can not object to being made a
party to the judgment on the ground that the action was prematurely
brought. Yoho v. McGowrn, 42 O. S. 11.
(0) Where a jomt action against all the defendants is the only remedy,
it is error to render judgment against one and continue the action as
to the others. Awker v. Adams, 23 O. S. 543.
When one or more may aue or defend for all. SEC. 5008. When the
l',ir-;i n i- * :i- t':i omnii n r p-m-nil inUTot "I'm any penOOfi Of \\iirn
the parties are very numerous, and it is impracticable to bring them all
before the court, one or more may sue or defend for the benefit of all.
(a) Where the parties are numerous, one may sue on behalf of him-
self and others to restrain the collection of an assessment, when the as-
sessment is claimed to be, for the same reason, invalid as to each.
Upington v. Oviatt, 24 O. 8. 232.
(6) A party can not sue or defend for himself and many others, on the
ground of a common interest, when it appears that those represented
are divisible into classes, whose rights and liabilities are not necessarily
the same. He can only act on behalf of his own class. Quinlan v.
Myen, 29 O. 8. 500, 508. And if the party named as plaintiff, who
sues on behalf of himself and others, /ails in his suit, those whom he
represents must also fail. 76.
(e) Where one sues for himself and on behalf of others interested as he
is in the same general subject of the action, equity will interpose by
injunction to prevent a multiplicity of suits by such others. Matheny
v. Golden, 5 O. 8. 361.
(d) The suit of a creditor of a corporation to enforce the statutory lia-
bility f stockholders, in addition to their stock pulwcribed, should be
for the benefit of all the creditors. Urnd"! \ />'/.<HJ 17 O. S. 113.
And all such stockholders should be ascertained and I- <ade pnrties de*
302 CODE PRACTICE AND PRECEDENTS.
fendants, so that the entire amount of the indebtedness for which such
liability exists, and the amounts the solvent stockholders will be liable
to pay on account thereof, may be fully adjudicated in such action.
A personal judgment can not be rendered against any defendant who
is not made a defendant properly by name. Each stockholder's liabil-
ity is separate from that of all the others, and he has the right to a
full opportunity to contest it for himself.
How parties severally liable may be sued. SEC. 5009. One or more of
the persons severally liable on an instrument may be included in the
same action thereon.
(a) The payee of a negotiable promissory note, who, on transferring
it to a third party, writes his name on the back and guarantees its
payment at maturity, is a party to the note within the meaning of this
section, and may be sued jointly with the maker. Kautzman v. Weir-
iek, 26 O. S. 330.
(6) At common law, the indorser or guarantor of a promissory note
could not be joined as defendant in the same action with the maker,
their contracts being but secondary and collateral to his.
(c) If a third party, not named in a promissory note, indorses his name
on the back, in the absence of all other evidence, the law in Ohio pre-
sumes him to be a guarantor, but if it appears that he indorsed his
name upon it, and the payee parted with value upon his indorsement
and the maker's name, he is a maker of the note, and liable as such.
He may so sign it with a parol agreement with the payee that his lia-
bility is to be that of an indorser, which will require the payee to de-
mand payment of the maker and give due notice to him to fix his lia-
bility, as in the case of ordinary iudorsers.
(d) The survivor and personal representatives of a deceased obligor
may be joined, whether the contract be joint or several. Burgoyne v.
Ohio Life Ins. & T. Co., 5 O. S. 586. But a joint right of action or
joint liability on the death of one survives to the other, and see section
5147. The representatives of the deceased are not necessary parties.
How parties may sue or be sued by initial letter of name. SEC. 5010.
Parties to a written instrument by initial letter, or a contraction of the
name, may be so designated in an action thereon.
Note. If the full Christian name of a party defendant be unknown to the
plaintiff, he should so state in his petition and designate him, as provided in sec-
tion 5118. If the defendant have a double Christian name, it is sufficient to sue
him by one of them, and not risk a misnomer, as John J. for John I.
When a party may be sued by a fictitious name. SEC. 5118. When
ACTION. 303
the plaintiff is ignorant of the name of n defendant, such defendant
may he desii:nat< ! in any pleading (ir proemlin^ l>y any name and
iption, and, \\hen the true name is discovered, the, pleading* or
dint; may IK* amended accordingly; and the plaintiff, in MU !i
case, must state, in the verification of his petition, that he could not
r tin- true name, and the summons must contain the words "real
name unknown," and a copy thereof must be served jtenotutUy upon
the defendant.
Note. At common luw u misnomer of the defendant had to bo taken advan-
tage of by pli-a in abatement of the action, in which plea the defendant was re-
quired t<> state his true name. A replication to such pleH, that the defendant
was as well known by the one name as the othtT, was good.
Under the Code a misnomer is taken advantage of by motion to require the
true name to be staled in the pleadings before further proceedings be had in the
cause. It may commence: "The alleged defendant herein, impleaded by the
name of J. Smith, who appears for no other purpose, objects that he is not sued
by his real name, and seeks the judgment of the court whether he be required
to answer in this action." Ho must not move to strike the petition from th>
files for such cause, as that will effect his appearance to tho action by the nam
in which be is sued. A motion to strike a petition from the files is an appear-
ance. Maholm v. Marshall, 29 O. S. 61 1 ; Handy v. Ins. Cfa., 87 O. S. 866; JEl-
Imtt v. Lnwhnvl, 43 O. S. 171.
As section 5118 is ample to provide against misnomer, there seems to bn no
good reason why a defendant objecting on that ground should bo required to
Kive 1m real name in such motion, but the point has not been decided by the
Supreme Court.
I foiu partners may gue or be sued. SEC. 501 1. A partnership formed
for the purpose of carrying on a trade or business in this state, or hold-
ing property therein, may sue or be sued by tho usual or ordinary name
which it has assumed, or by which it is known ; and in such case it
shall not be necessary to allege or prove the names of thrt individual
members thereof.
(a) At common law, partners could not sue or be sued in the firm
name; and, under this section, only such can as are " formed for tho
purpose of carrying on business in this state, or holding property
therein," which fact must be stated in the pleading. A company suing
under this section must bring itself within its provisions, and the omis-
sion to do so is cause of demurrer, t > wit, that the plaintiff has not
legal capacity to sue; that there is a defect of parties plaintiff. Hat-
ldn v. Akott, 13 O, 8. 210, 216.
(6) Proceedings in garnishment may, in a proper case, be instituted
against a partnership by its firm name. Whitman v. Keith, 18 O.
B 134.
304 CODE PRACTICE AND PRECEDENTS.
(c) The service of the summons, when the defendant is a partner-
ship sued by its company name, is by leaving a copy at its usual place
of business. 5042.
(d) Execution issued on a judgment rendered against a partnership,
by its firm name, shall operate only on the partnership property ; and
the exact amount of the debt, damages, and costs lor which the judg-
ment is entered, shall be indorsed on the execution. 5381.
(e) On such judgment the property of the individual partners can only
be reached by an action against them personally, to make them par-
ties to the judgment. 5370.
(/) Partners suing in firm name must give security for costs. See
Sup., section 5340, p. 348.
WJien actions shall not abate. SEC. 5012. Upon the marriage of a
female who is a party, the action shall not abate, but, if it is necessary
that the husband be joined therein, he may be made a party with his
wife; upon the disability of a party, the court may allow the action
to continue by or against his representative, or successor in interest;
and upon any other transfer of interest, the action may be continued
in the name of the original party, or the court may allow the person
to whom the transfer is made to be substituted for him.
WJiat causes of action survive. SEC. 4975. In addition to the causes
of action which survive at common law, causes of action for mesne
profits, or for an injury to real or personal estate, or for any deceit or
fraud, shall also survive; and the action may be brought notwithstand-
ing the death of the person entitled or liable to the same.
(a) Where the derelict person died before the injury, a cause of
action for so negligently erecting a building that it fell and injured
another building, does not survive. M. E. Church v. Rench, 7 O. S.
369. See RunaeU v. Sunbury, 37 O. S. 372 ; Wolf v. Watt, 40 O.
S. 111.
Note. It would seem, on principle, that a cause of action which survives to
the representatives of the injured person, is assignable by him to another, who
thereby becomes vested with all the rights of the assignor, the general rule
being that causes of action sounding in tort are not assignable, but inhere only
in the person injured.
What actions abate by death of party. SEC. 5144. Except as other-
wise provided, no action or proceeding pending in any court shall abate
by^ the death of either or both of the parties thereto, except an action
for libel, slander, malicious prosecution, assault, or assault and battery, for
ACTION.
a nuisance, or against a j tut ire of the fteace fr >ni-nn'l<t>-t in ojfin , which
.-hull abate by the death of cither party.
(o) If, in an action of slander, a party dies, njlt-r verdict ami before
judgment, the action do--* n->t abate. The right to recover being e-
tah!i<hed, and the amount of damages determined by the verdict, it
>hall continue in force, and a judgment may be rendered UJMII it as
of the terra when it was rendered. Dial v. Holier, 6 O. S. 228, - I"
But. when appeals were allowed in such action.*, the defendant per-
I an appeal and died, the suit abated. Ijang v. Hilchrork, 3 O.
274. See JtitMell v. Sunburn, 37 O. 8. 372; Wolf v. Wall, 40
< >. s. in.
(b) The prosecution of the reputed father of a bustard child does
not abate by the death of the child. IFinton v. I>ickin*on, 19 O. S. 583.
.Vote. Cause* of action which abate by tbo death of either of the parties can
not be assigned so as to confer any right upon the assignee.
When proper parties not all before the court. SEC. 5013. The court
may determine any controversy between parties before it, when it can
be done without prejudice to the rights of others, or by saving their
rights; but when a determination of the controversy can not be had
without the presence of other panic-, the court may order them to be
brought in, or dismiss the action without prejudice.
(a) See Penn v. Hayiturtl, 14 O. S. 302, 306. And where a joint suit
against all the obligors of a bond is the only remedy, it is error to
render judgment against one and permit the action to proceed again.-t
the others. Anclcrr v. Adanu, 23 O. 8. 543.
When penon claiming interest may make hinuelf a party. SEC. 5014.
In an action for the recovery of real or personal property, a person
claiming an interest in the property may, on his application, be made
a party.
Wlien officer lidding execution may be joined a* defendant Service by
publication upon execution creditor. SEC. 501"). An officer holding an
execution may be joined in an action to restrain the collection of the
same in the county in which he resides, with the person f >r whose
benefit the writ issued, when such person is a non-resident of the state,
or has left the same to avoid the lerTioe of a summons or order of in-
junction, or so conceals himself that process can not be served upon
him ; and service may be made against such person by publication, as
in other cafM
(o) The officer is not ordinarily a proper jrty in a case to enjoin an
20
300 CODE PRACTICE AND PRECEDENTS.
execution in his hands, but the party for whose benefit the writ is is-
sued is the person to enjoin. The injunction operates on the officer
through the parties. Allen v. Medill, 14 O. 445; Olin v. Hungerford,
10 O. 268, 272. The above section creates exceptions to the general
rule.
When plaintiff 1 in execution may be substituted for officer Security for
costs in such ca.se. SEC. 5018. In an action against an officer for the
recovery of property taken under an execution, the court may, upon
application of the defendant, and of the party in whoso favor the exe-
cution issued, permit the latter to be substituted as the defendant, se-
curity for the costs having been given.
(a) This section vests in the court to which the application for sub-
stitution is made a legal discretion to grant or refuse the application.
Sifford v. Beatty, 12 O. S. 189. What is a substantial substitution
within the meaning of this section. Leslie v. Eastman, 17 O. 8. 158.
(6) When the owner is substituted as defendant in place of his
agent, against whom replevin was brought, the sureties on the original
replevin bond are not released. Hanna v. Int. Pet. Co., 23 O. S. 622.
Interpleader. SEC. 5016. Upon affidavit of a defendant before
answer, in an action upon contract, or for the recovery of personal
property, that a third party, without collusion with him, has or makes
a claim to the subject of the action, and that he is ready to pay or dis-
pose of the same as the court may direct, the court may make an or-
der for the safe-keeping, or for the payment or deposit in court of the
subject of the action, or the delivery thereof to such person as it may
direct, and also an order Requiring such third party to appear in a
reasonable time, and maintain or relinquish his claim against the de-
fendant ; and if such third party, having been served with a copy of the
order, by the sheriff, or such other person as the court may direct, fail
to appear, the court may declare him barred of all claim in respect to
the subject of the action, against the defendant therein ; but if he ap-
pear, he shall be allowed to make himself defendant in the action, in
lieu of the original defendant, who shall be discharged from all liability
to either of the other parties in respect to the subject of the action,
upon his compliance with the order of the court for the payment, de-
posit, or delivery thereof. ,
(a) A case is not changed to a " special proceeding" by bringing in
and making a new party in lieu of the original defendant, and when a
second trial could be taken in jury causes instead of an appea! 5 it could
ACTION. 307
be had in PU<-!. tition in err <r \\a< not tlo sole remedy
ftgaiost the judgment ivnoVn-d. M<ujiiini< v. ><-/i/r.j/., 240 8
(6) A stakeholder, with whom money - r pr.ijH-rty lias been <U-
1, may bring it into court and be dtwttturged. <}<Ur<l \. fjeeeh,
W. IT'i.
Ao/'. This section is limited to "an action upon contract, or for the recovery
>f |xT?>nttl property." The last term is somewhat comprehensive, as in the
.;. I! - - I' -'I'liiii Oil nd Oil Land Co. v. Grw/r, affirmed, but not re-
.. it thesame ti II" I <>d and O. "L. Co., 40 O. S. 636, was de-
t ho application of the section was not questioned, where the action was
based upon the unsatisfactory answer of Grc^s as garnishee (section 65G1), in
the attchment rase of the II*. Va. O. Jf O. L. Co. v. Core. In the action against
M.t up in his affidavit of interpleader that the money he owed, un-
der a contract of purchase of lands, to Core, was claimed by ono Blair, who had
taken an assignment of the contract before the proceedings in attachment were
commenced. The affidavit stated Blair's residence to be in a certain county in
West Virginia. The court, upon such affidavit cf interpleader by Gr< --, j>-
pointed a receiver, to whom Gross paid t he-money and was discharged fr >in lia-
to the parties. The court appointed a designated person in We>t Vir-
ginia to serve Blair with a c->py of the ord<-r requiring him t<> appear by a day
named and maintain or relinquish his cluim. Blair \v.is -.. >.-rv,- t l, in that state,
by the person appointed. He failed to appear, and the. money was adjudged to
the Oil and Oil Land Co.. as being the attached property of its del>ti>r, Core.
Such service out of the state was sustained on the ground tha 1 . there was a fund
t for distribution, and on reasonable notice to claimant', residing any-
where, to appear and assert their rights in it, it could be paid to whoever, in the
court, proved to be entitled to it, and persons in default in the assertion of their
rights were barred by the distribution made of such fund by the court.
In cases to which thU section can not be made to apply, the defendant should
file an answer in the nature of a cross-petition, disclaiming any rights in him-
self, ctate who, besides the plaintiff, claim* the matter in suit from him, submit
himself to the direction and orders f the court, and ask that such claimant be
made a party defendant, and served with process, etc.
When an officer wny Aaiv the benefit of eeciion 5016. SEC. 5017. An
of HOT :i:r:iin>t whom an action is brought to recover personal property
tak-n by him on execution, or for the proceeds of such property sold
by him. may, ujvn exhibiting to the court the process under which he
.with his affidavit that tho property was taken or sold by him
mult r Mich process, have the benefit of the provisions of the preceding
wction, against the party in whose favor the execution issued.
JOINDER OF ACTIov-
WJuti caiuc* of action may be joined. SEC. 5019. The plaintiff may
unite several causes of action in the same petition, whether they are
308 CODE PRACTICE AND PRECEDENTS.
such as have heretofore been denominated legal or equitable, or both,
when they are included in either of the following classes: 1. The
same transaction or transactions connected with the same subject of
action. 2. Contracts, express or implied. 3. Injuries to person and
property, or to either. 4. Injuries to character. 5. Claims to recover
the possession of personal property, with or without damages for the
withholding thereof. 6. Claims to recover real property, with or with-
out damages for the withholding thereof, the rents and profits of the
same, and the partition thereof. 7. Claims against a trustee, by virtue
of a contract, or by operation of law.
(a) Contract and tort can not be joined, unless arising from the
same transaction or transactions connected with the same subject of
action. Sturges v. Burton, 8 O. S. 215, 218 ; Henshaw \. Noble, 1 O.
S. 226.
(6) Slander may be joined with malicious prosecution. Shore v.
Smith, 15 O. S. 173. Liability of servant and master for the act of
the servant can not be joined. SensJiaw v. Noble, 7 O. S. 226. Their
liabilities to the party injured are several; and he must elect which he
will pursue, and having once made such election is bound by it, the
same as in the case of principal and agent, when the principal is
known ; either is liable at the election of the plaintiff, but not both.
(c) In the same action, a judgment creditor of an insolvent corpo-
ration may compel payment of unpaid subscriptions for stock, and en-
force the individual liability of stockholders to satisfy his judgment.
Warner v. Callendtr, 20 O. S. 190.
(d) A contract may be reformed, and fiual judgment rendered
thereon as reformed in the same action. Globe Ins. Co. v. Boyle, 21
O. S. 119.
(e) A. demand against an estate, arising after the death of the in-
testate, may be joined, in an action against the administrator, with a
demand complete during the life-time of the intestate. Howard v.
Powers, 6 O. 92.
(/) Every cause of action so joined should be embodied in a single
count in the petition or counterclaim. The facts constituting one
cause of action can not be presented in various ways in more than one
count, or be subdivided so as to present fictjtiously, as might have been
done under common-law pleadings, two or more causes of action.
Sturges v. Burton, 8 O. S. 215; Ferguson v. Gilbert, 16 O. S. 88.
And where one cause of action is set forth in two or more counts, the
court may, so soon as the fact is made to appear, on motion, require
the pleader to elect on which count he will proceed. Ib. To illus-
trate: If, upon the same transaction, the petition counts upon malicious
ACTION. 309
prosecution, and also for fata- imprisonment, the plaintiff may be re-
quired t elect upon which count hu will rely.
(</) Each cause of action must be separatey stated and numbered,
ami if this be not done a motion will lie to require it, and if they are
involved in each other a demurrer will lie for misjoinder of causes of
action. jj . r >061, 5062. But if the defendant answers without
having made the objection, he thereby waives it. McKinm >i v.
/ Km**, XO. S. 41':',.
Mn*t tiffed all the pttrtieA except', etc. SEC. 5020. The causes of action
H> united i\\\\?i not require different places of trial, and, except as
otherwise provided, must affect all the parties to the action.
Mute. The fact that one of the causes of action, otherwise properly joinable,
the parties have the right to try by jury, and the others not, does not full within
the term "different places of trial;" but if one cause of action, which otherwise
might bo joined with another, requires to be tried in another county, as under
part 1. section 5022, joinder is forbidden.
In net ion* to foreclofc mortgage or enforce lien, SEC. 5021. In an
action io foreclose a mortgage given to secure the payment of money,
or to enforce a specific lien for money, the plaintiff may also ask in
'itinn a judgment for the mojiey claimed to be dm : and such pro-
ceedings shall l>e had, and judgment rendered thereon, as in a civil
action for the recovery of money only.
Ao/e. In such case?, the better course is to state the cause or causes of action
with the prayer for a personal judgment separately from that for the foreclosure
of tin- mortgage or the enforcement of the lien, in which other parties than the
debtor, us the wife of the mortgagor, whoexwuted the mortgage with him, may be
parties defendant. No appeal, but error only, can bo taken from a judgment
upon the former, while MM appeal to the Circuit Court will lie from the judg-
ment ii|>n the latter Combining both in a single count would seem to be, in
a technical M>n*e, a mi-joinder of causes of action, and a failure to separately
rtate Mixi number them.
Tin- holder of a nt<- -mired by mortgage may, under this sec-
noil, in a -inL'le '////;*, have judgment against all the makers of the
n !-. and a salt- of tin- mortgaged preini-es, although the mortgage i-
executed ly only a part of tin- makers of the note. Kiwi v. .Sijforrf,
li> O. - And se.- Wihnlm v. .l/,i,Wi,i//. L'! < ). S. 811, 615.
(6) A jM-rsonal judgment can not !M> taken ni:ain-t a mortgagor, in
an action t finvloso a mortjraire. unless the ^titinn contains a ;>n/rr
fr Midi jndirmcnt : but the court may ord-r an execution to is.-v
any lal:un-i- dm* after exhausting the pnweeds of the mortgaged prop-
310 CODE PRACTICE AND PRECEDENTS.
erty, as was done iji chancery, in suits to foreclose mortgages, in which
no personal judgment could be rendered, but only the amount due
found by the court, for which a decree of sale of the mortgaged prop
erty, if such amount should not be paid within the time fixed by the
decree, was entered. Giddings v. Barney, 31 O. S. 80.
But the fact that no personal judgment was demanded is not a bar
to another action upon the note against the maker for a personal judg-
ment. Spence v. Insurance Co., 40 O. S. 517.
(c) This section applies only where the party against whom the lien
is sought to be enforced is also personally liable for the debt secured by
the lien. Fleming v. Kirkendall, 31 O. S. 568.
(c?) And a single action to obtain a personal judgment against the
owner for the amount of a street improvement assessment on real es-
tate, and to enforce such judgment by the sale of such real estate,
can not be sustained, when it does not appear that such person was the
owner of such real estate at the time the lien attached. Garry v.
Gaynor, 21 O. S. 277.
(e) A personal judgment can not be rendered against a party who
has only been constructively served, as by publication ; such judgment
is void. Wood v. Stanberry, 21 O. S. 142, 149.
WHERE ACTION TO BE BROUGHT.
When to be brought where property situated. SEC. 5022. Actions
for the following causes must be brought in the county in which the
subject of the action is situate, except as provided in the next two sec-
tions : 1. For the recovery of real property, or of an estate or interest
therein. 2. For the partition of real property. 3. For the sale of
real property under a mortgage, lien, or other incumbrance or charge.
(a) Whether an action to subject a debtor's interest in land to the
payment of a judgment must be brought in the county where the land
is situate, considered. Butler v. Bailey, 13 O. S. 514. It seems such
action may be brought in either county.
(6) An administrator desiring to charge incumbered lands with the
payment of debts may proceed, under the Code, in the county where the
laud is situate, have the liens marshaled, the property sold, and pro-
ceeds distributed. Calkins v. Johnson, 20 O. S. 539, 549.
When may be brought where part of the property situate. SEC. 5023.
When the property is situate in more than one county, the action may
Joe brought in either; but in actions to recover real property, this can
only be done when the property is an entire tract.
Actions for specific performance. SEC. 5024. An action -to compel
ACTION. 811
the specific performance of a contract of sale of real estate may Ixj
brought iu the county where the defendants, or any of them, re>
(a) Such action may !> brought, either in the county where the land
lies, or in that when- mie of tiie lU-iendants iv>iile-. Own* v. Hall, 13
M - 571.
(6) A court nt equity in one state, having acquired jurisdict inn "\vr
the i" T.M//H of the parties, may enforce a trust, or the specific perform-
f a contract in relation to land situate in another state. This
i Wished law in England and the United States. Brumley v. Ste-
venton, 24 O. S. 474 ; Penn v. Hayward, 14 O. S. 302.
To be brought where caute of action, etc., arose. SEC. 5025. Actions for
the following caused must be brought in the county where the cause, or
some part thereof, arose : 1. For the recovery of a fine, forfeiture, or
penalty imposed by a statute, except that, when it is imposed for an
offense committed on a river, or other water-course, or a road, which is
the boundary of the state, or of two or more counties, the action may
be brought in any county bordering on such river, water-course, or
road, and opposite to the place where the offense was committal.
2. Against a public officer, for an act done by him in virtue or under
color of his office, or for a neglect of his official duty. 3. On the offi-
cial bund or undertaking of a public officer.
Noie. The penal laws of one state will not be enforced by civil action in
another state. No action for a penalty under the laws of another state will lie
in this state.
(a) This section does not repeal any statute which specially au-
thorizes the attorney -general to bring an action in the Common Pleas
Court of Franklin county. Such statutes, as has been seen, are to be
construed us exceptions to the general provision contained in this sec-
tion ; and it did not repeal by implication such special statutes enacted
prior to the Code of 1853. State v. Xeuton, 26 O. S. 200.
iiii*t domestic corporation*. SEC. 5026. < >'</>. . p. 329). An act other
than om> of those mentioned iu thetir-i /.<//>,, -tii>ns of this chapter (5 the.
loot four preceding section*), against a corporation created under the laws
of thw state, may IHJ brought in the county in which such eorjmration
i> -ituate, or has, or hud its priiicijwil office or place of business, or in
which any corporation has an office or :r_ r < v iit : hut if such corporation
is an insurance company, the action may le brought in the county
wherein the cause of action, or some part thereof, arose; and if such
corporation be organized for the purpose of mining, either exclusively,
312 CODE PRACTICE AND PRECEDENTS.
or in connection with other business, the action may be brought in any
county where such corporation owns or operates a mine or mines, and
the cause of action, or some part thereof, arose. (January 16, 1885 ;
82 v. 5.)
(a) This section was not intended to apply to statutory actions in
which a different rule or mode of proceeding is specially authorized.
Upon principle it could not so apply, as such special statutory provis-
ions are construed as exceptions to it. Muskingum Co. Ins. \. Toledo,
15 O. S. 409, 411.
(6) An action upon a policy of life insurance may be brought in the
county where the person insured died. Union Cent. Life Ins. Co. v.
Pyers, 36 O. S. 544. The cause of action was not complete until the
death of the assured, and it partly arose in the county where such
death occurred.
Against railroad and stage companies. SEC. 5027. An action against
the owner or lessee of a line of mail stages, or other coaches, for an
injury to person or property upon the road or line, or upon a liability as
carrier, and an action against a railroad company, may be broughf in
any county through or into which such road or line passes. See Rail-
way Co. v. Jewett, 37 O. S. 649.
Against turnpike companies. SEC. 5028. An action other than one of
those mentioned in the first four sections of this chapter (5), against
a turnpike road company, may be brought in any county in which
any part of the road lies.
Wlien this cJiapter does not apply. SEC. 5029. When the charter of a
corporation created under the laws of this state prescribes the place
where suit must be brought, that provision shall govern.
But under our present constitution of 1851, there can be no special
act conferring corporate powers. Corporations must be formed under
general laws. Article 13, sections 1, 2.
Note. Such would have been the law without this section.
As. against non-residents. SEC. 5030. An action other than one of
those mentioned in the first four sections of this chapter (5), against a
non-resident of this state, or a foreign corporation, may be brought in
any county in which there is property of, or debts owing to, the de-
fendant, or where such defendant is found ; but if the defendant is a
foreign insurance company, the action may be brought in a county
where the cause, or some part thereof, arose.
(a) The court can acquire no jurisdiction against a non-resident of
ACTION. '513
the state, unless he be personally served or appear, except the action
be one in which service by publication can be made. William* v. WeJton,
28 O. S. 451. And in case of publication, the jurisdiction is exhausted
by the sequestration, appropriation, or disposal of the property con-
ferring the jurisdiction, and any action of the court l>eyon<l that is
void.
" Foreign corporation," within the meaning of the justice of
f he jM>aee act governing attachments, means foreign to the state, not
comity. Boley \. Ohio L. 7/w. A T. Co., 12 O. S. 139.
ml ndf rut to other actions Exception a* to executors, etc. SBC.
Kvery other action must be brought in the county in which a
defendant resides or may be summoned, except actions against an ex-
ecutor, administrator, guardian, or trustee, which may be brought in
the county wherein he was appointed or resides, in which cases sum-
mons may be issued to any county.
. "Trustee," as used in this section, evidently appli*-.* only to a trustee
appointed by a court, and not to a trustee created l-y th-* mere act of the
parties.
A person non-resident of n county can not be enticed by nny fraudulent
means into another county tor tm- purpose of suing and serving him with a
ftumtnons in the latter. If m.-ii !> tin- C-UM*, ho may appear fur the sole purpose
of objecting to the jurisdiction of his person by the court. ThU objection should
be taken before he takes any other action in tho cau-. or he may waive it, and
effect an appearance. The objection is best taken by mot inn to set aside tho sum-
mons and service, which may be supported and resisted by affidavit*. For
qualifications where there are several defendants, wine properly served, see
sections 5062, 5074, and fh-ea v. Oirrington, 82 O. S. 695; ( <,inj>t<,n. rtr.. v. Wtl-
drr,40O. 8. 180.
Want of jurisdiction in the court of the subject of the action i-nn not be
waived, as the consent of the parties can not confer it upon the court.
In Compton,Ault $ Co. v. tt'ilder, 40 O. 8. 130, Wilder was extradited from
the State of Pennsylvania, on the governor's requisition, on a charge of the
crime of obtaining goods by false pretenses. On his arrival at the place of
the alleged commission of the crime, be gave bail, and before a reasonable time
for his return homo had elapsed was sued by t o parties who caused his extradi-
tion in a civil action and arreated for fraud in incurring the obligation. On m
lion, the summons and order of arrest wt-ro set aside and Wilder releanod, and
l-Twitted to depart from tin- jurisdiction ..f th< court i-i^- 1 :11. for nu-
lh..riti.-ritd.
(a) The word "dofenduni" a* u -d i.i thi* -erii >n, does not mean
a tKMni/ui^.defeudHnt merely, but one who has :i n .il and substantial
iniTC8t adverse to the plaintiff. Allen v. Miller, 11 O. S. 374, 378.
314 CODE PRACTICE AND PRECEDENTS.
If the owner of a chose in action sell and assign it to another, or
assign it as collateral security, assignor and assignee residing in different
counties, the assignor can not be sued concerning it, and the assignee
made a party to the action by summons issued and served upon him in
the county of his residence. Ib.
(6) The division of personal actions into local and transitory is not
known in Ohio. Personal actions maybe prosecuted, generally, in
any county where process can be served on the defendant. Gennin \.
Grier, 10 O. 209.
(c) A. and B. were sued as first contractors, A. residing where
suit was brought, B. in another county, and each served with sum-
mons in the county of his residence. It appearing that A. was not
liable, no recovery could be had against B. Dunn v. Hazlett, 4 O. S.
435.
(d) It seems that an action to subject lands of a debtor to the payment
of a judgment need not be brought in the county where the land is
situate, but may also be brought in the county where the judgment
was rendered. Butler v. Birkey, 13 O. 8. 514, 520.
(e) An action for causing death by wrongful act, neglect, or de-
fault, may be brought in any county where a defendant resides or
may be summoned. Drea, v. Carrington, 32 O. S. 595.
(/) The question of jurisdiction over the persons served in another
county, where it appears by the petition that all the defendants are
rightfully joined, some of whom are served in the'countyin which the
suit is brought, and others in another county, maybe raised by answer
under sections 5062, 5064.
Privilege of officers and members of tJie legislature. SEC. 5034. A mem-
ber of the senate or house of representatives, or an officer of either
branch of the general assembly, shall be privileged from answering
to any suit which may be instituted against him in a county other
than the one in which he resides, upon a cause of action which ac-
crued ten days before the first day of the session of the general assem-
bly of which he is an office? or a member; and all proceedings i:i
actions to which any such person is a party shall be stayed during .SIUM
session, and during the time necessarily employed in going thereto and
returning therefrom.
CHANGE OF VENUE.
Change of venue. SEC. 5032. When it appears to the court that a
fair and impartial trial can not be had in the county where the suit is
pending, the court may change the place of trial to some adjoining
ACTION. 3l." (
county; and if the application is made in the Superior Court, the
change shall be made to anotlu T >u| nr Court, or to the Court of
Common Pleas of an adjoining county.
Note. At present, January, 1887, the Superior Court of Cincinnati U the only
Superior Court in the state.
(n) The power to change the venue is discretionary, and should be
flowed only upon proof that fair and impartial justice probably can
not l>e otherwise obtained. Bank of Cleveland v. Ward, 1 1 O. 128.
Such proof is usually made, and the application resisted, upon affi-
davits. As a general rule the change will not be made until resort
has been had to a struck jury. 76.
(6) When a case waa removed from a District Court of one county to
the District Court of a county in an adjacent district, the objection
that such county was not the nearest had to be made before a trial on
the merit-, or deemed waived. Skelly v. Jrfferwn l>r. Bank, 9 O. S. 606.
Change oj venue in ease of corporation. SEC. 5033. When a corpora-
tion having more than jiity stockholders is a party in an action
pending in n county in which the corporation keeps its principal office,
or transacts i:r. principal business, if the opposite party make affidavit
that he can not, as he believes, have a fair and impartial trial in that
county, and his application is sustained by the several affidavits of fivtt
credible persons residing in such county, the court shall change the
venue to the adjoining county most convenient for both parties.
Change of venue when common plea* judge interested, etc. SEC. . r >.~><).
(Sup., p. 43.) When the judge of the Common Pleas Court is in-
terested in any cause or matter pending before the court in any county. f
hia district, or is related to either or any party to such cause, or is other
trim disqualified to sit in such cause or matter, and there is no other
judge in the same subdivision who is not so disqualified, on affidavit of
either party to such cause or matter, or his counsel thoirln-i the t-n-t of
vi'-h interest or disqualification, the rl> rk of tl e court shall enter ujxm
t!ie docket of such court an order directing that the p:u r-, and all
in itters belonging to such cause or matter, shall be transmitted to the
li-rk of the Common Pleas Court of an adjoining county of auotln r
ilxlivision, where practicable, of the same district; where nt pri---
t "-aide, then to an adjoining county of another distrirt ; and when a
.py of the docket entry, together with all the files Ix-lcm-jinir to the
cause or mutter, is filed with the clerk of the court to whom the same
is transmitted, such clerk shall docket tin- c u: r matter, and th.Tv-
upon the same shall proceed t > final judgment r determination, in all
316 CODE PRACTICE AND PRECEDENTS.
respects as though it had beeii originally commenced iu such court.
(February 7, 1885; 82 v. 16.) And for proceedings after change of
venue, see sections 551, 552 (Sup., p. 44).
(a) The interest which requires the removal of a cause is a pecunir
ary interest of the judge in the event or result of the trial. State v.
Winget, 37 O. S. 153. And under the act of February 18, 1824 (2
Chase, 1271, sec. 68), where a cause was certified to the Supreme
Court from the Common Pleas, upon account of the interest of the
judges, the facts upon which the interest arose had to be set out in the
certificate. Knaggs v. Conant, 2 O. 26. And where two of the judges
were stockholders in a railroad company, and that fact appears on the
record, and the land-holder does not waive the objection, the order
of the court appointing appraisers in appropriation proceedings will be
reversed. Gregory v. Railroad Co., 4 O. S. 675. The judges held not
disqualified by interest to try a cause where the commissioners of the
county in which they resided were parties, and money the subject of
the action. Commissiowers, etc., v. Lyt,le, 3 O. 289.
(6) 1. Where, under this section, the required affidavit for a change
of venue is filed with the clerk of the Court of Common Pleas, the-
duties of the clerk in regard to such change of venue is ministerial,
and not judicial. 2. When a party complies with the requirement*
of section 550, for a change of venue, and the affidavit shoics the fact
of the interest of the judge of the court in the event of the cause,
proceeding, motion, or matter pending before the court, the clerk of
the court has no discretion in the case, but he must make the required
order and certificate f >rsuch change. 3. When a proper affidavit has
been filed under section 550, should the clerk refuse to act as required
by that section, he may be compelled so to act by proceedings in man-
damus. 4. When proceedings in mandamus have been brought against
a clerk of the court to compel him to do what section 550 requires of
such clerk for a change of venue, and which he has refused to do, he
can not set up as a defense of his refusal, and have tried in such case:
in mandamus against him, a denial of the fact of affiant's statement,
that the judge of the court was interested in the event of the cause,
etc.; the statute as to him is imperative, and the falsity of such state-
ment would not justify his refusal ; and the truth or falsity of the fact
may be tried when and where the change is made. State \. Shaw, 43
O. S. 324. In this case, the affidavit for change of venue stated that
the judge was " disqualified to sit herein by reason of h^ing the owner
of shares of the capital st>ck of the defendant."
This section has no application to the Superior Court of Cincinnati
ACTION. 317
JflUSDICTIOX HY SUMMONS, PUBLICATIOX, OK APPEARANCK.
// -ic ciril artion commmfrd. Si A eivil action must be com-
menced l>y filing in the office of t!ie clerk of the proper court a jH-ti-
ng a summons t > l>e i--ued thereon.
(a) The summons t'>rms part of the record, and indicates, from ita
date, the commencement of the suit. Deicitt v. Greenfield, 5 O. 2 _'">.
(6) A* ft gMiend rul-, partirs to !. affected by judicial proceedings
hhould have notice. Patteraon v. Pfather, 11 O. 35, 36.
Pr -:-. ri>:;r,. The plaintiff shall also file with the clerk of
the court a precipe, stating therein the names of the parties to the ac-
. and demanding that a summons issue.
(a) A clerk of the court is not bound to issue process without a
written prec-ipe. Staff \. Coffee, 6 O. 150.
../" tummon*. SEC. 5037. The summons .--hall he issued
and signed by tlioclt r!v, and l>e under the seal of the court from which
it issued; its style .-hall be "The State of Ohio, -- Cmnty," and
it >hall de dated the day it is issued ; it shall be directed t > the sher-
iff of the county, who shall be commanded therein to notify t;
fendant that he has been sued, and must answer at a time stated
therein, or the petition will be taken a* true, and judgment rendered
accordingly ; when the action is for the recovery of money only, then?
shall l> i:.'i ix d on the writ the amounts to be elated in the precipe, for
which, \\i: t, judgment will IHJ taken if the defendant fail to
answer; and if the defendant fail to appear, judgment squill not be
rendered for a laryrr amount, and the costs.
(o) Process tested by a deputy clerk in his own name i - g >od. Walks
v. Bank, 15 O. 288; Chaptn v. All'twn, 15 O. 5G6.
(6) In an netlm for the Kile of mortgaged premises, and f>r a JHT-
aonal judgment, no indorsement on the summons as to the amount or
nature of the claim is necessary. No indorsement of any kind is nee-
essary l/innu-r v. Ctfmmrr, 31 O. S. 499. And where the plaintiff
asks a personal judgment for the amount of the mortgage debt, and
also u xile of the mort'jag^l premises, and, on default, the court ren-
ders a -leeree or order f>r the sale of the mortgaged property, but ren-
ders no jHTsonal judgment, the faet that no indorsement was made
upon Miiunions .( tho amount demanded does not render the proceed-
ing erroneous. Gm v. Rhode*, 260 "~ C44.
(r) In actions for tin- recovery of money only, the amount f r which
the plaintiff demands judgment is required to be indor-ed n tiie um
318 COD:; PRACTICE AND PKECLDLNTS.
mons, whether the action sounds in contract or tort. Hamilton v.
ler, 31 O. S.. 87. And judgment by default can not be taken against a
defendant, in an action for the recovery of money only, who has not
otherwise appeared, where the summons served has no indorsement
upon it of the amount claimed, nor for a greater sum than the amount
claimed in such indorsement. F'mck v. Evers, 25 O. S. 82.
When summons may issue to other counties. SEC. 5038. When t'.io
action is rightly brought in any county, according to the provisions of
chapter five of this division (2), a summons may be issued to any other
county, against one or more of the defendants, at the plaintiff's request ;
but no maker or acceptor, or, if the bill is not accepted, no drawer,
of an instrument for the payment of money only, shall be held liable
in an action thereon, except on warrant of attorney, in any county
other than in the one in which he, or one of the other joint makers,
acceptors, or drawers, resides or is summoned.
When summons returnable. SEC. 5039. When the time for bringing
parties into court is not fixed by statute, the summons shall be return-
able on the second Monday after its date; but when it is issued to any
other county, it may be made returnable, at the option of the party
having it issued, on the third or fourth Monday after its date ; and the
day of the month on which it is returnable shall be stated therein.
Alias writs may issue. SEC. 5040. When a writ is returned "not
summoned," other writs may be issued until the defendant is sum-
moned; and when defendants reside in different counties, writs may
be issued to such counties at the same time.
(a) The service of an alias summons, issued within the life of a
previous summons (before-the return day, or return), is not void or
voidable when, at the time the same was issued and served, the prior
summons was not in the hands of the officer, nor under his control.
Williams v. Wdton, 25 O. S. 451.
Who may serve summons. SEC. 5041. The summons shall be served
by the officer to whom it is directed, who shall indorse on the original
writ ih&,time and manner of service, or it may be served by any person
not a party to the action, appointed by such officer; but the authority
of such person shall be indorsed on the writ; and when the writ is
served by a person appointed by the officer to Avhom it is directed, or
when theservice is made outoftlic state, the return shall be verified by oath.
(a) The return of the officer serving the writ, as tt) all things the
law authorizes or requires him to do officially, is conclusive upon the
parties and their privies ; that is, upon all whose rights will be con
ACTION. 319
eluded by judicial action in the case, and who will have the right to
niie the officer fur a false return, it the return U> materially untrue.
But, us to others, sudh return is only prima facie evidence of the facts
1 in it, aul which are authorized by law to !> stated therein.
After such return, any party may, upon motion, have such return cor-
rected; but this mu-t nut IHJ delayed until after judgment, nr until
after such action is taken in the case, as should only bo had if the
return were triu-. Phillip* v. Elwdl, 14 O. S. 240.
Jfote.A. personal judgment against a defendant served with process out of
the state is v.'.-l. It can be valid only to the extent of properly, or a fund
within the jurisdiction of tho court from which the process issued.
And service and return of a summons by a person appointed by the sheriff
for that purpose, without indorsing such authority on the writ, is not such serv-
ice as will charge third person with notice of the pendency of an action as
provided in section 505o. Harry v. ffovey, 80 O. S. 344.
Manner of ttrvice and return, section* 501 1 , 5381 Partnerships. SEC.
. r ><4_'. The service shall be by delivering, at any time before the returi.
;i copy of the suinrnons, with the indorsements thereon, to tho
defendant personally or by leaving a copy at his usual place of re*i-
. or, if the defendant is a partnership sued by its company name,
I iy leaving a copy at its usual place of doing bunnets; and the return
: Made at the time mentioned in the writ, and the t!in>- and
manner of service shall be stated on the writ.
(a) The objection that summons was served on the return day, and
turned until two days thereafter, is waived by filing an answer.
Schafffer v. Waldo, 7 O. S. 309.
Service on the return day is not void, but only voidable. J/euae v.
McCoy, 17 O. S. 225.
. In both the above cases, tho fact that the last day for service, the day
before tho r<-t<irn day, is Sunday, and section 4!">1 would seem to apply, other-
wise the service could not be made "<z< any time before the return day," as the
last day of tint time ia </>. non, seems to have been overlcoked by the court.
The writ tin* " litV until midnight of tho trrond Monday after it is issued, on
day it u to bo returned (section 60:V). At common lw, such process
rould be served at any timo during the lift) of tho writ, and by applying >
4 'M. tho Code and the rormium law would harmonize in this re*p><-t. Tln-r-
to be no good reason why they should not, unless this section, COI'J, i->
n>(nn-il by itself alone according to its strict li-ttrr, and tbi-n ilu- .-.-r\ici
wwul-1 l><! pijuin-cl t > bo tnnde riot later than tlio second day (Saturday) Ix-fori-
the return day, which i nt " at any linm before." or service on Sunday would
be aulhuria*], which certainly was not intended.
(6) Leaving a copy of the summons at the defendant's " place of
320 CODE PRACTICE AND PRECEDENTS.
business" is not a sufficient service upon a defendant sued as an individ-
ual. Lambert v. Sample, 25 O. S. 336.
A summons issued against three defendants, returned "served by
leaving a copy of this writ at the residence of the within named de-
fendant, the sheriff having taxed on the writ the fees for serving but
one person, was not good service as to all or any. Gamble v. Warner,
16 O. 371. See Elliott v. Plattor, 43 O. S. 198, for sufficient service
on husband and wife.
The only mode by which jurisdiction, in invitum, can be obtained
over a defendant partnership sued by its firm name is by service of
process at their usual place of business within the county wherein the
suit is brought; hence constructive service by publication, when service
of a summons can not be made and property seized in attachment, can
not be resorted to in lieu of actual service at the usual place of busi-
ness of the partnership within the county. Smith \. Hoover, 39 O.
S. 249.
It is sufficient if the sheriff return that he left a copy of the sum-
mons at the residence of the defendant. Walke \. Bank, 15 0. 288.
As to good service upon husband and wife by leaving copy at each
of the within named defendants' . . . usual place of residence,
see Elliott v. Plotter, 43 O. S. 198.
What equivalent to service. SEC. 5043. An acknowledgment on the
back of the summons or petition, by the party sued, or the voluntary
appearance of the defendant, is equivalent to service.
(a) A defendant pleading to the action enters his appearance, and
is estopped from denying the service of process. Evans v. lies, 7 O.
S. 233. He also waives thereby all objection to legality of, and de-
fects in, process. Buckingham v. McCracken, 2 O. S. 287.
The appearance of a defendant in court to give notice of appeal is
an appearance to the action. Feev. Big Sand I. Co., 13 O. S. 563.
A motion to strike the proceedings from the files is an appearance.
Maholmv. Marshall, 29 O. S. 611; Handy v. Insurance Co., 37 O. S.
366; Elliott v. Lawhead, 43 O. S. 171, 177.
A motion to vacate a judgment upon the ground of irregularity or
error, outside of the question of jurisdiction, constitutes an appearance ;
but not so if the motion is based on an alleged want of jurisdiction.
Mars Jen v. Soper, 11 O. S. 503.
A motion to vacate or modify a judgment is an appearance from
that time. Watson v. Paine, 25 O. S. 340.
Obtaining leave to answer effects an appearance. Brundage v. Biggs,
25 O. S. 652.
ACTION*. 821
But, process against, and service thereof on, the husband alone, in
an ai-tion to foreclose a mortgage executed by husband and wife, does
not fleet her appearance. McArUmr v. Franklin, 15 O. S. 485.
Whether an irregularity in the service of process is waived or cured
by the subsequent appearance of one partner, and his retainer of an
ut:rney on the part of the firm, query. Whiteman v. Keith, 18 O. S.
147.
How served upon corporation Sections 6477, 6478 Rule of construction
changed. SEC. 5044. A summons against a corporation may be served
upon the president, or other cJiief officer ; mayor, chairman or presi-
dent of the board of directors or trustees; or, if its chief officer be
not found in the county, upon its cashier, treasurer, secretary, clerk,
or managing agtnt; or, if none of the aforesaid officers can be found,
by a copy left at the office or usual place of business of such corpora-
tion, with the penon having charge thereof; and if such corporation
is a railroad company, whether foreign, or created under the laws of
this state, and whether the charter thereof prescribes the manner and
place, or either, of service of process thereon, the summons may be
served upon any regular ticket or freight agent thereof; or, if there is
no such agent, then upon any conductor, in any county in this state in
which such railroad is located, or through which it passes; but if the
defendant is an incorporated river transportation company, whether or-
ganized under the laws of this or another state, the service of a sum-
mons may be upon the master, or other chief officer, of any of its
steamboats or other craft, or upon any of its authorized ticket or freight
agents, at any post where it transacts business.
(a) Where service is made upon a subordinate officer, it must ap-
pear from the return that the chief officer of the corporation could not
be found, that is, where service is required to be made upon the su-
perior, unless he can not be found in the county, before authority is
given to serve the named inferior. But where either of two or more
named officers, agents, etc., are authorized to be served, the return
need only state the fact of service upon the designated one or other.
When " by copy left at the office, or usual place of business of such
corporation, with the person having charge thereof," it must show that
none of the specified officers, neither chief nor subordinate?, could be
found in the county. Fee v. Big Sand Iron Co., 13 O. 8. 563.
In the case of a defunct corporation, service upon the members of
its last acting board of directors is sufficient. Warner v. CaUender, 20
' ' 8, 190.
21
322 CODE PRACTICE AND PRECEDENTS.
And corporations, though dissolved, and whether foreign or created
by the laws of this state, exist for the purpose of suing or being sued
upon their corporate claims or liabilities created during their corporate
existence. Sections 5683, 5684, and Stetson v. City Bank, etc., 2 0. S.
167; id., 12 O. S. 577.
On insurance company. SEC. 5045. When the defendant is an in-
surance company, and the action is brought in a county in which there
is an agency thereof, the service may be upon the chief officer of such
agency.
On foreign corporation. SEC. 5046. When the defendant is a foreign
corporation, having a managing agent in this state, the service may be
upon such agent.
(a) If the defendant has a general superintendent for the entire
state located in one county, and a local agent in another, service upon
the latter in a suit brought in the county of his location, is sufficient
service upon a " managing agent." Amer. Express Co. v. Johnson, 17
O. S. 641.
How infants served. SEC. 5047. When the defendant is under the
age of fourteen years, the service must be upon Mm, and also upon his
guardian, or his father ; or, if neither his guardian nor his father can
be found, then upon his mother, or the person having the care of such
infant, or with whom he lives; if neither of these can be found, or if
the defendant is a minor over fourteen years of age, service upon the
defendant alone shall be sufficient ; and the manner of service may be
the same as in the case of adults.
Note. For what the return must show see note (a), section 5044.
CONSTRUCTIVE SERVICE.
When service by publication may be made Error cases. SEC. 5048.
Service may be had by publication in either of the following cases :
1. In actions under the first three sections of the last chapter (5022,
5023, 5024, chapter 5), when the defendant resides out of the state,
or his residence can not be ascertained.
2. In actions to establish or set aside a will, when a defendant re-
sides out of the state, or his residence can not be ascertained.
3. In actions in which it is sought by a provisional remedy to take,
or appropriate in any way, the property of the defendant, when the
defendant is a foreign corporation, or a non-resident of this state, or the
defendant's place of residence is unknown, and in actions against a cor-
poration incorporated under the the laws of this state, which has failed
ACTION.
to flrtt officer*, or to appoint an agent, upon whom service of summons
can he made, as provided by section 5044, and which has no place of
- laisiness in this state.
4. In actions which relate to, or the subject of which is, real or per-
HMial property in this state, when a defendant has or claims a lien
thereon, or an actual or contingent interest therein, or the relief de-
munded consists wholly or partly in excluding him from any interest
tin-rein, and such defendant is a non-resident of the state, or u foreign
coronation, or his place of residence can not be ascertained.
In actions against txecuton, administrators, or guardian*, when the
defendant has given l>wl as such in this state, but at the time of the
commencement of the action is a non-resident of the state, or his place
-i-lciice can not be ascertained.
In actions where the defendant, being a resident of this state, has
depart d from the county of his residence, with intent to delay or de-
fraud his creditors, or to avoid the service of summons, or keeps him-
self concealed with like intent
7. \Vhen a defendant in a petition in error has no attorney of record
in this state, and is a non-resident of and absent from the same, or has
Irtt the same to avoid the service of summons in error, or so conceals
him-elt' that such process can not be served upon him.
8. In an action or proceeding under chapter *ir, division /our, of
this title (1) (sections 5354-5365), or to impeach a judgment or order
for fraud, or to obtain an order of satisfaction thereof, when a defend-
ant is a non-resident of the state.
In any such case, when the residence of a defendant is known, it
must be stated in the publication ; immediately after the first publica-
tion, the party making the service shall deliver to the clerk copies of
the publication, with the proper postage, and the clerk shall mail a
copy to each defendant, directed to his residence named therein, and
make an entry thereof on the appearance docket; and in all other
cases, the party who makes the service, his agent or attorney, shall,
the hearing, make and file an affidavit that the residence of the
laut is unknown, and can not, with reasonable diligence, be as-
certained.
(a) A lunatic defendant may be brought into court by publication.
Sturgct v. Longuxrrth, 1 O. 8. 544.
To authorize service, under the third clause of this section, on a non-
resident, he must have property, or debts owing to him. within the
Mtate, and. the relief sought must consist in taking by provisional rem-
iy. or by appropriating, in some manner, such property or debts.
William* v. IPeOon, 28 O. 8. 451.
324 CODE PRACTICE AND PRECEDENTS.
Jurisdiction may be acquired under this section, in an action for the
recovery of money against a non-resident of the state, having property
in this state sought to be taken by attachment. National Bk., etc., v.
L. 8., etc., B. Co., 21 O. S. 221.
But, ordinarily, the action must be brought in a county where prop-
erty, or debts owing to the defendant, can be found. 5030.
Right of an administrator to subject lots held by different owners to
payment of the debts of the intestate, and, some of the owners being
non-residents of the state, to bring in the non-residents by publication,
upheld. Calkins v. Johnson, 20 O. S. 539.
(6) A finding by the court that notice has been given non-resident
defendants by publication, according to law, can not be collaterally
impeached. Fowler v. Whiteman, 2 O. S. 270 ; Irvin v. Smith, 17 O.
226, 243 ; Boswell v. Sharp, 15 O. 447, 466 ; Newman v. Cincinnati, 18
O. 323, 330 ; Morgan v. Burnett, 18 O. 535, 546 ; Richards v. Skiff, 8
O. S. 586; Hammond v. Davenport, 16 O. S. 177.
In an action where property is attached and summons is returned
" not served," no time is fixed by statute within which service by pub-
lication must be made ; hence, where service by publication was not
completed until eight months after return of summons, it was error to
dismiss the action for alleged want of jurisdiction by reason of such
delay. Baclier v. Shawhan, 41 O. S. 271.
(c) A personal judgment, in an action to foreclose a mortgage, can
not be rendered against a non-resident defendant who has been served
only by publication under this section. Wood v. Stanberrj, 21 O.
S. 142.
If the court has neither jurisdiction of the subject-matter, nor cf the
person, by personal service-in the state, or appearance, its proceedings
are void. Pelton v. Plainer, 13 O. 209 ; Arndt v. Arndt, 15 O. 33 ;
Daniels v. Stevens, 19 O. 222, 238.
Service by publication can not be made upon a partnership sued in
its firm name; the only mode of service is that provided by section
5042. Smith v. Hoover, 39 O. S. 249.
Affidavit necessary. SEC. 5049. Before service by publication can be
made, an affidavit must be filed that service of a summons can not be
made within this state, on the defendant to be served by publication,
and that the case is one of those mentioned in the preceding section ;
and when such affidavit is filed, the party may proceed to make such
publication.
How publication to be made. SEC. 5050. The publication must be
made for six coiisecutivs weeks, in a newspaper printed in the county
ACTION.
where the petition is filed ; or, if there is no newspaper printed in the
county, tnen in a newspaper printed in this state, and of general circu-
lation in such county, if it be made in a daily newspaper, one inser-
tion a week shall be sufficient; and it must contain a summary state-
incut of the object and prayer of the petition, mention the court wherein
it is filed, and notify the person or persons thus to be served when they
JIM red to answer.
(a) Notice oy publication, if so specific as to advise the defendants
of the nature of their interests sought to be affected, is sufficient.
Gary v. J%, 16 O. 66.
The notice is presumed to have contained all that was requisite to
make it :i valid notice, when it is found by the court to have been
given according to law. Buchanan v. Roy, 2 O. S. 251.
When service complete, and how proved. SEC. 5051. Service by pub-
lication shall he deemed complete at the. date of the last publication,
when made in the manner and for the time prescribed in the preceding
sections ; and such service shall be proved by affidavit.
(a) A copy of the published notice, with the affidavit of one of the
publishers that it was inserted and published in the newspaper, as n -
quired by the order of publication, is sufficient. Kay v. Watnon, 17 O.
27; Core v. Oil and O'd Land Co., 40 O. S. 636.
It is not essential that, upon the filing of such affidavit, the court
should specially approve the publication, though it is good practice for
the court to do so.
Personal service out of the state. SEC. 5052. When service may be
made by publication, personal service of a copy of the summons and
petition may be made out of the state.
(a) Such service must be proved by the affidavit of the person mak-
ing the service ; and the affidavit so made, verifying the return of such
service of a summons and ropy of the petition, must be made before
on authorized by the Code to take depositions. 5269, . r J7".
Fitch v. Campan, 31 O. S. 646.
But such service can have no greater effect in enabling the court to
n-nder judgment than if the service had been by publication only,
-yrr v. Xtff t 95 U. & 714.
Personal service, out of the state, can not be made upon a non-
resident, in an action to recover u judgment for money only, to be en-
forced by execution. Williams v. Welton, 28 O. S. 451.
Such service, where the suit is for the conveyance of lands without
326 CODE PRACTICE AND PRECEDENTS.
this state, will not confer jurisdiction over the person so served. Penn
v. Hayumrd, 14 O. S. 302.
It is advisable in such case to make the same preliminary affidavit
that is requisite for effecting service by publication. The record will
then show such non-residence, while mere service of summons and
copy of the petition would prove only absence from the state.
Service upon imknown heirs. SEC. 5053. When an heir or devisee
of a deceased person is a necessary party, and it appears by affidavit
that his name and residence are unknown to the plaintiff, proceedings
against him may be had without naming him ; and the court shall
make an order respecting the publication of notice, but the order
shall require not less than six weeks' publication.
(a) A decree, under a statute authorizing proceedings against the
unknown heirs of decedents, held valid. Sullivant v. Weaver, 10
O. 275.
Proceedure when defendants not all served. SEC. 5054. When service
has been made on one or more defendants, but not on all, the plaintiff
may proceed as follows : 1. If the action is against defendants
jointly indebted upon contract, he may proceed against the defendants
served, unless the court otherwise direct. 2. If the action is against
defendants severally liable, he may, without prejudice to his rights
against those not served, proceed against the defendants served.
(a) A judgment against all the defendants jointly liable, part of
whom only were served, is void against the parties not served, and
voidable only as to those served. Newburg v. Munshower, 29 O. S.
617 ; Adi v. McCabe, 21 O. S. 181.
Note. If the officer's return had shown that those not served could not be
found, and they did not reside in the state, then such judgment would have
been valid against those who were properly served.
Where the liability is several, the judgment against them is void as
to those not served, and valid as to those served. Larimer v. Clemmer,
31 O. S. 499.
Where a joint suit against all the obligors in a bond is the only rem-
edy of a plaintiff, it is error to render a several judgment against one,
leaving the action to proceed against the others. Audcer v. Adams, 23
O. S. 543.
This section authorizes a judgment against such joint contractors as
have been "served" with summons in the action, in those cases only
where the action was commenced by the filing of a petition and tho
ACTION.
f a summons against all tin- joint contractors. Bazfll v. Bdd^er,
>. 572 J I'"/- l / 'r.,ivrii. 41' O. S. 11.
Lit pendent. SEC. 5055. When the summons has been served, or
publication wide, the action is pending, so us to charge third persons
with notice of its pendency ; and while jx'nding, no interest can be
acquired by third persons in the subject-matter thereof, as against the
jilaintiti '< title.
(a) 'The doctrine of lit pendent does not apply to negotiable paper be-
fore due. Stone v. Elliott, 11 O. S. 252; Howe v. Hartneu, 11 O. 8.
156.
\N hen negotiable paper of the defendant, not due, is sought specific-
ally by the plaintiff's action, he should obtain an injunction restrain-
ing the defendant from negotiating it.
Nor does it apply to a party in interest who has not been made a
party to the suit. Irvin v. Smith, 17 O. 226 ; Gibler v. Trimble, 14 O.
Service of a summons by a person appointed by a sheriff for
that purpose, without indorsing his authority thereon, does not charge
third persons with notice of the pendency of the action. Barry v.
Hooey, 30 O. S. 344.
A creditor's bill is not'a lit pendent against one who purchased under
a superior lien not questioned in the creditor's suit. Porter v. Barclay,
18 O. S. 546.
To authorize the application of the rule, the prosecution must be
close and continuous. Trimble v. Boothby, 14 O. 100; Fox v. Reeder,
28 O. S. 181.
(6) The purchase of the subject-matter of a suit, as against the
plaintiff, is a nullity. Ludlow v. Kidd, 3 O. 541.
A conveyance pendente lite is good between the parties to the con-
veyance, but can not vary the rights of the litigants. Bennett v. II'iV-
liamt, 5 O. 461.
Tht rule properly applies where the object of the suit is to recover,
specifically, n>al estate, or to affect the title, //urn/in v. Bryan*, 7 O.
(1 pt.) 161, 164.
A party having title to land under a decree in chancery conveyed in
good faith before citation on error amd which decree was reversed
M error, this did not divest the purchaser's title. It was the right of
a third person intervening between the decree, and the proper pendency
of the proceedings in error to reverse it. Taylor v. Boyd, 3 O. 338.
A petition to charge an equitable interest in land* to satisfy a judg-
ment i* a /M pmden*, although such judgment to satisfy which the po-
328 CODE PRACTICE AND PRECEDENTS.
tition is filed, was afterward reversed, but re-obtaiued. Stoddard v.
Myers, 8 O. 203; Gibbon v. Dougherty, 10 O. S. 365.
An appearance effected by the defendant by obtaining leave to an-
swer is sufficient to charge third persons with notice. Brundage v.
Briggs, 25 O. S. 652.
In a proceeding for alimony, where the husband's real property
sought to be made liable therefor, is sufficiently described, and such
alimony asked to be made a charge thereon, this is a lis pendens which
will operate to prevent alienation. Tolerton v. Wittiard, 30 O. S. 579.
A bill in chancery to subject an equitable interest in land, not show-
ing a judgment and that there was no property subject to execution to
satisfy it, did not prevent the assignment of such equity to a third per-
son pending the suit. Clark v. Strong, 16 O. 3-17.
A debtor of an execution debtor after the service of the order upon
him, in proceedings in aid of execution, can not discharge himself by
paying the execution debtor. Union Bk., etc., v. Union Bk. of San-
dusky, 6 O. S. 254.
IAS pendens as to suits in other counties. SEC. 5056. When any part
of real property, the subject-matter of an action, is situate in any
county or counties other than the one in which the action is brought,
a certified copy of the judgment in such action must be recorded in
the recorder's office of such other county or counties, before it shall
operate therein as notice so as to charge third persons, as provided in
the preceding section ; but it shall operate as such notice, without
record, in the county where it is rendered ; but this section shall not
apply to action%or proceedings under any statute which does not re-
quire such record.
PLKADINGd.
CHAPTER XXIV.
PLEADINGS.
Forms and rules governing. SEC. 5057. The forms of pleading in
civil actions in courts of record, and the rules by which their sufficiency
shall be determined, are those prescribed in this chapter (7).
(a) Pleadings must be construed as meaning what is generally un-
derstood by ordinary language, and hence there can be no established
technical mode of stating a cause of action or defense. Tnts. Sec. 16 v.
Oflm, 8 O. 8. 295.
The common-law rules as to the construction and sufficiency of
pleadings are abrogated ; but such as are in accordance with the rules
of thd Code are still applicable. Ib.
The rule of the common law that pleadings are to be construed most
strongly against the pleader is abrogated. Hall \. Plaint, 14 O. S.
417, -1 _'_'.
They are to be fairly and reasonably construed, one part with others
in relation t % the same subject-matter. Me Curdy v. Bauyhinmi, 43 O.
But if they contain inconsistent statements, they are to he construed
most strongly against the pleader. Mech. L. & B. Assn. v. (y Conner,
29 O. 8. 631, 655.
That construction will not be given to a pleading which will make
it a vain effort to establish the law by averment, or to aver a conclusion
contrary to law. Devoss v. Gray, 22 O. S. 159, 170.
When the facts set out in the petition entitle the plaintiff to judg-
ment, it is immaterial what the/onn of action would have been at law.
Jones \. Timmons, 21 O. S. 596, 603.
What pleadings are Fiction* abolished. SEC. 5058. The pleadings
are the written statements by the parties, of the facts constituting their
respective claims and defenses ; all fiction* therein are abolished ; and
the title of a cause shall not be changed in any of its stages, except when
the defendant prosecutes error.
Note. Under the common-law system of pleading, the narration or declara-
tion entitled the cause of the plaintiff M A. li. vmm C. D. In bia plea, the
defendant entitled hi* plea C. D. adoernut A. B. Perhaps thi was only what
was intended to be changed by the Code; but, generally, it has come to be the
330 CODE PRACTICE AND PRECEDENTS.
practice, or, more properly, the usage, to preserve the title though the plaintiff
assigns the cause of action and his assignee is made plaintiff in his stead, or
when an officer is sued, and the party is substituted as defendant for him, or
when the parties die and their legal representatives are made parties in their
stead. The number of a cause as given on the appearance docket is perma-
nent in that court, g 5132.
(a) An answer admitting the case made in the petition, and joining
in the prayer for relief, is an answer within the meaning of the Code,
entitling the respondent to set up and claim therein relief by way of
cross-petition. Bradford v. Andrews, 20 O. S. 209, 221.
What pleadings are allowed. SEC. 5059. The only pleadings allowed
are: 1. Petition. 2. Dernurrei. 3. Answer; which, when affirmative
relief is demanded therein, may be styled cross-petition. 4. Reolv.
PETITION.
What the petition must contain. SEC. 5060. The first pleading on the
part of the plaintiff shall be the petition,. which must contain : 1. The
name of the court and the county in which the action is brought, and
the names of the parties, followed by the word " petition." 2. A state-
ment of the facts constituting the cause of action, in ordinary and con.
cise language. 3. A demand of the relief to which the party supposes
himself entitled ; if the recovery of money is demanded, the amount
shall be stated ; and if interest is claimed, the time for which interest
is to be computed shall be also stated.
Note. Objections to the non-compliance with the requirements of clause one
of this section are to be taken by motion to strike the petition from the files, or
they will be waived. The petition will be permitted to be perfected by amend-
ment, granted instanter, and without terms as to costs. To omit compliance
with its requirements is an indication of thoughtlessness and careless habits on
the part of the pleader.
(a) Objection to defects extending only to the mode of statement
must be taken by motion to make more definite and certain. Stouten-
twrg v. Lybrand, 13 O. S. 228, 233.
Where the rules of the common law require that the facts which
constitute a cause of action shall be set forth in the declaration , they may
be applicable to the petition ; but the common-law rules with respect
to the language to be used are inapplicable. Trus. Sec. 16 v. Odlin, 8
O. S. 293, 297.
What would have been a good cause of action to sustain an original
PLEADINGS. 331
bill in chancery, is a good cause of action under the Code. I-tong v.
Mulford, 17O/S. 4*4.
Imlt'finiteness and uncertainty of a pleading can not be raowdied <T
taken advantage of by demurrer the remedy is by motion to inaki- it
more definite and certain. Union Bank, etc., v. BrU, 14 O. S. 200,
208 ; Trus. School Sec. 16 v. Odlin, 8 O. S. 293.
A statement of irreparable injury in a petition must set forth tin-
facts. The mere allegation that the injury will be irreparah! is not
sufficient on demurrer. Kan Wert v. Webster, 31 O. S. 420.
A defective statement of the cause of action is not a cause for reversal
ot the judgment, if the facts stated, when well stated, constitute a
cau.-e of action. Bethel v. Woodworth, 11 O. S. 393; Youngstcu'n v.
Moore, 30 O. S. 133. A petition defective for want of a material aver-
ment is cured by such averment in the answer or reply. Erwin v.
Muiffer, 9 O. S. 43 ; Dayton Ins. Co. v. Kelly, 24 O. S. 345, 357.
The objection that the petition does not state facts sufficient to < in-
stitute a good cause of action may be taken on error, as well as by
motion in arrest (or for judgment upon the pleadings), or by demurn-r.
Trimble v. Doty, 16 O. 8. 118, 128.
A petition is bad in form which seeks both to affirm a contract ami
to get it aside. Ib. 129.
The petition must state a cause of action in favor of the plaintiff.
Wri.lner v. Ranlnn, 26 O. S. 522.
In |>ersonal actions, as a general rule, the day named in the plead-
ings is immaterial. Hugh v. Young, 1 O. 504.
The prayer of the petition does not alone determine the character of
the action, which depends as well upon the case made or facts stated
in the pleading. Reed v. Reed, 25 O: S. 422 ; Carry v. Gaynor, 21 O.
a -'77, 280.
Alternative relief may be prayed for and granted. Cadwallad> / \ .
Alex. Soc., 11 O. 292.
\utf. A. pleading should state the ultimate fact*, and not the evidence tend-
ing to prove them; nor should it aver mere le^al conclusions. Both will be
stricken out on motion to strike out redundant and irrelevant matter prejudicial
to the opposite pnrty .
If any question exist* as to the relief to which the party is entitled upon the
furl* alleged, or as they may finally bo found at the trial, a general pr*y?r for
nn-li other and further relief as the parly may be found entitled to " should end
the prayer. TbU prayer for general rclinf was universal in the practice in
chancery, it being then a maxim that the prayer for general relief was second
only to the Lord's prayer. If the fact* state I in the petition entitle the plaint-
iff to any relief, either at law or in equity, it will be given, according to the
right under such general prayer.
332 CODE PRACTICE AND PRECEDENTS.
Causes of action to be separately stated and numbered. SEC. 5061.
When the petition contains more than one cause of action, they shall
be separately stated and numbered.
(a) When the plaintiff has but one cause. of action, the facts can
not be subdivided so as to present fictitiously, as might have been done
under common-law pleading, two or more causes of action. Stur'ges v.
Burton, 8 O. S. 215 ; Ferguson v. Gilbert, 16 O. S. 88. If this be
done, the party will be compelled, on motion, to elect upon which
count he will rely. Such omission is not a ground of demurrer.
Hartford Tp. v. Bennett, 10 O. S. 441.
Where two causes of action are properly joined, but not separately
stated and numbered, objection can only be made by motion filed and
disposed of before answer. McKinney v. McKinney, S O. S. 423.
The causes of action required to be separately stated are such as, by
law, entitle the plaintiff to separate actions. Sturges v. Burton, 8 O.
S. 215, 219.
In a petition for fraud in selling the plaintiff sheep with the foot
rot, there was a statement that the plaintiff turned them into a field
with his other sheep, which became affected, and his pasture was in-
jured. Held, that this was the statement of but one cause of action,
with averments of special damages, which averments were not irrele-
vant matter. Wilcox v. McCoy, 21 O. S. 655. See also Sear v.
Knowles, 36 O. S. 43.
When special damages are the direct, natural result of an injury, as
reasonable expenses incurred for a physician in consequence of the in-
fliction of bodily injury, they are recoverable, not necessarily the
amount actually paid or incurred, but a reasonable sum therefor, in
an action for such injury, and are stated as part of the cause of action;
such special damages should be averred to be recovered.
DEMURREK.
Causes of demurrer to petition. SEC. 5062. The defendant may demur
to the petition only when it appears on its face either: 1. That the
court has no jurisdiction of the person of the defendant, or the sub-
ject of the action. 2. That the plaintiff has not legal capacity to sue.
3. That there is another action pending between the same parties, for
the same cause. 4. That there is a misjoinder of parties plaintiff.
5. That there is a defect of parties, plaintiff or defendant. 6. That
several causes of action are improperly joined. 7. That separate causes
of action against several defendants are improperly joined. 8. That
the petition does not state facts sufficient to constitute a cause of action.
PLEADINGS. 333
Note. A demurrer admit*, for the purpose of testing their legal sufficiency,
all the material facts stated in the pleading demurred to. It admits the facts
which are well pleaded, not other?, nor evidence or legal conclusions. But, if
the court have no jurisdiction of the person of the defendant, as if be be sued
for an act done in bis official capacity in a county other than where auch act
was done, or if the subject-matter of the suit ia not within its jurisdiction, aa
for the recovery of tract of real estate lying wholly in another county, a
demurrer does not confer such jurisdiction. If jurisdiction of the person bas
not been acquired by reason of defective or unauthorized service of processor if
the defendant bas a special ground for not being required to answer in such
ounty, he should not demur, as that is an appearance t<> the action; but he
must appear for the sole purpose of objecting and claiming such objection.
Soe Bush v. Critehjuld, 6 0. 109.
(a) A demurrer admits the truth of the allegations of the pleadings
demurred to. Hancc v. Hair, 16 O. 8. 349. But only such as are well
pleaded. Damon v. Dawtoti, 25 O. S. 449 ; Evans v. Justice, 6 O.
117; Petenon v. Roach, 32 O. S. 375 ; Pittsburgh, etc., R. Co. v. Moore,
33 O. S. 384.
It does not admit the truth of mere conclusions of law, nor of alle-
gations of fact which are repugnant to, or inconsistent with, each
other. Ib.
While a general demurrer admits the truth of facts as stated in a
pleading, the correctness of legal conclusions therein averred is not
thereby conceded. Mitchell v. Treasurer, etc., 25 O. S. 143, 153. Nor
the correctness of mere conclusions drawn from the facts. H. & R.
H. Co. v. C. H. <t D. R. Co., 29 O. S. 341, 345.
Whether, on demurrer to the petition, the plaintiff can claim that the
defendant is estopped from taking advantage of facts which the plaint*
iff avers in his petition, query. Ewing v. McXairy, 20 O. S. 315, 322.
Answering over usually waive* a demurrer previously filed. Calvin
v. State, 16 O. 8. 1 ; Fowv. Woodford, 29 O. S. 246.
Upon demurrer the court will view the whole record aud give judg-
ment to the party who appears entitled thereto. A bad answer is
good enough for a bad petition, and an insufficient reply for an in-
sufficient answer. Trott v. Sackett, 10 O. 8. 241, 244.
Judgment will be given against the party whose pleading was first
defective in substance. Ib.
It is the office of a motion and not a demurrer to make a pleading
more definite and certain. Smith v. Ex. Bank. 26 O. 8, 141.
Wiicn the petition on demurrer is held insufficient, the demurrer
being sustained, it is not error to render final judgment, without grant-
ing leave to amend, when leave is not asked. Devote v. Gray, 22 O.
S. l.V..
334 CODE PRACTICE AND PRECEDENTS.
Where a demurrer to a pleading is sustained, the party should ask
leave to amend it within a time to be fixed by the court, and this will
be granted as a matter of course. But if such pleading fully states the
party's claim or defense, he may suffer final judgment to be taken
upon the pleadings, after which he may review such judgment upon
petition in error.
Where a case is dismissed for want of jurisdiction of the subject-
matter, the court can only strike the case from the docket dismiss it
for want of jurisdiction and can render no judgment for costs, a? there
is nothing pending. Norton v. McLeary, 8 O. S. 205.
The omission of a copartnership suing in its firm name, under the
statute, to state that it was founded for the purpose of carrying on
business or holding property in this state, is a cause of demurrer. It
fails to show that it has capacity to sue. Haskins v. Akott, 13 O.
S. 210.
It is a cause of demurrer to a petition in an action brought by two
or more plaintiffs, that the cause of action alleged therein is not joint.
This is a misjoinder of parties plaintiff. Masters v. Freeman, 17 0.
S. 323.
The defect in a petition, filed by husband and wife, showing no
joint cause of action in them, may be taken advantage of by de-
murrer. Bartgee v. O'Neill, 13 O. S. 72.
One party can not demur to a petition on the ground that another
party has been improperly joined with him as a defendant. Powers v.
Bumcratz, 12 O. S. 273 ; Guthridge v. Vanatta, 27 O. S. 366.
Where there is a demurrer for misjoinder of parties, it matters not
that the petition makes a good cause of action against some of the par-
ties, or against each of them separately. Shamokin Bank v. Street, 16
O. S. 1, 8.
A demurrer to a petition on the ground that there is a defect of
parties defendant will lie only when it appears from the face of the
petition that necessary parties defendant are wanting. Neil v. Ag. &
Her. Col, 31 O. S. 15.
Where it appears on the face of the pleading that the cause of action
therein stated is barred by the statute of limitations, the bar may be
insisted on by demurrer, and it is not necessary, though the better
practice is to allege the same as the ground of the demurrer. Sturgesv.
Burton., 8 0. S. 215; McKinney v. McKinney, 8 O. S. 423; Vose v.
Woodfvrd, 29 O. S. 245, 249; Williams v. First Presbyterian Soc., I
O. S. 478; Bissettv.Jaudon, 16 O. S. 498, 504; Delaware Co. v. An-
drews, 18 O. S. 49, 67 ; Keithkr v. Foster, 22 O. S. 198.
The statute of limitations does not run against a married woman
PLEADINGS.
luring her coverture if her cause of action accrued during such cover-
ture, Ashley \. Rockwell, 43 O. 8. 386.
The mere failure of a j>etiti<m to show that the action accrued within
the period limit. 1 l.y -:atut<- is not good ground of demurrer. //
v. Onighead, 23 O. 8. 198.
Objection to a pleading, where the facts are stated as matters of
belief .inly, can not be taken by demurrer, fitoutenburg v. Lt//////,
13 O. 8. 228.
A pleading is required to be verified by belief that the facts stated
therein are true ; and if they are not stated in the pleading in j> ><itive
form, but according to belief, then the party swears only that he believes
them to be true. Objection can only be taken by motion, and permis-
H"ii would be given to amend instanter, without further delaying the
cause. Allegations or denials that a party was, at a particular time,
the owner or holder of a negotiable promissory note, are not mere con-
ns of law. As statements of fact they may be indefinite, but this
defect is not the subject of demurrer, but if a defect, of a motion to makt>
more definite and certain. 76.; Iriuteot Sec. 16 v. Odlin, 8 O. S. 293.
In the absence of specific allegations of fact, making a case of un-
mixed malice, such malice will not, on demurrer, be presumed, and
if the right to maintain the action depends upon the proof of malice,
the demurrer will be sustained. Frazier v. Brown, 12 O. S. 'JIM.
An action pending between the same parties, for the same cause, in
another state, is no bar to an action in a court in this state.
When demurrer must specify the grounds of demurrer. SEC. 5063. The
demurrer shall specify the grounds of objection to the petition ; and
- it does so, it shall be regarded as objecting only that the peti-
tion does not state facts sufficient to constitute a cause of action, or
that the court has not jurisdiction of the subject-matter.
(a) The better practice in demurring on account of the statute of
limitations is to state the ground of demurrer specifically. Vote v.
Woodford, 29 O. S. 245, 250.
When objection may be taken by answer When waived. SEC. 5064.
Wh'Ti any of the defects enumerated in section oOo'-J do not appear
ii l> >n the face of the petition, the objection may be taken by answer;
und if no objection be taken either by demurrer or answer, the defend-
ant shall be deemed .to have waived the same, except only the object ion
to the jurisdiction of the court, and that the petition does not state
facts sufficient to constitute a cause of action.
(a) When it appears in the petition, in an action brought by two
336 CODE PRACTICE AND PRECEDENTS.
plaintiffs, that the cause of action is not joint but several, the right to
set up such defense by answer is not waived by failure to demur.
Masters v. Freeman, 17 O. S. 323.
Objection to the legal capacity of a married woman to sue alone,
and to defect of parties, is waived by failure to demur or answer.
Hoop v. Plummer, 14 O. S. 448.
Where it appears on the face of the record that the court has no
jurisdiction of the subject-matter, the failure to set up the want of
jurisdiction by plea is no waiver of the objection. Steamboat Gen.
Buell v. Long, 18 O. S. 521.
The court may acquire jurisdiction of the parties by their consent,
but not of the subject-matter. Gillian v. Sellers, 2 O. S. 223 ; Dayton
W. K Co. v. Marshall, 11 O. S. 497, 501 ; Thompson v. Steamboat
Morton, 2 O. S. 26 ; Evans v. lies, 7 0. S. 233 ; Rohn v.'Dunbar, 13
O. S. 572.
This section by analogy applies to proceedings in error, so that if no
objection be taken on account of defect of parties, the defendant waives
the same. Cairness v. Knight, 17 O. S. 68.
The objection that a petition does not state facts sufficient to consti-
tute a cause of action may be taken advantage of at any time before
final judgment in error; but if such objection has not been made prior
to the time of filing the petition in error, it should in some form appear
OD the record of the reviewing court before the case is heard. Youngs-
t<nan v. Moore, 30 O. S. 133.
See note to 5114. Dunlapv. Robinson, 12 O. S. 530.
When several petitions may be filed. SEC. 5065. When a demurrer is
sustained on the ground of misjoinder of several causes of action in a
petition or answer, the court, on motion of the party who filed the
pleading, shall allow him, with or without costs, in its discretion, to
file several petitions, each including such of the causes of action as
might have been joined ; and an action shall be docketed for each of
the petitions, and the same shall be proceeded in without further
service.
Demurrer to part and answer to part. SEC. 5066. The defendant may
demur to one or more of the several causes of action stated in the peti-
tion, and answer as to the residue.
(a) A party can not demur and answer to the same cause of action
or reply and demur to the same defense at the same time. The court
will, in such case, compel him to elect between them: Daws v. Hines,
6 O. S. 473 ; Penn. & 0. Canal Co. v. Webb, 9 O. 136 ; Stocking v.
Burnett, 10 O. 137.
I'LKADIN ,7
Demurrer to reply. SEC. 5067. The defendant may also demur to
the reply, or to a teparate traverse or avoidance contained in the rrply,
of a defense or counterclaim, on the ground that it U insufficient in
law, upon its face.
(a) A judgment will not be reversed for error in sustaining a de-
murrer to the reply when the plaintiff, on leave, files an aim-ruled re-
ply, presenting, in addition to others, the same issues, and the case
proceeds to trial and final judgment upon the issues thus presented.
Sagev. Stab, 23 O. S. 1.
Where a reply, which sets up new matter sufficient in law to avoid
the defense, is, on demurrer, erroneously held insufficient, and the case
is finally disposed of by a finding against the plaintiff on issues of fact
under which the special matter in the reply is not available to the
plaintiff, the error of the court in sustaining the demurrer constitutes
a good ground for reversing the final judgment and awarding a new
trial, unless the record shows such error to have been otherwise waived.
A > Co. Bank v. Lloyd. 18 O. S. 353.
A failure to demur to a reply that does not contain matter sufficient
to avoid a defense set up in the answer, is not a waiver of the right
to object to the sufficiency of the reply, and will not affect the judg-
ment proper to be rendered independently of such reply. Brown v.
A'ro/i, 31 O. S. 492.
Plaintiff may demur to answer, etc. SEC. 5068. The plaintiff may de-
mur to a counterclaim, set-off, or defense consisting of new matter
contained in the answer, mi the ground that it is insufficient in law, on
ita face.
(a) Where, in an answer to a petition seeking equitable relief, the
defendant sets up a partial but not complete bar, it is not demurrable.
'-let v. Lamingtr, id O. 8. 490.
An answer denying all material allegations in a petition is good on
demurrer. Lewis v. Coulter, 10 O. S. 451. But not good ou motion
to make more definite and certain.
Where, in an answer to a suit by a widow for her distributive share
of the estate, an answer is interposed that she is barred by a post-
nuptial agreement, such answer is insufficient, on demurrer, unless it
'Mt.iiu the averment that the provision made for her was fair, reason-
able, and equitable. MUter v. Miller, 16 O. S. 527.
The proper measure of damages will be ascertained upon inquiry of
diimngr* without answer; and an answer which makes no other defence
is insufficient on demurrer. Gill v. Sett$, 17 O. 8. 195.
22
338 CODE PRACTICE AND PilECEDEXTS.
The objection to the sufficiency of an answer should be taken by
demurrer, and not by motion. Finch v. Finch, 10 O. S. 501.
A general demurrer to an answer which contains new matter, and a
specific denial of certain allegations in the petition, should be over-
ruled if the allegations denied are material to the plaintiff's right of
action. M. C., etc., Co. v. Hall, 26 O. S. 310. (In such case, a motion
to strike out the new matter would seem to be the proper mode of ob-
jecting to its sufficiency.)
The plaintiff can not, without leave of court, dismiss his actkm
without prejudice after his demurrer to the answer has been overruled.
It is a final submission, unless leave is obtained to reply or amend.
Beaumont v. Her rick, 24 O. S. 445. See section 5314.
Judgment will not be reversed for error in refusing leave to reply
after demurrer to the answer is overruled. It is a final submission,
unless leave is obtained to reply or amend. Id.
Judgment will not be reversed for error in sustaining a demurrer to
an answer, where all the averments in it were contained in an amended
answer, on which issue was taken. Davis v. Gray, 17 O. S. 330,
336.
In what cases defendant entitled to admissions in the petition to
sustain his answer against a general demurrer. Gebhart v. Sorrels, 9
O. S. 461.
A general demurrer to each of the numbered paragraphs in an answer
is not well taken, where the answer as a whole shows a valid defense.
Everett v. Waymire, 30 O. S. 308; H. & H. E. Co. v. C. H. &. D. R.
Co., 29 O. S. 341.
Upon a general demurrer to an answer containing several distinct
grounds of defense, the demurrer may be overruled if any defense is
sufficient to bar the action. Shroyer v. Richmond, 16 O. S. 455.
(The demurrer should be to each defense separately.)
A general demurrer to an answer for want of facts sufficient to con-
stitute a valid defense will be overruled when the facts in the answer,
if well stated, would constitute a sufficient defense. Everett v. Way-
mire, 30 O. S. 308.
Causes of demurrer to answer, etc., demanding relief. SEC. 5069. The
plaintiff may also demur to a counterclaim or set-off, upon which the
defendant demands an affirmative judgment, when it appears on its
face either: 1. That the court has no jurisdiction of the subject thereof.
2. That the defendant has not legal capacity to recover upon the
same. 3. That there is another action pending between the same
parties, for the same cause. 4. That the counterclaim is not of the
PLEA DIN 339
character specified in section 5072. 5. That the counterclaim or set-
off tines n,,t ^tate facts sufficient to entitle the defendant to the relief
demanded. (The cross-petition mentioned in <-luu-r >, section 5059, is
obviously within this section.)
AND CROSS-PETITION.
.i the answer must contain. SBC. 5070. The answer shall contain :
1. A _'c:ieral <T sj>ecific denial of each material allegation of the |*-ti-
'iitrovertcti l>y the defendant. 2. A statement of any new matter
tuting a defense, counterclaim, or set-off, in ordinary and con-
cue language.
(a) This section only requires that the answer shall contain a
"denial" of the allegations that are "controverted;" and when'
there is any new matter, a statement of it. It was never intended to
include a case where the defendant, admitting the case stated in the
petition, demands affirmative relief by way of cross-petition. Brad-
ford v. Andrew*, 20 O. S. 208, 221.
There are three kinds of defense which may be set up in the answer :
I. Matters which, by the common law, were usually pleaded in bar of
the action. 2. Counterclaim. 3. Set-off. Although an answer may
be so unskillfully drawn as not to distinguish between the t!m
if the facts stated show'a defense under either, the court will not per-
mit the defendant to be prejudiced by such failure. Hill \. Butler, 6
O. 8. 207, 216.
An answer denying all material allegations in the petition, though
good on demurrer, is not sufficiently certain and specific. The de-
fendant, on motion, will be required to make it more certain and
specific. Lewis v. Coulter, 10 O. 8. 451.
Where the denial is general, it should not be simply of "all," but
ach and all," or "each and every "of the allegations refenvd
to. II
In order to put the plaintiff on proof of a material averment in his
petition, the defendant must, in some form, deny its truth. Hence,
uh.-ii the answer to such averment is merely "these defendants do
n . i n.lmit," etc., the plaintiff can not be required to offer proof in re-
pird to it Bombcrger v. Turner, 13 O. 8. 263. (In the case of an
i >r, administrator, trustee, or of a person who can not be taken
to have had knowledge of the fact, and such knowledge is specially
iu the possession of .the opposite party, the answer may aver that th
taut has not the means of forming a Ix lief ax to the truth or tin
truth of such allegation, the means of knowledge being in the plaintiff,
and the same is for such reasons denied. This will put the plaintiff
340 CODE PRACTICE AND PRECEDENTS.
upon proof of such allegation.) To authorize the denial of an allega-
tion in the petition, a want of belief is sufficient, and it is not im-
proper to accompany the denial with a statement that the party mak-
ing it has no knowledge or information on which to form a belief.
State v. Hancock Co., 11 O. S. 183.
An objection to the form in which the denial of an allegation in a
pleading is made, ought, properly, to be taken by motion. Treadwell
v. Commissioners, etc., 11 O. S. 187.
If a party having a defense which he might make, omits to do so,
he waives it. Hites v. Invin, 13 O. S. 283 ; Ewing v. McNairy, 20
O. S. 315 ; Cov. & Gin. B. Co. v. Sargent, 27 O. S. 233.
But this does not affect rights arising out of set-off or counterclaim.
Swenson v. Cresop, 28 O. S. 668.
The " offer to compromise " provided for in section 5140, and the
" offer to confess judgment" provided for in section 5141, can not
properly be made in the answer in an action. Armstrong v. Spears, 18
O. S. 373.
May contain different defenses, counterclaims, and set-offs. SEC. 5071.
The defendant may set forth in his answer as many grounds of de-
fense, counterclaim, and set-off as he has, whether they are such as
have been heretofore denominated legal or equitable, or both ; he may
claim therein relief touching the matters in question in the petition
against the plaintiff, or against other defendants in the same action;
and each must be separately stated and numbered, and they must re-
fer in intelligible manner to the causes of action which they are in-
tended to answer. .
(a) There is no limitation against the right to set forth as many
grounds of defense as the defendant may have, except the implied
limitation contained in the requirement that pleadings shall be verified
by oath. Citizens' Bk. v. Closson, 29 O. S. 78.
An answer, however uuskillfully and inartificially drawn, which con-
tains the necessary facts to warrant affirmative relief, will be treated
as a counterclaim, and such relief awarded. Wiswell v. First Con.
Church, 14 O. S. 31.
The answer of a defendant may be treated as a cross-petition, and
the proper relief granted under it, if, in substance, it contains the ele-
ments and is in the nature of such petition. Klonne v. Bradstreet, 7 O.
S. 322.
To entitle the defendant to set up in his answer a claim for relief, by
way of cross-petition, it is not necessary that the answer should contain
PLEADINGS. 341
a denial of the allegations of the petition, or a statement of new mat-
ter. Bradford v. Andrew, 20 O. S. 208.
A counterclaim can not be allowed to one of several defendants,
against the plaintiff, when it appears that another of the same defend-
ants is primarily liable for the claim demanded. Ernst v. Kunkle, 5
r>20.
Where, upon motion of a defendant, additional parties are brought
in as defendants, it is error to grant relief against them on default in
I' the defendant making the motion, in the absence of a cross-
IK tition asking relief. Com. Bk. v. Buckingham, 12 O. S. 402.
Where the answer to a petition seeking equitable relief sets up mat-
ter modifying the plaintiffs right to relief, or entitling respondent to
any counter relief which he asks, a demurrer to such answer will be
overruled, although the answer contains no complete bar to the action.
Peebles v. laaminger, 18 O. S. 490.
A defendant sued upon a promissory note may set up, by way of
counterclaim, over-payments and usurious consideration. Wed v. Med-
doek, 16 O. S. 418.
The right of a defendant to reduce, by way of recoupment, the
damages sought to be recovered by the plaintiff, is sanctioned by the
Code, which provides for its exercise by way of counterclaim. Upton
v Julian, 1 O. S. 95, 98.
In a suit by a mortgagee against his mortgagor to obtain a sale of
the mortgaged premises, the mortgage being given to secure the pay-
ment of the purchase-money, the mortgagor may set up, as a defense,
a counterclaim for damages for fraud practiced by the mortgagee in the
sale. Allen v. Shaekleton, 15 O. S. 146; Pierce v. Tiersch, 40 O.
- .44.
In a suit upon a contract, a certain state of facts may, at the same
time, constitute a defense to the action, and be a proper ground of
counterclaim. Lan. Man. Co. v. Colgate, 12 O. S. 344.
A plaintiff who, without objection, takes issue upon an answer set-
ting up a cross-demand in the nature of a counterclaim, waives the
l iictin whether such cross demand was the proper subject of a
counterclaim. Fitzgerald v. Cross, 30 O. 8. 444.
A defendant in error may file a cross-petition in error asking a re-
! of the judgment for errorn prejudicial t> him. Shinkle v. Pint
Ilk., 2*2 O. S. 516 ; McEwing v. Jamet, and Powers v. Armstrong,
3. 152, 357 ; -Fanning v. In*. Co.. 37 O. 8. 344; Witte v. Lock-
wood, 39-.O. 8. 141.
What a counterclaim w. SBC. 5072. The counterclaim mentioned in
342 CODE PRACTICE AND PRECEDENTS.
the preceding section must be one existing in favor of a defendant,
and against a plaintiff, between whom a several judgment might be
had in the action, and arising out of the contract or transaction set forth
in the petition as the foundation of the plaintiff's claim, or connected
until the subject of the action.
(a) A counterclaim must contain facts recognized by courts of law
or equity as constituting an existing cause of action, and which would
have entitled the defendant to a judgment or decree in a separate ac-
tion. Hill v. Butler, 6 O. S. 207.
An action in which a counterclaim is presented may, for certain pur-
poses, be treated as two actions. One branch of the case being dis-
posed of, the other may remain upon the docket, or be remanded, as
the case may be, for final adjudication. Massie v. Stanford, 17 O. S.
596 ; Morgan v. Spangler, 20 O. S. 38, 56.
A plaintiff, after an answer has been filed, amounting to a counter-
claim, can not dismiss the action so as to affect the pendency of such
counterclaim. Wiswell v. First Con. Church, 14 O. S. 31.
An answer in which the allegations do not entitle the defendant
to affirmative relief does not present a counterclaim which the de-
fendant has a right to have tried after the plaintiff's cause of action
has been dismissed without prejudice. Quebec Bank v. Weyand, 30 O.
8. 126.
Though a contract be joint for the delivery of several articles, if, on
delivery of part, the purchaser execute to the seller a negotiable note
therefor, which is indorsed to a third person for value before due,
the purchaser, in an action on the note, can not set up a breach of
the contract for the non-delivery of the remaining articles, although
the indorsee had notice of the breach when he received the note.
Loomis v. Eagle Bank, 10 O. S. 327.
A judgment will not be reversed where the court fails to give nom-
inal damages on a counterclaim, if such omission did not affect the
costs, or other rights of the defendants. Hill v. Butler, 6 O. S. 207 ;
Smith v. Weed Sewing Mach. Co. , 26 O. S. 562 ; Chambers v. Frazier,
29 O. S. 362.
The jury should, in assessing damages on the counterclaim, deduct
the amount admitted to be due to the plaintiff; in such case the
verdict ought to show this, and if the deduction is not made by the
jury, it will be made by the court in rendering judgment. Brainard
v. Lane, 26 O. S. 632. "
As to the doctrine giving the right of recoupment. Steamboat Welh-
ville v. Geisse, 3 O. S. 333 ; Timmons v. Dunn, 4 O. S. 680 ; Westfatt
v. Dungan, 14 O. S. 276.
PLEADINGS. 343
//" counterclaim or Kt-off not set up cost* in action upon it not recoverable,
SEC. 5073. If a defendant omit to set up a counterclaim or sot-
off, he can not recover costs against the plaintiff in any subsequent ac-
tion thereon ; but this section shall not apply to causes of action which
rieken out of or withdrawn from the answer, as provided in
ti -us 5074 and 5089.
(a) This section does not apply where the plaintiff confesses a judg-
ment in an action brought against him before a justice of the jn-ace,
ami without insisting therein a counterclaim or set-off, afterward
brings an action therefor. Black \. Che&er, 12 O. S. b'21.
party to be made if neceaary. SEC. 5074. When it appears
that a new party is necessary to a final decision upon the counter-
claim, the court may either permit the new party to be made l>y :i
summons to answer the counterclaim, or may direct the counterclaim
to be stricken out of the answer, and made the subject of a separate
action.
(a) Where a creditor levied on personal property, and a mortgagee
thereof replevied it from the officer, such creditor may be made a
party even in the District Court, and set up and enforce his interest by
way of counterclaim. Morgan v. Spangler, 20 O. S. 38.
What a set off it. SEC. 5075. A set-off can only be pleaded in an
action founded on contract, and must be a cause of action arising upon
contract, or ascertained by the decision of a court.
(a) In an action on a joint debt against principal and surety, u de-
mand due from the plaintiff to the principal may be set off against the
claim of the plaintiff. Wagner v. Stocking, 22 O. 8. 297.
The Oxle does not provide what is a proper matter of legal or
equitable set-off, but this, so far as it relates to the mutuality of
claims, is determined by rules recognized by the courts of this country
and of that from which the principles of our jurisprudence are de-
rived, subject to their constructive modification by other provisions of
( We. Ib. 300.
A set-off does not extend to claims purchased rondititmally for the
purpose of using them as a set-off, and with the agreement to return
them to the seller, if they are not u-c.l. Strain v. Eagle Ins. Co., 5
59.
One judgment may be set-off against another, between the same
panics, and due in the same right, on motion, but this is not the most
pr.'|K-r mode where there is any uncertainty as to the rights of the
parties. Holmn v. Robinton, 4 O. 90.
344 CODE PRACTICE AND PRECEDENTS.
The general rule in equity, as at law, is, that joint debts can not be
set off against separate debts, unless there be some special equity justi-
fying it. Second National Bank v. Hemingray, 34 O. S. 381 ; Miller v.
Florer, 19 O. S. 356, 361.
If there are such equities, the bankruptcy of the party against
whom they exist is sufficient ground for the allowance of the set-off
against notes not due at the time of the assignment. Second National
Sank v. Hemingray, 34 O. S. 381.
In a civil action by the state, a defendant may set off a debt due to
him from the state, but no judgment can be .rendered against the state
for any balance which may be due. State v. Franklin Bank, 10 O. 91.
Where a defendant neglects to prove his set-off in a court of law, he
can not, as a general rule, have the same set-off in chancery. Allen
v. Meditt, 14 O. 445.
The right of set-off exists, under the Code, against the persons who
are the equitable owners of the demand in suit. Miller v. Florer, 15
O. S. 148.
The right of set-off in an action is governed by the law of the place
where the action is brought. Second National Bank v. Heminyray, 31
O. S. 168.
If the items of an account have been merged in a judgment, tliey.
are not the subject of set-off, even though the suit thereon was brought
and judgment recovered, after such cause was pending. Smiley v.
Dewey 17 O. 156.
There can be no set-off of demands upon the assignor acquired after
notice of the assignment. Pancoast v. Ruffin, 1 O. 381 ; Weakly v.
Hall, 13 O. 174; Fottett v. Buyer. 4 O. S. 586.
A set-off may be pleaded in an action brought by a receiver of an
insolvent national bank. Hade v. McVay, 31 O. S. 231.
The cause r f action authorized by section 30 of the national bank-
ing act of 1864, to recover from the bank twice the amount of usuri-
ous interest paid, does not arise upon contract within the meaning of
this section, and, therefore, is not available as a set-off. Id.
The claim on which the original action was brought can not be made-
an available set-off in an action on a restitution bond executed in pur-
suance of section 6722, by dismissing the original action, or otherwise.
Bickett v. Garner, 31 O. S. 28.
The assignment of a non-negotiable demand arising upon contract,
before due, defeats a set-off by the debtor of an independent cross-de-
mand, on which no right of action had accrued at the time of the as-
signment. Fuller \. Steiglitz, 27 O. S. 355.
Where the claim is on a usurious note, and the defense is usury, with-
PLEADING*. 345
a counterclaim for overpayrw nt by mistake, the plaintiff can not prove,
by way of set-off', that the defendant is indebted to him on distinct
transactions. HVrf v. Meddock, 16 O. 6. 417. (He should have in-
cluded such set-off as a cause of action in his petition.)
Where claims are presented by the reply, and offered in evidence on
tlu trial, entirely distinct and foreign to the subject-mutter of the
sues made by the petition, answer, and counterclaim, it is proper to
: them without prejudice to a future action. Id.
In an action upon a contract, a defendant may set-off a bond or note
not made negotiable. Beesley \. Crawford, 19 O. 126.
Where one of two partners assigns to the other a book account be-
longing to the partnership, and afterward, as surviving partner, prose-
cutes a suit upon the same account, the defendant, having at the time
of the assignment an individual account against the assignee, may set
off such account against the demand of the plaintiff. Id.
Where A. obtains credit from B., upon an agreement to pay and
take up certain notes, made by B., indorsed by A., and held by other
parties, A. can not, in an action by B. for the value of the goods for
which credit was given, set off the liability upon the notes, which were
then due and unpaid, or urge it as a defense against the action. Coir
vtn v. Carter, 4 O. 354.
Where, upon an adjustment of partnership transactions between three
partners, two of the partners are creditors of the third, a set-off will
be allowed of such credits against a joint debt due from the same two
partners to the third. Sarchet v. Sarchet, 2 O. 320.
After the death of an ostensible partner, a surviving dormant part-
ner may sue alone upon a partnership contract. In such action, the
defendaut, it seems, may set off a debt due from the firm. Beach v.
Hayward, 10 O. 455.
In a suit by au administrator UJKMI a claim of the intestate, the de-
fendant may set off any demand of his against the intestate. Granger
\. ilntnijer, 6 O. 35.
A party receiving property, part of the assets of the estate, can not,
when sued for it, set off a debt due to him from the estate. McDonald
v mack, 20 O. 185.
Where the proportion of the land tax due to the county has not
xiid, the collector, in an action on his official bond, can not set
off county orders against the claim. Byert v. Mate, 2 O. 106.
The maker of a negotiable note to a banker, which was indorsed by
the banket before due for a valuable consideration, to one who knew
that the maker held an assignment of the account of a debitor at the
bank for money deposited, could not, in an action against him on the
346 CODE PRACTICE AND PRECEDENTS.
note bv the indorsee, set off the account. Stanbery v. Smythe, 13 O.
S. 495."
In an action founded on contract, the defendant may by answer set
up as a set-off any cause of action he may have against the plaintiff,
arising upon contract, whether the same be a liquidated demand or
for unliquidated damages. Needham v. Pratt, 40 O. S. 186.
(Prior to the Code, the statute defining set-off and the classes of
claims included in the term, added the words " or other liquidated de-
mand," and under that statute a set-off could not be an unliquidated
claim for damages arising upon contract.)
When new party made in case of set-off. SEC. 5076. If a new party
be necessary to a final decision upon the set-off, the court shall permit
the new party to be made, if, owing to the insolvency or non-residence
of the plaintiff, or other cause, the defendant will be in danger of los-
ing his claim unless permitted to use it as a set-off.
Wlicn cross-demands are to be deemed compensated, though assigned, etc.
SEC. 5077. When cross-demands have existed between persons, under
such circumstances that if one had brought an action against the other
a, counterclaim or set off could have been set up, neither can be deprived
of the benefit thereof by assignment by the other, or by his death, but the
two demands must be deemed compensated, so far as they equal each other.
What answer of guardian, etc., to contain. SEC. 5078. The guardian
of an infant, or of a person of unsound mind, or an attorney for a
person in prison, shall deny in the answer all material allegations of
the petition prejudicial to such defendant.
(a) Where the answer does not in express terms deny the allegations
of the petition, but the record shows that it was so regarded by the
court, and the plaintiff was required to prove the allegations of the
petition, a judgment rendered against such defendant can not be
reversed on error for want of such express denial. Randall v. Turner,
17 O. S. 262.
The answer of the guardian ad litem alleging his ignorance of the
matters contained in the petition, and praying that the rights of his
ward may be protected, has the effect of a general denial, and re-
quires proof of all the material averments of the petition. Wood v.
Butler, 23 O. S. 520.
Where the answer of the guardian admits the bill to be true, the
complainant must prove its allegations, with the same strictness as
if the answer had interposed a direct and positive denial. Long v.
Mulford, 17 O. S. 484, 503 ; Massie v. Donaldson, 8 O. 377. And see
section 5003 and note.
PLEADINGS. 347
REPLY.
Reply, in ivhat cages to be filed, and what to contain. SEC. 5079. When
the answer contains new matter, the plaintiff may reply to such new
matter, denying generally or specifically each allegation controverted
I'v him ; and he may also allege, in ordinary and concise language, any
natter, not inconsistent with the petition, constituting an answer to
such new matter in tho answer.
(a) A plaintiff can recover only on the causes of action stated in
his petition. It is not the province of a reply to introduce new causes
of action. This can be done only by amendment of the petition.
Durbin v. Fisk, 16 O. 8. 533.
An answer denying that the defendant committed the act set forth
in the j>etiti<>n, and alleging it was committed by a third person, is
merely, in legal effect, a denial, and requires no reply. Hoffman v.
:~>O. 8. 211.
Where the effect of the allegation in an answer is mere denial of the
averments in the petition, such allegations can not be regarded as new
matter which will be token as true, unless controverted by reply. Day-
ton In*. Co. v. Kelly, 24 0. 8. 345.
Facts, stated in an answer, which could have been given in evi-
dence under a denial of the averments in the j>etition, do not const!
tute new matter requiring a reply. Carry v. Campbell, 25 O. S. 134 ;
Simtnoiu v. Green, 35 O. 8. 104; Fanning v. Ins. Co., 37 O. 8. 344;
Lovell v. Wentujorth, 39 O. 8. 614.
f. In answering and replying, the averments should be by denial of con-
troverted allegations, or the statement of new matter by way of avoidance, i. e^
by stating something in addition to what is alleged in the pleading, which will
avoid its legal effect. But it is not good pleading if the opposite party has al-
leged hi* cause of action, or new matter in defense, incorrectly, to state the fact*
in relation to the transaction; for the party by so doing may be in danger of
having judgment rendered against him upon the transaction as be has alleged
it If not truly stated, a denial is what is requuite and sufficient; for example.
if a plaintiff sue* upon a contract, stating iU terms, and the actual contract, i*
n.'t (-..rrectly stated, the answer should deny it, ..ml the answer will ( su-tainM
t>y pr vin -4 the actiml contract. By setting out in the answer tin- n-al contract
nd farts making a defense under it, the plain: i;.'. in hi* reply, may deny those
fact-, mid if his denial be established, may take judgment upon the contract as
tated in the answer.
(iruiind* f defense stated in an answer should not be contradictory, and they
will lw -o. when, if one is true, the other, by no possibility, ran t>v In >u<-h
the defendant may be compelled to elect between them.
348 CODE PRACTICE AND PRECEDENTS.
GENERAL RULES OP CODE PLEADING.
Pleadings when answer asks relief against a co-defendant. SEC. 5080.
When in an answer affirmative relief is demanded against a co-defend-
ant, such co-defendant may demur or answer thereto, as if it were a
petition ; and to such answer of the co-defendant a demurrer or reply
may be filed as in other cases.
What taken as true and what as denied. SEC. 5081. Every material
allegation of the petition not controverted by the answer, and every
material allegation of new matter in the. answer not controverted by
the reply, shall, for the purposes of the action, be taken as true ; but
the allegation of new matter in the reply shall be deemed controverted
by the adverse party, as upon a direct denial or avoidance, as the case
may require ; and allegations of value,, or of amount of damage, shall not
be considered as true, by failure to controvert them.
(a) The presumption of law prescribed by this section as to the
traverse of facts stated in the answer, aud the finding of court or
jury upon those facts, must be held to apply only to such facts stated
in the answer as are inconsistent with the petition. Erunn v. Schaffer,
9 O. S. 44.
In order to put the plaintiff upon proof of a material averment, the
defendant must, in some form, deny its truth. Hence, when the
answer to such averment is merely, " these defendants do not ad-
mit," etc., the plaintiff can not be required to offer proof in regard
to it. Bomberger v. Turner, 13 O. S. 263.
Nor does a mere call for proof, unaccompanied by a denial, impose
such obligation on the plaintiff. Bentley v. Dorcas, 11 O. S. 398.
In an action on a promissory note, claiming a specified amount due
thereon, an answer alleging payment in full sets up new matter, which
must be taken as true in the absence of a reply. Dallas v. Fernau,
25 O. S. 635.
Note. Under the common-law system of pleading but few defenses were re-
quired to be pleaded. Under the general issue, or denial, nearly every matter,
not purely in avoidance, could be given in evidence by the defendant, which
tended to prove that the plaintiff, at the time of commencing his suit, had no
subsisting right of action; but, under the Code, a general denial only goes to
the facts stated in the petition, and if they are true, but the plaintiffnot entitled
to recover upon them by reason of any other state of facts not disclosed in
the petition, such facts must be set up by answer as new matter constituting a
defense.
What a material allegation is. SEC. 5082. A material allegation in a
PLEADINGS. 349
pleading is one essential to the claim or defense, which could not be
stricken from the pleading without leaviug it insufficient.
(a) In an action on a verbal contract, where the petition specially
alleges all the material provisions thereof, and as grounds for a recov-
ery avers breaches of them, it is only necessary to prove such of the
it ions as wil? entitle the plaintiff to recover. Gaine* v. /
,v f,u. Co., 28 O. S. 418.
(Under the common-law system, frequently, a party was bound
to prove a matter alleged in his pleadings, because he averred it,
when it would not have been necessary for him to do so had he not
pleaded it)
Legal presumption* not to be pleaded. SEC. 5083. Neither presu mptions
of law, nor matters of which judicial notice is taken, need be stated
in the pleading.
Substitution of pleading*. SEC. 5084. If an original pleading be lost,
or withheld by any person, the court may allow a copy thereof to be
substituted.
Note. As to lost or destroyed records, applicable specially to Hamilton
county, tee />., aectioiis 5283-528c ; 907-907rf; 4935a-4935r; 5339a-o3:Wc.
(a) If the pleadings are not on file, the court can not compel the
defendant to go to trial without ordering them replaced or supplied.
v Daniel, W. 368.
When, and copies of tohat, to be filed ivitli the pleading*. SEC. 5085.
W lieu the action, counterclaim, or set-off* is founded on an account,
or on a written instrument as evidence of indebtedness*, a copy thereof
mu-t be attached to and filed with the pleading; and if not so attached
and filed, the reason for the omission must be stated in the pleading.
(a) The omission to attach to or file with the petition, in an action
on a forfeited recognizance, a copy of the record, is not ground of de-
murrer ; it must be taken advantage of by motion to make more defi-
nite Calvin v. State, 12 O. 8. 60, 66.
Copies of written instruments, attache 1 to and filed with the peti-
tion, form no part of the pleading; and the sufficiency of the reason
i;iv n for the omission to attach and file them is to bo decided by the
court, and does not affect the merits of the action, hirimore v. Wellt,
29 O. 8. 13. But eee-Byen v. Farmer* Insurance Cb., 35 O. 8. 606.
In an action founded upon written agreements, other than for the
unconditional payment of money only, it is not good pleading to copy
the written instrument into the pleading, nor to attach a copy making
350 CODE PRACTICE AND PRECEDENTS.
it a part thereof; and, if this is done, upon motion a reformation of
the pleading will be ordered. Crawford v. Satterfidd, 27 O. S. 421.
An action may be sustained on a destroyed promissory note ; and
when a copy of the note is given with, or made part of, the petition,
the destruction of the note need not be averred in the petition. Sar-
gent v. Railroad Co., 32 O. S. 449.
What is a sufficient pleading upon a written instrument for the payment
of money only. SEC. 5086. In an action, counterclaim, or set-off,
founded upon an account, or upon an instrument for the unconditional
payment of money only, it shall be sufficient for a party to set forth a
copy of the account or instrument, with all credits and the indorse-
ments thereon, and to state that there is due to him, on such account
or instrument, from the adverse party, a specified sum, which he
claims, with interest; and when others than the makers of a promis-
sory note, or the acceptors of a bill of exchange, are parties, it shall
be necessary to state the facts which fix their liability.
(a) To constitute "an account," within the meaning of this section,
it is not necessary that the items be entered in an account book, pro-
vided they are such as usually form the subject of book accounts.
Black v. Chesser, 12 O. S. 621.
Where the substance of an appeal bond was not set out in the peti-
tion, but a copy was annexed and referred to as if incorporated in the
petition, the instrument not being for the unconditional payment of
money, it was held to be inadmissible under this section. Bendy v.
Dorcus, 11. O. S. 398-408.
A person other than the payee, who brings an action against the
maker of a note payable to_the order of the payee, and frames his pe-
tition under this section, without giving a copy of an indorsement by
the payee, is not entitled, under such petition, to the protection given
to a bonafide indorsee for value and before maturity, although the note,
when offered in evidence, appears with the name of the payee indorsed
thereon. Tisen v. Hanford, 31 O. S. 193.
Where, in an action on a promissory note, the petition is in the form
prescribed by this section, whether the plaintiff be an original party
to the note or not, the extrinsic facts, which show his right or title,
need not be expressly averred. Sargent v. Railroad Co., 32 0. S. 449.
What matter may be stricken from a pleading. SEC. 5087. If redun-
dant, irrelevant, or scurrilous matter be inserted in a pleading, it may
be stricken out on the motion of the party prejudiced thereby ; and
PLEADINGS. 351
obscene words may be stricken from a pleading on the motion of a
party, or by the court of its own motion.
AttryatioTU may be made definite by amendment. SEC. 5088. When
i It-nations of a pleading are so indefinite and uncertain that the
- nature of the charge or defense is not apparent, the court may
require the pleading to be made definite ami certain by amendment.
(a) The sufficiency of pleadings as to certainty, precision, definite-
nea, consistency of allegation, and of every other variety of defect
of allegation, which does not amount to such an absolute omission of
fact as to constitute no ground of action, or defense, must be taken ad-
vantage of, or objected to, by motion. Trustees, etc., v. Odlin, 8 O. 8.
Allegations of new matter in an answer, without merit as matter of
defense, should he stricken out as irrelevant. Ridenour v. Mayo, 29
O. 8.
An answer which denies all the material allegations in the petition,
although good on demurrer, will, on motion, be required to be made
more definite and specific. Lewis v. Coulter, 10 O. S. 4-">l.
Objection to an answer on alleged insufficiency in matter of -tub-
tkmee, ought to be taken by demurrer, and not by motion to strike the
answer from the files. Finck v. Finck, 10 O. S. 501.
Where facts constituting a cause of action or defense are stilted in
a pleading as matter of belief only, and not positively, the remedy is
by motion to strike out the objectionable words as redundant Stouten-
burg v. lAfbrand, 13 O. S. 228, 234.
A pleading which is grossly informal may be stricken from the files.
Coleman v. Toop, W. 315.
Objection to the form in which facts are stated in an alternative
writ of iniiinl'iinii." .-1 mil Id be made by motion to make more definite
and certain. Fernoff v. Sath t 23 O. S. 335.
The objection that the plaintiffs petition, who sued, as receiver,
upon a promissory note, did not sufficiently show his title, should be
taken by motion to make more definite and certain. Shrock v. Cleve-
land, 29 O. S. 449.
A counterclaim or net-off may be withdrawn, etc. SEC. 5089. The
< 'iirt, ai any time before the final sulxnission of the cause, ma
motion of the defendant, allow a counterclaim or set-off to be with-
drawn, and the same, may become the nuhject f another action; on
motion of .either party, to be made at the titn-- such counterclaim or
set-off is withdrawn, an action on the same shall be docketed and pro-
ceeded in without process, and the court shall direct the time and
352 CODE PRACTICE AND PRECEDENTS.
manner of pleading therein ; and if an action be not so docketed, suit
may be brought as in other cases.
Sow a judgment to be pleaded and proved. SEC. 5090. In pleading a
judgmeut, or other determination of a court, or of an officer of special
jurisdiction, it shall be sufficient to state that such judgment or deter-
mination was duly given or made; and if such allegation be contro-
verted, the party pleading must establish, on the trial, the facts
conferring jurisdiction.
How conditions precedent to be pleaded. SEC. 5991. In pleading the
performance of conditions precedent in a contract, it shall be sufficient
to state that the party duly performed all the conditions on his part ;
and if such allegation be controverted, the party pleading must estab-
lish, on the trial, the facts showing such performance.
(a) In an action where the right to recover depends upon the per-
formance of a condition precedent, it is sufficient to aver performance
by general allegation. Crawford v. Satterfield, 27 O. S. 421.
In an action on a policy of insurance which contains a condition
that, in case of loss, proof of the loss should be made and delivered
to the insurer within thirty days after the loss occurred, the petition
which does not allege performance of such condition, or a waiver on
the part of the insurer, is bad on demurrer. Home Ins. Co. v. Lindsey,
26 O. S. 346.
In an action by a widow, against the executors of her husband, for
a year's support, an answer setting up an ante-nuptial contract, alleg-
ing that said contract "has been a valid and subsisting contract, and
binding on the said" widow, is not a sufficient averment that the pro-
visions of the contract in favor of the wife have been fairly performed,
without which the contract would not operate. Lowe v. Phillips, 14
O. S. 308.
Pleading private statutes. SEC. 5092. In pleading a private statute,
or right derived therefrom, it shall te sufficient to refer to such stat-
ute by its title, and the day of its passage.
(a) All statutes are printed by authority, and, though local and
special, are, nevertheless, public acts of which courts of justice within
the state, ex officio, take notice. Brown v. State, 11 O. 276, 280.
If the charter or the process and franchises granted by another state
to a corporation, whether located in this state or elsewhere, become
the foundation of an action in this state, they must be specially
pleaded. Devoss v. Gray, 22 O. S. 159.
Courts can not take judicial notice of a private or special statute un-
less it be specially pleaded ; and in pleading such statute, or a right
IM.EADIXGS. 353
derived therefrom, it must at least be referred to by its title and the
day of its passage. Pitttburg, etc., It. Co. \. Moore, 33 O. 8. 884.
U'hat & private statute is, as distinguished from & puttie act relating
to private interests, has not been defined by our Supreme Cmrt; but
this section means something, and perhaps statutes relieving an officer
fn>m liability, or granting a person a claim against the state, and the
. are what is meant by " a private statute.")
.Vote. The statute and special common law, differing from the general com-
mon law, of other stntes, are mere facia in this state, to be proven by competent
evidence. See section 6244,
The federal courts take official notice of the statutes of all the states and ter-
s as our state courts also do of the acts of Congress. Course v. Stead, 4
Dull. 22; Beaty v. Knowltr, 4 Pet. 152; Otetnya v. Hall, 9 Pet. 607; Pcnningtan
v. Oibton, 16 How. Co; Junction R. Co. v. Atkland Bk, 12 Wall. 226; Elmwood
intyan, 104 U. S. 6C2; Lamar v. Mteou, 114 U. S. 218.
Petition in cases of libel and dander. SEC. 5093. In an action for a
liU-l or slander, it shall be sufficient to state, generally, that the de-
fatnatory matter was published or spoken of the plaintiff; if the alle-
gation be denied, the plaintiff must prove the facts, showing that the
(Kf amatory matter was published or spoken of him ; and in such action
it shall not be necessary to set out any obscene word, but it shall be
sufficient to state its substance.
(a) When the publication complained of is libelous in itself, an
a vt Tinent in the declaration of plaintiff's official or professional charac-
ter is no ground of demurrer, although the libelous matter can not ap-
ply to that official or professional character. Gage v. Kobiiuon, 12 O.
250.
It is proper, in slander, to leave out of the pleadings indecent and
vulgar words not material to the slander. Stevens v. Handler/, W.
121.
The truth may be pleaded in justification. SEC. 5094. In the actions
mentioned in the preceding section, the defendant may allege and
prove the truth of the matter charged as defamatory ; and in every
case he may prove any mitigating circumstances to reduce the amount
of damages.
(a) A justification must be proven strictly, especially where it im-
putes a crime. Scrly v. Blair, W. 633.
Such plea must slum not only that the facts charged are true, but
where a dishone&t, corrupt, or criminal intent is imputed, that they
23
354 CODE PRACTICE AND PRECEDENTS.
were accompanied with the intent imputed. Gage v. Robinson, 12 O.
250.
The plea must aver the truth of the material and substantial charges
in language as broad as the charge in its full and legal sense ; and,
although, where there are separate and distinct charges, yet it is es-
sential that the plea should substantially answer the whole count or
ground of action declared on. Van Derveer v. Sutphin, 5 O. S. 293.
When the plea of justification is made in good faith, under an
honest belief in the truth of the words spoken, and with reasonable
ground for such belief, the plaintiff is not, 'by reason of such plea, on
the failure of proof to sustain it, entitled to exemplary damages on ac-
count of such plea, nor should it be regarded as an aggravation be-
yond the real injury sustained by the plaintiff. Rayner v. Kinney, 14
O. S. 283.
(But, if such plea is not so made in good faith, and is a mere
repetition, in a solemn form of the libel or slander, it is an aggravation
thereof, and may enhance the damages to be awarded the plaintiff, in
the nature of exemplary or punitive damages.)
(6) What may be shown in mitigation without being pleaded. It
may be shown that the reputation of the plaintiff, a female, for chas-
tity was bad, where the slanderous words charged a want of chastity.
Duval v. Davey, 32 O. S. 604 ; overruling Dewit v. G-reenfield, 5 O.
225. But specific acts of sexual intercourse by her can not be given
in evidence for any purpose under the issue made by a general de-
nial. Id.
Also, that. the defendant, when the words were spoken, named his
author, and that such third person had spoken the words. Haines v.
Welling, 7 O. (1 pt.) 253. _
Also, circumstances tending to show that the words were spoken un-
der a mistaken construction placed upon conduct, which was, in fact,
no justification. Haywoodv. Foster, 16 O. 88 ; Wilson v. Apple, 3 O.
270; Van Derveer v. Sutpliin, 5 O. S. 293.
Also, that the plaintiff's wife against whom the words were spoken
imputing a want of chastity, and an unmarried man lived together
alone in one house. Reynolds v. Tucker, 6 O. S. 516.
Also, matters not capable of supporting an action or constituting a
justification. Fisher v. Patterson, 14 O. 418.
And also, the belief of a physician who, on examination of a female
patient, believed her to be pregnant. Alpin v. Morion, 21 O. S. 536.
(Any facts which do not amount to a full justification may be given
in evidence under a general denial, in mitigation of damages.)
PLEADINGS.
How rtal property to be described. SEC. 5095. In an action for the
TV of real estate, the property shall be described with such cer-
tainty as will enable an officer holding an execution to identify it.
rietulingi to be liberally construed. SEC. 5096. The allegations of a
in- shall be liU-rally construed, with a view to substantial justice
ii the parties.
(a) Pleadings under the Code must be as liberally construed as the
!>tutin_' part in u bill in chancery by courts of equity. Sturges v. Bur-
s O. S. 215, 218.
1'ln- rule of the common law, that pleadings are to be construed
most strongly against the pleader, is abrogated. Hall \. Plaine, 14
117, 422.
Although the language of pleadings will be construed according to
its jtopular meaning, that meaning mu-t conform substantially to the
proof on the trial. Hill v. Supervisor, etc., 10 O. S. 021.
Pleadings, under the present system, must be fairly and reasonably
construed; and where a married woman pleaded that "she was igno-
rant of what she was signing," this was construed in connection with
the other parts of the pleading, and held merely to mean that she waa
not fully informed as to the exact nature and extent of her obligation.
M ' nrdy v. Bawjhman, 43 O. S. 78, 79.
Under the liberal construction of pleadings prescribed by the Code,
and no motion being made to require the pleading to be made more
I* finite and certain, an averment that the guarantor is liable both as
an indorser and guarantor, implies a transfer of the note by the guar-
antor to the guarantee, and imports a consideration for the contract of
guaranty. Clay v. Edgerton, 19 O. 8. 549.
See note to section 5057.
Rule day* for jdfadings. SEC. 5097. The answer or demurrer by the
defendant shall be filed on or before the third Saturday, and the reply
or demurrer by the plaintiff* on or before the fifth Saturday, after the
return day of the summons, or service by publication ; and the answer
or demurrer of a defendant to a cross-petition shall be filed on or be-
fore the third Saturday, and the reply or demurrer thereto on or before
the fifth Saturday, after the cross-petition is filed.
(a) The plaintiff against whom an answer " demanding affirmative
relief is filed, is " a defendant to a cross-petition," and this section
gives him until " thd third Saturday after the cross-petition is filed"
to plead to it. A judgment taken by such defendant before such third
Saturday without the knowledge of the plaintiff, is obtained by " irrcgu-
356 CODE PRACTICE AND PRECEDENTS.
larity ," and should be set aside by a proceeding under sections 5354-5365.
Kimmd v. Pratt, 40 O. S. 344.
Rule day may be extended by the court. SEC. 5098. The court, or a
judge thereof in vacation, may, for good cause shown, extend the time
for filing any pleading, upon such terms as are just.
(a) The defendant is not excused from filing his pleading within the
rule because the plaintiff has failed to comply with an order to give
security for costs. Newman v. Ran, 18 O. 240.
It is discretionary with the court to receive or reject a plea of the
statute of limitations after the rule day for pleading has expired and
the party is in default. Id.
Where the court gave leave to file a petition within sixty days, and,
in default, ordered that the cause stand dismissed, and a petition was
filed two days after the expiration of the sixty days, the defendant,
after answer, trial, and judgment, can not, on error insist on the dis-
missal. The order of dismissal must be deemed vacated by the subse
quent action of the court and parties. Hill v. Supervisor, etc., 10 O.
S. 621.
Interrogatories may be annexed to a pleading. SEC. 5099. A party
may annex to his pleading, other than a demurrer, interrogatories
pertinent to the issue made in the pleadings, which interrogatories, if
not demurred to, shall be plainly and fully answered under oath, by
the party to whom they are propounded, or if such party is a corpora-
tion, by the president, secretary, or other officer thereof, as the party
propounding requires.
How interrogatories to be answered. SEC. 5100. When annexed to
the petition, the interrogatories shall be answered within the time
limited for answer to the petition ; when annexed to the answer, they
shall be answered within the time limited for a reply ; when annexed
to the reply, they shall be answered within the time allowed for an
answer ; but further time may be allowed in all cases by the court, or
a judge thereof in vacation.
How such answers enforced. SEC. 5101. Answers to interrogatories
may be enforced by nonsuit, judgment by default, or by attachment,
as the justice of the case may require ; and, on the trial, such answers,
so far as they contain competent testimony on the issue or issues made,
may be used by either party.
Pleadings to be subscribed and verified. SEC. 5102. Every pleading
and motion must be subscribed by the party or his attorney, and
every pleading of fact, except as provided in the next section, must be
PLEADINGS. 857
verified by the affidavit of the party, his agent or attorney; when s
corp 'rati>'ii i> the party, t!>e verification may be made by an officer
thereof, its agent or attorney ; and when the state, or any officer thereof
lieliiilf, is the party, the verification may be made by any person
acquainted with the facts, the attorney prosecuting or defending the
neti-ii. the prosecuting attorney, or the attorney-general.
(a) Where the petition is not signed by the plaintiff or his attorney,
'.nit the affidavit appended thereto is signed by the plaintiff an 1 no
motion is made to strike it from the files, or otherwise to take advan-
<>f the omission, judgment will not be reversed for the defect.
< -. v. Rhodes, 26 O. S. G44.
\\lien no verification required. SEC. 5103. The verification mentioned
in the preceding section shall not be required to the answer of a guar-
dian, defending for an infant, or a person of unbound mind, or the at-
torney of a person imprisoned ; nor in any case where the admission
<>t' t lie truth of a fact stated in the pleading might subject the party to
a criminal or penal prosecution.
When one of several jtartie* may verify. SEC. 5104. If several parties
are united in interest, and plead together, the affidavit may be made
by one of them.
Keliff sufficient. SEC. 5105. The affidavit shall be sufficient if it is
>tat--.l therein that the affiant believes the facts stated in the pleading
to be true. And see State v. Hancock Co., 11 O. S. 183, 188.
Note. 1 1 it i* intended to us the pleading as an affidavit to obtain an injunc-
ttiun. it t-huiild be sworn to positively.
What sufficient when party not resilient of the county. SEC. 5106. When
the party pleading is a non-resident of the county in which the action
is brought, or is absent from the county wherein the pleadini: is filed,
mi atli-lavit made before filing the pleading, and filed with it, stating
the -ti balance, of the facts afterward inserted in the pleading, shall be
a sufficient verification.
1'ivSt to betiyneJ and certijied. SBC. 5107. The affidavit verify-
ing .1 pi. .ulin^ may bo made before any person before whom a deposi-
tion might \to taken, and must be signed by the party who makes it;
the officer before whom the same was taken shall certify that it was
sworn to before him, and signed in his pn- <1 the certificate of
tin- officer, signed officially by him, shall be evidence that the affidavit
was duly ma.le, that the name of the officer was written by himself,
that he was such officer.
To wliat verification does not apply. SEC. 5108. The verification of
358 CODE PRACTICE AND PRECEDENTS.
the pleading does not apply to the amount claimed, except in actions
founded on contract, express or implied, for the payment of money
only.
When affidavit may be made by agent or attorney. SEC. 5109. The affi-
davit verifying a pleading can be made by the agent or attorney only :
1. When the facts are within the personal knowledge of the agent or
attorney. 2. When the plaintiff is an infant, or of unsound mind, or
imprisoned. 3. When the pleading to be verified is founded upon a
written instrument for the payment of money, and such instrument is
in the possession of the agent or attorney. 4. When the party is not a
resident of, or is absent from, the county.
(a) It would seem that the change in the language of this section
changes the rule laid down in Purdon v. Carrington, 31 O. S. 168,
holding that an attorney could not verify a petition to foreclose a
mortgage on the ground that the mortgage was in his possession.
A pleading not to be used in another action for crime or penalty. SEC.
5110. A pleading, verified as herein required, shall not be used against
a party in any criminal prosecution, or action or proceedings for a
penalty or forfeiture, as proof of a fact admitted or alleged in such
pleading; and such verification shall not make other or greater proof
necessary on the side of the adverse party.
MISTAKES AND AMENDMENTS IN PLEADINGS.
Petition may be amended without leave before answer. SEC. 5111. The
plaintiff may amend his petition without leave, at any time before the
answer is filed, without prejudice to the proceeding ; but notice of such
amendment shall be served upon the defendant, or his attorney ; and
the defendant shall have the same time to answer or demur thereto as
to the original petition.
When amendment can be made after demurrer filed. SEC. 5112. At
any time within ten days after a demurrer is filed, the adverse party
may amend, without leave, on payment of costs since filing the defective
pleading ; and notice of filing an amended pleading shall be forthwith
served upon the other party, who shall have the same time thereafter
to answer, or reply thereto, as to an original pleading.
Wlien a party may plead after a demurrer. SEC. 5113. When a de-
murrer is overruled, the party who demurred may answer or reply, if
the court is satisfied that he has a meritorious claim or defense, and did
not demur for delay.
Note. This section has been administered with great leniency in practice, and
to answer or reply after the party's demurrer has been overruled has been almost
PLEADINGS.
matter of course. a if this provision did nut exist. If it be dent-that the de-
rnurr.-r WM interposed merely fr (icUy, tin- court should, at least, require A
showing of menu on the part of such parly before allowing him to plead over,
nd put him upon prop-r t<rm* M t.>
Amendment* that may be made at any timf. > K< '. "> 1 1 4. The court may,
lefore r a:t r judgment, in furtherance of justice, and on such terms
iis may be proper, amend any pleading, process, or proceeding, by
uddiug or striking out the name of any party, or by correcting a mis-
take in the name of a party, or a mistake in any other respect, or by
inserting other allegations material to the case, or, when the amend-
ment does not change substantially the claim or defense, by conforming
the pleading or proceeding to the facts proved ; and when an action or
proceeding fails to conform to the provisions of this title (1), the
court may permit the same to be made conformable thereto, by amend-
ment
(o) Amendments are discretionary with the court. Kempcr v. Tru*-
tee9,ete.,17 O. 293, 329; Titian v. Morgaridge, 12 O. S. 98; Clark v.
Clark, 20 O. S. 128, 135; Bobo v. Richmond, 25 O. S. 115, 122;
Brock v. Bateman, ib. 009.
^But such discretion ought always to be exercised with the sole aim
of arriving at and doing justice. Causes are not the attorneys', nor the
courts', but the parties'. For them courts were created, and the pro-
fession of the lawyer exists not they for the courts and the lawyers.)
The record must show affirmatively that the discretion was abused, be-
fore the cause can be reversed for its exercise. Clark v. Clark, 20 O.
8. 128, 135; Brock v. Baieman, 25 O. S. C09.
The court may, sua sponte, order a pleading to be amended. Rhodes
v. Baird, 16 O/S. 573, 580; Lojan v. Thrift, 20 O. S. 62, 63.
An amendment can not be made by mutilating or altering the files.
A new pleading should be filed ; or a statement, on separate paper, of
the amendment designating by referauco where the new matter is to
be inserted, or what is t > be considered as stricken out. HUl v. Super-
visor, etc., 10 O. 8. 621.
But where the alteration is made by striking out or inserting new
matter in the original pleading, with the permission of the court, and
MW prejudice results to the adverse party, the final judgment will not
vcraed therefor. Schneider v. Hosier, 21 O. S. 98.
The general power of amendrae.it given to courts is only limit-<l l>y
the "justice" of the case, but the tiling to be amended must cxi.-t 1><-
t ; TV the. power can be exercised (there must be something to amend
by). StiamokinBankv. Street, 16 O. 6. 1, 10.
Where the variance Itotwoen the proof and the allegations is not
360 CODE PRACTICE AND PRECEDENTS.
material, a judgment will not be disturbed for an omission of the court
to order an amendment to make them conform. Dayton Ins. O>. v.
Kelly, 24 O. S. 345.
Every court has the power to direct the clerk to correct not only
clerical errors, but such errors as may arise from any fraudulent or
improper alteration or mutilation of its files or records. Hottisterv.
Judges, etc., 8 O. S. 201. And to make such correction it is not essen-
tial that the judge act on his own personal knowledge, but he may hear
evidence and act on the proof. Id.
An execution may be amended. Waggoner v. Duhois, 19 O.-67, 104.
A sheriff or other officer may, by leave of the court, amend his re-
turn. It should be done within a reasonable time. It may be done
after his term of office has expired. Fowble v. Rayberg, 4 O. 49,
59, 60.
But such return, as to the description of the property levied on, can
not be so amended as to prejudice other liens intervening between the
time of levy and the date of the amendment. Ohio L. Ins. & T. Go.
v. Urbana Ins. Co., 13 O. 220.
(The general rule is that no material amendments of any kind can
be made to the prejudice of intervening rights of third persons.)
A sheriff will not be permitted, after final judgment, on his own mo-
tion, to amend his defective service and return, by indorsing on the
original writ that, at the date of the summons, he had verbally ap-
pointed another to serve it, to the prejudice of rights acquired by third
persons after the petition was filed and before such amendment. Barry
v. Hovey, 30 O. S. 344.
A motion to vacate a judgment for irregularity is a " proceeding"
authorized by the Code, and as such is amendable. Knox Co. Bank v.
Doty, 9 O. S. 505, 508.
An undertaking foi a second trial (appeal bond) may be amended.
Negky v. Jeffers, 28 O. S. 90.
This section is applicable to appeal bonds, and mistakes therein may,
by consent of the sureties, be amended in the appellate court ; or a
new bond, by way of amendment, may be filed. Irwin v. Bank of
Bellefontaine, Q O. S. 81.
The power of amendment should be more cautiously exercised after
than before judgment. See Doty v. Rigour, 9 O. .8. 519, 524.
The restriction that the proposed amendment "must not change sub-
stantially the claim or defense" does not refer to the form of the rem-
edy, but to the general identity of the transaction forming the cause of
complaint. Spice v. Steinruck, 14 O. S. 213.
Where upon leave to file an amended petition in an action on a
PLEADINGS. 361
bond, in addition to amending the original, a new and distinct cause
nf action, then barred, was stated, the matter not material to a cause
of action on the bond might, on motion, be stricken out. Delaware
Co. v. Andrew, 18 O. S. 4!.
After reversal of a judgment, the court to which the cause has been
remanded for further proceedings may, by way of amendment, allow
ba t" 1" assigned on the bond sued on, which were not aii_ p ned
in the original petition. Hunt v. Gaylor, 25 O. S. <_'>.
After a cause is reserved to the Supreme Court, upon issues joined
and an agreed statement of facts, no change in the pleadings, making
new issues, and requiring further evidence, will be allowed, unless it is
made clear that without it the rights of a party will be sacrificed, or
plain injustice done. Witwcll v. First Con. Church, 14 O. S. 31.
The District Court, on petition in error, has no power to order an
amendment of the record, but may order the Court of Common Pleas
d up a perfect transcript of its record. Wood v. Xnckirk, 15 O.
16.
Where, in an action upon a bond, in which the existence of the bond
is averred, and the bond is lost after the bringing of the suit, the plead-
ing must be amended to conform to the evidence to be presented on the
trial. Chamberlain v. Saun/er, 19 O. 360.
An amended answer purporting not to be supplementary, but, of
itself, a "full answer to the plaintiff's petition," and statin:: facts in-
consistent with the original answer, is to be regarded as an abandon-
ment, by the defendant, of the issues of fact previously made by the
original answer, and reply thereto. Dunlap v. Robinson, 12 O. S. 530.
See note to section 5064.
That made by the amended pleadings is alone the issue, unless the
orL'inalsare made part of the amended pleadings. JlanJ: v. Telegraph
-50 O. S. 555.
Where, in an action on a policy of insurance which contained a
provision that no action should be brought thereon unless "com-
menced" within twelve months next after the loss, the name of a
company other than the defendant was inserted, by mistake, in the
IxMiy of the summons which was served on the defendant, and after
the expiration of the twelve months the defendant voluntarily ap-
peared and moved to strike the petition from the files; and the plaint-
iff then, on leave, amended the writ so as to conform to the petition,
sudi amendment was held to be authorized, and had the effect to make
the action one brought within the twelve mouths. Burton v. Buckeye
IM. Co., 20 O. S. 467.
362 CODE PRACTICE AND PRECEDENTS.
Immaterial errors and defects. SEC. 5115. The court, in every stage
of ail action, must disregard any error or defect in the pleadings or
proceedings which dues not affect the substantial rights of the adverse
party; and no judgment shall be reversed, or affected, by reason of
such error or defect.
(a) The record must show that the error complained of \\SLS preju-
dicial. Woodv. Perry, W. 240; Osborn v. State, 7 O. (1 pt.) 212;
Loudenback v. Collins, 4 O. S. 251 ;, Scovern v. State, 6 O. S. 288;
Hollister v. Reznor, 9 O. S. 1 ; Ohio L. L & T. Co. v. Gocdin, 10 O.
S. 557; Jackson \. State, 11 O. S. 104, 111; Gandolfov. State, 11 O.
S. 114; Worky v. Mclntosh, 12 O. S. 231, 240 ; Banning v. Banning,
12 O. S. 437; Dudley v. Geauga Iron Co., 13 O. S. 168; Dickey v.
Beatty, 14 O. S. 389 ; Courtright v. Staggers, 15 O. 8. 511; Oviatt v.
State, 19 O. S. 573 ; Dallas v. Freeman, 25 O. S. 635, 638 ; Bolan v.
State, 26 O. S. 371.
(6) What defects in pleadings are cured by trial, verdict, or judg-
ment. Trimble v. Doty, 16 O. S. 118, 129 ; Hall v. Reed, 17 O. 498 ;
Porter v. Kepler, 14 O. 127 ; Gardiner v. McDowell, W. 762 ; Christy
v. Douglass, W. 485 ; Wilson v. Thompson, W. 332 ; Jordan v. James,
5 O. 88; Bethel v. Woodworth, 11 O. S. 393; Maxfteld v. Johnston, 2 O.
204; McCarthy v. Garraghty, 10 O. S. 438 ; Nelson v. Ford, 5 O. 473 ;
Porter v. Porter, 14 O. 220; Chisom v. School DisL, etc., 19 O. 289;
Johnson v. Mullin, 12 O. 10; Swearingen v. Bk. of Mt. Pleasant, 13 O.
200 ; Cleveland, etc., R. Co. v. Stackhouse, 10 O. S. 568 ; Conn v. Rhodes,
26 O. S. 644; Youngstown v. Moore, 30 O. S. 133.
(c) A correct judgment will not be reversed because a bad reason
was given for it by the court that rendered it. Loudenback v. Collins,
4 O. S. 251; Steamboat Waverly v. Clements, 14 O. 28,. 37; Ilarman
v. Kettey, ib. 502, 507 ; McClintock v. Inskip, 13 O. 21 ; Ludlow v. Park,
4 O. 5 ; Baird v. Clark, 12 O. S. 87, 90 ; Holt v. Lamb, 17 O. S. 374,
384,
A judgment will not be reversed for an error beneficial to the party
seeking the reversal. Burt v. Dodge, 13 O. 131 ; Sterret v. Creed, 2
O. 343.
Where, on error, it is apparent from the record that the judgment
of the court below was right, technical errors, intervening on the trial,
will not avail to disturb the judgment. Way v. Langley, 15 O. S. 392.
(And where, on a trial to the court in an equity case, evidence is
given by an incompetent witness, this will not be sufficient ground for
reversing the judgment, if the weight of the evidence, exclusive of
the testimony of such incompetent witness, fairly weighed, sustains
the judgment. KUbum v. Fury, 26 O. S. 161, 162.)
PLKADINQS. 363
Slight mistakes or omissions in pleadings will DC cured by judgment ;
but where the pleading is totally defective, showing on its face that
the party can claim no right under it, the judgment will be held
erroneous. Gitttmj* v. Baker, 2 O. S. 21.
(And where the parties, without objecting, try an issue, upon evi-
dence, without the same being made in the pleadings, the judgment
will not be reversed. Hoffman v. Gordon, 15 O. S. 212.)
A judgment can not be reversed on error because the form of tin-
action was misconceived, in case the facts are substantially alleged
which the party was bound to prove on the trial, in order to entitle
him to a recovery. Taylor v. llrowder, 1 O. S. 225.
Where the defect in a petition to which a demurrer has been over-
ruled consisted in the omission to aver the performance of a condition
precedent in the contract sued on, and it appears from the subsequent
pleadings and the record that the defendant was not prejudiced
thereby, the judgment will not be reversed. Dayton Ins. Co. v. Kelly,
'24 ( ). S. 345.
An erroneous instruction to the jury is not ground for the reversal
of the judgment, where it clearly appears from the record that the
jmrtv objecting thereto was not prejudiced thereby. Berry v. Stair,
::i <>. S. 219.
Where the finding of facts fairly admits of a construction which
will support the judgment, that construction will be adopted rather
than a different one which would render the judgment erroneous.
Jack v. HudnaU, 25 O. S. 255.
The consideration of a promise, mutual promises, and allegations
relating to precedent conditions, etc., however informally or defectively
averred or stated in the petition, cau not be made the ground of arrest
of judgment if the petition disclose a cause of action. Every n-a.-.m-
al>lt presumption, and fair constructive iutendment, will be made to
Mi-tain the pleading after verdict. NoU v. Jolinson, 1 O. S. 270.
Where the parties on an appeal from a justice of the )>cacc, proceed
to trial before a jury, upon the transcript of the justice, and, no objec-
tion being taken, there is a verdict and judgment, the judgment will
not be reversed for such irregularity. Hallam v. Jacks, 11 O. 8. 692.
The rendition of judgment against the irarni>hee, previous to ren-
deriiii; judgment against the defendant, in an attachment proceeding
bet-ire a justice of the peace, is not error prtjitdicial to such defendant,
nor is it one of which he can take advantage. Casper v. Richards, 13
( >. S -JJ9, 227.
Where incompetent testimony was objected to, but permitted to go
to the jury, it must manifestly appear that its admission could not
364 CODE PRACTICE AND PRECEDENTS.
have been prejudicial. Wilson v. Barkalow, 11 O. S. 470. But where
it does riot appear prejudicial the judgment will not be reversed. Ful-
ler v. Coates, 18 O. S. 343; TJiayer \. Luce, 22 0. S. 62.
In the admission of improper evidence on the part of the defendant,
which operates only to rebut evidence improperly introduced by the
plaintiff, there is no error to the prejudice of the latter. Taylor v.
Boqgs, 20 0. 8. 516.
Where the bill of exceptions does not profess to set out all the evi-
dence, nor all of the facts which the evidence of the plaintiff tended
to prove, if improper evidence was allowed to be introduced by the
defendant, which was calculated to mislead the jury, to the prejudice
of the plaintiff, the court can not say, on error, that no prejudice re-
sulted, and will reverse the judgment. Id.
And see Bear v. Knowles, 36 O. S. 43.
Note. Every competent and careful lawyer will so frame his pleadings that
only questions involving the merits of his cause can give ri?e to doubt, or in-
volve consideration upon proceedings in error. Defects and doubts are pro-
vided against by proper averments when the facts warrant them. Thus pro-
tracted and expensive litigation, in courts of error, will be avoided upon every
matter collateral to the merits of the cause, the merits being the only matters
possible to be reviewed. It is not conducive to legal reputation to be compelled
to expend time and labor and to extend litigation in defending a cause from
blunders that proper care and knowledge could have avoided.
Amendment after demurrer sustained. SEC. 5116. If the demurrer
be sustained, the adverse party may amend, if the defect can be reme-
died by amendment, with or without costs, as the court in its discretion
shall direct.
(a) If the plaintiff's petition be adjudged insufficient on demurrer,
and no leave to amend be asked for, it is not error to proceed to final
judgment against the plaintiff, without granting leave to amend. De-
voss v. Gray, 22 O. S. 159.
Further time for trial after amendment. SEC. 5117. When either
party amends a pleading or proceeding, and 'the court is satisfied, by
affidavit or otherwise, that the adverse party could not be ready for
trial in consequence of the amendment, a continuance may be granted
to some day in term, or to another term of the court.
Wlien party may be sued by a fictitious name. SEC. 5118. When teh
plaintiff is ignorant of the name of a defendant, such defendant may be
designated in any pleading or proceeding by any name and description,
and, when the true name is discovered, the pleading or proceeding may
be amended accordingly ; and the plaintiff, in such case, must state, in
PLEADINGS. 865
the verification of his petition, that he could not discover the true
name, and the summons must contain the words " real name unknown,"
and a copy thereof must be served personally upon the defendant.
x 'lamented pleading, when to be filed. SEC. 5119. Either party
may be allowed, on such terms as to costs as the court, or a judge
thereof, may prescribe, to file a supplemental petition, answer, or reply,
iillcL'ing facts material to the case which occur subsequent to the filing of
the former petition, answer, or reply; but reasonable notice of the
application must be given when the court or judge so requires.
(a) The character of a pleading is determined by the averments it
contains, and not by the name given to it; and if a paper styled " sup-
plemental petition " contains facts such as would be proper in an amended
petition, it may be so treated ; and it is within the discretion of the
court to allow such a pleading to he filed during the progress of a cause.
nnati, v. Cameron, 33 O. S. 336.
When action* may be consolidated. SEC. 5120. When two or more
actions are pending in the same court, the defendant may, on motion,
ami notice to the adverse party, require him to show cause why the
same shall not be consolidated ; and if it appear that, at the time
the motion is made, the actions could have been joined, and if the court,
or a judge thereof, find that they ought to be joined, the several ac-
tions shall be consolidated.
MOTIONS.
\Vhat a motion is. SEC. 5121. A motion is an application for an
order, addressed to a court or judge, by a party to a suit or proceeding,
or one interested therein.
(a) It is always the right of a party in a case to invoke the ac-
tion of a court by motion, for proper cause. And this right has also
been very properly extended to those having an interest in the subject-
matter, though not parties. Thus, in actions of replevin, attachment,
and in cases of distribution of money, it has been the practice to en-
tertain and hear motions made by persons in interest, though strangers
to the record. CaUender v. Painesville, etc., R. Co., 11 O. 8. 516, 520.
Where a party is proceeding to sell lands on avoid judgment, a sub-
sequent purchaser may move to set aside the execution, though not a
party to the judgment proceeding. J/I///T v. Peters, 25 O. S. 270.
several objects may be inrlmlnl in mnlion. Snr. 5122. Several
objects 'may be included in the same motion, if they all grow out of,
or are connected with, the action or proceeding in which it is made.
366 CODE PRACTICE AND PRECEDENTS.
Notice of motion, what to contain. SEC. 5123. When notice of a
motion is required, it must be in writing, and shall contain the names
of the parties to the action or proceeding in which it is made, the
name of the court or judge before whom it is to be made, the place
where and the day on which it will be heard, the uature and terms of
the order or orders to be applied for, and, if affidavits are to be used
on the hearing, that fact shall be stated ; and the notice shall be served
a reasonable time before the hearing.
See section 5354 and notes.
Who may serve notices, and how service proved. SEC. 5124. Notices
of motions may be served by a sheriff, coroner, or constable, or by a
disinterested person ; and the return of an officer, or affidavit of such
person, shall be proof of service.
How and upon whom service to be made. SEC. 5125. The service of a
.notice shall be made as required for the service of a summons, and when
served by an officer he shall be entitled to like fees; the service shall
be on the party, or his attorney of record, if either is a resident of the
county in which the motion is made ; and if there is more than one
party adverse to such motion, service shall be made upon each party, or
his attorney.
When notice not required. SEC. 5126. Motions to strike pleadings
and papers from the files may be made with or without notice, as the
court or judge shall direct.
ATTACHMENT GROUNDS Of. 367
CHAPTER XXV.
ATTACHMENT-GROUNDS OF.
Grounds upon which plaintiff may have attachment. SEC. 5521. In a
civil action for the recovery of mouey, the plaintiff may, at or after
the commencement thereof, have an attachment against the property
of the defendant, upon the grounds herein stated :
11 When the defendant, or one of several defendants, is a foreign
corporation, or a non-resident of this state; or,
2. Has absconded, with the intent to defraud his creditors; or,
'. Has left the county of his residence, to avoid the service of a
summons; or,
4. So conceal himself that a summons can not be served upon him ;
or, '
5. Is about to remove his property, or a part thereof, out of the ju-
risdiction of the court, with the intent to defraud his creditors; or,
6. Is about to convert his property, or a part thereof, into money,
for the purpose of placing it beyond the reach of his creditors; or,
7. Has property, or rights in action, which he conceals; or,
8. Has assigned, removed, disposed of, or is about to dispose of,
his property, or a part thereof, with the intent to defraud his credit-
or- ; or,
'.. Has fraudulently or criminally contracted the debt, or incurred
the obligation, for which suit is about to be or has been brought. But
un Attachment shall not be granted on the ground that the defendant
is a foreign corporation, or a non-resident of this state, for any claim
other than a debt or demand arising upon contract, judgment, or de-
cree, or for causing d.th by a negligent or wrongful act.
(a) The court acquires jurisdiction in attachment against a non-
resident, by the issuing of process based on the requisite affidavit
the attaching of property. Paine v. Mooreland, 15 O. 43(5; Cvchraii v.
Lrin'j, 17 O. 409. But where property is sought to be reached by
process of garnishment only, the answer of the garnishee that he is not
indebted, and has no property in his possession belonging to the d< -
fendant, does not oust the court of jurisdiction. Myers v. SmitJi. '_".
120; Railroad Co. v. PeopUt, 31 O. 8. 537. If, after thus ac-
quiring jnriMiiftion, the court proceed to render judgment without the
368 CODE PRACTICE AND PRECEDENTS
publication of notice, such judgment is not void, and can not be im-
peached collaterally, but must be reversed on error. Paine v. Moore-
head, supra. And the death of the defendant pending the action,
which is essentially in rem, does not prohibit the court from proceed-
ing to the final disposition of the case and a sale of the attached prop-
erty. Cochran v. Loring, supra.
The words ' ' foreign corporation " as used in section 28 of the act
of March 14, 1853 (51 v. 179), do not include a corporation created
by the laws of this state, and located therein. ,Boley v. Ins. Co., 12
O. S. 139.
When the petition and affidavit for attachment fail to show that the
cause of action is one arising upon contract, judgment, or decree,
jurisdiction of the defendant can not be acquired on the ground of
his non-residence in the state ; nor will an amendment of the pttition,
showing a cause of action arising upon contract, give jurisdiction
without the issuance of an attachment after the amendment. Pope
v. Insurance Co., 24 O. S. 481.
After the dissolution of the firm, a partner, in an action against his
copartner to recover a general balance claimed upon an unsettled part-
nership account between them, may have an order of attachment.
Goble v. Howard, 12 O. S. 165. (An action in such case can not be
an action at law, but must be an equitable one.)
An attachment will lie in a civil action to recover unliquidated
damages for assault and battery. Sturtevant v. Tuttle, 22 O. S. Ill ;
Kirk v. Whitaker, ib. 115. Also for damages for the fraud of defend-
ant in obtaiuing goods of the plaintiff. Dean v. Yates, 22 O. S. 308.
An action (and an attachment therein) will lie for falsely, ma-
liciously, and without probable cause, suing out a writ of attachment
against the plain tiff's effects, to his injury, though it be admitted that
he was indebted- to the defendant; aud a creditor's false affidavit,
that his resident debtor absconds, is not probable cause for the issue of
an attachment against his effects. Tomlinson v. Warner, 9 O. 103 ;
Fortman v. Rottier, 8 O. S. 548. Aud in such action it is not neces-
sary to aver in the petition or prove on the trial that the attachment
had been discharged, or otherwise terminated adversely to the claim
of the party employing it. (In actions for malicious prosecution on
a charge of a crime, it is necessary to aver and prove that the prose-
cution has terminated by the discharge of the accused.) Nor is it
necessary to make such averment or proof when the trial and judg-
ment in the former suit did not necessarily involve the question of
the existence of probable cause for issuing the attachment. Fortman
v. Rottier, supra.
ATTACHMENT OROUNIi- OF.
(This section changes tin- law as enacted by former statutes, and
authorises an atlaclinifiit airain>t (// of .-everal jointly liable in tin-
plaint iH'.;
If an attachment \*- sued out ami pp>|>erty attached under tli*
der, no petition IHMIIU' tiled, and afterward, on the same day, a pe-
tition is filed, such attachment will not \>e good against other attach-
ments; nor will any unnnthoriyd attachment. Siebert v. Suntzer, 35
- .;;i.
HOW ATTACHMENT OBTAINED.
Requisites for affidavit for attacJiment. SEC. 5522. An order of a t taqh-
nieiit shall be made by the clerk of the court in which the action in
brought, in any case mentioned in the preceding section, when there
is filed in his office an affidavit of the plaintiff, his agent or attorney,
showing ^
1. The nature of the plaintiff's claim ;
2. That it is just;
3. The amount which the affiant believes the plaintiff ought to re-
cover; and,
4. The existence of any one of the grounds for an attachment
enumerated in the preceding section.
(o) The ground for an attachment may be stated in the affidavit in
the language of the statute, without specifying more particularly
the facts intended to be alleged. Cotton v. /'ny, O. S. 397 ; Em-
mitt v. Yeigh, 12 O. S. 335. (But, when in the language of the stat-
ute, the affidavit to such ground should be positive, and not according
to belief merely. If sworn to according to "belief," the facts show-
ing the existence of the ground must be stated.
No form of statement is invalidated by adding thereto a statement
of such particular facts as would justify a belief in the truth of the
general statement. Emmitt, v. Y>i<jli, supra.
When the charge made in the affidavit for an order of attachment
is denied by the defendant, under oath, upon a motion to discharge
the attachment, it must then be sustained by the plaintiff by addi-
tional evidence to the satisfaction of the court, or the attachment will
be discharged; upon the plaintiff, by such denial, is thrown the bur
den of proof. /'/.
And an affidavit is sufficient if it states positively the amount
"due" upon the plaintiffs claim, instead of show in g the amount
which " he believes to-be due." Sleet v. William*, 21 O. S.
It is not. indispensable that the affidavit should contain the exact
words of the statute, provided it contains language fully equivalent,
J4
370 CODE PRACTICE AND PRECEDENTS.
or clearly " showing " the ground specified or intended. Creasser v.
Young, 31 O. S. 57.
An affiadvit setting forth that the action was brought to recover
damages for the defendant's unlawful assaulting, beating, bruising,
and shooting the plaintiff, sufficiently shows that the defendant " crimi-
nally " incurred " the obligation " on which the suit was brought. Id.
An affidavit stating the plaintiff's belief that the defendant had ab-
sconded with intent to defraud his creditors, without setting forth any
facts justifying such belief, does not lay a sufficient ground for issuing
an order of attachment. Dunlevij v Schartz, 17 O. S. 640. Nor is an
affidavit merely setting forth the belief of the plaintiff, or his agent,
that the debt for which the action was brought was fraudulently con-
tracted, without stating any facts on which such belief is founded, suf-
ficient. Garner v. White, 23 O.S. 192. Nor is it necessary, when the
affidavit is made by the agent or attorney, that it show why it was not
made by the party himself. White v. Stanley, 29 O. S. 423.
The affidavit and order of attachment constitute no part of the
pleadings in the action, and the grounds of attachment should not be
stated in the pleadings; and this rule applies as well in an action for
a debt not due as in other actions. Harrison v. King, 9 O. S. 388 ;
Endel v. Leibrock, 33 O. S. 254. But if the omission of a separate
affidavit can be cured by a showing in tJie petition, it should contain
all the requisites of an independent affidavit, and be duly verified ;
and where the petition, treated as an affidavit for an attachment,
does not show that the claim sued on is "just," nor state the amount
the affiant believes he ought to recover, and is certified on belief merely,
it is insufficient to cure the omission of a separate affidavit. Endel v.
Leibrock, supra. See Sei&ert v. Switzer, 35 O. S. 661 ; and note to sec-
tion 5521. See also section 5632 (BASTARDY).
When undertaking required. SEC. 5523. When the ground of the
attachment is that the defendant is a foreign corporation, or a non-
resident of this state, the order of attachment may be issued without
an undertaking ; but in all other cases the order shall not be issued by
the clerk until there is executed in his office, by sufficient surety of
the plaintiff, to be approved by the clerk, an undertaking, in a sum
equal to double the amount of the plaintiff's claim, to the effect that
the plaintiff shall pay the defendant all damages which he may sus-
tain by reason of the attachment if the order prove to have been
wrongfully obtained.
(a) When an attaching creditor files the proper affidavit entitling
him to an attachment, his failure to file the undertaking provided by
ATTACHMENT GROUNDS OF.
this section for the indemnity of the defendant docs not render tin;
attachment abeolnlrhi i-niil, hut it is :i men- irregularity, of which the
int alone can take advantage, (f frm-rll v Stockman, 1!) O. 8.
t the defendant can have ilie attachment discharged, and the
'.'.^ tiie writ will be liable to him tor damages to the extent
:-Iaine<l.j
An action on an undertaking given under this section to two persona
may be prosecuted in their names, as partners, when it appears that
the -inly injury complained of was the wrongful seizure of property
owned by them as partners. Alexander v. Jacoby, 23 O. S. .358.
An action on such undertaking may be prosecuted by those obligees
who have an interest in the damages sought to be recovered, without
making other obligees, who have no interest in the action, parties
thereto. 76.
In such action it is not necessary to aver or prove thnt the attach-
ment has been discharged as to those obligees who are not necessary
parties to the action. Ib.
The execution of a redelivery bond, under section 5529, by the de-
fendant in attachment, can not be set up as a bar to his right of action
on the attachment undertaking. Ib.
In such action the plaintiff may recover damages for interruption to
his business, caused by the wrongful seizure and detention of a stock
of goods kept for sale by retail. Ib.
Compensation in such cases includes reasonable costs and expenses
incurred in procuring the discharge of the attachment and the restora-
tion of the attached property. Ib. (But exemplary or punitive
damages can not be recovered in such action malice and want of
pn. l.:ible cause being no part of the yl*t of the action, as they are in
actions for malicious prosecution ; the question in an action on such
undertaking being simply was the attachment wrongfully obtained?
And on this question the parties have the right to a trial by jury,
i they have not upon a motion to discharge the attachment ; and,
fore, overruling a motion to discharge an attachment, and the
finding by a court or judg-i that it properly Nstied, upon sufficient
ground, is no bar to an action upon such undertaking for wrongfully
obtaining the order of attachment)
It is error to admit in evidence the opinions of witnesses as to the
amount of loss or damages sustained by the depreciation in the mark* t
value of a stock of goods, caused by the seizure and detention thereof
under an order of attachment. 76.
1 ' .'nages supposed to result by reason of an injury to the
372 CODE PRACTICE AND PRECEDENTS.
of goods, caused by the levy of the attachment thereon, are too vague
and uncertain to be capable of legitimate proof, or to form the basis
of a recovery in an action on the attachment undertaking. Ib.
(6) Where, in the body of the bond, it appears that it was drawn
for the purpose of being executed by two or more obligors, but their
names are not written therein, the spaces for their names being left
blank, but the instrument is signed by obligors, it is binding upon
them. McLain v, Simington, 37 O. S. 484 ; Partridge v. Jones, 38 O.
S. 375.
Orders of attachment, to whom directed, and tJieir command. SEC. 5524.
The order of attachment shall be directed and delivered to the sheriff,
and shall require him to attach the lands, tenements, goods, chattels,
stocks, or interest in stocks, rights, credits, money, and effects of the
defendant, in his county, not exempt by law from being applied to the
payment of plaintiff's claim, or so much thereof as will satisfy the
plaintiff's claim, to be stated in the order as in the affidavit, and
the probable costs of the action, not exceeding yi/ty dollars.
(a) An order of attachment without the requisite affidavit is void
and the seizure, upon such void writ of property, of a nou-residem.
debtor, upon whom service -of summons can not be made, does now
give the court such jurisdiction over the defendant or his property as
will authorize a service by publication, or a judgment in the action.
Endel v. Leibrock, 33 O. S. 254.
The interest of the mortgagor in mortgaged chattel property of
which he is in possession, after condition broken, may be attached, and
the subsequent replevin of the property by the mortgagee, and as-
signment to him of the surplus after paying the mortgage debt, do
not defeat the lien of the attachment ; and the attaching creditor may
subject such surplus to the payment of his judgment by action. Carty
v. Fenstemaker, 14 O. S. 457.
An attachment may be levid upon the stock of a non-resident stock-
holder of a private corporation, by serving a notice of garnishment
upon the corporation ; the jurisdiction of the court is then complete,
and the answer of the garnishee, denying that defendant owns any
stock in the corporationn, does not oust the court of jurisdiction ; and
for the purpose of ascertaining its jurisdiction, the court may hear
testimony, and having found in favor of its jurisdiction, its final judg-
ment and order in the case are not void. Bank v. Railway Co., 21 O.
S. 221.
One who has executed a defective deed of conveyance of land, which
deed has not been recorded, has an interest in the land which may be
ATTACHMKNT UKOl'XDS OF. 373
attached; and, if attached and - -Id as the property of the vendor, a
purchaser without notice of the equity takes a good title. Paine v.
Mooreland, 15 O. 435.
Orders of attachment may i#guf to different rountir*. Si:c. ~i~>'2~). Orders
of attachment may be issued to the sheriffs of different counties; and
1 of tin in may, at the option of the plaintiff, be issued at the
j-ariu- time, or in succession ; but such only as have been executed shall
be taxed in the costs, unless otherwise directed by the court.
.Vo/r If the defendant can not be served with summons in the county where
the action is brought, and no property and no rights subject to garnishment can
be found therein, no order of attachment can be issued to another county and
i upon property so as to give the court jurisdiction, but the action must be
brought in a county wheio some property or property rights of the defendant
re subjected to the attachment.
When order returnable. SEC. 5526. The return day of the order of
attachment, when the order is issued at the commencement of the
action, shall be the same as that of the summons; and when issued
afterward, it shall be hcenty days after it issued.
EXECUTION AND RETURN THEREOF.
When several orders issue, in what order executed. SEC. 5527. When
there are several orders of attachment against the same defendant,
they shall be executed in the order in which they were received by the
sheriff.
(a) When so executed, if, afU-r judgment, the attached property is
i on upon execution to satisfy the judgment, and not ordered to
he sold upon an order of sale in attachment, the attachment is not
abandoned, but its lien upon the property still subsists. Liebman v.
AMaker, 36 O. S. 94.
How executed. SEC. 5528. The sheriff shall execute the order of at*
tachment without delay ; he shall go to the place where the defendant'*
proj*Tty i*, and there, in the presence of two freeholders of the county,
re that, by virtue of the order, he attaches the property at the
suit of the plaintiff; the officer, with the freeholders, who shall be first
sworn by the officer, shall make a tnu- invent TV and ppMiteoMOt <>f
all the property at tarhed, which shall be signed by the officer and free-
holders, and returned with the order; when the property attached is
real property, the officer shall leave with the nrruftant thereof, or, if
there is no occupant, in a ronpieuou place thrr ,., :i , ,, ,\ ,.f the
374 CODE PRACTICE AND PRECEDENTS.
order ; aud when it is personal property, and can be come at, he shall
take it into his c,ustody, aud hold it subject to the order of the court.
When the attached property may be delivered to the persons with whom
found. SEC. 5529. The sheriff shall deliver the property attached to
the person in whose possession it was found, upon the execution by
such person, in the presence of the sheriff, of an undertaking to the
plaintiff, with sufficient surety, resident in the county, to the effect
that the parties to the same are bound, in double the appraised value
of the property, that the property, or its appraised value in money,
shall be forthcoming to answer the judgment of the court in the action ;
but if it appear to the court that;any part of such property has been
lost ur destroyed by unavoidable accident, the value thereof shall be
remitted to the person so bound.
Note. Such undertaking may be called ".a forthcoming bond in attachment."
(a) In an action brought upon an attachment undertaking by the
payees and subsequent attaching creditors, some of whom had attached
only part of the property while constructively in the hands of the
sheriff: Held, 1. That the parties having an interest as attaching
creditors, in the proceeds of the goods so attached, might be joined as
plaintiffs in such action, although not named as payees therein.
2. That the undertaking given to the first attaching creditors, being for
the forthcoming of the goods or their value in money, all creditors at-
taching during the pendency of the actions of the payees of the under-
taking acquired an interest in the undertaking for the satisfaction of
their judgments. 3. That where part of the property mentioned in
the undertaking had been surrendered to the sheriff, and from the
proceeds thereof all judgments of the creditors attaching all the prop-
erty had been fully paid, the same would be a satisfaction of the un-
dertaking. 4. And that in such case it is error to render judgment
against the sureties for the value of the goods not surrendered, for the
satisfaction of judgments of creditors who only attached the property
surrendered to the sheriff. Rutledge v. Corbin, 10 O. S. 478.
Different attachments may be made by the same officer. SEC. 5535. Dif-
ferent attachments of the same property may be made by the same
officer; and one inventory and appraisement shall be sufficient, and it
shall not be necessary to return the same with more than one order.
(a) A. subsequent attaching creditor should be heard as to any ques-
tion of priority between him and the plaintiffs, on motion; he can not
properly be made a party in the plaintiff's action because of his inter-
est in the attached property, and if he be so made a defendant, there
ATTACHMENT GROUNDS OF. 37J
is no error iu dismissing him from the action. Harrison v. King, 9 O.
6. 388 ; Wanl \. Howard, 12 O. 8. 158. Ami he can not rely on in-
formalities or irregularities in the proceedings to assert his claim. Ib.
Nor in an action for money only, when an attachment is sued out and
levied on lands of a debtor, is a mortgagee of the land seized in at-
tachment a proper party in the action. Endel v. Leibrock, 33 O. S.
subtequent attachment* made. SEC. 5536. When the property
is under attachment, attachments on the same under subsequent orders
shall be as follows : 1. If it is real property, it shall be attached in the
manner prescribed in section 5528. 2. If it is personal property, it
shall be attached as in the hands of the officer, and subject to any
previous attachment. 3. If a person be made a garnishee more than
once with respect to the same indebtedness or liability, a copy of the
order and notice shall be left with him, in the manner prescribed in
section 5530.
Form of return. SEC. 5537. The officer shall return upon every
ordt-r of attachment what he has done under it, and the return must
show the property attached, and the time it was attached ; when gar-
nishees are served, their names, and the time each was served, must be
stated ; and the officer shall return with the order all undertakings
given under it.
(a) The return of the officer, until vacated or set aside by due course
of law, is conclusive between the parties to the suit and others whose
rights are necessarily dependent upon it; but as to all other persons it
is only prlma facie evidence of such facts, and subject to be disproved
whenever it is offered in evidence. Phillips \. Elwell, 14 O. S. 240.
The return of the officer as to tho description of the property
levied upon can not be so amended as to prejudice other liens interven-
ing between the time of the levy and the date of amendment ; and if
the amendment be made, the lion will only operate as to third persons
from the date of the amendment. Trust Company v. Insurance Co., 13
20.
IVhfn property and garnvshee bound. SEC. 5538. An order of attach-
ment shall bind the property attached from the time of service; :m-l
irniahec shall stand liable to the plaintiff in attachment for all
property of the defendant in his hands, and money and credits due
from him to the defendant, from the time he is served with the written
notice mentioned in section 5530; but when propetty is attached in the
hand- of a consignee, his lien thereon shall not b affected by the at-
tachment.
376 CODE PRACTICE AND PRECEDENTS.
(a) The garnishee is not, during the pendency of the attachment
proceedings, necessarily exempted from an existing liability to pay
interest upon his indebtedness to the defendant in attachment ; and a
cause of exemption in such case will not be presumed, but must be
shown like any other defense. Condee v. Webster, 9 O. S. 452.
The indorsee of a certificate of deposit in a bank, who received
it in good faith and for a valuable consideration, two days after its
date, can enforce payment to himself from the maker, and the maker
is not liable in such case to an attaching creditor of the maker under
this section. Howe v. Hartness, 11 O. S. 449.
The mortgagee of personal property, who purchases a claim secured
by a prior attachment lien on the property, acquires an equitable lien
us against attachments levied subsequently to the mortgage, for the
money thus expended, though the statutory lien of the prior attach-
ment, by the enforcement of the mortgage, may be technically ex-
tinguished. Armstrong v. MeAlpin, 18 O. S. 84.
The owner contracted to sell land for ore. Before payment a
creditor of the vendor attached the land, and garnisheed the vendee,
who brought an action in which a receiver was appointed to receive the
ore. Another creditor of the vendor garnisheed the vendee and the
receiver, and in a subsequent action to settle the liens on the ore it was
held that whether the garnishments were of any validity or not, the
levy on the land gave a prior equity to the ore. McCombs v. Howard,
18 O. S. 422.
And see also Conley v. Chilcote, 25 O. S. 320 ; Chilcote v. Conley, 39
O. S. 545 Shorten v. Drake, 38 O. S. 76.
DISPOSITION _ OF ATTACHED PROPERTY.
Hoiv attadied property disposed of. SEC. 5544. The court, or a judge
thereof in vacation, may make proper orders for the preservation of
the property during the pending of the suit, and may direct a sale of
the property when, because of its perishable nature, or the cost of keep-
ing it, a sale will be for the benefit of the parties ; the sale shall be
public, after such advertisement as is prescribed for the sale of like
property on execution, and shall be made in such manner, and upon
such terms of credit, with security, as the court or judge, having re-
gard to the probable duration of the action, may direct, and the sheriff
shall hold and pay over all proceeds of the sale collected by him, and
all money received by him of garnishees, under the same require-
ments and responsibilities of himself and sureties as are provided in
respect to money deposited in lieu of bail. See sections 5499, 5500 ;
Sup., sec. 5515, p. 353.
ATT \rHMKXT <JK"UND8 OP. 377
RESTITUTION OK ATTACHED PROPERTY 1:1.- 1 1 1 T I 1 >N i:-NU.
Attachment may be discharged by undertaking. SEC. 5545. If the de-
fendant, or other person on his behalf, at any time before judgment, cause
an undertaking to be executed to the plaintiff, by sufficient surety res-
ident in the county, to be approved by the court, in double the amount
of the plaintiff's claim as stated in his affidavit, to the effect that the
ill -femlant shall perform the judgment of the court, the attachment
shall be discharged, and restitution made of any property taken under
it, or the proceeds thereof ; and such undertaking shall also discharge
the liability of a gamishee in the action, for any property of the de-
fendant in his hands.
(a) The undertaking supersedes all proceedings under the attach-
ment, and a gamishee who had been served with process, and answered
after the undertaking had been given, should, on application of the
defendant, be discharged. Mytn v. Smith, 29 O. 8. 120.
// / restitution bond given in vacation. SEC. 5546. The undertaking
mentioned in the preceding section may, in vacation, be executed in
the presence of the officer having the order of attachment in his hands,
or, after the return of the order, before the clerk, with the same effect
as if executed in court, the sureties, in either case, to be approved by
the officer before whom the undertaking is executed.
(a) The undertaking may be executed, in vacation, in the presence
of the sheriff, while the order of attachment remains in his hands,
either before or after a levy upon property under the writ. Harticett
v. Smith, 15 O. S. 200.
GARNISHMENT.
nuthmrnt, and service on garnuhe*:. SEC. 5530. (6'u/. , p. .'>.">'{.) When
the plaintiff, his agent or attorney, makes oath, in writing, that he has
good reason to believe, and does believe, that any person, partnerthi}.. <>r
corporation in the affidavit named, has property of the defendant in
-session, describing the same, if the officer can not get possession
of such property, he shall leave with such garnishee a copy of t!n>
unlcr of attachment, with a written notice that he apjx-ar in court an-1
answer, as provided in section 5547 ; and if the garnishee does not n--
fi<lc in the county in which the order of attachment was issued, the
-s may be servpd by the proper officer of tin- county in which the
garnishee resides, or may be personally - r\. d.
(a) Under the former section, which <liil not contain the word
"partnership." it was held that proceedings in ganiNhrncMit might, in
378 CODE PRACTICE AND PRECEDENTS.
a proper case, be instituted against a partnership by its firm name.
Whitman v. Keith, 18 O. S. 134.
(This amendment seems, therefore, to have been unnecessary). A
railroad company incorporated under the laws of another state, and
operating a railroad under the laws of this state, may be garnisheed
under this section. Railroad Co. v. Peoples, 31 O. S. 537.
Garnishment of public officer. SEC. 5531. The service of process of
garnishment upon the sheriff, coroner, clerk, constable, master com-
missioner, marshal of a municipal corporation, or other officer having in
his possession any money, claim, or other property of the defendant, or
in which the defendant has an interest, shall bind the same from the
time of such service, and shall be a legal excuse to such officers, to
the extent of the demand of the plaintiff, for not paying such
money or delivering such claim or property to the defendant, as by
law, or the terms of the process in his hands, he would otherwise
be bound to do.
(a) Under a former statute it was held that mouey received by a
sheriff on execution could not be attached in his hands. Dawson v.
Holcomb, 1 O. 275.
In order to attach property held by an officer under legal process,
he must be proceeded against as a garnishee, and it is not sufficient, in
order to bind the officer or the property, that he be merely notified, by
the officer holding the writ of attachment, that he holds the same, and
by virtue of it attaches the property. Locke v. Butler, 19 O. S. 587.
(In such cases where the action is brought in the Court of Common
Pleas, and the sheriff is to be garnisheed, the coroner of the county is
the proper officer to serve process.)
In an action by the plaintiff in attachment against the garnishee,
to recover money in his hands at the time process was served by copies
left at his usual place of residence, it is no defense for the garnishee
to show that he was absent from home at the time of such service, and
that his agent, who had knowledge of the time and manner of the serv-
ice, afterward, and before his return, paid over the money in his hands
to the defendant in attachment before the garnishee had actual notice.
Nor is it a defense that the defendant in attachment might have claimed
such money under the exemption law. Conley v. Chilcote^ 25 O. S.
320 ; Chilcote v. Conley, 36 O. S. 545.
When garnishee to ansiver and be examined. SEC. 5532. The answer
of the garnishee shall be made before the clerk of the Court of Com-
mon Pleas of the county in which he resides, or, if he resides out of
the state, before the clerk of the Court of Common Pleas of the count})
ATI I - GROUNDS OF. 379
where he was served, or where the action is pending; u sj>ocial ex-
amination of the garuishec shall be had; and arii<>n< against him
under section 5.V> I .-hall be brought in the county in which he resides.
(a) When a special examination of the garnishee is ordered, the
court may appoint a commissioner to take the same; and it is not
necessary that such examination be taken in open court. Whitman v.
A H ISO. R. 184.
' 'I'-rk t tratumit aiunver to the proper court. SEC. 5533. The clerk
f the Court of Common Pleas before whom the answer i.s made, shall
transmit the same to the clerk of the court in which the suit is pend-
ing, in the same manner as depositions are required to be directed and
transmitted, an-1 shall receive for his services such fees as are allowed
by law for taking depositions, and to clerks for furnishing certificates.
with their seals of office attached ; and if the garnishee admit an in-
debtedness to the defendant, and the court order the payment of the
ame, or any part thereof, to the plaintiff, and the garnishee fail to
pay the same according to such order, execution may issue thereon aa
upon judgments for the payment of money.
II ->o garn'uhee served. SEC. 5534. (Sup., p. 354.) If the garnishee is
a person, the copy of the order and notice shall be served upon him
personally, or left at his twwaZ place of residence; if a partnership gar-
nisheed by its company name, they shall be left at its usual place of
doing business ; and if u corporation they shall be left with the presi-
dent or other principal officer, or the secretary, cashier, or managing
agent thereof; and if such corporation is a railroad c mpanv, they
maybe left with any regular ticket or freight agent thereof, in any
o>mity in which the railroad is located.
(a) In proceedings in garnishment against u partnership by its firm
name, the copy of the order of attachment and notice to appear ami
answer must be served upon the firm by leaving them at its usual place
of doing business in the county. Whitman v. Keith, 18 O. S. 134.
Process upon a railroad company incorporated under the laws of
another state, and operating a railroad in this state, must IK; serv ! in
tin- Mime manner us upon a domestic corporation. Railroad v. People*,
;:i o. 8. 537.
1 1 muWur to apftear ami make tlMotur*. SEC. 5547. Tho
if tin; order of attainment be returned during a term of court, ami
twenty days before the close thereof, shall appear at that term, ami if
the order be returned during vacation, ho shall appear at the term next
after \t* return; and he shall answer, under oath, all ijin-<iion< put to
380 CODE PRACTICE AND PRECEDENTS.
him touching the property of every description, and credits, of the
defendant in his possession or under his control, and he shall disclose,
truly, the amount owing by him to the defendant, whether due or not,
and, in the case of a corporation, any stock therein held by or for the
benefit of defendant, at or after the service of notice.
(a) A corporation plaintiff, in an action against a defendant who is
the owner of shares of its capital stock, may garnishee itself, in order
to subject such stock to its demand against the share-holder. Norton v.
Norton, 43 O. S. 509.
Note. Unless the plaintiff requires the examination of a garnishee, to which
he has the right, it is usual for the garnishee to prepare his answer, sign and
swear to it, and file the same in the cause, in the clerk's office.
Garnishee may pay money into court, or to slieriff. SEC. 5548. A gar-
nishee may pay the money owing to the defendant by him to the offi-
cer having the order of attachment, or into court; he shall be
discharged from liability to the defendant for any money so paid, not
exceeding the plaintiff's claim, and shall not be subjected to costs be-
yond those caused by his resistance of the claim against him ; and if
he disclose the property in his hands, or the true amount owing by
him, and deliver or pay the same according to the order of the court,
he shall be allowed his costs.
When garnishee may be attached for contempt. SEC. 5549. If the gar-
nishee fail to appear in court and answer, as required by section 5547,
the court may proceed against him by attachment as for a contempt.
Disposition of property in lianas of garnishee. SEC. 5550. If the gar-
nishee appear and answer, and it be discovered on his examination,,
that at or after the service of the order of attachment and notice upon
him, he was possessed of any property of the defendant, and was in-
debted to him, or either, the court may order the delivery of such
property, and the payment of the amount owing by him, into court,
or either; or the court may permit the garnishee to retain the prop-
erty, or the amount owing, upon the execution of an undertaking to
the plaintiff, by sufficient surety, to the effect that the amount shall
be paid, or the property forthcoming, as the court may direct.
Note. This undertaking can !>o distinguished by the name of " Garnishee'a
Forthcoming Bond."
When plaintiff may liave an action against tJie garnishee. SEC. 5551.
If the garnishee fail to appear and answer, or if he appear and an-
swer, and his disclosure be not satisfactory t"> the plaintiff, or if he fail
to comply with the order of the court to deliver the property and pay
ATI A IIMKNT i,
the money owing into court, or to give the undertaking required in the
last section, the plaintiff may proceed against him by civil action; and
thereupon such proceedings may be had as in other actions, and judg-
ment may be rendered in favor of the plaintiff f'>r the amount of
property and credits of every kind of the defendant in possession of
-urnishee, and for what may appear to be owing by him to the de-
fendant, ami tor the costs of the proceedings against the garnishee.
(a) The right of action against a garnishee given by this section
posses by assignment of the judgment obtained against the defendant
in attachment, and an action may be brought by the assignee in his
wn name. Whitman v. Keith, 18 O. S. 134.
An action under this section, to enforce against a partnership a
liability arising under its provisions, may be brought against the part-
nership either in its firm name, or in the names of the persons who
compose it, at the option of the plaintiff. 76.
A plaintiff in attachment can not have an action under this section
against a garnishee when the court did not have jurisdiction of the de
fendant in attachment. Pope v. Insurance Co., 24 O. S. 481. Nor, in aw
action against u garnishee, who is a non-resident of the state, can the
plaintiff have an attachment on the ground of the non-residence of such
garnishee, notwithstanding the garnishee may appear and answer to
the merits of the case. Squair v. Sliea, 26 O. S. (540.
>, antl ichen defendant *nb*tituttd in the judgment. Sue. ?>~)~>'2. If
the plaintiff proceed against the garnishee by action, for the cau.-<
that his disclosure was unsatisfactory, unless it appear in the action
that such disclosure was incomplete, he shall pay costs of such a<--
tion ; and when the claim of the plaintiff in attachment is sati-finl.
the defendant may, on motion, be substituted as the plaintiff in the
judgment.
Wlirn judgment may be rendered against garnithee, and ir/wn he mutt
be discharged. SEC. 5553. Final judgment shall not be rendered
against the garnishee until the action against the defendant in attach-
ment i.s determined ; if in such action judgment be rendered for the
lant in attachment, the garnishee shall be discharged, and re-
cover costs; and if the plaintiff recover against the defendant in at-
tachment, and the garnishee deliver up all the property and credits of
the defendant in his possession, and pay all the money due from
him, as the court -may order, the garnUhcc shall be diseliarp-il, and
the cost* of proceedings against him shall be paid out of the projx-rty
and money so ur render e 1, o r as th.> court deems right and proper.
(a) The defendant in attachment can not ask the discharge of the
382 CODE PRACTICE AND PRECEDENTS.
garnishee because his auswer fails to show that he has in his hands
property of the defendant subject to the process; the plaintiff is not
concluded by the answer, and if it is not satisfactory to him may
proceed by action against the garnishee on that ground. Myers v. Smith*
29 O. S. 120.
Note. For garnishment upon judgments against railroad companies, for
certain claims, see sections 54655471.
RECEIVER IN ATTACHMENT.
Receiver may be appointed. SEC. 5539. The court, or a judge thereof
in vacation, may, on the application of the plaintiff, and on good cause
shown, appoint a receiver, who shall take an oath, and give an under-
taking, as is provided in other cases. See sections 5587 (Sap. , p. 355)
5591.
Powers and duties of receiver. SEC. 5540. The receiver shall take pos-
session of all notes, due bills, books of account, accounts, and all other
evidences of debt, that have been taken by the sheriff or other officer
as the property of the defendant in attachment, and shall proceed to
settle and collect the" same, and for that purpose he may commence
and maintain actions in his own name, as such receiver ; but in such
actions no right of defense shall be impaired or affected.
Notice of receiver's appointment. SEC. 5541.- The reciever shall forth-
with give notice of his appointment to the persons indebted to the de-
fendant in attachment, which notice shall be written or printed, and
shall be served on the debtor by copy personally, or by copy left at
his residence; and, from the date of such service, the debtors shall
stand liable to the plaintiff in attachment for the amount of money
and credits of the defendant in attachment in their hands, or due from
them to him, and shall account therefor to the receiver.
Note. The service of such notice seems to have the same legal effect, as
against such debtor of the attachment defendant, as garnishee process. At
common law, a receiver, who is the mere hand or agency of the court appoint-
ing him, could not sue or be sued without permission being first given by siu-h
court. In addition to the power of a receiver in attachment to sue (not to bo
sued) in his own name, the receiver of a railroad company, appointed by H
court in this state, may sue and be sued as such, without the permission of tlm
court which appointed him. 3415, 3416. But this legislation does not apply
to receivers of railroad companies appointed by a federal court within this state.
Suable claims are presented to and tried by the court, or a referee or master com-
missioner appointed by it.
Report of receiver. SEC. 5542. The receiver shall, when required,
report his proceedings to the court, and hold all money collected by
ATTACHMENT GROUNDS OP. 383
him, and property which may come into his hands, subject to the order
of tin- C'liirt.
\\'lu n theriff to art <M i (-reiver. SEC. f>.Vl.'J. When a receiver is not ap-
pointed, the officer who attaches tbe property shall have all the powers,
Mini perform all the duties, of a receiver appointed by the court or a
ju'L'i 1 , and may, if necessary, commence and maintain actions in his
own name, as such officer; and he may lx; required to give security
oilier than his official undertaking.
REFERENCE TO A MASTER TO REPORT UPON PRIORITIES.
\Vhcn question of priority may be referred. SEC. 5559. When several
attachments are executed on the same property, or the same person is
made a garnishee by several parties, the court, on the motion of any of
the plaintiffs, may order a reference to ascertain and report the amounts
and priorities of the several attachments.
< I8E OF POWER TO KEEP ATTACHED PROPERTY IN THE CUSTODY
OF THE LAW.
Court* may enforce, the delivery of attached property. SEC. 5556. The
court may compel the delivery to the sheriff, for sale, of any of the at-
tached property for which an undertaking has been given, and may
proceed summarily on such undertaking to enforce the delivery of the
property, or the payment of the money due upon the undertaking, by
rul'-s and attachment as in cases of contempt.
Court may order dierijf to repossess himself of attached property. SEC.
5557. The court may order the officer to repoaeM himself, for the pur-
pose of selling it, of any of the attached proj)erty which has passed
out of his hands without having been sold or converted into money;
and the officer shall, under such order, have the same power to take
the property us he would have under an order of attachment.
WHEN ATTACHED PROPERTY 18 CLAIMED BY A THIRD PERSON.
// of H\e. r'ujht of property. SEC. 5558. If personal property which
has been attached be claimed by any person other than the defendant,
tin- officer shall have the validity of such claim tried; and surh pn>-
n-edings must bo had thereon, with the like effect, as if the proprrty
hud loen seized upon execution, and claimed by a third person. See
5444-544*5.
WHEN JURISDICTION IN ATTACHEEXT ACQUIRED.
Proceeding* do not abate by deatli of defendant. SEC. 5560. From the
time of the Usue of the order of attachment the court shall he di-i nn-.l
384 CODE PRACTICE AXD PRECEDENTS.
to have acquired jurisdiction, and to have control of, all subsequent
proceedings under this chapter (tit. i, div. 6, eh. 2) ; and if, after the
issue of the order, the defendant, being a person, die, or being a cor-
poration, its charter expire by limitation, forfeiture, or otherwise, the
proceedings shall be carried on ; but in all such cases, other than where
the defendant was a foreign corporation, the legal representatives of
the defendant shall be made parties to the action.
Note. If service of summons upon the defendant can not be made in the
county where the action is brought, and no property or right within such county
exist in such county that can be sequestered by attachment, the jurisdiction of
the court will fail.
Dissolved corporations, foreign as well as domestic, can sue and be sued con-
cerning transactions before dissolution. 5683,5684; Stetson v. City B. New
Orleans, 2 0. S. 167; s. c., 12 O. S. 577.
When plaintiff to give further security. SEC. 5561. The defendant may,
at any time before j udgmeu t, after reasonable notice to the plaintiff, move
the court for additional security on the part of the plaintiff; and if, on
such motion, the court is satisfied that the surety in the plaintiff's un-
dertaking has removed from the state, or is not sufficient for the
amount of the undertaking, it may vacate the order of attachment,
and direct restitution of any property taken under it, unless, in a rea-
sonable time, to be fixed by the court, sufficient security be given by
the plaintiff.
Note. The sureties in the original and additional undertakings are co-sure-
ties, liable to the defendant for the same thing, and if one set of sureties pay
the liability incurred, they are entitled to contribution from the sureties on the
other undertaking. Co-suretyship does not depend upon whether the parties
are liable as sureties on the same instrument, or upon prior or subsequent
obligations, or upon their becoming such with the knowledge of each other, but
upon whether they become liable for the same principal for his performance
of the same duties. Deringv. Earl of Winchelsea, 1 Cox, 318.
There is a distinction in this respect between a "ew;"andan "additional"
bond. A " new " bond is wholly distinct from, and a substitute for, the original,
and each set of sureties are liable only for such breaches as occurred during the
time they were bound.
MOTION TO DISCHARGE ATTACHMENT.
Motion to discharge attachment. SEC. 5562. The defendant may, at
any time before judgment, upon reasonable notice to the plaintiff,
move to discharge an attachment, as to the whole or any part of the
property attached ; and the motion may be heard and decided by the
court at any term or regular session thereof, or it may be made, heard,
and decided by any judge thereof in vacation.
ATTACHMENT GROUNDS OF.
(a) Au onii-rot' the Court of Common Pleas, discharging an attach,
ment against the defendant as to the whole of the property attached, is
" an order affecting a substantial right made in a special proceeding,"
which may be reversed pending th- act inn in which the order of attach -
in'nt was made. Watoon v. SuUivcm, 5 O. S. 42.
It i.s not competent for the defendant in attachment to move the
murt to dismiss the attachment on the ground that the property
attarlu-d does not belong to him; and it is error for a court or
jtidiro at chambers to sustain such motion. Langdon v. Conldin, 10
O. 8. 439.
An attachment will not be discharged on the ground that it ap-
pears from the answer of the garnishee that he is not indebted, and
has no property in his possession belonging to the defendant. Railroad
Co. v. Peoples, 31 O. S. 537.
On the hearing of a motion to discharge an attachment issued on
an insufficient affidavit, it is not competent for the plaintiff, in the
absence of leave to amend, or a motion for such leave, to supplement
the affidavit, or validate his proceedings by new affidavits showing the
existence of fraud in fact ; and affidavits introduced and used on such
hearing can not be used on error, unless made a part of the record by
hill of exceptions. Garner v. White, 23 O. S. 192.
The proper mode for "the defendant to meet the charge made in an
affidavit for attachment is by motion. Hanrison v. King, 9O. S. 388.
See also note to section 5522, ante, Emmitt v. Yeigh, 12 O. S. 335.
Evidence on motion to discharge. SEC. 5563. When the motion is
made upon affidavits on the part of the defendant, or papers and evidence
in the case, but not otherwise, the plaintiff may oppose the same by
affidavits or other evidence, in addition to the evidence on which the
order of attachment was made.
(a) If the motion to discharge the attachment be supported by
affidavits, counter-affidavits may also be considered; and this rule
applies where the property attached is the personal earnings of the
debtor, claimed by him to be necessary to the support of his family.
Boer v. Otto, 34 O. S. 11.
The decision of a justice of the peace upon a motion to discharge
an attachment can not be reviewed upon error on the ground that his
order is against the weight of the evidence. Ib.
PROCEEDINGS AFTER JUDGMENT.
After judgment for plaintiff. Sec. 5555. If judgment be rendered for
25
386 CODE PRACTICE AND PRECEDENTS.
the plaintiff, it shall be satisfied as follows : So much of the property
remaining in the hands of the officer, after applying the 'money arising
from the sale of perishable property, and s > much of the personal
property, and lands and tenements, if any, whether held by legal or
equitable title, as may be necessary to satisfy the judgment, shall be
sold by order of the court, under the same restrictions and regulations
as if the same had been levied on by execution ; and the money aris-
ing therefrom, with the amount which may be recovered from the gar-
nishee, shall be applied to satisfy the judgment and costs; if there be
not enough to satisfy the same, the judgment shall stand, and execu-
tion may issue thereon for the residue, in all respects as in other oases ;
and any surplus of the attached property, or its proceeds, shall be re-
turned to the defendant.
(a) Property to be selected and exempted in lieu of homestead ap-
plies as well to attachments as to executions. Close v. Sinclair, 38 O.
S. 530.
Effect of judgment for defendant. SEC. 5554. If judgment in the ac-
tion be rendered for the defendant, the attachment shall be discharged,
and the property attached, or its proceeds, shall be returned to him.
Note. If such judgment be reversed upon error the attachment lien
remains.
In the case of Cameron v. Life Association of America, in the Circuit Court
of the United States for the Southern District of Ohio, where the plaintiff, in the
Superior Court of Cincinnati, attached real estate of the defendant, and judgment
in the action was rendered for the defendant, which judgment the plaintiff,
without executing an error bond, reversed in the District Court upon error, and
afterward obtained a judgment against the defendant (tho defendant in the
meantime having retained the property, for its general creditors, it being in-
solvent), and filed a creditor's bill to subject such property to his judgment,
which cause was removed to the Circuit Court of the United States, BAXTER,
J., held, that the erroneous judgment did not discharge the attachment; that
only a valid judgment could have such effect, and subjected the attached property
to the plaintiff's judgment.
Attachment, affidavit for, etc., in bastardy cases, see section* 6632-5636.
ERROR IN CASES DISCHARGING OR REFUSING TO DISCHARGE AN AT-
TACHMENT.
Petition inerror. SEC. 5563a. (Sup. , p. 354.) A party to a suit affected
by an order discharging or refusing to discharge an order of attach-
ment, may file a petition in error to reverse, vacate, or modify the
same, as in other cases; and the original action shall proceed to trial and
judgment in every respect, as though no petition in error had been
prosecuted.
Court shall fix time in which petition in error shall be filed SEC. 55636-
ATT.M-H.Mi:vr <;ii''t M ( > UK. 387
When an order dufhanjimj an order ut" attachment is made, and a
party affected then l>y except* thereto, the court or judge shall fix the
numlx-r of days, not to exceed thirty, in which such party may file his
petition in < ir-ir, and during which it shall be filed, and the attached
rty held hy the sheriff or other officer; the party who files the
petition in error shall give an undertaking to tin? adverse party, with
mn-ty to U- approved by the clerk of the Diftrict (Circuit; Court, in dou-
ble the amount of the appraised value of the pro]K?rty attached, condi-
tional to jiay suchadverse party all damages sustained by him in con-
sequence of the filing the same, in the event of the discharge of the
ordi r of attachment by the court in which the petition in error is filed,
because the same was wrongfully obtained; and when such petition
in error is filed, and an undertaking given, the sheriff, or other
officer, shall continue to hold the property attached, subject to the
further order of the court.
Administrator, etc., mat) fie such petition. SEC. 55630. If a party who
excepts to an order discharging or refusing to discharge an order of at-
tachment die u-tth!n the time limited for filing his petition in error, the
administrator or executor of such deceased party may, at any time
within thirty days after his appointment and qualification, file his peti-
tion in error, and thereby become a party to the action, and shall not
be required to give the undertaking required by the preceding section ,
but no such petition in error shall be filed by an executor or adminis-
trator after one year from the time such order is made.
ATTACHMENT BEFORE DBT DUE.
Grounds of such attachment. SEC. 5564. A creditor may bring an
action on his claim before it is due, and have an attachment against
the property of the debtor :
1. When a debtor has sold, conveyed, or otherwise disposed of his
property, with the fraudulent intent to cheat or defraud his creditors.
<>r t . hinder or delay them in the collection of their debts; or,
U about to make such sale, conveyance, or disposition of his
property, with such fraudulent intent ; or,
Is about to remove his property, or a material part thereof, with
itent, or to the effect, of cheating or defrauding his credit'
of hindering or delaying them in the collection of their debts.
i In an affidavit for atUchment under this Motion stating the ground of
attachment, the word 'land" ihould bo used instead of the disjunctive -or.''
The latter .being in the alternative would render the affidavit insufficient.
Who to grant the order of attachment Affidavit. SBC. 5565. The at-
388 CODE PRACTICE AND PRECEDENTS.
tachment authorized by the last section may be granted by the court in
which the action is brought, or by a j udge thereof; but before such action
shall be brought, or such attachment granted, the plaintiff, or his agent
or attorney, shall make an oath, in writing, showing the nature and
amount of the plaintiff's claim, that it is just, when it will become
due, and the existence of any one of the grounds for attachment enu-
merated in the last preceding section.
(a) Upon application for an order of attachment under this section,
good practice requires that the affidavit should set forth the facts and
circumstances, and not merely the words of the statute ; yet, if a judge
or court think proper to act upon an affidavit stating the ground for an
attachment substantially in the language of the statute, it is a matter
of form and practice not affecting any substantial right of the defend-
ant, and not a proper cause for reversal upon a petition in error ; and
upon a like principle would stand any variation from the language of
the statute which does not affect the substance of the particular ground
upon which the order of attachment was granted. Harrison v. King,
9 O. S. 388.
Action to be dismissed if attachment refused. SEC. 5566. If the court
or judge refuse to grant an order of attachment, the action shall be
dismissed, but without prejudice to a future action; and in all such
actions application for an attachment must be made.
Order must specify amount. SEC. 5567. The order of the court or
judge granting the attachment shall specify the amount for which it
is allowed, not exceeding a sum sufficient to satisfy the plaintiff's claim
and the probable costs of the action.
Undertaking. SEC. 5568,. The order of attachment, as granted by
the court or judge, shall not be issued by the clerk until there is exe-
cuted in his office such undertaking on the part of the plaintiff as is
directed by section 5523.
No judgment before debt becomes due. SEC. 5569. The plaintiff in such
action shall not have judgment on his claim before it becomes due; and
the proceedings on attachment may be conducted without delay.
Note. To permit judgment to be taken before a debt becomes due would im-
pair the obligation of the contract, which the Constitution of the United States
prohibits a state from doing by any state law. Constitution TJ. S., art. 1, sec.
10, cl. 1.
Application of chapter 2. SEC. 5570. Proceedings authorized by the
next preceding chapter (2) shall govern attachments under this chap-
ter (3), so far as the same are applicable.
ATTACHMENT GROUNDS OF. 389
(a) It is error for the court of common pleas to discharge an attach-
ment which had been allowed by the proper judge, in an action by
sureties to obtain indemnity, on the ground of the insufficiency of the
affidavit. Gont v. Thompson, 11 0. 3. 579.
890 CODE PRACTICE AND PRECEDENTS.
CHAPTER XXVI.
REVIVOR OF ACTIONS.
What actions abate by the death of a party. SEC. 5144. Except as
otherwise provided, no action or proceeding pending in any court shall
abate by the death of either or both of the parties thereto, except an
action for libel, slander, malicious prosecution, assault, or assault and bat-
tery, for a nuisance, or against a justice of the peace for misconduct in
office, which shall abate by the death of either party.
(a) The right to revive an action is not dependent upon the dis-
cretion of the court or judge, but under the conditions and within the
time limited is a matter of right; but the remedy provided by the
Code is not exclusive. Carter v. Jennings, 24 O. S. 182.
The prosecution of the reputed father of a bastard child does not
abate by the death of the child. Hinton v. Dickinson, 19 O. S. 583.
If in an action of slander a party dies after verdict and before judg-
ment, the action does not abate. The right to recover being estab-
lished, and the amount of damages determined by the verdict, it shall
continue in force, and a judgment may be given upon it (nunc pro
tune) as of the term when it was rendered. Dial \. Holier, 6 O. S.
228, 246. (And the same rule will apply to all other cases which
abate by the death of either or both the parties.)
Where, in an action of slander, the defendant perfected an appeal
and died, the suit abated. Long v. Hitchcock, 3 O. 274. (An appeal
vacates the judgment, and the case is in the Appellate Court as if it
never had been tried.) See note to section 5154.
Action for dower does not abate. SEC. 5145. If the plaintiff in an
action for dower die before final judgment therein, the action may be
revived in the name of her personal representative, for the purpose
mentioned in section 5715.
When action may proceed ivithout revivor. SEC. 5146. When there
are several plaintiffs or defendants, and one of them dies, or his pow-
ers as a personal representative cease, if the right of action survive to
or against the remaining parties, the action may proceed ; but the
death of the party, or the cessation of his powers, shall be first stated
on the record.
Note. This section has reference to. joint rights or liabilities. It applies to
REVIVOP. OP ACTIONS. 391
copartners because they are jointly entitled, or jointly liable. The right or lia-
bility survive* to the living person, or persons. Common-law precedent*, as in
( 'bitty'* Pleading*, do not mention partners, but state merely a joint cause of
action or liability. See section '>'', \ 1
a tuny abate an to tome of the parties, and proceed mi to other*. SEC.
">147. When one of several plaintiffs or defendants dies, or his power*
as a personal representative cease, if the cause of action does not
survive, the court, if of opinion that the merits of the controversy can
IK? properly determined, and the principles applicable to the case fully
settled, may proceed to try the same as between the remaining jiar
ties; but the judgment shall not prejudice any person who was not a
party at the time of the trial.
This section applies to cases of atoeral rights or liabilities, direct or
collateral a* to makers of n promissory note, severally liable, or the maker, and
indoners of negotiable paper, or guarantors of a contract.
By and againft wliom action revived. SEC. 5148. When one of the
parties to an action dies, or his powers as a personal representative
cease before judgment, if the right of action survives in favor of or
against his representatives or successor, the action may be revived, and
proceed in the name of such representatives or successor.
(a) If, after judgment, a party dies, one who becomes privy to the
judgment may prosecute proceedings in error, not commenced at the
time of the death, without resort to revivor; but, in his petition in
error, he must aver, and prove, if denied, the facts making him such
privy. Hanover v. Sperry, 35 O. 8. 244.
Revivor by appearance or tnipplemental pleading. SEC. 5149. A revivor
may be effected by the allowance by the court, or a judge thereof in
vacation, of a motion of the representative or successor in interest to
become a party to the action, or by supplemental pleading alleging the
death of the party, and naming his representative or successor in in-
terest upon whom service may be made as in the commencement of an
action; but the limitations contained in subsequent sections of this
chapter (1) do not apply to this section.
(a) This section seems to be but declaratory of the law as it l>efore
1. Carter v. Jeiminy*, 24 O. 8. 182; Mack v. Hill. '.". 0. & 87.
The court may allow the representative of a decease! ,lct' mlant
in rrror,to be made party to the proceeding, although innrf than a
year may have intervened from the death >f such defendant to the
tiim- of making application for such allowance. Pavey v. l'a\
392 CODE PRACTICE AND PRECEDENTS.
O. S. 600 ; Black v. Hill, 29 O. S. 87 ; Foreman v. Haag, 37 O. 8.
J43 ; Williams v. Englebrecht, 38 O. S. 96.
An order of sale is not abated by the death of the plaintiff, nor by
the marriage of the administratrix in whose favor it issued. Craig v.
.Few, 16 O. 563 ; Kern v. Foster, 16 O. 274, 276.
Revivor by conditional order. SEC. 5150. A revivor may also be ef-
fected by a conditional order of the court, if made in term, or by a
judge thereof, if in vacation, that the action be revived in the name
of the representative or successor of the party who died, or whose
powers ceased, and proceed in favor of or against him.
The conditional order, what to contain. SEC. 5151. The order may
be made on the motion of the adverse party, or of the representative or
successor of the party who died, or whose powers ceased, suggesting
his death, or the cessation of his powers, which, with the name and
capacities of his representative or successor, shall be stated in the
order.
How served. SEC. 5152. If the order be made by consent of the par-
ties, the action shall forthwith stand revived ; if not made by consent,
the order shall be served upon the party adverse to the party on whose
motion it was made, in the same manner, and returned within the
same time, as a summons; and if sufficient cause be not shown
against the revivor, the action shall stand revived. See section 5158.
Service by publication, when. SEC. 5153. When the plaintiff makes
an affidavit that the representatives of the defendant, or any of them
in whose name the action is ordered to be revived, are non-residents of
the state, or have left the state to avoid the service of the order, or so
conceal themselves that the order can not be served upon them, or that
the names and residence of the heirs or devisees of the person against
whom the action is ordered to be revived, or some of them, are un-
known to the affiant, a notice may be published for six consecutive
weeks, as provided by section 5048, notifying them to appear on a day
therein named, not less than ten days after the publication is complete,
and show cause why the action should not be revived against them ;
and if sufficient cause be not shown to the contrary, the action shall
stand revived.
In whose name revived when plaintiff dies. SEC. 5154. Upon the
death of the plaintiff the action may be revived in the names of his
representatives to whom his right has passed; if his right has passed
to his personal representative, the revivor shall be in his name ; and if
it has passed to his heirs or devisees who could support the action if
brought anew, the revivor may be in their names.
RKVIVOR OP ACTIONS. 393
(a) An action for wrongfully causing death abates by the death of the
wrong-doer. RutteU v. Snnbnry. -".7 < > S. :}~-2. So, un action against
a surgeon for malpractice. Wolf v. Wall, 40 O. S. 111.
(6) Where the defeudatit, in a proceeding to condemn laud for public
use, dies during the pendency of the proceeding, or during the pen-
.i.-ury of a petition in error to reverse the same, the revivor of the
proceeding must be had in the name of the heirs or devisees, and not
that of the administrator of the deceased. Valley Railway Co. v. Bohm,
29 O. S. 633.
In whose name when defendant diet. SEX;. 5155. Upon the death of
a defendant, in an action wherein the right, or any part thereof, sur-
vives against his personal representative, the revivor shall be against
him ; and it may also be against the heirs or devisees of the defendant,
or both, when the right of action, or any part thereof, survives against
them.
When defendant in real action diet. SEC. 5156. Upon the death of
a defendant in an action for the recovery of real property only, or
which concerns only his rights or claims to such property, the action
may be revived against his heirs or devisees, or both, and an order
therefor may be forthwith made, in the manner directed in the pre-
ceding sections of this >ubdivision (oh. 1, subd. 4).
Limitation when defendant dies. SEC. 5157. An order to revive an
action against the representative or successor of a defendant shall not
be made without the consent of such representative or successor, unless
within one year from the time it could have been first made. See note
to section 5149.
Limit' tt ion when plaintiff diet. SEC. 5158. An order to revive an
action in the name of the representative or successor of a plaintiff may
be made forthwith, but shall not be made, of right, without the con-
sent of the defendant, after the expiration of one year from the time
the order might have been first made; but when the defendant is
dead, or his powers have ceased, the order of revivor on both sides
m:iy ! made in the period limited in the last section.
to be difmigttfd when it can not be revived. SEC. 5159. When it
by affidavit that the powers of a party who sues or is sued as
a |" r->nal representative have ceased, or that either party to an action
has been dead, fur a period so long that the action can not be revived
iti the names of his representatives or successor without the consentof
both partfes, the court shall order the action t be stricken from the
docket.
Defendant may have action duanuted for want of revivor. SEC. 5160.
394 CODE PRACTICE AND PRECEDENTS.
At any term succeeding the death of the plaintiff, while the action
remains on the docket, the defendant, having given to the plaintiff's
representatives in whose names the action might be revived ten days'
notice of the application, may have an order to strike the action from
the docket, and for costs against the estate of the plaintiff, unless the
action be forthwith revived.
Trial not to be postponed because of revivor. SEC. 5161. When an action
stands revived the trial thereof shall not be postponed by reason of
the revivor.
CONDUCT OP THK DEFBNSK AGAINST TUB ACTION, ETC. 395
CHAPTER XXVII.
oXDUCT OF THE DEFENSE AGAINST THE ACTION*, ETC.
In taking upon himself the defense of a case, the lawyer should
first ascertain if the defendant is properly in court and legally bound
to respond to the cause of action brought against htm. If the court
has jurisdiction of the subject-matter of the action, the inquiry will
he, has it properly acquired jurisdiction of the person of the defendant ;
ami if uot. how shall the defendant avail himself of his privilege, and
not, in doing so, subject himself to the jurisdiction? Want of juris-
diction of the subject-matter can not be waived, as in such case con-
sent of the parties can not confer jurisdiction upon the court ; but, in
mo-t cases, objections to the jurisdiction of Hie peiton of the defend-
ant may be waived by any act which affects a voluntary appearance
to the action.
1. Was jurisdiction of the ]>erson of the defendant obtained by the
frniiil of the plaintiff? If, upon any false pretense or stratagem, the
plaintiff has induced the defendant to come within the jurisdiction of
thi- court, and there brought the action against, and caused a sum
mons t> be served upon him, the defendant may set aside the summons
and service, which will leave the court powerless to proceed in the
cause.
The proper and safer method of taking advantage of such fraud ia
by motion.
[Form 228. J
Common Pie*.-* Court of County, Ohio.
^ John Do* Plaintiff, j Motion to Set Aside Summo|1H am , ,.,..
John Smith et als., Defendant.. J return of Swne
And now comes the said defendant, John Smith, who appears before
the court for the purposes of this motion only, and to claim that ho i MI
v bound to answer to this action in this court, and in.n . s tht> court
to set aside the summons issued herein against, and thorn urn of the serv-
ice of the same, upon him, because the said plaintiff, John Doe [or hit
attornry Edward Q>kc,'or other nam<d prrto* or persons arfiny for the plaintiff ],
for the purpose of acquiring jurisdiction, in this action, of the person <>f
this defendant, fraudulently pretended to this defendant that he d-
him to come to , to see and consult with him in reference to [what-
396 CODE PRACTICE AND PRECEDENTS.
ever the fraudulent device was\, and requested this defendant to come there
for such purpose; that relying on the truth and good faith of the said John
Doe, this defendant came to said place solely for the purpose of comply-
ing with said request, and while so at said place by the said procurement
of the plaintiff, the plaintiff caused said summons herein to be served
upon this defendant in fraud of his rights, and by fraud upon this court.
Wherefore, he asks that the summons herein, and the service and return
of the same, be set aside and held for naught.
JOSEPH CHITTT, Attorney for John Smith.
Such motion may be heard by the court -upon affidavits submitted
by the parties ; and the order of the court upon such motion may be
reviewed by petition in error all the affidavits and testimony ad-
duced to the court on the htaring being embodied in a bill of excep-
tions. If the plaintiff caused the summons to be issued to obtain its
fraudulent service upon the defendant, the summons, as well as its
service and the officer's return of the same, will be set aside at the
costs of the plaintiff; but as a party may file a petition and issue sum-
mons after summons upon it, with a view to obtaining a legal service
upon the defendant, a summons issued for such purpose, and afterward
fraudulently served upon the defendant, will not be set aside, but only
such service and the officer's return of the same.
[Form 229.]
j^. I Order Setting Aside Summons and Service and Re-
John Smith etals. J turn of Same.
This day this cause came on to be heard upon the motion of the said
John Smith to set aside th# summons and service and return thereof, and
the court having heard the evidence adduced by the parties respectively
and the arguments of their counsel, and being fully advised in the prem-
ises, doth grant said motion. It is, therefore, ordered a ad adjudged by
the court that the summons issued herein against the said defendant,
John Smith, on the day of , A. D. 18 , and served upon
him, and the sheriff's return of such said service, be and the same are
hereby set aside and held for naught, at the costs of the plaintiff, taxed at
dollars [to which the plaintiff excepts, and thereupon presented his
certain bill of exceptions, which the court finds to be a true bill of excep-
tions, and allowed and signed, and which is filed as part of the record
herein, but is not to be entered at large upon the minutes].
If the motion be overruled the proper entry will suggest itself from
the foregoing one granting such motion. lu such case, if the defend-
ant has preserved his right by bill of exceptions, and is forced to
answer to the merits or suffer judgment against him, proceedings in
OOXDtVT "F TIIK OBFEXSB A.JAIXST TIIK .MTI'KN, ETC.
crn-r tor tip- l'iiiul of his motion will not i>c prejudiced by such compul
in. \\i-r. A court will uot tolerate the fraudulent use or abuse of
its jinx-ess, nH->m> or final. If a plaintiff in execution, hy fraudulent
, induce the execution debtor to bring property within tlu- juris-
diction of the court and cause it to be levied upon, such levy will be
act aside and the property rclea.ed. 2. By section 5038, except on
warrant of attorney to confess judgment, no maker of a promissory
note, or acceptor of a bill of exchange, or if tlie bill be not accepted,
no drawer thereof, can be summoned to answer to an action brought
in a county other than that in which he, or another joint maker, ac-
-. or drawer, resides or is summoned. And an action can not be
brought against the assignor of a chose in action in the county of his
residence and the assignee be served with summons in the action in
another county where he resides. Allen \. Miller 11 O. S. 374, 378.
Ami in this case, the objection was taken by ansicer joined with an
an.-wi-r containing a general denial, apparently, under section 5071,
providing that the defendant may set forth in his answer :is many
grounds of defence as he has; but the question, whether by answering
to the merits, an appearance to the action by the assignee was not af-
1 as fully as if he had been served with a summons in the county
where the action was brought, does not seem to have been made or
roii-iiiered. Certainly, in such cases, the objection can be taken by
motion.
I ) murrers lie only to pleading*, and no objection to any thing not
contained in a pleading can be taken by demurrer.
If, in a case like the example given in Form 1, the maker of the note
lives in one county and the iudorsers in another, and suit is brought
against the indoreers in the county of their residence, and a summons
is issued against the maker directed to the sheriff of the county of his
residence and served upon him there, he may avoid the action by nur
tion as follows :
[Form 230.]
< 'ourt of Common Pleas of - County.
John Doe. Plaintiff, I Motion of John Smith to Set Aside
J v*. > Summons ami Service. and Return
John Smith et als , Defendant*. ) thereof.
And now cornea tho said defendant, John Smith, and appearing for no
other purpose, moves tho court to et a*ide th- summon* herein issued to
the sheriff of - county, and served upon this defendant, and the return
of said writ, for the reason :
That hjs the alleged maker of the pr missory note nued upon in thi*
acti Hi, and resides in the county of -- , Ohio, where said summons wat
served upon him. JOSEPH Cuirrr, Attorney for said John Smith.
398 CODE PRACTICE AND PRECEDENTS.
The summons and the return of the officer indorsed upon the same,
with an inspection of the plaintiff's petition, will establish the ground
alleged in the motion.
[Form 231.]
Order Setting Aside Summons, etc., against John
No - ] vs ' f Smith
John Smith et als. J
This day, the motion heretofore filed herein by said John Smith to set
aside the summons issued against him herein, directed to the sheriff of
county, the service thereof upon him in said county, and the
sheriff 's return of said writ, came on to be heard by the court, and the
court doth find the facts stated in said motion to be true. Wherefore it
is ordered and adjudged by the court that said summons, service thereof
upon said defendant, John Smith, and the sheriff's return of the same, be
and they are hereby set aside and held for naught; and that the plaintiff
pay the costs incurred in the premises, taxed at dollars.
3. If it is not important to the defendant to gain time, or advan-
tageous to him to have the plaintiff's pleading definite and certain,
and its defects or deficiencies be such as are likely to embarrass him at
the trial, or will not be cured by the defendant's pleading over, or by
verdict in favor of the plaintiff, it will often prove the better course to
do nothing by motion, demurrer, or otherwise, to require the plaintiff
to perfect his case by his pleadings.
4. When actions are required to be brought in a certain county, as
provided in sections 5022-5034, and they are brought in another
county, the objection to the jurisdiction of the court, if the fact appears
from the petition, should be made by demurrer according to clause 1 , sec-
tion 5062 ; and if it do not so appear, then by answer alleging the facts
showing such want of jurisdiction. For example, if a public officer
(clause 2, section 5025) be sued for an official act in another county,
and the petition does not disclose the fact, but counts against him as
an ordinary person for a mere personal act, his answer must disclose
the fact that the court has no jurisdiction of his person.
5. In the case of corporations, where the return of the officer does
not show service of the summons on a proper officer or agent, the de-
fendant may, ou motion, set aside the service and return, or let judg-
ment be taken by default, and reverse it for want of jurisdiction on
petition in error. If the latter course be elected, great care must be
observed by the attorney not to do any thing which will effect an ap-
pearance of his client. In Fee v. Big Sand Iron Co., 13 O. S. 563,
there had been no valid service upon the corporation; but, when judg-
ment was rendered by default, the defendant's attorney, no other than
1)1 (T OK THE UKFi.V-1. A lli ACTION, ETC. 399
the late eminent Supreme Judge Welch, gave notice of appeal to the
x-t Court, which appeal was nut perfected, but proceedings in
nor instituted instead. In that proceeding, it was held that the no-
tice of appeal ujmu the record, given after judgment, was an appear-
ance, and rendered service of a summons unnecessary, and the judg-
ment was sustained.
So a motion t vacate a judgment on any other ground than that of
want of jurisdiction is an appearance fn>m that time. Watson v. 1'nine,
>. ::p; M-inden v. SO/XT, 11 O. S. 503.
'. By section 5010, a party who executes a writing by initials may
be so designated in an action thereon. In other cases, where the name
of a defendant is unknown, section 5118 provides for the mode of su-
ing him in a fictitious name. If this section is not followed in such a
case, and the defendant is sued by his initials, it can be taken advan-
tage of by motion to set aside the summons and return of service
thereof. If to the motion is added an asking to strike the petition
from the files, because of such misnomer in it, that will be an appear-
ance to the action by such name.
Whether the motion in such case should state the full name of the>
party, or not, as was requisite in a plea of abatement for misnomer
under the common-law system, has not been decided by the Supreme
Court. Section 5118 gives the plaintiff the right to sue the defendant
by a fictitious name, and thus avoid such motion.
DEMURRER.
1 . Section 5062, clause 1. " That the court has no jurisdiction of the
peram of the defendant" applies only, it would seem, to ca-
which the defendant can only be sued in a certain county, or counties,
and the petition shows the fact, as in the classes of actions spec i fit 1 in
sections 5". ', 5034, 5038, as ordinarily the filing of a demurrer
or <>tht-r pleading is a personal appearance to the action. Where the
defendant may avail himself of a right <>r privilege by demurrer if the
n disclose the same, ho may do so by aiiauxr if it do not; and
upon this ground the case of Allen v. Miller, supra, apparently stands.
This ground of demurrer must be specially stated. 5063.
2. That the plaintiff has not legal capacity to sue --as when- it ap-
pears from the petition that he is an infant, who must sue by his next
iVicn 1, a lunatic under guardianship, a married woman \vh< n the sub-
ject of the action doe* not relate to her separate estate, property, or
personal rights; or, under the statute, sections 6134, 6135, for wrong-
fully causing death, brought by a plaintiff other than the personal
representative of the person deceased, etc.
400 CODE PRACTICE AND PRECEDENTS.
3. That there is another action pending between the same parties
for the same cause. Such other pending action must be between the
same plaintiff and defendant in a court, either state or federal, within
the state. If it be pending in a court in another state, that can be
no bar.
4. That there is a misjoinder of parties plaintiff, as when more par-
ties join as plaintiffs in the action than have a legal right to the relief
grantable upon the facts stated in the petition. When the demurrer is
sustained, the plaintiff may amend his petition by striking out the
names of the improper parties (section 5114) ; and this should be
done, not by erasing any thing from the original petition, but upon a
separate paper ; and the petition as so amended should be reverified.
5. That there is a defect of parties, plaintiff or defendant, as if one
only of two or more joint contractors sue or be sued. This does not
apply to joint wrong-doers, who may be sued, jointly or severally. One
party can not demur because others are improperly joined as defend-
ants with him.
6. That several causes of action are improperly joined, as an action
under clause 1 with clause 2, etc., of section 5019. But when a de-
murrer is sustained on this ground the misjoined causes of action may
be docketed as separate actions, as provided in section 5065.
7. That separate causes of action against several defendants are
improperly joined, as a distinct liability of A. to the plaintiff, with a
distinct liability of B. to such plaintiff, neither having any legal in-
terest in the matter of the relief sought against the other. In case a
demurrer on this ground is sustained, there seems to be no authority
for separately docketing the actions against each under section 5065 ;
but under section 5114 the plaintiff may, perhaps, be permitted by
amendment to strike out one cause of action and the name of one de-
fendant, and proceed upon the other cause of action against the other
defendant.
8. That the petition does not state facts sufficient to constitute a
cause of action ; that the the court has no jurisdiction of the subject
of the action. Where either of these grounds exists no judgment ren-
dered upon the petition can be valid, and they need not be stated in a
demurrer to such petition. All other grounds of demurrer must be
specially alleged in the demurrer, or they will be waived, and the de-
murrer considered as limited to the sufficiency of the facts stated in
the petition, or that the court has no jurisdiction of the subject of the
action. 5063.
When the facts stated in the petition show that, at the time the ac-
tion is brought, there is no subsisting right of action in favor of the
CONDUCT OP THE DEFENSE AOAIXST THE ACTION, ETC. '401
plaintiff against the defendant, a general demurrer to it will lie such
as that the cause of action is barred by the statute of limitations;
but, it is the better practice, where the petition shows a valid right of
[i to have once existed, to specify the ground of demurrer.
[Form 232. 2 5062.]
Court of Common Pleas of County.
John Doe
John~Smith, J^hn Jones, and f D"* u *> P *tition
Hugh Evans.
The defendant, John Smith, demurs to the petition herein on the
grounds:
1st. That separate causes of notion against several defendants are im.
properly joined, lie being sued as the alleged maker, and the said John
Jones and Hugh Evan* as the alleged indnrsers of said promissory note.
'2d. The petition does not state facts sufficient to constitute a cause of
action in favor of the plaintiff and against this defendant.
JOSKPH CUITTT, Attorney for said John Smith.
KuU. At common law the indorser could not bo sued with maker of a prom-
iMory note, or the acceptor of n bill of exchange, as the indorsees contract is
conditional upon the breach of that of the maker of the note, or acceptor of the
bill. The Code permits such joinder. \\ 508G, 6009 ; Kautzman v. Weirick, 26
O. S. 830.
If a demurrer is sustained, the party filing the defective pleading
may amend upon such terms as the court prescribes, in which case the
question involved on the demurrer often becomes immaterial; or, if
the case can not be bettered by amendment, the party may except to
the sustaining of the demurrer, and suffer judgment to he rendered
against him upon the pleadings, and have the case reviewed in an ap-
pellate court upon petition in error. In such case, the pleadings being
part of the record, no bill of exceptions is requisite.
Rule in considering demurrers. A bad answer is good enough to a
bad petition, and an insufficient reply to an answer. So, a demurrer is
said to " search the record." If an answer is demurred to and the pe-
tition fails to state a good cause of action, the demurrer to the answer,
however insufficient such answer may be, will be overruled ; and if the
demurrer is to the reply, it is enough to authorize the court to overrule
it, to show that the matters in the answer, which are replied to, con-
stitute no defense to the cause of action alleged in the petition. And
if the petition states no cause of action, the defendant, on demurrer to
the reply, may take advantage of the insufficiency of the petition.
26
402 CODE PRACTICE AND PRECEDENTS.
[Form 233.]
John o 1 j) emurrer to Petition Sustained [and Judgment for
riiy ?f(, i 1 Defendant, John Smith].
John Smith et als. J
This day this cause came on to be heard upon the demurrer of the de-
fendant, John Smith, to the petition \_or, to the 1st or 2nd, etc., cause of
action stated in the petition, as the case may be'], and was argued by coun-
sel; on consideration whereof, and the court being fully advised in the
premises, it is adjudged by the court that said demurrer be, and the same
is hereby, sustained, to which the plaintiff excepts;* and, upon his ap-
plication, leave is hereby given the plaintiff to amend his petition in
days from the date of this entry [at the costs of the plaintiff of said de-
fective petition, and of the demurrer thereto].
If the plaintiff can not better his case by amendment follow the
above form to the *, and add :
And thereupon the plaintiff not asking to amend, it is further adjudged
by the court, upon the pleadings, that said petition be dismissed, and the
said defendant, John Smith, go hence without day, and recover of the said
plaintiff his costs in this behalf expended and incurred, taxed at
dollars. To all of which the plaintiff excepts.
[Form 234.]
M { Demurrer to the Petition Overruled [and Judgment
?ohn~S ] nSh et als. j A S ainst John Smith > * 1
This day the demurrer of said defendant, John Smith, to the petition
[or, to the 1st, 2nd, etc., cause of action stated in the petition] came on to be
heard by the court and was argued by counsel; on consideration whereof,
and the court being fully advised in the premises, it is adjudged by the
court that said demurrer be, and the same is hereby, overruled, to which
said defendant excepts.* And, upon his application, leave is given said
defendant to answer in days from the entrv hereof, said defendant to
pay the costs incurred upon this demurrer.
If the defendant does not desire to amend or answer further, and
the plaintiff's cause of action be such that the amount he is entitled to
recover can be ascertained from his petition, follow the above form to
the *, and add :
And the said defendant, John Smith, not asking or desiring to amend
his said answer, it is further adjudged by the court, upon the petition,
that the said plaintiff recover of the defendant, John Smith, the sum of
CONDUCT OF TUB DEFENSE AUAIN.ST THE ACTION, L1C. 403
dollars, together with his costs in this behalf expended and incurred,
tax-l at dollars.
I [note] being filed by the plaintiff. To all of which defendant ex-
.-.-: -
. When a judgment U rendered upon any instrument for tbo payment
<>t H i. v, a copy of which U made part of the pleading, the original should be
filed wilh tbo clork.
If the amount which the plaintiff is entitled to recover can not be
ascertained from the petition, but is to be proven, follow Form 234 to
the #, and add :
And the said defendant, John Smith, not asking or desiring to amend
his answer, it is further adjudged by the court that, upon his petition, the
plaintitf is entitled to recover against the said defendant such damages
l.v reason cf the premises as the plaintiff may prove, and this cause is
ordered to stand for inquiry of the plaintiff's damages, to all nf which the
defendant excepts.
Not'. The defendant, in such case, will have the right to contest the amount
of tin- plaintiff'* recovery; and if the plaintiff's case be one in which the par-
lies have the right of trial by jury, cither party may have such damages assessed
by H jury.
Mltfn motion should precede demurrer. While no rule of practice on
this subject has been rigidly adhered to, or even uniform in the courts
of the state, where a pleading contains redundant or irrelevant matter
prejudicial to the adverse party, or is not definite or certain, a motion
based upon such ground should precede a demurrer; and if a de-
murrer is filed and overruled, and then a motion of such character
lili-i. it should bo denied to prevent vexatious delay in the disposition
of the cause. Filing a demurrer will also supersede motions in regard
to all defects, or omissions in the proceedings, which arc cured or waived
by pleading. Leave given by a court to answer is leave to demur, but
not to file a motion.
ANSWER.
By section 5070, clause 1, the answer shall contain :
1. A general or special denial of each material allegation of the pe-
tition controverted by the defendant.
If the denial goes 'to the whole pleading, it should state that the
defendant' denies "each and every allegation stated in the petit
:uid not merely deny the petition as a whole; and it should not cm-
ploy the word "material" used in the statute; for this would make
404 CODE PRACTICE AND PRECEDENTS.
the party the judge of materiality, and fail to disclose what alle-
gations he decided to be material or immaterial ; and every allega-
tion of fact in a petition or answer not denied is taken as admitted and
is not to be proved on the trial of the cause.
If some of the facts stated in the petition are not to be controverted,
and the enumeration of them will not tend to prolixity in the answer,
it may state that they are admitted, and the denial applied to "each
and every other" allegation.
If the mass of the statements of the petition is true, and some ma-
terial facts are believed to be untrue by the defendant, his answer may
state that the defendant denies "each "of the following facts stated
in the petition. This will admit the truth of all others that, in law,
are material, without so stating in the answer. Immaterial averments
are not admitted to be true by failure to deny them.
Effect of the denial. The legal effect of the denial extends only to the
truth of the statements controverted ; and if, at the trial, they are
proven to be true in themselves, their legal consequences can not, under
such denial, be avoided by any thing constituting a defense; notwith-
standing their truth in point of fact. That must be specially pleaded
as "new matter constituting a defense."
Here the difference is most marked between the common-law and
code systems in their legal effect.
The general denial, making what was called "the general issue"
under the common-law system, had no such limited and restricted ef-
fect upon what the defendant, on the trial, had the right to prove
under it. For example, in the action of assumpsit, with the exception
of a few defenses, which were required to be specially pleaded to ad-
mit of being proven (and -any special plea was bad that amounted
merely to the general issue), the defendant, under the general issue,
might give in evidence nearly every defense which showed that there
was not a subsisting cause of action at the time suit was brought. In
the case of a female sued upon a contract made before her marriage, her
coverture had to be set up by special plea ; so bankruptcy, tender, tho
statute of limitations, and in Ohio, but not elsewhere, former recovery.
A defense which admitted that a plaintiff once had a cause of action
which had been discharged by payment, release, discharge, perform-
ance, infancy, coverture when the liability was incurred, duress, ille-
gality in the consideration, the statute of frauds, accord and satisfac-
tion, could be either specially pleaded, or given in evidence under tho
general issue. In some courts, by rule, notice of such defenses were
required to be given if they were to be urged under the plea of the
general issue, as "was required in the case of set-off.
COXDDCT OF THE DEFENSE AGAINST TUB ACTION, ETC. 405
In the action of debt, the plea of rum atfaetum put iu issue, strictly,
the execution of the instrument sued upon only, but, under it, the de-
fendant cuuld give in evidence any facts showing such instrument to
be void ab initio, as that it was obtained by fraud, that the obligor
was &feme covfrt, a lunatic, incapable from drunkenness to contract;
or, that it became void by a material alteration, or was delivered as
row upon a condition which had not been performed. Discharge,
infancy, duress, payment, performance of the conditions, or excuse for
n >n-(ierfonnance, accord and satisfaction, the statute of limitations, re-
lease, former recovery, and tender were required t"> be specially
pleaded. In the action of covenant, the plea of nan rstfadinn admitted
i-vt-ry thing but the execution of the covenant sued, and such plea
was required to be verified by affidavit. All other defenses were
pleaded specially. 134.
Under the general issue, in the action oftrnpass upon real estate, or
nal property, only matter tending to disprove that the alleged
tn-iKiss was committed could be proved. Every other defense was re-
quired to be set up by special plea.
In trespass on the case, usually called case, every defense, except the
statute of limitations, and justification in libel and slander, which were
required to be pleaded 8{>ecially, could be proved under the general
issue; but, if the plainthT had a cause of action, any matter in dis-
charge of it might be specially pleaded, at the option of the defendant.
A.uni]u'lt was an action on the case, ex contratiu; trespass on the case,
for an indirect or consequential injury.
The action of replevin latterly was about the same as our present
Code action for the recovery of specific personal property, except that,
when the property could not be found, the action could not proceed
for damages for wrongful conversion, called trover the old form of
general issue, non ceptt, " the defendant did not take," etc., being
Hianged to non detiiiet, " the defendant does uot detain," etc.
The change made by the Code is, therefore, apparent and radical.
Every defense, to be available on the trial, except such as tends to dis-
prove the truth of the cause of action alleged in the petition, must be
set up by the answer. Hence, the Code practice demands a thorough
knowledge of, and skill in, special pleading; and, in nearly every class
of actions, the petition states a special action on the case, requiring a
thorough knowledge of the principles of law so as to enable the pleader
to know what facts must be stated to constitute a cause of action.
In on Action upon a written instrument for the unconditional pay-
ment of money only, a copy of which te required to be attached M
and made part of the pleading, the plaintiff is not required to prove
406 CODE PRACTICE AND PRECEDENTS.
the execution of such instrument by the defendant, uuless the execu-
tion of it is specifically denied by the answer of the defendant. Citi-
zenf Bank v. Chsson, 29 O. S. 78 ; Pavey v. Pavey, 30 O. S. 600.
A fraudulent material alteration of a negotiable note by the payee,
or holder, will defeat a recovery upon the note as altered by au in-
dorsee. lb., 29 O. S. 78.
This is in analogy to the necessity, at common law, of denying the
execution of the obligation, under the plea of non est factum, in an ac-
tion of covenant.
Of course, papers, other than those properly made part of a plead-
ing, which are sought to be introduced iu evidence at the trial, should
be proved to have been executed by the party who purports to have
signed them.
DENIAL OF EXECUTION OF INSTRUMENT SUED ON.
[Form 235.]
Court of Common Pleas of County.
John Doe, Plaintiff, ]
No. .] vs. > Answer of John Smith.
John Smith et als., Defendants. )
And now comes the defendant, John Smith, and for answer to the peti-
tion of the plaintiff, says, that he denies he made the alleged promissory
note, a copy of which is contained in the petition, and states that the sig-
nature thereto was not made or authorized to be made by him, and is not
his genuine signature [or, that the same has been materially altered,
fraudulently, by the payee, or indorser since his name was signed
thereto].
2. And he further denies each allegation against him in the said peti-
tion stated and contained.
Wherefore he asks for judgment that he go hence without day and re-
cover against the plaintiff his costs, etc.
JOSEPH CHITTT, Attorney for said John Smith.
The State of Ohio, County, ss.
John Smith, the above named defendant, swears that the facts stated in
the foregoing answer are true. JOHN SMITH.
Sworn to before me by said John Smith, and by him signed in my pres-
ence, this day of , A. D. 18 .
Witnesses, etc.
Note. The foregoing answer, so sworn to positively, will put the burden upon
the plaintiff of proving that the defendant executed the note, which may be done
directly, as by a witness who saw him sign it, or indirectly by proving that the
signature is his handwriting.
No reply to such answer is necessary, as the petition sufficiently avers the ex-
ecution of the note, and an issue is made by the answer.
OOMDICT OF THK DEFENSE AOA1N8T THE ACTION, KTC. 407
The prior ind.T-.-i - may h? liable on their indorsement*, though the par*
ported maker did not make tho not*-.
ILLEGAL CONSIDERATION AND INDORSEMENT AFTER DUB.
[Form 236.]
Court of Common I 'Ira- of County, Ohio.
John Doe. Plaintiff, }
No. .] tw. V Answer of John Smith.
John Smith et als., Defendants. )
For answer to the petition, the defendant, .John Smith, says, that the
8ai< I promissory note was made by him and accepted by said John Jones,
the payee, to suppress a certain criminal prosecution against this defend-
ant; that before an<l at the time of the making of said promissory note
this defendant [or tome other named person] was accused by said John Jones
of having criminally embezzled from him, the said John Jones, a large
sum of money, amounting in all to more than dollars, and for such
alleged embezzlement the said John Jones threatened to prosecute this
defendant criminally ; and in consideration of his agreement with this <!<
fendant not to prosecute him for such alleged embezzlement, and to com-
pound said criminal charge, said promissory note was made by this de-
fendant and accepted by said payee, John Jones.
And this defendant, further answering, says that said promissory note
was not indorsed and delivered by said payee to said Hugh Evans until
after the time it, by its terms, became due and payable.
Wherefore this defendant asks for judgment that he go hence without
day and recover of tho plaintiff his costs, etc.
JOSEPH CHITTY, Attorney for John Smith.
[Verification according to belief. ,]
Note. Unless negotiable paper is, on account of the consideration, declared
void by tatute, an indorsee for value, in tho usual course of business, before it
become* due, may recover against tho maker.
To the foregoing answer the plaintiff must reply or nuffor judgment against
him. Such reply will not bo sufficient if it merely states that tho plaintiff "can
not admit or deny the allegations of the answer, but demand* proof of the
amc." Buildiny Association v. (lark, 43 O. S. 42?.
Tho reply of the plaintiff indorsee may deny each allegation contained in the
answer, or every allegation except that the nto was not indorsed until after it bo-
tamo due, or deny that it was indorsed after it became duo as alleged in tho
answer. The presumption of law would bo that it was indorsed brforc due.
[Form 237.]
Court of Common Pleas of County, Ohio.
Jonn Doe, Plaintiff. |
No. .] *, v*, > Reply to Answer of John Smith.
John Smith et als., Defendants. )
For reply to the answer herein of the defendant, John Smith, tho
408 CODE PRACTICE AND PRECEDENTS.
plaintiff says that he denies each and every statement of fact therein
contained; [or, that he denies every allegation contained therein, except
that said promissory note was not indorsed as alleged in said answer until
after it became due; or, that he denies that said promissory note was in-
dorsed after it became duo as stated in said answer.]
EDWARD COKE, Attorney for Plaintiff.
GAMING CONSIDERATION.
[Form 238.]
Court of Common Pleas of County, Ohio.
John Doe, Plaintiff. J
No. .] vs. \ Answer of John Smith.
John Smith et als., Defendants. )
For answer to the plaintiff's petition, the defendant, John Smith, says,
that the consideration of said promissory note was, and the same was
made and given by him to said payee, John Jones, for money [or partly for
money or properly] betted by him and said John Jones, and by him lost to
said Jones, to wit: he bet with said Jones the sum of dollars that, at the
election in the year A. r>. 18 , would be elected governor of tlie State
of Ohio, and said Jones bet this defendant a like sum that said would
not be elected such governor at said election, and this defendant having
lost said bet, gave to said Jones the said promissory note as a promise to
pay the amount of said bet to said Jones [or, if the consideration of the note
is only in part for money so lost, state the terms of the bet, and for what other con-
sideration the note was given.~\
Wherefore the defendant asks judgment, etc.
JOSEPH CHITTT, Attorney for said John Smith.
Note. Section 4269 makes all promises, agreements, notes, bills, bond*, or
other contracts, mortgages, or other securities, when the whole, or any part of
the consideration of the same is for money or other valuable thins; whatsoever,
won or lost, laid, staked, or betted, at or upon any game, of any kind, or under
any denomination or name whatsoever, or upon any horse race or cock fight,
sport or pastime, or on any wager, etc., absolutely void, and of no effect.
Hence a negotiable note given for such consideration in whole or in part is
nothing in law, and "nothing" can not be indorsed so as to confer a right of
action upon the indorsee. To permit such indorsement would but establish an
easy metood of defeating the object of the statute. At common law most
wagers were valid, and the money won could be recovered at law by the win-
ner. It is only by force of our statute that commercial paper made upon
such consideration, wholly or in part, is void in everybody's hands.
To raise an issue upon such answer a reply is necessary.
Mere illegally of, or fraud in the consideration, will not effect the right of the
indorsee to recover against the maker
CONDUCT OF THE DEFENSE AGAINST TOE ACTION, ETC. 409
INFANCY OF MAKER.
[Form 239.]
Court of Common Plena of County, Ohio.
John Doe. Plaintiff, )
No. .] i-s. > Answer of John Smith.
John Smith et als., Defendants. ]
For answer to the petition herein the defendant, John Smith, says that
at the time of the making nf the promissory note mentioned in the peti-
tion, he was an infant, aged years.
Wherefore, tc. JOSEPH CUITTT, Attorney for said .Ichn Smith.
[Verification ~\ f
Sntt. A person under age, males under twenty-ono and female?, in Ohio,
under eighteen years of age, may plead infancy in avoidance of liability upon
their contracts, except for necessaries, when their parents do not provide for
the came ; but an infant is not liable upon a promissory note given or bill
of exchange accepted for necessaries. After coming of age an infant may rat-
ify any contract made during minority, and thus become liable upon it. No
person with whom an infant contracts can take advantage of tho infancy, but is
liable in an action brought by the infant by next friend. Infants arc liable for
their torts. The plea of infancy can bo met only by reply. First, by denial;
or, second, by ratification after coming of age.
REPLY OF RATIFICATION ON COMFNO OF AGE.
[Form 240.]
Court of Common Pleas of County, Ohio.
John Doe, Plaintiff, 1
No. .] vt. \ Reply.
John Smith et als., Defendants. I
For reply to the answer herein of the defendant. John Smith, the
plaintiff soys that after the said John Smith arrived at the age of twenty-
one years, he, in consideration of the premises, ratified the making of said
promissory note, and agreed with the plaint iff [or, said payee. John Jones;
or, indorser, Hugh Evans] to be boun\ by and to pay the same according
to its tenor and effect.
Wherefore the plaintiff asks judgment against said John Smith as
prayed for in the petition. EDWARD COKE, Attorney for Plaintiff.
[ Verification.']
DURESS AND KNOWLEDGE OF SAME BY INDORSEES,
[Form 241.]
Court of Common Pleas of County, Ohio.
John Doe, Plaintiff, )
No. .] . v*. > Answer of John Smith.
John Smith et nls., Defendants. )
For answer to the petition herein, the defendant, John Smith, says that
he made the promissory note in the petition mentioned under duress of
410 CODE PRACTICE AND PRECEDENTS.
the said payee, John Jones; that said Jones came to him when he was
alone in his office, arid presented a pistol at his head and said note, and
demanded of him to sign the same, or he would shoot him, and this de-
fendant was thereby placed and put in fear of his life or of receiving great
bodily harm unless he signed said note, and solely influenced by said
threats and said fear caused thereby, this defendant did sign, and deliver
said promissory note to said John Jones. [_Tke acts constituting the duress
sliouldbestated.~\ And this defendant, further answering, says that at the time
said promissory note was indorsed to and received by said Hugh Evans and
said plaintiff, respectively, they each well knew and understood all the
said facts by means of which said John Jones procured said promissory
note from this defendant.
Wherefore, etc. JOSEPH CHITTY, Attorney for said John Smith.
{Verification.'}
Note. In such case, if i\\e first indorsee, Hugh Evans, was ignorant of the duress,
and the second indorsee, John Doe, knew the facts constituting such duress,
when he obtained the promissory note, such duress would not affect his right of
recovery. Hugh Evans being a bona fide indorsee for value, before the paper
became due, hud a right to dispose of it to anybody in the world, whether such
purchaser from him knew of the duress or not, and such indorsee would acquire
his right, otherwise Hugh Evans' right to dispose of the paper would be im-
paired. The same rule applies in the case of a purchaser with notice from an-
other bona fide purchaser for value without notice, but if re-indorsed to John
Jones, the duress could be set up to defeat his recovery. A threat to institute
an action in court can not amount to duress, nor any thing which, under the
circumstances of time, place, person etc., is not sufficient to overcome the free-
dom of the will of the person claiming to have been coerced.
This answer can be met by a reply denying every fact alleged as
constituting the duress, or by denying that the first indorsee, or any
indorsee from whom the plaintiff obtained the paper, or that the
plaintiff knew of the alleged facts constituting the duress when the
same was indorsed to him.
REPLY TO ANSWER OF DURESS.
TForm 242.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, 1
No. .] vs. \ Reply.
John Smith et als., Defendants. J
For a first reply to the answer of said defendant, John Smith, the
plaintiff says that he denies that when said promissory note was indorsed
to him by said Hugh Evans and he received the same, he had notice or
knowledge of any of the facts alleged in said answer as constituting the
alleged duress of the said defendant, and stated in said answer [or deny
that said Hugh Evans when he received the same, or that either the
CONDUCT OP TUB Dti ,AIN<T TI1K ACTloX KT\ 411
plaintiff or sail fast indorsee had tuck notice]. '2 And for a second re-
ply the plaintiti'suy* h,- denies each and every allegation of fu-t oontaine-l
in said answer, except that said defendant made said promissory note.
Wherefore. et<- EDWAKI> COKE. Attorney for Plaintiff'
[ Vsri/ieatioH.]
Note. If the general denial can be pleaded truthfully, the special reply is un-
necessary.
INSANITY.
[Form 243.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, J
No. .] M. > Answer of John Smith.
John Smith et als.. Defendants, j
For answer to the petition herein the defendant, John Smith, says that
at the time be made the promissory note, in the petition set forth, he was
insane, and by reason of said insanity was rendered incompetent to make
said promissory note, or any valid contract.
[At to averring knowledge of inttorseea and the plaintiff, consult Form 241.]
[ Verification.'] JOSEPH CHITTY. Attorney for said John Smith.
.\\,fe. An averment merely that the party was of " unsound mind "'when he
made a contract will not be sufficient. From mental alienation or deficiency be
must have been incapable of doing a responsible or binding act.
Tho reply to such answer is sufficiently suggested by Form 242.
DRUNKENNESS.
[Form 244.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, )
No. J M. > Answer of John Smith.
John Smith et als., Defendants. )
For answer to the petition herein the defendant, John Smith, says that
at the time he made the promissory note set forth in the petition, he was
drunk and intoxicated to a degree that he did not know and could not
understand the nature of what he did or was doing, and the said John
Jones, said payee, while this defendant was in such said drunken and in-
toxicated condition, induced him to make said note, he not then under*
standing or being mentally able to understand the nature and effect of
what he then so did.
[At to avermentt of indorsee* ami plaintiff' t knowledge, tfe Form 241.]
[Verification.] JOSEPH CHITTY, Attorney for said John Smith.
Note. The decree of drunkenness to constitute a defense must amount. sub>
tantiall y, to that alleged in this form.
The reply cau be framed from Form 242,
412 CODE PRACTICE AND PRECEDENTS.
COVERTURE AS A DEFENSE.
If the maker of such note was a married woman, such fact not
being stated in the petition, an answer averring such fact would, prima
facie, be a bar to the action of indorsees as well as the payee of a ne-
gotiable promissory note.
But, since the act of April 14, 1884 (Sup., pp. 201-202, section
3109), and the act of March 20, 1884 (Sup., p. 329, section 4996), if
such note be given in consideration of her separate estate, as for any
work done, or materials furnished for such estate, or for any separate
property bought by her, which is under her sole control, and concern-
ing which she may sue and be sued as if she were unmarried, the facts
may be set up by reply, and if proven, a personal judgment can be
rendered against her as if she were unmarried, and such judgment en-
forced by execution, etc., subject to exemption benefits allowed to
heads of families. Act of March 20, 1884 (Sup., p. 346, section
5319). When a married woman can not be held personally liable on
her contract, bat only her separate estate charged therefor as binding
her separate estate as surety for another the facts must be stated in
the petition and not by way of reply. Instead of replying such facts,
the petition must be so amended as to state them.
COVERTURE.
[Form 245.]
Common Pleas Court of County, Ohio.
A. B., Plaintiff, ]
No. .] vs. > Answer.
C. D., Defendant. )
For answer to the petition the said defendant says that, at the time she
made said alleged promissory note, she was a married woman.
Wherefore etc. JOSEPH CIIITTY, Attorney for Defendant
[ Verification^
KEPLY.
[Form 246.]
Common Pleas Court of County, Ohio.
A. B., Plaintiff, )
No. .] vs. > Reply.
C. D., Defendant. }
For reply to the answer of the said defendant, the plaintiff says that the
consideration of the said note was and the same was made by her for and
on account of her separate property and estate, the same being for [work
done by the plaintiff at her request upon a certain farm which she then
CONDUCT OF THE DEFENSE AGAINST THB ACTION, ETC. 418
owned as her sole and separate estate, and of which she had the sole
control].
Wherefore the plaintiff asks judgment as prayed for in the petition.
EDWARD COKE, Attorney for Plaintiff.
RELEASE OR DISCHARGE.
[Form 247.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff. |
No. .] v. > Answer of John Smith.
John Smith et als., Defendants. )
For answer to the petition the defendant, John Smith, says that, on or
about the day of , A. D. 18, the said plaintiff, in and by a cer-
tain writing signed and delivered by the plaintiff to this defendant, did
release and forever discharge this defendant from all liability to him, etc.,
on said promissory note and the amount promised to be paid thereby.
Wherefore, etc. JOSEPH CHITTT, Attorney for said John Smith.
[ Verification.']
Note. The common-law rule not strictly required to bo observed in this
state was that such release, or discharge, should be under seal, as the seal im-
ported a consideration. But now (Sup., p. 2, section 4) private seals are abol-
ished, and a seal gives to no writing any additional force or effect, or in any
way changes the construction thereof. The delivery of such release will con-
stitute an executed discharge of the indebtedness. A promissory release or
discharge, without being founded upon some new consideration, other than the
payment of a less sum of money, is not binding.
WANT OF CONSIDERATIOM.
[Form 248.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff,
No. .] v*. V Answer to John Smith.
John Smith et als . Defendants. )
For answer to the petition, the defendant, John Smith, says that said
promissory note, in the petition described, was made by him without
consideration, either valuable or good ; and that the same is without con-
sideration. [As to knowledge, etc., of \ndorsets, tee averments in Form 241.]
Wherefore, etc. JOSKPH CUITTT, Attorney for said John Smith.
[ Verification.'}
Note. Thai the above form is sufficiently specific, see Pavty v. Pavey, 80 O.
S. 600.
414 CODE PRACTICE AND PRECEDENTS.
FAILURE OF CONSIDERATION.
[Form 249.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, |
No. .] vs. y Answer of John Smith.
John Smith et als., Defendants, j
For answer to the petition herein, the defendant, John Smith, says that
said promissory note in the petition described was made by him to said
payee, John Jones, upon a consideration which has wholly failed ; that
said note was given to said Jones upon the sole consideration said Jones
[then agreed with this defendant to deliver to him on the day said note
should become due one thousand (1,000) bushels of wheat at the price of
one dollar per bushel, the same to be delivered to this defendant at ,
and at said time and place this defendant was ready and willing to receive
and accept said wheat, but the said Jones then and there failed and re-
fused, and has ever since failed and refused, to deliver said wheat, or any
part thereof, to this defendant]. [See averments as to indorscrs in Form 241.]
Wherefore, etc. JOSEPH CHITTY, Attorney for said John Smith.
[ Verification.']
Part failure of consideration, if the failure goes to an entire part of
the consideration, as non-delivery of five hundred bushels of wheat of
the quantity mentioned in the above form, can readily be pleaded
from this form.
STATUTE OP LIMITATIONS.
[Form 250. 4980.] '
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, J
No. .] vs. > Answer of John Smith.
John Smith et als., Defendants. J
For answer to the petition, the defendant, John Smith, says that the
said alleged cause of action, in the petition mentioned, accrued to the
plaintiff more than [fifteen] years before the commencement of this action,
and he insists it is barred by the statute of limitations in such case made
and provided.
Wherefore, etc. JOSEPH CHITTY, Attorney for said John Smith.
[Verification.] ,.
Note. When the defendant desires to plead the statute of limitations, he
should do so before becoming in default for answer, as afterward it is dis-
cretionary with the court whether he shall be permitted to file such answer. It
has been held that this plea is not favored, and a defendant in default will not
ordinarily be permitted to set it up. Sheets v. Baldwin, 12 0. 120. It can not
be pleaded as a matter of right by a defendant in default. But the court, in
its discretion, may permit the plea after default. Newsom v. Ran, ISO. 240.
CONDUCT OF rut: DEFENSE AGAINST TUB ACTION, ETC. 41">
At payment may be presumed, prima facie, where the bar of the *tatute will
lio, as tho *Uitut* it one of repose, and a> the evidence of somo valid defense to
the action nmy have been lost by reason of such lapse of time, many court*
favor, rather than discountenance thU plea, and are liberal in permitting it after
default for answer.
When payment has been made upon any <imnhd founded in contract, within
the period of the statutory bar, or n written acknowledgment thereof made, or
H promise to pay the same has been mado and signed by the party to be charged,
an action may bo brought thereon within the time limitrd f.r an original cause
>f action. { 4992. Sou also sections 4987, 4988, 4989, 4990, 4991.
This plea may be met by several replies.
STATUTE OF LIMITATIONS OF ANOTHER STATE.
[Form 251. 4990 ]
Common Pleas Court of - County, Ohio.
John Doe, Plaintiff, |
No. .] tw. > Answer of .John Smith.
John Smith et als , Defendants.)
For answer to the petition, the said defendant, John Smith, says thai
the Raid alleged contract and promise was to lie performed in the Slat<
oi - , where the parties thereto resided when said alleged cause of ac-
tion accrued to the plaintiff; that by the law of said state then and ever
sinn- iii force therein, the right to maintain an action upon said cause of
action was and is limited to - years after such cause of action accrued,
that t.aid alleged cause of action accrued more than -- years before the
commencement of this action, and this defendant insists upon such bar to
the same.
Wherefore, etc. JOSEPH CHITTT, Attorney for said John Smith.
[ Vc
Note. The law of another stale is A fact in this state, and must be proved, as
state courts do not take judicial notice of the laws of other states. Printed
copies of written laws enacted by any other state, a territory, or a foreign
government, purporting, or proved to have been published by the authority
thereof, etc.; and the unwritten law thereof may be proven as facts by parol
evidence; and the books of reports of cases adjudicated in their court* may also
t> admitted a presumptive evidence of such law. $ 0244.
If the defendant leaves such state and comes into this state before the right
of action accrue*, section 4990 docs not apply, but the statute of this sUtu will
govern. Headingtan v. Keff, 7 O. (1 pU) 229.
416 CODE PRACTICE AND PRECEDENTS.
REPLIES TO ANSWER OP STATUTE OF LIMITATIONS PRIOR ENDEAVOR
TO OBTAIN SERVICE.
[Form 252. ,4988.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, ]
No. .] vs. V Reply.
John Smith et als., Defendants. )
For reply to the answer herein of said defendant, John Smith, the
plaintiff says -that his petition herein was filed on the day of , A.
D. 18 , and the summons herein, which has been duly served upon said
John Smith within sixty days after the filing herein of said petition, was
issued on, to wit, the day of A. D. 18 which said service the
plaintiff diligently endeavored to procure upon said defendant, having
also caused a summons to be duly issued against said defendant on the
day he filed his said petition, which was not served upon said defendant
by any neglect or fault of the plaintiff.
Wherefore, etc. EDWARD COKE, Attorney for Plaintiff.
[Verification.]
DEFENDANT'S ABSENCE.
[Form 253. 4989.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, |
No. .] vs. > Reply.
John Smith et als., Defendants. )
For reply to the answer herein of the said defendant, John Smith, the
plaintiff says, that when the said cause of action set forth in the petition
accrued, the said defendant was out of this state, and did not return
thereto until about the day of , A. D. 18 , and that, excluding said
period of said absence [fifteen] years have not elapsed between the times
of the accruing of said cause of action and the commencement of this
action.
Wherefore, etc. EDWARD COKE, Attorney for Plaintiff.
[ Verification.^
Note. This form can, without difficulty, be adapted to the cases of a defend-
ant absconding, or concealing himself so that service upon him could not be
had, before the right of action accrued ; or if) after the cause of action accrues,
he departs from the state, or absconds, or so conceals himself, such time is to be
deducted from the period prescribed as the limitation of the right to maintain
the action after such right accrues.
CONDUCT OF TICK DKKKXSK \<S \l\ST THK ACTION, ETC. 417
PRIOR ACTION.
[Fora 254. J 4991-3
Common Pleas Court of County, Ohio
John Doe, Plaintiff, )
.] w. > Reply.
John Smith et als., Defendants, j
For reply to the answer herein of the defendant, John Smith, the
plaintiff says that, on the day of , A. D. 18 , he, in the Court
of Common Pleas of County, Ohio, duly commenced a civil action
against the said defendant, John Smith, upon the same cause of action
set forth in the petition herein, and in said action such proceedings were
had that, at the term of said court, A. D. 18 , he obtained a judg.
ment thereon against the said defendant for dollars, and dollars
costs, which said judgment and proceedings the said defendant caused
to be duly reversed by the Circuit Court of said county, at the
term thereof, A. D. 18 , to wit, on the day of , A. D. 18 , and
that this action was commenced within one year from the date of such
aid reversal, etc.
Wherefore, etc. EDWARD COKE, Attorney for Plaintiff.
[ Verification.]
Note. If the action first brought fail otherwise than upon the merits, as, for
instance, is dismissed for failure to give security for costs when such security is
required, the facts can be stated, and an action, otherwise barred by the statute,
can be brought within one year thereafter, g 4091.
PART PAYMENT.
[Fora 255. g 4992.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, )
No. .] w. V Reply.
John Smith et aN., Defendants. )
For reply to the answer herein of the defendant, John Smith, the
plaintiff says that, within the period of [fifteen] years from the time said
cause of action mentioned in the petition accrued, the said defendant, to
wit, on or about the day of , A. D. 18 , paid the plaintiff upon
the same the sum of dollars.
Wherefore, etc. EDWARD COKE, Attorney for Plaintiff.
[Verification.'}
27
418 CODE PRACTICE AND PRECEDENTS.
WKITTEN ACKNOWLEDGMENT, ETC.
[Form 256. 4992.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, |
No. .] vs. > Reply.
John Smith et als., Defendants. )
For reply to the answer herein of the defendant, John Smith, the
plaintiff says that, after the accruing of said cause of action, and within
[fifteen] years prior to the commencement of this action, the said defend-
ant, on, to wit, the day of , A. D. 18 , made a written acknowl-
edgment of his liability to the plaintiff upon said cause of action [or, m
writing, signed by him, promising the plaintiff to pay to him, the plaintiff,
the amount of money due and owing upon said indebtedness], a copy of
which, made part of this reply, is as follows: [Here give copy of acknowledg-
ment, or promise.]
Wherefore, etc. EDWARD COKK, Attorney for Plaintiff.
[ Verification. ]
Note. It has been held by the Supreme Court that an acknowledgment of
the debt and a promise to pay it after it was barred did not revive the original
cause of action, but that the action must be brought on the subsequent promise,
a part unpaid indebtedness being a sufficient consideration for such promise.
Hill v. Henry, 17 O. 9.
It might, therefore, be inferred that such new promise should be stated in the
petition, and could not be set up in the reply; but, because a defendant can
waive the statute of limitations, the plaintiff need not anticipate that the de-
fendant will insist upon such bar, and it was therefore held, in Haymaker v. Hay-
maker, 4 O. S. 272, that the better practice is to set up by reply such new promise.
Under the Code, however, which could not be done under the common-law
system, if the petition, on its face, shows the claim to be barred by the statute
of limitations, it is demurrable, as not stating a subsisting cause of action. In
such cases, the written promise, signed by the party, should be set forth in the
petition.
INFANCY, COVERTURE, INSANITY, IMPRISONMENT.
[Form 257. Sup., p. 328, 4986.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, ]
No. .] vs. I Reply.
John Smith et als., Defendants. )
For reply to the answer herein of said defendant, John Smith, the
plaintiff says that, at the time the cause of action stated in the petition
accrued, he was under the age of twenty-one years [eighteen years in the case
of a female], and came of age on the day of , A. D. 18 , within
the period of [fifteen] years [or the time in which personal action is required to bt
brought] prior to the commencement of this action.
Wherefore, etc. EDWARD COKE, Attorney for Plaintiff.
[ Verification.]
CONDUCT OF THE DKFKSsK A'iUNsr THE ACTION, ETC. 419
COVERTURE.
[Form 268. g 4986 (&,/>., p. 328.)]
Common Pleas Court of County, Ohio.
A. B , Plaintiff, 1
No. .] r*. I Reply.
C. D.. Defendant, j
For reply to the answer of the said defendant, C. D., herein, the
plaintiff says that at the time the said cause of action stated in the peti-
ccrued she was a married woman [and said right of action is not
one coiu-crning her separate property, or growing out of or concerning
business transacted in her own name tkit tinct March 26, 18S3 ; 80 v. 77],
and that years have not elapsed since the accruing of said cause of
action and the removal of said disability of coverture.
Wherefore, etc. EDWARD COKK, Attorney for Plaintiff.
[ Verification.']
Note. From these examples the reply of insanity or imprisonment of the
plaintiff at the time the cause of action accrued can easily >>< framed.
A party relying on this statute can not avail himself of successive disabilities,
a* infancy, then insariitv, then imprisonment, etc. Whitney v. Webb, 10 O. 513;
Carey v. Rnbinm, 13 O. 181 ; Guzent v. Farnnn, 80 O. S. 491.
This statute is personal and can not be extended to a party not within its
saving. Bromwn v. Adams, 10 O. 135.
No third person can volunteer to set up this statute for a party who would be
entitled to plead it for himself.
Except as provided in section 4989, when the statute of limitations begins to
run, it continues to run without interruption from any subsequent disability.
Carey v. Robinson. 18 O. 181 ; Ward v. Racer, 20 O. 250; William* v. Firtt
Presbyterian Society, 1 O. S. 478; Granger v. Granger, 6 O. 35; Bartton \. Kin-
nctrd, 88 O. S. 878.
ACCORD AND SATISFACTION.
line payment of a smaller sum of money in satisfaction of a greater
amount, without any other consideration, will not amount to satisfac-
tion, though agreed by the party to be received as such, but it there
be any new or collateral consideration performed, of however little
value, under an agreement to that effect, the claim will be satisfied.
An accord must be fully performed to constitute satisfaction. Part
nuance is not sufficient; thus if A. has a suit ponding n<rninst B.
l->r s 10,000, and they agree that B. shall place in the hands of C.
$5,000, to be paid to A. when A. shall dismiss the action, and A. does
not do so, and the money in C.'s hands is not paid to him, this is not
accord and satisfaction. B. should set up such agreement by supple-
mental answer in the action of A. against him, have the money brought
420 CODE PRACTICE AND PRECEDENTS.
into court, and ask to enforce such agreement of settlement. See
Frost v. Johnson, 8 O. 393.
ACCORD AND SATISFACTION.
[Form 259.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff', |
No. .] vs. > Answer.
John Smith etals., Defendants. \
For answer to the petition herein of the plaintiff, the defendant, John
Smith, says that the said plaintiff, on or about the day of -, A - n -
18 , agreed with this defendant that [if this defendant would forthwith
go to the State of Texas and survey for the plaintiff certain lands in
county, in said state, known as the three league claim of , the
plaintiff would accept paid services in satisfaction in full of his said al*
leged cause of action stated in the petition], and that this defendant has
fully performed all the conditions of said agreement on his part.
Wherefore, etc.
[Verification.] JOSEPH CHITTY, Attorney for Defendant, John Smith.
PAYMENT.
[Form 260.]
John Doe, Plaintiff, |
vs. > Answer of John Smith
John Smith etals., Defendants. )
For answer to the petition herein, the defendant, John Smith, says that
he has fully paid the said plaintiff the said entire sum of money claimed
against him in the petition.
Wherefore, etc. JOSEPH CHITTY, Attorney for said John Smith.
\_Verification.~\
Note. The common-law distinction between tbe pleas of solvit ad diem (pay-
ment on the day), and solvit post diem (payment after the day the debt became
due by its terms) need not be observed.
The possession of a promissory note sued on by the defendant is prima facie
evidence of its payment. The contrary prima facie presumption exists if it is
in the possession of the plaintiff. Part payment should be pleaded as such, the
amount and time of payment as near as may be being stated in the answer. If
the defendant owes the plaintiff more than one debt, before, or at the time of
paying money, the defendant may direct to which debt it shall be applied ; if he
does not do so, the plaintiff may apply it to which debt he chooses. If neither
party makes the application, tbe law will do so; first, to the earlier items of an
account, or the eldest debt; to a debt due rather than to one not due; to a debt
not barred by the statute of limitations, or upon an illegal consideration ; and
next, according to the court's view of the equity of the case for the benefit of
both parties. No third person has the right to make such application of pay
ments.
CONDUCT OF TilK DKJfKKSE AGAINST THE ACTION, ETC. 421
r
THE STATUTE OF FRAUDS AND PERJURIES.
Section 4199 specifies what contracts must be in writing, and signed
by the party to be charged, or his agent, in order to enable the other
party to maintain an action upon them. This is a statute of evidence,
and without such writing, or note or memorandum thereof, signed by
the party to be charged, or some one in his behalf, no evidence is ad-
missible to prove the contract.
Aa answer admitting such contract would be such writing. Hence,
if the defendant can not deny such contract, agreement, or promise,
he should state in his answer that the same w.is not in writing, and
that he insists upon the statute as a defense to the action.
If the petition counts upon such promise, but omits to state that it
was in writing, it will be presumed to have been properly written and
signed, and a demurrer to the petition will not lie
[Form 26L 4199.]
Common Pleas Court of County, Ohio.
A. B , Plaintiff, |
No. ] vs. > Answer.
C. D. Defendant, j
For answer to the petition herein, the defendant says that the said sup-
posed contract, agreement, and promise alleged in the petition, or any
note or memorandum thereof, signed by him, or by any one authorized by
him to sign the same for him, or in his behalf, was not in writing and so
as aforesaid signed; wherefore he sets up and relies upon the statute in
such case made and provided as a defense to said cause of action stated in
the petition.
Wherefore, etc. JOSEPH CBITTT, Attorney for Defendant.
[ Verification.]
S<,tr. Matters which, stated in the form of affirmative facts, merely amounting
to a denial of material allegations in th< petition, need no reply, as their legal
effect is only that of a denial. Denials by alleging affirmative facts are inarti-
ficial pleading, and should be avoided. Every matter pleaded a& a defense, and
not being, in effect, simply a denial of what u stated in the petition, requires a
reply, when set up by answer.
A defendant may set up in his answer as many defenses as he may have,
whftiitT 1<>gal or equitable or both, separately stating nnd numbering them ; and
a plaintiff tmiy ntule as many grounds of replication as he may have to any
Mich answer. They must not be incon*i*iciit with each other, as then, though
sworn to, they could not be properly verified. But they will not be inconsistent
if proof tending to establish the one will not neeeuarily tend to disprove the
other ft, by any possibility, both can be true. A person may never have
made a promissory note, and there may have been no consideration for the same.
Pavry v. Pacry, 30 O. S. 600. So, the party may have paid such note, though
422 CODE PRACTICE AND PRECEDENTS.
he never made it, to avoid litigation and buy his peace, etc. See also Citizens' Bank
v. Closson, 29 O. S. 78.
"When defenses are inconsistent, the defendant will be required to elect upon
which he will rely; and if such inconsistent defenses are of a nature showing
that they could not have been set up in good faith, and that the party must
have known in reason that one of them is false, the pleading will be stricken from
the files.
DEFENSES OF INDORSER.
If the indorser, maker, and indorsee of a note reside in the same
city or town, and notice of protest has not been waived by the in-
dorser, in which case presentation to, and demand of payment from
the maker, or acceptor of a bill of exchange, is also thereby waived,
the indorsee must, on the day such paper becomes due, present it to
the maker, or acceptor, and demand payment of him ; or if payable
at a specified place, as at a bank, at such bank, and there demand
payment, and if it is not paid give personal notice forthwith to such
maker, or acceptor of such demand and non-payment, in order to hold
the mdorser liable on his indorsement. If they reside in different places,
or \v here communication is by post, notice of such dishonor should be
forwarded to the mdorser by the first mail after the day of such dis-
honor. It is usual for a notary public to make such presentation and
demand, and mail the notice of the same, stating the non-payment of
the paper, to the indorser. His certificate of such facts, and of all
facts required bylaw to be stated by him, authenticated by his notarial
seal, is prima facie evidence of such facts ; and such certificate is by
him attached to such note or bill. 120.
Where there are several indorsers, notaries often notify the last in-
dorser by mail, and inclose to him notices for the prior indorsers, each
of which by the first mail after the day of its receipt by him, mails
the notices to the next indorser, etc. This often requires proof of
such mailings from indorser to indorser back to the first one, which can
be avoided by the notary duly mailing to each indorser the notice
for him, and certifying the fact in the protest attached to the paper.
If the indorser receives notice in due time, he can not object to the
mode of conveyance. Bank of U. S. v. Corcoran, 2 Pet. 121 ; Byles on
Bills (7 ed.), p. 285, n. 1, and cases there cited.
All negotiable bonds, bills, notes, and checks for a sum certain to any
person or order, or assigns, payable at a day certain after date, or after
sight except checks, bills of exchange, or drafts, appearing oil their
face to have been drawn on any bank, banker, broker, exchange
broker, or banking company, and payable on a specific day, or in any
number of days after the day of sight or date thereof, are entitled to
three days' grace. 3175. And see sections 3171-3178.
CONDUCT OF T11K DEFENSE AGAINST THE ACTION, ETC.
If the third day of grace be Sunday, the presentation and demand
of payment must be upon the preceding day ; and so if the last day
of grace be the first day of January, the fourth day of July, the
twenty -fifth day of December, or any day recorameixlrd ly the gov-
ernor of this state, or the president of the United States, as a day of
fast or thanksgiving. If the first day of January, twenty-fifth day of
December, or fourth day of July be Sunday, the next day, Monday,
is considered the first day of the week, so that demand must be made
ii|Mn Saturday, the first day of t,race. In leap-year the twenty-eighth
aiul twenty-ninth days of February are held, in law, to be but one
day, the twenty-eighth.
-'illation and demand of payment can not be made, so a? to bind
an imlorser, before or after the last day of grace ; and the same should
be made at or near the closing business hour of such day ; but unless,
at a later business hour, the party who is obliged to pay, is ready at the
place of payment to pay, the presentation and demand at an earlier
hour will be sufficient. Notice of dishonor to the assignee under the
insolvent laws of the state is not sufficient; and hence such assignee
can not waive presentment, demand, and notice. House v. Vinton Na
turned Bank, 43 O. S. 346.
[Form 262.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, |
No. .] vi. > Answer of John Jones.
John Smith et als., Defendants. )
And now comes the defendant, John Jones, and for answer to the peti-
tion herein against him, says that, as the alleged indorser of the promts-
sory note mentioned in the petition, he was not notified of the alleged
presentation to said John Smith of said note for payment, the demand of
payment of the same, or of the refusal of such payment.
Wherefore, eto. JOSKPH CHITTT, Attorney for said John Jones.
[ Verification.]
-This answer will bo established by proof that notice of dishonor was
not given or mailed within the time required by law. It is, however, for the
plaintiff to prove that it was.
[Form 263.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff. )
No. .} . V Answer of John Jones.
John Smith et als., Defendants. )
For answer to the petition herein, the defendant, John Jones, the al-
leged indorser of the promissory note mentioned in the petition, Rays that
424 CODE PRACTICE AND PRECEDENTS.
said promissory note was not presented for payment to said John Smith
at the time or place required by its terms, and payment of the same de-
manded.
Wherefore, etc. JOSEPH CHITTY, Attorney for said John Jones.
[Verification."]
Note. Presentation and demand of payment before or after the last day of
grace, or at a different place from that mentioned in the note for presentation,
will establish this answer.
Both of these answers are sufficient to put the plaintiff upon proof of the
facts negatived by them, and hence amount to a denial of the petition to such
extent, and require no reply.
An answer setting up a set-off, counterclaim, or for affirmative re
lief by way of cross-petition, contains such matter as would have con-
stituted a cause of action by the defendant against the plaintiff, had
the plaintiff not brought suit and the defendant brought an action
thereon against him. Except styling them " answer by way of set-
off," "counterclaim," or "cross-petition,'' they are framed precisely
as a petition by a plaintiff is, and forms of the same are, therefore, not
necessary to be given here.
STATUTE OF LIMITATIONS. 425
CHAPTER XXVIH.
STATUTE OF LIMITATIONS.
To what cases this chapter does not apply. SEC. 4974. This chapter
(2, of tit 1, div. 2) shall not apply to actions already commenced,
nor to cases wherein the right of action has already accrued ; but the
statutes in force when the action accrued shall be applicable to such
cases, according to the subject of. the action, and without regard to
the form ; nor shall this chapter apply in the case of a continuing and
subsisting trust, nor to an action by a vendee of real property, in pos-
session thereof, to obtain a conveyance of it.
(a) The Code does not govern a cause of action existing at its pas-
sage. Long v. Mulford, 17 O. S. 484, 508 ; McKinney v. McKinney, 8
O. S. 423, 428 ; Panchatt v. Hinderer, 28 O. S. 568, 577.
(A change in n statute of limitations materially and unreasonably
abridging the time in which the action may be brought upon a pro-
existing obligation would be unconstitutional as violating the obliga-
tions of contracts ; otherwise, not The same rule will apply to laws
exempting property from execution and homestead laws.)
Causes of action subsisting when the Code took effect are not af-
fected by its provisions, but the laws in force when they accrued gov-
ern. Horteley v. Bittingslfy, 19 O 8. 413 ; Walker v. Knight, 12 O.
8. 209 ; Yearly v. Long, 40 O. S. 27.
(6) The Code applies to proceedings to reverse a judgment rendered
before it took effect. Schooner MarinJa v. Dowlin, 4 O. S. 500.
(Such provisions are purely remedial in their nature and may op-
erate retrospectively. They are not within the provisions of article 2,
section 28, of the Constitution, denying power to the legislature to |>ass
retroactive laws. Retroactive laws are such as make or create an ob-
>n or liability out of the facts of a past transaction, which, prior
to the enactment of such statute, constituted none.)
causes of action Hurvive. SEC. 4975. In addition to the causes
<>t action which survive at common law, cause* of action for mesne
profits, or for an injury to real or |>ersoiml estate, or for any deceit or
fraud, shall also survive; and the action may IK drought notwith-
standing the death of the person entitled or liable to the same.
(a) See section 5144 and notes.
426 CODE PRACTICE AND PRECEDENTS.
(6) No cause of action survives against one who so negligently erected
a building that it fell and injured another building, when he died be-
fore the injury. M. E. Churdi v. Rench, 7 O. S. 369 ; Russell v. Sun-
bury, 37 O. S. 372; Wolf v. Wall, 40 O. S. 111.
Special limitations saved. SEC. 4976. Civil actions can only be com-
menced within the periods prescribed in this chapter (2), after the
cause of action accrues ; but where a different limitation is prescribed
by statute, that shall govern.
Note. This exception is but the enactment of the common-law rule for con-
struing statutes, and of section 4956. Such special provisions relating to a
given matter are exceptions to general provisions governing the subject at
large.
(a) This chapter has no application to a proceeding in error, which
is rather a right of appeal than a right of action (Steamer Marinda v.
Dowlin, 4 O. S. 500), and governed by section 6723.
For special provisions limiting suits and proceedings, see sections
3276 (liability of railroad company for damages in a certain case, lim-
ited to six months), 3283 (liability of same for damages for occupancy
of road, etc., limited to two years), 4378 (action for refusal of survey
of mine, not limited), 5157 (revivor of action without consent of de-
fendant, one year), 5158 (same), 5309 (new trial after discovery of
grounds, second term after discovery), 5330 (infant after coming of
age to show cause against judgment, one year), 5363 (proceedings to
vacate, etc., judgment, special limitations), 5368 (revivor of dormant
judgment, twenty-one years, unless in case of a disability), 5752 (for
penalty under habeas corpus act, two years), 5848 (taxes illegally col-
lected, one year), 5866 (contest of will, two years, unless disability),
6723 (proceedings in error, two years, unless disability), 6789 (quowar-
ranto, twenty years, five year?, three years), 6097 (claim rejected by ad-
ministrator, six months), 6098 (same, rejected at instance of heir), 6113
(against administrator, four years, when), 6115 (same subject), 6120-
6126 (against administrator de bonis non, five years in all), 6139 (to
set aside fraudulent conveyance by administrator, within four years
after death of grantor), 6599 (forcible detainer, two years).
ACTIONS CONCERNING REAL PROPERTY.
Actions to recover real estate limited w twenty-one years. SEC. 4977 (83
v. 74). An action for the recovery of the title or possession of real
property, can only be brought within twenty-one years after the causa
of such action accrues.
STATUTE OF LIMITATIONS. 427
This section amends and repeals the same section, enact."! as an
Amendment to the original section, April 16, 1880 (77 v. 803), Sup^ p. 327,
which see.
(a) A mortgage may be foreclosed at any time within twenty-one
years from the time it was made (or after condition broken). Fleher
\ l/bman, 11 O. 8. 42; Bailey v. Smith, 14 O. S. 396, 411.
<tnt of lands conferring entire title can not be presumed from
were poae&sion, short of twenty-one years. Starke v. Smith, 5 O. 4-V>
The act of 1810 operated to bar the right of dower after twenty-one
years. Tutde v. Wilson, 10 O. 24. Virginia military lands held tindei
lease for ninety-nine years, renewable forever, subject to the operation
of the statute. Bendy v. Newton, 9. O. S. 489.
See also Young v. He/ner, Kolienbrock v. Craeraft, 36 O. S. 232,
585 ; Oxford Township v. Columbia, 38 O. S. 87 ; Dietrick v. Nod, 42
O. S. 18; Railroad Co. v. Hambleton, 40 O. 8. 49; and notes at end
of this chapter.
Saving to persona under disability. SEC. 4978 (83 v. 74). If a per-
801) entitled t<> bring the action mentioned in section 4977, is, at the
time the cause of action accrues, within the age of minority, of un-
eound mind, or imprisoned, such person may, after the expiration of
tuxnty-onf years from the time the cause of action accrues, bring such
action within ten years after such disability is removed. (April
14. 1S86.)
ftote. ' First descends or accrues " if such right vested in the ancestor,
devisor, or assignor, the statute begins to run from that time, and continues to run
against those claiming under him, whether under disability or not. 'Twenty-
one years" of ago is to be read "eighteen " in the case of a female. T<> deter-
mine whether the right of action is barred compute twenty-one years from the
time it first accrued, and then, if the party was under disability, take ten yean
after the removal of such disability, and if both period* have elapsed, the right
of action is barred. For example, if the right accrued on the day of birth, the
party will have twenty-one and ten thirty-one years in which to bring hi*
H.-U'.N ; if at five years of age, twenty-nix years, etc.
If there are several parties, some under disability and some not, and their
title can only be established by setting aside, or having declared the legal na-
ture of, a single title apparently in another, as a fraudulent convcvitrin- to an-
other, or an absolute deed, which is, in fact, in trust for them, a ri^lit ..f action
saved to one is saved to all; but if they have several right* of action. HS each
tenant in common has for his portion, tho saving as to one ran not be made
available to others in whose favor it <l > nt exist.
This section strikes out the disability of corertitrt, which has always hereto-
fore existed in the case of a married woman in this tai>-.
The statutes of limitation do not apply to causes of action which hav.- nl-
428 CODE PRACTICE AND PRECEDENTS.
ready accrued at their passage, but the acts in force at the time the same ac-
crued apply. 4974. And section 79 provides: "nor shall any repeal or
amendment affect causes of such action, etc., existing at the time of such amend-
ment or repeal, unless otherwise expressly provided in the amending or repeal-
ing act. By this section, repealing or amendatory statutes which relate
exclusively to the remedy do not apply to pending actions, proceedings, or
prosecutions, unless so expressed.
In Campbell v. Holt, 115 U. S. Rep. 620, it is decided by the Supreme Court
of the United States that if a right to sue for a debt is barred, and a statute is
passed lengthening the time for bringing an action, which time will give the
right to sue for such debt, such action may be maintained, as the debtor has ac-
quired no vested right; but, if the statute has barred the right to bring an action
for real estate in the adverse possession of another, and a new statute extends
the period of limitation, an action for such real estate can not be maintained
under the enlarging act. The defendant has acquired a vested right title by
disseizin, which, in the legal sense, is title by purchase in such real estate.
This amendment has only a future operation, and a married woman will
have the full period prescribed, after its passage, in which to bring her action.
(a) Where one party to a proceeding in error is within the saving
clause, the case is saved to all. Wilkins v. Phillips, 3 O. 49 ; Massie
v. Matthews, 12 O. 351; Buckingham v. Com. Bank, 21 O. S. 131; Kay
v. Watson, 17 O. 27.
Where the interests of two defendants &re joint and inseparable, and
the rights of one are saved, it inures to the benefit of the other.
Sturges v. Longworth, 1 O. S. 544; Bradford v. Andrews, 20 O. S. 20K ;
Riddle v. Roll, 24 O. S. 572 ; Trimble v. Longworth, 13 O. S. 431 ;
Meese v. Keefe, 10 O. 362.
Disability of one coparcener or tenant in common does not inure to
the benefit of the other, their rights and interests are severable. Moore
v. Armstrong, 10 O. 11; Bromon v. Adams, 10 O. 135; Williams v.
First Pres. Soc. Cincinnati, 1 O. S. 478.
The grantee or heir of one protected from the operation of the
statutory bar is entitled to the benefit of that protection. Ford v.
Langel, 4 O. S. 464; Carey v. Robinson, 13 O. 181.
The disabilities extend only to those existing when the right of ac-
tion accrues, such as happen afterward are unavailable. Cozzens v.
Farnan, 30 O. S. 491.
When the statute begins to run, it continues to run without inter
ruptiou from any subsequent disability. Carey v. Robinson, 13 O.
S. 181 ; Ward v. Raw, 20 O. 250 ; 1 O. S. 478 ; 38 O. S. 374.
(A party entitled to bring a suit may do so, though his place of resi-
dence may be out of the state, the courts being always open to receive
and try the complaints of every person wherever he may reside, and
STATUTE OF LIMITATIONS. 429
in actions to recover real estate the defendant may be served construct-
ively by publication (section 5022) ; so the savings on account of t'ue
defendant's non-residence, etc. (section 4989), do not stop the running
of the statute in this class of cases.)
When the right or estate of children does not accrue until the death
of a tenant for life, the statute does not begin to run against them
until after the death of such tenant (until a party has the right to the
possession of real estate, he has no right of action to recover it). Holt
v. Lamb, 17 O. S. 374.
In ihe absence of statutory provision, there is no principle of equity
to bar an infant's right to set aside a decree improperly obtained.
Long v. Mulford, 17 O. S. 484*. (A party while under any disability
may maintain the action, by guardian, next friend, etc.) See also
3 O. S. 80 ; Simmenon v. Tannery, 37 O. S. 390 ; Rurlbut v. Wade, 40
O. S. 603.
OTHER ACTIONS.
How limited. SEC. 4979. Civil actions other than for the recovery
of real property can only l>e brought within the following periods, after
the cause of action accrues.
Fifteen years. SEC. 4980. Within fifteen years: An action upon
specialty, or an agreement, contract, or promise in writing.
(a) The transcript of a judgment rendered in another state is re-
garded as a specialty. Stockweli v. Coleman, 10 O. S. 33; Fries T.
Mack, 33 O. S. 52 ; BisseU v. Jaudon, 16 O. S. 498. But a judgment
of a court of this state is not. Tyler v. Window, 15 O. S. 364. (It
is a question whether any statute of limitations applies to a judgment
rendered in this state. A dormant judgment can not be revived after
twenty-one years after it becomes dormant (section 5368), when it
would seem to be barred. After twenty-one years it will be presumed
to have been paid, but this presumption may be rebutted. ("Spe-
cialty" usually means an instrument of writing under seal.)
Subscription to stock is a promise in writing. Gibson v. C. <fc A. /
& B. Co., 18 O. S. 396; Warner v. Callender, 20 O. S. 190.
The indorsement of a promissory note is a contract in writing.
Haines v. Tharpe, 15 O. 130. A recognizance for stay of execution
is a specialty. Bobo v. Xorton, 10 O. S. 514.
The statute commences to run on a note payable on demand at the
time of delivery, oftid not from the time payment of the same was. in
fact, demanded. Hill v. Henry, 17 0. 9. And see notes at the end
of this chapter.
430 CODE PRACTICE AND PRECEDENTS.
Six years. SEC. 4981. Within six years : An action upon a contract
not in writing, either express or implied. An action upon a liability
created. by statute, other than a forfeiture or penalty.
(a) An action against an officer not on his official bond, for money
received in his official capacity, is barred in six years. Mount v. Lake-
man, 21 O. S. 643 ; State v. Slake, 2 O. S. 147 ; Mt. Pleasant Bank v.
County, 18 O. 234; State v. Newman, 2 O. S. 567.
An action by a surety for contribution is limited to six years unaer
this section. Neilson v. Fry, 16 O. S. 552. And also unpaid install-
ments of a legacy. Yearly v. Long, 40 O. S., 27 ; O'Connor v. Smith,
40 O. S. 214; Hawkins v. Furnace Co., 40 O. S. 507. '
Each item of an account is barred in. six years after the right of ac-
tion accrued thereon, unless it is taken outof the statute on some
special ground. Courson v. Courson, 19 O. S. 454. And see notes at
the end of this chapter.
Four years. SEC. 4982. (Sup., p. 328, April 14, 1884; 81 v. 210.)
Within four years: An action for trespass upon real property, but in
an action for trespass under ground or injury to mines, the action shall
not be deemed to have accrued until the wrong-doer is discovered. An
action for the recovery qf personal property or for taking, detaining,
or injuring the same, bm in an action for the wrongful taking of
personal property, the cause of action shall not be deemed to have
accrued, until the wrong-doer is discovered. An action for an injury
to the rights of the plaintiff not arising on contract and not herein-
after enumerated. An action for relief on the ground of fraud, but
the cause of action in such case shall not be deemed to have accrued
until the discovery of the fraud.
(a) An action upon a judgment rendered in another state is not
barred in four years, it being regarded as a specialty. Stockwett v.
Coleman, 10 O. S. 34.
In an action at laiv under the act of 1831 (3 Chase, 1768), and un-
der the Code before its amendment in 1867 (64 v. 145), fraudulent
concealment of the cause of action did not prevent the running of
the statute. Kerns v. Sefioonmaker, 4 O. 331 ; Fee v. Fee, 10 O. 469 ;
Lathrop v. Snellbaker, 6 O. S. 276 ; Howk v. Minnick, 19 O. S. 462.
In equity the statute was not applied until the fraud was discovered.
Longworth v. Hunt, 11 O. S. 194; Williams v. First Pres. Soc. Cincin-
nati, 1 O. S. 478. In such cases it had to be averred that the fraud
had not been so discovered. Ib. And it seems laches in failing to make
the discovery was required to be shown. Badger v. Badger, 2 WaL
(U. S.) 87.
STATUTE OF LIMITATIONS. 431
Time does not run against a cestui qtie trust (beneficiary) until he has
knowledge of the trust Carlisle v. Foster, 10 O. S. 198. Nor will it
run against an infant for the wrong of his guardian ad litem, until the
wrong is discovered. Long v. J/u//or</, 17 O. S. 485.
In equitable proceedings to reform an instrument on the ground of
mistake, lapse of time is reckoned Only from the discovery of the mis-
take. Ornuby v. Longworth, 11 O. S. 653.
An action to set aside a conveyance made to defraud creditors can
not l>e maintained by a creditor, after the lapse of four years from the
discovery of the fraud. Combs v. Watson, 32 O. S. 228.
An action by the maker of a promissory note to cancel the same, on
the ground of fraud in obtaining it, is limited to four years after lis.
covering the fraud. Loffland v. Bush, 26 O. S. 559.
An action of trespass committed four years before the action is
brought, laid with a continuando, can not be sustained, although the
defendant was in possession during the four years. Rowland v. A'<w-
land, 8 O. 40.
An action for specific performance against the heirs of the vendor, and
against his grantee who took the legal estate with notice, is not an action
for relief on the ground of fraud within the meaning of this section.
Mother v. Butler, 31 O. S. 188. See Railroad Co. v. Hambleton, 40 O.
S. 496, and notes at the end of this chapter.
Note. Where it is provided that the statute of limitations does not begin to
run until discovery, it would seem to be a sufficient averment to bring the MM
within the saving, to state in the pleading that the party did not discover it until
H r.-rtain time within thu limited period; and as knowledge of facts sufficient to
put a party reasonably on inquiry is notice, and notice knowledge, or discovery.
in legal effect, a reply denying the alleged failure of discovery will put the
party averring non-discovery upon proof of the fact, when the other party reply-
ing may prove facts and circumstances showing that reasonably such dif-<\ i-ry
ought to have been made at a time which renders the statutu a bar.
One year. SEC. 4983. Within one year: An action for libel, slander,
assault, battery, malicious prosecution, or false imprisonment. An
action upon a statute for a penalty or forfeiture; but where a different
limitation is prescribed in the statute by which the remedy is given,
the action may IK; brought within the period .- limited.
(a) An action to recover money lost or paid on a bet or wager is an
action UJKMI a statute fora penalty or forfeiture, within the meaning
of this section. Cooper v. Rowley, 29 O. S. 547.
An action ai^iuist a county treasurer, on his bond, to enforce the
htatutoury liability, who receives out of the treasury compensation other
than that specially provided by law, is not subject to the limitation
432 CODE PRACTICE AND PRECEDENTS.
provided in this section, but to that provided in section 4984. State
v. Kelley, 32 O. S. 421. And see notes at the end of this chapter.
Ten years Official, etc., bonds. SEC. 4984. An action upon the
official bond or undertaking of an officer, assignee, trustee, executor,
administrator, or guardian, or upon a bond or undertaking given in
pursuance of a statute, can only be brought within ten years after the
cause of action accrues ; but this section shall be subject to the quali-
fication in section 4976.
(a) Under this section, the limitation is held to be ten years, eveq
where the bond was given before the adoption of the Code. King v.
Nichols, 16 O. S. 80; State v. Oir, 16 O. S. 522. But where the
action is not on the official bond, but against the officer alone, it is
barred in six years. Mount v. Lakeman, 21 O. S. 643. For decisions
under the act of 1831 (3 Chase, 1768), see State v. Conway, 18 O. 234;
State v. Slake, 2 O. S. 147; State v. Newman, 2 O. S. 567.
An action against an officer for failure to pay over money does not
accrue until demand is made. Keithler v. Foster, 22 O. S. 27. And
see notes at the end of this chapter.
Ten years Otlier relief. SEC. 4985. An action for relief not here-
inbefore provided for can only be brought within ten years after the
cause of action accrues.
(a) An action for contribution by a -surety is not governed by this
section, but is limited to six years. Neilson v. Fry, 16 O. S. 552.
So is an action against an officer not on his official bond for failure
to pay over money. Mount v. Lakeman, 21 O. S. 643.
This section is not applicable to an action brought on a judgment
rendered in another state or territory. Fries v. Mack, 33 O. S. 52 ;
Hawkins v. Lasley, 40 O. S. 37. And see notes at end of chapter.
Otlier actions Rights saved to certain persons. SEC. 4986 (83 v. 74).
If a person entitled to bring any action mentioned in this subdivision
(3, ch. 2), except for a penalty or forfeiture, is, at the time the cause of
action accrues, within the age of minority, of unsound mind, or im-
prisoned, such person may bring such action within the respective
times limited by this subdivision, after such disability is removed.
(April 14, 1886.) See note to section 4978.
(a) A party relying on this statute can not avail himself of success-
ive disabilities. Whitney v. Webb, 10 0. 513; Carey v. Robinson, 13
O. 181 ; Cozzens v. Farnau, 30 O. S. 491. (But, if at the time the
cause of action accrues, the party is under more than one disability, the
STATUTE OP LIMITATIONS. 433
action may be maintained within the statutory period after the last dis-
ability is removed.) The statute is personal and can not be extended
to a party not withiu its saving. Branson v. Adams, 10 O. 135.
Where the interests of two persons are joint and inseparable, and
the rights of one are saved, it inures to the benefit of the other.
Sturges v. Longw.rth, 1 O. 8. 544; Bradford v. Andrews, 20 O. S. 208;
Kiddle v. Roll, 24 O. S. 572 ; Trimble v. Longaortfi, 13 O. 8. 431 ;
Mecac v. Keefe, 10 O. 362.
The grantee or heir of one protected from the operation of the
statutory bar is entitled to the benefit of that protection. Ford v.
Langd, 4 O. S. 464 ; Carey v. Robinson, 13 O. 181.
When the statute begins to run, it continues to run without inter-
ruption from any subsequent disability of the party having the cause
of action. Carey v. Robinson, 13 O. 181 ; Ward v. Racer, 20 O. 250;
Williams v. First Pres. SOP. Cincinnati, 1 O. S. 478 ; Granger v. Gran-
ger, 6 O. 35 ; BarOow v. Kinnard, 38 O. S. 373.
Under the act of 1831 (3 Chase, 1768), in connection with the act
of 1834 (32 v. 10), it was held that the disability of infancy in a fe-
male was removed at the age of eighteen years. Slater v. Cave, 3 O.
S. 80. See section 3136.
An action by the assignee of the claim of a married woman,
against her husband, for moneys belonging to her and converted by
tlu> husband to his own use, is not barred where less than six years
have intervened between the date of such assignment and the com-
mencemeut of the action. Simmenon v. Tennery, 37 O. S. 390.
When action deemed commenced under tlii* chapter (2). SEC. 4987. An
action shall be deemed commenced, within the meaning of this chap-
ter (tit 1, div. 2, ch. 2), as to each defendant, at the date of the
summons which is served on him, or on a co-defendant who is a joint
contractor, or otherwise united in interest with him ; and when service
by publication is proper, the action shall be deemed commenced at the
date of tlicjirtt publication, if the publication be regularly made.
(a) Under the former practice the suit was deemed commenced from
the issuing of the first, and not from the issuing of the alias writ
which was served. Swuher v. Swuher, W. 755.
This section furnishes the rule which determines when proceedings
in error are to be deemed commenced. Robinton v. Orr, 16 O. S.
284; Buckingham v. Cm. Bank of Cincinnati. 21 O. 8. 131.
Tho defendants 'in an action against vendor and vendee to set aside
nud cancel a deed on the ground of fraud, though both defendants are
necessary parties defendant, yet where the only relief sought is a ca
28
434 CODE PRACTICE AND PRECEDENTS.
cellation of the deed, are not united in interest within the meaning of
this section. Moore v. Ckittenden, 39 O. S. 563.
Where the existence of a lien is limited to a specified time, and the
lien-holder does not bring his action to enforce the same within such
time, but sues afterward and obtains judgment to enforce it, such judg-
ment is erroneous and will be reversed, though the statute was not
pleaded. Bonte v. Taylor, 24 O. S. 628.
When attempt equivalent to commencement. SEC. 4988. An attempt to
commence an action shall be deemed equivalent to the commencement
thereof, within the meaning of this chapter (2), when the party dili-
gently endeavors to procure a service ; but such attempt must be fol-
lowed by service within sixty days.
When defendant can not claim the bar. SEC. 4989. If, when a cause
of action accrues against a person, he is out of the state, or has ab-
sconded, or concealed himself, the period limited for the commence-
ment of the action shall not begin to run until he comes into the state
or while he is so absconded or concealed ; and if, after the cause of
action accrues, he depart from the state, or abscond or conceal himself,
the time of his absence or concealment shall not be computed as any
part of the period within which the action must be brought.
(a) Under the act of 1831 (3 Chase, 1768), when a defendant left
the state after the cause of action accrued, the statute continued to
run, notwithstanding his absence from the state. Coventry v. Atfierton,
9 O. 34.
And under the same statute a plaintiff, non-resident of the state,
was not barred under twenty-one years. Knowledge of adverse pos-
session, and having an agent in the state, did not take the case out
of the rule. Lockwood v. Wildman, 13 O. 430.
If, under the same act, after the cause of action accrued, a party
removed to parts unknown, and afterward returned, he lost the benefit
of the statute during the time which had run previous to his depart-
ure, as well as that during his absence. Sullenberger v. Gesl, 14 O.
204.
The phrase, " beyond seas," found in former statutes of limitation,
was construed to mean "beyond the state." Ingraham v. Hart, 11 O.
255 ; Smith v. Bartram, 11 O. S. 690.
Barred elsewhere, barred in Ohio. SEC. 4990. If, by the laws of the
state or country where the cause of action arose, the action is barred,
it is also barred in this state.
(a) Under our former statutes, as under this, where an action ac-
STATUTE OP LDIIT.AT1 4 - .'
cruing in another state was barred there, it was barred in this state.
St.it- of Maryland v. SripUy, 7 O. (1 pt.) 246 ; Harton v. Homer, 14 O.
.<. c., 1G O. 14"); Smith v. Bertram, 11 O. S. 690.
If the party leave the state where the cause of action arose, and
come into this state before a right of action accrues, this section do-s
not apply, but the Ohio statute applies. Headington v. Nfff, 7 O. ( 1
pt.) 229!
The statute of limitations of another state, pleaded as a del
upon k-nie joined, must be proved as a fact. Whelan v. Kinsley, 26
O. 8. 131 (sec. 5244).
Saving if judgment w reverted, etc. SEC. 4991. If, in an action com-
menced in due time, a judgment for the plaintiff be reversed, or the
plaintiii fail otherwise than upon the merits, and the time limited for
the commencement of such action has, at the date of such reversal or
failure, expired, the plaintiff, or if he die, and the cause of action
survive, his representatives, may commence a new action within one
year after such date ; and this provision shall apply to any claim as-
serted in any pleading by a defendant.
(a) This section relates to the time in which an original action may
be recommenced, or claims set up by the defendant in such an action
may be re-asserted, if either party " fail otherwise than upon the
merits;" and has no application to proceedings in error. Atfherty v.
IHrkhuon, 34 O. S. 537.
When an action is dismissed without prejudice to a future action,
the plaintiff may commence it anew within a year, notwithstanding the
time limited for the commencement of the action had expired at the
time of the dismissal. Bales v. Sandusky, etc., R. Co., 12 O. 8. 620.
Where the service of summons is set aside, the plaintiff may, within
a year, bring his action anew, notwithstanding the time allowed f.-r
commencing the action may have expired between the time of insti-
tuting proceedings and the setting aside of the service. MCIMC v.
.McCoy, 17 O. S. 225.
Payment in part Xew promise, etc., to be in writing. SEC. 4992.
When payment has l>eeu made upon any demand founded on contract,
or a written acknowledgment thereof, or promise to pay the same, ha-
been, made and signed by the (tarty to be charged, an action may bo
brought thereon within the time herein limited, after such payment,
acknowledgment/or promise.
(a) 'Causes of action subsisting when the Code of 1853 went into
operation were not affected by this section ; and, therefore, verbal
436 CODE PRACTICE AND PRECEDENTS.
promises to pay made after that date, and within the original statutory
period of limitation (to the plaintiff, or a third person having no inter-
est in the matter) were sufficient to prevent the running of the statute.
Horseley v. Billlngsley, 19 O. S. 413.
Each item of un account is barred in six years unless there has been
part payment of the account, an acknowledgment of liability thereon,
or a promise to pay, in writing. Courson \. Courson, 19 O. S. 454.
The payment of a dividend by the assignee of an insolvent debtor
is not such part payment as will take the residue of the debt out of
the statutory limitation, as against such debtor. Marienthal v. Hosier,
16 O. S. 566.
Presumption. of payment arising at common law from lapse of time
may be refuted by proof that the debtor, within the period required
to raise such presumption, acknowledged such claim to be an existing
liability. Bissell v. Jaudon, 16 O. S. 498.
The plaintiff may set up the barred demand as a consideration for
the new promise, and allege the new promise in writing as the cause
of action. Sturges v. Burton, 8 O. S. 215, 220.
Part payment by an administrator was held sufficient to take a case
out of the operation of the statute of 1804 (1 Chase, 392), against his
intestate. Niemcewinz v. Bartlett, 13 O. 271.
Part payment on a joint and several promissory note, by one of
several makers, will not prevent the running of the statute, as to the
other makers. Hance v. Hair, 25 O. S. 349.
But a payment by a principal which will take the case out of the
statute as to him will have the same effect as to his surety, who is
present for the purpose of seeing that the payment re made and cred-
ited, and makes no statement that any limitation shall be placed on
the effect of such act. Glick v. Orist, 37 O. S. 388 ; Coffin v. Sccor,
4 O. S. 647.
GENERAL NOTES.
General principles. Statute of limitations must be set up as a de-
fense, or deemed waived. Sturges v. Burton, 8 O. S. 215 ; McKinney
v. McKinney, 8 O. S. 423 ; Haymaker v. Haymaker, 4 O. S. 272 ; Lock-
wood v. Wtidman, 13 O. 430; Townsleyv. Moore, 30 O. S. 184; Vose v.
Woodford, 29 O. S. 245.
It would seem not in an action to recover the possession of real es-
estate under sections 5781, 5782. Wintermute v. Montgomery, 11 O. S.
442, 444.
The statute of limitations may be taken advantage of by demurrer
when the pleading demurred to shows that the cause of action is
barred. Sturges v. Burton, 8 O. S. 215 ; McKinney v. McKinney, 8
STATUTE OF LIMITATIONS. 437
O. 8. 423; BifKU v. Jaudon, 16 O. S. 498, 504; Delaware CU v. An-
drew*, 18 O. S. 49, C7; KeitUer v. Fosbr, 22 O. 8. 27, 30; Vote v.
Woodford, 29 O. S. 245, 249; Whelan v. Kinsley, 26 O. 8. 131.
Lapse of time in equity may be taken advantage of on demurrer.
,,'illiani$ v. Fird Prcs. Soc. Cm., 1 O. 8. 478.
When law and equity were separated, courts of equity acted in
analogy to the statutes of limitations, which did not apply strict] v t >
r (tillable causes. Robinson v. Fife, 3 O. S. 551 ; Juttle v. Wilton, 10
O. 24, 26; Jlarton v. Homer, 14 O. 437, 443; Bigelow v. Bigdow, 6
O. 96; jMiroire v. /fcaro, 10 O. 498, 503; Ridley v. Hrttman, 10 O.
f>2l; Lodneood v. IKA/num, 13 O. 430; GiWrr v. IVimUf, 14 O.
323, 345.
The plea of the statute of limitations is a defense not favored. De-
fendant in default will not ordinarily be permitted to set it up. Sheet*
v. Baldwin, 12 O. 120.
(Query: If this is now the practice? The statute is a law of repoae.
Lapse of time, too, may affect the memories of parties and witnesses
as to material facts, and evidence may be lost by the death of parties
and witnesses, writings, and otherwise.)
It is discretionary with the court to permit the plea after default
foi answer of the defendant. Neuxom v. Rau, 18 O. 240.
(It would seem that; in practice, this discretion has been liberally
exercised, notwithstanding the decision in Sheet* v. Baldwin. For the
discussion of the question, consult any modern text-book on the sub-
ject of the statute.)
The statute does not apply to the state, or to the federal government,
but is enacted for private persons. It docs, however, apply to a sister
ptate suing in Ohio. It does not apply where the state is a trustee,
and the beneficiaries have no right to sue. Green Tp. v. Campbell, 16
O. S. 1 1 ; Wood v. Fergueson, 1 O. S. 288, 290.
There is no statutory limitation as to the time within which a writ of
mandamiu may be obtained. Cliinn v. Triplets, etc., 32 O. S. 236.
The statute runs against a municipal corporation. Cincinnati v.
First Prc*. Church, 8 O. 298 ; Williams v. Fint Pm. Sot. Cincinnati, 1
O. S. 478, 510; Cincinnati v. Eoana, 5 O. S. 594; Lane v. Kmnetly,
13 O. 8. 42.
It is no defense t > an action on a collateral security that the original
claim is barred. Welthv. UiiUl*, 17 O. S. 319; Ewing v. Jamet, 36
O. S. 152 ; Williams v. Pomcroy Coal ( o., 37 O. S. 533.
As Between trustee and cctiui que trust, lapse of time is not a liar.
Gary v. May, 16 O. 66 ; Fuhsr v. JTaMman, 11 O. S. 42, 46 ; WMiam*
v. Fan Tuyl, 2 O. 8. 336; William* v. fYf 7V. Sts. Cm.. 1 O. S.
438 CODE PRACTICE AND PRECEDENTS.
478; Phillips \. State, 5 O. S. 125; Carlisle v. Foster, 10 O. S. 198;
Mack v. Brammer, 28 O. S. 508 ; PasclutU v. Hinderer, 28 O. S. 568,
578.
(When a trustee denies or repudiates his trust relation, and claims
to own the subject of the trust in his own right adversely to the bene-
ficiary, and the fact is known to the beneficiary, the statute of limi-
tations begins to run from such time.)
(A title to land by disseizin is one acquired by twenty-one years of
continued trespass by the wrong-doer, or by one deriving his possession
from him.)
What may defeat the operation of the statute. An agreement to submit
a question of boundary to arbitration defeats the operation of the stat-
ute. Hunt v. Guilford, 4 O. 310.
Possession necessary to bar recovery of real property need not be
continuous for the period of limitation in any one occupier. McNeely
v. Langan, 22 O. S. 32.
Possession must be actual, notorious, continued, exclusive, and ad-
verse ; but color of title is not necessary. Paine v. Skinner, 8 O. 159 ;
Abramv. Witt, 6 O. 16 i; Yetzer v. Thoman,. 17 O. S. 130; McNeely
v. Langan, 22 O. S. 32.
(Possession will be limited strictly to the land in actual adverse oc-
cupancy.)
Occupancy to confer title by disseizin must have been substantially
in the same mode. Buckingham v. Smith, 10 O. 288.
Possession under a tenant for life is not adverse as against a re-
mainder-man. Carpenter v. Denoon, 29 O. S. 379.
(For the reason that the right of possession of the remainder-man
does not accrue until the death of the life tenant, or termination of
the life estate.)
Possession for twenty-one years is no bar to recovery upon a sale for
taxes made within that period. Monroe v. Morris, 7 O. (1 pt.) 262.
(A valid tax sale of which there are practically none, some essen-
tial being omitted in the proceedings is paramount to all other pre-
vious titles, and destroys them.)
A. devised lands to a tenant for life, which was then sold and the
proceeds divided among his children ; the estate of the tenant for life
determined in his life-time. Held, that possession prior to such tenant's
death will not affect the right of the children. Holt v. Lamb, 17 O.
S. 374.
As between the estate of a deceased debtor and the creditors thereof,
the statute does not run against their claims, after they have been pre
STATUTE OP LIMITATIONS. 439
seated to, ntul allowed by, the executor or administrator. Taylor v.
Thorn, 29 O. S. 569 ; La/eiiy v. Shinn, 38 O. S. 46.
When the ttatu'e commence* to rim. When time begins to run against
the ancestor, it continue-* to run against the heir. Williams v.
Soe. Cincinnati, 1 O. S. 478 ; Granger v. (r ranger, 6 O. 35 ; Bart-
low v. Kinnard, 38 O. S. 373. (This also applies to assignees of causes
of action.)
Prior to the Code, equity followed the law in determining when time
would begin to run against the rijjht of a mortgagor to redeem,
and when such right would be barred. Clark v. Potter, 32 O.
S. 49.
Title by prescription may be acquired by twenty-one years' adverse
enjoyment of an easement, and the period begins to run from the time
the right of action accrues. Tootle v. Clifton, 22 O. S. 247.
The statute does not begin to run until a patent has been issued
from the govern men t empowered to make the grant. Wallace v. J/iri/r.
7 O. (1 pt.) 249 ; . c., 6 O. 366 ; Duke v. Thompson, 16 O. 34. (See
section 4977, Sup., p. 327, as to the extent of the change of the rule of
law in this respect.)
When the statute begins to run, it continues to run, without inter-
ruption from subsequent disability of the plaintiff, or the party entitled
to bring the action. -Carey v. Itobinson, 13 O. 181.
Lapse of time in equity was reckoned only from the discovery of the
existence of a trust, fraud, or mistake. Carlisle v. Foster, 10 O. S.
Ornuby v. Longwortli, 11 O. S. 653; Piatt v. Lonyworth, 27 O.
S. I.V.I.
But fraudulent concealment could not be set up in an action at laio
to enlarge or extend the period fixed by the statute. Fee v. Fee, 10
O. 409; Isithrop v. Snellbaker, 6 O. 8. 277; Howk v. J/ifmir*, !'.
O. S. 462. (See for change in this rule, section 4982, Sup., p
328.)
Tin- statute will not begin to run against :i pledger, where the pledge
remains in the possession of the pledgee, until tender of the debt and
refusal by the pledgee to restore the pledge, UJXMI demand. Whelaii v.
>>-ij, 26 O. S. 131.
In the case of boundaries. Where a boundary, uncertain, or capable
of being certainly fixed, is agreed upon by adjoining land proprietor!, and
the liotindary no agreed upon is undisputed and acquiesced in by them,
or those claiming under them for twenty-one years, such boundary will U-
established, though the parties have not taken and held actual
possession to such boundary. There is a question whether this
440 CODE PRACTICE AND PRECEDENTS.
should be called au estoppel in pais, or not, or whether, in the states
where the rule prevails, it is founded upon the recognized necessity
of quieting land claims, so far as questions of boundary are in-
volved. Bobo v. Richmond, 25 O. S. 115 ; Smith v. McKay, 30 O. S.
409, 417.
PREPARATION FOR TRIAL OP A CAUSE, ETC. 441
CHAPTER XXIX.
^REPARATION FOR TRIAL OF A CAUSE OR MATTER AT ISSUE
OR FOIl HEARING.
When a cause is at issue, or when some matter of fact therein is to
be heard and determined, it is requisite that the parties thoroughly
prepare for the presentation of all the evidence that can be adduced in
support of their respective claims. The only fact* that a court or jury
can know are such as are proven to them. If no evidence of a
fact is given, such fact is non-existent for all the purposes of the cause
BO tried. The law on most subjects is settled. The/orte of no case can
be known in a court until* they are proven. The great difficulty and
labor is to ascertain the facts ; to ascertain what rules of law apply to
the case when its facts are clearly established is comparatively easy to
the judge who is well grounded in the knowledge of legal rules and
principles. Hence, the importance of a litigant party developing on
the trial all the evidence of facts that his case will admit of, without
unnecessarily accumulating \\itnossestothesame fact On final trials,
when the ease has been appealed, where appeals are allowed, the prep-
aration, marshaling, and presentation of the evidence are vital.
In important appealable causes, where it is certain an appeal will be
taken from the lower trial court, it is sometimes l>est that the defend-
ant produce but little of his evidence, and compel the plaintiff to
develop all of his, if possible, and reserve his own for tho final trial.
MODES OP TAKING TESTIMONY, ETC.
How testimony of witnesses taken. SEC. 5261. The testimony of wit-
nesses may be taken : 1. By affidavit. 2. By deposition. 3. By oral
examination.
\i,tt. Under the former practice, and n.w in the federal court*, evidence in
chancery cases is required to bo presented in depositions, not orally.
Kind* of testimony defined. SEC. 5262. An affidavit is a written dec-
laration under oath, made without notice to the adverse party; a drpo-
tition is a written declaration under <>ath, made up in notice to the ad-
verse party ; and oral testimony is that delivered from the lipe of the
witness.
44:2 CODE PKACTICE AND PRECEDEMts.
When affidavit may be used. SEC. 5263. An affidavit may be used
to verify a pleadiug, to prove the service of a summons, notice, or
other process iu an action, to obtain a provisional remedy, an exami-
nation of a witness, a stay of proceedings, or upon a motion, and in any
other case permitted by law.
Note. The last clause embraces nil cases in which affidavits wero admissible
under the common-law or chancery system of practice.
Before whom affidavits may be made. SEC. 5264. Au affidavit may
be made in or out of this state, before any person authorized to take
depositions, and must be authenticated in the same way as depositions,
except as provided in section 5107.
Note. Section 5107 relates to the verification of pleadings. In such case?, the
certificate of the officer, signed officially by him, is a sufficient authentication.
"J. P." is a sufficient designation of justice of the peace.
When depositions may be used. SEC. 5265. The deposition of a wit-
ness may be used only in the following cases :
1. When the witness does not reside in, or is absent from, the county
where the action or proceeding is pending, or by change of venue, is
sent for trial.
2. When the witness is dead, or, from age, infirmity, or imprison-
ment, is unable to attend court.
3. When the testimony is required upon a motion, or where the
oral examination of the witness is not required.
(a) A deposition filed but not used by the party taking it may be
used by the adverse party. Wilson v. Ranyan, W. 651. (It is a file
of the court; and where there has been a cross-examination, each
party has a property right in the deposition.)
A deposition can not be read in evidence unless the deponent would
be a competent witness if personally present in court. Fagin v. Cooky,
17 O. 44.
When deposition may be taken. SEC. 5266. EitJier party may com-
mence taking testimony by deposition at any time after service upon
the defendant.
Testimony taken by referee, etc., may be used as a deposition. SEC.
5267. Testimony taken in an action or proceeding, on the order of a
court, by a referee, master commissioner, or special master commis-
sioner, subncrib"d by the witness, and reported to the court by the officer,
mav be useJ ;.s a deposition taken in the case.
PREPARATION FOR TRIAL OP A CAUSE, ETC. 1 l-M
(a) Before the adoption of this section, the testimony <>f :i uitnew,
reduced to writing, and signed by himself, at u hearing U'l'.nj u mu-
ter commissioner, was, after the death of such witness, ad mutable in
any subsequent trial of the case in court. Bonnrr v. Diehon, It u.
S. 434. (It would seem that such testimony can only be received
where the deposition of such witness would be competent, had his tes-
timony been taken by deposition.)
Deposition in foreign suit. SEC. 5268. Depositions may also Ixj taken
where the testimony is required in an action, cause, or matter pending
before any court or authority without this state.
Officers authorized to take depositions. SEC. 5269. (Sup., p. 345; 82
v. .16.) Depositions may be taken in this suite before a judge or
the clerk of the Supreme Court, a judge or clerk of the Circuit Court,
a judge or clerk of the Common Pleas Court, a probate judge, justice
of the peace, notary public, mayor, master commissioner, or any per-
son empowered by a special commission ; but depositions taken in this
state, to be used therein, must be taken by an officer or person whose
authority is derived within the state, and if to be used out of the state,
they may be taken before a commissioner or officer who derives his
authority from the state, district, or territory in which they are to 1>
used.
Sotc. When a deposition is to be taken in n jurisdiction foreign to the
United Stales, the court in which the action i- prndinsj *h>iuld nam* and au-
thorize a commissioner within such foreign jurisdiction t tuko tbo *am<\ Such
depositions are to bo taken upon interrogatories framed by the rapcclivc par-
tie* and forwarded with the commission, nnd duly certified by :h- cU rk, unlew
the parties otherwise agree.
W1\o may take depositions out oj tlie state. SEC. 5270. Deposition*
may be taken out of this state before a judge, justice, or chancellor of
any court of record, a justice of the peace, notary public, mayor or
chief magistrate of any municipal corporation, a commissioner ap-
pointed by the governor of this state to take depositions, or any person
authorized by a special commission from this state.
Jfote. Commissioners appointed by the governor aro called ComtntMiuner*
..f Deed* for tho State of Ohio.
Who disqualified from taking a deposition. SEC. 5271 . The officer be-
fore whom depositions are taken must not be a relative or attorney
of either party, or otherwise interested in the event of the action or
proceeding.
441 CODE PRACTICE AND PRECEDENTS.
Commission to take depositions. SEC. 5272. Any court of record of
this state, or a judge thereof, may grant a commission to take deposi-
tions within or without the state, which commission must be issued by
the clerk, and under the seal, of the court granting the same; and the
person or persons to whom it is issued must be named therein, and
depositions under it must be taken upon written interrogatories unless
the parties otherwise agree.
Notice and service of the same. SEC. 5273. Written notice of tlie
intention to take a deposition shall be given to the adverse party, ex-
cept in cases in which it is to be taken under a special commission,
and shall specify the action or proceeding, the name of the court or
tribunal in which the deposition is to be used, and the time when and
place where it will be taken, and, in case the deposition of a party to
the suit be taken, it shall not be used in his own behalf, unless the
notice specified that his deposition would be taken ; the notice shall be
served upon the adverse party, his agent or attorney of record, or left
at the usual place of abode of such party or his agent, and the deposi-
tion shall only be used against such parties as are served with notice
in one of the modes prescribed; the notice shall be served so as to
allow the adverse party sufficient time, exclusive of Sundays, the day
of service, and one day for preparation, to travel by the usual routes
and modes of conveyance to the place named in the notice ; and the
examination may, if so stated in the notice, be adjourned from day to
day.
Note. Holidays are not excluded in the days designated in this section. Sec-
tion 3177 relates only to their materiality as to commercial paper; and section
4015 to the dismissal of schools on such days.
In the federal courts in Ohio, by r.ule, depositions may be taken as provided
in the statute of the state,; but the witnesses whose depositions are to be taken
are required to be named in the notice. In both courts, if the parties are pres-
ent, and without objection, cross-examine, that will be a waiver of the omission
to name the witness or party in the notice.
(a) The proper service and transmission of the notice may be
proved, although the notice on file is not attached to the deposition.
Ash v. Marlow, 20 O. 119, 127.
The service of a notice to take depositions is insufficient if it be
merely left at the office of the adversary's attorney. Walker v. Devlin,
2 O. S. 594.
Where a deposition was taken, and afterward others were made
parties to the action, and at the trial the deposition was read without
objection except for incompetency of the evidence, it was held a waiver
PREPARATION FOR TRIAL OF A CAUSE, KTC. 445
of the requirements of this section, 5273. Ryan v. O'Connor, 41 O.
S. 368.
Notice by publication. SEC. 5274. When the party against whom a
-lepusition U to be read is absent from or a non-resident of the state,
and has no agent or attorney of record therein, he may be notified of
ih- taking of the deposition by publication; the publication must be
made for three consecutive weeks, in a newspaper printed in the county
where the action or proceeding is pending, if one is printed therein,
ami it' no newspaper is printed therein, then in a newspaper printed in
the state, and of general circulation in that county; and the publica-
tion must contain all that is required in a written notice, and may be
proved in the manner prescribed in section 5051 ; that is, by affidavit.
!>/ it-horn deposition to be written. SEC. 5275. The deposition shall
be written in the presence of the officer before whom it is taken, either
by the officer, the witness, or some disinterested person, and subscribed
by the witness.
H<v deposition sealed up, directed, and transmitted. SEC. 5276. The
deposition so taken shall be sealed in an envelope indorsed with the
title of the cause, and the name of the officer before whom it was
taken, and such officer shall address and transmit the same to the
clerk of the court where the action or proceeding is pending; and it
shall remain under seal until opened by the clerk, by order of the
court, or at the request of a party to the action or proceeding, or his
attorney.
(a) Where the depositions were properly sealed up and directed, the
fact that they were inclosed in another envelope, which was simply
addressed to the clerk, is not objectionable. Evans v. Reynolds, 32 O.
8. 163.
Before what courts depositions may be used. SBC. 5277. Depositions
taken pursuant to this chapter (tit. 1, div. 3,.ch. 3) shall be admitted
in evidence on the trial of any civil action or proceeding pending be-
fore a justice of the peace, or mayor or other judicial officer of a mu-
nicipal corporation, or before arbitrators, a referee, or a master; and
such depositions shall he sealed up, indorsed with the title of the ac-
tion or proceeding, the name of the officer before whom taken, and
add res.- ed and transmitted by such officer to such justice, mayor, or
pther judicial officer, arbitrators, referee, or master.
When depositions may be used in other r<w*. SEC. 5278. A deposi-
tion may be read in any stage of the action or proceeding, or in any
other action or proceeding upon the same matter between the Mine
440 CODE PRACTICE AND PRECEDENTS.
parties, subject, however, to such exceptions as may be taken thereto
under the provisions of this chapter (3).
Note. When once read without objection at the trial or hearing, all objections
at a subsequent trial or hearing are waived, except as to the competency of the
witness and the competency or relevancy of the evidence.
(a) As a general rule, depositions read in evidence should be sent
to the jury on their retirement; but where part of the deposition,
which can not be separated from the balance without mutilation, con-
tains incompetent evidence which has been ruled out, the court may,
in 'the exercise of its discretion, refuse to send it to the jury. Stiles
v. McGibben, 2 O. S. 588.
Formerly a deposition could not be used in another action, between
the same parties, concerning the same matter, unless some special rea-
son existed. Sheppard \. Willis, 19 O. 142 ; O'Harra v. Hurst, id.
460.
Certificate of authentication. SEC. 5279. Depositions taken pursuant
to this chapter (3), by a judicial or other officer herein authorized to
take depositions, having a seal of office, whether resident in this state
or elsewhere, shall be admitted in evidence upon the certificate and
signature of such officer, under the seal of the court of which he is
an officer, or his official seal, and no other or further act of au-
thentication shall be required ; if the officer before whom the same
is taken has no official seal, the depositions, if not taken in this
state, shall be certified and signed by such officer, and shall be
further authenticated, either by parol proof adduced in court, or by
the certificate and seal of the secretary or other officer of state who is
the custodian of the great seal of the state, or the certificate and offi-
cial seal of the clerk or prothonotary of any court of the state where
taken, attesting that such officer was, at the time of taking the same,
authorized, within the meaning of this chapter, to take the same; but
if the deposition is taken within this state by an officer not having a
seal, or within or without this state under a special commission, it
shall be sufficiently authenticated by the official signature of the officer
or commission before whom it is taken ; and when a deposition is
not certified according to law, the fact neglected to be certified may be
shown by parol proof.
Note. The act of Congress in relation to the authentication of the judgments
and judicial proceedings in other states, to give them full faith and credit in
another state, the judge certifying to tho clerk, does not apply, under this sec-
tion, to the authentication of depositions.
PREPARATION FOR TRIAL OF A CAUSE, ETC. 447
Certificate <-f officer. SEC. 5280. The officer before whom the depo-
sition is taken shall annex thereto n certificate showing the following
1. That the witness was firvt sworn to testify the truth, the
whole truth, and nothing but the truth. 2. That the deposition was
reduced to writing by gome projior JHTSOD, naming him. 3. That the
deposition was written and subscribed in the presence of the officer cer-
tifying thereto. 4. That the deposition was taken at the lime and
place specified in the notice.
But if the deposition l>e taken out of the state, by an officer author-
ized to take the same, the certificate may be in the foregoing form, or
in the form authorized by the laws. of the place where taken; ami in
the latter case the certificate shall be deemed, prima facie, a* made in
accordance with the laws of the place where made.
(a) If the officer dors not certify that the witness was sworn to tes-
tify the whole truth, the deposition is inadmissible. H'arriny v. Mar-
tin, \V. 380. (If the certificate be defective, the officer may rectify it,
and it may be proved by parol to the court in which the cause i*
pending, at the time of offering the deposition in evidence, that the
statutory requisites were in fact complied with by such officer.)
The certificate must show that the witness was j?nrf duly sworn, but
the officer may certify to that fact either at the end or at the com-
mencement of the deposition. Hoiue v. Elliott, 6 O. S. 497.
It must appear by whom the deposition was reduced to writing.
Putnam v. Lariniore, W. 746.
Wken deposition may be read. SEC. 5281. When a deposition is of-
fered to IK.- read in evidence, it must appear, to the satisfaction of the
court, that for a cause specified in section 5265, the attendance of the
witness can not be procured.
WTien deposition mwft be filed to be read, SEC. 5282. Every deposi-
tion intended to be read in evidence on the trial must be filed at least
one day before the day of trial.
Feet for taking depositions. SEC. 5283. The following fees shall be
allowed for taking depositions in this state, viz.: Swearing each \vit-
uess,/our cents; for each subpoena, attachment, or order of commit-
ment, fifty cents; for each hundred words contained in the deposition
and certificate, ten cents; and the officer may retain the depo
until such fees are paid ; the officer shall also tax the costs of the
sheriff or other officer who serves the process aforesaid, and fees of the
witnesses; and lie may, if directed by a person entitled thereto, retain
sucli- deposition until his fees are paid.
448 CODE PRACTICE AND PRECEDENTS.
Note. Fees for taking depositions out of the state are governed by the law
of the place where they are taken. For notary's fees, see section 119. They are the
samo as the fees of a justice of the peace, for which see section 621. But, in
relation to the fees for taking depositions, section 5283 governs.
Exceptions to depositions. SEC. 5284. Exceptions to depositions shall
be iu writing, shall specify the grounds of objection, and shall be
filed with the papers in the cause.
Note. This section applies to all exceptions to depositions. By being made
in writing and filed, the rulings of the court upon the same can not be mis-
taken, and thus a true bill of exceptions and review upon error can readily be
obtained.
What exceptions to be filed before trial. SEC, 5285. No exception
other than ior incompetency or irrelevancy shall be regarded, unless
made and filed before the commencement of the trial.
Note. Exceptions for incompetency or irrelevancy should be reduced to
writing and filed. The ground of exception to the whole or s-peeified portions
of a deposiiion should bo stated, as " for the reason that the same is incompe-
tent (or irrelevant) as evidence in this cause."
(a) Formal objections can only be taken advantage of by written
exceptions, and come too late after the jury is impaneled. Ash v. Mar-
low, 2 O. 119; Cowan v. Ladd, 2 O. S. 322.
An objection to a question and answer in the deposition of a witness,
on the ground that the question is leadiny in form, is an objection not
to the substance or relevancy of the testimony of the witness, but to
the form and manner of obtaining it, and should be made at the time
the question was proppunded (if the adverse party was present or rep-
resented by attorney at the taking of the deposition) ; but if not made
then, or within proper time (if the adverse party was not present or
represented at its taking) before the cause is called for trial, it will
fairly and reasonably be taken to have been waived. Crowell v. West'
ern Reserve Bank, 3 O. S. 406.
Judgment will not be reversed for alleged error in overruling excep-
tions to depositions, unless it appear by bill of exceptions, or other-
wise, that the facts upon which the exceptions are predicated exist.
The allegation in the exceptions is not itself sufficient. Shamokin
Bank v. Street, 16 O. S. 1.
When exceptions properly to be heard and determined. SEC. 5286. The
court shall, on motion of either party, hear and decide questions aris-
ing on exceptions t j depositions before the commencement of the triaL
PREPARATION FOR TRIAL OF A CAUSE, ETC. 4 l'.
Jfote. In many cases, if the exception;' are sustained, the party may require
continuance to procure his testimony in proper form ; and if justice requires
it, a continuance will be granted on such terms as to cotts as the court deems
just and proper.
errors of court in riding upon exceptions waived. SEC. 5287.
Errors of the court in its decisions upon exceptions to depositions are
waived unless excepted to.
Kote. This is the general rule as to all ruliigs of the court in a cause not
appearing as part of the record. Exceptions should be taken at the time,
though the bill of exceptions be not prepared until afterward.
NOTICE TO TAKE DEPOSITIONS.
[Form 264. 5273.]
The State of , County, ss.
John Doe, Plaintiff,
No. .] vs.
John Smith, John Jones, and Hugh
Evans, Defendants.
Cause No. , Pending in [the
Common Pleas Court of
County, Ohio].
The above named will take notice, that on , the day of
, A. D. 18 , the , above named, will take the depositions of
[if of one or more of the parties to the action, name them ; and if the action it in the
federal court, give the names of the witnesses] [sundry witnesses], to be used
as evidence in the trial of the above cause, at the [state the place of
taking, as, at the mayor s office in ], in the county of , in the State of
, between the hours of eight o'clock A. M. and six o'clock P. M. of said
day, and that the taking of the same will be adjourned from day to day
between the same hours, until they are completei.
, Attorney for .
Service of the above notice is acknowledged, and proof of the official
character of the officer before whom the said depositions may be taken is
by agreement waived; also all exceptions as to time of taking the same.
Done this day of , 18 . , Attorney for .
HEADING OF DEPOSITIONS, ETC.
Depositions of sundry witnesses, taken by and before me, the under-
signed [notary public], within and for the county of and State of
, in pursuance of the notice which is hereto attached, in the causa
pending in the Common Pleas Court of County, and State of ,
wherein John Doe is plaintiff, and John Smith, John Jones, and Hugh
Evans are defendants.
And at the time 1 and place specified in the inclosed notice present,
Edward Coke, attorney for the said plaintiff, and Joseph Chitty, attorney
for said defendants A. B., being produced as a witness on behalf of said
29
450 CODE PRACTICE AND PRECEDENTS.
, and being by me first duly sworn as hereinafter certified, testifies as
follows:
1st Question. State your name, age, residence, and occupation.
Answer. .
2d Question. ?
Answer. .
[ When the deposition is concluded, and read to or by the witness, he will sign it.~\
[If more than one witness is examined :~\
And also, in behalf of said , C. D. was produced as a witness, and
being by me first duly sworn as hereinafter certified, testifies as follows .-
1st Question. ?
Answer. .
CERTIFICATE OF OFFICER.
The State of , County of , ss.
I, , a , in and for the county and state above named, duly com-
missioned and qualified, do hereby certify that the above and foregoing
named , [were] by me first [severally] sworn [or, affirmed, as the cast
may be] to testify the truth, the whole truth, and nothing but the truth,
and that the depositions by [them respectively subscribed as above se*
forth, were reduced to writing by me [or, by , who is not interested
in the suit, in my presence and] in the presence of the witness[es] [re.
spectively], and were subscribed by said witness[es] in my presence, anrt
were taken at the time and place in the annexed notice specified [ancx
were continued from day to day], as above set forth ; that I am not coun-
sel, attorney, or relative of either party, or otherwise interested in the
event of this suit.
In testimony whereof, I have hereunto set my hand and [official] seal,
this day of , A. D. 18 . .
[SEAL.]
How ADDRESSED ox ENVELOPE.
In the Common Pleas Court of County, Ohio.
John Doe, Plaintiff, ) Depositiong of ( and ( etc>|
.**, -n , A in Behalf of .
John Smith et als., Defendants. J
To the Clerk of the Court of County, , Ohio.
[Write across the place where sealed :]
Sealed up, addressed, and transmitted by me.
[the name of the officer. ~\
PREPARATION Full TRIAL OF V C.U'.-K, KTC.
OPENING OK PUBLISHING DEPOSITIONS.
[Form 265. 5270.]
John Doe }
No. .] vs. > Order to Open Depositions.
John Smith el als. j
In this case, it is ordered by the court that the clerk open the deposi-
tions now on file herein.
f_Or, indorsed on envelope :]
tied at the request of , attorney for , by me. Notice in-
closed. , Clerk.
EXCEPTIONS TO DEPOSITIONS.
[Form 266. g 5284, 5285, 5286.]
Common Pleas Court of County, Ohio.
No _ J -, hn D e> Plaintiff ' I Exceptions to Depositions, and Motion
John Smith et als.. Defendants, j to PP
And now comes the said , and excepts to the depositions of
and , filed herein on behalf of the , for the reasons and upon the
grounds following:
1st. [Here specify the grounds of exception, each ground separably."]
Wherefore the asks to suppress said depositions as herein ex-
cepted to. , Attorney for .
The action of the court upon the motion must be embodied in a
journal entry, and may be excepted to, and the matter ruled upon
embodied in a bill of exceptions. Either party, before the commence-
ment of the trial, on oral motion in open court, may require the court
to decide questions arising on exceptions to depositions. If they are
sustained, it will often afford sufficient ground for a continuance of the
cause, or its postponement until the defects, if remediable, can be
cured.
Giving notice t<> take depositions by publication (section 5274) can
easily be effected from attention to preceding forms.
COMMISSION TO TAKE DEPOSITIONS.
[Form 267. g 5272.]
^. ( Appointment of , Commissioner, to Take Depo-
i Bilious.
John Smith et als. |
In this cause, on motion of the , by his attorney, , a commission
is hereby granted, to take the depositions of and and sundry
other.wilneases, in behalf of said , to be read in evidence on the trial
of this cause, at , in the county of , and State of , to be exe.
cuted and said depositions filed in this court on or before , A. D. 18
452 CODE PRACTICE AND PRECEDENTS.
And , of , in the county of , and State of , is hereby
appointed by the court commissioner to take and forward to the clerk of
this court such depositions.
The parties-are required to file their respective written interrogatories
with the clerk, to be by him forwarded to said commissioner on or before
the day of , A. D. 18 .
[Or, And both parties waive the taking of such depositions on written
interrogatories.]
THE COMMISSION.
[Form 268. 5272.]
The State of Ohio, County, ss.
To , of , in the County of , and State of , Greeting:
Whereas, our said Court of , in and for said county, reposing
every confidence in your fitness and competency therefor, did, on the
day of , A. D. 18 , make the following order in the cause No.
, pending in our said Court of , wherein is plaintiff and
and are defendants, to wit: [Here copy the body of the order, omitting the
entitling of the caitse.~\
You are thereby appointed by our said Court of to execute such
commission, and make return of the same as in said order directed. [The
written interrogatories upon which such depositions are to be taken are
appended hereto, and are to be returned inclosed with such depositions.]
In witness whereof I have hereunto set my hand and the seal of said
court, this day of , A. n. 18 .
[SEAL.] , Clerk.
The directions as to taking and forwarding depositions will apply to
those taken by commission, as will also the provisions in relation to
exceptions.
If depositions are to be taken beyond the jurisdiction of the United
States, a commission to take them is usually resorted to. Our consuls,
where accessible, are properly named as such commissioners, though
any other persons may be appointed.
ADMISSION AND INSPECTION OF DOCUMENTS.
Note. For the rules prior to the Code governing the inspection of private
writings, etc., see 2 Phil. Ev. (Cowen, Hill, and Edwards' notes), chap. 4, marg.
pp. 321-336; 1 Greenl. Ev., 559-563; Railway Co. v. Cronin, 38 O. S. 122.
And "Discovery " in treatises upon equity.
Demand upon party to admit genuineness of a paper, etc. SEC. 5288.
Either party may exhibit to the other, or to his attorney, at any time
before the trial, any paper or document material to the action, and re-
quest an admission in writing of its genuineness ; and if the adverse
PREPARATION FOR TRIAL OF A CAUSE, ETC.
party, or his attorney, fail to give the admission in writing, within four
days after the request, and if the party exhibiting the paper or docu-
ment be afterward put to any cost or expense to prove its genuineness,
and the same be finally proved or admitted on the trial, such cost and
expense, to be ascertained at the trial, shall be paid by the party re-
fusing to make the admission, unless it appear, to the satisfaction of the
court, that there were good reasons for the refusal.
Party compelled to produce booh and writings. SEC. 5289. The court
in which an action is pending may, on motion, and on reasonable no-
tice thereof, require the parties to produce books and writings in their
possession or power which contain evidence pertinent to the issue, in
cases and under circumstances where they might heretofore have been
compelled to produce the same by the ordinary rules of proceeding in
chancery ; if the plaintiff fail to comply with such order to produce
books or writings, the court may, on motion, give judgment for the
defendant as in case of nonsuit; and if a defendant fail to comply
with such order to produce books or writings, the court, on motion,
may give judgment against him by default.
(a) The notice to produce a paper must, as a general rule, to be
reasonable, be given before the trial. Cltoteau v. Raitt, 20 O. 132.
(If the party or his attorney has the paper present in court at the
trial, and admits such fact, he will be required to produce it.)
Where the plaintiff moves the court to compel the defendant to
produce at the trial a writing claimed to be in his possession or power,
and there is no admission by the defendant in his pleadings of the pos-
session or control of such writing by him, and he denies it by affidavit,
the court can not, on the affidavits, decide the question of fact thus
made, iior render judgment against the defendant as if by default
The plaintiff must be left to the resources offered by the ordinary rules
of evidence. Baggett v. Goodwin, 17 O. S. 76.
(In such case, if the paper is lost, parol evidence of its contents may
be given; and if the evidence satisfies the jury that the defendant
has possession of the paper, they will be warranted in finding it to be,
in i lllet, what the adversary party claims it to be.)
And where the nature of the action necessarily shows that a writ-
ing will be required in evidence, notice to produce it will not be re-
<;tii: < <1 in order to admit parol evidence of its contents if the adverse
party . i:i whose possession it is, fails to produce it. Railioay Co. v. Crvnin,
36 6. 8. 122.
\
. Inopeetto* tmd copy of book* and document* - >_".(. Hither party,
or his attorney, may also demand of the advt T>- party an inspection
454 CODE PRACTICE AND PRECEDENTS.
and copy, or permission to take a copy, of a book, paper, or document
in his possession, or under his control, containing evidence relating to
the merits of the action or defense, which demand shall be in writing,
and shall specify the book, paper, or document with sufficient par-
ticularity to enable the other party to distinguish it ; if compliance
with the demand within four days be refused, the court or judge may,
on motion, and notice to the adverse party, order the adverse party to
give the other, within the time specified, an inspection and copy, or
permission to take a copy, of such book, paper,- or document ; and on
failure to comply with such order, the court may exclude the paper or
document from being given in evidence, or, if wanted as evidence by
the party applying, may direct the jury to presume it to be such as
the party, by affidavit, alleges it to be ; but this section shall not be
construed to prevent a party from compelling another to produce any
book, paper, or document when he is examined as a witness.
Note. The production of a book, paper, or document can be enforced by a
subposna duces tecttm, which writ commands the person to bring with him such
book, paper, or document, so describing as to identify it.
When the deposition of a witness is taken who is beyond the jurisdiction of
the court, and not a party to the action; or when the writing, paper, or docu-
ment is the property of the witness, and contains evidence material to one or
both the parties to the suit, but to which they have no right, such witness may
decline to surrender the original, and give a copy of il, which copy, on the re-
fusal to give such original, will be admissible the copy being the best evidence
attainable.
When master to inspect may be appointed. SEC. 5291. If the party in
possession of any such book, paper, writing, or document, allege that
the same, or any part thereof, is of mere private interest, or of such
character that it ought not to be produced, or an inspection or copy
thereof allowed or taken, the court may, on motion of either party,
direct a private examination thereof by a master ; if the master find
that such book, paper, writing, or document contains matter pertinent
to the case, and proper to be produced, inspected, or copied, he shall
report the same to the court, or a copy of such part as he finds perti-
nent to the case, and proper to be produced, inspected, or copied; and
the book, paper, writing, or document, or part thereof, so reported,
shall be admitted in evidence on the trial, unless excluded by the court
for proper cause.
How copies of written instruments obtained. SEC. 5292. Either party,
or his attorney, shall, if required, deliver to the other party, or his at-
torney, a copy of any instrument of writing whereon the action or de-
fense is founded, or which he intends to offer in evidence at the trial;
PREPARATION FOR TRIAL OP A CAUSE, ETC.
and if the plaintiff or defendant refuse to furnish the copy required,
the party so refusing shall not be permitted to i_ r i\v in evidence at the
trial tlie original, of which a copy has been refused; but this section
shall not apply to a paper, a copy of which is filed with a pleading as
provided in section 5085.
A<-ti<>n for d'mfovery. SEC. 5293. When a person claiming t-> have
a cause of action, or a defense to an action commenced against him, is
unable, without a discovery of the fact from the adverse party, to file
his j>etitiou or answer, such person may bring his action for discovery,
setting forth in his petition the necessity of such discovery, and the
grounds thereof, and such interrogatories relating to the subject-matter
of the discovery as may be necessary to procure the discovery sought,
which, if not demurred to, shall be fully and directly answered under
oath by the defendant ; and upon the final disposition of the action,
the costs thereof shall be taxed in such manner as the court deems
equitable.
Note. This section will probably be construed as the right to discovery was
in a court of chancery. The party seeking it can only obtain such dis-
covery as will entitle him to secure what constitutes the merits of his own
claim or defense. The opposite party, in such action, will not be bound to dis-
close his own defense or cause of action.
In the preparation of causes for trial, it is of great importance, and the pur-
ties should not fail to avail themselves of the means attWded by section >
6292. And it may also be proper here to observe that the witnesses by which
the cause of action, or defense, is to be sustained should be ascertained in duo
time, and to what they are expected to testify. To this end, it is proper that
the lawyer, if possible, should hear their statements from the mouths of bis
witnesses. lie should learn from them what they know and can swear to, by
questions put to them with such view, being careful not to suggest any thing
for the witness to state on the witness stand that he does not know. Such
preparation, instead of being n matter for reprehension, is a duty owed to the
client and to the proper management of the cause, to the securing of a full and
fair trial and to the proper dispatch of business in the court. Cases that are
attempted to be prepared and tried at the same time are never presented as
they should bo, and much precious time is wasted, the trial protracted, and the
danger of justice being sacrificed greatly increased. The conduct of the trial
throughout will b weak and blundering likely to detract both from the law-
yer's reputation and injure bis client's cause. More than half the time expended
by courts in the trial of causes could be saved by the due preparation of cases
before they are called for trial. The key to the lawyer's success is to prepare,
prepare, PKKPXRK. Learn the fact.* to prepare the pleading*, prepare the plead-
ings carefully; when the issues are made, know all the written or documentary
evidence that is to be introduced at the trial by both parties, learn by what
witnesses the cause of action or defense is to bo proven, and to what each wit-
ness will testify, and if it can fairly be done, what the adversary expects to
456 CODE PRACTICE AND PRECEDENTS.
prove, and by whom; make minutes of all; and then prepare a brief of the
propositions of law involved in the case, carefully studying the law and noting
the authorities which sustain it, with answers to such cases as may seem to mili-
tate against, or conflict with, such propositions. So fortified, the cause wifl be
won, if it ought to prevail, and the court does not err, which is unlikely when
it is so thoroughly presented upon the facts and the law.
[Form 269. 5288.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, ]
No. .] vs. [ Request to Admit Genuineness of
John Smith, John Jones, and Hugh j Writing.
Evans, Defendants.
To John Smith, John Jones, and Hugh Evans, Defendants, or Joseph
Chitty, their attorney of record herein :
You are hereby requested to admit, in writing, the genuineness of the
paper writing, the original being herewith shown to you, and being [the
promissory note, with the indorsements thereon, upon which this action
is brought, and a copy of which is made part of the petition herein] .
Your failure to give such admission in writing within four days from
this date will be insisted upon as a ground for requiring you to pay any
cost or expense the plaintiff may be put to or incur in proving the genu-
ineness of the same, in case such genuineness shall be finally proved or
admitted on the trial of the action.
[.Date.] ' EDWARD COKE, Attorney for Plaintiff.
Service of the above notice, accompanied by the exhibition to me of
said paper therein mentioned, acknowledged this day of , 18 .
[And the genuineness of said promissory note and indorsements as to all
the defendants is hereby admitted.]
JOSEPH CHITTY, Attorney for Defendants.
[Form" 270. 5289.]
Common Pleas Court of County, Ohio.
No - l hn D l's Plaintiff ' I Motion to Require Plaintiff to Produce
John Smith et als., Defendants, j Books > etc -
The defendants herein move the court to require the plaintiff to produce
on the trial of this cause the [purported promissory note on which this
action is brought], which is in said plaintiffs possession or power, reason-
able notice to be fixed by the court being first given to the plaintiff, and if
he shall fail to comply with the order in that behalf made by the court,
that the court render judgment for the defendant as in case of non-
suit, etc. JOSEPH CHITTY, Attorney for Defendant.
PREPARATION FOR TRIAL OF A CAUSE, ETC. 457
[Form 271. 5289.]
John Doe )
No. .] v*. V Order Requiring Plaintiff to Produce Books, etc.
John Smith et als. )
The motion heretofore filed herein by the said defendants to require,
etc., is this day granted by the court. It is thereupon ordered by the court
that, upon the defendants giving to the plaintiff - days notice so to
do, or serving him with a copy of this order, the plaintiff be and he is
hereby required and ordered to produce, on the trial of this cause, the
[alleged promissory note upon which this action is brought].
[Form 272. 5289.]
Jonh Doe }
No. .] r*. > Judgment as in Case of Nonsuit
John Smith et als. j
It being made to appear, by the said defendants, to the satisfaction of
the court, that due notice, as required by the order of this court in such
behalf, has been given to the plaintiff to produce [the alleged promissory
note] specified in said order, and that the same is in the possession and
power of said plaintiff, and that said plaintiff has refused and still refuses
to produce, on the trial, the same, without having any good or valid excuse
for such refusal: It is therefore ordered mid adjudged by the court that
this action be dismissed, without prejudice to the bringing of a new action-
and that the defendants recover of the plaintitf their costs in this behalf
expended and incurred, taxed at - dollar.-.
. If it be the defendant who refuses to obey such order, after making the
proper finding as in the foregoing form, judgment may be rendered in favor of
the plaintiff, upon bis cause of action, against the defendant, as by default.
[Form 273. 5290.]
Common Pleas Court of - County, Ohio.
John Doe. Plaintiff,
No. .] w. I Demand for Inspection and Copy, etc., of
John Smith, John Jones, and I Papers, etc.
Hugh Evans, Defendants, J
To John Doe. said Plaintiff, and his Attorney, Edward Coke:
The said defendants hereby demand of the said plaintiff, John Doe, an
inspection and copy or permission to take a copy of the following described
books, papers, and documents in his possession and under hi* control.
which contain evidence relating to the merits of this action and the de-
fenses thereto, to wit- f Here dc*-ril>e what tl, f il,i,,g it with. sufficient accuracy
to identify it or enable the other party to liittinguith i/.]
Compliance with this demand is asked within four days from this date.
[Atfe] JOSKPII Cuirrv, Attorney for Defendants.
Service of a copy of the above notice is hereby acknowledged, this
day uf - , 18 . EDWARD COKK, Attorney for Plaintiff.
458 CODE PRACTICE AND PRECEDENTS.
FAILURE TO COMPLY WITH SUCH DEMAND.
[Form 274. 5290.]
Common Pleas Court of County, Ohio.
^ John Doe,^ Plaintiff, j Motion fco Require Plaintiff to giye In .
John Smith et als., Defendants, j s P ection and C W' etc ;
The said defendants move the court to order the said plaintiff he
having been duly notified and failed so to do, as required by the statute in
such case made and provided to grant the defendants, or their attorney
of record herein, an inspection and copy, or permission to take a copy of
the following described books, papers, and documents, in his possession
and under his control, and which contain evidence relating to the merits
of this action, and their defense, within a short day to be designated by
the court, to wit : \_Here describe the same as in the written demand.^
And for such other and further orders in the premises as justice may
require. JOSEPH CHITTY, Attorney for Defendants.
[Form 275. 5290.]
I Order Requiring Plaintiff to Give Inspection and
No. .J vs. r r t
John Smith et als. )
This day the motion heretofore filed herein by the defendants came on
to be heard by the court; and the court finds that the statements con-
tained in said motion are true, and that the same should be granted. It is
therefore ordered by the court that within days from the date of the
entry hereof, and notice to plaintiff so to do, the plaintiff give to the de-
fendants, or their said attorney, Joseph Chitty, an inspection and copy, or
permission to take a copy of the said books, papers, and documents, men-
tioned and described in said motion, and upon his failure, or refusal so to
do, the same shall be excluded from being given in evidence by the
plaintiff, or, if wanted as evidence by the defendants, the same shall be
presumed to be such as the defendants by affidavit allege them to be.
Note. A certified copy of such order should forthwith be served upon the
parly, which service being proved to the court, it will rule at the trial without
requiring a further written motion.
If the party asking for such inspection and copy, or permission to take a copy,
desires the same as evidence to establish his defense, he must make and fill) I U
affidavit alleging the facts contained therein, and the court, in such CMSO, \v 1
presume, or direct the jury to presume, that the same is such as alleged in thu
affidavit.
But the partv may, by a subpoena duees tecum, be compelled to produce such
book, paper, or document in court, at the trial, and for failure or refusal to do
so, may be punished for contempt, as in other cases of contempts.
PREPARATION FOR TRIAL OP A CAUSE, BTC. 459
DUCKS TECUM.
[Form 276. f 4959.]
Common Pleas Court of - County. Ohio.
.John Doe, Plaintiff, 1 u r o u t
\- M _ | rrecipe for Subpcena Duces Tecum for
John Smith et als., Defendants./ John Doe
To Clerk:
In this case, on behalf of the defendants, subpoena said John Doe, who
H at - , in - , in said county ; and command him that he bring
with him the following described books, papers, and documents, to wit:
[Here describe the tame tu directed in the foregoing notices for cojty ] Make said
writ returnable, and require said John Doe to respond to the same, in said
court, before Judge - , in Room - ,on the - day of - , A. D. 18
at -- o'clock, M. [or, forthwith, as may ie df tired"}.
[Date] Joseru < 'HITTV, Attorney for Defendant-.
SUBPCEXA DUCES TECUM
[Form 277. 5-J47.]
Court of Common Pleas of - County, and State of Ohio.
The State of Ohio. - County, jw.
To the Sheriff of said County, Greeting:
You are hereby commanded to summon John Doe, who is hereby di-
rected and required to be and appear before said court, at the court-house
in said county, in Koom No. - , Hon. - .Judge, at - o'clock n..on
the - day of - , A. D. 18 [</r. forthwith], and there to giv-
mony and the truth to say in the action there pending wherein John Doe
is plaintiff and John Smith et al. are defendants, it being cause No. - .
[And you are further commanded hereby to notify the said John Doe
that he is required to bring with him and have then there the following
described books, papers, and documents, to wit: (Here describe tl<em as in
theprecipe ) And said John Doe will fail not under penally of the law.]
Witness my hand and the seal of our said Court of Common Pleas, this
- day of - . A. D. 18 .
[SKAL Or OOUBT.] - , < 'l.'l'k
WHEN BOOK, ETC., CLAIMED TO BE OF MERE PRIVATE IN n.ui.- 1
[Form 278. 2 5291.]
Court of Common Pleas of - County, Ohio.
_John Doe. Plaintiff, I Motion to Appoint Master to Make
John-Smith et als., Defendant.. [ PrivH " E in tion of Book-
The said defendants represent to the court that th<> >ai-l j l.iintitr has
refused the demand made by the defendants upon him for an inspection
460 CODE PRACTICE AND PRECEDENTS,
and copy, or permission to take a copy of the books, papers, and docu
raents hereinafter mentioned, for the alleged reason that said books,
papers, writings, and documents are of mere private interest, and of such
a character that the same, or any part thereof, ought not to be inspected
or a copy thereof allowed or taken. The following is a description and
the character thereof: [Here describe them as indicated in foregoing forms.~\
The defendant, therefore, moves the court to direct a private examina-
tion thereof by a master to be appointed for that purpose, and to direct
such master to report thereon to the court in accordance with the require-
ments of the statute in such case made and provided.
JOSEPH CHITTY, Attorney for Defendants.
[Form 279. 5291.]
-pj I O r( * er Appointing Special Master, to Pri-
John Smith et als. J vatel y Exami " e and Report upon Writings, etc.
This day the motion heretofore filed herein for the appointment of a
master to privately examine and report to the court upon the books,
papers, writings, and documents mentioned and described in said motion,
was heard by the cjurt ; on consideration whereof, said motion is granted,
and is hereby appointed by the court privately to examine the fol-
lowing books, papers, writings, and documents, to wit: \Jiere describe the
same'], and report to the court, without delay, whether copies thereof are
proper to be furnished as evidence in this cause, and if so, to take and re-
port to this court copies of the same, or of such parts thereof as he finds
to be material evidence in this cause, upon the issues joined.
Note. The master will be sworn to execute such order by making a private
examination, and to report his findings and conclusions to the court. His re-
port can, without difficulty, be framed from the forms of masters' reports in.
other cases.
COPIES OF INSTRUMENTS TO BE USED AT TBIAL.
[Form 280. 5292.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff,
No. .] vs.
John Smith et als., Defendants.
To Edward Coke, Attorney for Plaintiff:
You are Tiereby notified to deliver to me, as the attorney of the said de-
fendants, a copy of any instrument upon which this action [or, defense,
if notice is to defendant] is founded and of each and all written instruments
which are intended to be offered in evidence in behalf of the plaintiff at
the trial, in default of which the admission of the same in evidence at the
trial will be objected to.
[DateJ] JOSEPH CHITTY, Attorney for Defendants.
PREPARATION FOR TRAIL OF A CAUSE, ETC. 461
Service of a copy of the above notice upon me acknowledged, this
day of , is EDWARD COKE, Attorney for Plaintiff.
fiote. Under such notice the party will give copies uf such writing* as he
intends to introduce in evidence to establish his cause of action or defense in
substance. It will not embrace writings that may become proper evidence col-
laterally, as in rebuttal, impeachment of witnesses, etc. As to this class of
writings, the court will be vested with a sound discretion to secure the ends of
justice.
ACTION FOR DISCOVERY.
As has been stated, this action will only lie to obtain discovery of
matters material to the plaintiff's claim or rights, and not of what the
defendant may have to disprove them, ft, however, does extend to
documents, etc., in which they have a common interest. For illustra-
tion : If the plaintiff is a devisee under a will in the possession of the
defendant, the probate and record of which have been lost or de-
stroyed, he can have discovery of it, though the defendant is inter-
ested in the thing devised by the terms of the same will. But if be
fore the death of the testator he conveyed the land devised to the de-
fendant, by deed, the plaintiff is not entitled to discovery of the deed.
[Form 281. 5293.]
Common Pleas Court of County, Ohio.
A. B., Plaintiff, )
No. .] vs. \ Petition.
C. D., Defendant. ) .
The plaintiff says that, on or about the day of , A. D 18 , one
E. P. died testate, iind, by the provisions of his said lost will and testa-
ment, devised to the plaintiff an estate and interest in certain lands,
tenements, and hereditaments, situate in the county of . and State of
, the precise terms and provisions of said will in respect to said es-
tate and interest so devised to the plaintiff he is not able to state more
fully.
That said will, on or about the day of , was duly proved and
admitted to probate, and recorded in the Court of , in the county
of , in the State of , which probate remains in full force.
That aid probate and record of said will have been lost and de-
stroyed.
That the said defendant has in his possession and under his control
the said will and a copy of the probate thereof, which, though often re-
quested KO t<> do, he has refused and still retn-.-- t<> allow tin- plaintiil' to
inspect or copy.
That said defe.rul.mi is in the possession and enjoyment of said real en-
state," -so as aforesaid mentioned an<l >l, -scribed, and denies any interest
of the plaintiff therein or thereto, claiming it as his own to the exclusion
of any and all rights of th- plaintiff.
462 CODE PRACTICE AND PRECEDENTS.
That the plaintiff desires and intends to bring an action against the
defendant to establish and obtain his rights in the premises.
And that he is unable to do so, without a discovery of such facts from
the defendant.
He therefore asks that said defendant be required to answer, under
oath, fully and directly, without mental reservation or evasion, each and
all of the interrogatories following :
First. [Here state the interrogatory, and follow it with such others as may be
deemed requisite.^
And he further asks the court to grant him such other and further re-
relief, as upon the final hearing hereof, he may be found entitled to, etc.
[Verification."] EDWARD CORK, Attorney for Plaintiff.
COMPETENCY OF WITNESSES AND EVIDENCE.
Constitution, article 1, section 7: Nor shall any person be incompe-
tent to be a witness on account of his religious belief; but nothing
herein shall be construed to dispense with oaths and affirmations.
Wlio are competent witnesses. SEC. 5240. All persons are competent
witnesses, except those of unsound mind, and children under ten years
of age who appear incapable of receiving just impressions of the
facts and transactions respecting which they are examined, or of re-
lating them truly.
Note. When a witness of supposed unsound mind, or a child under ten years
of age, is offered, and objection to competency is made, or the court, sua sponte,
interposes, such person is examined before the court on what is called voir dire,
to enable the court to decide whether such person is capable of testifying intel-
ligently and truthfully. The decision of the court is final, and if the witness is
held competent, the credibility and weight due to the testimony given is sub-
mitted to the consideration of the jury, or court trying the cause, as is the
testimony of every witness. The" oath of a witness is to be administered in
the form which he deems most binding on his conscience, and it is not for the
court to determine what form of oath he ought to take.
(a) Under the constitution of 1802, one who believed in the ex-
istence of a God, and that an oath is binding on his conscience, was a
competent witness, although he did not believe in a future state of re-
wards and punishments. Brock v. MiUigan, 10 O. 121. See Clinton v.
State, 83 O. S. 27.
(Whether, under the present constitution, article 1, section 7, the
belief or non-belief of a witness, upon any religious question, can
legally be inquired into, in his examination, to present an element for
the consideration of his credibility, is not settled.)
A change in the statute relating to the competency of witnesses was
PREPARATION FOR TRIAL OP A CAUSE, ETu. 463
applied to pending cases in Waterman v. Weaterman, 25 O. S. 500 ;
Jolm v. /;/// fyeman, 27 O. S. 22. But see :
BfeO. 7'.'. \Vhenever a statute is repealed or amended, such repeal
r a -i emlment shall in no manner affect pending actions, prosecutions,
or proceedings, civil or criminal, and when the repeal or amendment
n-lates to the remedy, it shall not affect pending actions, prosecutions,
or proceedings, unless so expressed," etc. (Act of 1866.)
- tion 79 applies to questions of the competency of jurors.
Jl'irtntU v. State, 42 O. S. 568; Palmer v. State, 42 O. S. 596. IVr-
haps o nde of evidence has no relation to " remedy" us used in this
section.)
Where a witness offered is improperly rejected as incompetent to
testify, it will he presumed that the party offering the witness has
been prejudiced by his exclusion, though the facts he was expected to
prove are not shown by the record. Wolf \. Towner, 30 O. S. 472;
Holluter v. /fapior, 9 O. S. 1.
(But where the witness is held to be incompetent u|>on his examina-
tion by the court on the voir dire, for then unsoundness of mind, or
from want of intelligence, being under the age of ten years, in the
very nature of things none but the court trying the c ise is capable
of judging.)
Where o ic is offered as a witness for a purpose for which he is in-
competent, and is rejected on that ground, the fact that he was so
offered and rejected is no ground for excluding him when he is of-
fered fora purpose as to which he is competent. Steartu v. Cox, 17
O. 590.
A waiver of objection to the competency of a witness, so as to allow
his deposition to be taken in a cause, is a waiver during the whole
progress of the cause, and the objection can not be insisted on \\h-n
the witness is called to give a second deposition in the same cause.
Chateau v. Thompson, 3 O. S. 424.
(This would seem to render such deposition competent in a trial
on appeal ; but whether, when an incompetent witness is examined
on a trial of a cause, his incompetency being waived, is offt-n-.i nixm
another trial of the same cause, in the same court, or upon an appeal,
his incompetency can in- insisted upon, has not, it is U-lirvr.l. been
decided in Ohio.)
A deaf person who can neither read nor write may bo .-worn as a
witm-ssand examjmed by signs, through the in-iruni- nUility of an in-
terpro^er who can make him understand. Jacob v. Jacob, W. ',.">!.
When a party makes his adversary a witness he waives objection to
464 CODE PRACTICE AND PRECEDENTS.
his competency and credibility ; and he becomes competent as a wit-
ness on the trial for all purposes. Legg v. Drake, 1 O. S. 286.
A justice of the peace may testify as to the incompetency of the
grantor in a deed, the acknowledgment of which he has taken. Tru-
man v. Love, 14 O. S. 144.
A justice of the peace before whom a cause is being tried by a jury
can not testify in such cause, unless both parties expressly or tacitly
assent thereto. McMillan v. Andrews, 10 O. S. 112.
A juror may be a witness to relate what claims of a party were al-
lowed by a jury under a plea of payment. Piatt v. St. Clair, 6 O.
227.
(But a juror can not be a witness in a cause which is on trial before
him as one of the jury.)
It is inadmissible, for the purpose of impeaching the credibility of a
competent witness, to prove by other witnesses that such witness is not
possessed of ordinary intelligence. Bell v. Rinner, 16 O. S. 45.
It is discretionary with the court to refuse or permit a witness to
testify, who, in disobedience of an order of court to withdraw, remains
and hears the testimony of other witnesses. Laughlin v. State, 18 O.
99 ; Didason v. State, 39 O. S. 73.
(On motion of either party at the trial, the court will order all the
witnesses of both parties to withdraw from the court-room, while the
other witnesses are being examined, or such of them as are requested
to be included. in the order, the parties to the action, though to be wit-
nesses, are never included in such order.)
This subdivision (subdiv. 1, ch. 3). Steen v. State, 20 0. S. 333.
Privileged communications and acts. SEC. 5241. The following per-
sons shall not testify in certain respects :
1. An attorney, concerning a communication made to him by his
client in that relation, or his advice to his client; or a physician, con-
cerning a communication made to him by his patient in that relation,
or his advice to his patient ; but the attorney or physician may testify
by express consent of the client or patient; and if the client or patient
voluntarily testify, the attorney or physician may be compelled to tes-
tify on the same subject.
2. A clergyman or priest, concerning a confession made to him in
his professional character, in the course of discipline enjoined by the
church to which he belongs.
3. Husband or wife, concerning any communication made by one to
the other, or an act done by either in the presence of the other, during
coverture, unless the communication was made, or act done, in the
PUIII'AKATIOX Foil TRIAL ' . \ VirSE, ETC. 465
known presence >r lu-:irini of u third person competent to \te a wit-
ness; ami tli- rule shall tu- t..v -ame if the marital relation has coaiod
to exist.
4. A person who assigns his claim or interest, concerning any
matter in n-sj>ect to which he would not, if u party, be permitted to
testify.
">. A person who, if a jwirty, would be restricted in his evidence
un - er section 5242, shall, where the property or thing is sold or trans-
ferred by an executor, administrator, guardian, trustee, heir, devisee,
or legatee, be restricted in the same manner in any action or proceed
ing concerning such property or thing.
(a) An attorney is competent to testify to facts affecting his client,
the knowledge of which he derived from other sources. Rogers v.
Dare, W. 136.
If a party offer himself as a witness, and give evidence generally in
the case, he may, on cross-examination, be interrogated us to admis-
sions or communications made to his counsel, and they may be proved
by the attorney, either as evidence in chief, or for the purpose of im-
peachment. King v. Barrett, 11 O. 8. 261.
Husband or wife, called to testify to such communication or act,
may testify to the " known presence or hearing" of such third person,
competent to Ixs a witness. Me Cogue v. Miller, 36 O. S. 595; Steven-
ion v. Morris, 37 O. S. 40; Howard v. Brewer, 37 O. 8. 402 ; Session*
v. Trevitt, 39 O. S. 259.
(This clause (part 3) does not apply to criminal cases, peace war-
rants, nor in actions for divorce or alimony. Steen v. State, 20 O. S.
333, and section 5697.)
As to decisions construing former statutes relating to the compe-
tency of testimony by husband or wife, see Cook v. Grange, 18 O.
526; Stober v. McCarter, 4 O. S. 513; Bird v. Huetton, 10 O. S. 418;
Nuser v. Beach, 15 O. 8. 172 ; Robinson v. Chadunck, 22 O. 8. 527 ;
Edwards v. Edwards, 24 O. 8. 402 ; Westerman v. Westerman, 25 O.
8. 500.
}\lu-n a party shall not testify. SEC. 5242. (Sup., p. 343-4.) A party
shall not testify where the adverse party is the guardian or trustee of
either a deaf and dumb or au insane person, or of a child of a deceased
person, or is an executor or administrator, or claims or defends :i-
heir, grantee, assignee, devisee, or legatee of a deceased person, ex-
cept: ^
1. To facts which occurred subsequrnt to the appointment of the
30
466 CODE PRACTICE AND PRECEDENTS
guardian or trustee of an insane person, and, in the other cases, subse-
quent to the time the decedent, grantor, assignor, or testator died.
2. When the action or proceeding relates to a contract made through
an agent by a person since deceased, and the agent is competent to
testify as a witness, a party may testify on the same subject.
3. If a party, or one having a direct interest, testify to transactions
or conversations with another party, the latter may testify as to the
same transactions or conversations.
4. If a party offer evidence of conversations or admissions of the
opposite party, the latter may testify concerning the same conversa-
tions or admissions.
5. In an action or proceeding by or against a partner or joint con-
tractor, the adverse party shall not testify to transactions with, or ad-
missions by, a partner or joint contractor since deceased, unless the
same were made in the presence of the surviving partner or joint con-
tractor; and this rule shall be applied without regard to the character
in which the parties sue or are sued.
6. If the claim or defense is founded on a book account, a party
may testify that the book is his account book ; that it is a book of
original entries ; that the entries therein were made by himself, a per-
son since deceased, or a disinterested person, non-resident of the county.
Whereupon, the book shall be competent evidence, and such book may
be admitted in evidence in any case, without regard to the parties,
upon like proof by any competent witness.
7. If a party, after testifying orally, die, the evidence may be
proved by either party on a further trial of the case, whereupon the
opposite party may testify to the same matters.
8. If a party die, and his deposition be offered in evidence, the
opposite party may testify as to all competent matters therein.
Nothing in this section contained shall apply to actions for causing
death, or actions or proceedings involving the validity of a deed, will,
or codicil ; and when a case is plainly within the reason and spirit of
the last three sections, though not within the strict letter, their prin-
ciples shall be applied. (April 16, 1885 ; 82 v. 125.)
Note. By the rules of common law, the books of account, however regularly
arid accurately kept, of another person or corporation, were not competent evi-
dence in an action between third persons. Chaffe v. U. S., 18 Wai. 516.
They were res inicr alias acta, and the facts contained in them had to be
proved by competent witnesses in actions between third parties. It is difficult
to understand how an action between strangers can be founded on such book
accounts; and they are made competent evidence "in any case, without regard
to the parties;" and the plain reason and spirit of the provision, not its strict
letter, is to govern. It is probable, therefore, that the true construction of such
PREPARATION FOR TKIAL OP A CAUSE, ETC. 467
provision (sixth part) renders them substantive evidence, when proven liko
other books of account. If <>, great embarrassments and difficulties have been
<-d, facts may be proved that in no other way could !> testified to by any-
bo 1 v. owinj; to w.'tnt <>f memory, and no injustice will be done to any one, but
frequently nrcvente.i. Tl:e entire testimony of a deceased witness, upon a former
trial, both on direct, cross, and re-examination, must be undertaken to be
: i. or none of it will be admissible; but it need not all be. proved by a
single witness one witness may prove the whole of one part, and another
another portion. i-te. SHIHIH<IH.I \ . Mate. f O. S. H25.
It tin* testimony was all taken by a short-hand reporter, and bo testifies that
ha knows that his notes are correct, such i otes are admissible to prove the former
testimony of the deceased witness, whether the reporter has any present recol-
lect ion of such testimony ur not. 1 Whart. Ev., J 177. This section has been
twelve times amended since its first enactment, in 1803, until the present enact-
ment, in 1885, showing the difficulty in framing a just general rule upon the
subject.
For decisions construing it in iU different phases, see Railroad Co. v. Camp-
bell, 4 O. S. 683; Myers v. Walker, 9 O. S. 558; Hooter v. Jennings, 11 O. 8.
6-.M; Ilomberger v. Turner, 13 O. S. 2C3; Stevens v. Hartley. 13 O. S. 525; St.
Oair v. Orr, 16 O. S. 220; Knob's Est^ 16 O. S. 273; Bell v. Wilson, 17 O. S.
640; Thompson v. Thompson, 1$ O. 8. 73; Douahman v. Doughman, 21 O. S.
658; Hubbell v. Hubbell, 22 O. 8. 208; Baxter v. Leith, 28 O. S. 84; McNtcol v.
Johnson. 29 O. S. 85; Baker v. Kellogg, 19 O. S. 663; Wolf v. Powner, 80 O. S.
Mother v. Butler, 81 O. S. 188; Elliott v. Shaw, 82 O. S. 431; Black v.
Hoyt, 33 O. 8. 203.
(o) Where an administrator, in bis own behalf, testifies to a conver-
sation or an agreement between his intestate and the opposite party,
which is material to the issue, the opposite party may testify to the
same transaction or conversation, under the third exception in this
section. Rankin v. JIannan, 38 O. S. 438.
A defendant is a competent witness to transactions with a deceased
agent of plaintiff, though not occurring in the plaintiff's presence,
if within the scope of the agent's authority. Cochrnn \. AlmacL, 39
O. S. 314; First A'afumoi Bank v. Cornell. 41 O. S. 401.
Under the fifth exception in this section, in an action upon a prom-
issory note, where the survivor of two joint payees ami the administra-
tor of the other are plaintiff*, an adverse puny may testify to admis-
sions made or acts done by cither payeu in pr> i the survivor.
// .*m v. Xedy, 41 O. S. 334
In an action to recover real property, in which the plaintiffs relied
ujMn a deed claimed to have been ma ! io thc'r father, since deceased,
wherv the question was whether the deed had in fact been execnt. ,1
and delivered, the widow of the decedent, not being a party, is a com-
|K-tent witness to prove such execution and delivery, notwithstanding
468 CODE PRACTICE AND PRECEDENTS.
the last clause of this section ; aud the fact that her right to dower in
the premises may depend ou the validity of the deed will make no
difference. Keyes v. Gore, 42 O. S. 211.
Where a mortgagor died insolvent and no relief is sought against
his estate, the sole question being between the several purchasers, as to
whose land shall be first charged, either party claiming under his con-
veyance from the deceased mortgagor, is a competent witness against
the other. Sternberger v. Hanna, 42 O. S. 305.
Opposite party may be compelled to testify. SEC. 5243. A party may
compel the adverse party to testify orally, or by deposition, as any
other witness may be thus compelled.
How law of other states, etc. , proved. SEC. 5244. Printed copies of
written law enacted by any other state, a territory, or a foreign gov-
ernment, purporting or proved to have been published by the authority
thereof, or proved to be commonly admitted as evidence of the exist-
ing law in the courts or tribunals of such state, territory, or govern-
ment, shall be admitted by the courts and. officers of this state, on all
occasions, as presumptive evidence of such law ; the unwritten or com-
mon law of any other state, or of a territory, or foreign government,
may be proved as facts by parol evidence ; and the books of reports
of cases adjudicated in their courts may also be admitted as presump-
tive evidence of such law.
(a) The existence of a law in a sister state, or foreign jurisdiction,
must be proved as matter of fact. Ingrahamv. Hart, 11 O. 255;
Smith v. Bartram, 11 O. S. 690; Peltonv. Plainer, 11 O. 209, 217;
Evans v. Reynolds, 32 O. S. 163 ; Williams v. Finlay, 40 O. S. 342.
(Federal courts, as has been -seen, take judicial notice of the laws
of the states and territories.)
The statute of limitations of a sister state, set up as a defense, and
issue joined thereon, must be proved as other matter of fact. Whelan
v. Kinsley, 26 O. S. 131.
The existence, construction, and legal effect of foreign statutes, are
rather matters of fact than of law, and when they have received an
authoritative construction where they are enacted, no inquiry into the
correctness of such construction is allowable. Niagara County Bank v.
Baker, 15 O. S. 68 ; Smith v. Bartram, 11 O. S. 690. (The construction,
to be conclusive, should be by the court of last resort in such state, etc.)
How copies of certain public documents r,iade evidence SEC. 5245.
Copies of papers, books, and records, on file or deposited, by virtue
of any law, in the office of the governor or secretary of state, and cer
PREPARATION FOR TRIAL OP A CAUSE, ETC. 469
tified by the secretary of state under the great seal, or in the office of
the board of public works, certified by the president of the board, or
in the office of the auditor of state, certified by him under his seal, or
in the office of the surveyor of lands lying within the Virginia Military
District, certified and neorn to by him, and copies of copies of entries,
survey**, and plats of lands in the Virginia Military District, procured to
be made by the commissioners of any county, and deposited with the
reconuT of such county, and certified by him, and the copies of such
, surveys, and plats, now in office of the auditor of Union county,
he competent evidence, and have the same force and effect as the
originals would if produced.
Note. At to the authentication of judicial records, to render them competent
evidence in otbr states, >* U. 8. Rev. StaU., section 905; of records, books,
etc.. ih. section '.106; of foreign records, section 907. These sections will be found
in Vol II. Ohio Rev. Stats., pp. 1805-6.
MKANS OF SECURING ATTENDANCE OF WITNESSES.
How subfxtna procured and served. SEC. 5240. The clerks of the
several courts (and judges of the Probate Courts), shall, on application
of a person having a cause or other matter pending in court, issue a
subpoena for witnesses, under the seal of the court, inserting all the
names required by the applicant in one subpu-na, which may be served
by the sheriff, coroner, or any constable of the county, or by the party,
or any other person ; and when a subpoena is not served by the sheriff,
coroner, or constable, proof of the service shall be shown by affidavit,
but costs of such service shall not be taxed.
What subpoena to contain. SEC. 5247. The subpoena shall be directed
to a person therein iiamcM, requiring him to attend at a particular time
and place, to testify as a witness; and it may contain a clause direct-
ing the witness to bring with him any book, writing, or other thing
under his control, which he may he compelled to produce as evidence.
Stibjxma on taking deposition. SEC. 5248. When the attendance of a
witness before an officer authorized to take depositions is required, the
subpoena .shall lx? issued by such officer.
H<no subpcena nerved. SEC. 5249. The subpoena shall be served either
by reading, or by copy delivered to the witness, or left at his usual
place of residence ; but such copy need not contain the name of any
other witness.
Wlien, tvitneiot can not be compelled to attend. SBC. 5250. ^ >'"/. , j>.
344.^ A. witness shall not be com|>elle<l t< -'> <>ut of the county where
he resides, or may be subpoenaed, to testify on the trial of a civil
action, or to give his deposition, except where cases have been removed
470 CODE PRACTICE AND PRECEDENTS.
from the county in which such witness resides, to another county, by
change of venue, under provisions of law; nothing herein contained
shall be construed to prevent the taking and use of depositions in such
last named cases ; but no witness shall be compelled to go out of his
county to have his deposition taken.
Right of witness to demand fees in advance. SEC. 5251. (Sup., p. 344.)
A witness may demand his traveling fees and fee for one day's attend-
ance when the subpoena is served upon him, and if the same be not
paid, the witness shall not be obliged to obey the subp03ua; and, when
a witness has attended upon the court, he may in like manner demand
his fees from day to day until discharged by the court. The fact of
such demand and payment or non-payment shall be stated in the re-
turn by the officer; and, if the witness be not discharged on the day he
is notified *to appear, then the fact of payment or non-payment shall be
noted by the clerk in the witness book.
Note. For tees and mileage of witnesses, see Sup., p. 85, sections 1301, 1302,
1306; and Vol. I., sections 1303, 1304, 1305, 1307, 1308, 1315, 3130.
Contempt of court by witness. SEC. 5252. Disobedience of a subpoena,
a refusal to be sworn, except in case of a refusal to pay fees on de-
mand, a refusal to answer as a witness or to subscribe a deposition,
when lawfully ordered, may be punished as a contempt of the court or
officer by whom the attendance or testimony of the witness is required.
(a) A witness is not bound to answer any question that will directly
or indirectly criminate him, and he has the right to determine for
himself whether the answer will have that effect. Warner v. Lucas,
10 O. 336.
(^When it appears to the court that a witness' answers may have
that effect, it will advise him of his privilege ; and if he then answers
he will be bound to answer fully.)
Attachment against ivitness. SEC. 5253. When a witness fails to at-
tend in obedience to a subpoena, the court or officer before whom his
attendance is required may issue an attachment to the sheriff, coroner,
or a constable of the county, commanding him to arrest and bring the
person therein named before such court or officer, at a time and place
to be fixed in the attachment, to give his testimony, an-.i answer for
contempt ; if the attachment is not for immediately bringing the witness
before the court or officer, a sum may be fixed in which the witness
may give an undertaking, with surety, for his appearance, which sum
shall be indorsed on the back of the attachment, and if no sum is so
fixed and indorsed, it shall be one hundred dollars; and if the witness
PREPARATION FOR TRIAL OF A CAtrfE, ETC. 471
was not personally served, the court may, by a rule, order him to show
cause why an attachiu'-nt -'i ailt 1 not issu< him.
'alinijijor xin-h contempt, und puniiJtnn //'. Si... .Y_'.~4. (Sup., p.
'544.; The punishment tor the contempt nu ntione i m -ri-tin
shall be as follows: When the witness fails to attend in br<lience to the
subpoena, the court or officer may fine him in a sum not exceeding y/ty
dollars; in other cases the court or officer may fine the witness in a
sum not exceeding /{/ty nor less than/itf dollars, or may i;np: i>on him
in the county jail, there to remain until he submits to be .-\v rn.
r gives his deposition ; the fine imposed by the court shsill be j>ail
into the county treasury, and that imposed by the officer shall l>e for tin*
: the party for whom the witness was subpoenaed; and the wit-
ness shall also be liable to the party injured for any damages occasioned
by his failure to attend, or his refusal to be sworu, to testify, or to give
\\\< dt-p'-ition.
How witness imprisoned by an officer released. SEC. 5255. (Sup., p.
A witness so imprisoned by an officer may apply to a jii'L
the Supreme Court, Circuit Court, Common Pleas Court, or Probate
Court, who may discharge him, if it appear that his imprisonment is
illegal.
rrocetxlings on such arrest. SEC. 5256. Every attachment for the
anv.-t or order of commitment to prison of a witness, by a court or an
officer, pursuant to this chapter (tit. 1, div. 3, ch. 3), must be under
the seal of the court or officer, if the officer has an official seal, and
must specify particularly the cause of the arrest or commitment ; if
the commitment is for a refusal to answer a question, such ({tuition
must be stated in the order; and the order of commitment may be di-
rected to the sheriff, coroner, or any constable of the county where the
witness resides, or is at the time, and shall be executed by committing
him to the jail of the county, and delivering a copy of the order to
the jailer.
Examination of a witness in prison. SEC. 5257. A person confined
in prison in this state may, by order of a court of record, be required
to be produced for oral examination in the county where he is
imprisoned; but in all other cases his examination must be by depo-
iion.
. Thia section does not apply to criminal case*. See sections
7292.
Custody of \ritne*s while deposition being taken. SEC. 5258. While a
prisoner's deposition is being taken, he shall remain in the custody of
472 CODE PRACTICE AND PRECEDENTS.
the officer having him in charge, who shall afford reasonable facilities
for the taking of the deposition.
When witness can not be sued out of his county. SEC. 5259. A witness
shall not be liable to be sued in a county in which he does not reside,
by being served with a summons in such county while going, return-
ing, or attending in obedience to a subpoena.
Note. If such suit be brought against, and service of summons made upon,
him in such county, he should by motion, supported by affidavit, etc., have the
summons and service set aside and the action dismissed. The statute forbids
bringing suit in such case.
Oath of witness. SEC. 5260. Before testifying, the witness shall be
sworn to testify the truth, the whole truth, and nothing but the truth.
[Form 282. 4959, 5247.]
Common Pleas Oourt of County, Ohio.
John Doe, Plaintiff, ) p . f Witnesses for Supcena for
JNO. .J VS. > rp, ,- ff -|
John Smith et als., Defendants. ]
To Clerk :
On behalf cf [plaintiff] issue subpoena for the following named persons
as witnesses, to appear at [the court-house in said county] [in Room No.
, before Judge ], to testify in this cause, on the day of , A.
i). 18 , at o'clock M.; [or, forthwith]. [T/" books, or writings are re-
quired to be brought by any witness, add to precipe such requirements, describing
what is to be brought.^ EDWARD COKE, Attorney for Plaintiff.
[ Date.']
SUBPCENA.
[Form 283. 5247.]
The State of Ohio, County, ss.
To the Sheriff of said County, Greeting:
You are hereby commanded to summon and , who are hereby
directed and required to attend on the day of , A. D. 18 , at
o'clock M. [or, forthwith], at [the court-house in said county, before
Judge , in Room No. , of said court], to testify as witnesses in cause
No. , pending [in said court], wherein plaintiff- and
defendant-, and they are hereby required to fail not to obey .this writ un-
der penalty of the law.
Witness my hand and the seal of said court, this day of , A.
D: 18. , Clerk.
[SEAL OF COURT.]
Note. The subpoena should be accompanied with written directions to the
officer, furnished by the party, stating where each witness is to be found. The
(/uces tecum part of the writ, when required, will be found in Form 277. The
officer must indorse on the s-ubpcena the day and hour it was received by him-
4966.
PREPARATION FOR TRIAL OF A CAUSE, ETC. 473
OFFICER'S RETURN.
[Form 284. 5289.]
Served the within writ upon - and - , by reading, on the - day
of - , 18 , at o'clock M. [or, by a copy delivered to each of them;
or, by leaving a copy thereof at the usual place of residence of said -
and - ; or, - and - not found] and [add, if the Jaet be so] de-
manded his fees, not advanced [or, advanced], $ - . - , Sheriff,
By -- .Deputy.
If a witness is served at his usual place of residence only and fails
to attend as required by the subpoena, a rule is issued, by order of the
court, on application of the party subpoenaing him, requiring him to
show cause why an attachment as for contempt should nut issue against
him. If he actually received the writ in time to obey it, and
failed to attend, he is in contempt; but if he did not, no attachment
will be issued if he appears to testify.
[Form 285. 5353.]
John Doe |
No. . ] vs. > Rule against Witnesses to Show Cause, etc.
John Smith et als. )
On the application of the [plaintiff], and it appearing to the court that
and were served l>y subpoena, at their usual places of residence
only, to appear and testify as witnesses in this cause, on this day, at
o'clock M., and that they have failed to do so, it is ordered by the court
that a rule Issue against them and each of th>in, returnable [forthwith;
or, on the day of , 18 , at o'clock M.], to show cause why
they should not be attached for contempt for disobeying such said sub-
poena, and then and there to testify as a witness. [Bail fixed at dol-
lars.]
[Form 286. g 5253.]
The State of Ohio, County, ss.
To the Sheriff of said County, Greeting :
You are hereby commanded to take the body and bring into court
[forthwith; or, on the day of , A. D. is , at o'clock M.]
, then and there to show cause why he should not be attached tr
contempt for refusing to obey the command of the subprana heretofore
i*iu'd by the aaid Court of Common Pleas, in the case of John Doe against
John Smith et *ls.. No. . in said court.
And said is hereby directed, then and there, to testify as a witness
in said cause. .
In witness whereof, I have hereunto set my hand and affixed the seal of
said court, this day of , A. o. 18 .
[*EAL or COCRT.] , Clerk.
[Indorsement : Bail fixed at $ .]
474 CODE PRACTICE AND PRECEDENTS.
[Form 287. 5253.]
John Doe
No. .] vs. > Order of Attachment against Witnesses.
John Smith et als. J
On the application of the [plaintiff], and it appearing to the court that
was duly served personally with a subpoena, commanding him to ap.
pear in this court and testify as a witness in this cause on [this day at
o'clock M.], and that said has disobeyed the command of
said writ, it is ordered by the court that an order of attachment forthwith
issue against said , returnable with his body [forthwith; or, on the
day of , A. D. 18 , at o'clock M.], then and there to tes-
tify as a witness, and to answer as for a contempt of this court.
[Bail fixed at dollars.]
[Form 288. 5253.]
The State of Ohio, County, ss.
To the Sheriff of said County, Greeting:
You are hereby commanded to arrest and bring before this, the
Court of Common Pleas of Baid county [forthwith ; or, on the day of
, A. n. 18 , at o'clock M.], to give his testimony as a witness
in the case of John Doe against John Smith et als., No. , pending in
said court, and answer for the contempt of refusing to obey the command
of the subpoena which was served upon him to testify as a witness in said
cause.
In witness whereof, I have hereunto set my hand and affixed the seal
of said court, this day of , A. i>. 18 .
[SKAI, OF COURT.] , Clerk.
[Indorsement: Bail fixed at dollars.]
When the witness has been arrested under Forms 286 or 288, and
the time for having him before the court is fixed on a future day, the
officer will take bail, either the witness' own recognizance, when he
deems it sufficient, or his recognizance with sufficient surety, to be
approved by him in the sum fixed by the court, or if none be fixed,
then in the sum of one hundred dollars, conditioned for the witness'
appearance at the time specified.
It may be taken upon the back of the writ, thus :
[Form 289. 5253.]
We jointly and severally bind ourselves, in the sum of dollars, that
will in all things obey and comply with the within writ of attach-
ment.
\_DateJ] [Signatures.]
Approved by me, this day of , 18 . , Sheriff
PREPARATION FOR TRIAL OF A CAUSE, ETC. 475
The officer will also indorse on the writ what he has done under it.
It is the practice to examine the attached person as a witness fully
before proceeding with the attachment against him. If he shows a
good excuse for not obeying the subpoena, the attachment will be dis-
charged with or without costs, as the court, in its discretion, may or-
<1-T, and the action of the court will be entered on the journal. In all
cases the party should be examined under oath, and be given full oppor-
tunity to purge himself of the alleged contempt.
[Form 290. 5253.]
-y I Order Discharging Rule [or, Attachment] against
John Smith et als. J Wltn e8 -
The rule issued herein requiring to show cause why he should not
be attached for contempt [or, the attachment for contempt issued herein
against ] is hereby discharged [without costs; or, the said to
pay the costs of the said rule and proceedings under the same; or, of said
proceedings in attachment, taxed nt - dollars].
[Form 291. 5252, 52M; &</>., p. 344.]
I ^n h proce^i,rg f s1o7-Contem P t. } **** * Order.
The said having- failed to attend this court as a witness in obedi-
ence to the suhpu-ni duly issued and served upon him in the case of John
Doe against John Smith et als., No. , on the day of , A. D. 18 ,
at o'clock s. ; and said having been duly examined by the
court touching his said contempt, and given full opportunity to purge
himself of the same, failed to do so, and the court doth find him guilty
of such contempt.
It is therefore ordered and adjudged by the court that haid be and
he is hereby fined the sum of dollars [o< exceeding fifty dollars], and
that he pay the costs of these proceedings in attachment against him,
taxed at dollars.
[Form 292. 5252, 5254; Snp., p. 344, g 52f>6.]
In the Matter of . )
In Proceedings for Contempt. )
The said , being in attendance in court us a witness under :i sub-
jKBna duly served upon him, and without having demanded his fees as
Buch witness [or, his fees, to wit, the sum of dollars, having been duly
tendered to niin] in the case of John Doe against John Smith et als.,
No. , pending in this court, did, after being lawfully ordered by the
court, refuse to be 8 worn a a witness in said rinse, or to give teMim my
as a witness therein [or, after being duly sworn as a witnesi. was .
upon his examination in chief, or upon his cross-examination, the follow*
ing question, to wit, which said then and there, being lawfully ordered
476 CODE PRACTICE AND PRECEDENTS.
by the court to answer, refused and persisted in refusing to answer
here state the question}.
Whereupon the court doth find said guilty of contempt of court;
and doth order and adjudge that he be committed to and imprisoned in
the county jail until he submits to be sworn [or, testifies] in said cause;
and that he pay a fine of dollars [not exceeding fifty nor less than five
dollars^ ; and that he pay the costs of these 'oceedings for contempt
against him, taxed at dollars.
ORDER OF COMMITMENT.
.[Form 293. I 5256.]
The State of Ohio, County, ss.
To the Sheriff of said County, Greeting:
You are hereby commanded to commit to the jail of said county
for contempt of the Court of Common Pleas, within and for said county,
for refusing, after being lawfully ordered by the court, to be sworn as a
witness in the case of John Doe against John Smith etals., No. , pend-
ing in said court [or, for refusing, when lawfully ordered by the court so-
to do, to answer the following question asked him as such witness in said
cause, to wit: here state the question], and to imprison him in said jail until
he shall submit to be sworn \_or, testify] as a witness in said cause, in
obedience to the order of said court herein.
In testimony whereof, I have hereunto set my hand and affixed the seal
of said court, this day of , A. n. 18 .
[SEAT, OF COURT.] , Clerk.
Note. The witness is liable, in such case, for the damages the party may sustain
by reason of the deprivation of his testimony, But the party suing the witness
must establish the fact that he had a valid cause of action; that such witness 1
testimony was'material, and that it failed for want of such evidence. This need
not be proved conclusively, but only reasonably to the satisfaction of the jury.
OFFICER'S RETURN OF ORDER OF COMMITMENT.
[Form 294. 5256.]
Received the within order on the day of , A. r>. 18 , at
o'clock M., and I have executed the same by committing said to
the jail of said county, and delivering a copy of said order to the
jailer. , Sheriff.
HOW JURY SUMMONED AND IMPANELED.
Common Pleas Court to determine number of persons to be selected. SEC.
5162. (8up., p. 333.) The Common Pleas Court of each county shall,
at the first term thereof in each year, determine the number of per-
sons necessary to be selected in each county, annually, to serve as
grand and petit jurors in the several courts of such county, in which
PREPARATION FOR TRIAL OF A CAUSE, ETC. 477
may l>e required, and cause a memorandum thereof to be en-
tered on the journal; such order, if not made, at that term, may be
made at any other time, and amended from time to time at the dis-
cretion of the court, and, until it is made, the number of persons to
be selected for jurors in each county shall be as theretofore deter-
mined ; hut if there has been no such determination, the number >liall
IK- <>iw linivlred ami t/iirty, until otherwise ordered.
// '/ to be apportioned tfiroughout the county. SEC. 5163. The clerk of
the Court of Common Pleas of each county shall, on the first Mon-
day of September, annually, apportion the number of jurors de-
termined as aforesaid among the several townships, and the wards of
municipal corporations, in his county, according t> the number of
male inhabitants therein of twenty-one years of age, and shall make,
in writing, a statement of the number of jurors so apportioned to each
township and ward, and forthwith deliver the same to the sheriff, who,
at the time of giving public notice of the general fall election, shall
insert a clause in his notification giving the trustees of the several
townships, and the councilmen of the several wards, notice of the
number of persons to be returned for jurors therefrom, respectively.
Note. As to such notice by the sheriff, see section 2977.
Duties of trustee* and fduncilmen in self ding jurors. SEC. 5164. (Sup. , p.
333.) The trustees of each township, and the councilmen of each
ward, shall, on the day of the regular state election, annually, select
of good, judicious peravis, having the qualifications of an elector, who have
not served at a regular juror in any vourt of record in the county during the two
yean last past, and not exempt by law from serving as jurors, the number
of persons designated in the notice to be returned for jurors therefrom ;
but no trwitee or councilman so acting shall be placet! upon the lUt to serve as
a juror; and shall make a list thereof, and delivei the same to the
judge of election, who returns to the clerk of the court the poll-books
of election, and said judge of election shall deliver the list to the clerk
at the time he returns the poll-book ; and, in selecting the jurors, if any
person shall, by request or suggestion, attempt to influence said offi-
cer, or any of them, to select or not select himself, or any other per-
son or persons as aforesaid, he shall be guilty of a misdemeanor, and
upon conviction thereof before any court of competent jurisdiction,
shall be fined in any sum not exceeding fifty dollars, or imprisoned in
the county jail nuLmore than ten days, or both, at the discretion of the
court. <,
Jfote. This amendatory section WM piuwed April 29, 1885, and if juron
be returned in violation of thu provisions in italics, and any men com-
478 CODE PRACTICE AND PRECEDENTS.
pose the panel, it may amount to sufficient cause of challenge to the array ; "but
this has not been, a-= yet, judicially determined.
As to what is not sufficient ground for such challenge to the array, see
Forsythe v. State, 6 O. 19. g 5163.
(a) Jurors must have the qualification of electors, and if one not
having such qualification is returned on the panel, without the
knowledge of a party or his counsel, and after the exercise of reason-
able diligence to ascertain the fact, it is a sufficient ground to set aside
the verdict. Haywood v. Calhoun, 2 O. S. 164; Eastman v. Wright, 4
Q. S. 156 ; Parks v. State, 4 O. S. 234 ; Kenrick v. Peppard, 28 O. S.
333 ; Watts v. Ruth, 30 O. S. 32 ; McGitt v. Mate, 34 O. S. 228.
Clerk to give notice when lists are not rtturned. SEC. 5162. If the
trustees of any township, or the councilmen of any ward, fail to re-
turn the names of jurors as herein required, to the clerk of the court,
the clerk shall, on ascertaining the fact, immediately notify the
trustees or councilmen of the failure, and they shall thereupon meet,
and select and return to the clerk, without delay, the requisite num-
ber of names as aforesaid ; and the names so returned shall be placed
in the box as if returned with the poll-books.
How additional jurors selected. SEC. 5166. (ISup., p. 334.) If all the
names of jurors to be drawn from the box, or the names of a sufficient
number of jurors for the transaction of the business of the court for
the unexpired portion of the year, be not left in the box, the judge of
the Court of Common Pleas of the county may, during term time, or
in vacation, order such number of jurors as he may consider necessary
to be apportioned among the several townships and wards in the
county, as provided by section 5163.
The clerk, after making such apportionment, shall cause a statement
in writing of the number of jurors required of each township and
ward, to be forthwith delivered to the sheriff of the county, who shall
forthwith serve the same upon the trustees and couucilmen, and re-
turn it, as a summons is served and returned, and the trustees of the
several townships and the councilmeu of the several wards shall im Me-
diately on receipt of the statement proceed to select good, judicious
persons, having the qualifications of an elector, agreeable to section
5164 of this chapter (tit. 1, div. 3, ch. 2), to the number required of
their respective townships and wards, and transmit a list of the par-
sons so selected to the clerk of the court.
PREPARATION FOR TRIAL OF A CAOSE, 17'.'
ORDER FOR ADDITIONAL JURORS AND APPORTIONING THE SAME.
[Form 295. {5166; Sup., p. 334.]
It appearing to the court, at this term [or, to , judge of the Court of
Common Pleas of County, in vacation], that all the names of jurors
have b.-en drawn from the box [or, that the names of a sufficient number
of jurors for the transaction of the business of the court for the unex-
pired portion of the year, are not left in the box], it is therefore ordered
\>\ the court |/>r, by said judge in vacation] that jurors be appor-
tioned amoi.g the several townships and wards in said county of , as
provided in section 5K3 of the Revised Statutes, and that the clerk, after
making such apportionment, cause a statement in writing of the number
of jurors require! of each township and ward to be forthwith delivered to
the sheriff of suid county, who shall forthwith serve the same upon such
trustees and councilmen, and return the same as a summons is served
and returned, euch trustees and councilmen to be governed in their said
selections by the provisions df section fI64 of the Revised Statutes.
Apportionment of jurors to the several townships and wards in said
county, under foregoing order : [Here give a list of townships and wards in lh
county, and the number apportioned to each."] , Clerk.
[Form 296. 5166; Sp.. p. 334.]
The State of Ohio, 7 County, ss.
To the Sheriff of said County, Greeting:
You are hereby notified to serve and make return thereof, forthwith,
in the earn? manner as a summons, tho following order for, and apportion-
ment of, jurors upon the trustees of said townships and .-aid wards, in
said county, to wit: [Here copy order and apportionment.]
Witness my hand and the seal oC said Court of Common Pleas, this
day of, etc. , Clerk.
[CAL < F COURT ]
Juror*, how drawn. SEC. 5167. (Sup. , p. 334. ) The clerk of the court
shall, within five days from the receipt of the list, write the names of
each person FO selected, upon a separate piece of paper, which he shall
put into a box, to be provided by him tit the expense of the county,
and securely kept for the purpose, and shall, at the clerk's ofLce, be-
tween* the hours of ten o'clock forenoon and twelve o'clock noou, on the
fourth Monday previous to the sitting of the Court <f Gwimon Plens,
in the presence of the sheriff, by whom the box shall he >h:ik< n lirforv
the drawing is made, so as to mix the ballots on which the nam
written, and in presence of any other citizens who may choose to
attend,' proceed to draw ttccnty-seven ballots, aad such additional num-
ber of ballots, if any, not exceeding e\ff>d, as (he judge of the Court of
480 CODE PRACTICE AND PRECEDENTS.
Common Pleas in vacation or term time may direct, but if any ballot
so drawn shall bear the name of a person who at the time of such
drawing is known by the clerk to be deceased or to have become a
non-resident of the county, every such ballot shall be destroyed and
the same shall not be counted, and the clerk shall continue such draw-
ing until he shall have drawn the required number of ballots, exclusive
of those destroyed as aforesaid, the persons named on the first fifteen
of which shall be summoned as grand jurors, and those named on the
remainder shall be summoned as petit jurors, the first twelve of whom
shall constitute the regular petit jury, and in ease of challenge, in-
ability to serve, or other cause, it becomes necessary to fill the panel,
the whole of the number of persons so summoned as petit jurors shall
be first exhausted before resorting to other means to fill the same ; and
the clerk shall forthwith issue a venire to the sheriff, commanding him
to summon the persons whose names are so drawn to attend as jurors,
at the seat of justice of the county, on the' first day of the next term
of the Court of Common Pleas, holden therein, at ten o'clock A. M.,
unless the judge of the Court of Common Pleas, by order made in va-
cation or term time, direct on what day of the term the petit jurors
shall appear, whereupon the clerk shall issue a venire accordingly.
(a) The venire for the grand jury and the vfnire for the petit jury
must be separate writs. Forsythe v. State, 6 O. 19.
Jurors for Circuit Court and special Common Pleas term. SEC. 5168.
(Sup., p. 334.) The clerk, upon the receipt of an order of the judge
of the Common Pleas Court, shall forthwith between the same hours,
at the same place, and in the same presence, draw the names of twelve
persons to serve as petit jurors, or twenty-seven persons to serve as grand
and petit jurors, for a special term of the Common Pleas Court.
Whenever an issue of fact, which the law requires to be tried by a
jury, shall be joined in proceedings in the Circuit Court, the clerk of
the Circuit Court shall, at the instance of either of the parties, forth-
with in like manner, draw the names of twelve persons to serve as
jurors in the trial of such cause; and issue his venire for the appearance
of the jurors at the proper time and place.
VENIRE FOR PETIT JURORS.
[Form 297. 5167, 5168; 'gup., p. 234.]
The State of Ohio, County, ss.
To the Sheriff of said County, Greeting:
You are hereby commanded to summon the following persons, to wit:
{here name the persons to be served as petit jurors, giving the places of residence
PREPARATION FOR TRIAL OP A CAUSE, ETC. 481
at nearly as may be] to attend as jurors, at the seat of justice of said county,
on the day of , A. D. 18 [the first day of the next term of the
Court of Common Plena to be holden therein], at ten (10) o'clock A. M.
Witness my hand and the seal of said Court of Common Pleas, this
day of, etc.
[MAL or court.] , Clerk.
Service and return of venire. SEC. 5169. If the venire be issued in
vacation, the sheriff* shall suramou the persons named therein at least
ten days before the sitting of court, and if it be issued in term
he shall summon them forthwith ; he shall indorse on the venire
the names of the jurors, and the time and manner of service, and
return the same to the clerk forthwith, if issued in term, or on the
first day of the term, if issued in vacation ; and service may be made
by reading the venire to the persons named therein, or by leaving at
their usual place of abode a note or memorandum substantially as fol-
lows, to wit: I am commanded to summon you, , to appear before
the [insert Hie name of the court], to be holden in , on the
day of , A. D. , at ten o'clock A. M., to serve as a grand
or petit juror, as the case may be.
(e) Return that the juror "can not be found in the county" is
sufficient Davit v. State, 25 O. S. 369.
fiames of jurors not served to be returned to the box. SEC. 5170. (Sup. ,
p. 335.) If any person selected as a grand or petit juror, as aforesaid,
be not summoned, or if summoned, be excused from serving at the
term to which he is summoned, his name, unless he is exempt from
serving os a juror by law, shall be returned to the box, unless other-
wise ordered by the court, and shall remain there until drawn out at
some subsequent drawing ; and when his name Ls again drawn he shall
serve, unless disabled or excused.
(a) Attendance or non-attendance of jurors, before they are im-
paneled, the punishment of them for non-attendance, and their dis-
charge from attendance on grounds of personal excuse, are matters
between the court and the jurors, and with which the parties can not,
of right, interfere. Bond v. State, 23 O. 8. 349, 355.
When talesmen to be summoned. SEC. 5171. If, by reason of chal-
lenge, or for other cause, there be not present a sufficient number of
jurors, summoned as aforesaid, to make up the panel, whether of the
grand or petit jury, or if the array be challenged and set aside, the
31
482 CODE PRACTICE AND PRECEDENTS.
sheriff shall summon a sufficient number of talesmen to make up the
deficiency, or, if there be such deficiency in the grand jury, the court
may issue a special venire to the sheriff commanding him to summon
the persons therein named to attend forthwith as grand jurors; and
at the close of each term of the court, all persons who have served on
either jury for such term, together with those who are found perma-
nently disabled, disqualified, or not liable to serve, shall be dis-
charged.
When special -venire may issue. SEC. 5172. (Sup., p. 335.) When the
court, or a judge thereof, deems it necessary to have two petit juries,
or when from any cause it becomes necessary to have a new petit jury, or
a member or members to fill up the regular panel for the term, the court,
or a judge thereof, may order the names of the number of jurors re-
quired for the new petit jury; or, in case he deems it necessary to fill
up the regular panel, he may order not exceeding double the num-
ber of names of jurors required therefor to be drawn from the box by
the clerk, as in other cases; and a venire issued to summons them to
appear as may be directed by the court, or a judge thereof.
ORDER FOR SPECIAL VENIRE FOR JURORS.
[Form 298. 5172; Sup., p. 335.]
The court {or, , a judge of said court] deeming it necessary to have
jwo petit juries during the term, A. D. 18 , of this court [or, finding
it necessary to have a new petit jury ; or, a member or members to fill up
the regular panel for the present term], doth order that names bo
drawn from the box by the clerk, as in other cases; and that a venire be
issued to summons them to appeal 1 forthwith to serve in this court as such
jurors.
(a) Under the statute of 1831 (3 Curwen, 2359), when the regular
jury had been discharged, and there were cases undisposed of, the
court was authorized to impanel a jury of by-standers, the words "or
othenvise" (of which "from any cause" seems the equivalent} applying in
such case. Reed v. State, 15 O. 217.
When venire for talesmen to issue. SEC. 5173. When it is necessary
to summon talesmen, the court, on motion of either party, shall se-
lect them, and cause to be issued immediately a venire for as many
persons having the qualifications of a juror, as, in the opinion of the
court, may be necessary, which jurors shall be required to appear
forthwith, or at such time as may be fixed by the court ; but no
PREPARATION FOR TRIAL OF A CAUSE, ETC. 483
person known to be in or about the court-house shall be selected,
without the consent of both parties.
(i) Under the act of 1849 (47 v. 34), where only five of the regu-
lar panel appeared, it was the duty of the court, on motion of a party,
to select the persons, as well as fix the number, to be set forth in the
venire. Dayton \. State, 19 O. S. 584. And if one writ failed to sc-
c-iire the requisite jurors, other writs, if applied for, were required to
be issued. Pansenger R. Co. v. Young, 21 O. S. 518.
.SyxT/oZ venire when dieriff is a party* SEC. 5174. When the sheriff
is interested in a cause in any court of record, the party in interest
opposed to that of the sheriff may apply to the court for a. special
venire, which, upon such application, the court shall direct to be issued
to the coroner of the county, commanding him to summon ti jury,
having the qualifications hereinbefore prescribed, to try SMC/I cause; and
when both the sheriff and coroner are so interested, or in case of tho
death, resignation, or absence from the county of both sheriff and
coroner, then, in either of such cases, the process may be directed to
such discreet, disinterested person as the court may name, and tho
service and return of such person shall be valid to all intents and
purposes.
[Form 299. 5174.]
John Doe, Plaintiff, |
No. .] vs. > Application for Special Venire for Jurors.
John Smith etals., Defendants. )
And now comes the said plaintiff and applies to the court for a special
venire to be issued to the coroner of said county, command ing him to
summon a jury of legally qualified persons, to try this cause, for the reason
that the sheriff is interested therein, he being [a party defendant].
EDWARD COKE, Attorney for Plaintiff.
[Form 300. \\ 5 174, 5104.]
John Doe )
No. .] vs. \ Order for Special Venire for Jurors to Coroner.
John Smith et nls. )
It being found by tho court that the facts stated in the plaintiff's appli-
cation filed herein for a special venire to try this cause are true, it is or-
dered by tho court that a special venire for twelve good judicious persons,
residents of this county, and possessing the qualifications of electors
therein, and who have not served as regular jurors in any court of record
in said county during the two years last past, and not exempt by law
from serving as jurors, issue to the coroner of this county, commanding
him to* summons such persons to be and appear at the court-house in
,in said county, before, a judge of said court, in room \
484 CODE PRACTICE AND PRECEDENTS.
forthwith [or, on the day of , at o'clock M.], to serve as
jurors in this cause.
[Form 301, 5174, 5164.]
The State of Ohio, County, ss.
To the Coroner of said County, Greeting:
You are hereby commanded to serve, and make return thereof, forth-
with, twelve good, judicious persons, residents of said county, each having
the qualifications of an elector, and who has not served as a regular juror
in any court of record in said county during the two years last past, and
is not exempt by law from serving as a juror, to serve as jurors in the
trial of the case of John Doe against John Smith et als., being cause No.
, pending in the Court of Common Pleas of said county, at the court-
house, in , in said county [etc.'], forthwith [or, at the time specified in the
order of the court].
Given under my hand and the seal of said court, this day of ,
etc.
[SEAL OF COCUT.] , Clerk.
When challenge to array of jury may be made. SEC. 5175. (/Sup., p.
335.) A challenge to the array may be made and the whole array set
aside by the court, when the jury, grand or petit, was not selected,
drawn or summoned, or when the officer who executed the venire did
not proceed as prescribed by law. But no challenge to the array shall
be made or the whole array set aside by the court, by reason of the
misnomer of a juror or jurors; but on challenge, a juror or jurors may
be set aside by reason of a misnomer in his or their names; but such
challenge shall only be made before the jury is impaneled and sworn,
and no indictment shall be quashed or verdict set aside for any such
irreg .ilarity or misnomer if the jurors who formed the same possessed
the requisite qualifications to act as jurors.
Note. It is advisable to make the challenge to the array in writing, speci f y.
ing the grounds of challenge, nnd file the same. If overruled or sustained the
party aggrieved thereby should take a bill of exceptions embodying all the
testimony, or tho facts as agreed upon or found by the court; and rulings
upon all challenges should be taken advantage of by the party affected, by bill
of exceptions.
(a) Objection to the array, under the act of 1831, for the reason
that the law, in minor particulars, had not been complied with, or that
the apportionment of jurors by the clork was inaccurate, or that the
clerk had not made a written statement of his doings and delivered it
to the sheriff, or that the apportionment had not been made on the
first of September, even if fatal at any time, would not be received
PREPARATION FOR TRIAL OF A CAUSE, ETC. 485
after challenge for cause. Fonythe v. State, GO. 19 ; McHugh v. State,
42 O. S. 154.
Juron Causes of principal challenges. SEC. 5176 (83 v. 106). The
following shall he good cause for challenge to any person called as a
juror for ihe'trial of any cause :
1. That he has been convicted of a crime, which, by law, renders
li iiu disqualified to serve on a jury.
2. That he has an interest in the cause.
.'{. That ho has an action pending between him and either party.
4. That he has formerly been a juror in the same cause.
.">. That he is the employer, employe, counselor, agent, steward, or
attorney of either party.
6. That he is subpoenaed in good faith in the cause as :i witness.
7. That he is akiu by consanguinity or affinity within the fourth de-
gree to either party, or to his attorney.
8. That he is a party to another action then pending in any court,
in which any attorney in the cause then on trial is an attorney, either
for or against him.
9. That he, not being a regular juror of the term, has served once
already as a talesman in the trial of any cause, in any court of record
in the county within the preceding twelve months; and in either of
said cases the same shall be considered as a principal challenge, and
the validity thereof tried by the court. (April 30, 1886.)
Note. Service as a tale* juror in any court of record in the county within
the preceding twelve months is a ground for challenge of a tale* juror; service
as a regular juror within ttco years previous to being impaneled as a regular
juror would seem to be ground of challenge under the present section 6101.
(a) The right to challenge peremptorily may be reserved until after
challenges for cause are exhausted. Hooker v. State, 4 O. 348. But
the court may require the peremptory challenge to be exercised, after
challenges for cause are exhausted to each juror as called. Schuffin \.
Staff, 20 O. 233.
Under the act of 1859 (4 Curwen, 3180), corresponding with the
ninth clause of this section, if the person called had already servnl :i-
a tales juror at the same term, so far as to have been sworn and heunl
the evidence, he was within the enumerated causes for challenge, al-
though the case w^as compromised and the jury discharged. Famidtner
v. Andfnon, 15 O. 8. 473.
If the court erroneously overrule a challenge for cause, but the
juror is afterward challenged peremptorily, the error is not material,
486 CODE PRACTICE AND PRECEDENTS.
if it appear that an acceptable jury was impaneled before the party
who challenged for cause exhausted his right to peremptory challenges.
Mlmms v. State, 16 O. S. 221 ; Erwin v. State, 29 O. S. 136.
Unless diligence be exercised to ascertain the facts, the objections
to the juror are waived. Hayward v. Calhoun, 2 O. S. 16 1; Eastman
v. Wright, 4 O. S. 156 ; Kenriek v. Eeppard, 23 O. S. 333 ; Watts v.
Ruth, 30 O. S. 32; McGiU v. State, 34 O. S. 228.
Challenge for favor, and peremptory. SEC. 5177. Any petit juror may
be challenged also on suspicion of prejudice against, or partiality for,
either party, or fur want of a competent knowledge of the English lan-
guage, or for any other cause that may render him at the time an un-
suitable juror, and the validity of such challenge shall be determined
by the court ; and each party. may peremptorily challenge two jurors.
Note. The right of challenge for cause is unlimited. As to peremptory chal-
lenges, the parties have not the right to select the jury, but only the right to
object to two eac-h without assigning any reason. The party holding the affirm-
ative of the issue to be tried exercises the right of peremptory challenge first,
and when the panel is full, his adversary may so challenge. If he waive it
then, he has but a single other challenge; if he challenge, when the panel is
again filled, the first challenger may again exercise or waive his right, and when
the panel is full, bis adversary may challenge, or waive; and the panel being
then filled, the peremptory challenges of both will have been exhausted. Of
course every juror called may be challenged for cause.
(a) Where a party to an action challenges a juror on suspicion of
partiality for the opposite party, the validity of such challege must be
determined by the sound discretion of the court; and where such chal-
lenge is sustained, the judgment rendered in the case will not, for that
reason, be reversed, unless the abuse of such discretion is clearly shown.
Serviss v. Stocketill, 30 O. S. 418.
On the trial of the validity of a challenge alleged against a juror,
other than a principal cause of challenge, a sound discretion is vested
in the court, Dewv. McDivitt, 31 O. S. 139.
If a juror has formed or expressed an opinion in relation to a portion
of the facts embraced in the issue, but not upon the whole issue, and
otherwise stands indifferent between the parties, the allowance or re-
fusal of the challenge is wiftiin the discretion of the court. Ib.
Penalties against jurors for negkct, etc. SEC. 5178. A person sum-
moned as a juror, who, without reasonable and lawful cause, to be
judged of by the court, refuses to serve, shall be fined in any sum not
exceeding thirty dollars, as 'for a contempt of court ; a juror, after being
qualified, who refuses or neglects to obey or observe any order or
PREPARATION FOR TRIAL OP A CAUSE, ETC. 487
injunction of the court, may be fined as for contempt, in any sum, in
its discretion, not exceeding one thousand dollars; and any fine so
assessed may be collected by execution, and shall be paid into the
county treasury and disbursed as other fines.
To serve three weeks within tiie year. SEC. 5179. A person who serves
as a juror, grand or petit, or both, in the courts of this state, for three
weeks in any year, shall be exempt from further service as a juror
during the balance of the year; but nothing herein contained shall
entitle a juror to be discharged from the grand jury during its session,
or from a petit jury during the trial of a cause.
tfote. This section merely gives such ri^ht of exemption to n juror as Au
privilege. It gives the parties no ri^l.t of challenge, if tho juror waives the ex-
emption.
Who are exempt from serving on juries. SEC. 5180. Public officers,
clergymen and priests, physicians, attorneys at law, members of the
police force or firemen employed by the authority of a municipal cor-
poration, acting volunteer members of companies for the extinguish-
ment of fires, org:\nized under and subject to the control of n municipal
corjxmihon, and persons who serve as active members of such com-
' panics for five consocutive years, shall be exempt from service ou juries.
(And see sections 3.039, 3040, Sup., p. 19G, as to militia exemptions.)
(a) A statutory provision conferring in express terms the power to
excuse is not indispensable. Without it the court would have the
power under the general grant of jurisdiction conferred upon.i:
postmaster, considering the nature of his duties, and the public inter-
est, i* en titled to be excused. Stewart v. State, 1 O. 8. GO, 68.
But the provision exempting public officers and others from service
as jurors does not have the effect to disqualify the person so exempted,
but merely extends to him a privilege, which he may waive. Olast-
inger v. State, 24 O. S. 206.
Compensation Penalties againtt officers. SEC. 5181. No officer shall be
allowed compensation for services under this chapter (2) other than
that allowed by law ; and any officer named in this chapter who refuses
or neglects to perform any duty therein required, shall be fined in any
sum not exceeding on hundred dollars.
Compensation of jurors. SEC. 5182. (Sup., p. 336.) Each grand and
petit juror drawn from the jury box pursuant to law, ami each juror
selected by the court, pursuant t > section 5173 of this chapter (2), and
each talesmau shall be allowed two dollar* per day, for each day ha
488 CODE PRACTICE AND PRECEDENTS.
serves, and if not a talesman, five cents per mile from his place of resi-
dence to the county seat, aud such compensation shall be certified by
the clerk of the court, and paid by the county treasurer oa the warrant
of the county auditor.
(a) Under the act of 1876 (73 v. 134, section 22), jurors are to be
allowed compensation for days spent in whole or in part in going to aud
returning from court, and for days of attendance during the term,
whether impaneled or not ; but the clerk is not authorized to certify
that the jurors are entitled to compensation, in addition to such days,
for days as to which they were discharged and not in attendance.
State \. Merry, 34 O. S. 137. (Fractions of days count as full days.)
The certificate of the clerk is not conclusive, and if he certifies for
days in excess of the number for which the jurors are legally entitled
to compensation, the auditor may refuse to issue orders on the county
treasury for such excess. J6.
Struck jury, how and when demanded and selected. SEC. 5185.
(Sup., p. 336.) Any party to an action may demand a struck jury for
the trial of an issue of fact therein by filing a precipo with the clerk ; -
thereupon the clerk, except in counties containing cities having at tho
federal census of 1870, or which may hereafter hav.e, at any federal
census a population of two hundred thousand or more, shall proceed to
the office of the county auditor and there take to his assistance the
county auditor and recorder in the selection of the list of names for such
jury, which three officers shall select from the qualified electors of the
county the names of forty persons impartial between the parties, and
who from their intelligence aud sound judgment are b2lieved to ba well
qualified to try the cause ; the auditor shall make and preserve in his
office a list of names so selected; and the clerk without delay shall
give four days' notice to both parties, or their attorneys of record, of
the time of striking the jury, and to furnish to each at the same time
a true copy of such list.
In Hamilton County. In all counties containing cities having at the
federal census of 1870, or which may hereafter have at any federal
census a population of two hundred thousand or more, whenever a
struck jury shall have so as aforesaid beau demanded, the clerk shall
certify the same to i\\Q presiding judge of the court in which said cause
is pending ; and said presiding judge shall thereupon personally, and
without suggestion from any one, perform the duty of selecting the
names of persons for such jury, ia lieu of the clerk, auditor, and re-
corder ; and within tws days after receiving such certificate of the
clerk- notifying him of such demand for a struck jury, said presiding
PRliPAKATlON Full TRIAL OP A CAUSE, ETC. 489
judge shall certify to said clerk the names of the persons so selected by
him, nnd said clerk shall thereup;n proceed to give the same notice
and cony of list of names so selected as hereinbefore provided in all
cases where a struck jury shall have been demanded.
Xote. From this section, it is obvious that ft demand fur ft struck jury mado
at tho timo the cs\->- \< -i-t and called for trial comes too late. It should be made
iv Mifficicnt length of time before tho dny fixed for the trinl to permit tho re-
quired notices to l>o given nnd tho jurors struck and summoned, otherwise the
right will bo waived. Seo section 6188.
As to any judi;o in Hamilton county exercising tbo same authority as the
president judge, seo section 4G5.
(a) The right to a struck jury may be waived by acts of the parties.
Button v. Stale, 9 O. 133 ; Bond v. State, 23 O. S. 349. But the right,
unlr<s waived, is absolute. Whitchead v. State, 10 O. S. 409. And
the fact that the officer making up the jury has been counsel for ono
of tlie parties (Bcatty v. Hotelier, 13 O. S. 115) ; or that he had formed
and expressed an opinion as to the merits of the cause, will not dis-
qualify him. Webb v. State, 29 O. S. 351.
Neither n deputy clerk of the Common Pleas Court, nor a deputy
county auditor, has any power to act in selecting the names of persons
fora > i -urk jury, notwithstanding the provisionsof sections 10 and 4949.
That duty m;:st be performed by the clerk, auditor, and recorder i:i per-
son. It i3 n power vested personally in the officer, not in the office. Hulse
v. State, 35 O. S. 421. A demand for a struck jury on the day set for
trial is jtriinn faele a waiver. Bond v. State, 23 O. S. 421.
Striking Hie jury. SEC. 5186. At the time designated, the clerk
shall attend at hU office for tho purpose of striking the jury, when
the party demanding the jury, or his agent or attorney, shall strike off
one name from the list, and the opposite party, his agent or attorney,
another, and so on alternately, until each shall have struck off twelve',
if cither party fail or refuse to attend or strike, in person or otherwise,
the clerk shall strike for him ; when twenty-Jour names have been stricken
off, the clerk shall make a fair copy of the remaining sixteen names, cer-
tify them to be the list of the jurors struck for the trial of the cause, and
deliver the same to tho sheriff, or other proper officer, together with
the venire; and such officer shall annex tho names therein contained to
tnc venire, and summon the persons named as commanded.
400 CODS PRACTICE AND PRECEDENTS.
CERTIFIED LIST OF STRUCK JUKY.
[Form 302. 5180.]
Common Pleas Court of County, Ohio.
John Doe
No. .] vs.
.John Smith et als.
The State of Ohio, County, ss.
To the Sheriff of said County:
I hereby certify that the following is the correct list of the names of the
persons who have been duly struck to try this cause as jurors, to wit:
\_Hcre give names and address."]
This day of , A. D. 18. , Clerk.
This list will be delivered to the officer with the venire.
How jury made upon the trial. SEC. 5187. Upon the trial of the
cause, the names of the jurors shall be called as they stand upon the
panel, which order must be the same as that of the list at the time
of striking the jury, and the first twelve of those who appear, and are
not challenged for cause, or set aside by the court, shall be the jury,
and shall be sworn as such ; but if a jury be not made from such six-
teen jurors, the sheriff shall, under the direction of the court, fill up
the panel from the by-stanclers, or, on motion of either party, the court
shall select the persons to fill the panel, and issue a special venire there-
for, returnable forthwith.
(a) A jury composed of seven of the sixteen persons selected under
the provisions of the act, and five talesmen, is not a struck jury within
the meaning of the act, and is subject to peremptory challenge as to
iny of the. panel. Clevshnd, ets., R.. Co. v. Stanley, 7 O. S. 155.
(When the jurors are not alt those selected by striking:, they do not
compose a struck jury, and the right of peremptory challenge is as
complete as in the case of other jurors.)
But under the clause that " the first twelve of those who shall ap-
pear and are not challenged for cause, or set aside by the court, shall be
the jury, and shall be sworn to try said issue," where twelve have
passed into the box unchallenged for cause, the party demanding the
struck jury has no right of peremptory challenge. (The panel so
composed is not (subject to peremptory challenge.)
When court may appoint person to act in place of officer. SEC. 5188.
If the clerk, auditor, or recorder, is interested in the cause, sick, ab-
sent from the county, related to either of the parties, or does not stand
indifferent between them, a judge entitled to hold such court may, in
PREPARATION FOR TRIAL OP A CAUSE. ETC. 401
term timo or vacation, appoint simo jiidiri-uH, <lisinterestcd person to
take the place of the officer s > disqualified, in selecting and striking
the jury, and to do and perform nil things required to be done by such
officer when acting in that behalf; but it shall not be necessary to
strike such jury more than six days previous to the sitting of the
court at which the cause is to bo tricJ ; and three day/ service of the
rmire shall be sufficient. See HuUe v. State, 33 O. 8. 421, and note
to section 5185.
Cost of struck jury, and its continuance. SEC. 5189. The party who
requires a struck jury shall pay the fees for striking, summoning, im-
paneling, and qualifying the same, nnd one-half of all the fees of such
jury ; and a jury struck as aforesaid may be continued with th^ con-
tinuance of the cause, and be required ti appear as jurors fix ihe trial
thereof nl a subsequent term, unless the court otherwise order, upon
good cause shown.
SEX:. 5189a. (Sup. , p. 337. ) As to constitutionality ofthefoUoiciny special
prolusions, and where their constitutional.)! j u affirmed, see McGill v. State,
34 O. S. 228.
Jury commissioners in Cuyahoya and Hamilton counties. The county
commissioners of each county, having a city of the first or second
grade of the first class, shall provide and place in. the custody of the
clerk of such county a wheel so constructed and arranged tliat by turn-
ingthcsamc the pieces of paj>cr hereinafter mentioned may be thoroughly
mixed, and that the names upon such pieces of paper can not be read
or seen until withdrawn from such wheel.
How appointed in Ilamilton county. Snc. 51895. (Sup., p. 337.) In any
county, containing u city of the first grade of the first class, before the
second Monday of May, of each year, the judges of the Court of Com-
mon Plea^, and of the Superior Court in joint session, shall appoint
tlirre electors of such county, no one of whom shall be an attorney at
law, to be commissioners of juries for said county; nnd a record of
such appointments shall bo made upon the journal of each of said
courts; said commissioners shall, before entering upon a discharge of
their duties, appear in said Court of Common Pleas, and take an oath
of office as follows :
" I do solemnly swear (or, affirm) that I will honestly and faithfully
discharge the duties of commissioners of juries without fear or favor,
ana that I will consent to the selection of no person as juror whom
I have been solicited to name as juror, or whom I believe to bo unfit
for that position, or likely t > render a partial verdict in any cause, in
which he may be allied as juror. And this I do as I shall answer unto
God" (or, " and this I do under the pains and penalties of perjury ").
492 CODE PRACTICE AND PRECEDENTS.
WHO TO ACT AS SUCH COMMISSIONERS IN CUYAHOGA COUNTY, AND
THEIR DUTIES IN EACH OP SUCH COUNTIES.
On the second Monday in May, in each year, such commissioners,
or in any county containing a city of the second grade of the first
class, the persons then respectively holding the office of clerk of the
Court of Common Pleas, county treasurer, and county auditor, shall
meet in the office of the auditor of such county, at ten o'clock in the
forenoon, and shall there select such number of judicious and discreet
persons, having the qualifications of electors, as the court may direct,
to be selected as nearlyas may be from the several wards and town-
ships in proportion to their respective population ; but no person shall
be so selected who shall not bo, in the judgment of all said commis-
sioners, or said officers, competent in every respect to serve as a juror;
that after said commissioners, or said officers shall have first ascer-
tained said wheel to be entirely empty, the names of the persons so
selected as aforesaid, shall be written by the county clerk on separate
pieces of paper, which sliall be put into said wheel, and securely locked
therein in the presence of said commissioners, or said officers ; and said
commissioners, or said officers, shall also at the same time, make and
sign a certificate containing all of said names, which they shall certify
to be the names of the persons selected at the time and place aforesaid,
to serve as jurors for the ensuing year, and that they are the same
names as these placed in said wheel, which said certificate shall be filed
with said clerk. Said wheel shall be securely locked at all times, ex-
cept when, by order of court, it shall be necessary to put names into
it, or to draw them from it in the manner herein provided; and if any
person shall unlock, or open said wheel, except by order of court, he
shall be deemed guilty of a misdemeanor, and shall, on conviction
thereof, be fined not more than one thousand dollars, nor less than jive
hundred dollars, and imprisoned not more than one year nor less than
three months. If either of the commissioners, or the officers mentioned
iu this section of this act, shall be sick or absent from the county, any
judge of the Court of Common Pleas may appoint some judicious and
disinterested person to take the place of such officer in making the se-
lection herein provided fjr ; whenever it shall become necessary, said
commissioners or said officers shall meet at such time and place as the
Court of Common Pleas may appoint, and shall there select such num-
ber of persons as the said court may, by its order, direct, and the
names of such persons shall be selected, written and deposited in said
wheel, and certified to as hereinbefore specified. But nothing herein
contained shall abridge the right of any party to a struck jury, as pro-
vided by law.
PREPARATION FOR TRIAL OF A CAUSE. ETC. 493
[Form 303. $ 5189; Su r ., p. 337.]
The State of Ohio, Hamilton [or. Cuyahoga] County, ss.
We, the undersigned * commissioners of juries, having been duly np-
pointed nnd qualified according to law * [r, the clerk of the Court
of Common Pleas, county treasurer, and county auditor, of said
county] hereby certify that, beginning on the second Mondny in May in
the year A. n. 18, at ten o'clock A. M., we have selected nil the nbove
named persons, and that the said list of names contains all the names BO
-fl.-i-trd by us, according to law, to serve as jurors for the ensuing year,
in tlu* courts prescribed by law in said county.
[Date.] , ] Commissioner*
. \ of
, ) Juries.
[or, , Clerk.
, County Treasurer.
, County Auditor]
Compenfation of arnimwumer* of juries. SEC. 51896 continued. (Sup.,
p. 338.) The co?nmissioners of juries in the county of Hamilton, shall
receive three dollars for each and every day they are engaged in se-
lecting jurors under the provisions of said section 5189a out of the
county treasury upon the order of t lie county auditor, on the certificate
of three of the judges of the Court of Common Pleas, as to the num-
ber of days actually thus employed ; provided they are not engaged
more than two weeics in any one year.
How attempt to influence officers punislied. SEC. 5189c. (Sup., p. 338.)
If any person shall attempt, by request, hint, or suggestion, to influ-
ence said officers, or any of them, to select or not to select himself or
any other person or jwrsons as aforesaid, he shall be defined guilty of
a misdemeanor, and, on conviction thereof before any court of compe-
tent jurisdiction, shall be fined in any sum not exceeding one hundred
dollars, or imprisoned in the county jail not more than twenty days,
or both, in the discretion of the court.
How grand and petit jurors drawn and venire issued. SEC. 5189d.
(Sup., p. 338.) Whenever the clerk of any county shall be directed
by the order of any court of record therein, or any judge in vacation,
to cause any number of persons to be summoned to serve as graml or
petit jurors in such court, he shall at once, in the presence of the
sheriff and the court, or a judge thereof, proceed to turn said wheel
until said pieces of paper are thoroughly mixed, and shall then draw
therefrom the number of names specified in such order, and shall
forthwith, unless otherwise directed by said court or judge, issue a
venire facia* to the sheriff, commanding him to summon the jurors
494 tfODE PRACTICE AND PRECEDENTS.
whose names were so drawn, to attend as jurors at the time and place
specified in said order, and all grand and petit jurors shall be impan-
eled from persons so selected and summoned as aforesaid.
How jurors to be summoned. SEC. 5189e. (Sup., p. 338.) The sher-
iff receiving such venire facias shall forthwith summon such persons
by reading the same in their presence, or by leaving at their usual
place of abode a note or memorandum, substantially as follows, to wit :
" I am commanded to summon you, , to appear before the [insert
the name of the court], to be holden in , on the day of ,
A. D. , at ten o'clock A. M., to serve as a juror ; " and shall indorse
on the venire facias the names of the jurors and the time when sum-
moned, and return the same to the clerk of said court on the first day
of its session.
Causes for challenge of jurors. SEC. 5189/. (Sup., p. 338.) IT there
shall be impaneled for the trial of any case, any petit juror who has
been convicted of any crime, which by law renders him disqualified to
serve on a jury, or who has an interest in the cause, or who has an
action depending between him and either party, or who has formerly
been a juror in the same cause, or who is either party's employer, em-
ploye, counselor, agent, steward, or attorney, or who is subpoenaed in
good faith in the cause as a witness, or who is akin to either party, or
to his attorney, or who is a party to another action then pending in
any court in which any attorney in the cause then on trial, is an attor-
ney either for or against him, he may be challenged for cause, and in
either of said cases, the same shall be considered as a principal chal-
lenge, and the validity thereof tried by the court; and any petit juror
who shall be returned for the trial of any cause, and against whom
no principal cause of challenge can be alleged, may, nevertheless, be
challenged on the ground of prejudice against, or partiality for either
party, or for want of a competent knowledge of the English language,
or any other cause that may render him, at the time, an unsuitable
juror, and the validity of such challenge shall be determined by the
court, and each party may peremptorily challenge two jurors.
SEC. 5189(7 repealed. (Sup., p. 339.)
When venire directed to coroner. SEC. 5189A (Sup., p. 339.) When
the sheriff is interested in any cause in any court of record, the party
in interest opposed to that of the sheriff, may apply to the court,
which, upon such application, shall direct a special venire facias to the
coroner of the county, commanding him to summon a jury having the
qualifications hereinbefore prescribed, to try such cause, and where
both the sheriff and coroner are interested as aforesaid, or in case of
death, resignation, or absence from the county of both sheriff and
PREPARATION FOK TRIAL OP A CAUSE, ETC. 4i)J
coroner, then, and in either of such cases, the process may be directed
to such discreet, disinterested person as the court may name, and the
service and return of such person shall IK? valid to all intents and
purposes.
Jury may view jdace or property. SEC. 5189*. (Sup., p. 339.) The
court, when of opinion it is proper for the juror to have a view of the
property, which is the subject of litigation, or of the place in which
any material fact occurred, may order them to be conducted in a body
under the charge of an officer to the place, which shall be shown
them by a person appointed by the court for that purpose; and while
the jurors are thus absent, no person other than the person so appointed
shall speak to them on any subject connected with the trial. See also
section 5191.
Penally wlien juror refuges to serve. SEC. 5189J. (Sup., p. 339.) If
any person summoned as a juror, shall, without reasonable or lawful
cause, to be judged of by the court, refuse to serve, lie shall be fined in
any sum not exceeding thirty dollars, as fur a contempt of court. 'And
if any juror, after being qualified, shall willfully reiuse or neglect to
obey, or observe any order or injunction of the court, he may bo fined
as for contempt, in any sum in its discretion not exceeding one tliou-
tand dollars; and any fines so assessed may be collected by execution,
and shall be paid into the county treasury, and disbursed as other
fines.
Juror not required to serve more than three weeks in one year, etc.
SEC. 5189fc. (Sup., p. 339.) No j>erson shall be required to serve as a
juror more than tliree weeks in any one year, beginning with the last
Monday of April ; and after any person shall have served twi weeks in
any such year, the court shall, on motion, discharge him from further
service ; provided, however, that nothing herein contained shall entitle
or require any juror to be discharged from the grand jury during itj
session, or from a petit jury during the trial of a cause; mid, pro-
vided further, that all courts shall so arrange and conduct the w'unettes at
to require the attendance of jurors upon its business as short a tims as po+
rfftfe.
Who exempt from serving on juries. SEC. 5189/. (Sup., p. 339.) Active
members of fire engine companies, hook and ladder companies, or other
companies for the extinguishment of fires, during the time they may
continue such active members ; active and contributing members
military comjwxuies and batteries, and all clergymen and priests, physi-
cian^, attorney >-at-law, and all public officers, while in office, shall bo
exempt from serving on juries.
496 CODE PRACTICE AND PRECEDENTS.
Note. Art. 9, sees. 1-5, provides for the enrollment of all (white) male citi-
zens residents of the state, between the ages of eighteen and forty-Jive years, in
the militia. A juror must be an elector, and his age is limited only by physical
and mental ability to serve. The exemption from jury duty of " contributing "
members of military companies, who may be of any age, is a serious obstacle to
the prompt and efficient administration of justice; and were the number not
limited by section 3039 to one hundred and fifty contributing members for each
company of infantry or cavalry, or battery, and both not to exceed fifteen per
centum of the voting population of a county, jury trials, the right to which, in
common-law cases, is by the constitution made inviolate, might be rendered im-
possible, by every one exempting himself. As it is, the military is maintained
at the expense and to the impairment of the judicial department of the civil
power. An efficient military organization and force are a public necessity, and
should be adequately provided for and maintained by taxation, and not by pur-
chases of exemption from jury duty. It is a difficult task imposed on the court
to ascertain whether less or more than fifteen per cent of the voting population
of the county, or one hundred and fifty to a company are honorary members
of the militia or not.
Fees of jurors.' SEC. 5189m-. (Sup., p. 340.) Each grand and petit
juror shall be allowed the sum of two dollars per day for each and every
day he may serve, and Jive cents per mile from his place of residence to
the county seat, and the compensation of such juror shall be certified
by the clerk of the court, and the compensation so certified shall be
paid by the county treasurer on the order of the county auditor.
TRIAL BY JURY VARIANCE VERDICT.
Mode of conducting the tried. SEC. 5190. When the jury is sworn,
the trial shall proceed, except as provided in the next section (5191),
in the following order, unless the court for special reasons otherwise
direct:
1. The plaintiff must briefly state his claim, and may briefly state
the evidence by which he expects to sustain it.
2. The defendant must then briefly state his defense, and may briefly
state the evidence he expects to offer in support of it.
3. The party who would be defeated if no evidence were offered on
either side, must first produce his evidence; and the adverse party
must then produce his evidence.
4. The parties shall then be confined to rebutting evidence, unless
the court, for good reasons, in the furtherance of justice, permit them
to offer evidence in their original case.
5. When the evidence is concluded, either party may request instruc-
tion to the jury on matters of law, which shall be given or refused by
the court.
PREPARATION FOR TRIAL OP A CAUSE, ETC. 497
6. The parties may then submit or argue the case to the jury ; the
party required first to produce his evidence shall have the opening and
closing argument ; and if several defendants, having separate defense-*,
appear by different counsel, the court shall arrange their relative order.
7. The court, after the argument is concluded, shall, before proceed-
ing with other business, charge the jury ; any charge shall be reduced to
writing by the court, if either party, before Vie argument to the jury is
commenced, request it; a charge or instruction, when so written and
given, shall not be orally qualified, modified, or in any manner ex-
plained to the jury by the court; and all written charges and instruc-
tions shall be taken by the jurors in their retirement, and returned
with tlu-ir verdict into court, and shall remain on file with the papers
of the case.
(a) Parties can not, by contract, require a court to try their cause
contrary to the established rules of judicial proceedings. ' Gittingn v.
Baker, 2 O. S. 21.
Clause 3. The discretion ordinarily conceded to counsel to pursue
their own order in the production of proof, so that the relevancy is
made manifest during the investigation, must be limited to cases where
the fact subsequently to be made relevant is itself established by com-
petent testimony. Wilson v. Barkalow, 11 O. S. 470.
Where hearsay evidence was objected to, but permitted to go to the
jury, the judgment will be reversed, unless it manifestly appear that
its admission could not have prejudiced the party against whom it was
offered. Ib. And in determining the question whether such testimony
could or could not have prejudiced the party, the court should not
usurp the province of the jury, by weighing the other testimony, or
determining the credibility and effect of conflicting proof. Ib.
The rule prescribed in the third clause is especially applicable where,
from the nature of the case, the facts alleged are peculiarly within the
knowledge of the party. Fergwnn v. Gilbert, 16 O. S. 88.
In an action for assault and battery, where the defendant justifies on
the ground of self-defense, it is not error to permit the plaintiff to open
and dose. Dragoo v. IFftuner, 31 O. S. 192; Dille v. Lovd, 37 O. S.
41."). But if defendant is permitted to open and close in such case,
judgment will not be reversed unless it be shown that special reasons
did not exist for the change in such rule. Ib.
In the contest of a will, the party maintaining the validity of the
will has the opening and closing by statute, section 5864. See also
cases cited under sixth clause.
Clause 4. The rule was the same under the former practice. A
32
498 CODE PRACTICE AND PRECEDENTS.
party holding the affirmative was bound to give all his evidence in sup-
port of the issue in the first place, and could only, in reply, offer
evidence as to the new matter introduced by his adversary. Any
relaxation of the rule was an exercise of the discretion of the court,
and not re viewable. Graham v. Davis, 4 O. S. 362.
Judgment will not be reversed for permitting evidence in the orig-
inal case, under the circumstances stated in this section, unless it
appears affirmatively that good reasons^ in furtherance of justice were
not shown. Morris v. Faurot, 21 O. S. 155.
Allowing evidence out of its order is within the discretion of the
court, and if ground of error at all, it is only where it appears that a
fair trial was thereby prevented. Webb v. State, 29 O. S. 351.
Clause 5. Refusal to charge a proposition not appearing to be in-
volved in the case is not ground of reversal. Lewis v. State, 4 O.
389; Cresingerv. Welch, 15 O. 156; Gill v. Sells, 17 O. S. 195; Lear
v. McMiUen, 17 O. S. 464; Oliver v. Sterling, 20 O. S. 391 ; Pittsburgh,
etc., E. Co, v. Fleming, 30 O. S. 480.
Where a court is asked to charge a series of connected propositions,
some of which are law and some not, the better course is to give so
much of the charge as is sound law ; but it is not error to refuse the
charge as an entirety. Inglebrigkt v. Hammond, 19 O. 337 ; French v.
Millard, 2 O. 8. 44 ; Walker v. Devlin, 2 O. S. 593.
If the court refuse to charge in regard to a matter as to which com-
pliance with the request could not have aided the party making it, the
refusal constitutes no ground of reversal. Chase v. Washburn, 1 O.
S. 244.
Where a series of instructions is asked, the instructions are to be
construed together; and if.it is apparent from the whole series, and
the response of the court thereto, that general terms employed in some
of the instructions asked were used and understood in a limited or
restricted sense, they will, on error, be so regarded. Cleveland, etc., R.
Co. v. Terry, 8 O. S. 570.
It is error to annex to a charge properly asked a material qualifica-
tion not required or authorized by the evidence. Bain v. Wilson, 10
O. S. 14 ; Walker v. Stetson, 14 0. S. 89.
To refuse to charge a true and pertinent proposition of law is not
error, if it appear from the whole charge that the court fully and fairly
stated the law applicable to the case, though in different terms. Bond
v. State, 23 O. S. 349 ; Gano v. Samuel, 14 O. 592. (The court is not
bound to give a charge in the language asked by counsel, but if the
charge asked be good law, and applicable to the case, the court is bound
to give a proper charge on the subject.)
PREPARATION POR TRIAL, 0? A . KTC.
Where there is a special finding which shows th:it :i party was not
injured ly a. n-tusal to char-*-, no ground of iw.-r-al is presented.
Mont'/omtrif \. Sicimllt'r, 32 O. S. 225. (A jwirty can avail himself of
>r which was in his favor. )
Where a charge is ambiguous and self-contradictory, it should be re.
1. Mill.-r v. Florcr, 19 O. S. 356.
In >rdi-r to constitute error in the refusal of the court to charge a
jury as n-quesk*!, the proposition requested and refused must be al>-
solutely true under all reasonably conceivable circumstances. Qeve-
tand, etc,, R. Co. v. Sargent, 19 O. S. 438-4o2 ; TMer v. State, 34 O.
S. 1L'7-133.
Where a party claimed that certain facts should lie regarded as suf-
ficient evidence of a purpose to entrap and overreach him, and asked
the court to say to the jury that, if such facts were proved, then as
matter of law they should be regarded as sufficient evidence for such
purpose, and the court refused, this was error. Sackttt v. Kdlnr. 'I'l
O. S. ;.:>4.
It is not error to refuse a charge which requires the court to assume
the existence of material facts in issue, however clearly the facts are
proved. BeUefoniaine R. Co. v. Snyder, 24 O. S. 670. But it is error
to use language in the charge from which the jury might reasonably
infer that the court assumed the existence of material facts that were
in dispute. Weybrigkt v. Fleming, 40 O. S. 52.
Where the judge, at defendant's request, gave the jury a certain
special charge in addition to his general charge, which special charge
was erroneous, and afterward, having been requested by the jury to
repeat his charge to them, repeated the general charge, but declined
to repeat the special charge, there was no error in refusing to repeat
the erroneous instructions. Uoyd v. Moore, 38 O. S. 97.
Clause 6. Where the counsel for the party holding the affirmative
addresses the jury, and the opposing counsel decline to reply, counsel
for the parly holding the affirmative can not be permitted again to
address the jury. Goodman v. Tappan, 1 O. 60.
I'll-- rule as to opening and closing the argument was the same under
the former practice. Lexington, etc., Ins. Co. v. Paver, 16 O. 324.
Where the plaintiff had opened with his testimony without objec-
tion, he will he permitted to open with the argument, although, the
<l i. mlant might have lieen defeated if no evidence had been offered
o:< either side. ffarri*m, v. CaAner, 11 O. 8. 3M-347.
Wh?re, in an action for the recovery of damages for the alleged
wrongful seizure and conversion of goods to which the plaintiff claimed
title, the defendant answers, simply alleging fraud in the assignment
500 CODE PRACTICE AND PRECEDENTS.
under which the plaintiff claims, the plaintiff is entitled to open and
close with the argument as well as with the evidence. Beatty v.
Hatcher, 13 O. S. 115.
Where there is no other issue than payment, and the court permits
the plaintiff, against the defendant's objection, to open and close the
evidence and argument, the judgment will be reversed. Fewster v.
Goddard, 25 O. S. 276.
Where the pleadings are complicated, the court is vested with dis-
cretion as to the party who is to open and close the evidence and ar-
guments. Montgomery v. Swindler, 32 O. S. 224. And where actual
damages are sought to be recovered which are unascertained in amount,
the plaintiff has the right to open and close, though the right of action
be admitted. Neff v. Cincinnati, 32 O. S. 215, 220.
As part of his argument, or by way of illustration, counsel has a
right to read a pertinent extract from a reputable work on science or
art. Legg v. Drake, 1 O. S. 286. But it is an abuse of discretion to
permit the reading of any thing plainly intended to prejudice a party
before the jury, and having no relation to science or art. Insurance
Co. v. Cheever, 36 O. S. 201.
Clause 7. The instructions ought to have reference to the circum-
stances of the case, and be so given as to secure the fair consideration
and judgment of the jury upon the points at issue. A charge which
consists mainly of extracts from opinions in reported cases, having no
special reference to the circumstances of the case on trial, is objection-
able; and where, from the consideration of the whole evidence, it is
reasonable to suppose the jury may have been m'isled by such charge,
a new trial ought to be granted. Marietta, etc.. It. Co. v. Piclcsky, 24
O. S. 654; Parmake v. Adolph, 28 O. S. 10.
The court is not bound to charge in the language requested, and the
presumption is that a proper charge was given until the contrary ap-
pears. Bokn v. State, 26 O. S. 371.
Where the principal charge is not required to be in writing, special
instructions given to the jury, in writing, after argument, are not re-
quired to be taken by the jury, in their retirement. Griffin v. State,
34 O. S. 299. But if, before the argument to the jury is commenced,
either party request it, it is error for the court not to reduce its charge
to writing, if such omission is excepted to. Hardy v Turner, 9 O. S.
400. And it is error for the court, after having been requested to re-
duce the charge to writing, to give oral instructions upon matters ma-
terial to the issue, in addition to a written charge. Householder v.
Granby, 40 O. S. 430.
Objection that the court delivered the charge in manuscript to the
PREPARATION FOR TRIAL OP A CAUSE, ETC. 501
jury without reading it, if available at all. must be taken at the time.
lAt. Minmi ti. Co. v. Wasttburn. L>1> O. 8. 324.
Under the former practice the court might comment on the evidence.
Abram v. Will, 6 O. 164 And under the present practice the court
may repeat to the jury the statement of a witness, and My, if such
be the fact, that counsel on both sides admit the truth of the state-
nifiit. Bond \. State, 23 O. S. 349. Or the court may recite, in the
<-!iur_'t>, what is claimed by the parties to be proved, when it is fairly
done to explain the law applicable to the case. Mimms v. State, 6 O.
6. 221 ; Harrington v. State, 19 O. S. 270.
A verdict will not be disturbed because the court stated general
propositions of law not involved in the issue, if it appear from the
whole charge that the jury could not have been misled. Schneider v.
Sogier, 21 O. 8. 98; U. S. Express Co. v. Backman, 28 O. S. 144;
Berry v. State, 31 O. S. 219. (And a court is not bound to, and
should not charge mere abstract propositions of law not applicable to
the case.)
If the verdict is in favor of the successful party on all the issues,
and on any of the issues he is entitled to judgment, error in the charge
as to one of the issues will afford no ground of reversal. Sites v.
Haverstick, 23 O. S. G26. And an erroneous charge on an abstract
proposition, or on a point entirely outside of any case made by the
evidence, is not, ordinarily, a ground of reversal. Creed v. Commercial
Bank, 11 O. 489; Cressinger v. Welch, 15 O. 156; Steamboat Albatross
v. H'.iyne, 16 O. 513 ; Kugler v. Wiseman, 20 O. 361 ; Steioart v. StaU,
1 O. S. 66 ; French v. Millard, 2 O. S. 44 ; SatcheU v. Doram, 4 O. S.
')4_' ; Portage Co. Bank v. Lane, 8 O. S. 405 ; Cricket v. State, 18
O. S. 9.
But if a charge is erroneous, the judgment will be reversed, unless
it clearly appears from the record that the party complaining was not
prejudiced. Pcndlebm, etc., R. Co. \. Stattman, 22 O. 8. 1 ; Baldwin
,ik of Massillon, 1 O. S. 141 ; 15 O. S. 179; Eckels v. St
- .508-; Globe In. Co. v. Sherlock, 25 O. S. 50; Railway Co. v.
.*. 30 O. S. 222.
And if the charge, though not in the abstract erroneous, is rah-ti-
lated to confu.se or mislead the jury, the judgment should be reversed.
U v. Millard, 2 O. 8. 44; Washington Mut. Ins. Co. v. Merchant*
and M. Mut. Ins. Co., 5 O. S. 450; Little Miami R. Co. v. Wctmore,
19 O. 8. 110; Pittsburgh, etc., R. Co. v. Sluster, 19 O. 8. 157; Adams
v. State, 29 O. 8. 412.
8oY if an erroneous charge be afterward qualified by apt words, yet
if it be uncertain what the rule given or intended to be given really
502 CODE PRACTICE AND PRECEDENTS.
was, the judgment will be reversed. Pendleton, etc., R. Co. v. Stall-
man, 22 O. S. 1.
Moreover, a charge should always be founded upon and applicable
to the testimony ; and in giving a general rule, as applicable to the
evidence, if there is evidence tending fairly to bring the case within
an exception to that rule, it is proper for the court, in connection with
the rule itself, or in some other part of the charge, to refer to the ex-
ception, and the testimony tending to sustain it. White v. Thomas,
12 O. S. 312.
It is not error to omit instructions on points properly subjects for in-
struction, unless such instructions be requested. Taft v. Wildman, 15
O. 123; Jones v. State, 20 O. 34; Schryver v. Hawkes, 22 O. S. 308;
Smith v. Pittsburgh, etc., E. Co., 23 O. S. 10.
So the omission to construe a contract, or to define or explain, in the
charge, doubtful words or phrases contained in the statute upon which
the action is founded does not constitute ground of reversal, unless
there was a request to charge as to such matter. Cincinnati, etc., R.
Co. v. Iliff, 13 O. S. 235 ; Schneider v. Hosier, 21 O. S. 98.
In a common law trial the maxim, falsus in uno,falsus in omnibus,
is to be applied by the jury according to their judgment, and is not a
rule which authorizes a court to direct a jury to disregard evidence.
Mead v. McG-raw, 19 O. S. 55 ; overruling Stofer v. State, 15 O. S. 47.
It is a general rule that where evidence has been offered by both
parties, it is error to direct the jury to find for the defendant, and for
such error the judgment will be reversed, although the reviewing court
may believe the defendant was entitled to a verdict. Newman v. Cin-
cinnati, 18 O. 323. (And if such direction is asked for upon the evi-
dence offered by the plaintiff only, it is error to so direct the jury,
unless the inferences or conclusions to be drawn from the facts, assum-
ing them all to be true as testified to, are indisputable. The-question
is: Do they tend in some degree to prove all the facts required to be
established by the plaintiff? If so, the motion must be denied, as
the court can not weigh the evidence that being for the jury but
can determine only whether there is any testimony tending to make
out the facts of the plaintiff's case.) See Ohio L., etc., Co. v. Etti*, 4
O. S. 628, 644.
This rule is subject to the exceptions, that where there is an entire,
failure of proof on any part of the case essential to the plaintiff's right
to recover, it is the duty of the court to arrest the testimony from
the jury, and render judgment for the defendant, which judgment will
have the effect of a final judgment upon the merits, and not merely
PREPARATION FOR TRIAL OP A CAUSE, ETC.
of nonsuit as at common hiw. Stockttill v. Duyton, afe., ll Cb., 24 O.
S. 83; 4O. S. o44, *npra.
Allegation.-' in pleadings of matters of record present an issu-
the court to be determined by inflection. Evans v. Justice, 6 O. 117.
And the construction of contracts and writings, as to their 1< -_':il
effect, involved in the case, must be determined by the court. Black-
burn v. Blackburn, 8 O. 81. But whether a rate of passenger fare i-
:iabl is a question of fact for the jury. Smith v. I*ittabury!<
li. Co., 1>:JO. S. 10.
8 . \vlwtconstitutesduediligenceingivingnotice to the drawer or
indorser of commercial paper, of the dishonor of the same, when the
facts are ascertained or admitted, is a question of law for the court;
and it can not properly be submitted to the jury as a ouestion of fact.
Walker v. Stetson, 14 O. S. 89. But if the facts be contested, the
ijiK'-tion is for 'the jury, under proper instructions. Davi& v. Herrick.
6 O. 55. And see Lawxni v. Farmers' Bank, etc.,lO. S. 206. And if
a specified fact is decisive of the rights of the parties, it is not error
to charge that if the jury find it to exist they should return a verdict
for the party in whose favor the fact is established. Richardmn v.
Curtits, 33 O. 8. 329.
Where a party proposes to make his title under a lost deed, the facts
of existence and loss are preliminary, and addressed to the court; the
case is then submitted to the jury upon the contents, execution, ac-
knowledgment, and delivery. Bbicklnern v. Blackburn, 8 O. 81. (In
its full sense the term " execution " of a deed includes " delivery," un-
til which it is not "executed.")
"Probable cause" is a mixed question of law and fact; the jury
niii-t determine whether the circumstances alleged to show it are
true ; but the court must determine whether, if they are proved, they
amount to "probable cause." Ask v. Marlow, 20 O. 119. (Both
malice ami want of probable cause are necessary to be alleged and
proved to sustain an action for " malicious prosecution ; " but malice
may lie inferred by the jury when want of probable cause is established.
Tomliiwn v. Warner, 9 O. 103.)
whether there was contribut >ry negligence is a question of mixed
law and fact, to be determined by the jury, where there is evidence on
tli -abject, under instructions as to the law by the court ; but whether
was is any evidence must be decided by the court. 1'ittdninjh,
U. Co. v. Fleming, 30 O. S. 480.
Where the court, during the trial, and before the evidence i< Hand,
erroneously strikes from the petition one of the causes of action, the
error is not cured by instruction to the jury, after the clo*e of the te
504
CODE PRACTICE AND PRECEDENTS.
timony, to consider the matter struck out as restored, and to have re-
gard to the testimony applicable thereto. Midford v. Clewell, 21 0.
S. 191.
And the effect of incompetent testimony once admitted can not be
done away with, except by such a charge to the jury as will enforce
them to disregard it completely. Hinkle v. McGlure, 32 O. S. 202.
It is error to instruct a jury that, in a proper case for exemplary
damages, they should know that, if the plaintiff recover less than one
hundred dollars, he can not recover costs. Cleveland, etc., R. Co. v,
Bartram, 11 O. S. 457.
The court may furnish the jury blank forms of verdicts. Mimms v.
Slate, 16 O. S. 221.
Where the answer set forth a defense, and to a material averment
therein there is no reply, the court must charge the jury that the
averment must be taken as true. Titus v. Lewis, 33 O. S. 304;
Whelan v. Kinsley, 26 O. S. 131.
An exception to a charge can not be saved lay filing the charge and
exceptions with the papers in the case. Pettett v. Fleet, 31 O. S.
536. Nor by setting forth the charge and exception on the journal.
Lockhart v. Brown, 31 O. S. 531-. But the objection must be made by
bill of exceptions containing the charge. Hallamv. Jacks, 11 O. S.
692.
Public history, not of the state at large, but of a particular town
or city, will not be taken notice of ex officio by the court. Morris v.
Edwards, 1 O. 189.
The existence, construction, and legal effect of foreign statutes, are
rather matters of fact than law, and no inquiry will be made into the
correctness of the construction they may have received at the place
where they were enacted. Niagara Co. Bank v. Baker, 15 O. S. 68.
See section 5244 and notes.
Note. When several propositions of law are asked to be given as charges to
the jury by the court, it should be requested to give each charge as a separate
proposition, independently of all the other charges asked, so as to save the
right of error as to such as are improperly refused.
OATH OF JURORS ON VOIR Dftv
[Form 304.]
You do solemnly swear [or, solemnly and sincerely affirm] that you will
answer truly and fully all. questions that may be put to you by the court,
or counsel, in the case wherein. - is plaintiff and - is defendant,
and this you do * as you shall answer unto Grod [or, under the pains and
penalties of perjury].
PHEPARATION FOR TRIAL OP A CAUSE, ETC. 505
The oath is administered to each juror as his name is called on the
list, and before he is examined as to his qualifications, unless such ex-
amination under oath is requested by either party, it will not be un-
der oath.
OATH OF JURORS.
[Form 305. g M75.1
You and each of you do solemnly swear [or, solemnly and sincerely
affirm] that you will well and truly try the issues joined in this case be-
tween . the plaintiff, and , the defendant, and a true verdict ren-
der according to the evidence adduced by the parties, and the law as the
same may be given to you by the court ^ and this you do * as you shall
answer unto God [or, under the pains and penalties of perjury].
View of the property or place by jury. SEC. 5191. The court, when of
opinion it is proper for the jurors to have a view of the property
which is the subject of litigation, or of the place in which any ma-
terial fact occurred, may order them to be conducted in a body, un-
der the charge of an officer, to the place, which sjiall be shown to them
by a person appointed by the court for that purpose ; and while the
jurors are thus absent, no person, other than the person so appointed,
shall speak to them on any snbject connected with the trial.
ORDER FOR VIEW OF PREMISES, ETC., BY JURORS.
[Fora 306. 5191.]
A. B I
No. .] vt. } Order for View of Premises by Jurors.
C. D. J
In this case the court being of opinion that it is proper for the juror*
impaneled and sworn herein to have a view of the property which is the
subject of this litigation [or of the place where the alleged fact, to wit, ,
occurred}, it is thereupon ordered by the court that the said jurors be con-
ducted in a body to said place, under the charge of an officer of the court,
which place shall be Known to them by . counsel for the plaintiff, and
, counsel for the defendant [who may at such place point out and state
what each claim*, without argument] ; and while the jurors are thus ab-
sent, no other person shall speak to any of them on any subject connected
with this trial.
VARIANCE.
Tire general rule of law is that the allegations of a pleading and the
proofs thereof (uttegata et ;/ro6ata) must agree, and not contradict or
vary'- from each other. The Code has modified this rule as follows:
506 CODE PRACTICE AND PRECEDENTS.
When variance deemed material Amendment. SEC. 5294. No vari-
ance between the allegation in a pleading, and the proof, shall bo
deemed material, unless it has actually misled the adverse party to his
prejudice, in maintaining his action or defense upon the merits, and
when it is alleged that a party has been so misled, that fact must be
proved to the satisfaction of the court, and it must also be shown in
what respect he has been misled; and thereupon the court may order
the pleading to be amended, Upon such terms as are just.
Amendment without costs. SEC. 5295. When the variance is not ma-
terial, the court may direct the fact to be found according to the evi-
dence, and may order an immediate amendment without costs.
Note. This will be best accomplished by putting the fact to the jury in the
form of an interrogatory, under section 5201.
(a) Where the variance between the allegations of the pleading and
proof is not material within the meaning of this section, the fact, that
the pleading was not amended to conform to the proof, as provided in
section 5295, will not. constitute ground for the reversal of the judg-
ment on error. Sibila v. Bahney, 34 O. S. 399. (And see section
5115.)
A variance between the allegation and proof is not material, unless
the allegation to which the proof is directed is unproved in its general
scope and meaning, and not in some particular or particulars only.
Franks v. State, 12 O. S. 1, 8.
Proof that the defendant erected a stone fence fifteen rods from a
road, causing water to flow upon and obstruct the road, can not be re-
ceived where the cause of action alleged is that he erected a fence
across the road thereby obstructing it. The petition should be amended
.in such case, if the defendant objects to the testimony, whether he would
be misled or not by the variance. Hillv. Supervisor, etc., 10 O. S.
621. (If the proof is not objected to the variance is waived- Hoff-
man v. Gordon, 15 O. S. 212.)
Where the petition charged the defendant with flooding the plaint-
iff's cellar by obstructing the street, and the answer denied the charge^
on the trial, evidence was admitted, without objection, showing that the
flooding was by defendant's wrongful opening the sidewalk: Held, that
it was not error, although no amendment to the petition was asked or
made, to find upon the evidence for the plaintiff. Hoffman v. Gordon,
supra.
Where the petition stated that the defendant performed work and
labor for the defendant on !r* rd'l-d?.m, and the evidence offered and
PREPARATION FOR TRIAL OP A CAUSE, ETC.
admitted was that he JH riurnn .1 work and labor for the defendant in
his harvest field Held, that th* variance was material, and the evi-
dence should IH.I have In -rii admitted, although the defendant neither
alleged nor offered to prove that he had been misled by the variam .
Thntrh.-r v. Heitey, 21 O. 8. 668.
Where in a j>etition framed under section 5086 (an action on promis-
sory note, etc.), a certain sum is stated to be due "on the account for
goods told and delivered , a copy of which is hereto attached,"
it is t -rror, after an answer to the merit*, not to admit evidence in sup-
port of items in the account which are not for goods sold and delivered,
but which are proper subjects of account. Dutlley v. Geauga Iron Co.,
13 O. S. 168. (The attached copy of the account was part of the
petition, and every item contained in it could be proved.)
Where the defendant was alleged to have acknowledged himself
bound to pay one hundred and eighty dollars, and the proof showed a
contract to pay a yearly rental of sixty dollars for three years, it was
a fatal variance. Tuttia v. Wiley, 6 O. 294. (This was under th
former system. Under the Code, such a petition would probably be
amendable.)
An averment that the defendant was entitled to the use of a " pub-
lic alley" is not sup|x>rted by proof of a right to use a private alley.
Satehell v. Doram, 4 O.' S. 542. (The averment should have been of
a right to use "an alley," identifying it by its location, etc., and then
whether it was public or private would have been immaterial.)
Where the allegation was that a boat was wrecked in passing over
a dam, proof that in crossing the dam the boat was rendered unman-
ageable, and was wrecked upon a pier of a bridge below, was held to
be no variance. Hogg v. Zanetville Can., etc., Co., 5 O. 410.
In an action against a debtor for fraudulently representing himself
insolvent, and thereby inducing his creditor to discharge a note for less
than its value, the allegations can not lie sustained by proof of such
representations made to others, by which they were defrauded. Ed-
\card* v. Oivenn, 15 O. 500.
Where the allegation was that an apent had paid for land by a judg-
ment in favor of the complainant against the vendor, and that the
agent had taken the title to himself, and the prayer was that a n suit
ing trust in favor of the complainant be declared, hut the :
showed that the judgment was only part of the consideration, the
balance having been paid by the agent out of his own funds, the vari-
ance* was held to be fatal. Reynolds v. J/orrw, 7 O. 8. 310.
508 CODE PRACTICE AND PRECEDENTS.
If the pleader attempt to set out and describe particularly the con-
sideration, in an action upon a warranty, and introduce a written con-
tract of sale, showing a different consideration, it must be rejected on
the ground of variance. McMillan v. Theaker, 12 O. 24. (Under the
Code, the variance could be cured by amendment, the transaction be-
ing the same).
A declaration avering the existence of a bond, and making profert
thereof, was not sustained by proof of a lost bond. Chamberlain v.
Sawyer, 19 O. 360. (Under the Code, in a suit on a bond, a copy
must be attached (section 5085) to the petition, or an excuse for not
doing so stated. Such copy is "profert.")
A petition setting out nothing but a general or ordinary engagement
by the defendants as common carriers is not supported by proof of a
contract containing a special exception of the liability of the defend-
ants for any loss which may arise from " the damage of the river, fire,
and unavoidable accident." Davidson v. Graham, 2 O. S. 131.
Where, upon a bill of review in chancery to reverse a decree, it ap-
peared that the original bill alleged title in several complainants, and
the decree pursued the allegations of the bill, but the proof only
showed a title to recover in part of the complainants: Held, that
the variance was fatal. Dille v. Woods, 14 O. 122. (But see section
5114.)
In an action on a verbal contract, where the petition specially al-
leges all the material provisions thereof, and as grounds for recovery
avers breaches of them, it is only necessary to prove as alleged such
of the allegations as will entitle the plaintiff to a recovery. A failure
of proof, or a variance between allegations and proof, not prejudicial
to the defendant, as to such -other provisions of the contract not es-
sential to a recovery, is not such a variance as will defeat the plaint-
iff's action. Gaines v. Union Trans., etc., Co., 28 O. S. 418. (Under
the former system, unnecessary allegations being averred had to be
proved ; but under the Code it is only necessary to prove such aver-
ments as constitute a good cause of action or defense.)
Where it was alleged that a surety, on April 7, 1883, guaranteed
payment of a promissory note in consideration of extending the time
of payment until " next spring," and the proof was for "one year: "
Held, not to be a " failure of proof," but a " variance," and did not
prejudice the defendant. ' Banta v. Martin, 38 O. S. 534. (See sec-
tion 5114.)
Failure of proof not a variance. SEC. 5296. When the allegation
PREPAHATIo.V FOR TRIAL OP A CAUSE, ETC. 509
of the claim or defensV, V) which the proof is directed, is unproved,
not in .some particular or particulars ouly, but iu its general scope and
meaning it shall not be deemed a case of variance within the last two
sections, but a failure of proof.
(a) In an action where the allegation of the petition was that the
defendant, by means of fraud, obtained the goods of the plaintiff and
converted them to his own use, and when the only proof in support
of the allegation showed the defendant to be a bona fide purchaser
from one iu possession of the goods, but without title, the plain tiff can
not recover. Such case is one of failure of proof under this section,
and not one of immaterial variance under the two preceding sections.
Dean v. Fates, 22 O. S. 388. (The plaintiff should have demanded
the goods, and, upon refusal to deliver them to him, brought replevin.
or trover for their wrongful conversion.)
For a case of variance and not failure of proof, see Barnett v. Ward,
36 O. S. 107. And another averring negligence in moving a car under-
which the plaintiff was working and injuring him, and the proof was
in not giving warning of the moving. Railway Co. v. Lavalley, 36 O.
in.
Jury, ucltere it ahall deliberate. SEC. 5192. When the case is sub-
mitted, the jury may decide in court, or retire for deliberation ; if the
jurors retire, they must be kept together in some convenient place,
under the charge of an officer, until they agree upon a verdict, or are
discharged by the court, subject to the discretion of the court to per-
mit them to separate temporarily at night, and at their meals ; the
officer having them under his charge shall not suffer any communication
to be made to them, nor make any himself, except to ask them if they
have agreed upon their verdict, unless by order of the court ; and he
shall not, before their verdict is rendered, communicate to any per-
wu the state of their deliberations, or the verdict agreed upon.
Admonition, if jurors permitted to separate. SEC. 5 !!>">. If the jurors
l)e permitted to separate, either during the trial, or after the case is
submitted to them, they shall be admonished by the court that it i.-
their duty not to converse with, nor suffer themselves to be addressed
by, any other |>erson, on any subject of the trial, and that it is their
duty not to form or express an opinion thereon, until the cause is
finally submitted to them.
See notes to sections 5305 (NEW TRIAL IN CIVIL CASES), 7312;
1 'uiMiSAL CASES.
(a) If the jurors separate, after agreeing upon a verdict, without
leave, it is not a ground for new trial. IVright v. Burcffald, 3 O. 53.
510 CODE PRACTICE AND PRECEDENTS.
Where there has been irregularity or misconduct on the part of the
jury, which might affect its judgment, or improperly influence the
verdict, a new trial should be granted ; but if it clearly appears that
no improper effect could arise from the alleged misconduct, the verdict
should stand. A juror inquiring of an attorney not engaged in the
case how certain books, etc., in evidence in the case, were to be got by
the jurors, and who was advised to apply to the court, is not a ground
for setting aside a verdict; nor is the separation of the jurors, while
deliberating, caused by an alarm of fire in their vicinity, a ground for
granting a new trial. Armleder v. Lieberman 33 O. S. 77.
Further instructions, if jurors disagree as to law or fact. SEC. 5194.
After the jurors have retired for deliberation, if there be a disagree-
ment between them as to any part of the testimony, or if they desire
to be informed as to any part of the law arising in the case, they may
request the officer to conduct them to the court, where the informa-
tion upon the matter of law shall be given ; and the court may give
its recollection of the testimony on the point in dispute, in the pres-
ence of, or after notice to, the parties or their counsel.
Note. If the charge has been asked and given in writing according to sec-
tion 5190 (pt. 7), the court can only add to or explain it in writing, under this
section, 5194. If an official short-hand reporter has taken down the testimony
in full, he may, in the presence of the court, read the same to the jury, in lieu
of the court giving its recollection of the same.
(a) It is error for a judge, during a recess of his couit, in the ab-
sence of the party and his counsel, and without notice to them, to give
instructions to the jury to whom the case has been submitted. Camp-
bell v. Beckett, 8 O. S. 211. . :
The jury having retired to consider of their verdict, during its reg-
ular session, in the day-time, returned into court, and asked further
instructions ; and the parties and their counsel being loudly called at
the door, and not appearing, it is not error for the court further to in-
struct the jury. Preston v. Bowers, 13 O. S. 1.
Discharge of jury before verdict. SEC. 5195. The jury may be dis-
charged by the court on account of the sickness of a juror, or any ac-
cident or calamity requiring its discharge, or by consent of both par-
ties, or after the jurors have been kept together until it satisfactorily
appears that there is no probability of their agreeing.
(a) If the jury be discharged by consent, errors committed on the
trial are waived. Wetts v. Martin, 1 O. S. 386.
PRDPARATIOtf FOR TRIAL OP A CAOSB, ETC. 511
ii came to be retried. SEC. 519fi. When tho jury M discharged
after the cau.se is submitted, or during the trial, the cause may be
tried again immediately, oral a future time, as the court may <K
SEC. 5197. When the jurors agree upon their v-nlict. it must be
reduced to writing, and signed by the foreman ; they must then be
< 'tiducU'd into court, their names called by the clerk, and the verdict
.<! by the foreman ; and the clerk must read the verdict to the
jury, and make inquiry whether it is their verdict.
(a) It would seem that if an oral verdict be returned, the irregu.
larity is waived, unless objection be made at the time. Hardy v.
State, 19 O. S. 579. (In such case, the court, so soon as it ascertains
that there in no written verdict, and before its announcement, should
direct the jury to retire, reduce the verdict to writing, and have the
foreman sign it.)
ir/i^M jury further to deliberate. SEC. 5198. If a juror disagree, or
if, when the jury is polled, a juror answer in the negative, or if the
verdict is defective in matter of substance, the jury must be sent out
again, for further deliberation ; and either party may require the jury
to be polled, which shall be done by the clerk or the court asking each
juror if it is his verdict.
When verdict reformed and jury discharged. SEC. 5199. If no dis-
agreement be expressed, and neither party require the jury to be polled,
or, on the polling, each juror answer in the affirmative, the verdict is
complete, and the jury shall be discharged from the case ; and if the
verdict be defective in form only, it may, with the absent of the jurors,
before they are discharged, be corrected by the court.
(a) Under the former practice, the verdict might be amended by the
court Hamtner v. McConnfl, 2 O. 31 ; Hay v. Outterout, 3 O. 384.
But n^t on error. Clark v. Ervin, 9 O. 131. Or after error prosecuted.
Hanlan v. Levin, 5 O. 227.
WJiat is a general and what is a special verdict. SEC. 5200. The ver-
dict of a jury must be either general or special ; a general \vrdivt is
that by which the jury finds, generally, upon all or any of the issues, in
favor of either the plaintiff or defendant ; a special verdict is that !y
\\ hi !i the jury finds the facts only, and it must present the facts as estab-
lished by the evidence, and not the evidence to prove the fact*; and the
facts must be M presented that nothing shall remain to the court but
to draw from them conclusions of law.
If tli- finding it of evidence only, the court will infer no fact there.
from; tho/a'f itself mast be found. \Vhitt v. Brauyh, 1 Rolle. 286, reported in
512 CODE PRACTICE AND PRECEDENTS.
Norman French, is an apt illustration : It was averred that Sir Th. Holt hath
taken a cleaver and stricken his cook upon the head, so that one side of the head
fell upon one shoulder and the other upon the other shoulder ) but did not aver
that the cook was dead, and for this reason the indictment was held bad. It
stated the evidence but not the fact. The decision in the celebrated Shelley's
Case, 1 Coke's Hep. 88, was upon a special verdict prepared by counsel and re-
sponded to by the jury.
(a) Upon the trial of an issue of fact, a special verdict should tiiid
the facts to which the law gives a determinate effect, conclusive of the
issue ; and no judgment can be rendered on findings of facts which are
in the nature of evidence only, and are not in law, conclusive upon the
questions at issue. Leach v. Church, 10 O. S. 148. A special verdict
is irregular and insufficient unless \ifind the truth of the fact. It will not
do to refer the evidence to the court and ask the judgment of the court
upon it. Hambleton v. Dempsey, 20 0. 168. Finding evidence sufficient
prima facie to establish all the requisite facts will not authorize a judg-
ment unon such verdict. Blake v. Davis, 20 O. 231.
When jury may render general or special verdict SEC. 5201.- In actions
for the recovery of money only, or specific real property, the jury may
render either a general or a special verdict ; in all other cases the court
may direct the jury to find a special verdict, in writing, upon all or any
of the issues ; in all cases the court may instruct the jurors, if they ren-
der a general verdict, to find upon particular questions of fact, to be
stated in writing, and may direct a written finding thereon ; and the
verdict or finding must be filed with the clerk, and entered on the
journal.
Note. In actions for the recovery of money only, or specific real property,
the jury may, but can not be compelled to render a special verdict. Cleveland,
etc., R. Co. v. Terry, 8 O. S. 570. In other cases the power to direct a special
verdict, and in all cases to submit questions, and what such questions shall be,
rests with the court in the exercise of its sound discretion. It is not a right
which the parties can require. Questions for the jury to answer ought to be so
framed that each can be answered in writing, " yes," or " no." Sometimes two or
more states of fact may be claimed from the evidence, upon one or more of which
the verdict can be clearly sustained, while upon the others it may be matter of
grave doubt, the law not being settled by the Supreme Court. Here questions
properly framed to ascertain what state of facts the jury base their verdict upon,
when answered by the jury, narrow the future consideration of the case to the
facts upon which the verdict is based. All else is rendered immaterial, when
if the verdict had been general, the whole case would be involved; for the find-
ing may, for aught that appears, have been upon the debatable grounds alone.
PREPARATION FOR TRIAL OF A CAUSE, ETC. 513
(a) In an action to recover money only, or specific real property, it is
error to refuse to charge the jury that it is discretionary with the jury
to return a general or special verdict. Adams Express Co. v. Pollock,
12 O. S. 618.
Special findings control general verdict. SEC. 5202. When the special
finding of facts b inconsistent with the general verdict, the former
*hall control the latter, and the court may give judgment accordingly.
(a) Where one or more of several defendants, sued as partners, an-
swered, denying that they were members of the firm, or indebted on
the cause of action stated in the petition, and on the trial of the issue
the jury returned a general verdict for the plaintiff, and also found
specially, under the direction of the court, that the defendants so an-
swering were not, in fact, members of the firm, but had held them-
selves out as partners, and that the plaintiff had dealt with and trusted
them accordingly : Held, that such special finding was not inconsistent
with the general verdict, and judgment might be properly entered
thereon for the plaintiff. Reber v. Columbus At., etc., Co., 12 O. S. 175.
(Upon the facts so found, they were estopped from denying that they
were partners as against the plaintiffs. Such holding themselves out
as partners t > the world, and the firm bein dealt with upon the faith
of such holding out, made them partners as to those so dealing with
the firm.)
Jury must assess the amount of recovery. SEC. 5203. When, by the
verdict, either party is entitled to recover money of the adverse party,
the jury, in its verdict, must assess the amount of recovery.
(a) In an action for the recovery of money, if the verdict finds for
the plaintiff, but its language is such that, when read in connection
with the record, the amount assessed for the plaintiff can not be ascer-
tained without reference to the evidence offered on the trial, no judg-
ment can properly be entered on such uncertain verdict Fries v.
J/odfc, 33 O. S. 52.
JURY IMPANELED AND SWORN.
[Form 307.J
John Doe |
No. .] vs. > Jury Impaneled, etc.
John Smith et als. )
Now come the parties herein by their attorneys ; and also come the fol-
lowing named persons as jurors, to wit: [A<r name them], who were dul
impanel 1 and sworn.
33
514 CODE PRACTICE A,XD PRECEDENTS.
CAUSE PROGRESSED.
[Form 308.]
FIRST DAY.
{Title of cause.]
This day,* the said jury having heard the testimony adduced in part, and
the same not being concluded, said cause was continued until , at
o'clock.
[Form 308.]
SECOND DAT.
[Title of cause.]
This. day came again the parties and the said jurors heretofore im-
paneled and sworn herein, and the trial proceeded [if testimony or trial
is not concluded, conclude as in preceding form']; and the said jury having
heard all the testimony, the argument and charge of the court, retired
to their room in charge of the sheriff for deliberation,* and there-
upon come the said jury into open court with their verdict in writing,
signed by the foreman, and say: [Here copy verdict.'] [*If the fact be so,
add : Jury polled.] [Or, if the jury do not agree upon a verdict the day the case
is submitted to them, say : And the hour of adjournment having arrived, the
court discharged the jury until , at o'clock.]
Note Before the verdict is entered, the prevailing party must pay the sheriff
sire dollars, as jury fee, which will bo taxed and collected as part of the costs.
Sections 5183, 5184, requiring this, are repealed, 83 v. 26.
A motion for a new trial must be made and filed within three days after the
verdict is rendered, except for newly discovered evidence, which must be made
during the term. 5307. See NEW TRIAL.
TRIAL BY THE COURT.
WJien and how trial by jwy may be waived. SEC. 5204. In actions
arising on contract the trial by jury may be waived by the parties, and
in other actions with the assent of the court, in the following manner:
1. By the consent of the party appearing, when the other party fails to
appear at the trial, by himself or attorney. 2. By written consent,
in person or by attorney, filed with the clerk. 3. By oral consent in
open court, entered on the journal.
(a) If no objection be interposed to a trial by the court until after
the issues are found, it is too late to insist that the case should have
been tried by a jury, nor can the party against whom the issues were
found object to a judgment in accordance with such finding. Eliithorpe
v. Buck, 17 O. S. 72.
And where a judgment is rendered on default, in an action on an
account, without proof of the plaintiff's claim, there is no error for
which the judgment will be reversed, the requiring of proof on such
PREPARATION FOR TRIAL OP A CAUSE, ETC. 515
failure to answer being a matter within the discretion of the court.
AI///M v. Ferneau, 25 O. 6. 635.
Soft. In actions nrisinn on contract, the court, where a jury is waived. U re-
quired to try tho i-au-e. In actions of tort, the court must assent to such waiver
and submission as well as the parties.
[Form 309. 5204.]
John Doe )
No .] w. > Waiver of Jury by Plaintiff.
.John Smith et als. )
In this case, nil the defendants having failed to appear at the trial,
either in person or by attorney, the plaintiff, in open court, waives a trial
by jury, and submits this cause to the court for trial.
[Form 310. g 5204.]
Court of Common Picas of - County, Ohio.
John Doe, Plaintiff, |
N> . J v*. > Waiver of Jury Trial.
John Smith et als.. Defendants. \
In this case a trial by jury is waived by the parties, and it is agreed to
submit the same to the court for trial and judgment.
EDWARD COCK, Attorney for Plaintiff.
Jos::ra CIIITTT, Attorney for Defendants.
[Form 310a. g 5204 ]
[Title of cause.]
In this case, the parties, by their attorneys, this day waive a trial by
jury, and agree to submit the same to the court for trial.
What Vie court must slate in it* findings. SEC. 5205. Upon the trial
of questions of fact by the court, it shall not be necessary for the court
to state its findings, except, generally, fur the plaintiff or defendant*
unless one of tho parties request it, with the view of excepting to the
decision of the court upon the questions of law involved in the trial,
in which case the court shall state in writing the conclusions of fact
found, separately from the conclusions of law.
(a) Where no request has been made for a finding under this section,
a jtarty against whom an issue is found can not stand by when the
journal entry is made, make no objection to its form or entry, and aft-
erward avail himself of inconsistencies in the statement of the steps
by which the court reached its conclusions, frank v. Statf, 12
O. 8. 1.
When the court, being requested to state separately its conclusions
of law and fact, makes a sufficient finding of the facts, and renders a
final judgment thereon, the judgment itself La to be regarded as a state*
516 CODE PRACTICE AND PRECEDENTS.
ment of the court's conclusion of law, within the meaning of this sec-
tion. Levi v. Daniels, 22 O. S. 38.
When such finding of facts is imperfect, in that it is too general
in its terras, and does not specifically find the facts in issue, but is not
excepted to on that ground, and the record yhows that it is sustained
by the evidence, judgment will not be reversed for the defect. Ib.
In such case, if it sufficiently appears from the record that the judg-
ment was warranted by the facts so found, and by the evidence, it will
not be reversed because the court erred in its statement of the law ap-
plicable to a state of facts not found by the court, or shown by the ev-
idence. Ib.
When a fact is admitted by the pleadings, and no evidence offered
to disprove it, it is error for the court, when special findings are re-
quested under this section, to state the facts contrary to such admis-
sion. Oliver v. Moore, 23 O. S. 473.
Where a motion for a new trial, on the ground that such special
findings are contrary to the evidence, has been overruled and excep-
tions taken, and the whole testimony embodied in a bill of exceptions,
the reviewing court, having found the error complained of to exist,
will look into the whole record to ascertain whether the error was preju-
dicial to the party. Ib.
If the finding of facts admits of a construction which will support
the judgment, that construction will be adopted. Jack v. Hudndl, 25
O. S. 255. But such finding must contain the/acfe, to which the law
gives a determinate effect, conclusive upon the issue. Leach v. Church,
10 O. S. 148. (Mere matter of evidence, from which facts might or
ought to have been found, is inadmissible to take the place of a find-
ing of facts.)
While the opinion of the court in deciding a case may be in such
terms as to constitute a finding of facts, under this section, yet the
practice of making an opinion a substitute for such a finding is irregu-
lar; and, where the law and facts are blended, the opinion will not be
regarded as a substantial compliance with this section. Empire Trans.
Co. v. Blanchard, 31 O. S. 650 ; Sanderson v. Iron and Nail Co. , 34 O.
S. 442.
If the court make a special finding of facts and renders judgment
thereon, the same may be reviewed on error, though not made at the
request of either party. Harner \. Batdorf, 35 O. S. 113.
The facts found must be sufficient in themselves to authorize the
judgment rendered. Springer v. Avondale, 35 O. S. 620.
If the court refuse the request of a party to make such special find-
ings, the judgment against him will be reversed, unless it clearly ap-
PREPARATION toll TK1AL OP A CAUSE, ETC. 617
pears that he was not prejudiced thereby. Oxford Tp. v. Columbia, 38
O. S. 87.
If a party, nt the time, makes no objection to the sufficiency of the
facts found, he must submit to such judgment as the facts found re-
quire. He waives mere informalities and defects. Carpenter v. Warner,
38 O. S. 416.
Trials by court. SEC. 5206. The provisions of this chapter (tit 1,
div. 3, ch. 2) respecting trials by jury shall apply, as far as they are
in their nature applicable, to trials by the court.
Trial of agreed cases by the court. SEC. 5207. Parties to a question
which might bo the subject of a civil action may, without action, agree
upon a case containing the/<c/s upon which the controversy depends,
and present a submission of the same to nny court which would have
jurisdiction if an action were brought; but it must appear by affidavit
that the controversy is real, and the proceedings in good faith, to deter-
mine the right* of the parties; and the court shall, thereupon, hear
and determine the case, and render judgment, as if an action were
pending.
The record in agreed case. SEC. 5208. The case, tie submission, and
the judgment, shall constitute the record.
Judgment, etc., in agreed case. SEC. 5209. The judgment shall be
with costs, may be enforced, and shall be subject to reversal, in the
same manner as if it had been rendered in an action, unless otherwise
provided in the submission.
Note. Courts are powerless to take jurisdiction of or to determine any mat-
ter, or lejal question, or controversy, unlil called upon by the proper parties io-
terestod therein to decide the ame as between them. AH controversies must
be real, and not feigned for the purpose of obtaining tho opinion of tlin judici-
ary. This provision affords a speedy method of obtaining the construction
of a will
(a) In a proceeding under this section, the submission, the agreed
case, and the judgment of the court thereupon, constitute the com-
plete record, and it is not necessary, in order to a review and reversal
of such judgment on error, that there should bo a motion for new
trial or bill of exceptions. Brown v. J/ott, 22 O. 8. 149.
But the case submitted must be an agreed' statement of facts which
might be the subject of a civil action, and upon which :i judgment
may be rendered as if an action were (lending thereon. Newark, etc.,
R. Co.Y Perry Co., 30 O. 8. 120.
The section was not intended to provide for the submission of questions
518 CODE PRACTICE AND PKECEDI2XT3.
of law for the mere opinion or advice of the court, but to furnish a short
and convenient mode for such adjudication of actual cases as would
be a bar to a future action for the same cause of action. Ib.
Where a case, submitted under this section, merely propounds ques-
tions of law, without an agreed statement of facts on which a judgment
can be rendered, the only tiling the court can properly do is to dis-
miss the cause without judgment and without costs. Ib.
SUBMISSION OF AGREED CASE.
[Form 311. 5207.]
A. B. and C. D. agree to submit the following stated controversy be-
tween them, upon the facts stated, to the Court of Common Pleas of
County, Ohio, for determination and final judgment, according to the stat-
ute in such case made and provided. [// it is agreed the judgment shall end
the controversy, add : And all right of error and appeal is hereby waived
and released. 5200.] EDWARD COKE, Attorney for A. B.
JOSEPH CHITTY, Attorney for C. D.
All necessary parties must agree to the submission.
AGREED STATEMENT OF FACTS.
[Form 312. 5207.]
Under the foregoing agreement of submission the following facts are
agreed to : [Here state the relation of the parties to the subject of the controversy,
and then the facts, as first, second, etc.~\
Upon which facts the parties pray the judgment of the court.
EDWARD COKE, Attorney for A. B.
JOSEPH CHITTY, Attorney for C. D.
AFFIDAVIT.
[Form 313. 5207.]
State of Ohio, County, ss.
Edward Coke and Joseph Chitty make solemn oath that said Edward
Coke is the attorney for said A. B., and said Joseph Chitty is the attorney
of the said C. D., named in the foregoing agreement of submission ; that
the controversy between said parties arising upon said agreed facts is real,
and these proceedings are instituted in good faith, to determine the
rights of the said parties. EDWARD COKE.
JOSEPH CHITTT.
Sworn to, etc.
The judgment may commence : " Upon the submission 01 this
cause, upon the agreed statement of facts herein, the court, after hear-
PREPARATION FOR TRIAL OF A ( ' TC. .J19
ii)<j the arguments of counsel, and being fully advised in the premise*,
doth adjudge." rto.
TKIAL P.Y UKFEREES.
All issue* m>iy be referred, by consent. SEC. 5210. All or any of the
issues in the action or proceeding, whether of fact or of law, or both,
may be referred by the court, or a judge thereof in vacation, upon the
vrriOen consent of the parties, or upon their oral consent in court, en-
tered upon the journal.
When court may order reference witliout content. SEC. 5211. When
the parties do not consent, the court, or a judge thereof in vacation,
may, upon the application of .1 party, or of its or his motion, direct
a reference in any case in which the parties are not entitled by the
constitution to a trial by jury.
Note. Articlo 1, section C, Constitution: "The riht of trial by jury shall
bo inviolate." Tlio constitutional ri^ht to trial by jury, in civil action*, is lim-
ited to common-law action?, cognizable in common-law courts, nnd di>cs not
extend to matters within tho jurisdiction of a court of chancery, or to spe-
cial statutory proceeding?, in which juries may bo impaneled to try particular
issues submitted to them, their verdicts boin^ advisory merely to the court.
A jury consUts of twelve men, and tho legislature can not constitute n less
number a jury under this provision of tho constitution. Work v. Stat>
8. 29G; Sovereign v. State, 4 O. S. 430-492.
A law providing for a jury of six before n justice of tho peace is not uncon-
tilutionnl, us a right of appeal is given where a trial by jury may be had.
The parties, in a civil action, may consent, in ct.urt. to a trial by a less num-
ber of jurors than twelve.
(a) In Jolimon v. Wallace, 7 O. (2pt.) 62, it was held that where
there was a running account between the parties, consisting of many
items, a court of equity has concurrent jurisdiction with a court of law.
In Averitt Coal Co. v. Vcrner, 22 O. S. 372, it was held that, in an
action for the recovery of money wherein the only relief prayed for
is a money judgment, either party is entitled to demand a trial by
jury, notwithstanding numerous items of account arc involved in the
issue.
(Had the party prayed for " an account " and judgment upon the
amount found due him, neither party would have had the constitu-
tional right to demand a trial by jury, as the relief, the obtaining of
an account, would have made the cause an equitable one, by election
law and chancery having concurrent jurisdiction in matters of account,
consisting of many items on both sides from which it would seem
a party may give or subject himself to the constitutional ri^ht of
trial by jury by the form of the prayer contained in his pleading,
520 CODE PRACTICE AND PRECEDENTS.
rather than have it determined by the legal or equitable nature of his
case. Such accounts can not be conveniently and satisfactorily tried
by a jury, aud are peculiarly proper for trial by reference, upon the
consent of the parties, if they desire justice to be done.)
Whether the suit be in its nature legal or equitable, an appeal va-
cated the report of the referee, under the former statutes. Lawson v.
Bissell, 7 O. S. 129 ; Sell v. Orawford, 25 O. S. 402.
Where the reference was made on motion of the defendant, he can
not object that there was no agreement to refer. Kdbj v. Slate, 23 O.
S. 567.
When reference ordered in vacation. SEC. 5212. If a referee die, or
be disabled, or refuse to serve, a judge of the court in which the ac-
tion is pending may, in vacation, appoint another person to take his
place, or again direct a reference as provided in the two preceding
sections.
Trial, etc., before referee Exceptions Eeport. SEC. 5213. The trial
by referees shall be conducted in the same manner as a trial by the
court ; referees may summon and enforce the attendance of witnesses, ad-
minister all necessary oaths in the trial of the case, and grant adjourn-
ments, the same as the court ; they must state the facts found, and
the conclusions of la\v, separately, and their decision must be given,
and may be excepted to and reviewed, in like manner ; their report
upon the whole issue shall stand as the decision of the court, and judg-
ment may be entered thereon in the same manner as if the action had
been tried by the court ; when the reference is to report the facts, the
report shall have the effect of a special verdict ; and, when the court
directs it to be done, the referee shall reduce the testimony of the wit-
nesses to writing, aud require them severally to subscribe the same.
(See section 5267. Testimony so signed by the witness may be used
as a deposition.)
(a) The trial before a referee is a substitute for trial by a jury ; and
the finding, which is subject to the review aud revision of the court
ordering the reference, is in effect the special verdict of a jury. Law-
son v. Lissett, 7 O. S. 129 ; Bell v. Crawford, 25 O. S. 402.
The court may order a referee to file a supplemental report, but it
is not error to refuse to do so. Cincinnati v. Cameron, 33 O. S. 336.
In the trial, the referee acts as the court, and exceptions should be
takeu iu the same manner as at a trial in court. If it is desired that
evidence already given be ruled out, the party should point out what
the evidence is, so that it can be ascertained with reasonable certainty,
PREPARATION FOR TRIAL OF A CAUSE, ETC. 521
otherwise it lays no foundation for the action of a court on error. Ib.
(And when evidence is admitted subject to exception, a motion must
be made, overruled, and exccpted to, to make its admission a ground
of error, otherwise the objection is waived. Thayer v. Luce, 22 O.
S. 63.) Amended or supplemental pleadings may be Bled during the
progress of the cause, and their character is to be determined by the
averments they contain, and not by the name given, as " supple-
mental," when they are amendatory, and they may be filed before the
referee. Cincinnati v. Cameron, 33 O. S. 336-356.
Where the reference is to tfiree, it seems the concurrence of a ma-
jority in the report is sufficient. Lliodcs v. Laird, 16 O. S. 573.
How rrferees chosen. SEC. 5214. In all cases of reference, except
when an infant is a party, the parties may agree upon a suitable per-
son or (Arsons, not exceeding three, and the reference shall be ordered
accordingly; and if the parties do not agree, the court shall appoint
referees, not exceeding three, who shall be free from exception.
How far applicable to Probate Court. SEC. 5215. A reference as
provided iu this chapter (tit. I, div. 3, ch. 2) can not be ordered by a
probate court, unless by consent of the parties to the reference, and
the referees.
Referees must sign b'tUa of exceptions. SEC. 5216. The referees shall
sign any true exceptions taken to an order or decision by them made
in the case, and return the same with their report to the court which
made the reference.
(a) A motion to recommit the report to the referee, so that a party
may except, or for other purpose, is discretionary, and the action of
the court in that regard is not subject to review. Averill Coal, etc., Co.
v. Vcrner, 22 O. 8. 372 ; Cincinnati v. Cameron, 33 O. S. 336.
Oath of the referees. SEC. 5217. The referees must be sworn well
and faithfully t > hoar and examine the cause, and to make a just and
true report therein, according to the best of their understanding; and
the oath may be administered by any person authorized to take depo-
sitions.
Compensation of referees taxed as costs. SEC. 5218. The referees shall
be allowed such compensation for their services as the court deems just
and proper, which shall be taxed as a part of the costs in the case.
522 CODE PRACTICE AND PRECEDENTS.
CONSENT TO REFERENCE.
[Form 314. 5210.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, ) .-, T> r n
xr~ -i [ Consent to Refer Cause to , etc.,
i.' O '. I i/o. r -p /
John Smith et als., Defendants. ) '
It is hereby agreed to refer this case [r>r, the following issues in this case,
specifying them] to as referee, under and in accordance with the
statute in such case made and provided. [And (if desired) he shall also re-
duce the testimony of the witnesses to writing and require them severally to subscribe
the same.]
EDWARD COKE, Attorney for Plaintiff,
[Date."] JOSEPH CHITTY, Attorney for Defendants.
[Form 315. 5210,5211.]
John Doe ~)
Johnlmith. .John Jones, and [ Order Referring Cause to , Referee.
Hugh Evans. j
In this case, upon the written consent of all the parties to this action
duly filed herein * [or, upon the oral consent, in open court, of all the
parties to this action ; or when the parties are not entitled by law to a trial by
jury, upon the application of .plaintiff, or defendant, a* the case may be;
or, by the court upon its own motion, or, by , a judge of said court, in
vacation, upon his own motion], * it is hereby ordered by the court [or, by
, a judge of said court, in vacation], that this cause be and the
same is hereby referred to , as referee, to try and determine, accord-
ing to law, all the issues of law and fact arising herein [or, the following
issues of fact, specifying them}, and report his findings of fact and conclu-
sions of law, separately, to this court, without unnecessary delay [or, at
the term, 18 , of this court; or, by the day of , A. D. 18 ].
[And if desired: Also that he reduce the testimony of the witnesses to
writing, and require them severally to subscribe the same, and report and
file such testimony with his report.]
ORDER TO REFEREE.
TFormSie. 5210-5218.]
The State of Ohio, County, ss.
To , Greeting:
You have been appointed referee in the case of , plaintiff, against
, defendant, being cause No. , pending in the Court of Common
Pleas of said county, which is in the words and figures following, to wit:
[Here copy the order of reference.]
In witness whereof, I have hereunto set my hand and the seal of our
said Court of Common Pleas, this day of , A D. 18 .
[SEAL OF COURT.] , Clerk.
PKKlA,;AllOX FOR TRIAL OP A CAUSE, ETC.
On receiving the order, the referee or referees will fix the time and
place of hearing, and notify the attorneys, >r part it- t the same.
The obtaining of witnesses, and the trial of the cause will l>e the game
as in court. All the files in the cause will be placed in the hands of the
referee.
Before assuming the discharge of his duties the referee must be
sworn.
OATH OF REFEREE.
[Fora 317. 5217.]
I, , do solemnly swear [or, affirm under the pains and penalties of
perjury] that I will faithfully hear and examine, according to tin- require-
ments of the order of reference of the same, the cause of , plaintiff,
against . defendant, being cause No. , pending in the Court of
Common Pleas of County, Ohio, and make a just and true report
therein, according to tho best of my understanding, as required by the
order of reference issued by said court to me.
[Date.] , Referee.
Sworn to, etc.
The oath may be attached to tho report.
Exceptions may be taken as in the trial of a en use in court. If,
when the re|x>rt is published by the referee to the parties, cither party
s to take a bill of exceptions, the same may be done as on n trial
to the court. If it is claimed that the iindings of fact arc manifestly
against the weight of the evidence, a motion for a new trial for such
reason should be made; and when overruled, a bill of exceptions
taken embodying nil the evidence. Otherwise the only remedy left
the party will be that the conclusions of law upon the facts found are
erroneous. The testimony, when rejx>rtcd as required by the order
of reference, is merely to perpduite the evidence, so that, if the case
be again tried, and the witnesses dead or absent, it may bo read as
their depositions. See BILLS OF EXCEPTIONS.
REFEREE'S REPORT.
[Form 318.]
Court of Common Pleas of County, Ohio.
[Style f>f cause.']
In thi-i cane, after being duly sworn according to Inw, as shown in the
oath attached hereto and returned herewith, in j ur->ti:ince of notice given
to Raid parties, through their respective attorney*, on the tiny of
, A. n. 18 , at , the undersigned referee, in pursuance of, and
in accordance with, th command of the order of reference hereto at-
tached and returned herewith, commenced the hearing of this cause.
524 CODE PRACTICE AND PRECEDENTS.
Present: , on behalf of the plaintiff; and , on behalf of the
defendant. After the statement of the case by the parties, was first
sworn and examin'ed as a witness on beha'f of the plaintiff; also
and , etc.; when the further hearing of the cause was adjourned
until , 18 , at o'clock M.
[ When the case is again taken up, state date, and proceed as above.~\
[When trial concluded, add : And both parties having concluded the evi-
dence on their respective parts, and their arguments, and finally submit-
ted the cause, I, as such referee, do find the following facts] :
First,
Second, etc. [stating all the facts found~\.
Upon which facts, I find the following conclusions of law:
First, etc. [staling them'}.
Said findings I duly published to the parties on the day of , A.
D. 18.
[//" the order requires the report of the testimony of the witness, add: The tes-
timony of all the witnesses examined on the hearing was reduced to writ-
ing and signed by them respectively, which testimony is returned and
filed with tliis report.]
[N. B. The testimony will be returned separately from the report, and
all papers, documents, etc., properly marked and numbered as exhibits,
attached to it.]
[If a lill or bills of exceptions Le taken by either or both the parties, add : And
upon the publication to the parties of said findings, the (plaintiff, or
defendant, as the ca?e may be) filed his motion for a new trial, which mo-
tion is returned and filed herewith, and which motion was overruled, to
which the excepted, and thereupon tendered his certain bill of ex-
ceptions, which, being found by me to be true, is allowed, signed and
sealed, and returned and filed herewith.]
N
[State the attendance of each witness and the number of days he attended, his
mileage, etc., and all tlie items of costs incurred ; also state the time employed by
the referee in hearing the cause, and in. making up his report, add : for which
he charges a fee of dollars.]
All of which is respectfully submitted, this day of , A. n. 18 .
, Referee.
Kote. The forms of bills of exceptions nro given, post.
When tho referee's report is filed, tho party desiring its confirmation should
filo a motion in tho court to confirm it; and objections to its confirmation in
whole or in part should be taken by filing exceptions. If no bill of exceptions
be taken before the referee, the only question which can be considered by the
court is what judgment should bo rendered upon the findings of fact by tho
referee. If there be a bill of exceptions, the court will. consider the case upon
the report and such bill of exceptions. A bill of exceptions so taken will bo
considered as part of the record upon petition in error iu every reviewing court
PREPARATION FOR TRIAL OP A CAUSE, ETC. 525
MOTION TO Cox FIRM REFEREE'S REPORT.
[Form 319.]
Common Pleas Court of County, Ohio.
John Doe. Plaintiff. )
No. -i-.] M. \ Motion to Confirm Report of Referee.
John Smith et als., Defendants. )
The plaintiff [or, defendant] moves the court to confirm the report of
, referee, reported and filed in this cause, nnd for judgment in his
favor against said defendants upon the findings of said referee in said re-
poit , Attorney for .
EXCEPTIONS TO REPORT OF REFEREE.
[Form 320.]
Common Fleas Court of County, Ohio.
John Doe, Plaintiff, ]
No. .] v. \ Exceptions to Report of Referee.
John Smith et nls , Defendants, j
And now come the said [defendants] and except to the report filed
herein of the referee, , nnd allege the following exceptions:
First, etc.
Whereupon the defendant asks that said report be set aside, and for all
proper relief. , Attorney for .
Kote. Tho court will, as tho case may require, confirm the report and enter
judgment upon it; or if it sustains the exceptions, modify it, set the same aside,
or render such judgment 11* tbo facts found legally require to be rendered. If
et aside the case may bo referred again to a referee.
TRIAL BY MASTER COMMISSIONERS.
Appointment of matter commissioner. SEC. 5219. The Court of Com-
mon Picas may appoint, in each county, such number of persons as
may be necessary, to be master commissioners, who shall hold their
office for the term of three years, unless removed by the court for good
cause; and the master commissioners to appointed shall have power to
administer all oaths required in the discharge of their official duties, or
authorized to be administered by the laws of this state.
(a) Under the former statutes, a reference t > a in aster commissioner
for trial was the same as a reference to a referee; and where n case in
which the parties were not entitled to a trial by jury was referred, with
instructions to reduce the testimony to writing, and rep -rt it to the
court, and the master reported his findings of the law and facts in-
volved, in the issues, together with the testimony, to which report
exceptions being filed, the same were overruled by the court and judg-
ment rendered: Iletd, 1. On appeal to the District Court, tho can
526 CODE PRACTICE AND PRECEDENTS.
stands upon the issues joined in the court below, and, for the purpose
of trying such issues, the parties are entitled to introduce any compe-
tent testimony, without regard to the fact whether such testimony was
or might have been offered on the heariug before the master. 2. But
where an order of reference is made to a master for the purpose of
stating an account, or ascertaining some other matter, auxiliary to the
determination of the cause by the court, the report is not vacated by
the appeal, but is carried to the appellate court for confirmation, modi-
fication, or vacation, as the appellate court may determine from the
testimony so reported, unless, upon some equitable showing, the court
permits additional testimony to be offered. Bell v. Crawford, 25 O. S.
402.
When the evidence taken before a master is filed in the special term
of the Superior Court of Cincinnati, but not recorded upon the jour-
nal, and the cause is taken on petition in error to general term, on the
alleged ground of error that the judgment is manifestly against the
evidence, such evidence taken before the master and so filed is before
the general term as an original file in the case, and may be considered
by the court without being embodied in a bill of exceptions. Gill v.
Geyer, 15 O. S. 408, 409. (See section 499a, Sup., pp. 40, 41.)
Note. Ordinarily, the report of a master commissioner is but advisory to the
court, as tha verdict of a jury upon an issue tried in a court of chancery. It is
brought before the court on motion to confirm, or upon exceptions, in the same
manner as the report of a referee. See section 525
Oath and bond. SEC. 5220. Before a master commissioner enters
upon the duties of his office he must be sworn to perform them faith-
fully, and shall also, with surety, to be approved by the court, execute
an undertaking to the State of Ohio, in such sum as the court shall
direct, to the effect that he will pay over all money, and faithfully dis-
charge the duties of his office ; the court may, at any time, require a
master commissioner to give other or further security, and in default
.hereof, by a day fixed by the court, his office shall thereby be vacated ;
and the undertaking shall be filed in the office of the county auditor,
and may be sued upon as provided in section 4994.
Special master commissioner. SEC. 5221. The court may appoint a
special master commissioner, who shall be sworn faithfully to discharge
his duties, and who may administer all necessary oaths on any hearing
before him.
e. In a proper case, the court may require a special master to execute a
bond, conditioned to cover the mutter referred to him, the same as in the case
of a regular master commissioner. The oath is like the oath of a referee.
PKKT.V RATION FOtt TRIAL OP A CAUSE, ETC. 527
What and how action* referred to a matter commurionrr. SEC. 5 _'__'.
Tlio court, or u judge thereof iu vacation, may, upon motion of a party,
an action in which the parties are not entitled to a trial by jury,
to a regular or sieeial master commissioner, to take tho testimony in
writing, and report the mine to the court, and therewith his conclusions
on the law and facts involved in the issues, which report may be ex*
cepted to by the parties, and confirmed, modified, or set aside by the
court
Kate. To render the testimony tiken before tho mater competent evidence
as n deposition in a future trial, the witnesses should respectively siyn their tes-
timony. { 5207; llonnet v. Dicluon, 14 O. 8. 436. Orders of reference should
require this to bo done.
Tlieir powers and dutie*. SEC. 5223. A master commissioner, or
special master commissioner, may summon and enforce the attendance
of witnesses, and grant adjournments, the same as the court ; and, when
the court directs it to be done, s!iatt require the witnesses severally to
subscribe their testimony.
Compensation. SEC. 5224. A master commissioner or special master
commissioner shall bo allowed such fees as are allowed for similar serv-
ices to other officers.
Note. For forms, see 815-320 Referees. Bills of exceptions need not b
taken on the hearing of a cause before a ma-tor. He will set forth in his report
the exceptions taken and liis rulings upon tho same, and as he reports ail tho
evidence and his findings of law and fact*, all exceptions can be mado available
upon exceptions to UU report.
528 /CODE PRACTICE AND PRECEDENTS.
CHAPTER XXX.
EXCEPTIONS AND BILLS OF EXCEPTIONS.
What an exception is. SEC. 5297. An exception is an objection taken
to ^decision of the court upon a matter of law.
WJi^cxception must be made. SEC. 5298. The party objecting to the
decision mustxexcept at the time the decision is made; and time may be
given to reduce\the exception to writing (i. e., to take and file a bill of
exceptions), but uo^beyond the term. (See section 5302 ; State v. Hawes,
43 O. S. 16, extending mine pro tune power to thirty days from rising
of term.)
How exception must bs stated. SEC. 5299. No particular form of ex-
ception is required ; and the exception must be stated, with the facts,
or so much of the evidence as is necessary to explain it, and no more,
and the whole as briefly as possible. (See sections 5305, clause 6 ;
6710, Sup., p. 383, Supreme Court.)
How taken when facts appear of record. SEC. 5300. "When the de-
cision objected to is entered on the record, and the grounds of objection
appear in the entry, the exception may be taken by the party causing
to be noted at the end of the entry that he excepts.
When bill of exceptions may be taken. SEC. 5301. Where the decis-
ion is not entered on the record, or the grounds of objection do not
sufficiently appear in the entry, or the exception is to the opinion of
the court on a motion to direct a nonsuit, to arrest the testimony from
the jury, or for a new trial for misdirection by the court to the jury,
or because the verdict, or, if a jury was waived, the finding of the
court, is against the law or evidence, the party excepting must re-
duce his exception to writing, and present it to the court for allow-
ance.
(There is no nonsuit under the Code, section 5314. Stockstill v.
Railroad Co.,24O. S. 83.)
How to be talcen, filing, etc. SEC. 5302. If the exception be true,, or,
if it be not true, then after it is corrected, a majority of the judges
composing the court must allow and sign it before the case proceeds, or,
if the party consent, within thirty days after the term ; the bill of ex-
ceptions shall be filed with the pleadings,. and, if the party require it,
r:\CKPTIONS AND KILLS OF EXCKPTION 529
made a part of the record, but not spread on die journal] and if it is to
be signed after the term, the journal must be kept open, and the al-
lowance anil signing thereof entered thereon as of the term.
yte. This section dispenses with the necessity of taking bills of exceptions
under seal. "The party" mentioned is the party "consenting" to the signing
of the bill of exceptions within thirty days after the term. State v. Ifaices, 43
O. S. 16. The party taking such time ought to have his consent entered upon
the journal during the term, or ask to have such entry made, and except if it
be refused. Ib. This would seem to be necessary to show that such party has
not waived 1m exception, which a party can always do; and, if once waived,
it is waived finally. A waiver during the continuance of the term and fur any
number of days thereafter less than thirty, will not entitle him to renew hia
exception on the thirtieth day after the term. Moore v. Brown, 10 O. 200, 201 ;
Landfjn v. Reid, ii. 203.
This section extends section 5298, giving the words, " but not beyond the
term," the effect of "within thirty days after the term, if the party consent."
State v. Hawen, 43 O. S. 16.
Immaterial exceptions. SEC. 5303. No exception shall be regarded
unless it is material, and prejudicial to the substantial rights of the
party excepting. (And see section 5115.)
When excejjtions may be withdrawn. SEC. 5304. Exceptions taken to
the decision of a court of record may, by leave of such court, be with-
drawn from the .files by the party taking the same, at any time before
proceedings in error are commenced, and before the exceptions are re-
corded.
Rote. No exception is necessary to any matter appearing on the face of the
record, and which is prejudicial to the party. If erroneous, he can avail him-
self of the error without excepting, unless his consent appears of record.
(a) A mere abstract proposition of law can not be presented for the
decision of a court of error, by bill of exceptions. The party except-
ing must distinctly point out wherein he may have been prejudiced by
the decision excepted to. King \. Kenny, 4 O. 79; McDougal \.
Fleming, 4 O. 388 ; Lewis v. State, ib. 389 ; Onburn v. State, 7 O. (1
pt.) 212; Stephens v. State, 14 O. 386; Watton v. Brown, ib. 473;
Cressinger v. Welch, 15 O. 156.
An exception may be taken to a refusal of the court to give such
instructions as properly arise in the case. Lewis v. State, 4 O. 389 ;
Jones v. State, 20 O. 34. But the mere failure of the court to instruct
a jury upon a particular point of law, arising in the case, is not a
ground* .of error. 76. To make such failure a ground of error, the
34
530 CODE PRACTICE AND PRECEDENTS.
court should have been requested to instruct upon the point. JZ>.
(Any other rule would impose upon the court the duty of instructing
the jury upon every point involved in the case, which would be prac-
tically impossible, while it is easy for a party to ask instructions upon
such points as he may desire.)
A naked statement of facts, it not being shown wherein the facts
prejudiced the party complaining, lays no ground for a reversal. Os-
burn v. State, 7 O. (1 pt.) 212.
Error will lie to the ruling of the court, upon questions of law,
where the cause is submitted to the court, in the same manner as if it
had been submitted to a jury. Franklin Bank v. Buckingham, 12 O.
482; Bissellv. Couchaine, 15 O. 58; Reed v. Evans, 17 O. 128, 131 ;
Ide v. Churchill, 14 O. S. 317. Such exception can now be taken to
the finding of facts by the court, by motion for a new trial, on the
ground that the findings are against the evidence. 5305, cl. 6.
(But for this clause, and prior to its enactment in 1858, this could not
be done. Markle v. Town, etc., of Akron, 14 O. 586.)
Where there was an agreed statement of facts to which was added :
"To the sufficiency of said testimony the defendant by his counsel ob-
jects, and the court overruled his objection and directed judgment to
be entered for the plaintiff. To which ruling and decision of the court
the defendant by his counsel excepts, and prays the court to sign the
same, that it may become a part of the record, and it -is done accord-
ingly in open court," and then followed the signatures and seals of the
judges : Held, that this was a sufficient bill of exceptions. Aclieson v.
Sutliff, 18 O. 122. (The exception in such a case, if the agreed facts
are made part of the judgment entry, will be saved and made avail-
able to the party, by causing an exception to the judgment to be noted
at the close of the entry. - 5207, 5300.)
Where a record is offered as a bar, and the court hold that it is not
a bar, it is necessary, in order to present the question to a court of
error, that a bill of exceptions be taken. Myers v. Moore, 19 O. 136.
Where a court of error reversed the lower court for not granting a
motion for a new trial, such judgment of reversal is not ordinarily re-
viewable on error in the Supreme, or other higher appellate court.
(On such new trial full justice to the rights of the parties may be
done.) Spafford v. Bradley, 20 O. 74; Pendleton, etc., R. Co. v. Stall-
man, 22 O. S. 1 ; Smith v. Board of Ed., 27 O. S. 44; Dean v. King,
22 O. S. 118. But the act of April 12, 1858, authorized a petition in
error to reverse a judgment of reversal. This power was taken away
by the act of 1883 (80 v. 169), amending section 6710 ; but has been
again restored as under the law of 1858, by the act of May 4, 1885
l.XCEl'T10SS> AND BILLS OP EXCEPTION.-. 531
(82 v. 230), Sup., p. 383. liullJiny AiwH-iatinn, \. Insurance Co., 34
O. S. 291. But it will require a strung c;i-f to justify the reversal of
a judgment of reversal grunting a new trial, llcntty v. Hotelier, l-'J
11"). Ami this rule is pjHrinlly applicable, under the act of
1883, to reversals by the Circuit Court of lower courts and granting
new trials on the ground that the verdict or judgment is against the
t of the evidence, as, in such cases the Supreme Court is not re-
quired to determine the weight of the evidence. ( 6710, Sup.,
p. 383.)
A court has power to correct a bill of exceptions at any time during
the trial term. Ash v. Marlow, 20 O. 119.
Exception to the exclusion of evidence will not be regarded unless
the evidence is set forth in the bill. Palmer v. Yarrington, 1 O.
6. 253.
An objection that counsel was not permitted to read to the jury
from a scientific work will not be regarded, unless it appear from the
bill of exceptions that the passage was relevant, or came within the
legitimate scope of argument. Legg v. Drake, 1 O. S. 286.
Papers not set out in, attached to, or connected with, the bill of ex-
ceptions, will not be regarded on error. Wells v. Martin, 1 O. S. 386 ;
Busby v. Finn, 1 O. S. 409. But where such papers are used, without
objection, in the Circuit Court, and the defendant in error afterward
prosecutes a petition in error in the Supreme Court, he can not there
object that they are no part of the bill, t'ooch v. Irwin, 1 O. S. 22.
Where the journal entry shows a substantial finding of the issue
for the plaintiff, but it is preceded by a contradictory statement of
reasons, the same having been requested with a view of excepting,
and there being no exception, the statement is not a ground of re-
versal. Franks v. State, 12 O. S. 1.
Judgment will not be reversed for alleged error in overruling ex-
ceptions to depositions, unless it appear by bill of exceptions, or by
the record, that the facts upon which the exceptions are predicated. ex-
ist. Sluunokin Bank v. Street, 16 O. S. 1. .
The evidence set forth in a bill of exceptions will not be examined
for the purpose of determining whether it is against the weight of
evidence, where there was no motion for a new trial. Kepner v.
Snhvly, 19 O. 296 ; Wedfall v. Dungan, 14 O. S. 276 ; Ide v. Churchill,
ib. 372. (The legal effect of the evidence, if not conflicting, will he.
considered, though no motion for a new trial be made. The Supreme
Court will not now examine as to Uie iveight of the evidence, though
a motion for a new trial was made on the ground of the weight of evi-
dence. Other courts of error will.)
532 CODE PRACTICE AND PRECEDENTS.
But such motion is not necessary when the errors relied on do not
go to the weight of the evidence. Earp v. Pittsburgh, etc., JR. Co., 12
O. S. 621.
Under the Code of Civil Procedure, previous to the passage of the
act of 1858, the fact that the verdict was against the weight of evi-
dence was not a ground of reversal. House v. Elliott, 6 O. S. 497 ;
Turner v. Turner, 17 O. S. 451, and cases there cited. But this is
changed by the act of 1858, sections 5305, 6710, Sup., which is to be
read with this provision in section 5301.
When the bill of exceptions only sets forth evidence tending to prove
a fact, and does not show whether there was or was not evidence
tending to its disproof, no ground of reversal is shown upon the evi-
dence. Farmers' College v. Butler, 18 O. S. 418.
Where the ground of reversal is that the verdict is not sustained by
the evidence, it must affirmatively appear from the record that the bill of
exceptions contains all the evidence, Hall \. Reed, 17 O. 498 ; Coil v.
Willis, 18 O. 28; Hicks v. Person, 19 O. 426; Pittsburgh, etc.,E. Co. v.
Probst, 30 O. S. 104 ; Tilton v. Morgaridge, 12 O. S. 102. (There is a dif-
ference between a verdict or judgment not being sustained by sufficient
evidence, and being against the weight of evidence. The formed is a
lack of evidence to warrant such verdict or judgment; the latter in-
volves evidence which conflicts upon some one or more material points,
and which is to be weighed by the judgment of the court to determine
which disputed fact it established.)
In a proceeding upon a complaint by an administrator against one sus-
pected of having embezzled the effects of the estate (sections 6053-
6058), the written examinations in the Probate Court are a part of
the record, and should be regarded by a reviewing court without a
bill of exceptions. Howell y. "Fry, 19 O. S. 556.
Where evidence which was excepted to was material and improperly
admitted, and all the evidence is not set forth in the bill of exceptions,
nor all the facts which the evidence tended to prove, the judgment
should be reversed, as the court can not know that the adverse party
was not prejudiced thereby. Baldwin v. Bank of Massihn, 1 O. S-
142 ; Taylor v. Boggs, 20 O. S. 517.
The admission of improper evidence on the part of the defendant
which operates only to rebut .evidence improperly introduced by the
plaintiff, is no ground of error. Ib.
Affidavits which had been used on the hearing of a motion were
copied into the record, but not incorporated in a bill of exceptions, no
bill being taken : Held, that the affidavits could not be regarded on
EXCEPTIONS AND BILLS OP EXCEPTIONS 533
< rn.r. Sleet v. William*, 21 O. S. 82; Garner v. White, 23 O. S. 192;
Shultz v. State, 32 O. S. 276.
Under section 5207, iu an agreed case, a bill of exceptions is un-
sary. Brown \. Mutt, 22 O. S. 149.
An application for mandamus to compel a judge to sign a bill of ex-
ci -pi ions should be accompanied by the bill which was tendered ; and
where the answer shows the defendant is willing to sign a true bill,
but denies that the bill presented is true, the writ will be refused.
Atkin* v. Todd, 4 O. 351 ; Creager v. Meeker, 22 O. S. 207.
Where an alternative writ of maiubimu.i commands a judge of an in-
i'.'rior court to allow and sign a certain bill of exceptions, filed with
the petition iu the case, and averred to be true, ami which was ten-
dered to him in due time, or to show cause why he does not sign the
same, and he fails to answer, or answers and fails to show a sufficient
cause, the peremptory writ should command him to sign the particular
Vifl named. State \. Hawes, 43 O. S. 17.
If the objection that the court delivered to the jury manuscript in-
structions, without reading them to the jury, is available at all, ex-
ception must be taken at the time. Little M. R. Co. \. Waaliburn, 22
0. 8, 324.
Whether the report of a referee shall be recommitted to him to en-
able a party to except, or for like purpose, is discretionary with the
court. Averill, etc., Co. v. Verner, 22 O. S. 372 ; Cincinnati v. Cameron,
M O. 8. 336.
Where an exception is taken to the ruling of the court in rejecting
testimony, it is not necessary to set forth such testimony; it will be
sufficient to state the facts which such testimony tended to prove Him-
rod Furnace Co. v. (Jkwland, etc., Co., 22 O. S. 451. And it is also
unnecessary to state what he would have testified to when the error
nui-isU in excluding a competent witness, offered to prove the issues
on the part of the party to be maintained. Hollister v. Reznor, 9 O.
6. 1 ; Wolf 7. Poicner, 30 O. S. 472. But it is best to state the sub-
stance of what the pa-ty oflVred to prove, and claimed he could prove
by such witness. Armstrong v. Clark, 17 O. 4'J5. And this must be
done when tlic ruli:i^ relates to the competency of the evidence and
not of the witne?*. HolH*ter v. Rtznor, sujim; Gandolfo v. State, 11
O. S. 114; St,i!l\: IHfcox, 2 O. S 569. (Where the alleged error
i .. - .. t.s in overruling a question asked a witness, the bill of exceptions
must show what the answer to such question would have been. 76.)
\Yhere a judgment is rendered upon a special finding of facts, and
a motion predicated on the ground that the finding is contrary t law
ilu evidence is made and overruled, but no Lilt of exceptions
534 CODE PRACTICE AND PRECEDENTS.
setting forth the evidence is taken, and the judgment is subsequently
. reversed on error, the finding of the court, although it sets forth in
detail all the facts proved upon the trial, can not be regarded as such
bill of exceptions ; arid hence it is not error for the reviewing court to
lender final judgment upon the finding, instead of remanding the
cause for retrial. Shinkle v. Sank of Ripley, 22 O. S. 516.
Neither an affidavit filed in the cause, the certificate of the clerk, nor
the agreed statement of counsel, can be made to supply the place of
a bill of exceptions; and where the matter is sought to be brought
into the record by such means, it will, on error, be disregarded. Young
v. State, 23 O. a '577.
But, where there was a motion for a new trial made on the ground
that the finding and judgment of the court is not supported by the law
and the evidence, which was overruled, and all the testimony offered
before the trial court was in an agreed statement of facts, in writing,
carried into the record, and found by the court to be all the testimony
offered by the parties on the trial, it was held unnecessary, on over-
ruling the motion, to re-embody the same in a bill of exceptions.
McGonnigle v. Arthur, 27 O. S. 252.
Exceptions taken to the general charge of the court will not be re-
garded on error, unless the part objected to, or the ground of objection,
be pointed out at the time. Adams v. State, 25 O. 3. 584 ; Powers
v. Hazleton, etc., R. Co., 33 O. S. 429.
Where the bill of exceptions contains all the evidence and also the
charge of the court, which was not excepted to, the reviewing court
will look at the charge in connection with the evidence, and if it is
materially erroneous and calculated to mislead the jury, will reverse
the judgment. Mowry v. Kirk, 19 O. S. 375; Railroad v. Porter, 32
O. S. 494; Baker v. Pendtrgast, 32 O. S. 494; Weybright v. Fleming,
40 O. S. 52.
If, on the trial of a cause, incompetent testimony be admitted with
the consent of the partv, subject to his objection, and no motion be after-
ward made to rule out such testimony, its admission will not consti-
tute a ground for the reversal of the judgment. (Tne objection is
deemed waived.) Thayer v. Luce, 22 O. S. 63.
The provisions providing for exceptions have no application to fina]
judgments or orders. It is not necessary in such case to obtain a re-
view and reversal on error that the party should have excepted at the
time of its rendition. Commercial Bank, etc., v. Buckingham, 12 O. S.
402 ; Justice v. Lowe, 26 O. S. 372.
In order to make a bill of exceptions part of the record, its al-
lowance and execution should be shown by the journal. Burke v.
EXCEPTIONS AND BILLS OP EXCEPTIONS. 535
fjli, dr., R. Co., 26 O. S. 643 ; Hill v. Bassett, 27 O. S. 597. (It
need not be scaled a* \\-.\< formerly necessary.)
A bill signed by bwjodgea (a majority) will be sufficient, although
tho record does not show they were present at the trial. Wilson v. (iiii-
H'Hjs, 28 O. S. 554.
Objection that the jury was not properly sworn is of no avail where
neither the bill of exceptions nor the record shows the form of oath.
Ji.i,il,tt v. State, 28 O. S. 669.
It a party rely for reversal on misdirection to the jury, his exception
mu>t be taken as provided in this chapter (4). Kline v. Wi/itm, 1"
O. S. 223 ; Adams v. State, 25 O. S. 584 ; Marietta, etc., R. Go. v. Strader,
29 O. S. 44 S ; Slate v. Howes, 43 O. S. 16.
Prior to the enactment of the present section (5302), where the bill
of exceptions was taken after the trial term, upon the overruling of a
motion for a new trial, the judgment will not be reversed for errors
occurring at the trial, unless it appear from the whole record that the
verdict was coutrary to law or the evidence. Mitsser v. Chase., 29 O. S.
557 ; Dayton v. Hlnsey, 32 O. S. 258 ; Eastbrook v. Gebhart, 32 O. S.
415. But now, if taken within thirty days after the term, such errors
may be reviewed. State v. Hawes, 43 O. S. 16.
On petition in error to reverse an order of court confirming a sale on
execution, it can not.be assigned for error that the court's findings of
fact were contrary to evidence. The return of the sheriff is prima facie
evidence of the amount and nature of the appraisement ; and the copy
of the appraisement deposited with the clerk can not be considered by
the reviewing court unless embodied in a bill of exceptions. IT/Vso/i
v. Scott, 29 O. 8. 636.
Where a jury is waived, and issues of fact are submitted to the court,
with a request to have conclusions of fact found separately from the
conclusions of law, a question of the sufficiency of the evidence upon
which findings of fact were made by the court can only be raised l>y
bill of exceptions. Raleton v. Kohl, 30 O. S. 92.
The language of section 5205 would seem to exclude the right of the
party si-king the same to have reviewed the sufficiency of the evidence upon
which such finding of facts is made, as the party can only require tin- court to
in.-iU- MK-II finding "with the view of excepting ... upon the questions of
///' involved in tho trial."
Allegations of fact made in a motion for a new trial, not supported by the
remnl. nor made part thereof by bill of exceptions, can not be considered upon
proceedings in error Wagonei v. Staff, HO O. S. 575.
A petition in error to reverse the final judgment in an action brings
before the reviewing court the whole i :' the cause; and where,
536 CODE PRACTICE AND PRECEDENTS.
pending the proceeding in error, the court whose judgment is under
review makes an erroneous order, striking the bill of exceptions on
which the proceeding in error is founded from the record, such order
may be reviewed in the pending proceeding, and the filing of an inde-
pendent petition in error to reverse such order ought not to be allowed.
Potter v. Myers, 31 O. S. 103.
Where parties have consented to an entry on the journal, during the
term, showing that a bill of exceptions was duly perfected, they will
be estopped from afterward showing] that the journal entry is untrue.
Ib. And if perfected in other respects, the mere omission to file it
with the clerk during the term will not invalidate it; when duly per-
fected and ordered to be made part of the record, the bill of exceptions
is, in law, to be regarded as part of the record, whether it comes into
the actual possession of the clerk during the term or not. Ib.
An exception to the charge of the court can not be saved, so as to
make it reviewable on error, by merely making the charge and excep-
tion a part of the journal entry in the case. Pettett v. Van Fleet, 31 O.
S. 536. Nor unless made part of the record by bill of exceptions.
Hallam v. Jacks, 11 O. S. 692.
The opinion of the court in deciding a case, in which the facts and
law are stated generally, or blended, can not, by bill of exceptions, be
made a substitute for the finding which may be required under section
5205. Empire, etc., Co. v. Blanchard, 31 O. S. 650; Sanderson v. Iron
and Nail Co.,UO. S. 442.
Where the admission of testimony is the error relied on, the bill of
exceptions must be taken and filed at the trial term. Eastbroolc v.
Gebhart, 32 O. S. 415. (But see the present section, 5302, and State v.
Hawes, 43 O. S. 16.) But where the error was in the charge of the
court to the jury, it was otherwise. Coleman v. Edwards, 5 O. S. 51.
But see Morgan v. Boyd, 13 O. S. 271. (The distinction is now imma-
terial.)
In order to review a decision on a quetion of homestead, the bill of
exceptions must set forth the evidence. Jackson v. Re-id, 32 O. S. 443.
Refusal to charge in a series of propositions, some of which are not
law, is not error ; so a general exception to such refusal is insufficient.
Western Ins. Co. v. Tobin,. 32 O. S. 77 ; Everett v. Sumner, 32 O. S.
562. (The court should be asked to give each proposition as a separate
charge, and an exception should be taken to the- refusal to give each
charge asked.)
Where a question in chief is asked a witness and is overruled, error
will not lie unless the exception shows what it was proposed to prove
by the answer. Neff v. Cincinnati, 32 O. S. 215 ; Bean v. Green, 33
EXCEPTION'S AND BILLS OF EXCEPTIONS. 537
O. 8. 444; Bolen v. State, 26 O. 6. 371 ; Hamilton v. State, 34 O. S.
82; Powers v. Hazleton, etc., R. Co., 33 O. 8. 429. But this is not
necessary as to a proper question asked and not allowed to be put on
cross-examination of a witness. Bean v. Green, 33 O. S. 444.
Although a bill of exceptions states that it contains all the evidence,
yet if it appears from it that material evidence or documents referred
to thereinare omitted, the judgment will not be reversed on the ground
that the verdict is against the evidence. Armleder v. Lieberman, 33
O. S. 77.
Before a paper purporting to be a bill of exceptions can be regarded
by a reviewing court, upon error, as part of the record, it must appear
from tlie record, outside of such paper, that a bill of exceptions was, in
due time, tendered to, and allowed and signed (and sealed not now
required, section 5302), by the court, and made part of the record ;
and the paper in question must be identified, with reasonable certainty,
as the bill of exceptions which was thus made part of the record. Hill
v. Bassett, 27 O. S. 579. (Documents or papers made part of such bill
should be designated by figures or letters mentioned in the bill of ex-
ceptions, and themselves marked with such figures or letters, with the
indorsement of the style of the case, its number, the court, and the
statement that it is part of the bill of exceptions taken in the case, and
if possible should be attached to the bill of exceptions.)
If a court, after reading a written charge to a jury, add a remark
not in writing, which, as soon as -the jury retires, is excepted to, be-
cause not in writing, and the court recall the jury, and puts the remark
in writing to the charge, reading it to the jury, this will not be error.
Power* v. Railway Co., 33 O. S. 429
There is no authority for taking a oill of exceptions in proceedings
relating to fugitives from justice. Sheldon v. McKn'ujht, 34 O. S. 316.
If the record shows that a bill of exceptions was allowed, signed and
filed as part of the record in pr<>j>er time, it is conclusive, though, in
fact, the same was not done until a subsequent time. Irvine v. Brown,
6 O. 8. 12, 13.
The record need not contain the oath in full taken by the jury. It
is enough that it states that it was duly impaneled and sworn. A'-rr
v. Stab; .,6 O. S. 614.
Where a bill of exceptions was in fact taken and signed during the
term at which the exception was taken, and the entry thereof was not
made upon the journal at that term, the court in which the same was
taken may supply the omission at a subsequent term by an entry nuno
pro titne. Botte v. Da-jton, etc., R. O>., 37 O. S. 147; Mitchell v.
Thompson, 40 O. S. 110.
538 CODE PRACTICE AND PRECEDENTS.
When thirty days after the term is taken to prepare a bill of excep-
tions, and entered upon the journal, and there is no journal entry that
such bill was ever prepared, presented, or allowed, or ordered to be
made part of the record, a reviewing court can not consider a paper
claimed to be such bill of exceptions. Heffner v. Moyst, 40 O. S. 112.
BILLS OF EXCEPTIONS CHALLENGE TO ARRAY OF JURY.
[Form 321. 5175; Su P . t p. 335.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, )
No. .] vs. > Bill of Exceptions.
John Smith et als., Defendants. J
Be it remembered that on the trial of this cause, in which, a trial by
jury was demanded, before the jury were impaneled or sworn, the plaint-
iff [or, defendant, as the c ise may be] challenged the array of said jury for
the following reasons, and upon the grounds following, to wit: \_Here state
the grounds of such challenge.^
And the court, after hearing the evidence and being fully advised in
the premises, doth find said alleged grounds ot challenge to be true in
fact, but adjudges that the same are not sufficient in law to sustain said
challenge, and doth overrule the same, to which said plaintiff [or, defend-
ant], at the time, excepts; said panel consists of the following named per-
sons: \_Heregive list of the names of tie, jrr*.^\*
*And thereupon the plaintiff [or, defendant] presents this, his bill of
exceptions, and asks the court to allow and sign the same, which is done
accordingly. And said bill of exceptions is fi'.ed as part of the record in
this cause, but is not to be entered at large upon the journal,* this
day of , A. n. 18 . , Judge of said Court.
Note. There must be a journal entry of the fact of the taking of a bill of ex-
ceptions, and of the filing of the same. 8uch facts, if stated only in the bill of
exceptions, are not sufficient to make it such. An exception may, in the samo
manner, be taken by the opposite party, if such challenge is sustained. When
i witness is held to be incompetent, it i-* not necessary to state wh-it \> as otierv:,!
to be proved by him. Wolf v. Pownrr, ?>0 O. 8. 472.
JOURNAL ENTRY.
[Form 322. 5302.]
John Doe 1
No. .] vs. > Allowance, etc., of Bill of Excf| tions.
John Smith et als. J
This day the plaintiff [or, defendant] prepared and presented to the
court his certain bill of exceptions, which the court allowed and signed,
and ordered the samo to be filed with the pleadings as part of the record
herein, but not to be spread upon the journal. Bill of exceptions filed,
EXCEPTIONS AND 1511. LS uF KXCKP'I ! 539
CHALJ.ENGE OF JJJROR FOR CAUSE.
[Form 323. 5176.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, |
No. .] vs. V Bill of Exceptions.
John Smith et als., Defendants.]
Be it remembered that on the trial of this cause, during the impaneling
of the. jury, A. B. was called as a talesman, and was by the defendant [or,
plaintiff] challenged for cause on the ground that he, not being a regular
juror, has served once already as a talesman in the trial of a cause in a
court of record in this county, within the preceding twelve months. And
said A. B. being sworn on the voir dire, testified that he is not a regular
juror; that, in the case of against , pending in [this] court, on
or about the day of , A. D. 18 , he was impaneled and sworn as
a tales juror, and served as such, having heard part of the evidence ad-
duced by the parties on the trial, when the case was compromised by the
parties, and the jury discharged before said cause was fully tried.
And the court doth find said facts to be true, but doth adjudge said
challenge insufficient in law, and doth overrule the same, to which the
defendant [or, plaintiff'] excepts.
[Follow Form 321 from the *, and have journal entry made ax in Form 32]
Note. See Famulenerv. Anderson. 15 (). S. 473, which decides such exception
to be well taken, and cause for the reversal of the judgment.
Should a challenge for cause be overruled, and the challenged juror be then
challenged peremptorily, and the jury made up without the party exhausting;
his peremptory challenges, the error becomes immaterial. Mimms v. State, 16
O. 8. 221; Krwm v. Matt, 29 O. S. 186. (By peremptory challenges parties
have the right of objection merely to jurors They are given no right of
^election. The law selects. In civil cases each party may peremptorily chal-
lenge two jurors, g 5177.)
COMPETENCY OF WITNESS.
[Form 324. t$ W40 :V_>4I. .v_>4-J ; ,W , p. 343.J
< '.>mmon Pleas Court of County. Ohio
John Doe, Plaintiff, )
No. .] vs. > Bill of Exceptions.
John Smith et als., Defendant- I
!'. it remembered that on the trial of this cause, the plaintiff [or, de-
fendant], to maintain the issues on his part, produced and offered as a
witness C. D., to prove the i--ues herein on liis part to be maintained,
whereupon the defendant [or plaintiff] objected to the competency of
said C. D as a witness on the ground that said C. D. [/*w s'ate ih,- ground
<>f the objection"],
Andthe court doth find the facts upon which *aid Abjection is ba-u-d to
bo true, and adjudges said C D. to he an incompetent witness in behalf
of the plaintiff ^9T defendant] and refused to permit Irm > b, evnnin>d
540 CODE PRACTICE AND PRECEDENTS.
or to testify as a witness herein, to which the plaintiff [or, defendant}
excepts.
[Conclude as in Form 321,/rftm the *, and follow Form 322.]
Note. Only persons of unsound mind and children under ten years of age
who appear incapable, etc., are incompetent witnesses by the provisions of sec-
tion 5240; and, as to them, it is difficult to perceive how a reviewing court can
determine that the trial judge erred in excluding or admitting them. Under
the following two sections certain witnesses are incompetent to testify only in
certain respects. Under section 5242, Sup., parties are incompetent to testify
against specified adverse parties, except as to enumerated classes of matters.
If the party is aware of the ground of objection, he should make it before
the witness is examined in chief. He has his election to admit an interested
party to testify against him or not, and he can not avail himself of the evidence
if it makes for him, and object to it when'he finds that it does not. 1 Greenl.
Ev., sections 421, 422.
[Form 325. 5241, 5242; Sup., p. 343.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, ]
No. .] vs. > Bill of Exceptions.
John Smith et als., Defendants, j
Be it remembered that on the trial of this cause, the plaintiff [or, de-
fendant], to maintain the issues on his part, produced as a witness, Joseph
Chitty, who, after being duly sworn as such witness, was asked by the plaint-
iff the following question : [Here set forth the question asked.~\ To which ques-
tion, and the competency of said witness to answer the same, the defend-
ant objected on the ground that [it called for an answer concerning a
communication made to the witness by his client (John Smith) in that re-
lation]. And the said Joseph Chitty then testified to the court that the
communication called for by the question 'put to him [not stating what it
was} was made to him under the following circumstances, as follows :
[Here set forth the circumstances and facts as to how the communication came to be
made, etc., 'without stating what it was.~\ And the same being all the testi-
mony offered to the court upon the matter of said objection, the court doth
find that the evidence called for by said question is a communication be-
tween attorney and client in that relation, and doth sustain the objection
to said question, and adjudge that said witness is incompetent to testify
concerning the same; and the said witness is not permitted to answer said
question, to which the plaintiff excepts.
\Gonclude as in Form 321, and follow Form 322.]
EXCEl'TI'iXS AND BILLS OF KXCKP'M 541
COMPETENCY OP HUSBAND OR WIFE.
[Form 326. 5241.]
Common Pleas Court of County, Ohio.
Jonn Doe. Plaintiff. ]
No. .] vs. \ Bill of Exceptions.
John Smith et als , Defendants, j
Be it remembered that, on the trial of this cause, the plaintiff, to main-
tain the issues on his part, produced as a witness his wife, Mary Doe, who,
after being duly sworn, was asked by the plaintiff the following question.
to wit: [Here state the question.] To which the defendant objected for the
reason that the same called for a communication between husband and
wife not shown to have been made in the known presence of a third
person competent to be a witness; and thereupon, on her voirdirc, the said
Mary Doe testified that the communication called for by said question
occurred between herself and her said husband, the plaintiff, in the pres-
ence and hearing of one E. F., a person of full age and of sound mind,
who heard all of the same; and this being all the evidence adduced to the
court touching the competency of said witness to testify to the matter
called for by said question, the court doth sustain said objection and re--
fuses to allow the witness to answer said question, to which the defendant
except*.
[Cunclude us in Form 321, and follow Form 322.]
Jfote. A husband or wffe called to testify to such communication or act is
competent to testify as to the known presence, etc., of such third person. Me-
Cogue v. Milltr, 36 O. S. 593.
EXCEPTIONS TO THE REJECTION OR ADMISSION OF EVIDENCE.
Testimony may be irrelevant to the issues made by the pleadings to
be maintained by the party in the trial of the cause, or incompetent as
evidence to establish them. If relevant or competent for any purpose,
it must be admitted, though not admissible for any other purpose, and
in the charge to the jury the court may instruct the jury as to what
only it is applicable.
The distinction between evidence in chief and in rebuttal is not here
referred to, as that relates to the order of the introduction of testi-
mony. When the issues made by the pleadings are comprehended the
competency of evidence to support or disprove them is to be deter-
mined by its subject-matter. Relevancy may depend ujwn considera-
tions not apparent from the pleadings. When this is the case, it is
requisite that the counsel offering the evidence should state to the
court fpr what he claims it to be relevant; and the ruling and ex-
ception taken by either party will be limited to the matters so stated.
Evidence is sometimes not competent until testimony is given tending
542 CODE PRACTICE AND PRECEDENTS.
to prove certain precedent facts, as where the declaration of one al-
leged conspirator, iu furtherance of the common object, is offered as
evidence against another, there must be some evidence tending to
prove a conspiracy to which they were at the time parties so as to
constitute one the agent of the other.
Of course, after the object for which a conspiracy was formed has
been accomplished and fully completed, the agency of one conspirator
for others is at an end, and the statements of one can not afiect another.
Another example is admissions or confessions of a party; there must
be some evidence tending to prove the existence of the fact concerning
which the admission or confession is made ; thus, if a person should
admit that he converted to his own use the horse of another, there
must be some evidence tending to prove that such other had been pos-
sessed of a horse of which he was, at the time, not in possession. If
one should confess to the murder and robbery of a person, to render
evidence of such confession competent, there should be evid:nce
of the fact of the -death of such person, etc. of the corpus delicti.
Courts should require evidence tending to prove such foundational
fact before evidence of the party's admissions of his relations to it
are permitted to be given in evidence; for, though testimony be
ruled out and the jury instructed to disregard it, and they endeavor
to do so, it is thereby definitely fixed in the mind, which can no more
free itself from it than from any other fresh thought or mental im-
pression.
Outside "f such rules of safety to the rights and interests of the par-
ties, the arrangement and presentation of evidence, under the sound
and experienced discretion of the court, must be left largely to the
party adducing it. Every fact upon a given matter can not be proved
by a single witness. The links in the chain of testimony may have to
be made out of the statements of several witnesses, who can not all
be examined at once, or one dismissed at a certain stage, and another
called, and then the first recalled, and this repeated perhaps with
several witnesses, before the examination by such party of the first is
concluded. This would be productive of confusion and prevent the
proper trial of the cause. In such cases, it is sufficient for the coun-
sel to state to the court, professionally, that he will offer and expects
to prove otherwise than by the witness such necessary connecting es-
sential facts ; and until such testimony, tending to prove such facts is
adduced, the evidence will be permitted subject to exception, and if
not afterward properly connected ruled out. The court should strictly
enforce this requirement to insure good faith in attorneys, and pre-
vent improper considerations from influencing the minds of the jurors.
EXCEPTIONS AND Bl'LLS OF EXCEPTIONS. 543
The subject is well illustrated by the case of Summons v. State, 5 O.
S. 325, where it is held that what a deceased wituess testified to on a
previous trial of the case may be proved as evidence, if all that such
-i'd witless testified to, in substance", both in chief and upon cross-
examination, is proved to the jury, but that it is not necessary that a
single witness should undertake to detail the whole of it; a part may
be proved by one, and other parts by other witnesses, so that in some
competent manner the whole is proven, substantially; and if that be
not done, it must be entirely disregarded by the jury; or, if not of-
fered to be proved, the whole will be incompetent to go to the jury.
If :i witness on the voir dire swears to the court that he recollects all
of the deceased witness' testimony on such former trial, and under-
takes to testify to it, and it be developed in the course of his examina-
tion that he has probably forgotten some parts thereof, the jury will
disregard all his testimony if they are not satisfied that he has detailed,
substantially, all of such evidence, or all of such part as he undertook
to give.
[Form 327. 5299.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, |
No. ] vs. V Bill of Exceptions.
John Smith et als., Defendants, j
Be it remembered that on the trial of this cause, the plaintiff, to main-
tain the issues on his part, produced and caused to be sworn and exam-
ined as a witness in chief [or, rebuttal] one , whom he asked the fol-
lowing question:-. [Here state the question. \ To which question the defend-
ant objected, whereupon the plaintiff offered to prove bv said witness*
answer to said question, if he should be permitted to answer the same,
the following fact: [Here state the substance of the expected answer.~\ [//" the
'lity of the answer be not apparent : And also claimed that said answer
i.s material and relevant on the following grounds stating them."]
Whereupon the court sustained said objection to said question and re-
fused to permit said witness to answer the same, to which the plaintiff,
at the time, excepted. [If the objection be overruled and the answer permitted,
the other party excepting will state the question, his objection thereto, and give the
answer </ the witness to the same, with his exception to the admission of such
answer. ]
[Conclude as in Form 321, and follow Form 322.]
544 CODE PRACTICE AND PRECEDENTS.
EXCEPTIONS TO OVERRULING MOTION TO RULE OUT TESTIMONY
ADMITTED SUBJECT TO EXCEPTION.
[Form 328. 5299.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff. ]
No. .] vs. > Bill of Exceptions.
John Smith et als., Defendants. )
Be it remembered that on the trial of this cause, the plaintiff, to main*
tain the issues on his part, introduced as a witness , who testified in
chief [or, rebuttal ; and if in rebuttal, it should be stated that " the defendant
having adduced evidence tending to prove ' state what such evidence was],
as follows: [Here give the testimony in substance.] Which testimony was
permitted to go to the jurv [or, "to the court, ' if the trial is by the court],
subject to the exception of the defendant, to be ruled upon at the close
of the testimony in the case, before argument to the jury [or, at the close
of the party's testimony, if such be the understanding between court and counsel.]
And also the paper writing [or, document, naming and describing it so as to
fix its identity], which is hereto attached and made part of this bill of ex-
ceptions, marked Exhibit "A" [or, " 1," etc.], subject to the same exception
by the defendant. And, before the commencement of the argument of the
cause to the jury, the defendant, by separate motions, moved the court
to rule out and exclude as evidence each of said several matters intro-
duced in evidence subject to his exception as aforesaid, each and every
of which said motions the court overruled, and permitted each and all
said matters to be received and considered as parts of the evidence ad-
duced at the trial of said cause, to each part, severally, of which rulings
and holdings of the court the defendant, at the time, excepted.
[Conclude as in Form 321, and follow Form 322.]
If such motion be sustained, the above form will sufficiently sug-
gest the bill of exceptions to be taken by the opposing party.
EXCEPTIONS TO CHARGES GIVEN OR REFUSED BY THE COURT.
[Form 329. 5299, 5190; cl. 5, 7.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, )
No. .] vs. \- Bill of Exceptions.
John Smith et als., Defendants, j
Be it remembered that on the trial of this cause, the plaintiff and de-
fendant having each given evidence to the jury tending to prove all the
issues on their respective parts to be maintained, the plaintiff, when the
evidence was concluded, asked the court to give to the jury, as separate
instructions, each of the following charges, to-wit:
[Here give each charge asked, which should be numbered 1, 2, etc.]
EXCEPTION'S AND BILLS OF EXCEPTIONS. 545
And the court refused to give any of said separate charges to the jury,
to which refusals and every of them the plaintiff, at the time, exempted.
And thereupon the court [among other things if only points of the
chanje are desired to be tet forth in the bil(] charged the jury [first, second, ctc.~\
[Here give the pvint* of the charge excepted to.]
To each and every of which said charges of the court the plaintiff, at
the time excepted.
[// the entire charge of the court is set out, specify the particular parts excepted
to or they will le waived for all pm poses, except when all the evidence is stated'
and the rvurt of ejror is asked to determine whether or not, in view of such evi-
dence, the charge was misleading."}
[Conclude as in Form 321, and follow Form 322.]
BILL OF EXCEPTIONS EMBODYING ALL THE EVIDENCE TAKEN ON
OVERRULING A MOTION FOR A NEW TRIAL.
A motion for a new trial is to be filed within three days from the
rendition of the verdict of the jury or the finding of facts and con-
clusions of law, or judgment rendered by the court, when the trial is
by the court. 5307. See forms under head of MOTION FOR
NEW TRIAL FILED DURING THE TERM. For PROCEEDINGS TO OB-
TAIN* A NEW TRIAL AFTER THE TERM, see sections 5354 (Sup., p.
349) and 5355-5365. .
A motion for a new trial may be continued from term to term, and
for this reason the motion should allege, as a ground for granting it,
" for errors of the court occurring during the trial, and to which the
plaintiff (or, defendant, , the party taki.uj the exceptions), at the time,
excepted." This will bring before the court, when such motion is
heard, at or after the term, all such matters as were so excepted to by
the parly at the trial term, they being made a ground of {he motion
for new trial. A party has the right to prepare and have signed by
the court a bill of exceptions, as to every exception taken, " before the
case proceeds " further (section 5302); but, for convenience, it is usual
to postpone the taking of such bill of exceptions until after the con-
clusion of the trial, for if such party is successful he will need none.
And now, by section 5302, where the party excepting consents, the
bill of exceptions may be taken ntinc pro tune, the minutes of the
term being kept open for such purpose, within thirty days from the rising
of the term. There should be an entry on the journal evidencing such
consent. Moore v. Brown, 10 O. 201 ; State v. Homes, 43 O. S. 16.
And if a motion for a new trial be filed in time, and one of the
grounds alleged therefor is, "/or errors of the court occurring during the
trial and to which the party at the time excepted" and such motion shall
35
546 CODE PRACTICE AXD PRECEDENTS.
not be heard until a subsequent term of the court, all exceptions can
be availed of by the party by bill of exceptions taken, with his con-
sent, within thirty days from the close of the term at which the motion
for a new trial is overruled.
In practice, it is advisable to prepare bills of exceptions as soon as
possible, though not before the case proceeds further, while all the
matters connected with the trial are fresh in the minds of the counsel
and the court. If not, the substance of the various exceptions should
be settled at the time, and proper minutes made of them, as the set-
tling upon a true bill of exceptions at a future time is frequently the
subject of vexatious differences, and many of them may be lost to the
party.
See MOTION FOR NEW TRIAL.
[Form 330. 5305, cl. 6; 5301.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, |
No. .] r*. > Bill of Exceptions.
John Smith et als., Defendants. )
Be it remembered that on the trial of this case, the plaintiff [the party
having the affirmative and opening and closing of the case], to maintain the is
sues on his part to be maintained, introduced as a witness A. B., who
testified to the jury and court as follows: [Here give tie testimony in full.']
And also C. D., who testified to the jury as follows : [Here give the testimony
in full, andjol'ow ivith all the witnesses and all the testimony they gave to the jury.]
And also the following [paper writing'], which is hereto attached and made
part hereof, marked ["A." etc., or "!,"/<?.]. And thereupon rested his
case. Whereupon the defendant, to maintain the issues on his part to be
maintained, introduced as a witness E. F., who testified to the jury and
court as follows: [Here state the testimony in full. If writings, documents, etc.,
be introduced, attach and designate tltcm as shown above], and rested his case.
[If rebutting testimony is introduced, set it forth in the same way.~\ And the fore-
going being all the evidence adduced at the trial by the parties, the jury
rendered their vei'dict in favor of the defendant, that [here give the sub-
stance of the verdict or finding and judjmcnt of thecourt if the trial was to the court].
[If lie testimony was taken by a stenographer in full, give the names of the wit-
nesses, and say: who testified respectively, as contained in the report of
their testimony hereto attached and make part hereof, marked "A."] [In
the same manner the evidence (f the adverse party will be given and referred to.
Writings and documents will be designated as shown above and the bill must slow
that all the testimony given on the trial is embraced in it, as above indicated ] A ml
be it further remembered that on the trial of this case [here state any aiid
all exceptions taken during the trial, as given in the preceding forms, if no such bill
was taken. All exceptions maybe embraced under this form, if not otherwise taken
by bul of exceptions.]
EXCEPTIONS AND BILLS OF EXCEPTIONS. 547
Whereupon the plaintiff duly filed his motion for a new trinl, whhh is
part of the record herein, for the reasons and upon the grounds therein
stated
And tin-* <l:iy said motion for a new trial came on to be heard by the
court and was argued by c- nnsel ; on consideration whereof the court over
ruled tho same, to which the plaint ill' except* ; nnd thereupon the court
rendered the following judgment: \J(cre give its subrtance], to which the
plaintiff excepis; nnd thereupon the plaintiff consented to the allowance
:md signing of his bill of exceptions in this cause within thirty days after
the term, A. n. 18 , of said court; and now presents this, his bill of
exceptions, nnd prays that it be allowed signed and filed as part of the
record of this cause, but not spread at large, upon the minutes, according
to the statute in such case made and provided, all of which is accordingly
done as of said term. This day of , A. n. 18 .
, Judge of said Court
JOURNAL ENTRY.
[Form 331. g 5302.]
John Doe }
Ko. .] vt. > Entry as to Bill of Exceptions.
John Smith et als. j
In this case, ns to all tha exceptions taken by the plaintiff in this cause,
he having consented in open court thereto, thirty days after the close of
tin present term is granted him to prepare, present and have allowed,
signed nnd filed his bill of exceptions herein, as of the present term, for
which purpose the journal of the present term is to be kept open.
Note. The above entry may bo attached to and form part, of the judgment
entry. Tho entry of the overruling of a motion for a new trinl H usually em-
bruced in the judgment entry. When the bill of exceptions is allowed and
signed, il must bo filed and a journal entry made of the ame. (Form 322.)
The foregoing forms arc intended merely t.) illustrate the method
of preparing bills of exceptions. Skill and readiness in this part of
the practice are of the greatest utility; for they give the ability to
save nnd remedy, in a reviewing court, every substantial right of a
party of which he ha? been deprived by errors committed by the trial
court. Error will lie on the ground that the verdict and judgment
arc against the weight of the evidence iu every court of error except
the Supreme Court. 5301, 0710.
Section 5301 authorizes an "exception to the opinion of the court
on a motion to direct a nonsuit." By "nonsuit," under the Code, is
meant an instruction to the jury to render a verdict f>r tho defendant,
the judgment rendered by the court upou which will be final between
the paVties. A judgment upon a " nonsuit," iu the common -law sense
of the terra, is not a final judgment barring the right of the party to
548 CODE PRACTICE AND PRECEDENTS.
sue again for the same matter. It is without prejudice to a new ac-
tion. In many states, and in the federal courts, the jury will be
instructed to render a verdict for a party upon the evidence ad-
duced by him, if the court would grant a new trial were a verdict ren-
dered in his favor. It is otherwise in Ohio. Where, taking as true
every fact the party's evidence tends in any degree to prove, and every
inference or conclusion that fairly may be drawn from such evidence as
tending to prove such facts, the legal effect thereof being to establish no
right of recovery in such party, the court will be authorized to iustruct
the jury to render a verdict against such party; otherwise the evidence
must be weighed by the jury, though the court would set aside their
verdict if rendered for such party. This will still leave him in court,
and he may, if it exists, produce further evidence on a new trial.
If such a motion be granted, the party prejudiced thereby may em-
body all the evidence in a bill of exceptions, with or without other
exceptions taken at the trial, and review the judgment rendered on
error, as to whether the evidence tended to prove all the i3sues the
party was required to establish.
If the motion be overruled and exception taken, and the party mov-
ing introduces his evidence, it would seem to be a waiver, unless all
such testimony be set forth in the bill of exceptions, from which, with
the evidence objected to, it is apparent that the party's rights were
prejudiced by the refusal to grant such motion. If, upon the whole
of the evidence adduced by both parties, substantial justice has been
done, the judgment ought not to be disturbed. No party can take a
valid exception to any thing which was in, his favor.
MOTION FOR NEW TUIAL FILED DURING TUB TRIAL TERM. 549
CHAPTER XXXI.
MOTION FOR NEW TRIAL FILED DURING THE TRIAL TERM.
For what causes a new tried may be granted. SEC. 5305. A new trial
is a re-examination, in the same court, of an issue of fact, after a ver-
dict by a jury, a report of a referee or master, or a decision by the
court ; and the former verdict, report, or decision, shall be vacated,
and a new trial granted, on the application of the party aggrieved,
for any of the following causes affecting materially the substantial
rights of such party :
1. Irregularity in the proceedings of the court, jury, referee, master,
or prevailing party, or any order of the court or referee, or abuse of
discretion, by which the party was prevented from having a fair trial.
2. Misconduct of the jury or prevailing party.
3. Accident or surprise, which ordinary prudence could not have
guarded against.
4. Excessive damages, appearing to have been given under the in-
fluence of passion or prejudice.
5. Error in the assessment of the amount of recovery, whether
too large, or too small, when the action is upon a contract, or for the
injury or detention of property.
6. That the verdict, report, or decision is not sustained by sufficient
evidence, or is contrary to law.
7. Newly discovered evidence, material for the party applying,
which he could not, with reasonable dilligeuce, have discovered, and
produced at the trial.
8. Error of law occurring at the trial, and cxcepted to by the party
making the application.
(a) A payment made after the issuance of an execution, to prevent
a levy upon or a sale of the property of the defendant in execution, is
not such'a voluntary payment as will preclude the party paying from
setting aside the judgment for irregularity. Knox Co. Bank v. Doty, i)
O. S. 505.
2. The separation of a juror from his fellows after final submission,
in a criminal case, for the purpose of obtaining and drinking intoxi-
cating Jiquors, where not explained or shown to be excu.-alilc, will en-
title the prisoner to a new trial. IVeis v. State, 22 O. S. 486.
550 CODE PRACTICE AND PRECEDENTS.
The mere fact that a juror in a civil case drank intoxicating liquor
during an adjournment of the court while the trial was in progress is
not a sufficient reason for granting a new trial, unless there be reason
to suspect it may have had some influence on the final result of the
case. Pitts., C. & St. L. E. Co. v. Porter, 32 O. S. 328.
In a civil case, the misbehavior of jurors which would render it nec-
essary to disturb the verdict, should be of such a character as to evince
bad intention ; and if they separate after agreeing upon a verdict,
without leave, it is no ground for a new trial. Wright v. Burchfield, o
O. 53.
A separation of the jurors, after the jury has retired to the jury-
room to consider of the verdict, induced by a sudden alarm of fire
in the near vicinity of the jury room, is not, of itself, such misconduct
as will vitiate the verdict made on reassembling. Armleder v. Lieber-
man, 33 O. S. 77.
It is no cause for setting aside a verdict, that when agreed upon it
is written and sealed, and the jury separate, if afterward they come
into court and report the sealed verdict. But if, after having agreed
and put their verdict under seal, they separate, and subsequently meet
and change such verdict, it could not, with propriety, lay the founda-
tion of a judgment. Such conduct would constitute that degree of
misbehavior for which a verdict ought to be set aside. Suttiffv. Gil-
bert, 8 O. 405, 408.
When it appears that a fair trial, by an impartial jury, has been
prevented by any fraud or imposition, that was unknown to the party
injured thereby, and that could not have been prevented by proper
vigilance on his part, the court will set aside the verdict and grant a
new trial. Hayward v. Calhoun, 2 O. S. 164.
Conversations by the jury with others after their retirement, in re-
gard to any subject of their deliberations, before verdict, is, in a case
of the least doubt, good cause for setting aside their verdict. Farrer
v. State, 2 O. S. 54.
Where the jury, in a criminal case, without knowledge of the couft
or prisoner, obtained part of the charge of the court, as printed in a
newspaper, and used the same to guide their deliberations, tKough the
charge thus published was accurate, the verdict was set aside. Ib.
Improper and officious interference of the officer in charge of a jury
is not a ground for a new trial, unless such conduct led to misbehavior
on the part of the jury. Hulet v. Barnett, 10 O. 459.
A new trial will not be granted because a paper containing a com-
putation of interest by the plaintiff went to the jury with the papers,
MOTION FOR NEW TRIAL FILED DURING THE TRIAL TERM. 551
when it docs nnt appear by whom it was given to the jury, and where
no fraudulent intent is shown. Tracy v. Card, 2 O. S. -j:;i.
If a juror n- 1 having the qualifications of an elector is retained
upon the panel, without the knowledge of the party or his counsel,
and af;er reasonable diligence used to ascertain the fact when the jury
is impaneled, a new trial will lie granted. Eastman v. Wright, 4 O.
8. 156.
imony of the jurors themselves will not be received to impeach the
verdict by showing misconduct or misbehavior on the part of the jury.
Hidet v. Barndl, 10 O. 459. (But such testimony is admissible to
sustain the verdict.)
Affidavits of jurors, stating that they misunderstood the charge of the
court, will not be received on motion to set aside the verdict. Holman
v. Riddle, 8 O. S. 384.
Surprise to a party, arising from the unexpected statements of a wit-
ness, who had been twice before examined in the case without disclos-
ing the facts to which he now testifies, does not lay a sufficient ground
fora new trial, when the verdict is justified by the other evidence in
the case, and substantial justice is done. Stites v. McKibben, 2 O. 8.
588 If this ground is ever sufficient, it can only be when such new
malter constitutes the turning point in the case, and without which the
party moving would be entitled to the verdict. Ib.
A motion for new trial, that counsel were led by a misapprehension
<>f the law to abstain from offering evidence pertinent to the issues
made therein, is addressed to the sound discretion of the court, under
all the circumstances of the case ; and its action thereon is not subject
to review upon error. Ferguson v. Gilbert, 16 O. 8. 88.
A party in whose favor an excessive amount is found may remit the
excess, and the motion for a new trial on that ground will be over-
ruled. Durrell v. Boyd, 9 O. 8. 72 ; Averill Coal, etc., Co. v. Verner,
22 O. S. 372; Fendleton, etc., R. Co. v. Rahman, 22 O. 8. 446; Doo-
litlle v. Clutmberlain, 1 O. S. 299; Lear v. McMWen, 17 O. S 464;
Doty v. Rigour, 9 O. 8. 526.
I:i an action of slander, the verdict should not be set aside, unless
the amount of damages is so flagrantly outrageous and extravagant ns
to show that the jury acted corruptly, or under the influence of pas-
sion, partiality, or prejudice. Simpson v. Pitman, 13 O. 365. (In
this case a verdict for 8850 was set aside. The slander was charging
the plaintiff, n candidate for sheriff, with shce;> stealing. He was
elected t > the office by a large majority. This is given as an instance
of the application of the rule.) Nor, in a libel case, unless the dam-
ages arc so gross as to convince the court that the jury acted from
552 corr PRACTICE AND PRECEDENTS.
corruption, mistake, undue bias, or some improper influence. Fisher
v. Patterson, 14O. 418.
The verdict, in an action for injuries sustained by a wife, under sec-
tion 7 of the act of 1854 (52 v. 153), should not be set aside on
ground that the damages are excessive, unless the court is satisfied
that the jury abused its discretion. Schneider v. Hosier, 21 O. S. 98.
A corporation, by the malicious conduct of its agents or servants
acting within the scopo of their employment, may render itself liable
to exemplary or punitive damages ; but this doctrine is capable of
great practical abuse, and where a verdict, in such case, is obviously
exorbitant, it should be set aside, and a new trial awarded. Pitts.,
Ft. W. & G. R. Co. v. Slusser, 19 O. S. 157.
If the action involve several issues, and the finding is in favor of
one of the parties upon all, when it should only have been in his favor
upon one issue, which would render the judgment different from what
it ought to be, the verdict should be set aside. Union Cent. Ins. Co.
v. Sutphin, 35 O. S. 360.
A mere difference of opinion between the court and jury does not
warrant the former in setting aside the finding of the latter. That
would be, in effect, to abolish the institution of juries, and substitute
the co.urt to try all questions of fact. It must be clear that the jury
has erred before a new trial will be granted on the ground that tho
verdict is against the weight of the evidence, or unsupported by it.
McGatrick v. Wason, 4 O. S. 566; French v. Millarcl,2 O. S. 44, 53;
Muhlenburg v. Florence, 5 O. 245; Lewis v. Bank of Kentucky, 12 O.
132, 151; Webb v. Prot. Ins. Co., 6 O. 456; Abematiiy v. Wayne Co.
Br. Bank, 5 O. S. 266.
A new trial is only granted when injustice has been done by tho
verdict, and there is a probability that justice will be done on retrial.
Hintan v. McNeil, 5 O. 09, 513.
A judgment will not be reversed because it is contrary to the evi-
dence, unless it is manifestly so. The court before which the trial was
had and motion made can better judge of the credibility of the wit-
nesses than the reviewing court. Breese v. State, 12 O. S. 146.
Where the ground of the motion for a new trial is that the verdict
is against the evidence, because of its excessive amount, and the
amount does not necessarily imply the influence of passion or prejudice
in the finding of the issue, on a remittitur of such excessive amount,
it is not error t:> overrule the motion. Douglas v. Day, 28 O. S. 175.
If, upon a motion for a new trial based on the ground that the find-
ings of the court were against the evidence, and all the evidence bo
set forth in the motion for a new trial, and the court erred in applying
MOTION FOll NEW TRIAL FILED DURING TUB TRIAL TERM.
the law to those facts about which there was no material conflict in
the evidence, the reviewing court will grant a new trial. Yeoman v.
Las!c>j, 40 O. 8. 339. And render sue!) judgment as the court below
should have rendered. J6. But see Emrry v. Irving Airf. Bank, 25
O. 8. 3GO; Miller v. Sullivan, 26 O. 8. C30 ; which hold that after re-
versal upon the evidence (not fiudiug of the facts) contained in the bill
of exceptions, the cause should be remanded for a new trial that to
render judgment upon such evidence is error.
The evidence contained in the bill of exceptions is taken only for the
purpose of determining whether there was error, not for the reviewing
court t3 try the cause upon its merits, which would often deprive the
parties of the right to a jury trial. Kirk v. Movnry, 24 O. S. 581.
When the motion is made on the ground of newly discovered evi-
dence, it must be disclosed, and the inquiry will then be whether the
legitimate effect of such evidence would be to require a different ver-
dict. Ludlow v. Park, 4 O. 5.
A new trial should not be granted on the ground of newly discov-
ered evidence, unless the legitimate effect of sucli evidence, when con-
strued i:i connection with that produced on the trial, ought to have
resulted in a different verdict or finding. Railroad Co. v. Long, 24 O.
8. 133.
A new trial will not be granted to give a party the opportunity of
introducing cumulative testimony merely, or to give him the opportunity
of unpeopling the witnesses of his adversary. Reed v. McGrew, 5 O.
375; Perrin v. Prof. Ins. Co., 11 O. 147.
Tiic refusal of the Common Pleas to grant a new trial on the ground
of newly discovered evidence, which was merely cumulative, is not
ground for reversal of the judgment of that court for error. Loeffner
v. State, 10 O. 8. 598.
If a motion is made for a new trial on the ground of newly discov-
ered evidence, and continued from term to term, it may be amended
after the term at which it was made by including evidence newly dis-
covered after its tiling; and, in a proper case, it is error not to permit
this to bo done. Moore v. Coates, 35 O. 8. -177.
(In all cases, the party filing the motion must have used due dili-
gence, and if the failure to discover such evidence was occasioned by
his negligence, the motion will be denied.) 5307.
A court is not authorized to grant a new trial for the cause of error
of law occurring at the trial, unless the decision of the court upon the
matter, of law was excepted to by the party making the application at
the time the decision was made. Kline v. Wynne, 10 O. 8. 223. (The
554 CODE PRACTICE AND PRECEDENTS.
bill of exceptions should always show that such exception was made
at the time of the ruling of the court.)
The refusal of a new trial, where no reasons for the new trial are al-
leged in the motion therefor, can not be assigned fur error. Westfatt
v. Dungan, 14 O. S. 276 ; Hoffman v. Gordon, 15 O. S. 211.
Where substantial justice is done by a verdict, a new trial will not
be granted on technical grounds or to let in a mere technical defense.
Buck v. Waddle, 1 O. 357 ; Bush v. CritchfieU, 5 O. 109. (But errors
of law on the part of the court, which may have influenced the re-
sult, are never technical, or immaterial.)
Where, from the whole record, the court is of opinion that the di-
rection of the judge who tried the cause, though in terms correct,
might still have been misunderstood by the jury, a new trial should
be awarded. White v. TJiomas, 12 O. S. 312.
If the court in its charge err as to the law, and it could have made
no difference in the final decision of the case, it is not sufficient ground
to grant a new trial. Courcier v. Graham, 1 O. 330, 349; Reed v. Mc-
Grew, 5 O. S. 375, 385.
A new trial will not be granted because the court gave a wrong rea-
son for rightly rejecting testimony. Lnidlow v. Park, 4 O. 5.
If the ground of the motion is that improper testimony was ad-
mitted, such fact must be made distinctly to appear, or the verdict will
not bo disturbed. Heighway v. Pendleton, 15 O. 735.
As a general rule, when competent evidence has been rejected, which
would conduce to prove the issue, a new trial will be granted. Hart v.
Johnson, G O. 87.
Where the trial is by the court, and the bill of exceptions contains
all the evidence, and there was other testimony sufficient to establish
the same facts, and the exclusion of the testimony could not have af-
fected the result, the admission of the testimony, as to such facts, of
an incompetent witness, will not constitute sufficient ground to reverse
the judgment. Kilbourn v. Fury, 28 O. 8. 162.
Where improper evidence is admitted, and of that character which
might have influenced the* jury, a new trial will be granted. Black-
burn v. Blackburn, 8 O. 81, 84.
A new trial will not ba granted because improper evidence was ad-
mitted, where it was merely cumulative, and when the jury must have
found the fact as they did without it. Allen v. Parish, 3 O. 107.
The ground, set forth in the motion, that the verdict was against the
evidence, does not embrace the point that the court erred in the ad-
mission of evidence. Remimjton v. Hamnyton, 8 O. 507.
MOTION FOH NEW TRIAL FILED DURING THE TRIAL TERM. 555
(A party can never object to any thing which was in his own
favor.)
See notes to sections 5190 and 6707.
When new trial will not be granted. SEC. 5306. A new trial shall not
be granted on account of the smallness of the damages, in an action
for an injury to the person or reputation, nor in any other action where
the damages equal the actual pecuniary injury sustained.
Wlien application must be made. SEC. 5307. The application for a
new trial must be made at the term the verdict, report, or decision is
rendered ; and, except for the cause of newly discovered evidence,
material for the party applying, which he could not with reasonable
diligence have discovered, and produced at the trial, shall be made
within tliree days after the verdict or decision is rendered, unless such
party is unavoidably prevented from filing the same within such
time.
N"te. It is usual not to render judgment upon n verdict, or report of a
n-lTi?o or master commissioner or decision of tho court, until three days after
it* rendition and filing have expired. If this bo done, tho motion, if filed in
time, will bo to set aside tho judgment and fora new trial for the reasons stated
therein Tho "decision 1 ' mentioned in this ftction is not tho oral opinion of
the court, but its written findings and conclusions in accordance therewith filed
in lh'- cause. Such verdict rendered or decision made within three days of tho
close of tho term will not permit the party his statutory right during tlio term.
And it is usual t>> render judgment in such cases before the closo of tho term.
It is therefore, advisable to file tho motion for a new trial al such term before
tho entry of tho judgment, and, if there U hot time to dctcrmino it, t!io caso
will be continued to tho next term for hearing and judgment. IVrhap.*, tho
motion will be authorised, if filed within tho threo <lay, though the term has ex-
pired; but. if judgment bo entered, an execution may issue upon it notwith-
standing tin- motion, at the ri-k of tho party issuing it.
(a) Where the record shows that judgment was entered on ft ver-
dict, and before a motion to set aside the verdict was made, and it not
ppeuiug that the motion was made within three days after verdict,
it is not error in the court not to notice the motion. Mark-ward v. Doriat,
21 O. S. 637.
lino made. SEC. 5308. (Sup., p. 345.) The application must be
made by motion, upon written grounds, filed at the time <>f making the
motion; the causes enumerated in subdivisions tw>, three, and seven,
of section 5305 r must be sustained by affidavits or depositions, *h<tning
their, truth, and may be controverted by affidavits or dep:>sitions, and
for this purpose depositions may tu&j be takuu iu the county where the
action is pending.
556 CODE PRACTICE AND PRECEDENTS.
Note. Subdivision 2 is "Misconduct," etc.; 3, "Accident," etc., and 7, newly
discovered evidence.
For proceedings to obtain a new trial after the judgment term, see
sections 5309, 5354-5365.
[Form 332. 5305.]
Common Pleas Court of County, Ohio.
John Doc, Plaintiff, )
No .] vs. \ Motion for New Trial.
John Smith et als., Defendants. )
The plaintiff moves the court to set aside the verdict of the jury [and
judgment, if one has been, tendered} herein, for the following reasons : \_Hcre
state as many statutory f/rounds as are deemed requisite, as]
1. For the following irregularities : [Here specify them with sufficient gen-
eral certainly.']
2. For misconduct of [the jury, or prevailing party] in this, to wit:
[Here state the same.'}
3. On account of the following accident [or, surprise], ordinary prudence
could not have guarded against : \_IIae state it.'}
4. On account of excessive damages, awarded under the influence of
passion and prejudice.
5. For manifest error in the assessment of the amount of the recovery,
the same heing too large [or, too small, when the prevailing party fiLs the mo-
tion.]
6. The verdict is not sustained by sufficient evidence, and is contrary to
iaw.
7. For newly discovered evidence, material to the plaintiff's cause,
which could not have been discovered with reasonable diligence and pro-
duced at the trial. Such evidence is, in substance, as follows: [Here
state it.~\
8. For the several errrors of law occurring at the trial, and to the com-
mission of each an'l every of which the plaintiff, at the time, excepted.
9. And for other manifest errors apparent upon the face of the record.
EDWARD COKE, Attorney for the Plaintiff.
Note. No?. 2, 3, and 7 must be established by affidavits or depositions.
Since tho enactment of the present section 5302, and the construction given
it by the Supreme Court in Sl<ite\. Hawcs, 43 O. S. 16, it is important to em-
body clause 8 in the motion, as that will enable thfc party to save errors occur-
ring at tho trial by bill of exceptions, if the motion is continued t^, and not dis-
posed of, until :v subsequent term. The forms of affidavits and tho requisites of
depositions in other cases will serve as a sufficient guide in proceedings on a
motion for a new trial.
If tho motion bo overruled because of the insufficiency of such evidence, the
remedy will bo by bill of exceptions embodying all such evidence and petition
in error based upon the same.
MOTION FOB NEW TRIAL FILED DURING TUB TRIAL TEEM. 557
If a motion for new trial is granted, it may be upon ucl> terms as to eoeta,
as the court shall prescribe. Courts will rarely reverse an order of the court
granting n now trial, as full justice may bn done upon such retrial; but where
the facts nre undisputed, and the entire question U one of law only, this may
now, as formerly, be done, section 6710 of April 18, 1883,80 v. 170, having been
repealed by section 6710, Sup., p. 383. For the law, teo Dean v. King, 22 O. S.
118; Realty v. Hatcher, 13 O. S. 115; Ide v. CMtrchill, 14 O. S. 872. Such
granting of a new trial, in cases to be determined by matter of law alone, affects
H substantial right of tho party and prevents the proper judgment. 6707.
Railroad Co. v. Sloan, 81 O.S.I.
ENTRY OVERRULING MOTION AND EXCEPTION.
[Form 333.]
John Doe I
No. .] tw. > Overruling Motion for New Trial.
John Smith et nls. j
This day the motion heretofore filed herein by the plaintiff for a new
trial, <-tc., came on to be heard by the court, and the court having heard
[all the evidence adduced by the parties respectively, and] the argu-
ments of counsel, and being fully advised in the premises, do overrule
said motion, to which the plaintiff excepts.
And thereupon, on said [verdict] it is adjudged by the court, [here give
the judgment}. To which the plaintiff excepted, * and presented to tho
court his bill of exceptions, which being found by the court, in nil re-
spects, a true bill of exceptions, is allowed and signed by the court, and
ordered to be filed as part of the record in this cause, but not spread
upon the journal. Bill of exceptions filed.
[If thirty (fa>/s after the term le taken by lite party desiring the Lilt of exception^
after the *, say : A nd thereupon with the consent, given in open court, of tho
plaintiff, thirty days from the close of the present term is granted him to
prepare and have allowed and signed his bill of exceptions herein, as of
the present term; and for such purpose the minutes of this term are to
be kept open.]
Note. The journal entry must show tho taking and filing of tho bill of ex-
ception*. Statements in tbo bill of exceptions itself will not be sufficient to
authorize a court of errors to consider it.
558 CODE PRACTICE AND PRECEDENTS.
CHAPTER XXXII.
MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT,
4ND FOR ARREST OF JUDGMENT, AND UPON SPECIAL VER-
DICT OR FINDINGS.
WJien judgment to be entered against the verdict. SEC. 5328. "When,
upon the statements in the pleadings, one party is entitled by law to
judgment in his favor, judgment shall be so rendered by the court, al-
though a verdict has been found against such party.
Note. This section may not apply to cases like Hoffman v. Gordon, 15 O. S.
212, where parties without objection try causes not put in issue by the pleadings,
and to that extent waive pleadings.
(a) Judgment must be entered for the defendant, notwithstanding
the verdict against him, if the plaintiff's petition does not set forth a
good cause of action. Trimble v. Doty, 16 O. S. 118, 128.
Where the only issue is upon the truth of an immaterial matter, it
is not error to render judgment upon the pleadings, irrespective of the
verdict of the jury. Tootle v. Clifton, 22 O. S. 247.
A judgment non obstante veredicto can only be given for a plaintiff.
The remedy fora d'fendant is to have the judgment arrested. Bucking-
liam v. McOracken, 2 O. S. 287.
A legal cause of action substantially set forth, although so inartifi-
cially stated as to be bad, if specially objected to on demurrer, is suf-
ficient after verdict, and a judgment rendered thereon is good. Nott
v. Johnson, 7 O. S. 270, 274.
WJien court to order proper judgment to be entered on verdict. SEC.
5327. When the verdict is special, or when there is u special finding
on particular questions of fact, or when the case is reserved, the court
shall order what judgment shall be entered.
Kote. No case can now be reserved for decision by one court to another, as
might formerly have been done from the District to the Supremo Court. The
Circuit Court has no such power of reservation. .A judge in special term of
the Superior Court of Cincinnati may reserve a cause, as provided in section
603, to the general term of that court.
When jurors are required, under section 5201, "to find upon particular ques-
tions of fact," the latter finding will control the general verdict, if inconsistent
with it (section 5202), and the court will render judgment accordingly.
MOTION FOB JUDGMENT, ETC.
Tlio common-law practice required n motion for new trial to be filed and dis-
jo-i"l of before the filing and hearing of n motion in arrest of judgment, as the
ItttliT motion was held to admit, in effort, Unit no oljrrtion dehor* the record
existed. It will prove convenient in practice to first file the motion for m-w
trial, and pn-pan- tlio motion in arrest of judgment, und by consent entered of
1 hear both together.
A plaintiff, on the cause of action stated in his petition, or a defendant upon
a counterclaim or cross-petition, can not filo a motion in arrest of judgment, as
he desires n judgment in his favor upon the record. The motion, in um-h cases,
is for judgment non obstantc veretlicto. It is the defendant to Mich pleading
who can move to arrest the judgment. Where tlio general verdict and the find-
ings upon particular questions of fact are inconsistent, the party during judg-
ment according to such findings should move for judgment, though it would
seem the court can act sua spontc.
MOTION IN ARREST OF JUDGMENT
[Form 334. 5328.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, )
No. .] vs. > Motion to Arrest Judgment
John Smith et nls., Defendants, j
And now comes the defendant and moves the court, upon the state-
ments in the pleadings and record herein, to arrest judgment upon the.
verdict herein in favor of the plaintiff, as by the same he is, in law, entitled
to a judgment against the plaintiff.
JOSEPH CUITTT, Attorney for Defendant.
Aote. If overruled the defendant mny except to the overruling and jndg-
incut, making tlio exception part of such entry. No bill of exceptions will bo
necessary, us the matter will appear fully upon tlio record. If granted, tho
plaintiff can except in the same way, and his rights will bo saved without a bill
of exemptions.
ENTRY SUSTAINING MOTION IN ARREST OF JUDGMENT.
[Form 335. 5328.]
John Doe )
No..] v*. V Judgment Arrested and Judgment for Defendant.
John Smith ct als. j
This day this cause came- on to bo heard upon the motion of the defend-
ant to arrest judgment upon the verdict for the plaintiff' herein, and was
argued by counsel. On consideration whereof, and the court being fully
ailvix'd in the premises, said motion is granted. And thereupon it is
adjudged by the court that said defendant go hence without d:iy and
recover of the plaintiff his costs in this behalf expended, taxed at
dollars. To the granting of which motion and the rendition of this judg-
ment, the plaintiff excepts.
560 CODE PRACTICE AND PRECEDENTS.
ENTRY OVERRULING MOTION IN ARREST.
[Form 336. 5328.]
John Doe }
No. .] vs. > Motion in Arrest Overruled Judgment on Verdict.
John Smith et als. j
This day this cause came on to be heard upon the motion of the defend-
ant to arrest judgment upon the verdict herein, and was argued by counsel.
On consideration whereof, and the court being fully advised in the
premises, it is ordered that said motion be and the same is hereby over-
ruled, to which the defendant excepts.
And thereupon, upon said verdict, it is adjudged by the court that \Jiere
enter thejudgmsnt]. To which the defendant excepts.
MOTION FOR JUDGMENT NON OBSTANTE.
[Form 337. 5328.]
Common Pleas Court of County, Ohio.
No _] hn D S riaintiff> ) Motion for Judgment Notwithstanding
John Smith et als., Defendants. j ^ erdict -
And now comes the plaintiff, and upon the statements in the pleadings
herein, moves the court to render judgment in his favor, notwithstanding
the verdict of the jury, as he is by law entitled to judgment in his favor.
EDWARD COKE, Attorney for Plaintiff.
ENTRY GRANTING MOTION FOR JUDGMENT NON OBSTANTE.
[Form 338. 5328.]
John Doe j
No. .] vs. > Judgment Notwithstanding Verdict.
John Smith et als. )
This day the motion heretofore filed herein by the plaintiff for judgment
in his favor upon the pleadings, notwithstanding the verdict, came on to
be heard by the court and was argued by counsel. On consideration
whereof, and the court being fully advised in the pi'emises, said motion is
granted, to which the defendant excepts.
And thereupon, on the pleadings herein, it is adjudged by the court
that \_here give the judjment]. To which the defendant excepts.
Note. No bill of exception is necessary, as the pleadings are part of the
record.
ENTRY OVERRULING MOTION NON OBSTANTE.
[Form 339. 5328.]
^JohnDoe ) Motion for Judgment Nothwithstanding Verdict
John Smith et als. j Overruled-Judgment for Defendant.
This day the motion heretofore filed herein by the plaintiff for judgment
upon the pleadings, notwithstanding the verdict of the jury, came on to
MOTION FOR JUDGMENT, ETC. 561
be heard, and was argued by counsel. On consideration whereof, and the
court being fully advisd in the premises, it is ordered that said motion
be and the same is hereby overruled, to which the plaintiff excepts.
[ Knter judgment fr dsfandint and exception <u in Form 335.]
A bill of exceptions is unnecessary.
MOTION FOR JUDGMENT ACCORDING TO SPECIAL FINDINGS.
[Form 340. g 5327, 5201, 5202.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, ) -M- t - * T j o i p-
v [ Motion for Judgment on Special Finding
* I VS. X f U*
John Smith et aU . Defendants, j
And now cornea the said plaintiff [or, defendant] and moves the court to
render the proper judgment upon the particular findings of the jury upon
questions of fact herein, the same being inconsistent with the general ver-
dict; and he claims that, substantially, the following judgment should be
rendered: f Here state the tame."] , Attorney for .
JUDGMENT ACCORDING TO SPECIAL FINDINGS OF PARTICULAR QUES-
TIONS OF FACT.
[Form 341. 5327.]
John Doe ]
No. .] vs. > Judgment According to Special Findings.
John Smith et als. j
This day this cause came on to be heard by the court upon the motion
heretofore filed herein for judgment in accordance with the special find-
ing of the jury on particular questions of fact submitted to them by the
court, and upon their general verdict herein, and was argued by counsel.
On consideration whereof, and the court being fully advised in the prem-
ises, upon said special findings and general verdict, doth adjudge that
[here give the judgment ordered to be rendered by the court}. To which
excepts.
Note. The verdict and findings are entered upon the journal, and become
part of the record ; therefore no bill of exceptions is necessary to review the judg-
ment of the court.
36
562 CODE PRACTICE AND PRECEDENTS.
CHAPTER XXXIII.
TENDER AND OFFER TO CONFESS JUDGMENT THEIR EFFECT
AS TO JUDGMENT FOR COSTS.
Answer of tender of money before suit. SEC. 5137. If, iu an action on
a contract for the payment of money, the defendant answer and prove
that he did tender payment of the money due on the contract, at any
time before the commencement of the action thereon, and pay to the
clerk, at any time before trial, the money so tendered, the plaintiff
shall not have judgment for more than the money so due and tendered,
without costs, and shall pay the defendant his costs.
Note. The tender should be of the precise sum due. The tender of more in
large bills or pieces of money, and requiring the creditor to make the change,
will not be a sufficient tender. The tender must, be kept good, that is, the cred-
itor may at any time accept it, and if, on his demand, it is not paid, the previous
tender is invalidated; and before the trial, under this section, the debtor must
pay the money to the clerk, so that the creditor can receive it at any time. A
tender stops the running of interest on a debt.
(a) "When a plea is interposed of a tender of the amount due the
plaintiff, made before the commencement of the suit, and issue found
for the defendant, the proper judgment to be rendered is a judgment
in favor of the plaintiff for the amount due, and in favor of the de-
fendant for costs. Fuller v. Pelton, 1'i O. 457.
Where a tender, originally- good, has been kept up by a deposit of
money in court, the party to whom the tender is offered may recover
judgment for the amount thus admitted to be due him ; and the tender
can only affect the question of costs. Huntington v. Zeigler, 2 O.
S. 10.
The plea of tender is not a bar to the action. It only affects costs. Ib.
An offer to pay bank notes is a sufficient tender of performance of a
contract to pay money, when the party to whom the offer is made de-
clared that he would as soon accept bank notes as specie, but that he
would take neither. Wheeler v. Knaggs, 8 O. 169. (If the tender is
in current money, passing at par, but not a legal tender, it will be
good, unless refused on the ground that it is not a legal tender as
national bank notes, gold and silver certificates of the United States.)
And when a debtor tenders a bank check, and the creditor expressly
TENDElt AND OFFER TO CONFESS JUDGMENT, ETC. 563
waives all objection to the medium of payment, and objects only to
the amount, it is a good tender. J''nniu<j* v. M> ndenhatt, 7 O. S.
But it seems that mere silence on tlie part of the creditor as to the
in. ditim of p.iymrnt is not, in such case, conclusive of such waiver.
Ib. (i. e., when the check of the party is tendered.)'
United Sta;os treasury notes are a lawful tender upon contracts
stipulating for tin- payment of money generally, whether made before
or after the date of the law under which the notes were i>.-iu-d. Long-
worth v. MtrluM, 26 O. S. 334; Legal Tender Cases, 12 \Val. 457;
Railroad Co. v. Johnson, 15 Wai. 195, overruling Hepburn v. Griswold,
8 Wai. 603; Legal Tender Cases, 110 U. S. 421.
For tender of performance of conditions, as precedent to the right
to maintain actions for relief, see references to cases in the note to sec-
tion 5137, Revised Statutes, p. 1070.
Plea of tender of article or labor before suit. Sue. 5138. If, in an ac-
tion on a contract for the payment of any article or thing other than
money, or for the performance of any work or labor, the defendant
answer that he did tender payment or performance of such contract,
at such time and place, and in such articles, work, or labor, as by such
contract he was bound to pay or perform, and the court or jury find
that he did tender, as alleged in his pleading, they shall, at the same
time, assess the value of the property or labor so tendered, and there-
upon judgment shall be rendered in favor of the plaintiff for the sum
so found, without interest or costs; but if the defendant forthwith
perform his contract, or give to the plaintiff such assurance as the court
may approve that he will perform the same within such time as the
court may direct, judgment shall be rendered for the defendant; and
in case any article so tendered is of a perishable nature, it shall, from
the time of such tender, be kept at the risk and expense of the plaint-
iff, provided the defendant take reasonable care of the same.
Xte. If the contract is silent as to tlie place of delivery of a debt payable
iiispt-ciQc property, the place of delivery is that of the creditor or payee, ex-
cept when the nature of the property is such as to raise the fair presumption that
such place i- where the property is when the contract is made. The place of
delivery ou-ht always to be stated in the contract, to avoid doubt or question.
In executory contracts for the purchase and sale of personal property the place
of delivery is the place of the seller. Such tender must be set up by answer,
it being new matter.* { 6070.
564 CODE PRACTICE AND PRECEDENTS.
(a) In case of a contract for the delivery of specific articles within
a specified time, where the party has made a tender, which, through
inadvertence or mistake, turns out to be insufficient and ineffectual, he
has the right to make a subsequent tender of articles, such as are re-
quired by the contract, within the time specified, unless there be some
provision in the terms of the contract preventing it. Coleman v. Ed-
wards, 5 O. S. 51.
Offer to confess judgment before action brought. SEC. 5139. Before an
action for the recovery of money is brought against any person, he
may go into the court of the county of his residence, or of that in
which the person having the cause of action resides, which would have
jurisdiction of the action, and offer to confess judgment in favor of
such person for a specified sum, on such cause of action ; whereupon,
if such person, having had such notice that the offer would be made,
of its amount, and of the time and place of making it, as the court
deems reasonable, fail to attend to accept the confession, or if he at-
tend, and refuse to accept it, and afterwards commence an action upon
such cause, and fail to recover more than the amount so offered to be
confessed, and the interest thereon from the date of the offer, he shall
pay all the costs of the action.
Offer to confess out of court. SEC. 5140. The defendant in an action
for the recovery of money only may, at any time before the trial, serve
upon the plaintiff, or his attorney, an offer in writing to allow judg-
ment to be taken against him, for the sum specified therein ; if the
plaintiff accept the offer, and give notice thereof to the defendant, or
his attorney, within jive days after service of it, the offer, and an affi-
davit that the notice of acceptance was delivered in the time limited,
may be filed by the plaintiff, or the defendant may file the acceptance,
with a copy of the offer, verified by affidavit ; in either case the offer
and acceptance shall be noted in the journal, and judgment rendered
accordingly ; if the notice of acceptance be not given in the period
limited, the offer shall be deemed withdrawn ; and if the plaintiff fail
to obtain judgment for more than was offered by the defendant, he
shall pay the defendant's costs from the time of the offer.
Note. In an action before a justice of the peace, it is sufficient to make such
offer to confess judgment, for a specified sum, in writing, any time before trial.
It need not be served upon the plaintiff, but made in the justice's office. The
offer is made to affect the costs, in case the plaintiff recovers no more than the
amount offered, exclusive of accruing interest. The offer can not be given in
evidence on the trial as an admission, or used for any other purpose than as af-
fecting costs. J 6581.
TENDER AND OFFER TO CONFESS JUDGMENT, ETC. 565
(fl) The " ofler to compromise" can not properly be made in an
answer, but to be effectual (to gave costs) must be made in a separate
writing, to be served as prescribed in this section. Armstrong v. Spears,
18 O. 8. 373.
Notice in writing, served on the plaintiff or his attorney by the de-
ifiidunt, to the effect that the defendant does then offer to confess judg-
ment for a sum therein named, and costs to that date, should be re-
garded as an offer to allow judgment to be taken against him within
the meaning of this section. Adams v. Phifer, 25 O. S. 301.
(6) Where the defendant offered to confess judgment for a specific
amount, which was rejected by the plaintiff, and on appeal from the
justice to the Court of Common Pleas the plaintiff recovers less than
was offered, judgment should be rendered against him for the defend-
ant's costs accruing after such offer. Courtright v. Staggers, 15 O. S.
511. In such case the plaintiff is not entitled to judgment for the
amount offered by the defendant; nor is the amount of recovery to be
affected by such offer. Ib.
Where the offer of the defendant, before trial, to confess judgment
for sixty-three dollars and costs to that time, was rejected, and the
jury returned a verdict for the plaintiff for four dollars, whereupon
the justice rendered judgment for the plaintiff for sixty-seven dollars,
being the aggregate -amount of the offer to confess and the verdict:
Held, that the Court of Common Pleas, on error, was authorized to
reverse the judgment in toto and retain the case for trial (section 6733),
and was not bound to modify the judgment so as to conform to the ver-
dict. Faucett v. Meeker, 31 O. S. 634.
A writing, signed by th defendants, by their agent, and by the agent
read in the presence of the parties, to the plaintiff, which contained
an offer to allow the plaintiffs to take judgment in the case fora speci-
fied sura against the defendants, and delivered to the justice, is an
offer in writing under this section (6581). Carpenter v. Kent, 11 O.
~>4.
Where a defendant, who confesses a judgment before a justice of the
|K-ace, omits to set up, as a set-off or counterclaim, a claim he has
against the plaintiffs, he is not precluded, by such omission, in a sub-
s<-(jiu-iit suit on such claim, from recovering costs against such plaint-
iff. Section 5073 does not apply to the Justice's Code. Black v.
Chester, 12 O. S. 621.
Offer to confess in open court. SEC. 5141. The defendant in an action
for the recovery of money may offer in court to confess judgment for
part of the amount claimed, or part of the causes involved in the
566 CODE PRACTICE AND PRECEDENTS.
action ; whereupon, if the plaintiff, being present, refuse to accept such
confession of judgment, in full of his demands against the defendant
in the action, or, having had such notice that the offer would be made,
of its amount, and of the time of making it, as the court deems
reasonable, fail to attend, and, on the trial, do uot recover more than
was so offered to be confessed, and the interest thereon from the date
of the offer, such plaintiff shall pay all the costs of the defendant in-
curred after the offer was made.
*
(a) The offer, to be effectual, must be made in open court; and it is
not sufficient to merely place a written offer on file with the papers in
the case, although the plaintiff may have notice that such offer has
been so made. Fike v. France, 12 O. S. 624. And see note to section
5140.
Such offers not to affect tlie trial. SEC. 5142. An offer made as pro-
vided in the three preceding sections shall not be deemed an admission
of the cause of action, nor of the amount to which the plaintiff is en-
titled ; nor shall it be a cause of continuance of the action, or a post-
ponement of the trial, or given in evidence or mentioned on the trial.
Note. It would be highly improper and unprofessional for counsel to state the
fact of such offer in any way to the jury, and if permitted by the court to do
so, against objection, would be good ground for a new trial according to the
principle settled in Union Cent. Life Ins. Co. v. Cheever, 86 O. S. 201.
Application of preceding sections. SEC. 5143. The provisions of this
subdivision (subd. 3, tit. 1, div. 3, ch. 1) shall be applied, so far as
they may fairly be made applicable, to a tender or offer made by the
plaintiff; and to the same extent, the same provisions may, in the dis-
cretion of the court, be applied to one or more of several cruses of
action, counterclaim, or net-off, in which case the court shall make such
order as to costs as it deems proper.
ANSWER SETTING UP A TENDER OF MONEY.
[Form 342. 5137.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, ]
No. .] vs. V Answer.
John Smith et als., Defendants. )
For answer to the petition of the plaintiff herein, the defendant, John
Smith, says that, on the day of , A. n. 18 , before the commence-
ment of this action, he did tender to the said plaintiff the payment of the
money due upon the said contract stated, as a cause of action, in the peti-
tion, to wit, the sum of dollars, which tender the plaintiff refused;
TENDER AND OFFER TO CONFESS JUDGMENT, ETC. 0(J7
and that he has ever since been, and still is, ready and willing to pay the
plaintiff the said amount of money, and now brings the same into court,
and ha* paid the same to the clerk of said court, in accordance with the
>t:um> in such case made and provided.
Wherefore he nsks judgment for his costs, etc.
JOSEPH CHITTT, Attorney for said Defendant.
Note. Tender must be specially pleaded, and must be denied by reply, or it
will be taken an true to the extent of the amount tendered. The < lerk should
iniike an entry of such payment to him of the money tendered upon the jour-
nal, whether i term time or vacation.
[Form 343.]
John Doe I
No. .] v*. > Tendered Money Paid to Clerk, $ .
John Smith et els. )
This day the defendant. John Smith [by his attorney, Joseph Chitty],
paid to the clerk of this court the sum of dollars, as money tendered
to the plaintiff' in this action
TENDER OF PROPERTY BEFORE SUIT BROUGHT.
If a debt is to be pnid in property or labor, etc., and the debtor fails
to pay or tender the same when due, the debt becomes payable in
money. Newman v. McGregor, 5 O. 349; Wtieeler v. Wilkinson, W
365; Trowbridge v. Holcomb. 4 O. S. 38; Cleveland, etc., R. Co, v. Kd-
ley, 5 O. S. 180; Sperry v. Johnson, 11 O. 454.
[Form 344. 5138.]
Common Pleas Court of County, Ohio.
A. I;.. Plaintiff, |
No. .] vt. > Answer
C. 1) Defendant, j
For answer to the petition of plaintiff herein, the defendant, C. D., says
that, before the commencement of this action, to wit, on the day of
, A D. 18 , at [the place of payment or delivery] he did tender to
the plaintiff all and every part of the said specific personal property in
the petition stated, as the grounds of the plaintiff's cause of action against
this defendant, to wit: [here specify tht thing tendered], which said tender
of the same the plaintiff then and there wholly refused to ad-opt,* and that
the defendant has ever since been, and now is ready and willing, and hereby
offers tc perform his said contract and pay and deliver to the plaintiff
[all] said personal property hereinbefore nii'iitimifd and described,* [or,
\f the fact bt so jollow the form to the *, and omit to the second *, and aver : that
this defendant, from the said time of sai-l tender, ho* kept said property
at the risk and expense of the plaintiff, an<l IMS taken reasonable care of
the same, but the same being of a perishable nature, has perished and be-
come destroyed, without the fault of this defendant; and that there is
due to the defendant from the plaintiff for the care, custody, an<l expense*
568 CODE PRACTICE AND PRECEDENTS.
of keeping, etc., the same, the sum of dollars, an itemized account
of which is hereto attached, marked "A," and made part hereof, for which,
with such further expenses of so keeping said property as the defendant
may incur (if property has not all perished) the defendant asks a judgment
against the plaintiff, and for his costs, etc.].
[If the defendant has not kept the property, the prayer of the answer may be :]
Wherefore the defendant asks that the value of said property, so as afore-
said tendered, may be assessed, and judgment rendered according to the
statute in such case made and provided.
Note. This form will be a sufficient guide for drawing an answer where the
contract is to be performed in labor; but, in the latter case, the defendant should,
if he elects to perform in labor, execute an undertaking to the plaintiff, to the
acceptance of the court, that he will perform the same. In the case of property,
it will be at the risk of plaintiff, and he may take possession of it. A second
tender is not necessary. It is vested in him. Where not performed in specie,
at the election of the defendant, the value of the property must be assessed by
the jury or court trying the cause, for which value, at the time of the tender,
without interest or costs, the plaintiff will receive judgment. This was the
common law. Palmer v. Harper, W. 383.
In cases in which tender is pleaded, and the plaintiff denies its sufficiency and
insists upon prosecuting his action, it is advisable for the court to submit the
question of tender to the jury to be specially answered.
OFFER TO CONFESS JUDGMENT BEFORE ACTION BROUGHT IN COURT
OF DEBTOR'S COUNTY JOURNAL ENTRY.
[Form 345. 5139.]
No. .] John Smith's Offer to Confess)
Judgment to John Doe. }
This day came John Smith, a resident of this county, and offered to
confess judgment in favor of John Doe in the sum of dollars, with
interest from the day of , A. D. 18 , on [a promissory note made
by him, payable to the order of John Jones, for dollars, in after
the date thereof, and dated on the day of , A. D. 18 , and which
note was indorsed by said John Jones to Hugh Evans, and by said Hugh
Evans to said John Doe].
Whereupon, it is ordered by the court that said John Smith give
days' notice in writing, to said John Doe, that he will be present in this
court on the day of , A. D. 18 ,at o'clock M. and offer to
confess judgment in favor of said John Doe, on said cause of action, for
said sum of money, with interest as aforesaid.
NOTICE OF SUCH OFFER TO CONFESS JUDGMENT.
[Form 346. 5139.]
To John Doe :
Sir: You are hereby notified that, in the Common Pleas Court of
County, Ohio, on the day of , A. D. 18 , at o'clock M. I
TENDER AND OFFER TO CONFESS JUDGMENT, ETC. 569
shall be present and then and there offer to confess judgment in your fa-
vor against me for the sum of dollars, with interest from the
day of , A. D. 18 , on the following cause of action : [I/rre state it at
in the journal entry. ]
You are requested to be then there present and accept or reject such
offer.
This day of , A. i> 18 . JOHN SMITH.
On proof of service of such notice, and on the failure of the creditor
to appear, or if he appear and refuse such offer, a journal entry of the
fact may be made as follows :
[Form 347. 5139.]
No. .] In the Matter of John Smith's Offer to Confess )
Judgment to John Doe. }
This day came said John Smith and proved to the court that he has duly
notified said John Doe of his offer to confess judgment upon the cause of
action and for the amount stated in the former entry herein, and as therein
ordered and required by the court. And said John Doe has failed to ap-
pear and accept [or, refuse such said offer ; or, having duly appeared in
accordance with said notice refuses said offer]
If the offer be made in the court of the county where the creditor
resides, the above forms can readily be varied to apply.
If the offer be accepted, the judgment will b~ the ordinary judg-
ment by confession.
A certified transcript of such journal entries will be evidence, in
case such offer be pleaded in an action.
OFFER TO CONFESS JUDGMENT MADE OUT OF COURT.
[Form 348. 5140.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, ]
No. .] v* > Offer to Allow Judgment
John Smith et als., Defendants. )
To John Doe, or his Attorney, Edward Coke:
You are hereby notified that, in this cause. I will allow judgment to be
taken against me in your favor, for the sum of dollars, with interest
from the day of . A. o. 18 , and the costs incurred by you prior
to the time of this offer If you accept this offer, youwill, within five days
after its service upon you, notify me, or my attorney, Joseph Chitty, of
such acceptance
This-t day of A D 18 JOHN SMITH
If there be no acceptance within jive days after the service of such
570 CODE PRACTICE AND PRECEDENTS.
notice, proof of service will be made by affidavit, and with such no-
tice filed in court. The journal entry may be in the following
[Form 349. 5140.]
John Doe ]
No. .] vs. > Notice, etc.. of Defendant's Offer to Allow Judgment.
John Smith et als. )
This day the said defendant, John Smith, produced in court a written
notice to said plaintiff, John Doe, or his attorney, Edward Coke, of his
offer to confess judgment against himself in favor of said John Doe for
dollars, with interest from the day of , A. D. 18 , and also
the affidavit of the service of the same upon said , on the day of
, 18 , which notice and affidavit are filed herein, the court finding
said affidavit to be true. And said John Doe having failed to accept said
offer within five days after its service upon him, said offer is deemed with-
drawn.
Note. If the offer is accepted either party may file it with an affidavit of its
due service, and notification of such acceptance to the defendant, within five
days from the service, which facts are to be noted in the journal, and judgment
will be rendered accordingly.
OFFER TO CONFESS IN OPEN COURT FOR A CERTAIN SUM OFFER IN
COURT IN PLAINTIFF'S PRESENCE.
[Form 350. 5141.]
John Doe )
No. .] vs. > Offer to Confess Judgment for $
John Smith et als. J
This day came said defendant, John Smith, said plaintiff, John Doe, be-
ing present, and in open court offered to confess judgment against him-
self and in favor of said plaintiff, upon the cause of action stated in the
petition, for the sum of dollars, with interest from the day of
, A. n. 18 , and the costs to the present time, which said offer the said
John Doe refused to accept.
OFFER TO CONFESS IN OPEN COURT WHEN PLAINTIFF is ABSENT.
[Form 351. 5141.]
John Doe I
No. .] vs. > Offer to Confess Judgment for $ .
John Smith et als. J
This day came the defendant, John Smith, and in open court offered to
confess judgment, in favor of said plaintiff, John Doe, against himself, on
the cause of action stated in the petition, for the sum of dollars,
with interest from the day of , 18 , and costs to the present
time; and said John Doe not being present in court, it is ordered that the
TENDER AND OFFER TO CONFESS JUDGMENT, ETC. 571
said defendant, in writing, notify the plaintiff, or his attorney, Edward
Coke, of suiil offer, and that he be required to accept or refuse the same
within days after being so notified of the same.
For notice and proof of service, see Forms 348, 349.
If the offer is accepted, judgment will be rendered as an ordinary
judgment by confessions. And see note to Form 349.
572 CODE PRACTICE AND PRECEDENTS.
CHAPTER XXXIV.
ISSUES, HOW TRIED.
v
What a trial is. SEC. 5127. A trial is "a judicial examination of the
issues, whether of law or of fact, in an action or proceeding.
What an issue is. SEC. 5128. Issues arise on the pleadings where a
fact, or conclusion of law, is maintained by one party aud controverted
by the other. They are of two kinds: 1. Of law. 2. Of fact.
(a) Prior to the Code, section 5207, the court could not hear a cause
without pleadings. Mason v. Embree, 5 O. 277. Nor decide the facts nor
proceed to judgment where no issue was made. Headly v. Roby, 6 O.
521 ; Ferrdl v. Humphrey, 12 O. 112.
An agreement of counsel to consider the issues as made up is of no
effect. McBride v. Moore, W. 524. (As a rule, this should be still
strictly adhered to in practice. No issue should be permitted to be
tried or heard upon pleadings not in existence, but taken for granted.
Where a case is tried, without objection, upon evidence, upon issues
not made by the pleadings, the judgment will be valid. Hoffman v.
Gordon, 15 O. S. 212 And see section 5114.)
.How issue of fact is raised SEC. 5129. An issue of fact arises :
1. Upon a material allegation in the petition denied by the answer.
2. Upon a set-off, counterclaim, or new matter presented in the
answer and denied by the reply.
3. Upon material new matter in the reply, which shall be considered
as controverted by the opposite party without further pleading.
Note. This section does not apply to trials contesting wills. In such cases
the law frames the issue, and it must be submitted to and tried by a jury outside
of the pleadings.
"Is the paper writing the valid last will and testament of the said testator? "
5861. See CONTEST OF WILL
How issues are to be tried. SEC. 5130. Issues of law must be tried by
the court, unless referred as hereinafter provided (sections 52105224) ;
and issues of fact arising in actions for the recovery of money only, or
specific real or personal property, shall be tried by a jury, unless a
jury trial be waived, or a reference be ordered as hereinafter pro-
vided.
!>>UES, IIOW TRIED. 573
(a) Adversary parties to a suit? can not, by contract, require the
court to try their cause contrary M the established rules of judicial
proceedings. Gittings v. Baker, 2 O. S. 21.
An action for the enforcement of a trust, and for an account by the
trustee to the ceghti que trust, is not triable of right by a jury, but by
the court. Carlinlc v. Footer, 10 O. S. 198. (Issues of fact, iu cases
triable only in courts of common law, are triable by jury as of right
when demanded by either party. Cases cognizable in courts of
chancery are triable by the court, and neither party can demand a
trial by jury as of right. Special statutory proceedings are triable in
the manner provided by statute.)
No judgment can be rendered upon a finding of facts which are in
the nature of evidence only, and are not, in laic, conclusive upon the
question at issues. Leach v. Church, 10 O. S. 148.
In a civil action, where the facts stated in the petition, and the
nature of the relief primarily demanded, are within the sole jurisdic-
tion of a court of equity, neither party can, of right, demand that the
issues of fact made by the pleadings, touching the plaintiff's right to
such relief, shall be tried by a jury. Rowland v. Entriken, 27 O.
S. 47.
Where, in an action upon a note and mortgage given to secure its
payment, & personal judgment is asked upon the note, and for the sale
of the mortgaged property, either party may demand a jury trial upon
any issue of fact which affects the judgment upon the note. Jjoddv.
Jame*, 10 O. S. 437.
In an action by persons claiming to be trustees of an incorporated
religious society, and seeking, in their character as such trustees, to
recover possession of the real property of the society, an answer deny-
ing that the plaintiffs, and alleging that the defendants, are such
trustees, presents an issue which is properly triable by a jury. First
Pres. Society v. Smithers, 12 O. 6. 248.
In an action for the recovery of money, wherein the only relief
prayed for is a money judgment, either party is entitled to demand a
trial by a jury, notwithstanding numerous items of account, or of
claim and counterclaim, are involved in the issue. Averill, etc., Co. v.
Verner, 22 O. S. 372. (Of matters of account, within the proper
meaning of the term, courts of law and equity have concurrent juris-
diction. This decision gives the plaintiff the power, by the prayer in
his petition, to confer upon himself the coustitutional right of trial by
jury in such cases.)
What issue* to be tried by the court. SEC. 5131. All other issues of
574 CODE PRACTICE AND PRECEDENTS.
fact shall be tried by the court, subject to its power to order any issue
to be tried by a jury, or referred.
(a) A verdict in an equity case is not conclusive, but the court may
decree, notwithstanding the verdict. Morgan v. Spangler, 20 O.
S. 38.
Where the court, in an equity case, submits certain questions to a
-jury, it is not error to refuse instructions on points irrelevant to the
questions submitted, though pertinent to other parts of the case. Gar-
lisle v. Foster, 10 O. 8. 198.
TIME OP TRIAL.
SECS. 5132, 5136. Trial docket and copy for the bar. See ante.
When judgment on default may be entered. SEC. 5133. In an action
upon an account, or written instrument for the payment of money only,
or in foreclosure, judgment may be entered, at any time during the
term, after the defendant is in default for an answer; but the court
may, for good cause shown, give further time for answer.
(a) A judgment by default may be rendered on an account without
calling a witness and proving the account. Dallas v. Fernau, 25 O. S.
635. (But it is usual in defaults to require proof to fix the amount
of the claim, when not based upon an instrument for the payment of a
sum of money certain only.)
The order in which cases are to be heard. SEC. 5134. Cases in which
there is an issue of fact, or in which damages are to be assessed, shall
be tried in the order in which they stand on the trial docket, unless, by
the consent of the parties, or by the order of the court, they bs con-
tinued, or placed at the heel of the docket; all other cases shall be
heard in the order in which they stand on the trial docket, unless the
court otherwise direct; and the court may, at any time, hear a de-
murrer or a motion, and may, by rule, prescribe the time of hearing
demurrers and motions.
(a) Before this section was changed specially permitting it, de-
murrers could be heard out of the order in which they stood upon the
docket. Smith v. Bank, etc., 26 O. S. 141.
Whether or not the continuance of a cause shall be granted or re-
fused is a matter of judicial discretion, and error can not be predicated
of the action of the court in that behalf, unless in a case of an abuse
of that discretion. Diebold v. Powell, 32 O. S. 173 ; Holt v. State,
11 O. S. 691 ; Loeffner v. State, 10 O. S. 598 ; Qrffin v. State, 18 O.
S. 438, 446; Hoff v. Fisher, 26 0. S. 7.
ISSUES, HOW TRIED. 575
Note. "Rule 24 of the Supreme Court provide for tho continuance of causes
In the Circuit and Common Pleas Courts: " In all applications for the contin-
uance of a cause in the Circuit Court, and for a second continuance in the Com-
mon Picas on the ground of inability to procure the testimony of an absent wit-
ness, the party making the application shall state in his affidavit what ho ex-
pects to prove by such witness, and also what & \.& of diligence he has employed
to procure the testimony of such witness, and if the court shall find the testi-
mony material, and that due diligence has been used, said cause mny be con-
tinued, unlcb the opposite party consent to the reading of such affidavit in evi-
dence; in which case the trial may proceed, and said affidavit be read on the
trial, and treated as the deposition of an absent witness.
"First applications for continuance in the Common Pleas shall be subject to
such regulations as the court shall adopt."
At common law, to avoid a continuance on the ground of the absence of a
material witness, the opposing party bad to admit the truth of the/aj* expected
to be proved by such witness; now only that the witness would so testify. To
require the testimony of the absent witness to be set out in the affidavit in the
Common Pleas, under this rule, there must have already been one continuance
granted on the ground of " inability to procure the testimony" of some absent
witness. Previous continuances on other grounds will not be considered in de-
termining whether the affidavit shall state what such witness is expected to tes-
tify to. Every affidavit should state that the party expects to procure the at-
tendance of the absent witness or his testimony, at the next term of the court,
or it will be insufficient. The application is to be granted or refused upon the
showing made in tho affidavit, as such applications are not debatable. Strict
adherence to this rule v-ill save much of the time of courts, and prevent
profitless wrangling.
UPON RULE XXIV. SUPREME COURT.
[Form 352.]
Common Pleas Court of County, Ohio.
John Do.', Plaintiff, |
No. .] vs. > Affidavit for Continuance.
John Smith et als., Defendants, j
And now comes the above named defendant, John Smith, and makes
solemn oath that is a material witness for him in this case, and with-
out whose testimony he is advised by his counsel he can not safely go to
trial ; that he intends and expects to procure the attendance of paid ,
or his testimony, at the next term of this court; that he has used the fol-
lowing acts of diligence to procure the testimony of said \\ itm-ss at the
trial of this case at the present term, but has failed to procure the same:
[Here specify the ae'.s of dilijence vscl."] That he expects said will tes-
tify substantially as follows: [Here state the proposed evidence of the witness]',
and that this application for a continuance is not made for delay merely,
but for the purpose of justice. JOHN SMITH.
Sworn to, etc.
The affidavit will be filed, and the application decided by the court
576 CODE PRACTICE AND PRECEDENTS.
upon the showing made by it. When the evidence of the witness is
stated, the opposite party may admit the affidavit as the deposition of
such witness.
Wlien actions are triable. SEC. 5135. Actions are triable at the first
term of the court after the issue therein, by the times fixed for plead-
ing, are or should have been made up. When the issues are or should
have been made up during a term, such -action shall be triable at that
term ; and when the issues are or should have been made up either be-
fore or during a term of court, but after the period for the prepara-
tion of the trial docket of the terra, the clerk, if required by the
court, shall place such actions on the trial docket at that time.
JUDGMENTS. 577
CHAPTER XXXV.
JUDGMENTS.
What a judgment is, and what is an order. SEC. 5310. A. judgment is
the final determination of the rights of the parties in action ; and a ili-
rection of & court or judge, made or entered in writing, and not in-
cluded in a judgment, is an order.
(a) The judgment of a court of competent jurisdiction, however in-
formal, irregular, or summary, is valid until reversed, and can not be
questioned collaterally that is, in any proceeding other than one
brought directly to reverse, or set it aside. Weyer \. Zune, 3 O. 305 ;
Jii'/'low \. Bigdow, 4 O. 138; Buett v. Cross, 4 O. 327; Douglass v.
McCoy, 5 O. 522 ; Foster v. Dugan, 8 O. 107 ; PUlsbury v. Dugan, 9
O. 117; Darby v. Carson, 9 O. 149; Adams v. Loring, 17 O. 409;
Newnam v. Cincinnati, 18 O. 323; Reynolds v. Stanbury, 20 O. 344;
Fmeier v. Whiteman, 2 O. S. 270, 286; Slutldon v. Newton, 3 O. S.
494 ; Moore v. Robinson, 6 O. S. 302; CaUen v. Ellison, 13 O. S. 446-
Faran v. Robinson, 17 O. S. 242; Welsh v. ChUds, 17 O. S. 319.
Where jurisdiction is shown or must be presumed, the judgment or
order of the court can not be collaterally impeached. Richards v. Skiff,
8 O. S. 586. (Where the judgment or order is that of a court of gen-
eral jurisdiction, its validity will be presumed ; but if it be a court or
tribunal of limited, or special jurisdiction, to acquire which specific
things must be done, jurisdiction must be shown, and can not be pre-
sumed.)
The jurisdiction of the Courts of Common Pleas of our own state
will be presumed where the record is silent on the subject. Morgan v.
Burnet, 18 O. 535.
Jurisdiction of the person will be presumed, although that fact may
not affirmatively appear on the record. Reynolds v. Stanbury, 20 O.
344.
Where, in case of an order for sale of real estate on petition for par-
tition, the proceeding being in rem before a competent jurisdiction, it
must be presumed that the court made the order on a state of facts be-
ing proved that gave jurisdiction and authorized the exercise of it.
Glover v. Ruffin, 6 0. 255.
Where it affirmatively appears in the record that the defendant \va-=
37
578 CODE PRACTICE AXD PRECEDENTS.
not served with process, or otherwise legally notified, the judgment is
void. Moore v. Starks, 1 O. S. 369.
Where a summons has been served upon a part only of several de-
fendants, and judgment is rendered against all, the judgment is erro-
neous and voidable, but not void. Douglass v. Massie, 16 O. 271.
The records of a judgment rendered in another state may be contra-
dicted as to the facts necessary to give the court jurisdiction ; and if
it be shown that such facts did not exist, the record will be a nullity,
notwithstanding it may recite that they did exist. Pennywit v. Foote,
27 O. S. 600. (The statement of the requisite jurisdictlonal facts in
such records will be prima facie evidence of jurisdiction; and when
jurisdiction is established, the record is as conclusive as that of a court
of our own state.) Thompson Whitman, 18 Wai. 457; Knowles v. Gas,
etc., Co., 19 Wai. 58; Pennoyer v. Xeff, 95 U. S. 714.
The want of jurisdiction may be shown either as to the subject-mat-
ter, the person, or in proceedings in rein as to the thing. Pennywit v.
Foote, Thompson v. Whitman, Knowles v. Gas, etc., Co., supra.
The jurisdiction of a court or tribunal entering a judgment in any
particular case may always be inquired into where such judgment is
made the foundation of an action, either in a court of the state in
which it was rendered, or any other state. Spier v. Corll, 33 O. S.
236.
A personal judgment, rendered against one over whom the court
has no jurisdiction, is wholly invalid. Ib.
(This was a case of an action upon Pennsylvania judgments, as was
Pennywit v. Foote, 27 O. S. 600, upon an Arkansas judgment. In an
action upon an Ohio judgment, in an Ohio court, where the record
states all the facts requisite to confer jurisdiction, it is conclusive. The
only remedy is to set the judgment aside in the court where rendered.
Gotten v. Edmiston, 13 O. S. 446 ; Critchfield v. Porter, 3 O. 519 ; Shel-
don v. Newton, 3 O. S, 498-9. Clearly such a judgment rendered in
this state can not be collaterally attacked on the ground of fraud in
obtaining it.*)
Judgment may l>e given for or against one or more parties. SEC. 5311.
Judgment may be given for or against one or more of several
plaintiffs, and for or against one or more of several defendants ; and by
the judgment the court may determine the ultimate rights of the
parties on either side, as between themselves, and grant to the defend-
ant any affirmative relief to which he is entitled.
(a) The common-law rule, that where a joint contract is the subject
of an action the recovery must be against all or none of the defend-
JUDGMENTS.
:mts has been modified by this section, so as to authorize judgment to be
rendered*" for or against one or more of several defendants," where it
turns out upon the trial that only one or more of several defendants in
such joint action is liable, without subjecting the plaintiff to the neces-
sity of brinirin^ :i new action against such defendant or defendants.
Lampkin v. Chitom, 10 O. S. 451.
Where, a separate action might have been maintained against a
pa rt v u separate judgment U proper. Smith v. Exchange I>tnk, i'tc.,
26 O. S. 141.
The section has no legitimate effect on the right to commence a sev-
eral suit upon a cause of action confessedly joint. It relates to the
termination and not to the commencement of a suit, and before it can
be applied the testimony must show that the real cause of action was
several and not joint. Smelters v. Rainey, 14 O. S. 287, 291.
In an action on an alleged joint contract, judgment may be rendered
against one or more of several defendants, when it turns out upon the
trial that only one or more of them is liable on the contract. Roby v.
llmnabergcr, 27 O. S. 674.
In an action against several defendants to recover possession of land,
where they defend jointly, verdict and judgment may, on final trial,
be rendered for or against one or more of them. //////i/>/inVx v. Huff-
man, 33 O. S. 395.
(It will be observed that the language, " for or against one or more,"
applies to judgments in favor of plaintiffs as well as to defendants.)
Judgments at different times against several defendants. SEC. 5312. In
an action against several defendants, the court may render judg-
ment against one or more of them, leaving the action to proceed against
the others, whenever a several judgment is proper.
(a) Where a joint suit against all the obligors in a bond is the only
ivinrdy of the plaintiffs thereon, it is error for the court to render a
.-- ''<'i-<d judgment against one or more of the defendants, leaving the
action to proceed against the others. Aucker v. Adams, 23 O. S. 543.
In an action against tivo defendants to recover a sum of money al-
to be due from them OB an account, where it appears, either
mm, the pleadings, or during the progress of the case, that u *T< m/
judgment is proper against one, the court may, in its discretion, render
a judgment against him for the amount for which he is liable, leaving
the action to proceed against his co-defendant. Hempy v. Ransom, 33
O. S. 3}2.
The effect of such severance and judgment is to leave the action to
be tried as a several action against the remaining defendant upon the
580 CODE PRACTICE AND PRECEDENTS.
issues joined, as fully as if he had been sued separately on the same
cause of action, and judgment may be rendered for or againsl; him as
if he had been sued alone, without regard to the amount of the former
judgment against his co-defendant. Ib.
The court may dismiss for want of prosecution. SEC. 5313. The court
may dismiss the petition with costs, in favor of one or more dei'end-
ants, in case of unreasonable neglect on the part of the plaintiff' to
serve the summons on other defendants, or to proceed in the cause
against the defendant or defendants served.
Wlien action maybe dismissed without prejudice. SEC. 5314. An action
may be dismissed without prejudice to a future action :
1. By the plaintiff, before the final submission of the case to the jury,
or to the court, when the trial is by the court.
2. By the court, when the plaintiff fails to appear on the trial.
3. By the court, for the want of necessary parties.
4. By the court, on the application of some of the defendants, where
there are others whom the plaintiff fails to prosecute with diligence.
5. By the court, for disobedience by the plaintiff of an order con-
cerning the proceedings in the action.
6. By the plaintiff, in vacation, on payment of costs; and the clerk, in
such case, shall forthwith make an entry thereof on the journal, where
upon the dismissal shall take effect; but this clause shall not apply to
a petition in error, or a case in which a counterclaim or set-off has
been filed.
In all other cases the decision must be upon the merits, upon the
trial of the action.
(a) The court may, in a proper case, arrest the testimony from the
jury, and render judgment fof the defendant. The judgment in such,
case, however, has not the effect of a nonsuit at common law, but is,
under this sectiou, a decision on the merits. Stockstill v. Railroad Co.,
24 O. S. 83.
Under the former practice the court exercised the same power under
the same circumstances, but the action of the court did not operate as
a bar to a subsequent suit, being a nonsuit as at common law. Ellis v.
Ohio L. Ins., etc., T. Co., 4 O. S. 628; Sparry v. Johnson, 11 O. 452;
Carman v. Railroad Co., 4 O. S. 399 ; Hicks v. Person, 19 O. 426.
In an action for flooding plaintiff's land, after he has given evidence
tending to maintain the issue, the decision must be upon the merits,
and the court has no power to nonsuit. Byrd v. Blessing, 11 O. S.
362 ; Dick v. Railroad Co., 38 O. S. 389.
A judgment dismissing an action without prejudice to a future action
JUDGMENTS. 581
is an entirety, ami, though it may have been so rendered erroneously,
it will not constitute a bar to a subsequent action upon the same sub-
ject-matter. Warner v. //, 30 O. S. 378.
If the plaintiff takes leave to amend, after adverse decision upon
demurrer, but, without doing so, dismisses the action, it is not a decis-
ion upon the merits. McGatrick v. Wason, 4 O. S. 566.
Where the court gave leave to file a petition within sixty days, and,
in default, o rile red that the cause stand dismissed, and a petition was
filed two days after the expiration of the sixty days, the defendant,
after answer, trial, and judgment, can not, on error, insist on the dis-
ini^sal. The order of dismissal must be deemed vacated by the subse-
quent action of the court and parties. Hill v. Supervisor, efc.,10 O. S.
621.
The submission of a case on demurrer to the answer, on the ground
that it doe* not contain a defense, is a final submission of the case
within the meaning of this section, unless leave is obtained to reply or
answer; and the plaintiff can not, if the demurrei is overruled, with-
out leave of court, dismiss his action without prejudice. Beaumont v.
Herrick, 24 O. S. 445.
(Leave to amend, upon or without terms as to costs, within a certain
time, is given as a mat f er of course, when asked, and after amend-
ment, and before final submission ot the case on the trial, the plaint-
iff may dismiss his action without prejudice.)
A judgment entered by a justice of the peace in an action tried
before him, " that the action be dismissed without prejudice to a new
action," is not a bar to a subsequent suit on the same cause of action.
Eaton v. Fronch, 23 O S. 560.
It is discretionary with the court whether or not it will dismiss a
petition in erroi without the consent of both parties. Cleveland Gas
Co. v. Duffy, 22 O. 206.
It was discretionary with the court, in chancery, to permit the com-
plainant to dismiss his bill without prejudice, to be exercised with
reference to the rights of both parties, as well defendant as complainant.
Conner v. Drake, 1 O. S. 166.
Where the rec >rd of a former suit is pleaded in bar, and the record
of such former suit H silent as to whether the dismissal was upon the
merits or lor want of prosecution, there is IK. presumption either way.
and the consequence is that, as it must be established that the dismission
was upon the merits, there is no bar. Loudenback v. Collins, 4 O.
S. 251.
A plaintiff, after an answer amounting to a counterclaim has been
filed, can not dismiss the action. IfV.o/W/ v. First Con. Ch. t 14 O. S. 31.
582 CODE PRACTICE AND PRECEDENTS.
Where the allegations of the answer are not such as entitle the de-
fendant to affirmative relief, such answer does not present a counter-
claim which the defendant has a right to have tried after the plaintiff's
cause of action has been dismissed without prejudice. Quebec Bank
v. Wei/and, 30 O. S. 126.
The plaintiff can not, in a proceeding for the contest of a will, by
.dismissing his petition, defeat the contest, where either of the defend-
ants in his answer joins in the prayer that the will be set aside cs
invalid. Bradford v. Andrews, 20 O. S. 208.
At common law the proceeding would be arrested at any stage when
it was discovered that the judgment would be arrested after verdict.
Sliph&r v. Fisher, 11 O. 299.
The court could direct a nonsuit whenever it appeared that the
plaintiff was not entitled to maintain his action, although the objection
might have been made on demurrer. Poweltv. Jones, 12 O. 35. (In
such a case, as there is no fact, in reality to try, it would seem, under
the Code, that the court should arrest the case from the jury, and ren-
der judgment for the defendant, that he g'o. hence without day, as the
plaintiff has stated no cause of action against him. )
Under the former practice a nonsuit would not be set aside, although
improperly directed, unless a verdict in favor of the plaintiff would lay
the foundation for a legal judgment. Jones v. Smith, 14 O. 606. (And
in such case, under the Code, it could not be error for the court to
instruct the jury to return a verdict for the defendant.)
Where there was a misjoiuder of complainants in chancery, the court
could dismiss the bill as to all the complainants, or only as to tho.<e
which were improperly joined. Myers v. Farrington, 18 0. 72. (See
section 5311 and note.)
The dismissal of a bill to foreclose a mortgage was no bar to a suit
on the note secured thereby. Longworih v. Flagg, 10 O. 300. (A
party may bring suit on a note secured by mortgage, after it is due ;
also to foreclose the mortgage ; and also an action of ejectment upon
the mortgage, after condition broken. He may bring sucli separate
actions at the same time, or one after the determination of another, if
there be no exercise of the mortgagor s equity of redemption by pay-
ment of the -mortgage debt. Roll v. Raguet, 4 O. 400; Raguet v. Roll,
7 0. (1 pt.) 76; Ib. 70.)
Defendant may have counterclaim adjudicated if plaintiff dismi** hi*
petition. SEC. 5315. If a set-offor counterclaim be pleaded, the defend-
ant shall have the right of proceeding to the trial of his claim, although
the plaintiff has dismissed his action, or fails to appear.
JCDGMENTS. 583
Mortgaged properly to &e ordered sold. Sue. ~>?> 10. Wlicn a mortgage
is foreclosed u sale of the promise- shall be ordered ; und when the
premises to be sold are in one or ni >rc tracts, the court may direct the
officer who makes the sale to subdivide, appraise, and sell the same in
parcels, or to si-11 any one of the tracts as a whole. (See pcction 5021.)
(a) A pcw.wl judgment can not be taken against a mortgagor, in
an acti.m to foreclose a mortgage, unless the petition contains a prayer
;<-!i judgment. (See section 5021.) But the court may order an
execution to issue for any balance after exhausting the proceeds of the
mortgaged property. Giddiiigs v. Barney, 31 O. S. 80.
Although a decree of foreclosure may be so framed as to permi:
cution to issue, as uj>on a judgment at law, to collect any balance
which may remain after exhausting the mortgaged premises, yet such
decree creates 110 lien upon otiier lauds of the defendant. Myen v.
Hewitt, 16 O. 449.
The purchaser under judicial proceedings, foreclosing a mortgage
and selling the mortgaged premises, takes the complete title both of
mortgagor and mortgagee. Carter v. Walker t 2 O. S. 339.
A proceeding to foreclose a mortgage on real estate, although in the
nature of a proceeding in rem, is still an adversary proceeding in which
the right of the mortgagor is necessarily to be passed on ; and he is
entitled to his day in court, and before the court can act it is net
that it should acquire jurisdiction over the person of the defendant.
Jurisdiction over both the person and the thing are absolute requisites
to the validity of its action. Moore v. Stark*, 1 O. S. 369.
When mortgaged premises are sold in parts to different purchasers,
the mortgagee, on foreclosure, will be compelled to fird exhaust the
part last sold, and thus in the inverse order of the sales of the several
mortgaged parcels, or parts, till the mortgage be satisfied. Gary \.
Foltom, 14 O. 3G3 ; Sternbergerv. Hanna, 42 O. S. 305 ; Kyle v. Thomp-
son, 11 O. S. 616 ; Le/cnon v. Dallas, 20 O. S. 74.
WliL-re a senior mortgagee forecloses without making a junior mort-
gagee a party, the rights of the junior mortgagee remain unaffected
and not prejudiced by such foreclosure. Stewart \. Johtison, 30 O. S.
24; Fiitche v. Kramer, 16 O. 125; Child* v. Child*, 10 O. S. 339.
(He may foreclose without paying off the prior mortgage, but if the
land does not sell for more than enough to satisfy the prior mortgage
debt, he must pay the costs. The purchaser under mortgage is pubro-
gated to the rights of the mortgagee. 30 O. S. 24.)
(Without an order to subdivide and sell, sheriMs :i<!:n'
guardian*, etc , may, in their discretion, divide a tract levied upon and
584 CODE PRACTICE AND PRECEDENTS.
appraised entire, and sell it in parcels, being responsible for the abuse
of that discretion. If all the lands are sold they must bring at least
two-thirds of their appraised value. Stall v. Macalester, 9 O. 19.
mortgage property situate in more than one county. SEC. 5317.
When the mortgaged property is situate in more than one county, the
court may order the sheriff or master of each to make sale of the prop-
erty in his county, or may direct one officer to sell the whole ; tho
court may direct that the property, when it consists of a single tract,
be sold as one tract, or in separate parcels, and shall direct whether
appraisers shall be selected for each county, or one set for all ; and
shall also direct whether publication of the sale shall be made in all the
counties, or in one county only.
When judgment to operate as a conveyance. SEC. 5318. When the
party against whom a judgment for a conveyance, release, or acquit-
tance is rendered, does not comply therewith by the time appointed, such
judgment shall have the same operation and effect, and be as available,
as if the conveyance, release, or acquittance had been executed con-
formably to such judgment.
Note. For forms under this section, see SPECIFIC PERFORMANCE.
(a) Where the court has acquired jurisdiction over the person of
the defendant, obedience to its decree may be enforced by attachment
under section 5490 (CONTEMPTS), whether the lands ordered to be con-
veyed lie within or without the state. Penn v. Hayward, 1 4 O. S.
302.
A court of equity, having acquired jurisdiction over the persons of
the parties, may enforce a trust or the specific performance of a con-
tract, in relation to land situate in another state. Burnley v. Steven-
son, 24 O. S. 474.
(And where a court of equity has jurisdiction of a cause it will do
full justice, granting all the relief to which the parties may be entitled,
both legal and equitable.)
Although the decree in such case, or the deed of a master executed
in pursuance thereof, can not operate to transfer title to such lauds,
yet the decree is binding upon the consciences of the parties, and con-
cludes them in respect to all matters and things properly adjudicated
and determined by the court Ib.
(The authority of one state can not transfer title to lands in another
state. Such decrees are void. Douglas v. Coit, 1 O. 522 ; Price v.
Johnston, 1 O. S. 390; Scdmond v. Price, 13 O. 368.)
JUDGMENTS. 585
The reversal of a decree which has been made to operate as a con-
veyance, <u between the parties, divests the title, and reinvests it in the
person who held it before the decree was made. Taylor v. Boyd, 3 O.
lauds are not sold on execution or order of sale, section
6409 does not apply.
Where the party taking the title under the decree conveys in good
faith, before the commencement of proceedings in error, the title of
th<- purdiaser will not be divested by a reversal. 76.
The title of a purchaser to real estate sold by an administrator to
pay debts is not divested by a subsequent reversal of the order of
sale. Notice to such purchaser, at the time of sale, that an effort
would be made to reverse the order, does not affect the purchaser's
title. Irwin v. Jejfers, 3 O. S. 389. (This is within the spirit and
reason of section 5409.)
The statutory provision that a decree should operate as a convey-
ance did not divest the jurisdiction of the court to enforce the execu-
tion of a conveyance by process of attachment for contempt. They
are cumulative. Randall v. Pryor, 4 O. 425.
.linlrjment against a married looman. SEC. 5319. (Su/>.,p. 346.) When
a married woman sues or is sued alone, like proceedings shall be had,
and judgment may be rendered and enforced, as if she were unmarried,
ami her property and estate shall be liable for the judgment against her ;
but she shall be entitled to the benefit of all exemptions to heads of
families.
(a) In an action against a married woman upon her obligation in
writing to pay for services rendered, or money advanced for the bene-
fit of her separate estate, it is not error to render a personal judgment
against her. Patrick v. Littell, 36 O. S. 79. See section 4996.
on failure to answer How damages are assessed. SEC. 5320
(ch. '!). When all or a part of one or more of the causes of action
arc not put in issue by answer, judgment maybe taken, as upon a
delimit, for so much of the plaintiff's demand as is not put in issue by
tin- answer, upon any or all of the causes of action, without prejudice to
the rights of the plaintiff as to that portion of his demand disputed ;
and if, in the determination of any cause, the taking an account,
proof of a fact, or the assessment of damages is necessary, the court
may take the account, hear the proof, or assess the damages, or may
n-t'er the case to ft referee or master for such purpose, or direct the
matter lo be ascertained by a jury, as the case may require.
At common law ewh c:ui-o of uctioii \v:n an entirety, and if part of
586 CODE PRACTICE AND PRECEDENTS
the claim was admitted and part denied, judgment could not be taken for the
admitted portion without thereby barring the part denied.
(a) When a party, by his own mistake, and without any fault of
the adverse party, takes judgment by default for a less sum than the
amount due on his claim, he can not maintain a second action to re-
cover the remainder. Ewing v. McNairy, 20 O. S. 315.
Where the defendant, in an action for the price of goods sold, sets
up in his answer as his only defense that the goods were sold by
sample, and were inferior to the sample to a specified amount, the
court may render judgment for the amount so admitted to be due, and
continue the cause as to the counterclaim or amount in dispute. Moore
v. Woodside, "26 O. S. 537.
Where a defendant admits the amount of his indebtedness to the
plaintiff, and pleads a set-off, and issue is joined on the set-off, a judg-
ment rendered upon the pleadings on the motion of the plaintiff for
the amount admitted to be due, less the amount of the set-off, is not
erroneous! Benson v. Stein, 34 O. S. 294.
Where the value of admitted services rendered was denied, and it
was averred that such value did not exceed a certain specified sura,
judgment could not be taken for that sum, and the cause continued
for trial as to the further value of such services. Weaver v. Carnahan,
37 O. S. 363.
JUDGMENT BY CONFESSION.
By debtor personally in court. SEC. 5321. A person indebted, or
against whom a cause of action exists, may personally appear, in a
court of competent jurisdiction, and, with the assent of the creditor,
or person having such cause of action, confess judgment; whereupon
judgment shall be entered accordingly.
Pleadings in such case. SEC. 5322. The debt or cause of action shall
be briefly stated in the judgment, or in a writing to be filed as plead-
ings in other actions.
(a) These sections, 5321, 5322, apply only to a proceeding wherein
the debtor appears personally in court and confesses judgment. Rosen-
burgh v. Ansley, 35 O. S. 107.
How such judgment enforced. SEC. 5323. Such judgment shall
authorize the same proceedings for its enforcement as judgments ren-
dered in actions regularly brought and prosecuted ; and the confes-
sion shall operate as a release of error?.
Confession of judgment by attorney Warrant to be produced. SEC.
5324. An attorney who confesses judgment in any case shall, at the
time of making such confession, produce the warrant of attorney for
587
making the same to the court before which lie makes the confer i"ii ;
and the original or a copy of the warrant shall be filed with the clerk
of such court.
(a) A warrant of attorney to confess judgment must be strictly con-
strued, and the authority thereby conferred can not be exercised be-
yond the limits expressed iu the instrument. Cusliman v. HW.s/i. .'J
o. s. :>:;.;.
When a judgment is sought to be taken by confession under a war-
rant of attorney, a petition duly verified should be filed. But when
a judgment is rendered on a warrant which authorizes the waiving of
process and the release of all errors, any defect in the verification of
the petition, on a proceeding in error, will be deemed to have been
waived. First Nat. Bk. Sidney v. Reed, 31 O. S. 435.
A warrant of attorney to confess judgment does not authorize such
confession before the maturity of the note; and an appearance prema-
turely entered by virtue of such warrant confers no jurisdiction of the
person of the maker. Spier v. Cor//, 33 O. S. 236.
A warrant to confess a judgment upon a debt due directly from the
defendant to the plaintiff is not a collateral security, merging the.
original debt. Sloo v. Lea, 18 O. 279.
Such power of attorney is not negotiable, and when the note is trans-
ferred becomes inoperative. Oaborn v. Hawley, 19 O. 130.
When annexed to the note, and authorizes confession of judgment
in favor of any holder of the note, whether negotiable with the note,
query, Marsden v Soper, 11 O. S. 503. Such note must be indorsed
to pass the legal title, and to authorize attorney to confess judgment.
upon warrant of attorney " in favor of the legal holder of the note."
Ciukman v. Welch, 19 O. S. 536. Left in doubt : Watson \. Paine,
25 O. S. 346.
A power of attorney to confess judgment, attached to a note, and
forming part of the same instrument, does not destroy the negotiability
of the note. Otsborn v. Hawley, 19 O. 130.
A warrant of attorney to confess a judgment executed by the prin-
cipal and surety on a note or bill, although in its terms a p >w -r t .1
confess a joint judgment against principal and surety, may !> a g><d
power to take a judgment against the principal alone. Hnniln<jt<>n v.
Finch, 3 O. S. 445.
The taking of a judgment upon a warrant of attorney, without filing
the original warrant or a copy thereof, is an irregularity for which the
judgment may be set aside. Knnx C<>. Bank v. Doty, 9 O. S. .~>i).">.
(In confessions of judgments before a justice of the peace, to give
justice jurisdiction, the appearance must bo in person. Jmi
588 CODE PRACTICE AND PRECEDENTS.
not be taken upon a warrant of attorney, confessed by attorney. Mc-
Cleary v. McLain, 2 O. S. 368. This is by force of section 588.)
How warrant executed by person in custody. SEC. 5325. A warrant
of attorney executed by a person in custody, to confess judgment in
favor of the person at whose suit he is in custody, shall be of no force
unless executed in presence of an attorney expressly named by the
person in custody, and signed by him as a witness.
MANNER OF GIVING AND ENTERING JUDGMENT.
Judgment must be entered by clerk upon verdict. SEC. 5326. When a
trial by jury has been had, judgment must 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.
See sections 5327, 5328, ante.
WJien defendant may have judgment. SEC. 5329. When a counter-
claim or set-off, established at the trial, exceeds the plaintiff's claim so
established, judgment for the defendant must be given for the excess ;
or, when it appears that the defendant is entitled to any affirmative re-
lief, judgment shall be given therefor.
Note. When a counterclaim or set-off is contained in the answer, the jury
should be instructed to find, by their verdict, what, if any thing, is due to the
plaintiff upon the cause of action stated in the petition, and what, if any thing,
to the defendant upon the matters claimed in the answer, and to subtract the
less from the larger amount, and render their verdict in favor of the party en-
titled for such balance.
VERDICT UPON PLAINTIFF'S CLAIM AND CLAIM SET FORTH IN DE
PENDANT'S ANSWER.
[Form 353.]
A. B.
No. .] vs.
C. D.
We, the jury, upon the issues joined, find that there is due to the
plaintiff from the defendant upon the cause of action stated in his peti-
tion dollars, and that there is due to the defendant from the plaintiff,
upon the matters claimed in his answer, dollars.
We find for the plaintiff [or, defendant] the dollars [the balance due
to such party]. , Foreman.
Eights of minors reserved. SEC. 5330 (83 v. 74). It shall not be
necessary to reserve in a judgment or order the right of a minor to
show cause against it after attaining the age of majority ; but in any
JUDGMENTS. 589
case in which, but for this section, such reservation would have been
proper, the minor may, within one year after arriving at the age of
majority, show cause against such order or judgment. (April 14,
1886.)
.Vote. The only change made by this section in the one repealed is to substi-
tutt- the words " minor" for "infant," and. "majority" for "twenty-one years,"
which, as shown ante, are synonymous, "twenty-one years" being construed
"eighteen years " in the case of a female. See note to section 4978.
(a) In. a suit by bill in equity against an infant, for the specific
performance of an alleged contract with his ancestor, he is entitled to
a day in court, after coming of age, to show cause against the decree,
and if an absolute decree be taken against him it will be error. Lony
v. Mulfnrd, 17 O. S. 484. (This was under our former system of prac
tice. Now he has one year to show such cause, whether put in, or
omitted from the judgment. The old chancery rule was that, wln-n
infants arrived at age, or a disability was removed, they should be
cih-d to appear and show cause against the decree, before it could be-
come final.)
A decree against an infant could be impeached for error by original
bill ; and what would have been a good cause of action to sustain au
original bill is a good cause of action under the Code. Ib. (This
case seems to establish the law to be that the right given by section
5354 to obtain a new trial in the same court is not exclusive, and does
not take away the right to obtain relief as it formerly existed.)
1 See sections 5331-5335, ante.
Wken judicial record* to be transcribed, SEC. 5336. A court, when it
deems it necessary, may, by order on the journal, direct its clerk to
transcribe any book in his office into a new volume, and the transcript
so made shall be as valid as the original; and for such services the
clerk shall receive *iz cents for each hundred words copied, to be paid
out of the county treasury.
Wlten complete records need not be made. SEC. 5337. Section 533:?
shall not apply
1. In criminal prosecutions, when the indictment has been quashed,
or when the prosecuting attorney has entered a nolle proseqni on tin-
indictment.
2. When the action has been dismissed without prejudice to a future
action, as provided in section 5314.
3. In all actions in which, in open court, at the term at which the
590 CODE PRACTICE AND PRECEDENTS.
final order or judgment is made, both parties declare their agreement
that no record shall be made.
When to be made on payment of costs. SEC. 5338. When an action
has been dismissed without prejudice to a future action, the clerk shall
made a complete record of the proceedings, iipon being paid therefor
by the party requesting it.
JUDGMENT FOR COSTS ITS ENFORCEMENT.
When plaintiff must give security for costs. SEC. 5340. The plaintiff,
if a non-resident of the county in which the action is brought, or a
partnership suing by its company name, must furnish sufficient se-
curity for costs ; the surety must be a resident of the county, and ap-
proved by the clerk, and his obligation shall be complete by indorsing
.the summons, or signing his name on the petition, as surety for costs ;
he shall be bound for the payment of all costs which may be adjudged
against the plaintiff in the court in which the action is brought, or in
any other court to which it may be carried, and for all costs which
may be taxed against the plaintiff in such action, whether he obtain
judgment or not ; but the plaintiff may deposit with the clerk of the
court such sum of money, as security for costs in the case, as, in the
opinion of the clerk, will be sufficient for the purpose ; and the court
may, on motion of the defendant, and if satisfied that such deposit is
not sufficient, require the same to be increased, or personal security to
be given.
() The surety of a non-resident plaintiff, for costs, under this sec-
tion, is only liable to such costs as the defendant may recover against
the plaintiff, and for the costs of the plaintiff's witnesses. McKenzie \.
Horr, 15 O. S. 478.
The methods mentioned in" the section for entering the security are
not exclusive. Schae/er v. Waldo, 7 O. S. 309.
Where the statute required the summons to be indorsed with secu-
rity for costs in case the plaintiff was a non-resident, before service,
the want of such indorsement did not invalidate the service. Me Vicker
v. Ludlow, 2 O. 259.
An indorsement on the writ, after service and ret ;rn, would bind
the surety. Newcom v. Ran, 18 O. 240.
(The costs which are carried into the judgment of a party draw in-
terest whether they have been paid by such party or not. Emmitt v.
Brophy, 42 O. S. 82. See section 1319.)
When a cause is at issue and called for trial, it is too late to demand
security for costs, so as to give the defendant a right to continue the
cause, or to have the action dismissed without prejudice. Baymer v.
JUDGMENTS. 591
Endly, Tappan, 134. (In such cases, the court should make such rule
as to time lor giving the security us may he just, not taking tin- party
hy Mirprise. The rule decided in Tappau has been the settled prac-
tice during the entire judicial history of the state. Officers can require
payment of their fees before rendering the official service.)
\\lifn action may be dismissed for want of security for costs. SEC. 5341.
If security for costs be not given in a case mentioned in the preceding
section, the court shall at any time before the commencenunt of the
trial, on motion of the defendant, and notice to the plaintiff, dismiss
the action, unless in a reasonable time, which may be allowed by the
court, security be given.
Security required if plaintiff become non-resident. SEC. 5342. If the
plaintiff become a non-resident of the county in which the suit is
brought, during its pendency, he may be compelled, in the manner
.-tated in the two preceding sections, to give such security.
When additional security may be required. SEC. 5343. In an action
iti which security for costs has been given, the defendant may, at any
time before the commencement of the trial, after reasonable notice to the
plaintiff, move the court for additional security ; and if, on such motion,
the court is satisfied that the surety has removed from this state, or is
not sufficient, the action may be dismissed, unless, in a reasonable
time, to be fixed by the court, sufficient security be given.
Wlii-n jndjmcut may be entered against surety for costs. SEC. 5344.
After final judgment in an action in which security for costs has been
given, the court may, on motion of the defendant, or a person having
a right to such costs, or any part thereof, after ten days' notice of such
motion, render judgment, in the name of the defendant, or his legal
representatives, against the surety for costs, his executors or adminis-
trators, for the amount of costs adjudged against the plaintiff, or so
much thereof as is unpaid ; and execution may be issued on such judg-
ment as in other cases, for the use and benefit of the persons entitled
to such costs.
1I7///1 informers diall pay 4Mb. SEC. 5345. If an informer, under
a (>eual statute, to whom is given the penalty, or any part thereof, if
recovered, dismiss his suit or prosecution, or tail in the same, he shall
pay all costs, unless he is an officer whose duty it is to commence the
Mine.
.Vote. This section ^refers only to civil actions.
%
When defendant disclaims. SEC. 5346. When a defendant disclaims
having title or interest in laud, or other property, the subject of the
592 CODE PRACTICE AND PRECEDENTS.
action, he shall recover costs, unless, for special reasons, the court ad-
judge otherwise.
Costs on preliminary matters. SEC. 5347. Unless otherwise provided
by statute, the costs of motions, continuances, amendments, and the
like, shall be taxed and paid us the court may direct.
When defendant shall pay. SEC. 5348. When it is not otherwise
provided by statute, costs shall be allowed, of course, to the plaintiff,
upon a judgment in his favor, in actions for the recovery of money only,
or for the recovery of specific real or personal property.
(a) In this state costs, as a general rule, have ever been allowed to
the party recovering judgment. The amount to be taxed, however,
has been 'varied from time to time, the whole subject being regu-
lated by statute. Sett v. Bates, 3 0. 380, 381.
(Referees' compensation is part of the costs (section 5218), and
follow the judgment. A master commissioner's compensation is to be
borne by the party or parties as the court may order, like costs in a
chancery cause (section 5424), unless "in actions for the recovery of
money only, or for the recovery of specific real or personal property.")
Costs are unknown to the common law. They are only given by statute,
and may be changed or entirely taken away, at the will of the legisla-
ture. Farrier v. Cairn, 5 O. 45, 47.
No officer whose compensation is regulated by fees can charge for a
particular service unless the law specifically gives him fees for that serv-
ice. Fees are not allowed by implication. Debolt v. Cincinnati Tp.,
7 O. S. 237, 238.
(To entitle an officer to poundage given by statute, the money must
actually come into his hands. If paid directly to the party, the
officer is not entitled to any. thing. Bushnell v. Eaton, W. 720;
Vance v. Bank of Columbus, 2 O. 214; Fiedeldeyv. Diserens, 26 O.
S. 312.)
Where the plaintiff sues the defendant for a sum of money, and the
defendant pleads a counterclaim or set-off, which is allowed on the
trial, and the plaintiff recovers $100, or more, the plaintiff recovers
full costs. Eaton v. Bradford, 40 O. S. 106, 107. Section 5349 (83
v. 86.)
The party recovering judgment is entitled to interest on his costs,
carried into his judgment, whether he has paid them or not, but not
upon accruing costs, unless he has paid them, and then only from the
time of payment. Emmitt v. Brophy, 42 O. S. 93.
A court without jurisdiction has no power to render judgment for
costs, except in the case of a judgment reversed on error because the
lower court had not jurisdiction, in which case the reversing court must
JUDGMENTS. 593
render a judgment for costs in the case. Rothivett v. Winterstein, 42 O.
S. 249 ; Moore v. Boyer, ib. 312. G727.
SEC. 5349 (83 v. 6). If it shall appear that a justice of the peace
has jurisdiction of an action, and the same has been brought in any
other court, and the judgment is less than one hundred dollars, unless
the recovery be reduced below that sum by counterclaim or set off,
each party shall pav his own costs; and in all actions for libel, slander,
malicious prosecusion, assault, assault and battery, false imprisonment,
criminal conversation or seduction, actions for nuisance, or against a
justice of the peace for misconduct in office, where the damage as-
sessed i.s under five dollars, the plaintiff shall not recover costs.
Xote. This section may illustrate the importance of pleading in some cases.
A justice of the peace has no jurisdiction in cases of injuries to real estate, other
than in trespass not for indirect or consequential injuries thereto. In the pro-
fessional experience of the author, a case WHS brought and tried in the Court of
Common Pleas against a party who had kindled a fire in his clearing in the
oarly spring, which burned over his ground and upon the land of a neighbor,
l>urning his straw, hay, and fodder, etc. The case was tried several times, the
jury disagreeing, and finally the plaintiff recovered something less than $100.
There then arose the question as to what the judgment for costs should be, each
party's being heavy. The petition had been drawn by a lawyer trained under
the "old system of pleading." Among other things, it averred that "the fire
burned up tbe^roM of the plaintiff then and there standing and growing." Such
grass is part of the realty, and though, in that case it must hnve been very
sparse, and its value, probably not considered by the jury at all, the allegation
entitled the plaintiff to a judgment for his costs, and without which he could
not have recovered them, the property destroyed being personal property.
(a) It is error to instruct a jury that iu a proper case for exemplary
damages they should know that in case the party recovers less than
one hundred dollars he can not recover his costs in the action. Rail-
road Co. v. Bartram, 11 O. S. 457.
The amount claimed in tiie petition determines the jurisdiction of the
Court of Common Pleas; but 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 plaintiffs claim to be more
than oue hundred dollars, and have reduced the same by the allowance
of a counterclaim or set-off to less than that sum. Brunauyh v. TFor-
ley, 6 O. S. 598.
In an action in the Court of Common Pleas for recovery of money
only, wfiere the facts in a counterclaim set up by the defendant are
denied by the plaintiff, and the jury, by a general verdict, find " tho
38
594 CODE PRACTICE AND PRECEDENTS.
issues joined" for the plaintiff, and assess his damages at less than (me
hundred dollars, the plaintiff is not entitled to recover costs. Butler
v. Kneeland, 23 O. S. 196. (This case shows the importance of fram-
ing verdicts in such cases as indicated in Form 353.)
The plaintiff in an action of trespass to real estate, in the Court of
Common Pleas, does not recover costs where the recovery is less than
one hundred dollars, but judgment should be that each party pay the
costs by him made. Dlnduff v. Steubenville R. Co., 14 O S. 336,
which limits and explains Norton v. Hart, 1 O. 154.
Where a case is dismissed for want of jurisdiction of the subject-
matter, the court can only strike the case from its docket, and can
render no judgment for costs. Norton v. McLeary, 8 O. S. 205;
Burke v. Jackson, 22 O. S. 268 ; Wilson v. Holeman, 2 O. 254 ; Nichol
v. Patterson, 4 O. 200; Paine v. Portgage Co., W. 417. (When, on
petition in error, a cause is reversed for want of jurisdiction in the
lower court, costs of the proceedings in error are recoverable by the
plaintiff in error. 6727; Burke v. Jackson, 22 O. S. 268; Moore v.
Boyer, 42 O. S. 312.)
No judgment can be rendered in the Common Pleas Court for the
costs before a justice of the peace from whom the case is appealed,
where he had no jurisdiction. Harrington v. Heath, 15 O. 483.
Wlien plaintiff to pay. SEC: 5350. Costs shall be allowed, of course,
to any defendant, upon a judgment in his favor in the actions men-
tioned in the two preceding sections.
When costs in the discretion of the court. SEC. 5351. In other actions
the court may award and tax costs, and apportion them between the
parties, on the same or adverse sides, as it may adjudge to be right
and equitable.
(a) The costs of a proceeding to settle an administrator's account,
on exceptions filed thereto, may be awarded and taxed by the court
" as in its discretion it may think right and equitable," in analogy to
the provisions of this section. Raab's Estate, 16 O. S. 273.
In a proceeding igainst a mortgagee for an account, the court is au-
thorized to tax the costs as in its discretion it may think right and
equitable. Armstrong v. McAlpin, 18 O. S. 184.
In a suit by directors to dissolve an insolvent corporation, where
there was no property, the court, in its discretion, could award costs
against the directors. Godley v. Pugh, 29 O. S. 438.
In a suit against a trustee, in relation to the trust estate, demanding
what he might hesitate to grant, except under the protection of the
Jl'DfiMENTS. 595
court, the plaintiff rcay 1-e charged with the costs. Armstrong v.
. i-jo. 287,
Wlteie judgment on warrant of attorney n ->-t :i>lil<- under section
." i'i I. the c-"iirt is vj.-ti-d with discretion as to costs. /fanJl; o/" Gwte v.
t O. S. 142, 150.
ir/im several actions are brought on Vie same {instrument. SEC.
When several actions are brought on one instrument in writing,
jinuinst several parties who might have been joined as defendants in
the same action, no costs shall be recovered by the plaintiff in more
than one of the actions, if the parties proceeded against in the other
actions were, at the commencement of the previous acti >n, openly
within the state.
Note. This section would seem to apply to separate actions against the maker
and indorser of a promissory note, etc.
Fees on summons to another county. SEC. 5353. When a summons is
issued to another county, it may be returned by mail, and the sheriff
shall be entitled to the same fees as if it had issued in the county of
which he is sheriff.
JUDGMENT IN CASE OF MONEY TENDERED.
[Form 354. 5137.]
John Doe ]
No. .] v. [ Judgment for $ - for Plaintiff. For
John Smith, John Jones, and I Defendant for Costs.
Hugh Evans.
In this cause [upon the verdict herein] the said defendant, John Smith.
having tendered to the plaintiff, before the commencement of this action,
as Mated in his answer herein, the sum of - dollars, the full amount
then due upon the cause of action stated in the petition, and paid the-
name to the clerk of this court before the trial of this cause; it is ther-
fore adjudged by the court that the said John Doe recover of the said
John Smith, as maker of said promissory note, fhe said sum of - dol-
lars; and that the said John Smith go hence without day and recover
of the said John Doe his costs in this behalf expended, taxed at - dol-
lars; plaintiff's costs taxe<l at - dollars.
And it is further adjudged by the court, that, by reason of the premises,
the f-aid John Jones and Hugh Evans, as such said indorsera, go hence
without day and recover of the said John Doe their respective co-
this behalf expended taxed at - dollars.
JVbfe.-ftJndorsers arc only collaterally liable, that is, if tbe maker fail to pay;
and if, before the commencement of the action, the maker tenders the amount
596 CODE PRACTICE AND PRECEDENTS.
due to the holder, and pays it to the clerk before the trial, it is, in effect, pay-
ment to the holder, who can receive ther money from the clerk, and this should
release the indorsers from their collateral contracts.
JUDGMENT IN CASE OP TENDERED PROPERTY.
[Form 355. 5138.]
A. B. 1
No .] vs. > Judgment for Plaintiff, $ . For Defendant for Costs.
C. D. )
In this case [upon the verdict herein] the said defendant, C. D., having
tendered to said plaintiff, A. B., the said article of personal property men-
tioned in the pleadings herein, according to the terms and conditions of
the said contract between the parties, and the said property being of
the value of dollars;* it is adjudged by the court that said A. B.
recover of the said C. D. the said sum of dollars, the assessed value
of said article of personal property;* and that said C. D. recover of the
said plaintiff', A. B., his costs in this behalf expended, taxed at dollars.
Plaintiff's costs taxed at d illars.
[T/", in such case, Ike defendant e'ect to perform the contract, instead of what is
included between the **, in the above form, insert : And the said defendant hav-
ing executed to the plaintiff" an undertaking, with E. F. and G. II. as his
sureties, in the sum of dollars, as directed and approved by the court,
conditioned that he will perform said contract within days from the
date of this entry, it is adjudged by the court that said defendant go
hence without day and recover of the plaintiff his costs in this behalf ex-
pended, taxed at dollars. Plaintiff's costs taxed at dollars.
And said article, from the time of said tender, to wit, on the day
of , A. D 18 shall be deemed to have been and to be kept at the
risk and expense of the said plaintiff, the defendant having taken rea-
sonable care of the same. And for the costs and expenses of keeping the
same, as stated in his answer, it is adjudged that said defendant recover
of the plaintiff the sum of -" dollars, and shall moreover be entitled to
such amount as he may become entitled to for further future expenses in
the premises.
Note. It would seem such expenses ought to be computed to the time of the
trial.
A sufficient number of forms of undertaking have been given to enable the
drawing of one in this class of cases.
And this form can readily be varied to apply to contracts payable in labor,
which has been tendered according to the terms of the contract.
JUDGMENTS. 597
JUDGMENT AFTER OFFER TO CONFESS.
[Form 358. g 5139, 5140, 5141.]
John Doe
No. .] v*.
John Smith et als.
In this case, it being found by the court that [before the bringing of this
suit, as required by the statute in such case made and provided] ; [or, the
said defendants, on the day of , A. D. 18 , did offer, in writing,
to allow judgment to be taken against them, and each of them, for the
sum of dollars, and the costs of this action to said day, in all respects
as required by the statute in such case made and provided]; [or, did offer.
in open court, on the day of , A. D. 18 , to confess judgment
for the sum of dollars, with costs to said date], which offer the plaint-
iff refused to accept; and the court finding [or, it having been found by
the jury in their verdict herein] that there was on said day of said offer
the sum of dollars due to the plaintiff from the defendants, it is
therefore adjudged by the court that the plaintiff recover of the said John
Smith, as maker, and the said John Jones as first indorser, and Hugh
Evans as second indorser of said promissory note mentioned in the peti-
tion, the sum of dollars. [7/ offer under section 5139, beforesuit brought.]
And it is further adjudged that the defendants recover of the plaintiffs
their costs in this behalf expended, taxed at dollars. Plaintiff's
costs taxed at dollars.
[/' offer un'ler section'5\40 or section 5141, say :]
And it is further adjudged by the court that the plaintiff recover of the
defendants his costs in this behalf expended, to the day of , A. D.
18 . taxed at dollars. Defendants costs taxed at dollars. And
that the defendants recover of the plaintiff their costs incurred herein,
since the day of , A. D. 18 , taxed at dollars. Plaintiff's
costs taxed at dollars.
If the offer be not as great as the amount recovered, the plaintiff will
recover judgment for his costs in full. See section 5143.
JUDGMENTS BY CONFESSION.
[Form 357. -0321. 5322.]
John Doe. Plaintiff ]
No. .] vs. | Confession of Judgment in Open Court,
John Smith, John Jones, and i" $ .
Hugh Evans, Defendants. }
This day personally appeared in open court John Smith. John Jones,
and Hugh Evans, and acknowledged that they did owe John Doe [said
Smith, as maker, and said Jones as first and said Evans as second in-
dorse rs] upon a promissory note [Here describe i/.J f Or, if the debt con-
fessed 'is stated in a writing fifed at the time and seined by the parties, say : An
stated in the writing filed as u pleading hurt-in], the sum of dollars,
598 CODE PRACTICE AND PRECEDENTS.
and confess judgment upon the same, and waive all right of error, and
right of appeal herein.
It is, therefore, adjudged by the court that the said John Doe recover,
etc. [The ordinary judgment for the amount confessed, with costs.~j
WARRANT OF ATTORNEY.
[Form 358.]
I do hereby authorize and empower Joseph Chitty, or any other attor-
ney at law in the State of Ohio, to appear in any court of record in said
state having jurisdiction of the subject-matter, at any regular, special, or
adjourned term of said court, and waive the issuing and service of pro-
cess, and confess a judgment against me, and in favor of John Doe [or, any
legal holder of the above promissory note], for the sum of dollars,
and costs, and thereupon to release all error and right of appeal.
[.Date.] JOHN SMITH.
If the warrant of attorney is to confess upon a promissory note, the
petition to be filed upon the cause of action can be drawn from Form 1.
It must be verified, and filed, with the warrant of attorney or a copy
of such warrant.
[Form 359.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, |
No. .] us. > Answer.
John Smith, Defendant. )
This day the said John Smith, by his attorney, Joseph Chitty, under
and by virtue of a warrant of attorney now here produced by him, and
filed, comes and waives the issuing and service of process herein, and
enters the appearance of the said John Smith ; and. for answer says that
he can not deny the action of the plaintiff, nor but that he, the said de-
fendant, does owe and is indebted to the plaintiff as stated in the petition ;
and confesses judgment therefor, and for costs; and all errors and right
of appeal are hereby released.
JOSEPH CHITTY, Attorney for John Smith.
[Form 360. 5324.]
John Doe )
No. .] vs. } Judgment on Warrant of Attorney, $ .
John Smith. j
This day this cause came on to be heard upon the petition and answer
of the said John Smith, by his attorney, Joseph Chitty, who, having pro-
duced to the court the warrant of attorney to confess judgment, executed
by said John Smith, and which [or, a copy of which] is filed in this cause,
authorizing him to confess judgment in favor of said John Doe against
said John Smith, for dollars and costs, and judgment for which is
JUDGMENTS. 599
accordingly confessed. It is therefore ordered and adjudged by the court
that said John Doe recover against the said John Smith the said sum of
dollars, and his costs in this behalf expended, taxed at dollars.
And all error and right of appeal is hereby released by said defendant.
X,,ff. Th>- promissory note upon which judgment is taken ought also to bo
filed. a< in other ruses. Sometimes the court allows a copy to be filed and the
ri-_'iriHl withdrawn.
Jt IH'.MKXT WHEN ANSWER ADMITS PART OF THE CLAIM TO BE DUE
AND CONTESTS THE RESIDUE.
[Form 361. 5320.]
v I Judgment for $ , and Continuance as to Part of
No. .J v. > ( .f
John Smith et al, )
in this case, it appearing trom the defendant's answer that he admits
-. dollars of the plaintiff's said cause of action to be due, it is then
fore adjudged by the court, on motion of the plaintiff, that the plaintiff
reco/er of the said defendant, John Smith, the sum of dollars; and
as to the residue of said plaintiff's said cause of action which is denied
by said defendant in his answer, this cause stand for trial.
Nattj What is net denied by the answer is admitted. \ 5081.
JUDGMENTS OF DISMISSAL BY THE PARTY.
[Form 362. g 5314.]
John I Judgment of Dismissal without Prejudice, by
Plaint.ff.
John Smith et als. j
And now comes the plaintiff, and before the final submission of this
cause to the jury [or, to the court, if the trial is to the court] dismis-e-
this action at his costs, and without prejudice to the bringing of another
action. [No record. See section 53.'7 ]
It is therefore considered and adjudged by the court that the defend-
ants recover of the plaintiff their costs in this behalf incurred and ex-
pended, taxed at dollars.
Plaintiff's costs taxed at dollars.
[Form 363. 5314.]
John Doe |
N> . J r*. > Judgment of Dismissal by Court
John Smith et als. )
In this case, the plaintiff having di-.. I. .><! tin- order of the court here-
tofore made herein, requiring him to [/ < substance of such order]:
it is therefore ordered that this cuu*e be ami the same is hereby dismissed,
without prejudice.'at the costs of the plaintiff.
[Hcrt enter judgment for costs as in Form 302.]
600 CODE PRACTICE AND PRECEDENTS.
SECURITY FOR COSTS MOTION.
[Form 364. 5340.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, ]
No. .] vs. V Motion for Security for Costs, etc.
John Smith et als., Defendants. J
And now come the defendants and move the court to require the
plaintiff to give security for costs, as required by law, he being a non-resi
dent of said county [or, he having become a non-resident of said county
since the commencement of this action]; and in default of his doing so
within a reasonable time to be fixed by the court, that this cause be dis-
missed. JOSEPH CHITTY, Attorney for Defendants.
Note. The court usually orders the plaintiff, in such cases, or a next friend,
if insolvent (section 4999), to give security for costs within a specified time, with-
out making the failure to do so a dismissal of the action, but after the expiration
of such time, may give further time, DF dismiss the cause for such failure.
[Form 365. 5341.]
jq _ ( Dismissal of Action for Failure to Give Security for
John Smith et als. j Costs '
In this cause, the plaintiff, by a former order of this court, having been
ordered to give security for costs, as required by law, of which order the
court finds he has had due notice; and he having failed, and still failing
to comply with such order, it is hereby ordered that * this cause be and
the same is hereby dismissed at the costs of the plaintiff, without preju-
dice.
{Enter judgment for costs. ~\
[Or, after the *, add instead of what follows ] Unless said plaintiff give
security for costs herein as required by law, on or before the day of
, 18 , this cause stand dismissed, without prejudice, at plaintiffs
costs.
PROCEEDINGS AND JUDGMENT AGAINST SURETY FOR COSTS NOTICE
TO SURETY FOR COSTS.
[Form 366. 5344.]
The State of Ohio, County, ss.
To A. B: Court of Common Pleas.
You are hereby notified that, on the day of , A. D., 18 , in the
action of John Doe against John Smith et als., pending in said court,
judgment was rendered against said John Doe for dollars costs [no-
part of which has been paid], you being surety for said John Doe, the
plaintiff, for the same; and that you appear on the day of , A. i).
18 [fen days' notice must be given], and show cause, if any you have, why
judgment should not be rendered against you for the same.
JUDGMENTS. 601
Witness my hand and the seal of said Court of Common Pleas, this
day of , A. D. 18.
[SEAL.] , <'lerk.
This notice should be issued upon precipe filed by the defendant's
attorney, or by some person having a right to such costs.
JUDGMENT FOR COSTS.
[Form 367. 5344.]
John Doe |
No. .] v*. > Judgment against A. B., Security for Costs. $ .
John Smith et als. )
This day it being shown to the satisfaction of the court that A. 8. is
surety for said John Doe for the costs of this action, which, by judgment
rendered herein against said John Doe, amount to the sum of dollars :
and that said A. B. has been notified according to law of the application
herein for judgment against him for said sum, as such surety for costs; it
is therefore adjudged by the court that said John Smith, John Jones, and
Hugh Evans recover against the said A. B. the said sum of dollars,
together with their costs in this behalf expended, taxed at dollars.
JUDGMENT FOR PLAINTIFF ON THE MERITS.
[Form 368. 5348.]
John Doe I
Jchn~Smith, JolTjones, and Ilugh Jud g m nt f r Plaintiff. *-
Evans.
This day this cause came on to be heard [upon the motion of the de-
fendants heretofore filed herein fora new trial, which motion is overruled
by the court, to which the defendants except] upon the verdict of the
jury herein, whereupon it is adjudged by the court * that the said plaint-
iff, John Doe, recover of the said defendants [John Smith, as maker, and
the s:iid John Jones, as first, and the said Hugh Evans, as second, in-
dorsers of the promissory note mentioned in the petition herein] the
urn of dollars, together with his costs in this behalf incurred and
expended, taxed at dollars.
Defendants' costs taxed at dollars.
[To which the defendants except,* ami thereupon the defendants pre-
-ntrd to the court their bill of exceptions, and asked that the same be
allowed and signed by the court, and filed as part of the record herein,
l-iit not spread upon the journal, nil of which is accordingly done. Bill
.of exceptions filed.] [Or, if the defendant elect*, alter the * aitd: and, with
the consent of the defendants, thirty days after the close of the present
term is allowed for* the taking of their bill of exceptions herein, accord-
ing to the statute in such case made ami j>r< vidcd.
Note. In units brought before the commencement of the term, interact is
602 CODE PRACTICE AND PRECEDENTS.
reckoned to the first day of the term, from which time the judgment draws in-
terest. In actions brought during the term, and by confession, iudgments draw
interest from the day of their rendition.
JUDGMENT FOR DEFENDANT UPON THE MERITS.
[Form 369. 5348.]
John Doe ^
Jhn~Smith, John' Jones, and Hugh [ Judgment for Defendants.
Evans.
[Follow preceding form to the first *, and continue* :] that the said defend-
ants go hence without day, and recover of the plaintiff their respective
costs in this behalf expended, taxed at dollars.
For EXCEPTIONS and BILL OF EXCEPTIONS, see preceding form.
JUDGMENT WHEN JURY is WAIVED, AND THE TRIAL is BY THE
COURT.
[Form 370. 520.4. J
John Doe ^
.Tonn~SJLith, John' Jones, and Hugh Judgment for Plaintiff. $-
Evans.
This day this cause came on to be tried, and [the parties in open court
having waived a trial by jury; or, by consent of the plaintiff, the defend-
ants having failed to appear at the trial, etc ] was submitted to the court
for trial and judgment; and the court having heard the evidence [ad-
duced by the parties respectively, and the arguments of their counsel],
and being fully advised in the premises, doth find that there is due to the
plaintiff from the defendants [John Smith, as maker, and John Jones, as
first, and Hugh Evans, as second indorsers of said promissory note men-
tioned in the petition] the sum of dollars.
Wherefore it is adjudged by the court that the said plaintiff recover of
the said defendants [accordingly] the said sum of dollars, together
with his costs in this behalf expended, taxed at dollars.
Defendants' costs taxed at dollars.
Note. If there is a motion for a new trial, and a bill of exceptions, Form MS
will indicate how the same are to be mentioned in the entry.
The above form and Form 369 will show how judgment for the defendant
may be drawn.
The costs part of a judgment to be rendered is governed by the sections of
the Code before given.
KKW TRIAL AKTKR JUDGMENT TERM. tX)3
CHAPTER XXXVI.
NEW TRIAL AFTER JUDGMENT TERM.
How and when application to be made. SEC. 5309. When the grounds
for a new trial could not, with reasonable diligence, have deen discov-
ered before, but are discovered after, the term at which the verdict,
report, or decision was rendered or made, the application may be made
by petition, filed as in other cases, not later than the second term after
the discovery ; whereupon a summons shall issue, and be returnable
and served, or publication made, as prescribed in section 5050 ; the
facts stated in the petition shall be considered as denied without answer;
if the service be complete in vacation, the case shall be heard and
summarily decided at the ensuing term, and if in term, it shall be
heard and decided after the expiration of twenty days from such serv-
ice; and the case shall be placed on the trial docket, and the witnesses
shall be examined in open court, or their de|X)sitions taken, as in other
cases; but no such petition shall be filed more than one year after the
final judgment was rendered.
(a) For grounds for such new trial, see sections 5305, 5354.
When the court retains jurisdiction over a motion fora new trial on
the ground of newly discovered evidence, the hearing of the motion
is not limited to evidence discovered during the term at which the mo-
tion was made, but may include evidence subsequently discovered, ami
which, in the absence of such motion, could only be brought before
the court by petition in accordance with the Civil Code, section 5309.
Moore v. Coatft, 35 O. S. 177.
court may vacate or modify jiulainent or order after term. SEC.
."..; I. (Sup., p. 349.) The Common Pleas Court, or the Circuit Curt.
may vacate or modify its own judgment or order, after the term at
which the same was made
1. Hy granting a new trial for the cause within the time and in tin-
manner provided in section 5309.
2. By a new trial granted in proceedings against ilefemlan;-, con-
structively summoned, as provided in section 504*.
3. Fqr mistake, neglect, or omission of the clerk, or irregularity in
obtaining a judgment or order.
604 CODE PRACTICE AND PRECEDENTS.
4. For fraud practiced by the successful party in obtaining a judg-
ment or order.
5. For erroneous proceedings against an infant, or person of unsound
mind, when the condition of such defendant does not appear in the
record, nor the error in the proceedings.
6. For the death of one of the parties before the judgment in the
action.
7. For unavoidable casualty or misfortune, preventing the party
from prosecuting or defending.
8. For errors in a judgment, shown by an infant within twelve
months after arriving at full age, as prescribed in section 5330. (See
83 v. 74.)
9. For taking judgments upon warrants of attorney for more than
was due the plaintiff, when the defendant was not summoned, or
otherwise legally notified of the time and place of taking such judg-
ment.
10. When such judgment or order was obtained, in whole or in a
material part, by false testimony on the part of the successful party,
or any witness in his behalf, which ordinary prudence could not have
anticipated or guarded against, and the guilty party has been con-
victed.
(a) After the existence of one or more of the causes enumerated in
the section has been found, an issue or issues as to the validity of the
alleged defense should be made up by the proper pleadings as in other
cases. Watson v. Paine, 25 O. S. 340. (Such issues are to be tried
by the court or by jury, according to whether they make a case for the
right to a jury trial or not.)
When the alleged defense is thus adjudged to be valid, and not be-
fore, the court is authorized to make a final order of vacation or mod-
ification of the original judgment. Ib.
The power conferred upon courts by this section to vacate or modify
their own judgment or orders, at a time after which they were ren-
dered, for fraud practiced by the successful party, does not abridge
the right to maintain an original action impeaching a judgment or de-
cree for fraud. Coates v. ChillicotJie Branch Bank, 23 O. S. 415.
Where, in a proceeding under this section, it appears, under the
ninth clause, that the judgment was taken for more than was due, and
the plaintiff remitted the excess by leave of the court, the proceeding
could properly be dismissed without vacating the judgment. Doty v.
Knox Co. Bank, 16 O. S. 133.
. A judgment rendered against a party after his death may be va-
cated, under this section, upon motion by his administrators Welton
NEW TRIAL AFTER JCIKJMENT TKRM. 605
v. WilLiam*, 28 O. S. 472. (But if a case has been tried and sub
mittcd to the court during the lives of the parties, and one die before
judgment is rendered, such judgment, when rendered, may be en-
tered nunc pro tune as of the trial term.)
The provisions of this section, as extended by section 5365 to pro-
bate courts, do not confer power upon a probate court, in proceedings
instituted under section 5358, to vacate or modify its own orders pre-
viously made in the settlement of the accounts of executors ami ad-
ministrators. Jolinson v. Johnson, 26 O. S. 357.
When the judgment sought to be vacated is taken jointly against
<dl the defendants, and the defense set forth in the petition to vacate
is joint, going to the whale cause of action, the judgment, if erroneous
as to some of the defendants, is erroneous as to all, and, if x the defense
is established, should be vacated as to all. A clerical error in the entry
of a judgment may be corrected, on motion, at a subsequent term.
State v. Beam, 3 O. 6. 508.
A judgment may be set aside, on motion at a term subsequent to the
judgment, for irregularity or improper conduct in procuring it to be
entered. Ami in a proceeding of this kind, the court exercises an
eqiiitnble jurisdiction, and should not vacate a judgment or order
against the right and justice of the case. Huntington v. Finch, 3 O.
S. 445.
A judgment irregularly or improperly entered might be set aside
&t A subsequent term, on motion. Hunt v. Yeatman, 3 O. 15; Foicble
v. Rayberg, 4 O. 45, 64; Reynolds v. Stanberry, 20 O. 344.
The time for jterforming a decree in chancery could be enlarged at
a subsequent term. Baird v. Shepherd, 2 O. 261.
An interlocutory decree could be modified, altered, or set aside, on
motion, at any time before final decree. Kelly v. Stanberry, 13 O. 408.
(Under the Code, interlocutory orders are subject to the same rule.)
When, after verdict against him, a defendant filed a motion for a
new trial, and afterward died, and the motion was continued to the
next term for hearing, the court could, if the motion was overruled,
enter a judgment nunr* pro tune upon the verdict as of the term in
which it was found. Dial v. Holler, 6 O. S. 228.
An order nunc pro tune could not be entered at a subsequent term,
unless an order was actually made at a preceding term, and omitted to
be entered. Bodkin v Picbnmy Co., I O. 375; Green v. Dodge, 3 O.
486; Ludlow v. Joi/won, 3 O. 553; Torbet v. Coffin, 6 O. 33.
An order made after the sale, directing an administrator to sell real
estate, could not be set up to sustain such sale. Ludlow v. Park, 4 O.
5; Ludlow v. Johnson, 3 O. 553.
606 CODE PRACTICE AND PRECEDENTS.
The omission to enter upon the journal notice of an appeal could not
be cured by a nunc pro tune order at a subsequent term, although ivhen it
was given, notice of the appeal had been entered by the court upon
its docket. Moore v. Brown, 10 O. 198. (The docket or minutes kept
by the judge are not part of the records of the court, and are merely
hearsay, and incompetent to prove what can only be proved by the
record.)
(Moore v. Brown was held, in Hubble v. Renick, 1 O. S. 174, to be
too rigid a rule to be applicable to laws remedial in their nature.
There the statute required the court to ascertain and fix the penalty
of the appeal bond, which it was held it was the duty of the court to
do without the motion of either party to the cause ; and the court
having omitted to do so, and the party gave proper notice of appeal,
and executed an appeal bond, it was held that he had done all that
could be required of him, and that the appeal was perfected. If the
appeal bond was insufficient in form or amount, the appellate court,
under the statute, could order another to be given.)
Where an order nunc pro tune was entered at the July term, to take
effect at the April term preceding, an appeal bond filed within thirty
days after the July term was not in time. Landon v. Reid, 10 O. 202.
A judgment under section 5354 is not appealable. It can only be
reviewed on petition in error. Taylor v. Fitch, 12 O. S. 169.
(In an action by a plaintiff against three defendants, and verdict and
judgment for defendants, a petition stating the issue in the action, and
alleging that the defendants entered into a conspiracy to and did testify
falsely, thereby obtained the judgment, which was not discovered until
after the term, is sufficient under clause 4 of section 5354. It is not
governed by clause 10 of the section. Baldwin v. Sheets, 39 O. S. 624.
And see note to section 5097.)
When judgment rendered on service by publication may be opened. SEC.
5355. A party agdust whom a judgment or order has been rendered
without other service than by publication in a newspaper, may, at any
time within Jive years after the date of the judgment or order, have the
same opened, and be let in to defend; but before the judgment or order
can be opened, the applicant shall give notice to the adverse party of
his intention to make the application, and shall file a full answer to the
petition, pay all costs, if the court require them to be paid, and make
it appear, to the satisfaction of the court, that during the pendency of
the action he had no actual notice thereof in time to appear in court
and make his defense ; and each party may present affidavits.
NEW TRIAL AFTER JL'DOMKNT TERM. GOT
.Vote Service by publication can only be made in the cases prescribed by
statute. This section can not apply to a case of service of n copy <>f the petition
and summon-* <>u the defendant out of the state, as that gives him actual notice
of the pendency of the action in time t > appear and defend. If he has had such
he can not open the judgment. This was tin- i-mtial fact tried on affi-
davits in Core v. W. Va. Oil .j- Oil Land Co., -10 O. S. 636, though not mentioned
in the report, as the finding of the Common Pleas upon the evidence was not
upon.
(a) The notice required to be given to the adverse party must be
given to such jnirty to the case as may be interested in maintaining the
judgment. Fitzgerald v. Cross, 30 O. S. 444.
Bonafide purchaser unaffected by proceedings. SEC. 5356. The title to
any property which is the subject of the judgment or order sought to
be opened, and which, by or in consequence of the judgment or order,
has parsed to a purchaser in good faith, shall not be affected by any
pnxvedings under ihetioo preceding sections ; nor shall the title to any
pro|erty sold before judgment under an attachment be affected by said
sections.
,\,,fe. The pLint iff, or party adverse in interest to the person so served
by publication in a newspaper only, can not be a purchaser in good faith
within tbe meaning of this section, and title to the thing so purchased, in his
DHii'ls. would be affected by opening up the judgment ; and necessarily the title
of a purcha>T from him, as such purchaser would he chargeable with notice of
the character of such title. Facts sufficient to put a party on inquiry are notice
to him, and notice is knowledge. Sen Curwen's note to Rf.eder v. Rarr, 4 0. 159.
" When a defect in the title is brought to the knowledge of a purchaser no
inconvenience will excuse him from the utmost scrutiny."
(o) The title of a purchaser at a judicial sale, as a general rule, ran
not l>e impeached, in equity, for errors or irregularities in the proceed-
in.' ~ ; but whore a tract of land not in fact sold, and for which no con-
sideration \vas paid or intended to be paid by the purchaser, is, !>y
mistake, included in the report of sales, such mistake may be corrected
in equity as against the purchaser or bis heirs even after confirmation
and ileed in pursuance thereof. And parol evidence may be admitted
to prove such mistake. Stites v. Wiedncr, 35 O. S. 555.
Mode of proceeding in certain cases under section 53->4, clause 3. Sue
5357. The proceedings to correct mistakes or omissions of the clerk, of
irregularity in obtaining a judgment or order, shall be by motion,
up >M reasonable notice to the adverse party, or his attorney in the
action ; but the motion to vacate a judgment because of its rendition
608 CODE PRACTICE AND PRECEDENTS.
before the action regularly stood for trial, can be made only in the first three
days of the succeeding term.
(a) Proceedings to modify a judgment prosecuted under this section,
to correct an irregularity in obtaining a judgment or order, must be
commenced within three years after the judgment was rendered or order
was made. Corry v. Campbell, 34 O. S. 204.
To render judgment by default, before the expiration of the day
named in the summons for answer, is not merely an irregularity, to be
co.rected by motion in the court of original jurisdiction, but an error
for which the judgment may be reversed. Williamson v. Nicklin, 34
O. S. 123.
The taking of a judgment upon a warrant of attorney, without filing
the original warrant or a copy thereof, is an irregularity, for which the
judgment may be set aside upon motion, at the same or a subsequent
term, the motion having been filed at the first term and regularly con-
tinued. Knox Co. Bank v. Doty, 9 O. S. 506.
The Common Pleas Court can not vacate a final judgment at a sub-
sequent term, on the motion of one of the -parties, without notice to
the other party or his attorney. Hettrick v. Wilson, 12 O. S. 136.
Mode of proceeding in other cases Clauses, 4, 5, 6, 7, 8, 9, 10. SEC.
5358. The proceedings to vacate the judgment or order on the grounds
mentioned in subdivisions four, five, six, seven, eight, nine, and ten,
of section 5354, shall be by petition, verified by affidavit, setting forth
the judgment or order, the grounds to vacate or modify it, and, if the
party applying was defendant, the defense to the action ; and on such
petition a summons shall issue and be served as in the commencement
of an action.
(a) A party by making application under this section or 5359 vol-
untarily submits himself to the jurisdiction of the court, and is bound
by any judgment or order which may be afterward rendered in the
action. Watson v. Paine, 25 O. S. 340.
Grounds to vacate to be first tried. SEC. 5359. The court must first
try and decide upon the grounds to vacate or modify a judgment or or-
der, before trying or deciding upon the validity of the defense or cause
of action.
What must precede vacation of judgment. SEC. 5360. A judgment
shall not be vacated on motion or petition until it is adjudged that
there is a valid defense to the action in which the judgment was ren-
dered; or, if the plaintiff seeks its vacation, that there is a valid cause
NEW TRIAL AFTER JUDGMENT TERM. 609
of action ; and when a judgment is modified, all liens and securities
obtained under it shall be preserved to the modified judgment.
(a) It was not intended, by this and section 5361, to deprive the
parties of their right to a jury trial, and it is error, after finding the
grounds to vacate or modify exist, to proceed, without a jury, where
the right is not waived, to try and adjudge the validity of the alleged
defense. Frazier v. Williams, 24 O. S. 625 ; Watson v. Paine, 25 O.
8. 340 ; Second National Bank v. Slemmons, 34 O. S. 143, 150.
(Where it is found that there is good ground to vacate such judg-
ment or final order, judgment of vacation is suspended until the question
whether there is a valid defense, or cause of action, can be tried by a
jury, or if the case is not one for a jury, by the court as other issues
of fact are tried and determined. When the alleged defense has
thus been adjudged to be valid, and not before the court is authorised
to make a final order of vacation or modification of the original judg-
ment.)
A finding on the merits, on the final trial, in favor of the party
wjnintt whom the irregularity was committed, is a sufficient compliance
with section 5360. Brundage v. Briggs, 25 O. S. 652.
Costs. The proceedings to vacate or modify a judgment or final or-
der after the term are equitable in their nature, and the court may
make such determination- of the question of ctiafa incurred thereby as
will be equitable. Bank v. Slemmons, 34 O. S. 150.
When enforcement of judgment may be enjoined. SEC. 5361. The party
seeking to vacate or modify a judgment or order may obtain an injunc-
tion suspending proceedings on the whole or a part thereof, which in-
junction may be granted by the court, or any judge thereof, when it is
rendered probable, by affidavit, or by exhibition of the record, that the
party is entitled to have such judgment or order vacated or modified.
Suspension of execution when judgment rendered prematurely. SEC.
5362. If the judgment was rendered before the action stood for trial,
the suspension may be granted as provided in the preceding section,
although no valid defense to the action be shown; and the court shall
make such orders concerning the executions to be issued on the
judgment as shall give to the defendant the same rights of delay he
would have had if the judgment had been rendered at the proper
time.
Relief after judgment Limitations as to time. SEC. 5363 (83 v. 74).
Proceediggs to vacate or modify a judgment or order, for causes men-
tioned iu subdivisions four, five, and seven, of section 5354, must be
commenced within two years after the judgment was rendered, or
610 CODE PRACTICE AND PRECEDENTS.
order made ; proceedings for the causes mentioned in subdivisions
three and six of the same section shall be commenced within three
years, and in subdivision nine within two years, after the defendant has
notice of the judgment; and under subdivision ten of the same sec-
tion the proceedings may be commenced after the guilty party is con-
victed, if the conviction be within two years from the rendition of the
judgment ; but persons within the age of minority, of unsound mind,
or imprisoned, may commence such proceeding within the respective
times limited by this section, after such disability is removed. (April
14, 1886.)
See note to section 4978. The person under such disability may
commence such proceedings before the removal of the same, and will
be finally concluded by the judgment rendered. To deny the right to
institute an action or proceeding by a person under a disability might
result in the denial of justice, as in many cases the disability may never
be removed.
(a) \Vhereaplaintifftookjudgment, upon warrant of attorney, against
the principal debtor, and his sureties, for an excessive amount, and the
principal debtor brought suit against the judgment plaintiff under
clause 9, section 5354, within the limited period, but did no't make
the sureties parties to the proceedings until after the limited time had
elapsed after each of the judgment defendants had notice of the judg-
ment, the court had jurisdiction of the proceedings, and it was held to
be error to dismiss the same on that ground, on motion of the judgment
plaintiff. Bever v. Beardmore, 40 O. S. 70.
Note. Proceedings under subdivisions or clauses 4, 5, and 7, of this section
are : 4. " For fraud practiced by the successful party," etc.; 5, " For erroneous
proceedings against a person under legal disability," etc.; and 7. " For unavoid-
able casualty," etc., limited to two years after judgment or order rendered.
Clause 3. For mistakes, etc. of clerk; and 6. For death of one of the parties
before judgment in the action, limited to three years after the judgment is ren-
dered.
Clause 9. For taking judgment upon warrants of attorney for more than was
due, etc., limited to two years after defendant has notice of judgment.
Clause 10. Judgment or order obtained in whole or in part by false testimony,
limited by the conviction of the party guilty of the false testimony, if within two
years after rendition of judgment or order.
Clause 1 relates to grounds for new trial at the term, which were not discov-
ered then, and could not have been by reasonable diligence, as provided in sec-
tion 5305, limited to not later than the second term after the discovery. 5309.
Clause 2 relates to judgments taken in cases of service by publication in a
newspaper only, under section 5048. Proceedings to vacate such judgments or
orders are limited to five years after the date of the judgment or order. 5355.
NEW TRIAL AFTER JUDGMENT TERM. 611
In the case of persons under legal disability, the same periods of time are
given after the removal of such disability
Time will be reckoned from the actual date of the rendition of the judg-
ment or order, and nut from the first day of the term at which the same was
rendered.
When full amount not recovered in one action, by mistake, action may
b* brought for balance. SEC. 5364. When, by mistake of the pleader,
the amount claimed! n the pleading, and recovered, is less than the true
amount then due, the party injured by the mistake may recover the
balance by civil action, without costs.
.YofV. The mistake in not claiming the full amount must have been the
pleader's; and the full amount must not have been claimed in the pleading.
In such cases the judgment rendered upon the cause ol action is not conclusive,
and the judgment rendered need not b<; set aside to obtain relief.
TJti* chapter applies to Supreme and Probate Courts. SEC. 5365. The
provisions of this chapter (tit. 1, div. 4, ch. 6) shall apply to
the Supreme Court and Probate Court, so far as the same may be ap-
plicable to their judgments or final orders ; and in estimating time the
Probate Court shall, for this purpose, be considered as holding, in each
year, three terms, of four months each, the first commencing on the first
of January of each year.
(a) Parties have not the right to a rehearing, after a decision of a
cause by the Supreme Court, unless the application comes within the
provisions of this chapter (6). Nor can such rehearing be ordered by
the court after the term at which the judgment was entered, if the case
is not within those provisions. Zink v. Grant, 26 O. S. 378.
Petition for new trial under sections 5309, 5305. Such proceeding
must be commenced not later than the second term after the discover}-.
;<>9.
Petitions under this chapter (7) must be verified, and summons issued
and served, or publication made as prescribed in sections 5050, 5048,
clause 8. The pleadings may be the same as in civil actions.
[Form 371. % 5309, 5305.]
Common Pleas Court of County, Ohio.
John Smith. John Jones, and Hugh')
Evans, Plaintiffs, f p ..
No -.] M. Petition.
John Doe, Defendant.
The said plaintiffs say that heretofore, at the term, A. D. 18 , of
said court, to wit, on the day of , A. D. 18. the said John Doe
recovered a judgment against the defendants [John Smith, aa maker, and
612 CODE PRACTICE AND PRECEDENTS.
John Jones as first and Hugh Evans as second indorsers, etc."] for the
sum of dollars, principal debt, and dollars costs, in the action
in said court, number , wherein the said John Doe was plaintiff and
the said John Smith, John Jones, and Hugh Evans were defendants,
which judgment remains in full force, and is wholly unsatisfied.
The plaintiffs further say that the said prevailing party, John Doe [or,
the jury during the trial of said cause] was guilty of misconduct, in this,
to wit: [Here slate the facts constituting the charge of such misconduct.']
The plaintiffs further allege that they did not discover said facts during
the said term of the court at which said judgment was rendered, nor until
about the day of , A. D. 18 , when they learned of the same in
the following manner: \Jierestate how the discovery was made~\; nor could
they, with reasonable diligence, have before discovered the facts herein-
before mentioned and stated.
These plaintiffs have a valid defense to said action, and for such de-
fense they say : \H.ere state the defense, or defenses, the same as in an answe.- to
a petition.']
\If it be advisable to enjoin the enforcement of the judgment as provided in section
5361, add: And the plaintiffs further say that said John Doe has caused
an execution to be issued upon said judgment, and the same to be levied
upon the property of the said , one of these plaintiffs, and is en-
deavoring thereby to sell such property to satisfy said judgment [or, is
threatening, and will, if not restrained by the court, issue execution upon
said judgment, and levy on and sell the property of these complainants
to satisfy said judgment, which will produce great and irreparable injury
to these plaintiffs.] '
Wherefore the plaintiffs ask [for an order enjoining the enforcement of
said judgment during the pendency of this action, and] that said judg-
ment be vacated, set aside, and held for naught; that their said defense
may be allowed to be set up and maintained, and for any and all proper
relief to which they may be entitled in the premises.
[ Verification ; precipe.~\ . JOSEPH CHITTT, Attorney for Plaintiffs.
Note. Except, in the case of a judgment rendered before the action stood fof
trial (section 6362), or when the record does not show it, the application for in-
junction should be supported by affidavit, or affidavits, showing that it is
probable the party entitled to have the judgment vacated or modified, which
includes showing that he probably has a valid defense, and other requisite
grounds.
INJUNCTION.
This subject will be fouud fully treated, post, and has been illus-
trated, ante, but it is deemed proper to give the requisite forms here,
so far as they apply to proceedings to vacate judgments, after the
term. What requisites affidavits should contain can be determined
from this chapter (6).
Notice of the application for an injunction may, or may not be re-
NEW TRIAL AFTER JUDGMENT TERM. 613
quired. If required a temporary restraining order may be granted.
5573 (83 v. 61), 5574, 5575. Before an injunction can operate, a
bond must be given. 5576. When allowed at the commencement
of an action, the clerk indorses on the summons, "injunction al-
lowed." If granted afterward, without notice, an order of injunction
must be issued and served, but not when granted upon notice,
g 5577.
TEMPORARY RESTRAINING ORDER.
[Form 372. 5361.]
John Smith, John Jones, and Hugh j
No _.] Evans - Uintiff8 ' I Temporary Restraining Order.
John Doe, Defendant.
In this case a temporary restraining order is granted, restraining the
said John Doe, as prayed for in the petition herein, until the hearing and
determination of the application for a temporary injunction herein [r,
until the day of , A. D. .18 ], which hearing is set for the
day of , A. D. 18 , at o'clock M., and to continue until deter-
mined, before the Common Pleas Court of County [in Room ], [or,
before , a judge of the Common Pleas Court of County, at 1
ltc.~\ Bond fixed at $ .
And it is ordered that said John Doe be forthwith served with a copy
of this order. . Judge [if in vacation.].
TEMPORARY INJUNCTION.
[Form 373. 5361.]
John Smith, John Jones, and Hugh i
So. -.] EVaDSl f jt laintiff8> [ Temporary Injunction.
John Doe, Defendant.
This day this cause came on to be heard upon the application of the
plaintiffs for a temporary injunction as prayed for in the petition herein,
ami the court [or, the undersigned judge of said court, in vacation] hav-
ing heard the evidence adduced by the parties respectively, and the argu-
ments of their counsel, and being fully advised in the premises, it is
hereby ordered, that on said plaintiffs executing a bond by sufficient
surety, conditioned according to law, to be approved by the clerk of said
court, in the sum of dollars, that said defendant, John Doe, be and
In- i> hereby enjoined from enforcing or attempting toenforce, in anyway,
the judgment mentioned in the petition herein, as prayed for therein,
until the final hearing and determination of this action.
Bond executed in the sum of $ , with surety, and approved by
clerk.
614 CODE PRACTICE AND PRECEDENTS.
INJUNCTION BOND OR UNDERTAKING.
[Form 374. 5576.]
Common Pleas Court of County, Ohio.
John Smith, John Jones, and Hugh "1
Evans, Plaintiffs, ! Injunction Bond,
No. .] vs. | Surety.
John Doe, Defendant.
In compliance with the order therefor made by the court [or,
judge of said court] in this cause, we, , , and as principals,
and , as surety, do hereby, jointly and severally, undertake to said
John Doe, the defendant, in the sum of dollars, that we will pay to
him all the damages that he may sustain if it be finally decided that the
injunction granted herein ought not to have been granted. .
[Date.] .
Approved th'is day of , A. D. 18 . , Clerk.
Note. The mere dismissal of an action in which an injunction has been
granted without prejudice, at the plaintiffs costs, which he has paid, is not a
final decision that the injunction ought not to have been granted, as provided
by section 5576, and does not constitute a breach of the undertaking. Krug v.
Bishop, 44 O. S. 221.
NOTICE OF APPLICATION FOR TEMPORARY INJUNCTION.
When the court requires notice to be given of the application for a
temporary injunction (section 5574), it may be as follows:
[Form 375. 5574.]
Common Pleas Court of County, Ohio.
John Smith, John Jones, and- Hugh "j
Evans, Plaintiffs, I Notice of Application for Tern-
No .] vs. f porary Injunction.
John Doe, Defendant.
To John Doe :
You are hereby notified that in this action, on the day of ,
A. D. 18 , at o'clock M., or as soon thereafter as counsel can be
heard, the above named plaintiffs will apply to said court [in Boom ]
[or, to , a judge of said court, at, etc.'} for an injunction to restrain you
from enforcing or attempting to enforce, in any way, the certain judg-
ment which you heretofore obtained in said court against said plaintiffs,
in cause No. , for about $ principal debt, and $ , costs, until
the final hearing and determination of this cause brought to vacate, etc,,
said judgment.
[Date.] JOSEPH CHITTY, Attorney for Plaintiffs.
Note. The party serving such notice should prove its service bv affidavit.
KKW TRIAL AFTER JUDOMKNT TKHM. 615
ri: COMI-I. viv\\r i\ Srrii CASE.
[Form 376. ft >
John Smith et als. |
No. .] w. > Order in Proceedings to Vacate Judgment.
John Doe. j
This day this cause came on to be heard upon the petition [answer and
reply] herein, and the court having heard the evidence adduced by the
parties respectively, and the arguments of their counsel, and being fully
advised in the premises, doth find that the grounds stated in the petition
herein to vacate the judgment set forth in the petition are true; where-
fore it is ordered that the defense set forth in the petition herein to the
said action in which said judgment was rendered be tried according to law.
If the case be one in which the parties have not the right of trial
by jury, the court may at the same or a future time proceed to try and
determine the validity of the defense. The judgment entry may be
as follows :
[Form 377. 5360.]
John Smith et als. )
No. .] vt. \ Order Vacating Judgment, etc.
John Doe. )
This day this cause came on to be heard by the court upon the issues
joined herein between the parties, and the court having heard the testi-
mony adduced by the parties respectively, and the arguments of their
counsel, and being fully advised in the premises, doth find that the plaint-
iffs herein have a valid defense to the said action of John Doe against
them, the said John Smith, John Jones, and Hugh Evans, the same being
No. - -"in this court.* It is, therefore, ordered and adjudged by the court
that the said judgment of the said John Doe against them in said cause
be, and the same is hereby vacated, set aside, and held for naught; and
that the costs of this action be borne as follows: [Here enter the judgment
a* the court finds for costs.'} [To which the said John Doe excepts. . ;
a bill of exceptions it taken, or time given, thirty days after the term, to take the
tame, make the entry accordingly. No appeal can be taken.]
If the defense presents an issue triable by jury, and a jury trial is
not waived, the court may submit to the jury the issue in the follow-
ing:
[Form 378.]
Is the defense set forth in the petition herein in fact a valid defense to
the said action in which the judgment herein complained of was rendered?
The jury will respond, in writing, "yes" or " no," their foreman
signing the verdict. The losing party may move for a new trial as in
other doses, and exceptions and bill of exceptions may be taken as in
other cases.
616 CODE PRACTICE AND PRECEDENTS.
JUDGMENT TO VACATE UPON VERDICT.
[Form 379. 5360.]
John Smith et als. ]
No. .] vs. > Judgment of Vacation, etc.
John Doe. J
This day this cause came on to be heard upon the verdict of the jury
herein [and the motion of the said John Doe for a new trial is overruled,
to which he excepts]. It is, therefore, ordered and adjudged [follow Form
377 from the *.]
Note. While upon the record such judgment of vacation will amount only
to the granting ot a new trial in the original action, yet, unless the plaintiff in
such action be able to produce other testimony, it ought to settle the litigation,
but this is as the party affected thereby may choose.
If the court in trying the grounds to vacate such judgment, as it must "first
do, finds that no valid ground exists to vacate such judgment, its judgment will
be a dismissal of the petition, with costs, to which the party will have the full
right of exception, as in other cases.
[Form 380. 5459.]
John Smith et als. 1
No. .] vs. > Judgment Dismissing Petition, etc
John Doe: J
This day this cause came on to be heard by the court upon the issues
joined herein, and the court having heard the evidence adduced by the
parties, the arguments of their counsel, and being fully advised in the
premises, doth find that there is no sufficient ground to vacate the judg-
ment mentioned in the petition herein. Whereupon it is ordered and ad--
judged by the court that the petition herein, and this action, be and the
same are hereby dismissed at tl\e costs of said complainants, and that the
said John Doe go hence without day and recover of the plaintiffs herein
his costs in this behalf expended and incurred, taxed at dollars.
Defendant's costs taxed at dollars. To all of which the said
plaintiffs except, etc.
Note. As in other cases, if it appears from the petition that the right to va-
cate or modify a judgment is barred by the statute of limitations, a demurrer
will lie; if it dues not, the bar may be set up by answer. But if neither is done
and the bar by lapse of time clearly appears from the evidence or record in
the case, the court will enforce it, as it is a jurisdictional question. The pro-
ceedings under clauses 1, 4, 5, 6, 7, 8, 9, and 10 of section 5354, must be by peti-
tion, as in other cases. 5358, 5309. Under clauses 2 and 3 of section 5354,
by motion. Section 5355 expressly requires notice of the application to vacate a
judgment rendered upon service by publication in a newspaper only, to be
served upon the adverse party, and the party moving must also file a full
NEW TRIAL AFTER JUDGMENT TERM. 617
answer to the petition upon which such judgment was rendered, and pay all
cost* if required to do so by the court.
MOTION UNDER CLAUSE 2 OF SECTION 5354.
[Form 381. 5355.]
Common Pleas Court of County, Ohio.
A. B., Plaintiff, }
No. .1 v. \ Motion to Vacate Judgment, etc.
C. !>., Defendant. )
And now conies the said defendant, C. D., and moves the court to va-
cate and set aside the judgment heretofore rendered herein against him
and in favor of said A. B. at the term of this court, A. D. 18 , for
about the sum of $ , and $ costs, and that he be let in to defend
against said action, for the reasons following:
1. For the reason that there was no other service upon him than by
publication in a newspaper, and during the pendency of the action he had
no actual notice thereof in time to appear in court and make his de-
fense.
_'. And he herewith files a full answer to the petition of the plaintiff,
and submits himself to the court's order in relation to the payment of
the costs of said action, hereby offering to perform the same, as to the
court it may appear just and equitable to make.
, Attorney for C. D.
AW'. If the notice published in the newspaper did not comply with the
statute, so as to give the court jurisdiction to render the judgment, advantage
<>r .-u.-h omission should be taken by petition in error, alleging want of juris-
diction in the court for such reason, as the motion and full answer to the peti-
tion effect the appearance of the party.
The answer filed with the motion will be the same as a full answer to the peti-
tion bad the party been regularly summoned, and filed such answer.
NOTICE OP INTENTION TO MAKE SUCH APPLICATION.
[Foim 382. 5355.]
Common Pleas Court of County, Ohio.
A. B., Plaintiff, )
No. .] vt. ^ Notice.
C. D., Defendant. )
To A. B. :
You are hereby notified that, on the day of , A. D. 18 , or as
soon thereafter as counsel can be heard [or, at the term, A. D. 18 ,
of said court], the defendant, C. D., will apply to said court to vacate the
judgment herein in your favor against said C. D. for about $ princi-
pal debt, and $ costs, at the term of said court, A. n. 18 .
A motion and full answer to your petition have been [or, will be then]
filed. The ground of said motion is that service was by publication in a
newspaper only, and during the pendency of the action said C. D. had
618 CODE PRACTICE AND PRECEDENTS.
no actual notice thereof in time to appear in court and make his de-
fense. C. D. by , his Attorney.
{Date.'}
Note. The notice should be served and service proved by affidavit. If the
ground of the motion be proved to the satisfaction of the court, and the answer
states a good defense, the judgment will be set aside and the party let in to de-
fend. If not, the motion will be overruled. Exceptions may be taken and
error proceedings instituted as in other cases.
In such a case, if the answer states a good defense, it would seem that the
judgment should be opened, and the cause be set down for trial.
GRANTING MOTION TO OPEN JUDGMENT.
[Form 383. 5355.1
A. B.|
No. .] vs. > Grant of Motion to Open Judgment.
C. D.J
The motion of said defendant, C. D., heretofore filed herein, to open
the judgment herein and to be let in to defend against this action, came
on to be heard this day by the court, and the court having heard all the
evidence adduced by the parties respectively, and the arguments of their
counsel, doth find that due notice of the application upon this motion has
been given to said plaintiff, A. B.; that said C. D. has duly filed his an-
swer containing a full defense to the petition in the action; that he had
no other notice of the pendency of the action than publication in a news-
paper, and no actual notice thereof in time to appear in court and make
his said defense. It is, therefore, ordered and adjudged by the court, that
the said judgment herein of said A. B. against said C. D. be and the same
is hereby opened, and said C. D. let in to defend against the said action
of said A. B. against him; and that all proceedings under said judgment
be and the same are hereby suspended until after the trial of the issues
raised by said defense set forth in said answer; and as to the costs of the
action to the time of entering s&id judgment, and until the filing of said
motion and answer, the court doth make the following order : [Here state
the order as to such costs.~\
For subsequent proceedings, see Forms 377, 378, 380.
In case judgment was taken before the action stood for trial, and
there be no defense, the court will, on motion of the defendant, make
such order concerning the execution to be issued on such judgment as
will give the defendant the same rights as if the same had not been
taken before the time set for the hearing of the case upon the trial
docket.
NEW TRIAL AFTER Jl'DiSMENT TERM. 619
[Form 384. \ /i362.]
Court of Common Pleas of County; Ohio.
John Doe, Plaintiff, ]
No. /] vs. > Motion to Regulate Execution, etc.
John Smith et als., Defendants. |
And now come the defendants and move the court to regulate by its
order execution [to be] issued herein so that they will have the same
righto as if said judgment had not been prematurely taken, for the fol-
lowing reasons:
1. This cause was regularly set for trial, etc., on the trial docket of tins
court, at the term thereof, A. D. 18 , on the day of , A. D.
18 ; and before said day, without the knowledge or consent of the de-
fendants, or any of them, on the day of , 18 , and before the
action stood for trial, the said judgment herein was rendered against them
by the procurement and at the instance of the plaintiff.
JOSEPH CBITTT, Attorney for Defendants.
ORDER CONCERNING EXECUTION.
[Form 385. 5362.]
John Doe |
ISo. .] vs. V Order Regulating Execution on the Judgment Herein.
John Smith et als. j
Upon the motion in this case, the court finds that this cause was regu-
larly set on the trial docket for trial and disposition on the day of
, 18 , of the present term [or, at the term, 18 ] of this court,
and that the plaintiff took his said judgment herein against the defend-
ants on the day of , 18 , before the action stood for trial, as
stated in said motion. It is, therefore, ordered by the court that execu-
tion to be issued upon said judgment shall lx executed, and have only the
same force and effect as if issued upon a judgment rendered on the said
day on which this cause stood for trial.
Xofe. For other mistake, neglect, or omission of the clerk, or irregularity in
obtaining a judgment or order, under clause 3 of section 5354, the party filing a
motion on >uch ground must establish a valid defense to the action before the
judgment can bo vacated.
If a plaintiff' seeks the vacation of a judgment or order under this chapter
(6), he must establish a valid cause of action. g 5360, 5362.
The jornis, in the case of a plaintiff, can be framed from those given for a
defendant.
620 CODE PRACTICE AND PRECEDENTS.
WHEN, BY MISTAKE OF THE PLEADER, THE AMOUNT OP THE JUDG-
MENT IS LESS THAN THE DEBT.
[Form 386. 5364.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, ]
No.] vs. I Petition.
John Smith, John Jones, and Hugh Evans, Defendants, j
For a cause of action against the said defendants, the plaintiff says that,
in [said court], on the day of , A. n. 18 , he filed his petition and
commenced a civil action, the same being cause No. in said court,
against the said John Smith, as maker, and John Jones as first, and Hugh
Evans as second indorsers, upon the promissory note of which, with all
the credits and indorsements thereon, the following is a copy: \_Here give
copy,']
The plaintiff further says that there was then due to him upon said
promissory note from the defendants, as aforesaid, the sum of dol-
lars, with interest from the day of , A. D. 18 , but by mistake
of his attorney, the pleader who drew and filed Baid petition, only the
sum of dollars, with interest from the day of , A. D. 18 , was
stated to be due and claimed therein; that, on the day of , 18 ,
at the term of said court, A. D. 18 , he duly obtained a judgment
against said defendants, as aforesaid, for only the amount, with interest, as
claimed in his said petition it being then less than the true amount due
and that there is the further sum due to him from the defendants,
as aforesaid, of dollars, with interest from the day of ,
A. D. 18.
Wherefore he prays judgment against the said John Smith, as maker,
and John Jones and Hugh Evans, as such said indorsers, for the said sum
of dollars, with interest from the day of , A. D. 18 , and for
all proper relief. EDWARD COKE, Attorney for Plaintiff.
[Verification, precipe for summons; etc., as in the commencement of other actiont
for money only.^
JUDGMENT.
[Form 387. 5364.]
John Doe j
No. .] vs. > Judgment, $ .
John Smith et als. j
This day this cause came on to be heard by the court, and the said de-
fendants, each and all, having failed to demur or answer to the petition
herein, the same is taken as true, and confessed by the said defendants.
It is, therefore, adjudged by the court that the said plaintiff recover of
said John Smith, as the maker, and said John Jones, as the first, and said
Hugh Evans, as the second indorser of said promissory note, the sum of
dollars.
And it is further adjudged that the plaintiff pay the costs of this action,
taxed at dollars.
MAKING PARTIES TO JOINT CONTRACT, ETC. 621
CHAPTER XXXVII.
MAKING PARTIES TO JOINT CONTRACT OR INSTRUMENT
PARTIES TO JUDGMENT.
How parties not served made parties to judgments, in case of joint con-
tracts. SEC. 5366. When judgment is rendered in this state on a
joint contract or instrument, parties to the action who were not sum-
moned, and persons whose liability was not known to the plaintiff* at
the rendition of the judgment, may be made parties thereto by action
in the same court, if they can be summoned in the state; or, when the
judgment is rendered elsewhere, the plaintiff may bring suit upon
such contract or instrument against the parties not summoned, or per-
sons whose liability was unknown, in any county where any such
parties reside or may be summoned.
SEC. 5367. How dormant judgment revived. See ante.
Limitation of proceedings to revive dormant judgment. SEC. 5368 (83
v. 75). An action to revive a judgment can only be brought within
tioenty-one years from the time it became dormant, unless the party en-
titled to bring such action was, at the time the judgment became dor-
mant, within the age of minority, of unsound mind, or imprisoned, in
which cases the action may be brought within fifteen years after such
disability is removed.
Note. See note to section 4978. This section repeals the exemption of mar-
ried women from the running of the statute.
SEC. 5369. (Sup., p. 351.) If either or both of the parties die after
judgment rendered, and before satisfaction thereof, their representa-
tives, real or personal, or both, as the case may require, may be made
parties to the judgment, and the same may be revived by an action
brought for that purpose ; or they may be made parties thereto in the
same manner as is prescribed for the revival of actions before judgment
(sections 5144-5161); and such judgment may be rendered and exe-
cution awarded as might or should have been given or awarded against
the representatives, real or personal, or both, of such deceased party ;
and where any judgment or decree has been rendered in the Circuit
Court of any county, and a mandate has been directed to the Common
622 CODE PRACTICE AND PRECEDENTS.
Pleas Court to carry the same into execution, and if either or both
parties thereto die before satisfaction thereof, the same may be revived
in such Common Pleas Court in conformity with this section.
'Note. When execution has been issued upon a judgment and levied upon
property of the judgment debtor, who dies, a vendi may issue and the property
levied on be sold without reviving the judgment. Bigelow v. Renker, 25 O. S.
542. And in Beaumont v. Herrick, 24 O. S. 445, where lands fraudulently con-
veyed were subjected to a judgment against the fraudulent grantor, and decreed
to be sold as his, the fraudulent grantee having died, it was held that the decree
need not be revived as against the heirs of the fraudulent grantee, the property
not having been owned by such grantee as against the judgment creditor.
A decree for the sale of mortgaged property in foreclosure proceedings, though
required to be left off the docket, does not become dormant. Moore v. Ogden,
35 O. S. 430. The cause continues pending is lis pendens. Rankin v. Han-
nan, 37 O. S. 113 ; Fox v. Reeder, 29 O. S. 181.
The right to enforce a judgment or decree, where no levy has been made, or
no order of sale issued, abates by the death of the plaintiff or judgment defend-
ant, and may be revived in the name of his personal representative. Moore v.
Ogden, 35 O. S. 430 ; Rankin v. Hannan, 37 O. S. 116, 117.
Where a personal judgment is rendered against a defendant, who dies, the
judgment at the time of his death not being a lien upon his real estate, it can
not be revived against his heirs and levied upon real estate which descended to
them from the deceased judgment debtor. Miller v. Taylor, 29 O. S. 257. The
only remedy is through the administrator in the regular course of administra-
tion. Such creditor can not, in this way, obtain a preference. Such property is
subject pro rata to all the general debts of the deceased judgment debtor.
Partners may be made parties to judgments against partnership. SEC.
5370. The members of a partnership, against which a judgment has
been rendered by its firm name, may be made parties to the judgment
by action. (See section 5011.)
(a) This section applies only to unincorporated companies. Neither
corporations de jure nor de facto are within its provisions; and an action
can not be maintained under this section to charge the stockholders
with the payment of a judgment against the corporation. Rowland v.
Header Furniture Co., 38 O. S. 269.
Sureties in certain bonds may be made parties to judgments. SEC. 5371.
Sureties to the bond of an executor, administrator, guardian, or trustee,
may be made parties to a judgment thereon against the principal, by
action.
MAKING PARTIES TO JOINT CONTRACT, ETC. 623
To MAKE PARTY ox JOINT CONTRACT OR INSTRUMENT, BUT NOT
SERVED WITH SUMMONS, A PARTY TO TUB JUDGMENT RENDERED
AGAINST ANOTHER JOINT CONTRACTOR, IN THE SAME COURT.
[Form 388. 5366.]
Common Pleas Court of County, Ohio.
A. B., Plain tiff, )
No. .1 vs. > Petition.
V. D., Defendant, j
A. B., the above named plaintiff, says that, at the term, A. D. 18 ,
of said court, he duly obtained a judgment against E. F. for the sum of
dollars, principal debt, and dollars, costs, which judgment is still
in full force, unreversed and [wholly] unsatisfied, and which draws in-
terest from the day of , A. D. 18 , the first day of said term the
action in which said judgment was obtained being cause No. , in said
court, wherein aid A. B. was plaintiff and * said E. F. and said 0. D.
were named as defendants, all of which will more fully and at large ap-
pear, reference being had to the record of said cause, which is hereby ex-
pressly made; that said C. D. was not and could not be summoned in said
action; that said action, upon which said. judgment was rendered, was
founded upon the joint contract of said E. F. and C. D., to and with the
plaintiff, to wit: [Here state the same, and, if a promissory note, etc., give a copy
thereof; or, if an account, contracted by partners, attach the same to and m<ikc it
part of the petition]; and that, upon said joint cause of action, the follow-
ing judgment was, as aforesaid, rendered in favor of the plaintiff and
against the said E. F., the said defendant, C. D., not being served with a
summons, or in any other way appearing in said action ; that is to say:
[Here give the judgment.]
Wherefore the plaintiff asks that said defendant, C. D., be made a
party to said judgment, and jointly liable with said E. F. upon the same,
according to the statute in such case made and provided, and for all
proper relief. , Attorney for Plaintiff.
[Verification, etc.']
Abfc.--T he summons may be issued to any county in the state, as it could
have been so issued in the original action.
If no judgment could have been rendered against the person sought to be
made a party to the judgment in the original action, as, for instance, if he was
not a joint contractor, it will be a good defense (Clinton Bank, itc. \. Hart, 19
0. 372; but not since the Code, section 6311) that others not joint contractors were
parties to the original action. A fact shown to exist is presumed to continue to
exist until the contrary be shown, so that it is not necessary to aver that the
judgment is in full force, etc., but it has usually been done.
In an action to makn a joint maker of a promissory note a party to a judg-
ment rendered against his co-maker, he not having been served, be can not de-
fend on the ground that the action was brought before the debt became due, the
days of grace nut having expired. }"/! v. McQovern, 42 O. S. 11.
624 CODE PRACTICE AND PRECEDENTS.
The rule is that no defense can be made by such party that his co-contractor
might have made to the action in which the judgment was rendered. A
joint obligation creates but one debt, and a judgment upon it, whether against
all or part only of the obligors, merges it in the higher security, and operates
as a bar to further proceedings upon it; but if a joint contractor not summoned
in the action as a defendant be without the jurisdiction of the court, the action
can proceed against the one served, and if the judgment be not satisfied, it is
no bar to a subsequent suit and judgment against those not within the state,
and not served with process. Those served are proceeded against for the breach
of the contract by all. This practice originated from necessity, as all were not
in the jurisdiction of any one court, so that, without such exception, no judg-
ment could be obtained against any of the parties liable. The Code, sections
5454, 5366, now regulate the subject.
MAKING JOINT CONTRACTOR PARTY TO JUDGMENT.
[Form 389. 5366.]
A. B. )
No. .] vs. > Making C. D. Party to Judgment with E. F.
C. D. j
This cause came on this day to be heard by the court upon the plead-
ings herein, and the testimony adduced by the parties respectively, and
the arguments of their counsel, and being fully advised in the premises,
the court doth find that the allegations stated and contained in the
plaintiff's petition are true. It is therefore adjudged that the plaintiff,
upon said judgment against said E. F., recover against the said defend'
ant, C. D., jointly with said E. F., the said sum of dollars, and
dollars, costs, with interest from the day of , A. D. 18 , to-
gether with his costs in this behalf expended and incurred, taxed at >
dollars.
To MAKE JOINT CONTRACTOR PARTY TO A JUDGMENT AGAINST
CO-CONTRACTOR, IN THE SAME COURT, WHEN THE LIABILITY WAS
NOT KNOWN TO THE PLAINTIFF BEFORE, OR AT THE TIME, SUCH
JUDGMENT WAS RENDERED, AS A PARTNER WHO WAS NOT KNOWN
OR DISCLOSED AS SUCH.
[Form 390. 5366.]
Common Pleas Court of County, Ohio.
A. B., Plaintiff, ]
No. .] vs. > Petition.
E. F., Defendant. J
[Follow Form 388 to *, and add :] one C. D. was defendant, all of which
will more fully and at large appear, reference being had to the record of
said cause, which is hereby expressly had and made; that before and at
the time of the bringing of said action and the rendition of said judg-
ment, the liability of said defendant, E. F., upon the contract set forth
5n the petition in said cause, was unknown to the plaintiff, although he
MAKING PARTIES TO JOINT CONTRACT, ETC. 828
was jointly liable with id C D. to the plaintiff thereon ; that said ac-
tion in which said judgment was rendered was founded upon a contract
made by the plaintiff by and with the said C. D. in person, and the name
and liability thereon of the said E. F. was in no manner disclosed, though
he was in fact a joint contractor [he being the partner] with said C. D.;
that the following was said contract: [Here state as indicated in Form 3^8];
aixl that upon said cause of action the following judgment was rendered
as aforesaid in favor of the plaintiff against the said C. D.: [Here staff
[Pray for judgment as in Form 388.]
[ Verification, etc.~\
Kote. The defendant may prove that be was not a party to the contract, in
fact or in law. He can not controvert the cause of action upon which judg-
ment was rendered, as to any matter that was or should have been tried in
such action.
Judgment as in Form 389.
ACTION UPON SUCH JOINT CONTRACT OR INSTRUMENT WHEN SUCH
JUDGMENT WAS RENDERED AGAINST ONE OF THE JOINT CON-
TRACTORS ELSEWHERE THAN IN THE COURT WHERE THE ACTION
is BROUGHT.
. [Form 391. 5366.]
Common Pleas Court of - County, Ohio.
A. B , Plaintiff, )
No. .1 vs. \- Petition.
C. D., "Defendant. )
For a cause of action against the defendant, C. D., the plaintiff, A. B.,
says, that in the Court of Common Pleas of - County, Ohio, at the -
term, A. D. 18 , thereof, to wit, on the - day of - , A. u. 18 , in a
civil action wherein he was plaintiff, and E. F. and said C. D. were named
as defendants, being cause No. - in said court, he duly obtained n judg-
ment against said E. F. for the sum of - - dollars, principal debt, and
> dollars, costs, which judgment is still in full force, un reversed, and
[wholly] unsatisfied; that said E. F. and said C. D. were named as defend-
ants in said action, but said C. D. was not and could not be summoned for
the reason that he was and continued to be beyond the jurisdiction of
said court until after the rendition of said judgment the record of said
action, proceedings, and judgment are filed herewith; and that there is
due to the plaintiff from the defendant, C. D., upon the said joint con-
tract. to wit: [promissory note of the said E. F. and C. D., of which, with
all the indorsements and credits thereon, the following is a copy : (here
give same, as itated in the original action against the other contractor)'] the sum oi
40
626 CODE PRACTICE AND PRECEDENTS.
dollars, with interest from the day of , 18 ; for whichj
with costs, he asks judgment against the said defendant, C. D.
, Attorney for Plaintiff.
[ Verification and summons as in other actions to sheriff of the county. ~\
JUDGMENT FOR PLAINTIFF IN SUCH ACTION UPON ISSUE JOINED,
[Form 392. 5366.]
A. B. ]
No. .] vs. \ Judgment for Plaintiff, $ .
C. D. j
This day this cause came on to be heard upon the issues joined herein
between the parties, and a jury being waived by them, and the cause sub-
mitted to the court [or, upon the verdict of the jury], and the court hav-
ing heard the evidence and proofs adduced by the parties respectively,
and the arguments of their counsel, and being fully advised in the premi-
ses, doth find for the plaintiff;* and thereupon [or, upon which verdict]
the courtdoth adjudge that the said plaintiff recover of the said defend-
ant, C. D., the sum of dollars, together with his costs in this behalf
expended, taxed at dollars.
Defendant's costs taxed at dollars.
In case the liability of such party was not known before judgment
against the other, the petition can be framed from Form 390.
ACTION AGAINST THE MEMBERS OF A PARTNERSHIP, AGAINST WHICH
JUDGMENT HAS BEEN RENDERED IN ITS FIRM NAME, UNDER
SECTION 5011, TO MAKE THEM PARTIES TO SUCH JUDGMENT.
[Form 393. 5370.]
Common Pleas Court of County, Ohio.
A. B., Plaintiff, ) -
No. .] vs. > Petition. .,'
C. D. and E. F., Defendants. )
The said plaintiff says that, at the term, A. D. 18 , of said court,
to wit, on the day of , 18 , he duly recovered a judgment for the
sum of dollars, principal debt, and dollars, costs, which judg-
ment is still in full force, unreversed, and [wholly] unsatisfied, in a civil
action in said court, No. , wherein this plaintiff was the plaintiff, and
the copartnership of C. D. &~Co., composed of said defendants, C. D. and
E. F., were defendants in their said firm names, said partnership being
formed for the purpose of carrying on trade and business, and holding
property in this state, as from the record of said cause will more fully and
at large appear, and to which record reference is hereby expressly had.
And this action is brought to make said defendants, C. D. and E. F., the
members composing said partnership, parties to said judgment.
Wherefore, the plaintiff asks that, by the judgment of this court, the
MAKING PARTIES TO JOINT CONTRACTS, ETC. C27
Mid defendants, C. D. and E. F., be made parties to said judgment, for
cosU, etc.
[Verificatinn, ctc.~\ , Attorney for Plaintiff
.Vote. Such defendants can not litigate the merits of the action in which the
(moment was rendered, or controvert the amount recovered. They may, of
how that they were not member* of such firm, or that they have been
1, ur other facU in discharge of their liability upon the judgment.
JUDGMENT MAKING MEMBERS OF A PARTNERSHIP PARTIES TO A
.h ixjMENT RENDERED AGAINST THE FIRM IN ITS COPARTNER-
SHIP NAME.
[Form 394. 5370.]
A B I
.. (Judgment for Plaintiff Making Defendants Parties
C. D a'nd E. F. j to Firm Jud ment -
This day this cause came on to be tried, and the parties, in open court,
having waived a jury, and submitted the same to the court for trial, and
the court having heard the evidence adduced by the parties respectively,
and the arguments of their counsel, and being fully advised in the prem-
ises, doth find for the plaintiff and against the said defendants.*
It is therefore ordered and adjudged by the court that the said defend-
ants, C. D. and E. F., be and they are hereby made parties defendants to
the naid judgment rendered by this court at its term, A. D. 18 , in
favor of said A. B. and against the said firm of C. D. & Co., the partner-
ship name of the said defendants, for the sum of dollars, principal
debt, and dollars, costs; and that the plaintiff recover of the defend-
ants herein his costs in this behalf expended and incurred, taxed at
dollars.
Defendants costs taxed at dollars.
ACTION TO MAKE SURETIES ON BOND OF EXECUTOR, ADMINISTRA-
TOR, GUARDIAN, OR TRUSTEE, PARTIES TO JUDGMENT THEREON
AGAINST THE PRINCIPAL. (SECTION 537.)
[Form 395. \\ 5371, 4994.]
Common Pleas Court of County, Ohio.
A. B , Plaintiff, )
No. .] tw. \ Petition.
C. D. and E. F., Defendants. )
For a cause of action against the said defendants, C. D. and E. F., the
plaintiff, A. B., says, that, on or about the day of , A. D. 18, O.
II. Aft principal, and the said C. D. and E. F. as his sureties, duly executed
their certain undertaking and bond, conditioned according to law, which
WM duly approved and accepted, a duly certified copy of which is hereto
attuclu-4 and made part hereof, said undertaking and bond being the
legally required bond of said O. II. a* the administrator of the estate of
, deceased, and WM in the sum of dollars; that in a civil action,
628 CODE PRACTICE AND PRECEDENTS.
in this court, No. , brought by the plaintiff against said G. IT. upon said
bond and undertaking, such proceedings were had that, at the term
A. D. 18 , of said court, to wit, on the day of , A, D. 18 . the said
plaintiff duly recovered a judgment against the said G. H. for rhe sum of
dollars, principal debt, and dollars costs, all of which will more
fully and at large appear, reference being had to the record of said judg-
ment, here expressly had and made, and which judgment is still in full
force, unreversed, and [wholly] unsatisfied, and this action is brought to
make said sureties, C. D. and E. F., parties to said judgment.
Wherefore the plaintiff asks that said defendants be made parties to
said judgment against said G. H., according to the statute in such case
made and provided ; for costs, etc. , Attorney for Plaintiff.
[ Verification, etc.]
Note. The issues may be such as to entitle the parties to a jury trial, or de-
fault may be made, or a jury waived, and the cause submitted to the court for
trial; or an issue may be made and the defendants fail to appear at the trial,
and the plaintiff waive a jury, as provided in section 5204.
The commencement of the judgment entry will be according to one or the
other of such states of the case, and the judgment can be framed from Form
394, after the *.
The defendants can not litigate the merits or the amount of the judgment
against their principal. They may deny that they executed, or state facts show-
ing they are not liable upon, such bond, the same as if they and the principal
had been sued together in the same action. Rraiden v. Mercer, 44 O. S. 339;
Single v. Entrekin, 45 O. S.
In Famulener v. Anderson, 15 O. S. 473, where the penal amount of the bond
had been inserted, without the written consent of the sureties, after they exe-
cuted it, the answer, drawn by the author, simply denied that "the said writing
is the writing obligatory of these defendants, or any of them;" and the after
filling of such material blank was proved to sustain the averment. The law as
settled in this case has been changed by legislation. 6, Sup., p. 2.
Kevival of judgment, when one-or both the parties die after judgment and
before satisfaction thereof, in the names of their personal representatives or
both, as the case may require under .section 5669 and according to the mode
prescribed by sections 5144-5161.
If the subject-matter of the judgment goes to or affects alone the personal
representative, executor or administrator, of the deceased party, the heirs are
not proper parties to the revival. If, as in a judgment affecting title to real
estate, the heir inherits, the heir and not the personal representative is the proper
party. In proceedings to foreclose a mortgage, it will be advisable to make
both the heir and personal representative of the defendant mortgagor parties ;
but only the personal representative of the mortgagee, who is merely the col*
lector of the money due to the estate of the deceased-
MAKING PARTIES TO JOINT CONTRACTS, ETC. 629
REVIVOR OF JUDGMENT AGAINST PERSONAL, REPRESENTATIVE OP
DECEASED JUDGMENT DEFENDANT.
[Form 396. 5309, 5149, 5150.]
Common Pleas Court of County, Ohio.
John Doe, Plaintiff, j
No. ] vs. > Motion to Revive Judgment, etc.
John Smith et als., Defendants, j
And now comes the plaintiff, John Doe, and shows to the court that
since the rendition of the judgment herein the said judgment defendant,
John Smith, has died, and William Smith has been duly appointed and
qualified, and is acting as the administrator of said John Smith, deceased,
said judgment being unsatisfied.
Wherefore he moves for a conditional order of revivor, according to
the statute in such case made and provided, of said judgment against
said William Smith, as such said administrator of said John Smith, de-
ceased, etc. EUWARD COKE, Attorney for Plaintiff.
ALLOWANCE OF CONDITIONAL ORDER OF REVIVOR.
[Form 397. g 5369, 5150.]
lohn Doe j
No. .] va. > Conditional Order of Revivor of Judgment.
John Smith et als. j .
The motion of the plaintiff, John Doe, in this cause, for a conditional
order of revivor against said William Smith, as the administrator of said
John Smith, deceased, is hereby granted.
It is therefore ordered that a conditional order of revivor issue herein,
to be served and returned in the same manner as a summons, requiring
William Smith, as the administrator of said John Smith, deceased, to show
cause, in this court, by or on the day of , A. D. IN , if any he have,
why the judgment heretofore rendered at the term thereof, A. D. 18 ,
in favor of said John Doe against the said John Smith and others, in cause
No. , for dollars, principal debt, and dollars, costs, should not
be revived against him as such said administrator of said John Smith, de-
ceased; and on his failure to do so, said judgment shall stand revived
accordingly.
Note. Such motion may bo granted and conditional order made by a judge
in vacation. If .-. ho nigns it as such judge, and tae clerk enters it upon the
journal in vacation.
[Form 398. 5369,5152.]
The State of Ohio; County, ss.
To the Sheriff of said County, Greeting:
You are hereby commanded to notify William Smith, as the adminis-
trator of John Smith, deceased, that in the cn*e and matter of the
G30 CODE PRACTICE AND PRECEDENTS.
judgment, in cause No. - , in this court, wherein John Doe is plaintiff
and John Smith et als. are defendants, the following order has been
made:
[Here copy conditional order of reviver, omitting style of the case.}
You will make due return of this writ on the - day of -- , A. D
18 [the second Monday ajter its date~\.
Given under my hand and the seal of our said court, this - day of
, A. D. 18.
[SEAL OF COURT.] - , Clerk.
Note. Cause against revivor must be shown on the return day of the writ, or
the judgment will stand revived. 5152.
This and the two preceding forms will be sufficient to indicate the forms for
revivor in case of the death of the judgment plaintiff, and where both parties
to the judgment have died since its rendition.
[Form 399. \\ 5369, 5152.]
-v- _^, I Final Order Reviving Judgment against Adminis-
, ( trator of Defendant.
John Smith et als. J
In this case, William Smith, administrator of John Smith, deceased,
still failing to show cause why the said judgment herein should not be
revived against him as such said administrator, it is hereby ordered by
the court that said judgment in favor of said John Doe against said John
Smith et als. be, and the same is hereby revived against said William
Smith, as such said administrator of said John Smith, deceased.
Note. For revivor of dormant judgment, section 5367, see Forms 204-209.
JURISDICTION AND PROCEDURE IN ERROR.
CHAPTER XXXVIII.
JURISDICTION* AND PROCEDURE IN ERROR.
What a final order is. SEC. 6707. An order affecting u substantial
right in an action, when such onler in effect determines the action and
prevents a judgment, and an order affecting a substantial right made
in :i special proceeding, or upon a summary application in an action
aftei judgment, is a final order which may be vacated, modified, or
reverjed. as provided in this title (tit. 4).
Jurisdiction of the Common Pleas in. SEC. 6708. A judgment ren
dered or final order made by a Probate Court, justice of the peace, or
any other tribunal, board, or officer exercising judicial functions, and
inferior in jurisdiction to the Court of Common Pleas, may be re-
versed, vacated, or modified by the Court of Common Pleas. .
Jurisdiction of Circuit Court in. SEC. 6709. (Sup., p. 383.) A
judgment rendered or final onler made by the Common Pleas Court,
may be reversed, vacated, or modified by the Circuit Court, for errors
appearing on the record ; all errors assigned in the petition in error
shall be passed upon by the court, and in every case where a judgment
or order is reversed and remanded for a new trial or hearing, the Cir-
cuit Court shall, in its mandate to the court below, state the error or
errors found in the record upon which the judgment of reversal is
Jurisdiction of Supreme Court in. SEC 6710. (Sup., p. 383.) A
judgment rendered or final order made by the Circuit Court, any
Court of Common Pleas, Probate Court, or the Superior Court of any
city or county, may be reversed, vacated, or modified by the Supreme
Court, on petition in error, for errors appearing on the record ; but no
petition in error, in such cases, except as to the judgment or final or-
der of the Circuit Court, shall be filed, without leave of the Supreme
Court, or a judge thereof; and the Supreme Court shall not, in any
civil causo or | : .-.-pt when it-* jurisdiction is original, be re-
quired to determine as to the weight of the evidence; and on application
of any party, excepting to a ruling or decision of the Circuit Court
during the trial,' or on motion for a new trial, such court shall find
from the evidence and state on the record the facts upon which the
632 CODE PRACTICE AND PRECEDENTS.
alleged error arises, or which may be material in determining whether
error has intervened or not.
(a) In a proceeding to reverse a judgment in either a civil or crim-
inal case, the court regards the record free from error until the con-
trary appears ; and, except as to matters relating to jurisdiction, or
where counsel have overlooked a statute, or a decision of this court,
governing the case, the court confines itself, ordinarily, to the errors
alleged by the party complaining. McHugh v. State, 42 O. S. 154.
A judgment will not be reversed merely because the record shows
error to which exception has been taken. The error, to be ground of
reversal, must be prejudicial to the rights of the party complaining;
and this is the rule in both civil and criminal cases. Ib.
A master commissioner, or other party entitled to fees taxed as costs
in an action, can not in his own name prosecute a proceeding in error
to reverse an order of the court for relaxing the costs, or disallowing
his claim for fees in the case. Fiedddey v. Diserens, 26 O. S. 312.
Error will lie to the Common Pleas Court to review the final orders
of boards of county commissioners, in proceedings under the " act for
opening and regulating roads and highways." Commissioners, etc., v.
Jenkins, 19 O. S. 348.
A judgment void for want of jurisdiction may be reversed on petition
in error. Evans v. lies, 7 O. S. 233 ; Hettrick v. Wilson, 12 O. S.
136. (And on reversal in such case, the plaintiff in error recovers
costs of the proceedings in error, but not his costs in the action in the
lower court. 6727.)
Where the judgment is joint, if it is erroneous as to one, it is erro-
neous as to all ; and, in such case, a release of errors by one will not
prevent a reversal on the application of the others. Blanchard v.
Gregory, 14 O. 413. (And if one of the joint judgment debtors'
rights is saved from the operation of the statute of limitations, the
rights of all are saved.)
A party may dismiss proceedings to reverse a judgment, notwith-
standing he has parted with all interest iu the matter litigated. Lewis
v. .Lewis, 15 O. 715. (To avoid this, the transfer of interest should
provide that the transferee should have the right, without the right
of interference by the assignor, to prosecute error or appeal in the
assignor's name, or to be substituted for him.)
The Supreme Court has no power to rehear a cause decided by the
Supreme Court Commission, after the Commission expired. (Its decis-
ion is final.) Maud v. Maud, 34 O. S. 540. But the Supreme Court
may vacate or modify such judgments, etc., of the Supreme Court Com-
mission, after the latter expired, under sections 5354-5365. Murphy
JURISDICTION AND PROCEDURE IN ERROR. 633
v. Swadner, 34 O. S. 672. And when a cause was transferred from
the Supreme Court to the Commission, and there dismissed for want
of printing record, etc. (section 6711), such dismissal was final, and
no proceedings in error could be commenced again in the Supreme
Court. Atcherly v. Dickinson, 34 O. S. 537.
An order o" the Common Pleas Court appropriating money between
different judgment creditors may be reviewed on error. It is a final
order. Earnfit v. Winans, 3 O. 135. See section 6707.
So may an order of the Common Pleas Court in an application to
redeem land sold for taxes. Streetv. Francis, 3 O. 277. But an appeal
did not lie in such case. Masterson v. ffnutny, 3 O. 301.
Orders of the Court of Common Pleas, on petition of an adminis-
trator to sell lands, could be reviewed on error. Burrows v. Vandevier,
3 O. 383 ; Eyeing v. Hottister 1 0. (2 pt.) 138.
Omission to certify who was principal and who surety in a judgment
is not ground of reversal, where the facts do not appear of record, and
there is no bill of exceptions setting forth the evidence. Kelly v. Cot-
ling, 11 O. 310.
Where the Court of G>mmon Pleas reverses a judgment of a jus-
tice of the peace, and retains the cause for trial (section 6733), error
:iot lie to the judgment of reversal. Kelley v. Hunter, 12 O. 216.
It is otherwise where the judgment of the Common Pleas is reversed.
Kchaeffer v. Marientltal, 17 O. S. 183. Error will lie to reverse such
judgment of reversal while the cause is still pending in the court to
which it has been so remanded; but such judgment will not be re-
versed unless it clearly appears that such reversal ought not to have
been adjudged. Hammond v. Hammond, 21 O. S. 620; Kingv. Dean,
22 O. S. 118. (But this power was taken away from April 18, 1883
(80 v. 169), until May 4, 1885 (82 v. 230) the present statute, sec-
tion 6710). And if, on reversal, the parties proceeded without objec-
tion to another trial in the Court of Common Pleas, the errors, if any,
in the judgment of reversal, are waive/.!. Collins v. Davis, 33 O. S.
.'t'.T ; Andrew* v. City of Youngxtown, 35 O. S. 218.
Krror c >uld !>< maintained to review proceedings in partition under
th- >tatute. Smith v. Pratt, 13 O. 548.
Proceedings of municipal corporations in opening streets, assessing
damages, and levying taxes, could not be reversed on error. Dumn
\. Cincinnati, 14 O. 240. (The remedy of parties injured in such
cases is l>y the proper civil action regularly brought in court.)
A judgment wilf not be reversed for errors committed subsequent to
its rendition. Bou'n'l v. Zi<jlir, 1!) I). G But erroneous proceed-
634 CODE PRACTICE AND PRECEDENTS.
ings subsequent to the judgmeut may be reviewed. Miller v. Peters, 25
O. S. 273.
The judgment to be reviewed must be final (i. e., must settle the
rights of the parties. It is not necessary that every thing should be
determined on the basis of such judgment. In the federal courts,
a decree is not final which settles the rights of the parties, and
refers the cause to a master to state an account, etc., on the basis of
the decree. The master's report must be filed and confirmed, and
a decree based upon it, to constitute the final decree. This is not nec-
essary under our Code. This is important also to determine when the
statute of limitations begins to run). Kinsey v. State, 3 O. S. 508 ;
Holbrook v. Connelly, 6 O. S. 199 ; Hobbs v. Beckwith, 6 O. S. 252 ;
Steubenville, etc., li. Co. v. Patrick, 7 O. S. 170; Bolles v. /Stockman,
42 O. S. 445.
But a decree which completely disposed of distinct parts of the case
was final. Tea/v. Hewitt, I O. S. 511.
If relief can be had in the District (Circuit) Court, it must be
sought there, unless there be special reason for coming to the Supreme
Court. Benham v. Conklin, 3 O. S. 509 ; State v. Williams, 26 O. S.
170; Kosminski v. Barrett, 34 O. S. 163. (Where the case involves a
question of statutory law affecting the entire state, and which the
court of one circuit can not settle, leave will usually be granted under
section 6710 to file a petition in error in the Supreme Court directly
from the trial court, as in Ingham v. Lindeman, 37 O. S. 218, where,
under the law governing assignments for the benefit of creditors, and
involving the proper practice under it, a petition in error was allowed
to be filed from the Probate Court.)
Where the questions are of .unusual gravity, and their decision at an
early day is highly desirable, the Supreme Court will depart from its
usual practice, and consider them as fully on a motion for leave to file
a petition in error as upon the petition if filed. Lamb v. Lane, 4 O. S.
167. (This was before the enactment of the present section (6713),
enacted in 1875, which permits a reversal on motion for leave to file
petition in error, etc.)
An order discharging an attachment may be reversed while the
action in which it issued is pending. Watson v. Sullivan, 5 O. S. 42.
Proceedings of the Probate Court to appropriate lands on applica-
tion of a railroad company may be reviewed on error. Atlantic, etc.,
R. Co. v. Sullivant, 5 6. S. 276.
Under former statutes (prior to 1857, section 5706), proceedings in
error would not lie in cases of divorce and alimony. Tappan v. Tap
JURISDICTION AND PROCEDURE IN ERROR. 63")
pan, 6 O. S. 64. (Error will uot now lie to a decree granting or re-
fusing a divorce.)
Final order of the Common Pleas in a bastardy case may be re-
viewed and reversed on error. Hobbs v. Beckwith, 6 O. S. 252.
An order of the Common P^leas in a proceeding to contest the
removal of a county seat may be reversed. Powers v. Reed, 19 O.
8. 189
An order striking a case from the docket for want of service is revers-
ible on error. Evan* v. fles, 7 O. S. 233.
An order removing a cause from a state to a federal court may be
reversed. Home Ins. Co. v. Dunn, 20 O. S. 175. (The ground for
reversing the order of removal in this case was not valid, and was
reversed by the U. S. Supreme Court. 19 Wai. 214.)
An allowance of temporary alimony by a judge at chambers, and an
order dismissing a petition in a proceeding to modify a final order with
respect to the custody of children in a divorce suit, are final orders,
which may be reviewed on error. King v. King, Xeal v. Xeal, 38
O. S. 370^ 558;
An order may be reviewable on error, in an appealable case, which
order would not be appealable. Home Ins. Co. v. Dunn, 20 O. S. 175 ;
Reeve* v. Skenett, 6 O. S. 251 ; Taylor v. Fitch, 12 O. S. 169.
A judgment of a justice of the peace in forcible entry and detainer
is within section 6708. Kelly v. Nichols, 10 O. S. 318. But the refusal
of u Court of Common Pleas to allow a petition in error in a forcible
entry and detainer proceeding is not reviewable. Rothirett v. Wintenmith,
42 O S. 249. (Judgment in detainer before justice, no bar to a second
action. New actions may be brought until they become vexatious,
when further suits may be enjoined on that ground. See section 6601.
Such judgment can not be reviewed on the weight of the evidence.
6610. And petition in error in the Common Pleas can only be filed
by leave of that court. 6610.)
An order of a justice of the peace overruling a motion to dis-
charge an attachment is reviewable on error. Young v. Gerde*, 42
O. 8. 102.
The order of the judge, under the statute relating to fugitives from
justice (sections 9-V-97), where the facts only appeared by bill of excep-
tions, could not be reviewed. Sheldon v. Mr Knight, Wilcox v. Abbe, 34
O. S. 316, 520.
Improperly dismissing an appeal is ground of reversal on error.
Eaton, elc., K. Co. v. Far/turn. 11 O. S. 622. (So, it would seem in an
order improperly sustaining an apjK-al, excepted to at the time, when
going to the jurisdiction of the appellate court)
636 CODE PRACTICE AND PRECEDENTS.
Error does not bring into the appellate court any thing except the
orders complained of. It leaves the court below all jurisdiction not
inconsistent with the power to reverse, vacate, or modify the final
judgment or order sought to be reversed. Goode v. Wiggins, 12 (X
S. 341.
Under the former practice, where judgment in attachment was ren-
dered by a justice of the peace against a defendant, on the ground
that he was a uon-resident of the county, such defendant could obtain
a reversal upon assigning as error the/ac that he was not such non-resi-
dent. Hartshorn \. Wilson, 2 O. 27 ; timith v. Pratt, 13 O. 550-1. (As
such fact would be dehors the record, and if true, the judgment void
in fact, and there being no provision for setting the -judgment aside
before the justice, the same rule should now apply, under the- Code.
See ERROR IN FACT. In the Common Pleas, a new trial, after the
term, under sections 5354-5365, can be obtained.)
A judgment of restitution on reversal is a judgment which the court
has inherent power to execute. If the judgment of reversal contains
evidence of the preci.se thing to be restored, the writ of restitution may
be awarded, but when the matter to be restored is not specified, and
depends upon matter dehors (outside of) the record, it is inconsistent
with the policy of the law to permit execution without an opportunity
to make defense. Cowden v. Herford, 4 O. 374. 5490.
Since the passage of the act of 1^31 (3 Chase, 1714, section 22), in-
corporated from the Code of Civil Procedure into this revision (section
5409), the title of a purchaser, whether a party to the suit or not, will,
ordinarily, be unaffected by the reversal of the judgment. Query as to
the rule in Ohio previously. McBride v. Longworth, 14 O. S. 349 ;
Hubbell v. Broaawell, 8 O. 120; Irwin v. Je/ers, 3 O. S. 389; Smith
v. Dixon, 27 O. S. 471.
On reversal, the cause should be taken up by the court below at the
point where the first error was committed, and be proceeded with to
final judgment. Commissioners v. Carey, 1 O. S. 463.
Where a judgment is reversed for error in overruling a motion for a
new trial, on the ground that the verdict is contrary to the evidence, it
is error for the reviewing court to remand the cause with instructions
to render judgment in favor of the plaintiff in error, he not being en-
titled to a judgment on the pleadings, and there being no agreed state-
ment or finding of facts and the cause being one in which either party
was en titled to a jury. Emery v. Irving Natl. Bank, 25 O. S. 360. Or
for the reviewing court to render judgment. Miller v. Sullivan, 26 O.
S. 639. Overruling motion for new trial on the ground of newly dis-
covered evidence is discretionary, and not reviewable on error, unless
JURISDICTION AND PROCEDURE IN ERROR. 637
the fad* an- admitted or found, or manifest abuse of discretion be
shown. Smith v. /;/////, iV, ( >. S. 1.
Where a case is dismissed for want of service, but the plaintiff wa*
dead at the time, his personal representative may proceed under section
5354, assigning error in fad, or he may obtain a reversal if errors ap-
pear in the record. JFefton v. WUlianu, 28 O. S. 472.
The court will not change an order, so as to constitute the order
which the court intended to make, if it appear that the entry as made
is proper. Murphy v. Stccuinicr, 34 O. S. 671.
But, in many cases, as the reception of illegal testimony, erroneous
instructions to the jury, discharge of the jury in a criminal case, and
other like matters, the action of the court will lie deemed prejudicial,
and afford ground for reversal, unless it dearly appear from the record
that the party complaining was not prejudiced by the error. U
v. Barkalow, 11 O. S. 470; Banning v. Banning, 12 O. S. 437; Dob-
A.'/M v. State, 14O. S. 493; Bartges v. (yXeil, 13 O. S. 72; /X/UKJ v.
Lehman, 15 O. S. 179. ( If sufficient evidence is shown by the record,
the bill of exceptions containing it all, to sustain the judgment, on a
trial to the court, without the testimony of an incompetent witness, the
admission of the evidence of such incompetent witness is not a sufficient
ground of reversal. KUbourn v. Fury. 26 O. S. 161-2.) .
A party may consent to a judgment. Wells v. Martin, 1 O. S. 386 ;
Jackson \. Jackson, 16 O. S. 163. Accepts its fruits. Tabler v. Wiseman,
2 O. S. 207. Or release errors. Wilcox v. May, 19 O. 408. And by
such means preclude the reversal of such judgment tit his instance.
Where a fond' does not disclose the relation of principal and surety,
the surety is not estopped from defending on the ground that time was
given to the principal in fact. Bank of Steubeiwille v. Hoge et al., 6
O. 18. The plaintiff, after his demurrer to a plea in bar was over-
ruled, took issue upon it on leave. lu the Supreme Court on error, he
was not permitted to question its validity. Mitchel v. McCabe, 10 O. 40.">.
If the exclusion of com petent testimony l>e excepted to at the time,
the error is not cured by the offer of the opposite party, at a subsequent
stage of the case, to admit the testimony so excluded. Reynolds v.
Tucker, 6 O. 8. 51fi.
And where a party has resisted the jurisdiction as far as he could,
he does not waive the error by trying the cause. Forbet v. Coffin, 6
O. 33
N\ here the only error is an excess in the amouut of the judgment,
the creditor may remit the excess ; whereupon the judgment will be
affirmed. Averill C. & 0. Co. v. Vcrner, 22 O. S. 372 ; Doolittle v.
McCullough, 7 O. S. 299.
('38 CODE PRACTICE AND PRECEDENTS.
Defendant in error may file a cross-petition in error. ShinJde v.
First National Bk., 22 O. S. 516. And he may do so without leave of
the court. Bundy v. Ophir Iron Co., 35 O. S. 80.
Matters resting in the discretion of the court as setting aside a levy,
Bliss v. Enslow, 3 O. 269 ; permitting the separation of a jury during a
trial, Davis v. State, 15 O. 72 ; amendments, Kemper v. Lane Semi-
nary, 17 O. 293 ; the examination of a witness who remained in court
contrary to its order, Laughlin v. State, 18 O. 99 ; directing a special
verdict, Cleveland, etc., R. Co. v. Terry, 8 O. S. 570; the continu-
ance of a cause, Holt v. State, 11 O. S. 691 ; and other like matters.
Awry v. Ruffin, 9 O. S. 397 ; Gandolfo v. State, 11 O. S. 114 will
not, ordinarily, be reviewed on error.
(A gross abuse of discretion by the court is ground for reversal upon
error. Union Cent. Life Ins. Co. v. Cheever, 36 O. S. 201.)
Where the power exercised by the court is founded in legal discre-
tion, governed by known rules and fixed principles as the discharge
of a jury in a criminal case the action of the court may be reversed
on error. Dobbins v. State, 14 O. S. 493.
Where a judgment is vacated at a subsequent term, without notice
to the plaintiff, the order is void, and will be reversed. Hettrick v.
Wilson, 12 O. S. 136. But errors will lie to orders made under section
5354 et seq., in relation to new trials after judgment. Myers v. Myers,
6 O. S. 221 ; Taylor v. Fitch, 12 O. S. 169.
That the parties, without objection, proceeded to trial on the tran-
script of a 'justice of the peace, no pleadings being filed at any time,
is not ground of reversal. Hallam v. Jacks, 11 O. S. 692. Formerly an
order awarding a new trial on the ground that the verdict is not sustained
by the evidence, was not a final order within the meaning of these sec-
tions as originally enacted, but is now within such meaning, under the
present section (6710), in connection with section 5301. Beatty v.
Hatcher, 13 O. S. 115; Ide v. Churchill, 14 O. S. 372. Applies also
to verdicts to contest the validity of a will. Glancy v. Glancy, 17 O.
S. 134. To determine the weight of the evidence on error, a motion
for a new trial must have been made in the lower court in equity cases
as well as others.
A judgment will be reversed if the petition does not contain facts
sufficient to contsitute a cause of action (because, on such a petition,
if the answer of the defendant has not supplied the necessary facts
omitted from the petition, as unskillful answers sometimes do, the judg-
ment should have been for the defendant). Trott v. Sarchett, 10 O. S.
241; Cleveland, etc., R. Co. v. Stackhouse, 10 O. S. 567; Trimble v
Doty, 16 O. S. 118.
JURISDICTION AND PROCEIM'li: ;;OR. 639
And such cause of action must be one in favor uf the plain till*.
Weidner v. Rankin, 26 O. S. 522. But if the petition contains facts
sufficient to constitute a cause of action, it is not ground of reversal
that the facti are defectively Mated. Bethel v. Woodicorth, 11 O. S.
393: Youngttow,, \. Moore, 30 Q. S. 133. And a defective petition
may l>e aided i>y si\< nnents in the answer. McFeely v. Vantyle, 2 O.
I'.'T ; Erwin v. Shaffer, 9 O. S. 43; Dayton Ins. Co. v. Kelly, 24 O. S.
.'J4'). So an answer otherwise defective may be sufficient iu view of aver-
ments in the petition. Gebhart v. Sorrels, 9 O. S. 461.
(It may be stated as the general rule, that every thing, not excepted
to and the exception properly saved, is cured by the verdict, except the
question of the jurisdiction of the court of the subject-matter, and that
the petition does not state a cause of action or the answer a defense,
when the verdict is for the defendant.)
It is impioj>er to reserve a case to the Supreme Court to determine
mere questions of fact. Ogborn v. Taylor, 6 O. S. 199. (The Circuit
Court has no power to reserve any case for decision by the Supreme
Court, as the District Court had.)
Findings of fact are to be so construed as to support the judgment,
if it can be fairly done. Jack v. Hudnall, 25 O. S. 255. But where
the bill of exceptions discloses all the evidence offered on the trial, and
the court, upon examination thereof, finds that all the facts which
such evidence in any degree t"nds to prove will not sustain the judg-
ment, it must be reversed. Wooley v. Staley, 39 0- S. '>"> 4.
See notes to sections 5115, 5190, 5303, 5297-5304, 5310.
The record in the Supreme Court must be printed. SEC. 6711. (Sup.,
p. 384.) When a petition in error is filed in the Supreme Court, so
much of the record to be reviewed as will show the error complained of
shall be printed, and ten of the printed copies thereof filed with the pa-
pers, which printing the plaintiff in error may have done, or he may de-
posit with the clerk sufficient money to pay the cost thereof; and if he
fail f>r *ijety days after filing the petition, to file such printed copies or
such dejHwit, the petition in error shall be dismissed, unless the
court, on good cause shown, extend the time or dispense with such
printing; and the fair expanse of such printing shall be taxed as part
of the costs. The clerk shall deliver to the court, at each monthly
call of the docket, a list of cases in default under this section, ami the
court shall call the same, and make disposition thereof as herein
provided.
Note. ^To lave cost*, only the substantial part* uf the record necessary to
consider the question* involved for decision, should be printed. The written
640 CODE PRACTICE AND PRECEDENTS.
record is in the court. If it be claimed that sufficient is not printed, the matter
can be called to the attention of the court on motion, and the proper order made.
If more than the sixty days' time is desired to print, or from the exceptional
circumstances of the case it is sought to dispense with printing, a motion for
sucn purpose should be promptly filed within the sixty days. It the party pro-
cures the printing of the record, he should file with the clerk the printer's
bill verified by the affidavit of the printer, and the same will be taxed as
costs if reasonable in amount. Where money is furnished the clerk for the
purpose, he procures the printing to be done, and enters the amount paid there-
for as costs. Briefs, in the argument of causes upon the general docket upon
their merits, must be printed, and ten copies filed with the record. The party
has to bear this expense. It can form no part of the costs. Upon a motion for
leave to file a petition in error, but one brief need be filed by the mover. It
need not be printed, nor need the record be. (See Rules of Supreme Court 4,
5, 8, 19, for requirements on these subjects.)
(a) The dismissal of a petition in error for the want of a printed
record, as required by this section, is a bar to a second petition in
error. Railroad Co. v. Belt, 36 0. S. 93.
This section as to the time for printing records held to have no refer-
ence to cases reserved from the District Court. Cow Run Iron, etc.,
Co. v. Lehmer, 38 O. S. 373.
Wl^en Supreme Court shall assess a penalty. SEC. 6712. (Sup., p.
384.) When, in any such case, the judgment or final order of a Cir-
cuit Court is affirmed, there shall be taxed, as part of the costs in the
case, a reasonable fee, to be fixed by the court, not less than twenty-jive
nor more than three hundred dollars, to the counsel of the defendant ;
and the court shall adjudge to the defendant damages in such sum as
may be reasonable, not exceeding five hundred dollars, unless the judg-
ment or final order of the Circuit Court directs the payment of money,
and execution thereof was stayed in such proceeding in error in the
Supreme Court, when, in lieu of such penalty, it shall bear additional
interest, at a rate not exceeding five per centum per annum, for the
time for which it was stayed, to be ascertained and awarded by the
court; but if the Supreme Court certify in its judgment that there was
reasonable cause for the proceeding in error, neither such fee, nor ad-
ditional interest, nor penalty, shall be taxed, adjudged, or awarded.
Note. This section is limited to affirmances of judgments of the Circuit
Court, as petitions in error can be filed from it without leave, as a matter of
course, and of right (section 6710). which is not so as to other courts. Its pur-
pose is to prevent proceedings merely for delay or vexation in the Supreme
Court, and to secure the efficiency of the Circuit Court should be enforced ac-
cording to its terms. It has been evaded in some instances heretofore by the
party dismissing his petition in error a short time before the hearing of the case
JURISDICTION AND PROCEDURE IN ERROR. 641
in order. The pai-ty has not such right. J 5814, c). 6. It would be well for
tbe court to permit such dismissals only by consent of both parties, and if the
defendant in error does not consent, and the plaintiff in error asks to dismiss
his petition, to affirm and affix a proper penalty.
Petition and summon* in error. SEC. 6713. The proceedings to ob-
tain such reversal, vacation, or modification shall be by petition in
error, filed iu a court having power to make the reversal, vacation, or
modification, and setting forth the errors complained of; thereupon a
summons shall issue and be served, or publication made, as in the
commencement of an action, and a service on the attorney of record
in the original case shall be sufficient ; the summons shall contain a
statement that a petition in error has been filed in the case ; and if
issued in vacation, it shall be returnable on or before the first day of
the term of the court, and if issued in term time, it shall be returnable
on a day therein named ; and if the last publication, or service of the
summons, be made ten days before the end of the term, the case shall
stand for hearing at that term ; but the Supreme Court, on the hear-
ing of a motion for leave to file a petition in error, whereof ten days'
personal notice has been given to the adverse party, or his attorney,
may, iu its discretion, at the time of granting such leave, if error, for
which the judgment or final order should be reversed, vacated, or
modified, plainly appear on the record, and all the judges sitting at
the hearing concur therein, enter a judgment of reversal, vacation, or
modification, without the issue or service of a summons in error.
Note. The regular term of the Supreme Court commences on Tuesday after
the first Monday in January in each year, at the city of Columbus. \ 410. And
it may hold special and adjourned terms at such times and places as the judges,
or a majority of them, may determine; but if a special term is held elsewhere
than in Columbus, thirty days' notice thereof must be given as prescribed in
that section. It is usual to adjourn the court from about June 20 to September
20, and, without day, some time in December, each year. These are not special
or adjourned terms, but parts of tbe regular January term.
(a) Proper parties iu error, and effect of mistake or omission in this
respect:
Persons who have an interest in the subject-matter affected by the
judgment or final order are proper parties. Creed v. Lancatter Bk.,
1 O. 8. 1.
Errors not assigned will not be permitted to be alleged viva voee at
the hearing. WeJh v. Martin, 1 O. S. 386.
Non-resident lunatic defendants may be brought in by publication.
41
642 CODE PRACTICE AND PRECEDENTS.
Sturges v. Longworth, 1 O. S. 544. In such case, the court may ap-
point a guardian ad litem for the lunatic, to defend the suit for him.
Id. And it is error to decree against the lunatic without such answer
from the guardian ad litem. Id. All parties to the original judgment
or order should join in the petition in error. Id. When the inter-
ests of two are joint and inseparable, and the rights of one are saved
as against the statute of limitations, the saving inures to both. Id.
Where the action was against three makers and the indorser of a
promissory note, one of the makers only making defense, and judg-
ment against a'll. The maker who answered filed a petition in error
not making his co-makers, or the indorser, parties to the proceeding in
error. Held, that he should do so, or submit to a dismissal of his pe-
tition. Smetters v. Rainey, 13 O. S. 568.
All the defendants in a joint judgment are necessary parties to a
petition in error prosecuted by one of them, and may be made so under
section 5007 ; they must all be made such parties within the time lim-
ited by statute, now two years, or the court of errors will have no such
jurisdiction over the subject-matter as will authorize it to reverse or
modify any part of the judgment. Any such joint judgment debtor,
after being so made a party, may plead the statute of limitations,
which plea, if found to be true, will oust the court entirely of jurisdic-
tion to reverse, etc. Smetters v. Rainey, 14 O. S. 287.
Where a joint judgment debtor a partner was by mistake not
named in the petition in error, he may be made a party plaintiff in
error, though the statutory period in which error may be brought has
elapsed. Secor v. Witter, 39 O. S. 218.
A garnishee is not a party. Id.
The filing of a petition in error alone does not commence the action ;
a summons must also issue. " 5035; Robinson v. Orr, 16 O. S. 284.
In proceedings for a county road, where parties petition for a view,
etc., and after a report in favor of the road other parties petition for a
review against it, after final order of the commissioners, in a. petition
in error to review such'fiual order by one party, the other party must
be made party to the proceeding. Comm'rs Wood Co. v. Jenkins, 19
O. S. 348.
Where the plaintiff in an action to recover land dies after judgment
against him, his heirs may prosecute error to reverse the judgment.
If she be a married woman, and her husband was joined with her as
a party plaintiff, he may join with the heirs in a petition in error.
Hammond v. Hammond, 21 O. S. 620.
Action against three defendants two only served judgment against
all three petition in error by defendant not served to District Court- -
JUUISDICTluN AND PROCEDURE IN ERROR. 643
reversal of judgment, and judgment rendered against the two who
were served petition in error by them to Supreme Court : Held, not
sufficient jurisdiction of subject-matter to authorize reversal of either
judgment in either court. Jones v. Marsh, 30 O. S. 20.
Wheie party to judgment dies, one who becomes privy to it by oper-
ation of law may file petition in error, without being first made a
partv to such judgment; but, in his petition, he must state the facts
from which such privity arises; they are issuable, and such petition in
'iT >r must be verified as other pleadings are. Hanover v. Sperry, 35
O. S. '244.
Proceedings in error can not be instituted in the name of the de-
ceased party. Kennard v. Kennard, 35 O. S. 660.
The omission, as party to a petition in error, of one of the defend-
ants in the lower court, will not deprive the reviewing court of juris-
diction ; and if the defendant in error does not make the objection in
the District Court, he can not in the Supreme Court. Bank v. Green,
40 O. S. 431.
A r viewing court is not bound to notice errors in the record which
have not been specifically assigned. Booth v. Hubbard, 8 O. S. 243 ;
Wells v. Martin, 1 O. S. 386. And, as a general rule, will not do so,
except as to defects relating to the jurisdiction. Lrvi v. Daniels, 22
O. S. 38. They are presumed to have been waived Pollock v. Cohen,
32 O. S. 514. Nor will the court look beyond the assignments sj)eciaUy
made in the court below, unless there was a general assignment in that
Tourt. Davis v. Hines, 6 O. S. 473 ; Randall v. Turner, 17 O. S. 262 ;
Woodtoard v. Sloan, 27 O. S. 592 ; Hettrick v. Wilson, 12 O. S. 136-
138 ; Corry v. Foltz, 29 O. S. 327. And the Supreme Court will some-
times reverse on the general assignment of error made in the District
Court. Hettrick v. Wilson, 12 O. S. 136-138 ; Gittings v. Baker, 2
O. S. 21.
(It is always advisable to allege in the petition in error, by way of
general assignment, that " there are other errors, prejudicial to the
plaintiff in error, manifest upon the face of the record." This assign-
ment would not, however, seem to be sufficient to require any court
of error to determine the weight of the evidence.)
If no objection has been taken that the petition in the action docs
not state facts sufficient to constitute a cause of action, prior to filing
the petition in error in the Supreme Court, notice of such objection
should appear in the record, in some form, before the case is heard.
Youngstown v. Moore, 30 O. 8. 133.
If the facts alleged in an answer are not denied by a reply, but the
case was tried upon the evidence, without objection, the answer being
644 CODE PRACTICE AND PRECEDENTS.
in fact denied, and no exception taken until after judgment has been
affirmed by the District Court, the Supreme Court will not reverse for
that cause. Woodward v. Sloan, 27 O. S. 592 ; Gordon y. Hoffman,
15 O. S. 212.
If the petition in error only contains the name of one defendant in
error, followed by the words, "and others," the defect maybe rem-
edied by reference to the record. BuckingJiam v. Commercial Bank, 21
O. S. 131.
Issue and service of summons. SEC. 6714. The summons mentioned
in the last section shall, upon the written precipe of the plaintiff in
error, or his attorney, be issued by the clerk of the court in which the
petition is filed, to the sheriff of any county iu which the defendant in
error, or his attorney of record, is found ; when the writ is issued to a
foreign county, the sheriff thereof may return it by mail to the clerk,
and shall be entitled to the same fees as if it had been returnable to
the Court of Common Pleas of the county iu which such officer resides ;
and the defendant in error, or his attorney, may waive, in writing, the
issue or service of the summons.
(a) Service on the attorney after the death of his client is a nullity.
Cisna v. Beach, 15 O. 300.
Where the summons is only directed to one defendant, service on
the attorney of all the defendants is only good as to the defendant
named in the summons. Buckingham v. Commercial Bank, 21 O.
S. 131.
SEC. 6715. A summons in error shall not be issued in a case in
which there is, upon the minutes of the court, or among the files of
the case, a waiver of error by the party endeavoring to commence
such proceedings, or his attorney, unless the court in which the peti-
tion is to be filed, or a judge thereof, indorse on the same permission
to issue the summons.
What must be filed with the petition in error. SEC. 6716. The plaint-
iff in error shall file with his petition either a transcript of the final
record, or a transcript of the docket or journal entries, with such orig-
inal papers or transcripts thereof as are necessary to exhibit the error
complained of; and, if original papers and pleadings are filed, and the
final record has not been made, the reviewing court may permit the
temporary withdrawal of the originals for a reasonable time, to allow
the recording thereof, or direct copies thereof to be made and filed,
and the originals to be returned to the inferior tribunal.
(a) The original papers can not be accepted as a transcript, in cases
JURISDICTION AND PROCEDURE IN ERROR. 645
not provided for by the statute. Sttwart v. Williams, 15 O. 6. 484;
Stanley v. State, 23 O. S. 581 ; Jennings \. MendenhaU, 3 O. S. 489.
Transcript must be furnished upon tender of proper fee*. SEC. 6717.
Probate judges, justices of the peace, and other judicial tribunals hav-
ing no clerk, and the clerks of every court of record, shall, upon re-
quest, and being paid the lawful fees therefor, furnish an authenticated
transcript of the proceedings, containing the judgment or final order
in said courts, to either of the parties to the same, or to any person in-
terested in procuring such transcript.
Jfow execution of judgment or order may be stayed. SEC. 6718. (Sup.,
p. 384.) No proceeding to reverse, vacate, or modify a judgment or
final order rendered in the Probate Court, Common Pleas Court, or
Circuit Court, except as provided in the fourth subdivision of this sec-
tion, and in sections 6720 and 6721, shall operate to stay execution,
unless the clerk of the court in which the record of such judgment or
final order is made take a written undertaking, to be executed on the
part of the plaintiff in error to the adverse party, with sufficient surety,
as follows :
1. When the judgment or final order sought to be reversed directs
the payment of money, the written undertaking shall be in double the
amount of the judgment or order, to the effect that the plaintiff in
error will pay the condemnation money, and costs, if the judgment or
final order be affirmed, in whole or in part.
2. When it directs the execution of a conveyance, or other in-
strument, the undertaking shall be iu such sum as may be prescribed
by a court of record, or a judge thereof, to the effect that plaintiff
in error will abide the judgment, if the same be affirmed, and pay the
eocti
3. When it directs the sale, or delivery of possession, of real prop-
erty, the undertaking shall be in such sum as may be prescribed by a
court of record, or a judge thereof, to the effect that, during the pos-
session of such property by the plaintiff iu error, he will not commit,
nor suffer to be committed, any waste thereon, and that, if the judg-
ment be affirmed, he will pay the value of the use and occupation of
the property from the date of the undertaking until the delivery of
the possession, pursuant to the judgment, and all costs; and when
the judgment is for the sale of mortgaged premises and the payment
of a deficiency arising from the sale, the undertaking must also pro-
vide for the payment of such deficiency.
4. When it directs the assignment or delivery of documents, they
may be placed in the custody of the clerk of the court in which the
646 CODE PRACTICE AND PRECEDENTS,
judgment was rendered, to abide the judgment of the reviewing court,
or the undertaking shall be in such sum as may be prescribed as
aforesaid, to abide the judgment, and pay costs, if the judgment be
affirmed.
(a) The Common Pleas Court, or a judge thereof, may, under
clause 3 of this section, fix the amount of undertaking for the stay
of execution in that court, while the case is pending on error in the
Supreme Court. Gurney v. Gurney, 38 O. S. 658.
A writ of error bond held good when the condition was substantially
that required by statute, though its terms were not exactly followed.
Gardener v. Woodyear, 1 O. 170.
A bond conditioned to prosecute writ of error to effect, and abide the
judgment, binds the obligors to pay the amount of the judgment; and
in the declaration upon such bond it was not necessary to aver that a
writ of supersedeas was taken out by the plaintiff in error. Reynolds
v. Rogers, 5 O. 169.
Under the former practice an error bond had to be filed before the
Supreme Court obtained complete jurisdiction of the writ of error ; or
it was too late to operate as a supersedeas, and was invalid, either as i
common-law or statutory bond. Bayless v. Belmont Bank, 15 O. 606.
(This is not the case since the Code. An error bond can be given a t
any time before final judgment in error, and will operate as a supei,
sedeas.)
Where one of several defendants against whom judgment had beeit
rendered, prosecuted error alone against the adverse party, and judg.
ment was affirmed, an action can be sustained upon such bond,
though there was a defect of parties plaintiff in error, and a second
petition in error by all the parties is pending. BulJdey v. Stephens, 29
O. S. 620.
Undertaking must be approved. SEC. 6719. Before the written un-
dertaking mentioned in section 6718 shall operate to stay execution of
the judgment or order, the execution of the undertaking and the
sufficiency of the sureties must be approved by the court in which
the judgment was rendered or order made, or by the clerk thereof;
and the clerk shall indorse such approval, signed by himself, upon
the undertaking, and file the same in his office for the defendant in
error.
Substitute for undertaking. SEC. 5720. Instead of the undertaking
prescribed in the second subdivision of section 6718, the convey-
ance or other instrument may be executed, and deposited with the
JUKISDICTI-JX AND PROCERUKB IN Elliiuli. 647
clerk of the court in which the judgment was rendered, or order made,
to abide the judgment of the reviewing court.
Who need not giw *uch undertaking. Si:r. '>721. Executors, admin-
istrators, and guanliau?, who have given bond in this state, with surety,
according to law, shall not be required to give the undertaking men-
tioned in section 6718.
When execution may issue after undertaking given. SEC. 6722. In
an action on a contract for the payment of money only, or in (an) action
for injuries to the person, if the defendant in error give adequate secu-
rity to make restitution in case the judgment be reversed or modified,
he may, on leave obtained from the court below, or a judge thereof in
vacation, proceed to enforce the judgment, notwithstanding the ex-
ecution of the undertaking to stay proceedings; such security must
be an undertaking executed to the plaintiff in error, by at least two
sufficient sureties, to the effect that if the judgment be reversed or
modified he wll make full restitution to the plaintiff in error of the
money by him received under the judgment ; but the provisions
of this section shall not apply to judgments recovered in actions for
libel, slander, malicious prosecution, false imprisonment, or assault
and battery.
Xote. Upon a judgment of reversal in error, the plaintiff in error is entitled,
as a general rule, to be restored to all things he has lost by the judgment, or
order reversed. And after such reversal, in an action upon a restitution bond
given under this section to obtain restitution of the money paid upon execution
issued notwithstanding his undertaking in error, the claim on which the original
action was brought can not be set up, or made available as a set-off or counter-
claim. The party must make restitution, and obtain any rights he may have by
prsoeuting his original action. Biekett v. Garner, 31 O. S. 28.
Limitations as to time of prosecution. SEC. 6723 (83 v. 75). A
proceeding to reverse, vacate, or modify a judgment or final order
g hall be commenced within two years after the rendition of the judg-
ment or making of the final order, but persons within the age of mi-
nority, of unsound mind, or imprisoned, may commence such pro-
ceedings within two years after such disability is removed. (April 14,
1*86.)
Note. This section no longer saves the rights of married women because of
coverture. See note to section 4978.
(a) Where one party to a proceeding in error is within the saving
clause, the case is saved to all. WUkins v. Phillips, 3 O. 49 ; Massie
v. Afafefem, 12 O. 351 ; Buckingham v. Commercial Bank, 21 O. 8.
131.
648 CODE PRACTICE AND PRECEDENTS.
But in a bill of review, upon a decree, where the interests were
several, this rule did not hold, and if one not barred by reason of dis-
ability with the others who were barred by time, joined in the bill of
review, it was dismissed as to all. Kay v. Watson, 17 O. 27.
The proceeding in error is not deemed commenced by the mere filing
of the petition. A summons in error must issue. Robinson v. Orr,
16 O. S. 284.
The limitation as to proceedings in error fixed by the Code of Civil
Procedure applied to judgments rendered before the passage of that
act. Schooner Marinda v. Dowlin, 4 O. S. 500.
Time begins to run from the day judgment is actually rendered, not
from the first day of the term. West v. Meddock, 16 O. S. 417.
When an appeal is dismissed, and a motion to reinstate is continued
to the next term, and then overruled, time begins to run only from
the overruling of such motion. Propeller Ogontz v. Wick, 12 O. S.
333.
When by the judgment the whole merits of the case are disposed of,
time begins to run. Hinde v. Whitney, 31 O. S. 53.
Section 4991 (the one year provision when actions fail otherwise
than on their merits, etc.) has no application to proceedings in error.
Atcherly v. Dickinson, 34 O. S. 537.
A motion for a new trial, where there is a finding of facts upon
which judgment is rendered, is not necessary to authorize a review
upon error. Lockwood v. Krum, 34 O. S. 1. Nor is an exception
necessary in such case. Sarner v. Batdorf, 35 O. S. 113.
The facts which bring the party within the two years' saving clause
must be averred in the petition in error. Piatt v. Sinton, 35 O. S.
282. And the petition must be verified. If summons in error be
not issued, as well as petition, in error filed, within two years, the
cause will be dismissed on motion. The petition may be amended so
as to bring the party within the saving. It must be verified. Bowen
v. Bowen, 36 O. S. 312.
The two years' limitation, enacted in 1878, does not apply to judg-
ments theretofore rendered when the three years' limitation existed.
Lafferty v. Shinn, 38' O. S. 46.
If the time begins to run during the life of the party, it continues
to run against his heirs. Barttow v. Kinnard, 38 O. S. 373.
ERROR FROM JUSTICES OF THE PEACE.
How justice's judgment stayed on error. SEC. 6724. No proceeding
to reverse, vacate, or modify a judgment rendered, or final order
made, by a justice of the peace, shall operate as a stay of execution,,
JURISDICTION AND PROCEDURE IK ERROR. 649
the clerk of the Court of Common pleas take a written under-
taking to the defendant, executed on the part of the plaintiff in error
by sufficient surety, to the effect that the plaintiff will pay all the costs
which have accrued or may accrue on such proceedings in error, to-
gether with the amount of any judgment that may be rendered against
such plaintiff in error, either on the further trial of the cause, after
the judgment of the court below is set aside or reversed, or upon and
a ft IT affirmance thereof in the Court of Common Pleas ; when the
judgment or final order of a justice, sought to be reversed, directs
the delivery of possession of real property, the undertaking shall be
in such sura as may be prescribed by the Court of Common Pleas, or
a judge thereof, or, in the absence of such judge, by the probate judge
of the county, to the effect that, during the possession of such prop-
erty by the plaintiff in error, he will not commit, nor suffer to be com-
mitted, any waste thereon, and that if the judgment be affirmed he will
pay the value of the use and occupation of the property from the date
of the undertaking until the delivery of the property, pursuant to the
judgment, and costs ; and the person entitled to such proceedings
shall have the same time for prosecuting the same, before he is barred,
as is provided in the last section, unless the judgment be paid off or
satisfied prior to the commencement of such proceedings.
Proceedings wlien judgment of justice affirmed. SEC. 6732. If the
judgment of a justice "of the peace, taken on error as herein provided
to the Court of Common Pleas, be affirmed, such court shall render
judgment against the plaintiff in error for the costs of suit, and award
execution therefor; and the court shall thereupon order its clerk to
certify its decision to the justice, so that the judgment affirmed may
be enforced as ]f such proceedings in error had not been taken ; or,
such court may award execution to carry into effect .the judgment of
the justice, in the same manner as if the judgment had been rendered
in the Court of Common Pleas.
Note. It is usual and most convenient for the Common Pleas Court to award
execution to carry into effect thn judgment of the justice, and for the costs of
the proceedings in error. .This obviates delay and the issuing of two executions,
one by the court for costs, and the other by the justice after the cause is certi-
fied back to him.
Proceedings when judgment of justice reversed. SEC. 6733. When the
proceedings of a justice of the peace are taken on error to the Court
of Common Pleas, in manner' aforesaid, and the judgment of such
justice* is reversed or set aside, the court shall render judgment of re-
versal, and for the costs that have accrued up to that time, in favor
650 CODE PRACTICE AND PRECEDENTS.
of the plain tiff in error, and award execution therefor; and the cause,
except when the reversal is because the justice had no jurisdiction of
the plaintiff in error, or of the subject of the action, shall be retained
by the court for trial and final judgment, as in cases of appeal.
(a) The Common Pleas, on the reversal of a justice's judgment,
must retain the cause for trial and final judgment. Robinson v. Kious,
4 O. S. 593 ; Adams Express Co. v. St. John, 17 O. S. 641. Changed
by this section when the justice had no jurisdiction.
Upon a verdict the justice must immediately render judgment ac-
cordingly. A judgment rendered on a subsequent day may not be
void, but it is an irregularity, when not waived, and will be ground
for reversal upon error; and the payment of the jury fee is not a con-
dition precedent to the rendition of such judgment. Its payment may
be otherwise enforced. Ib.
When there has been a jury trial before a justice, a motion for a
new trial may be made on the ground that the verdict was obtained
by fraud, partiality, or undue means, and the judgment may be set
aside therefor at any time within four days after its rendition. 6560,
Swan's Treat. (12th ed.) 188. In other cases there is no warrant for
motions for new trials.
Where the judgment of a justice is reversed on error, it is the duty
of the court to render judgment for the costs of the plaintiff in error
up to that time, including the costs in the justice's court. Belford v.
Parrish, 22 O. S. 371.
The rule is different where the judgment, etc., of the Common
Pleas Court is reversed. Judgment can only be for the costs of the
proceedings in error. Where the defendant, before the justice, had
offered to confess judgment for $63, which was rejected, and the jury
rendered a verdict for $4, being the amount of both offer and finding,
on error, judgment was reversed in toto, it not being a case to modify
the judgment to conform to the verdict. Faucett v. Meeker, 31 O.
S. 634.
BUI of exceptions on trial before justice. SEC. 6565. (Sup., p. 381,
tit. 3, ch. 6.) In all cases before a justice of the peace, whether tried
by a jury or by the justice, either party shall have the right to except
to the opinion of the justice upon any question of law arising during
the trial of the cause ; and when either party shall allege such excep-
tion, it shall be the duty of the justice to sign a bill containing such
exceptions, if truly alleged, with the point decided, so that the same
may be made a part of the record in the cause ; and whenever either party
during the trial shall require time to prepare his bill of exceptions, the
JURISDICTION AXI> PROCEDURE 15 ERROR. 651
justice shall appoint time when the same shall be K-ttli-d and signed,
not more than jive days from the day of trial.
(a) Bills of exceptions are required to be entered at length on the
docket of the justice (sections 694, 505), and until so entered they
constitute no grounds on which to found a petition in error, which
must be based on u duly certified transcript of the docket. Huston v.
Huston, 29 O. 8. 600. "
A bill of exceptions may be taken to bring upon the record the fact
that no evidence at all was offered on a point or points which it was
necessary to establish to obtain the judgment. Kaufman v. Broughton,
31 O. S. 424.
A bill of exceptions, taken on a trial before a justice of the peace,
which contains the testimony offered on the trial, but does not show
any question of law decided by the justice, is unauthorized, and can
not be considered by a reviewing court en error. Leonard v. Cincin-
nati, 26 O. S. 447. (See Swan's Treatise, 12th ed., pp. 188-194).
Th course to pursue iu such cases is to appeal.
Exceptions in forcible entry and detainer cases. SEC. 6610. Ex^
ceptions to the opinion of the justice in cases under this chapter (tit.
3, ch. 9, Forcible Entry, etc.), upon questions of law and evidence
may be taken by either party, whether tried by jury or other wise; but
in proceedings to reverse, vacate, or modify the judgment or final
order of the justice made iu such cases, the petition in error can be
filed in the Court of Common Pleas, only by leave of said court, or a
j udge thereof, or in the absence of such judge from the county, by
leave of the judge of the Probate Court of such county, and upon
notice of such application to be first given to the opposite party.
\otr. Neithei a judgment o the justice nor of the Common Pleas Court,
\\ hrri rendered after reversal ot the justice 8 judgment on error (section 6733), is a
IMP to another action brought by eithet party. J 6601.
(a) The exceptions authorized by this section to be taken are those
only relating to the competency of evidence, and do not extend to and
include questions touching the weight or gtijficiency of the evidence,
Statt v. Wood, 22 O S. 537, and where there is evidence before the
justice tending to sustain his finding, and the only exception is that the
finding is not sustained by sufficient evidence, the justice is not bound
to sign a bill of exceptions setting forth all the evidence and the fact
of such exception Ib.
Application under section 6710 is not authorized to be made to the
Supreme Court to review directly the proceedings of a justice in
652 CODE PRACTICE AND PRECEDENTS.
forcible entry and detention, or of forcible detention only, notwith
standing leave to file a petition in error in the Common Pleas may
have been refused. Carroll v. (7 Conner, 25 O. S. 617.
The refusal of the Court of Common Pleas to allow a petition in
error in a forcible detainer proceeding is not reviewable in the District
(Circuit) Court on petition in error, and such court has no jurisdiction
to review the judgment of a justice of the peace in such cases, and a
court without jurisdiction has no power to render judgment for costs,
except in reversals in error cases on the ground that the lower court or
tribunal had no jurisdiction. Rothwell v. Winterstein, 42 O. S. 249.
(See Swan's Treatise, 12th ed., pp. 542-558.)
Note. For error to Probate Court in road cases, see section 4713.
The provisions governing civil proceedings in the Court of Common Pleas
govern like proceedings in the Probate Court, so far as applicable, when there
is no provision governing the subject in the Probate Court act (tit. 2, ch. 7).
6411. It would seem, therefore, that the weight of evidence may be re-
viewed by the Common Pleas and Circuit Courts on error from the Probate
Court, as from the Common Pleas, there being no special provisions on the sub-
ject in the probate act. Eemedy by appeal is very fully given, as will be seen.
Stay of execution in other cases. SEC. 6725. Execution of a judg-
ment or final order, other than those enumerated in this chapter (tit.
4, ch. 1), of any judicial tribunal, or the levy or collection of any tax
or assessment therein litigated, may be stayed, on such terms as may be
prescribed by the court in which the petition in error is filed, or by a
judge thereof.
(a) This section merely provides that the execution of the judgment
or final order may be stayed. It does not, in terms or spirit, vacate
the judgment. That is left to stand until reversed or set aside,
though not in the meantime to be executed. But in case of a contested
election, the order of the Common Pleas is not suspended by the allow-
ance of a supersedeas under this section. State v. Commissioners, 14
O. S. 515 ; State v. Commissioners, 31 O. S. 451.
Where the judgment below is reversed by the District Court, and
the cause remanded to the Common Pleas for further proceedings, and
a petition in error is pending in the Supreme Court to reverse the judg-
ment of reversal, an order staying further proceedings in the Common
Pleas will only be granted on good cause shown. Texas Building Associ-
ation v. Aurora, etc., Ins. Co., 34 O. S. 291.
Proceedings after judgment or final order is reversed. SEC. 6726. (Sup.,
p. 385.) When a judgment or final order is reversed, either in whole
JURISDICTION AND PKOCEDCRE IN ERROR. 653
or in part, in the Common Pleas Court, the Circuit Court, or the Su-
preme Court, the court reversing the same shall proceed to render such
judgment as the court below should have rendered, or remand the
cause to the court below for such judgment ; the Circuit Court or the
Common Pleas Court so reversing a judgment shall, upon the request
of either party, specify in writing the ground or grounds of such re-
versal, which shall be filed and kept with the papers in the case ; the
court reversing or affirming such judgment or final order, shall not
i*sue execution in causes that are so brought before it on error, on
which it pronounces judgment, as aforesaid, but shall send a special
mandate to the court below, as the case may require, for execution
thereon, and the court to which such special mandate is sent shall pro-
ceed in the same manner as if such judgment or final order had been
rendered therein ; and on motion, and good cause shown, it may sus-
pend any execution made returnable before it by order of the Common
Pleas Court, the Circuit Court, or the Supreme Court, in the same
manner as if the execution had been issued from its own court; but
such suspension shall not extend further than to stay proceedings until
the matter can be further heard by the Common Pleas Court, the Cir-
cuit Court, or the Supreme Court, as the case may be ; but this section
shall not apply to judgments of justices of the peace.
Note. Upon reversing a judgment upon the evidence stated in the bill of
exceptions, there being no finding of facts, or special verdict, the reviewing
court can not render such judgment as such evidence indicates the court below
ought to have rendered, but must remand the cause for further proceedings ac-
cording to law, to the lower court. Emery's Sons v. Irving National Bank, 25
O. S. 860; MilUr v. Sullivan, 26 O. S. 639.
(a) The requisite data appearing on the face of the record, a review-
ing court, on error, will render such judgment as the court below
ought to have rendered. Columbus, etc., R. Co. v. Simpson, 5 O. S.
251 ; JEtna Int. Co. v. Church, 21 O. S. 499. Where the relief sought
was an injunction which was refused, and the reversal was for such re-
fusal, the Supreme Court, under this section, rendered a judgment of
perpetual injunction. Wagner v. Railway Co., 38 O. S. 32.
(6) A judgment of reversal is effective notwithstanding the death
of the plaintiff in error during the pendency of the proceedings in
error. Such judgment takes effect, by relation, as of the dute of the
commencement of the proceeding*, in error ; and it is competent for the
court, to which the cause is remanded for a new trial, to order a re-
vivorof the action in the name of the proper representative of the
deceased party. Williams v. EngMrecht, 38 O. S. 96.
654 CODE PRACTICE AND PRECEDENTS.
(c) Where the Supreme Court rendered such judgment as the
District Court should have rendered, and ordered the defendant in
error to deliver, within ten days, a certain deed to the plaintiff in
error, which order was disobeyed, proceedings for contempt, by force
of this section, were required to be taken in the District Court.
Hulett v. Fairbanks, 41 O. S. 401.
Costs on error. SEC. 6727. When a judgment or final order is re-
versed, the plaintiff in error shall recover his costs, and when reversed
in part, and affirmed in part, the court may apportion the costs be-
tween the parties in such manner as it deems equitable.
(a) This only includes the costs on error, and not the costs in the
court below. Cartwright v. Sole, 16 O. 316.
Where the case is dismissed for want of jurisdiction of the subject-
matter, but the court erroneously proceeds to render judgment against
each party for his costs, the judgments and proceedings to reverse the
same are ex parte, and the provisions of this section, which have ap-
plication to proceedings of an adversary character, do not apply; hence
such judgment will only be reversed at the costs of plaintiff in error.
Norton v. McLeary, 8 O. S. 205.
(6) Where the court has no jurisdiction of a cause, it can render
no judgment therein for costs; but costs of proceedings in error to re-
verse a judgment rendered without jurisdiction must be adjudged to
the plaintiff in error. Burke v. Jackson, 22 O. S. 268.
(c) Where by mistake judgment for costs was rendered against a
person not a party to the suit, and the case was afterward pending
on error prosecuted on other grounds, the court of error may correct
the mistake as to costs, and the case is not thereby brought within
this section. Armstrong v. McAlpin, 18 O. S. 184.
Under former statutes, the rule was, where a final order was reversed
in part and affirmed in part, that the costs in error \vere equally
divided between plaintiff and defendant. Bouton v. Lord, 10 O. S.
453.
But when a judgment is modified so as to diminish the rate of in-
terest, this was done at the costs of the defendant in error. CallaJian
v. Babcock, 21 O. S. 281.
Where several damages are assessed on several causes of action, a
judgment for the aggregate amount of damages may be reversed as
to part of the causes of action, and affirmed as to the rest. Sidner v.
Alexander, 31 O. S. 433.
In such case, where error was assigned to all the causes of action,
and the judgment is reversed as to part, and affirmed as to the
JURISDICTION AND PROCED'JHK IX EIIKOR.
residue, the costs on error were, under this section, in its original form,
equally divided between the parties. Ib. (Now the apportionment
of the costs is in tin- discretion of the reviewing court.) Where the
jmLMiH-nt was divisible, and a reversal only asked as to the erroneous
part, whether the plaintiff in error was entitled to recover his costs,
query.
Mistake of clerl not ground for error primarily. SEC. 6728. A mistake,
neglect, or omission of the clerk shall not be a ground of error, until
the same has been presented and acted upon in the court in which
the mistake, neglect, or omission occurred.
for rendering judgment prematurely. SEC. 6729. The rendering
of judgment before the action stood for trial according to the provisions
of title one, part third, shall be deemed a clerical error.
(a) Entering judgment against a garuishee, before judgment against
the defendant, is to be regarded, after judgment against the latter, as
only a clerical error, and not a cause for reversing the judgment
against the judgment debtor. Carper v. Richards, 13 O. S. 219.
But a judgment rendered by default, before the day named in the
summons foi answer, may be reversed. To render judgment, under
such circumstances, is not a mere mistake, neglect, or omission, t'> be
corrected only in the court of original jurisdiction. Williamson v.
\!rkl!n, 34 O*. S. 123.'
the Circuit Court sluM assess a penalty. SEC. 6730. (Sup., p.
8885.) If the Circuit Court affirm a judgment on petition in error, it
shall also render judgment against plaintiff in error for Jive per centum
upon the amount due from him to the defendant in error, unless the
court enter upon its minutes that there was reasonable ground for such
proceedings in error.
(a) Part payment of the judgment below will relieve the plaintiff
hi error, on affirmance of the judgment, from the five per cent dam-
ages pro tantc only ; and where it appears that such part payment wa
made the ground for relieving the plaintiff in error from the payment
of all such statutory damages, the action of the court will be corrected
on petition in error. Brady v. Holderrnan, 19 O. 26.
Writs of error and certiorari abolished. SEC. 6731. Writs of error
and certiorari to reverse, vacate, or modify judgments or final orders
in civil cases are abolished ; but courts shall have the same power
to compel transcripts of the proceedings, containing the judgment or
656 CODE PRACTICE AND PRECEDENTS.
final order sought to be reversed, to be furnished, completed, or per-
fected, as they heretofore had under writs of error and certiorari.
(a) Under the practice in this state a certiorari was not allowed
before final judgment. Serfv. Shulze, 10 O. 263.
Except as to matters of a criminal nature, certiorari was abolished
by the Code of Civil Procedure. Butkr v. Baker, 2 O. S. 326;
Schooner Marinda v. Dowlin, 4 O. S. 500 ; Matter of Collier, 6 O. S.
55 ; Hobbs v. Beckwith, 6 O. S. 252 ; Commissioners v. Junkins, 19 O.
S. 348.
Where certiorari was employed instead of petition in error, and
judgment of dismissal rendered, such judgment will not be set aside
and the party permitted to amend by filing a petition in error. U. S.
v. Cottier, 6 O. S. 61.
(6) A reviewing court can make no alteration in the record of the
court below, but may disregard any thing in the transcript which is
not legally a part of the record. Smith v. Bd. of Ed., 27 O. S. 44.
But a reviewing court could always compel the court below to send
up a more perfect record. Wood v. Newkirk, 15 O. S. 295. (The
party desiring sueh perfect record in the reviewing court, suggests in
writing filed in the cause, that the record before the court is not a
full or complete record, called " suggestion of diminution of record ; "
whereupon the court will issue an order to the lower court to certify
up a transcript of the complete record, which must be all of such
record in the lower court, which court can not make new parts of
such record not before existing.)
(c) Proceedings subsequent to the reversal form no part of the record
of the final judgment of reversal, and can not be brought into the
court of last resort upon suggestion of diminution of record. The
remedy is by answer. Collins v: Davis, 32 O. S. 76.
(Ordinarily the record of a case is its history from the commence-
ment of the action until the entry of the judgment therein.)
Decrees in chancery, how reviewed. SEC. 6734. The final orders or
decrees of courts of chancery heretofore rendered, or which may here-
after be rendered, in any chancery proceeding pendiug on July 1, 1853,
may be reviewed in the manner provided in thej^w succeeding sec-
tions, and within the time prescribed in section 6723 ; and all suits in
chancery pending at that time may be prosecuted to final decree in
like manner as if this title had not taken effect.
Bill of review. SEC. 6735. When a party, complainant or defend-
ant, seeks a review of a final decree or order in chancery, he may file
JURISDICTION AND PROCEDURE IN KUROR. I'M 7
in the clerk's office of the court in which the decree was rendered a
short petition, setting forth the names of the parties to such suit, the
substance of the decree or order sought to be reviewed, and an assign-
ment of the errors nTu-d upon to reverse or set aside such decree or
order, and a prayer for Mich reversal; and errors* in law and in fact may
be assigned at the same time.
Process thereon. SEC. 6736. On the filing of such petition, the clerk
shall issue a summons against all the parties to the original suit, ex-
cept such as are petitioners in the suit of review, as in other cases.
Original papers to be uned. S^. 6737. All the original papers and
evidence in the original cause, and the entries made, shall be used on
the hearing of the bill of review ; and it shall not be necessary for the
party to procure a copy of the record of proceedings in the original
cause, nor shall it be necessary to recite, in the bill of review, any of
the facts set forth in the pleadings in the original cause.
Xote. In chancery causes, no oral testimony can be heard ; all must be in
depositions, or in writings, or printed documents.
How decree in Circuit Court may be stayed. SEC. 6738. (Sup., p.
385.) When a petition for review is filed in the Circuit Court,
a judge of the court may, in vacation, upon good cause shown,
stay proceedings on the former decree until the next term of the
court in which such proceeding! are pending; and the judge shall
direct the nature and the amount of security to be given by the
party applying for such stay.
How stayed in Common Pleas. SEC. 6739. When such petition is
filed in the Common Pleas, the judge of such court may exercise the
tame power, ou the same terms.
Petition in error from Circuit Court to Supreme Court. SEC. 6740.
(Sup. t p. 385.) A petition in error, in the nature of a bill of review,
may, on leave of the Supreme Court, or a judge thereof, be filed in the
Supreme Court, to reverse or modify any decree i-i chancery, that
heretofore has been or that hereafter may l>e rendered in any Circuit
Court in this state, in which the tiile to real estate is in controversy, or
t'h" amount in controversy is not less than/tr hundred dollars ; and the
proceedings upon such petition in error shall, in all respects, be gov-
enir<l In- the provisions of the six preceding sections of this chapter (tit.
4, I'll. 1 >; but this section shall not extend to suits that have been
commenced since the first day of July, 1853, and the petition in error
must be filed within Uiree years after the rendition of the decree so
sought to be reversed or modified.
42
658 CODE PRACTICE AND PRECEDENTS.
Note. As bills of review can apply to but few cases now, it will bo enough t >
reler to the previous Ohio statutes and decisions on the subject.
Act of February 17, 1804, section 7, 1 Chase, 434; Act of February 19, 1810,
sections 62-64, 1 Chase, 692 ; Act of January 22, 1824, sections 65-67, 2 Chasj,
1286; Act of March 14, 1833, sections 57-59, 3 Chase, 1702-3; 36 v. 57, sections
1,2, 6; 1 Cur. 423-4-5.
Cases relating to bills of review: Piatt v. St. Glairs Heirs, W. 532; Marvin
v. Trumbull, W. 386; Ludlow v. Kidd, 2 O. 372; Same \. Same, 3 O. 541;
Same v. Same, 4 O. 244; 4 O. 122 ; Strader v. Byrd, 7 O. (1 pt.) 184; Bascom v.
Bascom, 7 O. (2 pt.) 125; Brown v. Haines, 12 O. 1 ; Ma&sie v. Matthews, 12 O.
351 ; Stevens v. Hay, 15 O. 313; Gary v. May, 16 O. 66; Way v. Hillier, 16 O.
105; Kay v. Watson, 17 O. 27; Nolan v. Urmston, 17 O. 170; Cooch v. Cooch>
18 O. 146; Tremper v. Barton, 18 O. 418; Creed v. Lancaster Bk., 1 O. S. 1 ;
Longworth v. Sturges, 4 O. S. 690; Same v. Same, 6 O. S. 143; 6 O. S.
221 ; Grant v. Ludlow, 8 O. S. 1; Holman v. Riddle, 8 O. S. 384; Trim v. Nichol-
son, 10 O. S. 623 ; Trimble v. Longworth, 13 O. S. 431 ; Tracey v. Sackett, 1 O,
S. 54; Gazley v. /Tw^er, 3 O. S. 399; Buckley v. Gilmore, 12 O. 63, 75; Medina.
etc., Ins. Co. v. Bollmeyer, 5 O. S. 107 ; Carry v. Campbell, 34 0. S. 204.
SUPERIOR COURT OF CINCINNATI.
Judgments of general term reviewable by Supreme Court. SEC. 499.
(Sup., p. 40.; A judgment rendered or final order made by the Supe-
rior Court of Cincinnati at general term, may be reversed, vacated, or
modified by the'Supreme Court for errors appearing on the record.
And judgments and final orders of such Superior Court in general
term are reviewable only by the Supreme Court. 503, Sip.,
p. 41.
A judge of such court sitting in special term may reserve and ad-
journ for decision, in general term, any question of law or fact arising
in any case upon the record, or upon evidence in writing ; and judg-
ments, etc., may be entered in reserved cases in general term. 503,
Sup., p. 41.
Error from special to general term. SEC. 499a. (Sup., p. 40.) A
judgment rendered or final order made by said Superior Court of Cin-
cinnati at special term, may be reversed, vacated, or modified by said
Superior Court at general term for errors appearing in the proceedings
at special terms, or by exceptions taken in accordance with chapter 4,
division 3, title 1, part 3 of the Revised Statutes. 5297-
5304.
The proceedings to obtain such reversal, vacation, or modification,
shall be by petition to be entitled " petition in error," and shall be the
same as those provided by chapter 1, title 4, part 3, of the Revised
Statutes (sections 6707-6740), upon petitions in error, except that it
shall not be necessary to file with the petition a transcript of the
JURISDICTION AND PROCEDURE IX ERROR. 659
proceedings, but tin- i>etition in error shall t>e heard upon the original
tiles, [>1. :i i:ni:- ami proceeding*; -md t'.ie said Superior Court, at gen-
eral term thereof, shall have he power i> rentier such judgment as
should have l>e-n rendered at special term, <>r remand the cause to the
>pecial term fr judgineut, and upon such judgment execution may
M upon original judgments.
,\,.ir. When a case is taken from the general trm of such Superior Court to
preme Court on petition in error, a transcript of tu.- docket and journal
i-utrios I* requisite. \\ 671G, 6709.
In -rror cases, the general term has no power to rondor judgment of revor.-al,
and final judgment upon a bill of exceptions containing nil the evidence.
Emery's Son* v. Irving National Bvnk, 2"> O. S. 36(1; Miller v. Sullivan, '2h U.
8.639.
PETITIOX ix ERROR TO CIRCUIT COURT.
[Form 400. 0713]
Circuit Court of County, Ohio.
John Smith, John Jones, and Hugh "|
Evans, Plaintiffs in Error, f p^.^ Jn Em)r
Wo. .J vs. I
John Doe, Defendant in Error.
The said plaintiffs in error claim that there is manifest error prejudicial
to them in the record and proceedings of the Common Pleas Court of said
county, filed herewith and made part hereof, marked "A" [or, numbered
1, 2, 3, etc., making the number on rack separate file, end adding: made part
of the petition in error herein from said Court of Common Pleas], in this,
to wit:
First. \_Herettate and number every ground of error relied on, or it maybe
waived. If a motion for a new (rial has been overruled and exempted to, it if ill be
tuJRcicnt to allege that " the court erred in overruling tho motion for a new
trial," without specifying the grounds of the motion, as it contains them. The
same may be done if there was a motion to render judgment non olstante veredicto,
or upon a special verdict, or findings, or upon a finding of fact by the courts.]
[It is advisable in all cases to conclude with a general assignment of error, tn wit:
". \ii-l there are other errors, prejudicial to the plaintiff in error, manifest
upon the face of the record."]
Wherefore the plaintiffs in error ask that said judgment and proceed-
in L'- lo reversed, with costs, and they be restored to ;ill things they have lost
theiel.y JOSEPH CIUTTY, Attorney for Plaintiff* in Error.
[*Vo vfrification rctfuired.]
Exceptions not specifically taken at the trial are deemed waived.
Adatns v. State, 25 O. S. 584 ; Same v. Same, 29 O. S. 412 ; Berry v.
State, 31 O. S. 219, 224. And it is error in reviewing court to notice
Hi'-h exception. Everett v. Sttmncr, 32 O. S. 562 ; Powers v. Railtoay
G>., 33 O. S. 429; Railway v. ProM, 30 O. S. 104.
660 CODE PRACTICE AND PRECEDENTS.
But when the whole evidence is before the court, and also the charge
of the court below, to which no exception was taken, it will be consid-
ered with the evidence in determining if the verdict is erroneous.
Mownj v. Kirk, 19 O. S. 375 ; Railroad v. Porter, 32 O. S. 328 ; Baker
v. Pendergrast, 32 O. S. 494.
A petition in. error which presents only questions of law arising upon
the record needs no verification, nor is any pleading necessary on the
part of the defendant in error to join issue upon it; but where facts
are necessary to be alleged to entitle the plaintiff to have questions of
law arising upon the record determined, the petition must be verified,
and an issue may be made, by answer, as to the facts so alleged.
Welton v. Williams, 28~0. S. 472.
PRECIPE FOR SUMMONS IN ERROR.
[Form 401. g f>7!4.]
Circuit Court of County, Ohio.
John Smith, John Jones, and Hugh"]
Evans, Plaintiffs in Error. I r> r o ~c<
-v -i > Precipe for Summons r n Error.
No. .J vs.
John Doe, Defendant in Error. J
To Clerk .
In this case issue a summons in error for the defendant in error, return-
able according to law.
[Z>ate.] JOSEPH CHITTY, Attorney for Plaintiffs in Error.
SUMMONS IN ERROR.
[Form 402. 6714.]
The State of Ohio, County.
To the Sheriff of the County of , Greeting :
You are hereby commanded to notify John Doe that John Smith, John
Jones, and Hugh Evans have filed a petition in the clerk's office of the
Circuit Court of County, and State of Ohio, asking a reversal of a
judgment which said John Doe obtained against said John Smith, John
Jones, and Hugh Evans, at the term, A. r>. 18 , of the Court of Com-
mon Pleas of County ; and that unless the said John Doe * attend on
the day of , A. D. 18 [or, if issued less than ten days before the close
of the term, say from the* : attend on the first day of the next term of said
Circuit Court to be holden in said county, which will commence on
the day of , A. n. 18 ], said judgment may be reversed.
You will make due return of this summons on or before said day.
Witness my hand and the seal of said Circuit Court this day of ,
A. D. 18.
[SEAL OP COURT.] , Clerk of the Circuit Court of County.
JURISDICTION' AND PROCEDURE IN ERROR. 661
The summons may be served ujxm the defendant in t-rror, or his
attorney of record, who may also waive the issue and service of sum-
mons and enter the appearance of the defendant in error. This should
be done in writing und filed. Such summons may be issued to the
sheriff of another county, and by him served there, and returned by
mail. Service may also be made by publication for six weeks, the time
i'r appearance being the same as to the pending or next terra, as in
case of personal service. While it is usual to note an exception at the
foot of the entry of judgment of affirmance or reversal, it is not neces-
sary to save the rights of the parties.
JUDGMENT OF AFFIRMANCE.
[Form 403. G730; Sup., p. 385.]
John Smith et als. ) Error Judgment of Affirmance, with 5 per cent
VohVDoe, } D""**
This day this cause came on to be heard upon the petition in error
herein, and was argued by counsel; on consideration whereof, and the
court being fully advised in the premises, it is considered and adjudged
by the court that said judgment and proceedings of the said Court of
Common Fleas be, and the same are hereby affirmed, and that the said
defendant in error recover of the said plaintiffs in error his costs in this
behalf expended, taxed at dollars. Plaintiff's costs taked at
dollars *
And it is further adjudged by the court that the said defendant in er-
ror also recover of the said plaintiffs in error five, per centum upon the
amount due from them to him upon his said judgment; * and it is or-
dered that this cause be remanded to the Court of Common Pleas to ex-
ecute this and said judgment.
[//" no damages by way of penalty be allowed, instead of what is contained be-
t'ceen the **, say : "And the court find that there was reasonable ground
for the proceedings in error herein."]
JUDGMENT OK REVERSAL.
[Form 404. 6726; Sup., p. 385.]
John Smith et als. |
No. .] w. > Error .Judgment of Reversal.
John Doe. )
This day thin cause came on to be heard upon the petition in error herein,
and was argued by counsel ; on consideration whereof, and the court be-
ing fully advised in the premises, the court doth liinl that there is mani-
fest error in the said record and proceedings of said Court of Common
Pleas. Whereupon it is adjudged by the court that said judgment and
proceedings be and the same ure hrn by reversed, and that the said
66'2 CODE PRACTICE AND PRECEDENTS.
plaintiffs in error recover of the said defendant in error their costs in this
behalf expended, taxed at dollars. And it is ordered that this cause
be remanded to the Court of Common Pleas to be further proceeded in
according to law.
SPECOTCATIOX OF GROUNDS OF REVERSAL.
[Form 405. 6726; Sup., p. 385.]
Circuit Court of County, Ohio.
Tohn Smith et als. |
Xo. .] vs. > Error Specification of Grounds of Reversal.
John Doe. )
Upon the request of , attorney for the in error, the court make
and order to be filed with the record in this cause the following specifi-
cations of the grounds for the reversal of the judgment of the Court of
Common Pleas: First. [Here ttate and number such grmtndi.~\
, > Judges.
This specification is not entered upon the journal, but merely filed
with the record in the cause. It is for the guidance and control of
the parties and the court upon a retrial in the court below; and may
be of importance if the cause goes to the Supreme Court on error,
though no court of errors will reverse a decision if, in view of the
whole record, it is correct, for wrong reasons therefor. The statute
also applies to reversals by the Common Pleas Court.
MODIFIED JUDGMENT, REVERSED AND AFFIRMED IN PART.
[Form 406. 6727]
John Smith et als. )
No. .] v*. > Error Modification of Judgment.
John Doe. )
This day this cause came on to be heard upon the petition in error
herein, and was argued by counsel; on consideration whereof, and the
court being fully advised in the premises, it is adjudged by the court that
there is manifest error in the record and proceedings of said Court of
Common Pleas in this, to wit : \_here specify such error, or errors] ; and to that
extent said judgment and proceedings are reversed. And said judgment
and proceedings being found by the court free from error in all oth-r
respects, are hereby affirmed. And it is ordered and adjudged that the
costs of this petition and of the proceedings in error be paid by the par-
ties respectively, as follows: \_kere state the apportionment of costs]; which
costs said parties are hereby respectively adjudged to' pay as aforesaM.
[ Mandate ax in Form 403. ] .
When the court fiuus the judgment below, a judgment being an eu-
J I I JSD1CTION AXD PROCEDURE IN ERROR.
tirety, to be for too great a sum of money, but free from errr in
other respects, it will affirm, if the defendant in error remits the ex-
cess. The plaintiff in error, in such case, will recover costs of the
proceedings in error.
REMITTITUR.
Remittitur and Judgment of Affirmance at CosU
[Form 407.]
Smith et als.
W T^ ^ Defendant.
John Doe. j
This day this cause came on to be heard upon the petition and proceed-
ings in error from the said Court of Common Pleas, and was argued by
counsel ; on consideration whereof, and the court be jng fully advised in
the premises, do find that there is error in said judgment, the same having
been rendered for - dollars too much, and that there is no error in the
said record in any other matter or thing. And thereupon, the defendant
in open court having remitted the said excessive sum of - dollars, it is
hereby ordered and adjudged that said judgment and proceedings, as and
for the residue of said judgment, be and the same are hereby affirmed.
And it is further adjudged that the said plaintiffs in error recover of the
said defendants in error their costs in this behalf expended and incurred,
taxed at - dollar?-.
[Mandate at in Form 403.]
If the defendant refuse to remit, the judgment will be one of re-
versal, as in Form 404.
If the party makes the remittitur and accepts judgment for the re-
duced amount, he can not prosecute error, though the reduction was
erroneous. Railroad Co. v. J/oinry, 36 O. S. 418.
JUDGMENT SUCH AS THE COURT BELOW SHOULD HAVE RENDERED.
When the judgment below was rendered upon a finding of facts by
the court, or a special verdict, or facts found upon questions submitted
to them by the court, by the jury, with their general verdict, or the
pleadings entitle one of the parties to a judgment different from that
rendered by the court below but not upon the evidence contained in
the bill of exceptions, the re viewing court may render such judgment
as the court below should have rendered.
This may be a reversal and judgment for the reversing party, or a
modification of the judgment below.
664 CODE PRACTICE AND PRECEDENTS.
[Form 408. 6726 ; Sup., p. 385.]
John Smith et als. |
No. .] vs. > Error Judgment.
John Doe. )
This day this cause came on to be heard upon the petition and proceed-
ings in error herein, and was argued by counsel ; on consideration
whereof, and the court being fully advised in the premises, the court do
find that there is manifiest error in said record and proceedings, and
hereby vacate and reverse the same at the costs of said defendant in er-
ror, taxed at dollars, for which judgment is hereby rendered against
the defendant in error in favor of the plaintiff in error.
And upon said record and proceedings the court doth render such
judgment as said Court of Common Pleas ought to have rendered; that is
to say, the court do hereby order, adjudge, and decree {here give the judg-
ment].
[As to mandate, follow Form 403.]
MANDATE.
[Form 409. 6726 ; Sup., p. 385.]
The State of Ohio, ) Circuit Court of County, Term of , A. D.
County.} 18.
To the Honorable the Court of Common Pleas, within and for the County
of , Ohio, Greeting :
We do hereby command you, 'that you proceed without delay to carry
the following judgment of our Circuit Court of the County of , and
State of Ohio, rendered at the term thereof, A. D. 18 , in the case
of John Smith, John Jones, and Hugh Evans, plaintiffs in error, against
John Doe, defendant in error, into execution [if the judgment be such as the
lower court should have rendered, say: and that the said cause of John Doe
against said John Smith, John Jones, and Hugh Evans be further proceeded
in by your said court according -to law], the petition in error herein to the
contrary notwithstanding. [Here, copy judgment of the Circuit Court.]
Witness , Clerk of .our eaid Circuit Court, this day of , A.
D. 18.
[SEAT, OF COURT.] , Clerk.
When a mandate is issued from the Supreme Court to the Common
Pleas, it will be entered there, and a copy of the judgment entry cer-
tified to the Circuit Court.
A mandate imports absolute verity, and can only be corrected by
the court issuing it. Stevenson v. Morris, 37 O. S. 10.
JURISDICTION AND PROCEDURE IN ERROR. 665
AFFIRMANCE OF JUDGMENT OF JUSTICE OF THE PEACE.
[Form 410. ? 6732.]
A. B ., Plaintiff in Error, |
No. .] vs. > Judgment of Affirmance.
C. D., Defendant in Error. )
This day this cause came on to be heard upon the petition in error
herein and was argued by counsel ; on consideration whereof, and the
court beintr fully advised in the premises, it is adjudged by the court that
said judgment and proceedings of said justice of the peace be, and the
same are hereby affirmed ; and that the said C. D. recover of the said A. B.
his costs in this behalf expended, taxed at dollars; A. B.'s costs
taxed at dollars, for which execution is hereby awarded * to carry into
effect this, and the said judgment of said justice of the peace of said C. D.
against said A. B. [or follow entry to tie *, and say : and the clerk of this court
is hereby ordered to certify this decision to said , said justice of the
peace, so that his said judgment of said C. D. against said A B. may be
enforced as if said proceedings in error had not been taken.]
REVERSAL OF JUDGMENT OF. JUSTICE OF THE PEACE.
[Form 411. 6733.]
A. B., Plaintiff in Error, J
No. ,] vs. > Judgment of Reversal.
C. D., Defendant in -Error. )
This day this cause came on to be heard upon the petition in error
herein, and was argued by counsel; on consideration whereof, and the
court being fully advised in the premises, doth find that there is manifest
error in said record and proceedings of said justice of the peace, prejudi-
cial to the plaintiff in error, wherefore it is adjudged by the court that
said judgment of said C. D. against said A. IV be and the same is hereby
reversed ; and that the said A. B. recover of said C D. his costs in this pro-
ceeding in error incurred and expended, taxed at dollars, and also
for all his said costs before said justice of the peace, taxed at dollars.
C. D's. costs up to this time dollars ; and for which execution is
hereby awarded. And it is ordered that the cause be retained by this
court for trial and final judgment, as in cases of appeal.
Note. Fur appeals from justices of the peace, see post. If the justice of
the peace had no jurisdiction of the plaintiff in error, or of the subject of the
action, the cause can not be retained as upon appeal, but judgment for the
plaintiff in error will be rendered for all his costs up to the time of reversal,
including those made by him before the justice.
666 CODE PRACTICE AND PRECEDENTS.
JUDGMENT OF THE JUSTICE is AFFIRMED AND THE DECISION
CERTIFIED TO SUCH JUSTICE, WHICH is SELDOM DONE.
[Form 412. 6732.]
Court of Common Pleas of - County, Ohio.
To - , Justice of the Peace, within and for -- Township, in said
County, Greeting :
In the case of A. B., plaintiff in error, against C. D., defendant in error,
prosecuted in our said court to reverse the judgment, etc., rendered by
and before you as such justice of the peace, in the case of said C. D. against
A. B., the following decision and judgment have been rendered by our said
Court of Common Pleas at the - term thereof, A. D. 18 , in the words
and figures following, to wit: [Here copy the judgment of affirmance.'}
Witness : -- , clerk of our said Court of Common Pleas of - County
and State of Ohio, this - day of - , A. n. 18 .
[SEAL OF COURT.] - , Clerk.
ERROR IN THE SUPREME COURT.
The judgments and final orders of the Circuit Court may be reviewed
on error by the Supreme Court, as matter of right and of course, no
leave to file a petition in error being requisite. From the Superior
Court of Cincinnati, and from the Common Pleas and Probate Courts,
leave to file a petition in error therein must first be granted. 6710.
In cases of motion for leave to file a petition 'in error, if ten days'
personal notice of the motion has been given to the adverse party, or
his attorney, \vhenall the judges sitting at the hearing concur therein,
a judgment or final order may, in the discretion of the court, be re-
versed, vacated, or modified, for error plainly appearing on the record.
6713.
Except in cases from the general term of the Superior Court of Cin-
cinnati, the Supreme Court will not grant a motion for leave to file a
petition in error, unless the case be one' which the court would take
out of its order on the general docket for hearing and determination,
and not necessarily in such cases; but will leave it to be first deter-
mined by the Circuit Court. The following provision of the statute
governs the subject:
SEC. 440. All cases brought in or taken to the court shall be entered
on the docket in the order in which they are commenced, received, or
filed, and they shall be taken up and disposed of in the same order,
except that the court may take up and dispose of the following classes
of cases in advance of their order on the docket:
1. Cases where the persons seeking relief have been convicted of a
felony ;
JURISDICTION AND PROCFIU'KK IN ERROR.
2. Cases involving the validity of any tax levied, or assessment
made, or the power to make such levy or assessment ;
3. Cases involving the construction or constitutionality of any stat
ute, or any question of practice, where the questions arising are of gen-
eral public interest;
4. And proceedings in quo warranto, mandamws, procedendo, or habea*
corpus-,
5. And where any case is reached in its order, and there are oth--r cases
on the docket involving the same questions, or some of them, the latter
may be taken out of their order and disposed of with the case so reached ;
6. And when a case is disposed of, and again comes into the court,
it -hall be taken up as if it had retained its original place on the docket.
Petitions in error to the Supreme Court should allege the same errors
contained in the petition in error in the court of errors below, if it'ha.s
before been determined uj>on petition in error, with the additional as-
signment that such court below erred in affirming, or reversing, as the
case may be, the judgment and proceedings sought to be reviewed in
the Supreme Court (see Form 400). Unless oral argument is desired,
or ordered, the lawyer may conduct a cause in error in the Supreme
Court in his office :
1. If leave to file a petition in error is requisite, prepare the petition
in error as in Form 400.
2. Prepare a motion for leave to file petition in error.
3. Serve a copy of the motion, and the substance of the errors as-
signed in the petition in error, upon the opposing counsel, at least ten
days before the day named in the notice for the hearing of the motion.
4. Prepare a printed or plainly written brief in support of the
motion, and furnish the opposing counsel with a copy of it.
5. Get his written indorsement of service of such notice, with the
errors relied on and stated in the petition in error.
6. Send by express or mail, addressed to the clerk of the Supreme
Court, the record to be filed with the petition in error, the petition in
error, the motion for leave to file the same, the copy of the notice of
such motion, and the brief, with written acknowledgment of service of
KIIDC, or proof thereof.
7. By letter, inclose to the clerk of the Supreme Court 82.00, the
motion docket fee.
8. If leave is granted to file a petition in error, inclose to the clt-rk.
by letter, 85.00 for docket fee, and a precipe for summons in ernr,
or the written waiver of the issue and service of such summons, and
entry of appearance of the defendant in error, which is preferable
where the parties are not under any disability.
668 CODE PRACTICE AND PRECEDENTS.
9. Within sixty days iif't^r filing the petition in error, have printed
all the material parts of the record, including the petition in error to
the Supreme Court, and file ten copies. The number of copies printed
should, in no case, be less than twenty-Jive, and fifty adds but little to
the cost. File the printer's sworn bill with the briefs, that it may be
charged as part of the 'costs. There is no necessity for printing the
motion, etc., for leave to file the petition in error when that was requi-.
site. Or the money with a written precipe, for such printing, may be
deposited with the clerk of the Supreme Court, who will have printed
and filed at least twenty-five copies, the costs of which will be taxed as
costs. Cases on the general docket are called in fifties, or one hundred
at a call.
10. If not before done, when the case has been so called, at once
have printed and file ten copies of your brief. If this is not done the
case will be dismissed for want of preparation. The expense of such
printing can not be taxed as costs.
11. If, for any good reason, such printing and filing can not be done
within the prescribed time, move to have the time extended, which, if
granted, will be extended a specified time, and the proper entry made
on the journal. The $2.00 for the motion docket fee for leave .to
file a petition in error, where such motion is necessary, and the gen-
eral docket fee of $5.00, are all the fees that are to be paid, regu-
larly ; certified copies, etc., are extra.
12. If it be desired to argue a cause on the general docket orally,
for which argument one hour on a side is usually allowed (rule 3), the
election to argue orally must be made known to the court before the
cause is regularly called in its order, and taken as submitted, and then,
tfit the argument, the judges must be furnished with a printed state-
ment. Printed briefs are advisable even when a cause is argued orally.
In exceptional cases, printing of the record may, on motion to the
Court, be dispensed with.
13. On a motion for leave to file a petition in error, but fifteen
' ninutes on a side are allowed for oral argument.
14. When a cause is decided, the clerk usually makes the entry, but
in some cases of modified judgments, counsel are required to prepare
them, and have them approved by the court.
15. So soon as the final entry is made, a precipe for a mandate
should be furnished to the clerk, otherwise there may be delay in re-
manding the cause.
16. A motion for the rehearing of a cause finally decided will not be
heard by the court, unless requested by the court, or one or more of the
JURISDICTION AND PROCEDURE IV ERROR. 806
judges concurring in the decision. If made by a party without such
request or wish, it will be denied.
17. When the grounds therefor exist as provided in section 440,
file a motion to take the case out of its order on the docket.
MOTION* FOR LEAVE TO FILE PETITION IN ERROR.
[Form 413. 6710.]
Supreme Court of Uhio.
A. B.. Plaintiff in Error, |
No. .1 v*. > Motion for Leave to File Petition in Error.
C. D., Defendant in Error. )
The said plaintiff in error moves the court for leave to file a petition in
error to reverse the judgment and proceedings of the Court of Common
Pleas of County, in the case of said C. D. against the said A. B.,
which petition in error, etc., accompanies this motion, and for the reason *
and upon the grounds stated in said petition in error.
And also that, upon the granting of this motion, said judgment am/
proceedings be reversed, according to the statute in such case made and
provided. , Attorney for Plaintiff in Error.
NOTICE OF MOTION.
[Form 414.J
To C. D., or , his Attorney :
You are hereby notified that a motion, a copy of which is hereto at
tached, for leave to file a petition in error, and to reverse, etc., in said case
will be made in the Supreme Court, by the plaintiff in error, on . the
day of . A. D. 18 , or as soon thereafter as counsel can be heard,
and the grounds of alleged error are substantially as follows: [//</<
enumerate the assignment of errors as in the petition in error. ]
This day of , 18. , Attorney for Plaintiff in Error.
Service of copy of above notice acknowledged, this - day of ,
18. , Attorney for Defendant in Error.
A similar written acknowledgment should IK- indorsed on the brief
to be filed.
If acknowledgment .of service is refused, which it is unprofessional
to do, verify service by affidavit. This may be sometimes requisite
when service can be made on the party only.
If the opposing counsel desires to file a brief, a similar indorsement
of service upon him of a copy should be made by the attorney of the
plaintiff in error. ^ The Supreme Court may then (ten days' notice be-
ing giv,en) decide the case upon the merits, or simply grant leave to
file the petition in error, or refuse to grant such leave for want of
670 CODE PEACTICE AND PRECEDENTS.
merits, or on the grounds that the case should be first heard and de-
cided in the Circuit Court.
The clerk will make the entry of the disposition of such motion.
MOTION IN THE SUPREME COURT TO TAKE CASE OUT OP ITS ORDER
FOR DETERMINATION.
[Form 415. 440.]
Supreme Court of Ohio.
A. B., Plaintiff in Error, ) -., ,. XT r ., ~
.T Motion to take Cause No. Out of its Or-
C.b., Defendant in Error. { der> etc "
The said moves the court to take cause No. , this case, out of its
regular order on the general docket for hearing and determination, and
for the following reasons: '[Here state, any or all the grounds applicable by sec-
tion 440.] , Attorney for in Error.
The motion will be granted or refused by the court, and the clerk
make the proper entry.
From this form a motion to hear a cause with one prior on the gen-
eral docket, clause 5, section 440, can easily be drawn. The judg-
ment of reversal or affirmance is the same as in other courts, also
modified judgment or order, and will be contained in the mandate, the
form of which is taken from " Green's Ohio Supreme Court Practice,"
pp. 86, 87, as that form is followed by the clerk of the Supreme Court.
[Form 416. 6726; Sup., p. 385.]
The State of Ohio, ) Supreme Court of the State of Ohio, of the Term
City of Columbus. J of , A. D. 18 .
A. B. )
No. .] vs. > Error to the Circuit Court of County.
C. D. )
This cause came on to be heard upon the transcript of the record of the
Circuit Court of County, and was argued by counsel. On considera-
tion whereof, it is ordered and adjudged by this court, that [here give the
judgment entry of ike Supreme Court. .]
Ordered, that a special mandate be sent to the Court of Common Pleas
of County, to carry this judgment into execution.
Ordered, that a copy of this entry be certified to the clerk of the Cir-
cuit Court of County for entry.
I, , clerk of the Supreme Court of Ohio, do hereby certify that the
foregoing entry is truly taken, and correctly copied from the journal of
said court.
Witness my hand and the seal of said court, this day of , A. D.
18.
[SEAL OF COURT.] , Clerk.
JURISDICTION AND PROCEDURE IN ERROR. 671
INDORSEMENT ON BACK OF MANDATE.
[Form 417. 6726; /,.. p. 385.]
The State of Ohio, )
City of Columbus. } Supreme Court of Ohio.
To the Honorable Court of Common Pleas, within and for the County of
, Ohio, Greeting :
We do hereby command you, that you proceed without delay to carry
the within and foregoing judgment of our Supreme Court of Ohio, in the
ca^e of A. B. v. C. D. into execution, the petition in error herein and
heretofore allowed to be filed to the contrary notwithstanding.
Witness: , clerk of our Supreme Court of Ohio, at Columbus, this
of . A. D. 18.
[SEAL OF COOBT.] 1 Clerk.
"The costs made in the Supreme Court are taxed on the back of the
mandate, the clerk's, sheriff's, and printer's separately, and are collected
in the Common Pleas Court." Green, 87.
WRIT OF ERROR FROM SUPREME COURT OF THE UNITED STATES TO
STATE COURT.
SEC. 709, Rev. Stats. U. S. A final judgment or decree in any
suit in the highest court of a state, in which a decision in the suit could
be bad, where is drawn in question the validity of a treaty or statute
of, or an authority exercised under, the United States, and the decision
is against their validity; or where is drawn in question the validity of a
statute of, or an authority exercised under any state, on the ground
of their being repugnant to the constitution, treaties, or laws of tbe
United States, and tbe decision is in favor of tlieir validity; or where
any title, right, privilege, or immunity is claimed under the constitu-
tion, or any treaty or statute of, or commission held or authority exer-
cised under, the United States, and the decision is against the title,
right, privilege, or immunity specially *et up or claimed by either party,
under such constitution, treaty, statute, commission, or authority,
may be re-examined and reversed or affirmed in the Supreme Court
upon a writ of error. The writ shall have tbe same effect as if tbe
judgment or decree complained of had been rendered or passed 1u a
court of tbe United States, etc.
Note. " In the highest court of a state in which a decision in tbe suit could
be had" means the Supreme Court when a decision can be had there, and if
mt. then the court of last resort below it. In Hume Life 7*w. Co. \. 7>unn, 19
Wl. 214, iho writ of error was to the District Court of the First Judici-tl I)i-
trict, Hamilton County, Ohio. The insurance company had applied to the
Supremo Court of Ohio for leave to file a petition in error to reverse tbe judg.
672 CODE PRACTICE AND PRECEDENTS.
mcnt of such District Court, which leave was refused, so that the case could not
jjjct in the Supreme Court for decision. Home Life Ins. Co. v. Dunn, 20 O.
S. 1 7-3.
A judgment of reversal in a state court, accompanied by an order remanding
the cause fur a retrial, is not a final judgment for the purpose of a writ of error
to the Supreme Court of the United States. Johnson v. Keith, 117 U. S. 199;
Bostwick v. Brinkerhoff, 106 id. 4.
The decision of such state court must necessarily have depended upon
the determination of such federal question, and in almost all cases the
record must show that such federal question was made in the state
court. Edward* v. Elliot, 21 Wai. 557, and cases there cited. And be-
fore a writ of error can issue to a state court, it must be allowed by the
chief justice, or presiding judge, or chancellor of the court rendering or
passing the judgment or decree complained of, or by a justice of the
Supreme Court of the United States.
To be petitioned for. "A petition should be drawn up and signed by
the party or his attorney, addressed to the judge or justice applied to,
showing that a proper case exists for such writ. The petition must
describe the suit in the state court, show that the judgment or decree
complained of was rendered by the highest court in which a decision
could be had, and that the judgment or decree is final, in contra-
distinction to interlocutory; also that there was drawn in question
some one or more of the matters described in said section 709 (25th
section of the Judiciary Act of 1789); that the decision of such highest
court was adverse to the right, title, or exemption thus claimed by tho
petitioner, and that it so appears of record." Boyce's Manual, 120.
The writ of error is directed to the judges of such state court, hence
it is necessary to issue a citation to and serve the same upon the opposite
party.
Citation. SEC. 999, Rev. Stats. U. S. . . . ;" and when it "
(the writ of error) " is issued by the Supreme Court to a state court, the
citation shall be signed by the chief justice, or judge, or chancellor of
such court, rendering the judgment or passing the decree complained
of, or by a Justus of the Supreme Court of the United States, and tin
adverse party shall have at least thirty days' notice."
Note. This thirty days' notice is requisite before the case can be heard before
the Supreme Court of the United States. Writs of error to that court are mad :
returnable to the first day of the next term, the terms commencing on the second
Monday in October, in each year. 684.
Should the state court refuse to grant a writ of error, the Supreme Court of
the United States, or a justice thereof, may do so, notwithstanding such refusal.
Except in suits brought up on error by the United States, or by direction of
any department of the government, the justice or judge signing a citation shall
JURISDICTION AND PROCEDURE IN ERROR C78
take good and sufficient security that the plaintiff in error shall prosecute his
writ to effect, and if he fails to make his plea good, shall answer all damages and
costs, where the writ is a suptr&edeax and stays execution, or all costs only where
it ia not a superseded*. 1000. To operate as a supersedeas the bond must
he ^iven within sixty days.Sundays excepted, after the entry of the judgment or
decree.
Removal of causes by v*rit of error. Sic. 997, IT. S. Stats. There shall be
annexed to and returned with tiny writ of error for the removal of a cause, at
the day and place therein mentioned, an authenticated transcript of the record,
an assignment of errors, nnd a prayer for reversal, with a citation to the adverse
party
The adverse party must have at least thirty days' notice by service of the
citation. This does not prevent a writ of error from issuing within thirty days
of the term at which it is made returnable. It should be tested on the first day
<>f the term next preceding the return term ; but the adverse party is not bound
to enter his appearance until the expiration of thirty days from the service of
tin citation ; consequently the citation may be made returnable in term if neces-
sary, and on such a day of the term as will enable the plaintiff in error to have
it served on the adverse party thirty days before its return day. If this can be
done thirty days before the first day of the next term, it should be made re-
turnable on that day. It should bear date the day it is signed." Boyce's
Manual, 121-2.
'The plaintiff in error should deposit in the office of the court where the
record of the judgment or decree remains " (the state court) "the original writ
of error, the citation with its service indorsed thereon, and the bond, together
with a copy of each. The clerk of the court to which the writ of error is
directed makes his return" (to the Supreme Court of the United States) " by
transmitting a true copy of the record without references aliunde, and of all the
papers, exhibits, depositions, and other proceedings, authenticated by the seal
of the court and the signature of the clerk. The original writ of error, the cita-
tion with its service indorsed thereon, and a copy of the bond are appended to
the return. A copy of the writ of error, of the citation, and the original bond
remain in the office of the clerk making the return." Boycu's Manual, 122
"The writ of error is returned to the Supreme Court of the United State*
and entered at the return term. If a term intervene the objection is fatal, and
the error is not capable of being removed by any amendment." Ib id.
The writ of error is served by lodging a copy thereof, foi the adverse party,
in the office of the clerk of the court where the judgment was rendered. Ib.
The citation must be served upon the adverse party. " If the petitioner for
the writ of error desires it to operate as a tupersedeat, and stay the execution
of the judgment or decree, he must lodge a copy of the writ for the adverse
party, in the clerk's office where the record remains, within tm days, Sunday*
exceptod, after the entiy of the judgment or decree. Ho must consequently
ttpply for and obtain the allowance of the writ within ten days; and a the
judge, when the writ is applied for, and the citation signed with in turfy days, in
required by law to take sufficient security that the plaintiff shall prosecute his
writ to,effect and answer all damages and costs, the petitioner mu.-t be pre-
43
G74 CODE PRACTICE AND PRECEDENTS.
.pared, on the presentation of his petition, to give security accordingly. .
The judge who signs the citation passes on the sufficiency of the security*
Ib. 121
Security, where the bond is not to operate as a supersedeas, is only to cover
costs which, upon affirmance, may be adjudged against the plaintiff in error.
The plaintiifin error must assign errors upon the writ of error, that is, attach
them to it, and they should regularly be transmitted with it to the Supreme
Court of the United States.
The Supreme Court (of the United States) may reverse, modify, or affirm tho
judgment or decree of such state court, and may, at their discretion, award ex-
ecution or remand the same to the court from which it was removed by the
writ. 709. See Desty's Federal Procedure (6th ed.), 331-336; 561-578;
Bump's Federal Procedure, 361-385; 694-713.
By section 1008 the time within which a writ of error or appeal can be taken
from a federal court to the Supreme Court of the United States is two years
after the entry of the judgment or decree, unless the party is under a legal dis-
ability, and then within two years after its removal. This may apply by anal-
ogy to a writ of error to a state court.
PETITION FOR WRIT OP ERROR.
[Form 418.]
To the Honorable , Judge of the Supreme Court of the United States
of America [or, To the Honorable , Chief Justice of the Supreme
Court of Ohio, as the case may be] :
A. B., your petitioner, respectfully represents that, in the Suprenr.e
Court of the Sate of Ohio, in a certain cause there lately pending, wherein
C. D. was in error, and said A. B. was in error, the following
final judgment was rendered by said court, to wit: [here state the substance
of the judgment or final order~\ ; that said Supreme Court of Ohio is the
highest court in which a decision of said cause could be had, and said
judgment [or order] is final ; and that there was drawn in question m
said cause the following matters, to wit: [here state such question or questions
under section 709] ; the decision of which was, by said highest court, act
verse to the right, title, and exemption claimed in said court by your pe-
titioner. All of which will more fully and at large appear, reference
being had to the record of said cause, accompanying and made part of
this petition.
Wherefore your petitioner prays for a writ of error directed to sjid
court from the Supreme Court of the United States, and for a citation to
said , according to the statute in such case made and provided, etc..
By , his Attorney
JURISDICTION AND PROCEDURE IN ERROR, 675
WRIT OF ERROR.
[Form 419.]
United States of America, ss.
The President of the United States.
To the Honorable the Judges of the Supreme Court of Ohio, Greeting:
Because, in the record and proceedings, as also in the rendition of the
judgment of a pica which is in the said Supreme Court of Ohio, before
you or some of you, being the highest court of law or equity of the said
suite in which a decision could be hud in the said suit between and
, wherein was drawn in question the validity of a treaty or statute of,
or an authority exercised under, the United States, and the decision was
against their validity ; or wherein was drawn in question the validity of a
statute of, or an authority exercised under, said state, on the ground of
their being repugnant to the constitution treaties, or laws of the United
States, and the decision was in favor of such their validity; or wherein
was drawn in question the construction of a clause of the constitution, or
of a treaty or statute of, or commission held under, the United States,
and the decision was against the title, ri^ht, privilege, or exemption,
specially set up or claimed under such clause of the said constitution,
reuty, statute, or commission, a manifest error hath happened, to the
|!re;it damage of the said , as by [his] complaint appears. We being
willing that error, if any hath been, should be 'duly corrected, and full
Mid speedy justice done to the parties aforesaid in this behalf, do com-
mand you, if judgment therein be given, that then under your seal, dis-
tinctly and openly, you send the record and proceedings aforesaid, with
*.ll things concerning the same, to the Supreme Court of the United
States, together with this writ, so that you have the same at Washington!
on the second Monday of October next [or, A. D. 18 ], in the said Su-
preme Court to be ttien and there held, that the record and proceedings
aforesaid being inspected, the said Supreme Court may cause further to
'e done therein to correct that error, what of right, and according to the
aw and customs of the United States, should be done.
Witness, the Honorable Morrison R. Waite, chief justice of the said
Supreme Court, the second Monday of October, in the year of our Lord
one thousand eight hundred and [the fast day of the term during whiek
the writ itfuea].
, Clerk of the Supreme Court of the United States.
[AL OF COURT.]
Allowed this day of , A. . 18 , by , a justice of the Su-
preme Court of the United States [or, , chief justice of the Supreme
Court of Ohio].
The assignment of errors are supposed to be indorsed on the writ ;
but they are usually assigned in a separate writing, which is filed in
the cause.
676 CODE PRACTICE AND PRECEDENTS.
CITATION.
[Form 420.]
The United States of America to [the defendant in error], Greeting :
You are hereby cited and admonished to be and appear at a Supreme
Court of the United States, to be holden at Washington on the second
Monday of October next, pursuant to a writ of error filed in the clerk's
office of the , wherein is plaintiff in error, and you are the de.
fendant in error, to show cause, if any there be, why rendered against
the said plaintiff in error as, in said writ of error mentioned, should not
be corrected, and why speedy justice should not be done to the parties in
that behalf.
Witness, the Honorable , of the , this day of , in the
year of our Lord one thousand eight hundred and .
[with the designation of the judge].
PROOF OF SERVICE.
[Proper caption for an affidavit^]
On this day of , A. D. 18 , personally appeared before me,
the subscriber, [with designation of official character], and makes oath
that he delivered a true copy of the within citation to .
Sworn to and subscribed before me by said , this day of ,
A. D. 18.
Note. " The citation is simply notice to the opposite party that the record is
transferred into another court, where he may appear or decline to appear as his
judgment or inclination may determine. As the party who obtained the judg-
ment is usually out of court and may, therefore, not know that his cause is re-
moved, common justice requires that notice of the fact shall be given him.''
Cohens v. Virginia, 6 Wheat. 264.
BOND ON WRIT OF ERROR TO STATE COURT.
[Form 421.]
Know all men by these presents, that we, , , are held and
firmly bound unto in the full and just sum of dollars, to be
paid to the said , his certain attorney, administrators, or assigns; to
which payment, well and truly to be made, we bind ourselves, our heirs,
executors, and administrators, jointly and severally, by these presents.
Sealed with our seals, and dated this day of , in the year of
our Lord one thousand eight hundred and .
Whereas, lately at , in a suit pending in said court, between
and , a was rendered against the said , and the said
having obtained and filed a copy thereof in the clerk's office of
the said court to reverse the said in the aforesaid suit, and a citation
directed to the said ', citing and admonishing him to be and appear at
JURISDICTION AND PROCEDURE IN ERROR. 677
a Supreme Court of the United States, to be holden at Washington the sec-
ond Monday of October next.
Now, the condition of the above obligation is such, that if the said
fiiall prosecute his said writ and proceedings in error to effect,* and an-
swer all damages and costs* if he fail to make his plea good [if bond u
tiot to be a superseded.*, say between the ** : "And answer all such costs as,
upon an affirmance of said judgment, may be adjudged to the said ,
respondent in error] then the above obligation to be void ; else to remain
in full force and virtue.
Sealed and delivered in presence of , [L. s.J
. l> ]
Approved this day of by , Judge, etc.
The clerk of the court to which the writ of error is directed will
make the the proper journal entries as to what is done in the cause.
ERROR IX CASE OF ORDER DISCHARGING OR REFUSING TO DISCHAROK
ATTACHMENT.
Petition in error may be filed to reverse order discharging attachment.
SEC. 5563a. (*S'up., p. 354.) A party to a suit affected by an order
discharging or refusing to discharge an order of attachment, may file
a petition in error to reverse, vacate, or modify the same, as in other
cases ; and the original action shall proceed to trial and judgment in
every respect as though no petition in error had been prosecuted.
Attachment; filing of petition in error to reverse order discharging
Undertaking. SEC. 55636 (84 v. 13, Feb. 3, 1887). When an or-
der discharging an order of attachment is made, and a party affected
thereby excepts thereto, the court or judge shall fix the number of
days, not to exceed thirty, in which such party may file his petition in
error, and during which it shall be filed, and the attached property
held by the sheriff or other officer ; the party who files the petition in
error shall give an undertaking to the adverse party, with surety
to be approved by the clerk of the Circuit Court, in double the
amount of the appraised value of the property attached, conditioned
to pay such adverse party all damages sustained by him in consequence
of the filing of the same, in the event of the discharge of the order
of attachment by the court in which the petition in error is filed, be-
cause the same was wrongfully obtained ; and when such petit in in
error is filed, and an undertaking given, the sheriff, or other officer,
shall continue to hold the property attached, subject to the further or-
der of the court
Administrator -or executor may file petition. SEC. 5563c. If a party
who ejccepts to an order discharging or refusing to discharge an QfderoJ
attachment die within the time limited for filing his petition in error, the
678 CODE PRACTICE AND PRECEDENTS.
administrator or executor of such deceased party may, at any time within
thirty days after his appointment and qualification, file his petition in
error, and thereby become a party to the action, and shall not be re-
quired to give the undertaking required by the preceding section ; but
no such petition in error shall be filed by an executor or administrator
after one year from the time such order is made.
Note. If an executor, administrator, or guardian, who has given bond in
this state, with surety, according to law, he is not required to give bond in error
cases (section 6721), and this section is probably to be limited to such "qualified "
administrator, etc.
If the motion to discharge the attachment is supported by affidavits, and the
ruling of the court is sought to be reviewed upon the evidence, it must all be
embodied in a bill of exceptions.
If an order of attachment is discharged by the court, and proceedings in er-
ror are taken to reverse such order, and the decision of the court below is
affirmed, sureties on the original undertaking for attachment will be liable for
damages only to the time of the discharge of the attachment by the court be-
low, and the sureties on the error undertaking for subsequent damages. If the
order of discharge is reversed, and the original attachment sustained, the sure-
ties on the error undertaking will be absolved from all liability, and the liability
of the original sureties in obtaining the order of attachment continue, as if no
proceedings to discharge the same had been instituted.
These sections (5563a, b, c) would seem to be applicable to justices of the peace.
See section 6524, Justice's Act. If not, a petition in grror to reverse the order A
a justice of the peace discharging an order of attachment, may be prosecuted
without an undertaking, and within two years after such discharge.
Petitions in error in such cases can be readily drawn from Form 400, as can
petitions in error in other classes of cases. In forcible entry and detainer from
justices of the peace, there must be an allowance of the Court of Common Pleas
to file a petition in error, and an entry made on the journal of such allowance,
etc.
When the entry discharging the -attachment is made, which should be ex-
cepted to, and the time not exceeding thirty d&ys fixed to file a petition in error,
the plaintiff in error should execute the undertaking m error before a summons
in error will be issued. No undertaking is reauired where the order was a re-
fusal to discharge the order of attachment.
UNDERTAKING IN CIRCUIT COURT ON PETITION IN ERROR TO RE-
VERSE AN ORDER DISCHARGING AN ATTACHMENT.
[Form 422. 55r>36.]
Circuit Court of County, Ohio.
Whereas, a petition in error has been filed in said Circuit Court by ,
plaintiff in error, against , defendant in error, to reverse the judg-
ment, order, and proceedings of the Court of Common Pleas of said
county, Ohio, discharging the order of attachment, etc., issued by said
Common Pleas Court, in the case of , plaintiff, against , defend
JURISDICTION AND 1'ROCKM'RK 1x KKROR. ^79
mnl; and the said property attached under said order of attachment has
been appraised at dollars:
Now. we , as principal and and , an sureties, jointly and
severally undertake with, and bind ourselves to said , in the sum of
dollars [double the nj'praiseil value of the property attached}, con-
ditionea that we will pay snid all damages sustained by him in con-
sequence of the filing of said petition in error, in the event of the dis-
charge of the order of attachment by the said Circuit Court, because the
same was wrongfully obtained
In witness whereof, we have hereunto severally subscribed our names,
this day of , A. D. 18 . , Principal.
' \ Sureties.
)
This undertaking approved by me, this day of , A. D. 18 .
, Clerk of said Circuit Court
NOTICE TO SHERIFF OR OFFICER HOLDING ATTACHED PROPERTY.
[Form 423. 65636.]
The State of Ohio. County, ss. Circuit Court.
To the Sheriff of said County, Greeting :
You are hereby notified that has filed a petition in error against
, and given an undertaking according to the statute in such case
made and provided, to reverse the order and proceedings of the Common
Pleas Court of said county, discharging the order of attachment in
the case. No. , of , plaintiff, against , defendant, pending in
said Court of Common Pleas.
Witness my hand and the seal of said Circuit Court, this day of
, A. D. 18.
[SEAL.] , Clerk.
UNDERTAKING IN PROCEEDINGS IN ERROR TO REVERSE THE JUDG-
MENT OF A JUSTICE OF THE PEACE IN FORCIBLE ENTRY AND
DETAINER.
[Form 424. gg 6724, 6610.]
Common Pleas Court of County, Ohio.
Whereas, proceedings by petition in error have been begun in said Court
of Common Pleas by , plaintiff in error, against .defendant in
error, to reverse the judgment and proceedings in forcible entry and de-
tainer rendered by , a justice of the peace of said county, against
the said plain tj if in error, and in favor of said defendant in error, in tin-
case of against , before said justice of the peace, the [said Court
of Common Pleas] after due notice having been given, etc , having given
leave to file said" petition in error, and fixed the amount of the under-
takfHg in error at dollars.
Now, we, , as principal, and , as surety, undertake and bind
680 CODE PRACTICE AND PRECEDENTS.
ourselves, jointly and severally, unto said , defendant in error,
in the sum of dollars, that, during the possession of said property by
the plaintiff in error, he will not commit, nor suffer to be committed, any
waste thereon, and that if the judgment be affirmed, he will pay the
value of the use and occupation of said property from the date of this
undertaking until the delivery of said property, pursuant to the judg-
ment, and costs.
In witness whereof, we have hereunto severally subscribed our names,
this day of , A. D. 18 . , Principal.
, Surety.
Approved by me, this day of , A. D. 18 . , Clerk.
The notice or certificate to the justice of the taking of proceedings
in error (section 6612) can be drawn from Form 423. It is required
in all cases to stay execution of the judgment and restitution. The
notice to the adverse party of the application for leave to file such
petition in error (section 6610) can be drawn without difficulty.
UNDERTAKING WHEN JUDGMENT OR ORDER DIRECTS THE PAYMENT
OF MONEY.
[Form 425. 6718; Sup., p. 384.]
Circuit Court of County, Ohio.
Whereas, proceedings by petition in error have been begun in said Cir-
cuit Court by , plaintiff in error, against , defendant in error, to
reverse the judgment and proceedings of the Common Pleas Court of said
county, in the civil action No.. , wherein was plaintiff and
was defendant, and in which said recovered a judgment against
said , at the term of said court, A. D. 18 , for dollars, prin-
cipal debt, and dollars, costs.
Now, we, , as principal, and , as surety, jointly and severally
undertake and bind ourselves to , the said defendant in error, in the
sum of dollars [double the amount of the judgment], conditioned that
the said , plaintiff in error, will pay the condemnation money, and
costs, if the said judgment, so as Jaforesaid sought to be reversed, be af-
firmed in whole, or in part.
In witness whereof, we have hereunto severally subscribed our names,
this day of , A. i>. 18 . .Principal.
, Surety.
This undertaking approved by me, this day of , 18 .
, Clerk.
The undertaking is given in the court where the judgment is rete
dered, and from which error is taken. 6719.
JURISDICTION AND PROCEDURE IN ERROR. 681
WHEN JUDGMENT DIRECTS THE EXECUTION OP A CONVEYANCE. ETC.
[Form 426. 6718, cl. 2; Sup., p. 384.]
i 'ircuit Court of County, Ohio.
Whereas, proceedings by petition in error have been begun in said Circuit
Court by , plaintiff in error, against , defendant in error, to reverse
the judgment and final order and proceedings of the Common Pleas Court
of said county of , in the civil action, No. , wherein wa*
plaintiff, and was defendant, and in which said - - recovered a
judgment and final order against paid , at the term of said court,
A. D. 18, for the execution of the conveyance mentioned in said judgment
and order, and the amount of the undertaking to stay the execution of
said judgment and order has been duly fixed by [/A court or judge fixing
such amount] at the sum of dollars.
Now, we, , as principal, and , as surety, jointly and severally,
undertake and bind ourselves to said , said defendant in error, in the
said sum of dollars, that the said plaintiff in error will abide the
judgment, if the same be affirmed, and pay the costs.
In testimony whereof, we have hereunto severally subscribed our names,
this day of , A. D. 18 , Principal.
. Surety
Approved by me, this day of , A. D. 18 .
, Clerk. 6719.
WHEN JUDGMENT DIRECTS THE SALE OR DEJJVERY OP POSSESSION
OF REAL PROPERTY.
[Form 427. 6718, cl. 3; Sup., p. 384.]
Circuit Court of County, Ohio.
Whereas, proceedings by petition in error have been begun in said Cir-
cuit Court by , plaintiff in error, against , defendant in error, to
reverse the judgment and final order and proceedings of the Common
Pleas Court of said county, in the civil action, Xo. .wherein
was plaintiff, and was defendant, and in which said recov-
ered a judgment and final order against said 4 , at the-- - term. >. n.
18 , of said court, for the sale [or, delivery of possession] of thermal prop-
erty therein mentioned and described, and the amount of the undertak-
ing to stay the execution of said judgment and order has ben duly
fixed by [the court or judge fixing such amount"] at the sum of dollars.
Now, we, , as principal, and , as surety, jointly and severally, un-
dertake and bind ourselves to said , said defendant in error, in the sum
of dollars, conditioned that, during the possession of such property
by the said , said plaintiff in error, he will not commit, nor suflVr to
be committed, any waste thereon, and that, if the judgment be affirmed,
he will pay the value of the use and occupation of the said property from
682 CODE PRACTICE AND PRECEDENTS.
the date of this undertaking until the delivery of the possession thereof,
pursuant to such judgment,* and all costs.
[And if the judgment is for 'the safe of mortgaged premises, and payment of a
deficiency arising from the sale, add, after the * : and also any deficiency aris-
ing from the sale of said mortgaged premises.]
In witness, etc. [as in Form 426, with clerk's indorsed approval.]
The judge or court fixing the amount usually directs the undertak-
ing to be to the approval of the clerk of the court in \vhich the judg-
ment was rendered, though the judge may approve it, indorsing his
approval thereon. 6719.
Under clause 4 of section 6718, the documents directed to be deliv-
ered or assigned are usually placed in the custody of the clerk to abide
the proceedings in error; if not, the condition of the undertaking, the
amount being fixed as in other cases under clauses 2 and 3, will be,
"to abide the judgment, and pay costs, if the judgment be affirmed."
Section 6725 does not refer to judgments of Common Pleas Courts,
Circuit Courts, Superior Courts, or justice's courts, but applies to
judgments or orders of Probate Courts, or boards of county commis'
eioners, or other board or tribunal exercising judicial functions under
section 6708 ; and to the levy or collection of a tax, or assessment
litigated in any court.
JOURNAL ENTRY IN SUCH CASES.
[Form 428. 26725.]
i T> "i
I Error to Probate Court of County. [If other tri-
"CD ) *',*'** 1
On motion of A. B., plaintiff in error, it is ordered that f. supersedeas
staying proceedings in the Probate Court of County [or other tribunal],
be allowed in this case upon the plaintiff in error giving an undertaking,
with good and sufficient surety or sureties, to be approved by the clerk
[or, court], according to law, in the sum of $ .
UNDERTAKING FOR SUCH SUPERSEDEAS.
[Form 429. 6725.]
\_State the name of the court.~\
Whereas, proceedings by petition in error have been begun in said
court, by , plaintiff in error, against , defendant in error, to re-
verse the judgment, final order, and proceedings of the [court or tribu-
nal, or bo ird from which error is had], of county, wherein was
plaintiff [claimant, or, petitioner, etc.~\, and , the plaintiff in error, was
, and in which said recovered against the plaintiff in orror, ,
JURISDICTION AND PRODEDURF IN ERROR.
to the tenor and >ffect that [here fate Us substance] ; and the amount of
the undertaking for a supersedeas, staying, etc., said proceedings, etc..
has been duiy fixed by the court [or judge doing w~\, at the sum of
dollars.
Now. we, , as principal, and , as surety, jointly and severally
undertake and bind ourselves to said , said defendant in error, in the
said sum of dollars, that said , the plaintiff in error, shall prose-
cute his said petition and proceedings in error to effect, and answer all
damages and costs if ho fail to make his said plea good, and the said pro-
ceedings be sustained and affirmed.
In witness, etc [<M -.n Form 426.]
JOURNAL ENTRY APPROVING UNDERTAKING.
[Form 430.]
\ B I
^ ( Error to Probate Court of County [or other tribir
c*b ) na/orioar <]-
Now comes the said A. B., plaintiff in error, and presents his under*
taking for the stay of proceedings in this case in the Probate Court of
County [or other tribunal or board], with E. F. his surety, which said
undertaking and surety are hereby approved by the court.
Ordered, that the clerk of this court, without delay, certify a copy of
tliis entry to the said Probate Court [or other tribunal, etc.]
RESTITUTION BOND AFTER UNDERTAKING TO STAY EXECUTION HAS
BEEN GIVEN.
[Form 431. g 6722.]
Whereas, in the Court of Common Pleas of -County, at the
term thereof, A. D. 18 , A. B., as plaintiff, recovered a judgment, in cause
No. , on a contract for the payment of money only for. in an action
for injuries to the person, other than for libel, etc.], against C. D., as de-
fendant, for the sum of dollars, principal debt, and dollars
costs ;
And whereas, said C. D., as plaintiff in error, filed a petition in error
against said A. B., as defendant in error, in the Circuit Court, within and
for the County of , where the same is now pending, and executed an
undertaking, according to law, to stay proceedings and execution upon
said judgment, with approved security, in the sum of dollars :
Now, we, , as principal, and and , ai sureties, jointly and
severally, undertake and bind ourselves to said A. B., said plaintiff in
error, that if said judgment and proceedings of said Court of Common
Pleas be reversed or modified, the said C. D., said defendant in error, wul
make full restitution to the plaintiff in error of the money received by
him under the said judgment.
684 CODE PRACTICE AND PRECEDENTS.
In witness whereof, we have hereunto severally subscribed our names,
this day of , A. D. 18 . , Principal,
~ [ Sureties.
[Form 432. 6722.]
C D
M- _ 1 i Leave to Enforce Judgment Herein, Nothwithstand-
A *B 1 * n P rocee dings in Error in Circuit Court.
On presenting to the Court of Common Pleas [or, to , a judge of
said Court of Common Pleas, in vacation], an undertaking executed, in
due form of law, by said C. D. to said A. B , with and his sure-
ties, in the sum of dollars, conditioned according to law, which un-
dertaking is hereby approved, it is ordered that said C. D. may proceed to
enforce his judgment herein against said A. B., notwithstanding the ex-
ecution of the undertaking, in the proceedings in error in the Circuit
Court, by said A. B., as principal, and as surety, to said C. D., to
stay proceedings on said judgment herein.
Note. Such restitution undertaking ought not to be granted, and the judg
ment plaintiff allowed to enforce his judgment notwithstanding the execution
of the undertaking in error, unless it is quite clear that the proceedings in error
are not meritorious. See note to this section, ante.
When a cause is reversed and remanded for further proceedings according to
law, the lower court takes up the case at the point where the first error was
committed, and proceeds to dispose of it anew, and without reference to its pre-
vious action, all of which is set aside. The parties have the same rights that
they had before such error or errors intervened.
APPEALS TO CIRCUIT FROM COMMON PLKAS COURT, BTC. 686
CHAPTER XXXIX.
APPEALS TO CIRCUIT FROM COMMON PLEAS COURT, ETC.
Conduct of trials on appeal in Circuit Court. SEC. 5225 (83 v. 61).
The Circuit Court shall have jurisdiction of certain cases, as herein*
after provided, by appeal ; and the trial therein shall be conducted in
the same manner as in the Common Pleas Court, and upon the tame
pleadings, unless amendments are permitted or ordered by the Circuit
Court.
(a) The court may permit new parties to be made in the (District)
Circuit Court. Babcock v. Camp, 12 O. S. 11, 33 ; Morgan v. Spangler,
20 O. S. 38.
To permit an amendment on appeal is no ground of error, unless it
clearly appear from the record that there was an abuse of discretion.
Horton v. Homer, 14 O. 437; Grant v. Ludlow, 8 O. S. 1, 29, 32;
Brock v. Bateman, 25 O. S. 609 ; Kilgore v. Emmitt, 33 O. S. 410.
When an appeal is taken from a final judgment in an action, to one
count of which a demurrer was sustained, and the others were tried on
issues of fact, the appeal vacates the ruling ou the demurrer, as well
as the final judgment, and the appellate court should try again the
question of law made by the demurrer, as also the issue of fact.
Warner v. Self, 30 O. S. 378; 5219, note ; Tea/ v. Hewitt, 1 O.
S. 511.
Where a suit which is appealable is disposed of in the Court of Com-
mon Pleas on a demurrer to the petition, and an appeal is taken, the
appeal can not be dismissed on the ground that the petition does not
show a cause of action. The appellant has the right to have the judg-
ment of the appellate court on the demurrer to his petition, and if the
judgment is against him to ask leave to amend. Rusk v. Rush,, 29 O.
S. 440.
An order vacating the dismissal of an appeal is presumed to have
been made on sufficient grounds ; and the effect of vacating the order
is to bring the case again before the appellate court for trial. Bntn-
dage v. Biggs, 25 O. S. 652 ; Dodswvrth v. Hopple, 33 O. 8. 16.
When appeal may be taken from Common Pleas to Circuit Court. SEC.
5226. (Sup., p. 340.) In addition to the cases and matters specially
686 i CODE PRACTICE AND PRECEDENTS.
provided for, an appeal may be taken to the Circuit Court by a party
or other person directly affected, from a judgment or final order in a
civil action rendered by the Common Pleas Court, and of which it had
original jurisdiction, if the right to demand a jury therein did not
exist, and from an interlocutory order made by the Common Pleas
Court, or a judge thereof, dissolving an injunction, in a case of which it
had original jurisdiction; but such interlocutory order dissolving such
injunction shall not be suspended by the appeal, except by the order
of the Circuit Court, or two judges thereof in vacation, on reasonable
notice to the adverse party; provided, that the court or judge may, at
the time of making such interlocutory order, upon good cause shown,
suspend the operation thereof for any period not exceeding ten days,
within which period the party appealing may perfect the appeal.
Note. Special statutory proceedings, jurisdiction of uhich is conferred upon
the Common Pleas Court, are not appealable unless the statute gives such right,
otherwise they are reviewable only by petition in error. Decrees for divorce
are neither appealable nor reversible on error. 5706.
(a) The perfecting of the appeal supersedes or suspends the enforce-
ment of the judgment against the defendant until the appeal is deter-
mined, and while the appeal will not have the effect to open for retrial
the legal issues that may have been determined in the court below, it
will be the duty of the appellate court to render such decree, in view
of the legal rights of the parties as settled in the court below, and their
equitable rights as found on appeal, as the justice of the case may re-
quire. Buckner v. Mear, 26 O. S. 514.
What judgments, etc., have been held not appealable. No appeal will lie
from an order refusing to confirm a sale, the remedy being error.
Reeves v. Skenett, 13 O. S. 574.
Nor from an order that a case be stricken from the docket for want
)f service, or non-payment of costs, the remedy being error. Evans v.
lies, 7 O. S. 233.
Nor in a case in which the Common Pleas Court has not actual
original jurisdiction. Clark v. Hanna, 8 O. S. 199 ; Norton v. Me-
Leary, 8 O. S. 205.
Nor in a case where the defendant pays the sum demanded into
court, and causes a third party, who claims the money, to intervene.
Maginnis v. Schwab, 24 O. 8. 336.
Nor in a case in which the facts constituting a cause of action en-
title the party to no other relief than a personal judgment, although
other relief was prayed for and granted by the Common Pleas Court
on the final trial. Dunn v. Kanmacher, 26 O. S. 497.
Al'l'EALb TO CIRCUIT FROM COMMON PLEAS COURT, ETC. 687
Nor from an order of the C mimon Pleas Court in which it U sought
t'> i-njoin proceedtnga for the annexation of territory to a municipal
<-or|>oraiini. JIulbert v. Mason, 29 O. S. 562.
Nor from the decision of the Common Pleas Court in a proceed in::
to contest the election of a county officer. State v. Comr's Belmont Co.,
31 O. S. 451.
Nor from an order appointing a receiver, and directing him to bring
the funds into court, subject to its order, no application of the funds,
except as to costs, being provided for, the remedy being error. Eaton,
etc., R. Co. v. Varnum, 10 O. S. 622.
Nor where, though equitable relief be demanded, the action is pri-
imirily for money, and a personal judgment is sought. Bnindridge v.
Goodlove, 30 O. S. 374.
Xor from a judgment under section 5358, to vacate a judgment ren-
dered by the Common Pleas Court at a former term and to reinstate
the case on the docket for trial ; such a proceeding is not, of itself, a
civil action, but a special proceeding in an action after judgment, and
subject to review only on error. Taylor v. Fitch, 12 O. S. 169; op-
j.mr.'d in Coate* v. ChiUicothe Br. Bank, 23 O. S. 415, 431.
Wliat appealable and what not. In an action for the settlement of a
partnership, to which all the members of the firm were parties, and the
I 'leadings made no issue as to the partnership property, or the necessity
of its sale, and the only issues made related to the state and subject-
matter of the accounts between the parties, which issues were referred
to a master for finding and report : Held, that a decree made on the hear-
ing of exceptions to the master's report, some of which were sustained
and others overruled, confirming the report as thus modified, and find-
ing the amount due from the firm to the parties respectively, and, for
the payment thereof, ordering the property to be sold, is a final decree
fnun which an appeal may be taken ; and the overriding of a motion at
a subsequent term to open up such decree, is not the subject of appeal.
Evans v. Dunn, 26 O. 6. 439.
What judgments, etc., have been held aypeolaUe. An appeal will lie to
the Circuit Court from a decree for alimony. Taylor v. Taylor,
S. 71. See section 5706.
From a judgment in an action for contribution among co-sureties.
McVrory v. Parks, 18 O. S. 1.
From a judgment in an action to impeach a decree, or judgment for
fraud. Coates v. Chillicothe Br. Bank, 23 O. S. 415.
From a judgment in an action asking for the construction of a will
and a 'sale of lands. Swing v. Townsend, 24 O. 8. 1. 6202.
From a judgment in an action to enforce an assessment where no
688 CODE PRACTICE AND PRECEDENTS.
case for a personal judgment is made in the petition, although the peti-
tion contain a prayer for personal judgment. Corry v. Gaynor, 21 O.
S. 277.
From an order of distribution in an equity case, allowing to a wife a
sum of money in lieu of a homestead. Spence v. Basey, 34 O. S. 42 ;
Cooper v. Cooper, 24 O. S. 488.
From a judgment based upon the finding of a master commissioner
upon issues joined of an equitable nature. Rankin v. Hannan, 37 O.
S. 113.
From a judgment in a case in which the facts stated and relief de
manded are within the sole jurisdiction of a court of equity, although
the plaintiff also demands in his petition a money judgment, by way
of damages to which he may be incidentally entitled, as a a result of his
obtaining the equitable relief. Rowland v. Entrelcin, 27 O. S. 47.
From a judgment in an action brought for the reformation of a
written contract, and in which the plaintiff also asks for a money judg-
ment, to which he would be entitled only in the event of his obtaining
the equitable relief sought ; and the only issue of fact made in the
pleadings is on the right to such equitable relief. Ellsworth v. Hoi-
comb, 28 O. S. 66.
From a decree granting a perpetual injunction restraining the de-
fendant from obstructing and from continuing to obstruct an alleged
road, in which the plaintiff claims a special use, although he claims
damages occasioned by such obstruction. Converse v. Hawkins, 31 O.
S. 209. (The rule is that, when the court obtains jurisdiction in equity,
it will administer full and complete relief, though much of such relief,
the cause therefor standing alone, could only be granted in a court of
law.)
From a judgment 'in a case in which the heirs sued an administrator,
charging that he had made a fraudulent settlement of his accounts,
fraudulently sold the real estate for the payment of debts, at an under-
value, when such sale was unnecessary, and that on a fair accounting,
$6,000 would be due to them, and for which they prayed judgment.
Reed v. Reed, 25 O. S. 422.
From an order in partition under the statute in which equitable relief
is demanded, or is to be administered. Stableton v. Ellison, 21 O. S.
527 ; Rush v. Rush, 29 O. S. 440 ; Linton v. Laycock, 33 O. S. 128.
It was held in Barger v. Cochran, 15 O. S. 460, that a proceeding in
partition under the statute (then in force) was not a "civil action," but a
" special statutory proceeding," and not appealable. But under section
4971, every proceeding in partition is now a " civil action," and from
which, since " the right to demand a jury therein does not exist," an
APPEALS TO CIHCt IT FROM Co.M.VON PLKA3 COURT, ETC. '
appeal may always he taken. Formerly the remedy was ouly by peti-
tion in error. Where, in a partition suit in which equitable relief was
demanded, it appeared from the journal entries that the demurrer t-
the petition was sustained and the " petition dismissed," the presumption
is that the dismissal was by the court, and not the voluntary act of the
plaintiff, and an appeal may be taken. Rush v. Rush, 29 O. S. 440.
In an action to enjoin waste committed, and also to recover posses-
sion, on the ground that the life estate of the tenant has been forfeited by
i he waste, in which action a final decree is taken to enjoin waste, and
for such account, but no judgment is taken for the recovery of the
land, the parties have the right of appeal. Jenks v. Langdon, 21 O.
.S. 362. 4177,4194.
In an action against a mortgagor and his grantee for the foreclosure
of a mortgage, the grantee may appeal from the decree against him,
notwithstanding a personal judgment is asked against the mortgagor
for the mortgage debt. Section 5021 only applies where the party
against whom the lieu is sought to be enforced is also personally liable
for the debt secured by the lien. Fleming v. Kerkendall, 31 O. 8.
568. But where the plaintiff, in an action to foreclose a mortgage, de-
mands a judgment against the defendant for the amount due upon the
mortgage and issues of fact are joined therein, the action is triable by
a jury and there is no appeal, although no such personal judgment is
finally entered, but only a judgment for the sale of the mortgaged
premises. Keller v. Wenzett, 23 O. S. 579.
In an action to subject the separate estate of a married woman t->
the payment of a promissory note executed by her, neither party is en-
titled to demand a jury, and hence an appeal lies from the judgment
to the Circuit Court. Avery v. Vansickle, 35 O. S. 270.
An appeal will lie to the Circuit Court in an action by one co-tenant
against another for rents and profits under section 5774, involving an
account of profits received and also of expenses incurred in the im*
provement of the common property. Conrad v. Conrad, 38 O. S. 464.
Though one partner may have an action at law against another
partner as to a particular transaction, yet, if the issue be so framed
as to call for a full settlement of partnership accounts, and th> ca-o
be referred to a master by agreement of parties to take a full account,
either party may appeal from the judgment finally rendered. -\Vi7 v.
Qreenkaf, 26 O S 567
Although a plaint'fj'k cause of action maybe triable by jury, yet
where new matter -set up in the answer constitutes an equitable, cause of
action, which, if established, will extinguish or supersede the cnse made
44
690 CODE PRACTICE AND PRECEDENTS.
in the petition, the issues taken on such new matter are triable by the
court, and not as of right by a jury ; and this is so whether issue is
taken on the averments of the petition or not. Buckner v. Mear, 26
O. S. 514.
If issue is taken on the averments of the petition, the materiality
of such issue will depeud upon the result of the trial of the equitable
case made by the defendant ; if the equitable case is established, the
decree will end the controversy and settle the rights of the parties;
but if the defendant fails in his equitable case, the issues raised on the
petition must be disposed of before the case can pass to final judg-
ment. Ib.
Where the decree is against the equity set up by the defendant, his
right to appeal from the decree will not operate to delay the final dis-
position of the case in the Common Pleas Court, but, in such event,
it is the duty of the court, by jury or otherwise, as circumstances may
require, to determine all the issues and render final judgment between
the parties. Ib.
(The issues made by the pleadings will determine whether a case \a
appealable or not. If there be a joinder of several causes of action.,
and an issue of fact as to either of them triable by jury, there can not
be an appeal, though one or more of such causes of action would have
authorized an appeal. And if an action is brought upon a note and
mortgage, and a personal judgment upon the note and a sale of the
mortgaged property to satisfy such judgment are asked, the issue is
one in which either party has a right to demand a jury trial, and the
case is not appealable otherwise if the prayer is simply to find the
amount due, and for a sale. A claim, on a note for a personal judg-
ment, and upon the mortgage for a sale of the mortgaged premises,
are distinct claims, and should be separately stated and numbered,
but, as there is a right of trial by jury, no appeal can be taken. Ladd
v. James, 10 O. S. 437. Of course the waiver of a jury and trial to
the court can not affect the question of the right to appeal to the Cir-
cuit Court.
In an action of trespass on real estate, the defendant caused the
party under whom he claimed to be made a party, who set up, by
cross -petition, his equitable ownership of the laud, and asked a decree
against the plaintiff for the legal title, and to enjoin the action of tres-
pass. He obtained such decree against the plaintiff; the case was
held appealable. The issues as to the trespass were properly stayed
until the cross-petition was determined, which ended the case, the de-
cree being against the plaintiff. Had it been decided in his favor,
then the issue in trespass would be for trial, the cross-petitioner having
APPEALS TO CIRCUIT FROM COMMON I' RT, ETC. 691
the right of appeal, as had the plaintiff from the decree against him.
idford, 17 O. S. 596.
Where- an action was brought according to section 5781, to recover
the possession of specific real estate, and the defendant set up an
equitable defense to defeat a recovery, and obtained a judgment that
" she go hence without day and recover her costs," the case wu helcl
not to be appealable. Smith v. Anderton, 20 O. S. 76.
Had the answer prayed for, and the judgment granted, affirmative
relief, the case would have been appealable, as in the case of Skeeful
\. Murty, 30 O. S. 50, where, to an action of trespass on real
the defendant set up that he had purchased the land from the plaint-
iff, but by mistake the locus in quo was not included in the deed, and
asked for its correction, etc. He prevailed, and the case was held
to be appealable ; and as to the order of trial of the issues, Mottle
v. Stradford, 17 O. S. 596, was approved. To the same effect is Dods-
worth v. Hopple, 33 O. S. 16.
(In reading some of these cases it must be remembered that, under
a former statute, a party in a jury cause could give bond and take a
!*<<( >nd trial in the Common Pleas Court, and in non-jury cases had
the. right of appeal to the District Court. This statute has been re-
pealed.)
In an action to ascertain the amount due upon a mortgage and for a
sale of the mortgaged premises, the court found that the mortira^e
embraced $1,533.30 illegal interest, and found the residue due the
plaintiff as claimed by him, and ordered a sale of the premises to sat-
isfy the same. The plaintiff received and receipted for the amount so
found due. Held that he did not thereby lose his right of appeal.
Seals v. Lewis, 43 O. S. 220. The illegal interest not allowed to, or
received by the plaintiff, was Vie only thing in controversy in the acti-ni,
the amount found due being admitted by the defendant This dis-
tinguishes it from Taller v. Wiseman, 2 O. S. 207, 216. An action by
a widow for the assignment of dower in the lands of her deceased hus-
band is a " civil action," and a judgment or final order therein may be
from. Carry v. Lamb, 43 O. S. 390.
X' >t ice of appeal, and how to be given. SEC. 5227. (Sup., p. 342.) A
party desiring to appeal his cause to the Circuit Court, shall, at the
term at which the judgment or order is rendered, enter on the records
notice of such intention, and within thirty days after the rising of the
court, give an updertaking, with sufficient surety, to be approved by
the clerk of the court, or a judge thereof, as hereinafter provided.
692 CODE PRACTICE AND PRECEDENTS.
Note. It is not sufficient that notice of appeal be entered by the judge upon
his minutes or trial docket; it must be entered upon the journal, the judge's
memoranda being no part of the record. "Where the court was required by
statute to ascertain and fix the penally of the appeal bond, it was he!d to be
the duty of the court to do so without a motion of either party to the cause,
and its omission to comply with such statute did not deprive the parties of the
right of appeal; and where the appellant, within the prescribed time, gave an
appeal bond to the approval of the clerk, such appeal could not be dismissed for
want of jurisdiction. If the bond was insufficient in form or amount, the
remedy was under section 5233; and that a motion to dismiss an appeal will
be in time if made at the term at which it is entered and before judgment.
Hubble v. Renick, 1 O. S. 171 ; also Sapp v. Longhead, G O. S. 174; Ingerson v.
Marlow, 14 O. S. 568. Nunc pro tune : Moore v. Brown, Lauden y. Reid, 10 O.
197, 202. " The rising of the court" means the end of the term.
(a) The refusal of the court to fix the amount of the undertaking
for appeal will not deprive a party of his appeal. Jones v. Booth, 38
O. S. 405.
Wlw not required to give bond. SEC. 5228. (Sup., p. 342.) A party
in any trust capacity, who has given bond in this state, with sureties ac-
cording to law, shall not he required to give bond and security to per-
fect an appeal ; and in such cases the clerk of the Common Pleas
Court, at the expiration of thirty days from the rising of the court,,
shall, if not otherwise directed, make a transcript, which, together with
the papers and pleadings filed in the cause, he shall transmit to the
clerk of the Circuit Court, as in other cases of appeal.
(a) Executors or administrators, whether appointed in this state or
elsewhere, who have not given bond in this state, with sureties, agree-
ably to law, and who were original parties to the action, are not au-
thorized to prosecute an appeal without giving an appeal bond. Den-
nison v. Talmage, 29 O. S. 433.
When the law requires the appellant to give such bond, the court
from which the appeal is taken has no power, by its order or otherwise,
to dispense with the execution of the bond, or to relieve the appellant
from the obligation to give it, the court's power in that respect being
limited to fixing the amount of the bond, and designating the party to
whom it shall be payable. Ib.
Where the appellant, in a case where such appeal bond is required,
neglects to give the same within the time limited for that purpose, the
fact that the court below made an order to the effect that no bond was
required does not authorize the appellant to perfect his appeal by after-
ward giving such bond in the District (Circuit) Court. Ib. Also
Emerick v. Armstrong, 1 O. 513 ; Work v. Massie, 6 O. 503.
APPEALS TO CIRCUIT FKOM COMMON PLEAS COURT, ETC. 693
dies before appeal perfected. SEC. 5229. When a party
to a judgment hus given notice us aforesaid, and dies within the time
limited for the appeal aud before perfecting the same, the administra-
tor or executor of such deceased juirty, at any time within tlrirty days
after hi* appointment and qualification, and within ninety days after
the death of such party, may cause notice of his intention, as such ad.
miuistrutor or executor, t-: appeal the cause, to be entered upon the
journal of the court ; and such administrator or executorshall thereby
be made a party to the judgment, and the appeal shall be considered
as perfected.
Penalty of bond; tuJien court to fix amount. SEC. 5230. When the
judgment is personal against a party for the payment of money only,
the penalty of the appeal bond shall be double the amount of the
judgment ; in all other cases, including cases in which the judgment
is against a party for nominal damages and costs, or for costs only, the
court shall, at the time of the rendition of the judgment, ascertain
and fix the penalty of the appeal bond to be given in the event of an
appeal, at such reasonable amount as will, in the opinion of the court,
be sufficient to cover the probable loss, damage, or injury, which the
other party or parties may sustain by the delay, aud the costs and
damages which may be awarded in the appellate court.
(a) Failure of court to fix amount of bond will not defeat appea!,
if bond filed within time. HulMe v. Renick, 1 O. S. 171.
And where the court, having power to fix the amount, placed it at
a less sum than the decree appealed from, this afforded no ground for
dismissing the appeal. Branch v. Dick, 14 O. S. 551
And since the enactment of section 5233, where the appeal bond i
required to be in double the amount of the judgment, and is taken for
less, the appeal will not be dismissed on that ground, thus changing
the rule as determined in Oliver v. Pray, 4 O. 175; *. e., 5 O. '-W>;
Bliss v. Long, 5 O. 276.
If the bond complies substantially with the requisites of the statute
it is sufficient. Gardner v. Woodyear, 1 O. 170; Creighion v. Harden,
10 O. 8. 579; Bently v. Dorcas, 11 O. S. 398.
If no appeal bond be taken, the Circuit Court acquires no jurisdic-
tion of the case, and the objection can be taken at any time in any
court. Consent of parties can not give a court jurisdiction of the
subject-matter. Bradley v. SneaOi, 6 O. 490.
Where the amount only is found to be due, aud an order is made to
sell property to" satisfy such amount, the amount so found is not " --n-
dem'nation money." and the surety on the bond can not be held liable
694 CODE PRACTICE AND PRECEDENTS.
fora balance that may remain due after exhausting such, property.
Hamilton v. Jefferson, 13 O. 427.
A surety on an appeal bond can be held only on the express words
of his contract. Smith v. Huseman, 30 O. S. (562.
Condition of appeal bond; to whom payable. SEC. 5231. The appeal
bond shall be payable to the adverse party, or otherwise, as may be di-
rected by the court, where the conflicting interests of the parties re-
quire it, and shall be subject to a condition to the effect that the party
appealing shall abide and perform the order and judgment of the
appellate court, and shall pay all money, costs, and damages which
may be required of or awarded against him by such court.
Hoio appeal of a separate interest perfected. SEC. 5232. When the in-
terest of a party desiring an appeal is separate and distinct from that
of the other party or parties, and he desires to appeal the part of the
case in which he is interested, it shall be so allowed by the court, and
the penalty and condition of the bond shall be fixed accordingly ; and
the court shall make such order as to the papers and pleadings, the
supplying of copies thereof, and in all other respects, in view of a di-
vision of the case for the purpose of appeal, as it deems right and
proper.
(a) In a joint action against several defendants, one may appeal the
whole cause, and as to those against whom judgment is rendered with
himself, by giving the bond required by law, and if he be an adminis-
trator or executor who has given bond as such in this state, he may ap-
peal such cause as to his co-defendants without bond. Emerick v.
Armstrong, 1 O. 513.
Where there are two defendants, and the action is dismissed as to
one, and decree rendered against the other, who appeals, the case
against the dismissed defendant is not appealed. If the plaintiff is not
satisfied with the dismissal of his action as to such defendant, he should
appeal. Glass v. Greathouse, 20 O. 503.
Where the claim in the action is several and distinct as to the sev-
eral defendants, and the case can be tried against one without interfer-
ing with the rights of another, this may be done, and appeal taken be-
fore the case against the others is tried. Douglierty v. Walters, 1 O.
S. 201.
One of two or more defendants against whom jointly a judgment
has been rendered by the Common Pleas Court, may appeal the case to
the Circuit Court, and his appeal will vacate the judgment, the lien be
ing preserved, and take up the whole case.
APPEALS TO CIRJUIT FROM COMMOM PLKAS COURT, ETC. 695
And to perfect the appeal in such case, it is not necessary for the
appellant to give a bond that will cover the defaults of his co-de-
fendants; it is sufficient if it cover his own. Ewers v. Jtutledye, 4 O.
S. 210.
It is not necessary that the bond be signed by the appellant, as he
will be fully liable without signiug it. Coil v. Davit, W. 104.
Whether an appeal is iu time or not must be determined from the
transcript. The recitals in the appeal bond can not be looked at.
Hoagland v. Scknorr. 17 O. S. 30.
An-appea; bond executed more than thirty days after the regular
term nt which judgment was rendered, but within thirty days after an
"additional term," is not within the time required by law. Harris v.
, 4 O. S. 469.
Amendment 01 renewal of appeal bond. SEC. 5233. (Sup., p. .'J42. i
When the surety in the undertaking for the appeal has removed from
the state, or for any cause is insufficient, or if the undertaking Ls in-
sufficient in form or amount, the Circuit Court, on motion, may order
a change or renewal of the undertaking, or a new undertaking to be
given, with security, to be approved by the Circuit Court, or the clerk
thereof; and if the order of the Circuit Court be complied with, the
appeal shall not be dismissed, but the court shall hear and determine
the cause in the same manner as if the order had not been made ; but
otherwise the appeal shall be dismissed.
(a) A bond for appeal, however defective, may be amended, or a
new bond given, in the appellate court. Irwin\. Baiikof Jiellefontnin ,
6 O. S. 81 ; Negky v. Je/ers, 28 O. S. 90 ; Johnson v. Johnson, Watts v.
SlieweU, 31 O. S. 131, 331 ; Saterlee v. Stewm, 11 O. 420; HubbU v.
Kenick, 1 O. S. 171 ; Creighlon \. Harden, 10 O. S. 579.
Before the passage of the act of May 1, 1862, the deposit of money
in lieu of giving an appeal bond was not sufficient. That which gave
jurisdiction and might be amended was a bond. Sluimokiii Bank
v. Street, 16 O. S. 1.
Where the bond specified the Supreme Court, not then in existence,
instead of the District Court, which had taken its place, the appeal
bond held void as not conferring jurisdiction upon the District Court.
Myers v. Parker, 6 O. S. 501.
When the plaintiff gives notice of appeal, and part of the defendants
execute with him an appeal bond, such bond, though defective is not
void, and does not entitle the other defendants to the unconditional
disniissal of the appeal. Church v. XeUon, 35 O. S. 638
696 CODE PRACTICE AND PRECEDENTS.
When execution may be stayed. SEC. 5234. The court may, on mo-
tion of the party entering notice of appeal, on such reasonable terms
as may be necessary for the security of the adverse party, direct exe-
cution to be stayed for thirty days.
Appeal suspends judgment Transfer of papers, etc. SEC. 5235. (Sup,
p. 342.) When an appeal is taken, and bond given, the judgment is
thereby suspended, unless some part of the final judgment appealed
from be an injunction, in which case such injunction shall not be sus-
pended, except by order of the Circuit Court, or two judges thereof,
on reasonable notice to the adverse party ; and the clerk of the Common
Pleas Court shall forthwith make an authenticated transcript of the
docket and journal entries and of the fiual judgment in the cause ap-
pealed; which transcript, together with the original papers and plead-
ings, he shall deliver at the office of the Clerk of the Circuit Court, on
or before the first day of the term thereof next after the appeal is per-
fected ; and either party may require a full record to be made of the
case in the court below, at his own costs.
Note. The clerk of the Common Pleas Court is also the clerk of the Circuit
Court, and the clerk's office of the two courts is the same, but the records and
files of such courts are kept separately, as much so as if there were two distinct
offices and clerks.
Lien of judgment to continue. SEC. 5236. (Sup., p. 342.) When the
party against whom a judgment is rendered appeals his cause to the
Circuit Court, the lien of the opposite party on the real estate of the
appellant, created by the judgment, shall not be removed or vacated
by the appeal ; but the real estate of the appellant shall be bound, in
the same manner as if the appeal had not been taken, until the final
determination of the cause in the Circuit Court.
Note. Without such provision, the appeal would absolutely vacate and an-
nul such judgment, to the same extent as if it never had been rendered.
Costs on appeal. SEC. 5237. (Sup., p. 343.) If a plaintiff appeal-
ing do not recover a greater sum in the Circuit Court than in the court
from which the appeal was taken, exclusive of costs and interest ac-
crued since the rendition of the judgment, he shall pay all costs that
accrue in the Circuit Court ; and if the defendant, in any personal ac-
tion, appeal to the Circuit Court, and the plaintiff recover the same
or a larger sum than was recovered in the court below, exclusive of
costs, the Circuit Court shall render judgment for the sum so recov-
ered, with costs of suit.
(a) Under former laws, where the plaintiff appellant recovered no
APPEALS '.0 CIRCUIT FROM COMMON IM.KAS COl'HT, ETC. 697
more on appeal than in the lower court, two judgments were entered,
one for the plaintiff f<>r the amount found due him, and the other for
the defendant for the costs of the appeal. Waters v. Lemon, 3 O. 72
Wheeler v. JAWS, 13 O. 248.
Damages when appeal is for delay merely. SEC. 5238. When the ap-
pellate court renders substantially the same judgment which was ren-
dered in the court below, tliiimujeit may be a wan led as follows:
1. When the judgment is for the payment of money, the appellant
shall be adjudged to pay the appellee, or party delayed of payment by
the appeal, damages at the rate of five per cent on the amount ad-
judged in the court below, unless the appellate court is satisfied that
there was reasonable ground for the appeal ;
2 And in such case, when the court is satisfied that the appeal
was foi the purpose of delay merely, the damages adjudged shall be at
the rate of ten per cent ;
3. In all other cases, including those where the judgment or decree
is for nominal damages and costs, or costs only, unless the appellate
court is satisfied that there was reasonable and probable ground for
the appeal, damages shall be adjudged to the appellee, or party affected
by the appeal, in such specific sum as may be deemed reasonable, not
exceeding two hundred dollars.
Mandate to Common 'Pleas Court. SEC. 5239. (%>., p. 343.) When
the Circuit Court makes a final order, or renders a final judgment, in
cases brought before it on appeal, it may enforce the same by process
issued therefrom, or may remand the same to the Common Pleas Court
for execution or other process; the clerk of the Circuit Court shall
certify the same to the Common Pleas Court, and the clerk of the
Common Pleas Court, on receipt of the certified transcript, shall imme-
diately enter the same on the journal ; and the judgment or order so
entered, unless otherwise directed by the Circuit Court, shall, for the
purposes of execution and other process, stand as the judgment of the
Common Pleas Court.
\.,f,-. Unless special reasons exist for executing the judgment in the Circuit
Court, tlio cause should bo remanded to the Common Pleas for execution, which
is much more advantageous and convenient for such purpom-. By tho present
section (5866, Sup. t p. 859) no appeal can b taken from the Common Pleas to
tin- Circuit Court in contests of wills. The remedy is by petition in error. A
decree for alimony may bo appealed from. j> 5706.
(a) An authenticated mandate from the Circuit Court can not be
impeached by showing that the clause remanding the cause was not a
part of the order of the Circuit Court, but was added to the judgment
698 CODE PRACTICE AND PRECEDENTS.
without its authority. The proper remedy is to apply to the Circuit
Court to correct its records. Stevenson v. Morris, 37 O. S. 10.
APPEAL TO COMMON PLEAS FROM PROBATE COURT.
When appeals may be taken from Probate to Common Pleas Court SEC.
6407. (/Stap. , p. 376.) Tii addition to cases specially provided for, appeals
may be taken to the Court of Common Pleas, from any (final) order,
decision, or judgment of the Probate Court:
1. In settling the accounts of an executor, administrator, guardian,
and trustees, and assignees, trustees and commissioners of insolvents ;
2. In proceedings for the sale of real estate for the payment of
debts ;
3. In proceedings to increase or diminish the allowance made by
appraisers of any estate to any widow or minor child or children for
their support one year ;
4. In proceedings against persons suspected of having concealed,
embezzled, or conveyed away the property of deceased persons;
5. In cases for the completion of real contracts ;
6. And from (any) order or decision in the administration of insolv-
ents' estates by assignees, trustees, or commissioners ;
7. And in proceedings to appoint guardians or trustees for lunatics,
idiots, imbeciles, or drunkards, by any person against whom such order,
decision, or decree shall be made, or who may be affected thereby;
And the cause so appealed shall be tried, heard, and decided in the
Court of Common Pleas, in the psime manner as though the said Court
of Common Pleas had original jurisdiction thereof.
(a) The appeal must be from a. filial order, decision, or judgment;
hence no appeal will lie from a decision setting aside or refusing to
confirm a sale made by an assignee for the benefit of creditors. Ault-
man v. Seiberling. 31 O. S. 20i.
Nor from the approval of an election of an assignee by the creditors
of an insolvent's estate. Brigel v. Starbuck, 34 O. 8. 280. Nor from
an order removing an administrator. StuTs Estate, 15 O. S. 484.
Bond, and when bond not required Written notice of appeal. SEC.
6408. The person desiring to take an appeal, as provided in the pre-
ceding section, shall, within twenty days after the making of the order,
decision, or decree from which he desires to appeal, give a written un-
dertaking, executed on the part of the person appealing, to the adverse
party, with one or more sufficient sureties, to be approved by the pro-
bate judge, and conditioned that the party appealing shall abide and
perform the order, judgment, or decree of the appellate court, and
APPEALS TO CIRCUIT FROM COMMON PLli.V.S Col'KT, ETC. 099
shall pay all moneys, costs, and damages, which may be required of or
awarded again>t said party, by such court ; when the order, decision,
or decree, from which the appeal is taken, directs the payment of
money, the undertaking shall be in double the amount thereof, and in
other cases, in such amount as shall be prescribed by the Probate Court ;
but when the person appealing, from any judgment or order in any
court, or before any tribunal, is a party in a fiduciary capacity, in
which he has given bond within the state, for the faithful discharge
of his duties, and appeals in the intered of the trust, he shall not be
required to give bond, but shall be allowed the appeal, by giving
written notice to the court of his intention to appeal within the time
limited for giving bond.
ffote. Such written notice takes the place of a bond.
Transcript, when to be filed. SEC. 6409. The probate judge shall,
upon the giving of the undertaking, or notice, as aforesaid, make out
an authenticated transcript of the docket or journal entries, and of the
order, decision, or decree appealed from, which shall be filed with the
clerk of the Court of Common Pleas, on or before the second day of the
term of said court, next after an undertaking or notice is given, as here-
inbefore provided, by the person appealing, and the appeal shall there-
upon be considered perfected ; the original papers pertaining to the
cause may be used upon the trial or hearing in the Court of Common
Pleas.
Proceeding* in the Common Pleas, and certifying same back. SEC. 6410.
Upon the decision of any cause, appealed to the Court of Common
Pleas, the clerk of said court shall make out an authenticated tran-
script of the order, judgment, and proceedings of said court therein, and
shall file the same with the probate judge, who shall record the same,
and the proceedings thereafter shall be the same as if such order, judg-
ment, and proceedings had been had in the Probate Court.
\,,ff. The final order, judgment, or decree of the Common Pleas Court may
l>o reviewed on error in the Circuit and Supreme Courts, as other judgment* and
final orders of the Court of Common Pleas.
Appeal from refusal to admit will to probate. SEC. 5934. In en-
the refusal to admit a will to probate, any person aggrieved thereby
may appeal from such decision to the next term of the Court of Common
Pleas by filing notice of hi* intention to appeal within ten days.
Note* The written notice of intention to appeal, filed in the Probate Court,
takes the place of an appeal bond.
700 CODE PRACTICE AND PRECEDENTS.
Hoiv appeal perfected, and proceedings in Common Pleas. SEC. 5935.
The person appealing shall procure and file in the Court of Common
Pleas a certified copy of the order of said Probate Court, rejecting the
will, together with the will, and thereupon said appeal shall be deemed
perfected; and the Court of Common Pleas, on the hearing, shall take
testimony touching the execution of such will, and have the same
reduced to writing ; and the final order of the Court of Common Pleas
shall, together with the will and testimony so taken, be certified by the
clerk to the Probate Court ; and if by such order the will is admitted
to probate, the will, order, and testimony shall be recorded in the Pro-
bate Court.
Note. In the proceedings authorized for admitting a will to probate, persons
interested in resisting its probate are not allowed to introduce evidence to con-
test its validity. Hathaway's Wilt, 4 O. S. 383. Nor is it required that those
who are interested adversely should be summoned, as no issue is made for a con-
test between adverse parties. Ib. And error will not lia to review the testimony
upon which a will, executed in due form, was probated and admitted to record,
if the application is within the jurisdicticn of the court. Mosier v. Harmon, 29
O S. 220. The sole remedy U to contest the will. $ 5858-5866.
As to wills executed out of this state, and the admission of a copy with pro-
bate to record, see sections 5937-5942. The remedy for refusal to admit these
to record would seem to be by petition in error only.
Appeal from allowance or rejection of claim of an executor or adminis-
trator against tJie estate. (See sections 6099,6100.) SEC. 6101. . . . ;
and an appeal may be taken to the Court of Common Pleas of the
proper county from any order or judgment of the Probate Court allow-
ing or disallowing such debt or claim or any part thereof, by any per-
son who may be affected thereby, when the amount claimed by such
executor or administrator exqeeds one hundred dollars ; and the matter
so appealed shall be tried, heard, and decided in said Common Pleas
Court in the same manner, and the proceedings therein shall be the
same as nearly as may be practicable, as if the said Common Pleas
Court had original jurisdiction thereof, but without pleadings unless
pleadings be ordered by the court to be filed ; the person so appealing
shall, within twelve days after the making of such order or judgment,
give a written undertaking to the state, for the use of the persons who
may be interested therein, with one or more sureties to be approved by
the probate judge, conditioned that the person appealing shall pay all
costs which may be awarded against him in the appellate court, and
the bond shall be in such amount as the said probate judge may pre-
scribe.
APPEALS TO CIRCUIT FROM COMMON PLEAS COURT, ETC. 701
An appeal may also ho taken, as in other cases, from an onler in pro-
ceedings on exceptions to the inventory returned. 0024 (Sup.,
p. 366).
Note. This section (6101) also gives the right to except and take proceedings
in error.
A party ran not prosecute error and appeal for the ?amo thinij, at the same
time, tin- ttppeal vacates or suspends the judgment, which the petition in error
seeks to achieve, and by a trial on the appeal the law presumes full justice will
be done.
IN THE APPROPRIATION OF PRIVATE PROPERTY TO PUBLIC U8F BY
CITIES AND VILLAGES.
Appeal to Common Pleas Court. SEC. 2254. Where the proceeding
is had in the Probate Court, any party interested in the inquiry and
assessment may take an appeal to the Court of Common Pleas; and
thereupon the same proceedings shall be had as if the application had
been originally made in that court, except that the corporation shall
not be required to give notice of its application, and the inquiry
and assessment shall be limited to the case of the party taking the ap-
peal ; and the court shall make such order for the payment of the
costs accruing upon the appeal as may seem equitable and just.
Nature of appeal, and undertaking. SEC. 2255. The party desirous
of appealing, shall, within ten days after the date of the final order
determining the rights of such party, file with the probate judge notice
of his intention to appeal; and shall further, within twenty dai/s after the
making of the order, give a written undertaking to the adverse party,
with one or more sufficient sureties to be approved by the probate
judge, conditioned that the party appealing shall abide by and per-
form the order, judgment, or decree of the appellate court, and pay
all costs or moneys which may be awarded against such party by the
appellate court.
Appeal by guardian, married uwman, etc. SEC. 2256. When the ap-
peal is taken by a person as guardian, executor, or administrator, who
has given bond as such in the state, no undertaking shall be required
from such guardian, executor, or administrator ; and when an appeal
is taken by a married woman, her liability shall be the same as if she
had been .W- .
Probate judge to furn'uli transcript, etc. SEC. 2257. The probate judge
shall, upon the giving of the undertaking as provided in section 2
or upon the filing of notice oftlie intention to appeal where no undertak-
ing is required, prepare an authenticated transcript of the dock
journal entries, and of the order or decision appealed from, which shall
702 CODE PRACTICE AND PRECEDENTS.
be forthwith filed with the clerk of the Court of Common Pleas by
the person appealing, and the appeal shall thereupon be considered per-
fected ; and if the transcript is not filed within thirty days after the date
of the undertaking, or of the filing of the notice of intention to ap-
peal where no undertaking is required, the party shall be deemed to
have waived an appeal.
Original papers may be used. SEC. 2258. The original papers pertain-
ing to the proceeding may be used upon the hearing or inquiry in the
Court f Common Pleas, and shall be transmitted by tbe probate
judge for that purpose.
Corporation can not appeal, or prosecute error, except, etc. SEC. 2259.
The municipal corporation shall have no right of appeal ; nor shall it
prosecute error, except upon leave of the reviewing court or a judge
thereof.
Note. For the subject of such appropriations, generally, see sections 2232-
2261.
In cases of the assessment of damages to owners of property for injury
thereto by improvement*, by municipal corporations, when application to as-
sess such damages is made to the Probate Court (and it may be made, at the
election of the municipal authority, to the Common Pleas, under section 2317),
there can be no appeal.
No appeal. SEC. 2319. The finding of the jury shall be final, and
there shall be no appeal.
Note. Error will lie as to matters of law, but not as to the amount given by
the verdict.
UNDER ONE MILE ASSESSMENT PIKES, WHERE DAMAGES ARE ASCER-
TAINED IN PROBATE COURT FOR MATERIALS, ETC., TAKEN, ETC.
(SECTIONS 4774-4828).
Appeal from the assessment. SEC. 4784. An appeal from the decision
of the appraisers may be taken by either party to the Court of Com-
mon Pleas, within twenty days after the rendering of the award, upon
the appellant entering into an undertaking to the adverse party, in a
sum not less than fifty dollars, and in all cases not less than double the
amount of such award.
No'c. Query, whether the party appealing, and in whose favor tbe award is,
must give bond in double its amount to appeal ?
The probate judge will take and approve the appeal bond, make transcript,
etc., and the party appealing will file the same, with the necessary papers, in
the Common Pleas, without delay, after executing such undertaking.
APPEALS TO COMMON PLEAS COURT FROM JUSTICES, ETC. 703
APPEALS TO COMMON PLEAS COURT FROM JUSTICES OF THE PEACF-. AND
MAYORS, WHO ARE EX OFFICIO JUSTICES (SECTION 1744)
In Jury Trial*.
Ulicn appeal may be taken to Common Plea* SEC. 6562. (Sup., p.
381.) If either the plaintiff or defendant, in Ins bill of particulars, cluim
than twenty dollars, the case may be appealed to the Court of
Common Pleas, but if neither party demand a greater sum than turnty
dollars, and the case is tried by a jury, there shall be no appeal;
provided, however, that if either party shall set forth in his bill of
particulars, counterclaim, or set off a full statement of the items con-
stituting his cause of action, or defense, and if the same shall be
verified by the affidavit of the party, his agent or attorney, the party
appearing having complied with the provisions of this section, shall
be entitled to a judgment, without further proof, in all cases wliere the
opposing party fails to comply with the provisions of this section, ami
fails to appear.
In replevin the right to appeal does not depend upon the amount of
damages claimed in the bill of particulars. Martin v. Armstrong, 12
O. >. 549.
Note. The seventh amendment to tho federal constitution provides that "in
suits at common law, when the value in controversy shall exreed itrrnty dollars,
tho right of trial by jury shall be preserved." In view of thi decision, in tho
years 18'>7, 1808, Judges Pease, Tod, and. Huntin^ton, constituting a majority
of tho Supremo Court of the state in different cafes, in the Court of Common
Picas fr the third circuit, decided the fifth section of the act of 1805, giving jus-
tices of the peiico final jurisdiction in cases not exceeding tho amount of $50,
unconstitutional. Judges Pease and Tod were impeached before the K-i;i-l:i-
ture for so deciding, but the senate failed to convict them by the necessary t\v.>-
thirds vote. The impeachment was tried at tho session of 1808-9. Tho case
of Marbury v. Madison, 1 Oanch's Rep. 137 opinion by Chief J nation Mar-
shall had fully settled tho reason for declaring H statute unconstitutional by a
court as early as February, 1803.
In view of many decisions of the Supremo Court of tho United States it
would seem that the seventh amendment to the federal constitution appliv i-nl y
to federal courts, and not to courts created by tho states. Walker \. Kuu
U. 8. (2 Otto) 90, decides that the seventh amendment applies only to court* of
the United States. Also Edwards v. Elliot, 21 "Wall. 657. "Tho status so far
as this amendment is concerned, are left to regulate trials in their own court* in
their own way."
A jury before a justice of the peace consists of fis, but where the amount in
dispute excecrfs twenty dollars, an appeal may bo takMi and "a trial by jury,"
which in the constitution means twelve, secured. Under twenty dollar*, the
rule seems to bo adopted, de minimus non cttrat lex.
704 CODE PRACTICE AND PRECEDENTS.
Where the trial is by the justice, an appeal may be taken to the Court of Com-
in. >n Pleas from his judgment, though neither party, in his bill of particulars,
t-iaiin-i $20. See sections 6583, 6596.
Without the consent of the adverse party, no amendment as to the cause of
action, stated in the bill of particulars, can be made or granted in the Court of
Common Pleas, that could net have been made before the justice of the peace; but
with such consent, any amendment can be made by leave of the court, as it is
equivalent to a new action and appearance by consent. Biclett \. Garner, 21
O. S. 659; Wood v. O'Ferrall, 19 O. S. 427.
Payment of costs on appeal Attorney's fees. SEC. 6563." If, on appeal
by the plaintiff from a judgment in his favor, he shall not recover a
larger sum than twenty dollars, exclusive of interest since the rendition
of the judgment before the justice, he shall be adjudged to pay all
costs in the Court of Common Pleas (including a fee of jive dollars for
the defendant's attorney), and if the defendant shall demand a set-off
or counterclaim, or both, greater than twenty dollars, and he appeal
from a judgment rendered in his favor, and do not recover twenty dol-
lars, he shall in like manner pay all costs in the appellate court, includ-
ing a like fee to the plaintiff's attorney.
i
Note. This and section 6562 apply to cases where the trial before the justice
was by a justice's jury.
Trials by the Justice.
Appeals allowed except as otherwise provided. SEC. 6583. In all cases
not otherwise specially provided for by law, either party may appeal
from the final judgment of any justice of the peace, to the Court of
Common Pleas of the county where the judgment was rendered.
Appeals from decision of mayor. SEC. 1752. Appeals may be taken
from the decision of the mayor in civil cases, in the same manner as
from justices of the peace ; provided, that when a city or village ex-
tends into two or more counties, the appeal shall be taken to the Court
of Common Pleas of the county in which one or more of the defend-
ants reside. . . . (Mayor, within the limits of the corporation, is
ex officio a justice of the peace. 1744.)
(a) A judgment of dismissal without prejudice is not a final judg-
ment from which an appeal can be taken. Farrall v. Bluffton Lodge,
31 O. S. 463.
The undertaking ; its amount, condition, etc. SEC. 6584. The party
appealing shall, within ten days from the rendition of the judgment,
enter into an undertaking to the adverse party with at least one
good and sufficient surety to be approved of by such justice, in a sum
APPEALS TO COMMON PLEAS COURT FROM JUSTICES, ETC. T':,
not less that Jiffy dollars in any case, nor lew than double the amount of
the judgment and costs, conditioned : 1. That the appellant will pros-
ecute his appeal to effect, and without unnecessary delay ; 2. That if
judgment be adjudged against him on the appeal, he will satisfy such
judgment and costs. Such undertaking need not be signed by the
appellant.
(a) The appellee is necessarily the "adverse party" to whom an
undertaking for appeal is payable, and he need not be specially num.-.!
or referred to in the body of the undertaking when it is entitled in the
case, and taken and approved by the justice before whom it was tried.
Jobv. Harlan, 13 O. 8. 485.
The stipulation " that the appellant will prosecute his appeal to
effect and without unnecessary delay " is made an independent and
indispensable condition of the undertaking, and must be substantially
complied with in order to perfect an appeal. Ib.
The approval by a justice of an undertaking on his docket does not
preclude the parties purporting to have signed it from denying its exe-
cution. Ford v. Albrifjfo, 31 O. S. 33.
Where, in the body of such undertaking, the names of several
persons appear as sureties for the appellant, only a part of whom sub-
scribe their names below the written stipulations, the undertaking is
to be regarded, prima facie, as not executed by those whose names ap-
pear only in the body of the instrument. Ib.
Such an undertaking is not a specialty, and need not be under seal,
and the names of the sureties, if signed by them, need not appear in
the body of the instrument. McLaln v. Siminr/ton 37 O. 8. -1 s I
It is not necessary that the name of the obligor should appear in the
body of a bond, provided he signed it, and the intention that he shall
be so charged appears clearly from its terms, taken in connection with
the circumstances attending its execution. Partridge v. Jone, 38 O.
8. 375. (In such case writing the name in the body of the instru-
ment by the obligee, witl-out the consent of the obligor, after its exe-
cution by him, is not material, and will not vitiate it.)
In the case of a joint action and joint judgment against two, and
appeal by them, the bond providing for the liability of the surety M it
judgment be rendered against them on appeal," and on appeal judg-
ment is rendered against but one of the defendants, the surety was
held liable on the bond. Alber v. Froehlieh, 39 O. S. 245. Overrules
Lang v. Pike, 27 O. S. 498.
If both appellant and appellee fail to file a transcript of thr jmL-
ment and proceedings of the justice, within the time prescribed l>y
45
706 CODE PRACTICE AND PRECEDENTS.
statute, no action can be- maintained upon the appeal bond. Gemper-
ling v. Hanes, 40 O. S. 114.
Where, pending the appeal, the defendant was adjudged a bankrupt
under the Jaws of the United States, and discharged from his debts,
which suspended all remedies against him, this did not discharge the
surety on the appeal bond from liability. Farrdl v. Finch, 40 O.
S. 337.
Proceedings of justice wJien a case is appealed. SEC. 6585. And the
said justice shall make out a certified transcript of his proceedings, in-
cluding the undertaking taken for such appeal, and shall, on demand,
deliver the same to the appellant, or his agent, who shall deliver the
same to the clerk of the court to whicli such appeal may be taken, on
or before the thirtieth day from the re)idition of the judgment appealed
from, and such justice shall also deliver, or transmit the bill or bills of
particulars, the deposition, and all other original papers, if any, used on
the trial before him, to such clerk, on or before the said thirtieth day
from said judgment ; and all further proceedings before the justice of
the peace in that case shall cease and be stayed from the time of en-
tering into such undertaking.
(a) The filing of the original undertaking for the appeal with the
clerk, by the appellant, though irregular, is a substantial compliance
with the provision of this section requiring a certified copy of such un-
dertaking to be so filed. Job v. Harlan, 13 O. S. 485.
If the thirtieth day falls on Sunday, the transcript can not be filed
on the next succeeding day, Monday. McLees v. Morrison, 29 O. S.
155. Under the original Code of 1853, section 4951 was not appli-
cable to the justice's code (McLees v. Morrison), but query if it is not
in its present form.
(A party who neglects to perfect his appeal within the time allowed
by law can not be relieved in equity. White \. Bank U. S., 6 O.
528. The court, after the time has expired, can acquire no jurisdic-
tion of the subject-matter of the suit, and this is not waived by a trial
on such assumed appeal. Torbet v. Coffin, 6 O. 33. The neglect of
the justice to send the bill of particulars, etc., to the clerk, within
thirty days, is not jurisdictional. The party can not lose his rights
by reason of the justice's neglect, who may thereafter be required to
perform his duty. The party appealing must pay the justice for, and
file the transcript with the clerk.)
Docketing case in court. SEC. 6586. The clerk, on receiving such
APPEALS TO COMMON PLEAS COURT FROM JCSTICES, ETC. 707
tran>cripr, and other papers as aforesaid, shall file the same, and docket
the appeal.
/'<///('.< in Common Pleas Pleading.*, etc. Sue. 6587. The plaintiff
in the court below shall be plaintiff in the Court of Common Pleas;
and the parties shall proceed, in all respects, in the same manner a*
though the action had been originally instituted in the said court.
/V '!, ,1 ings if appeal not prosecuted. SEC. 6588. If the appellant
shall fail to deliver the transcript and other papers, if any, to the
dt-rk, and have his appeal docketed as aforesaid, on or before the thir-
tieth day from the rendition of the judgment appealed from, the ap-
pellee may, thereafter, at the term of said court next after the expiration
of said thirty days, file a transcript of the proceedings ami judgment
of such justice, and the said cause shall, on motion of the appellee,
be docketed ; and the court is authorized and required, on his applica-
tion, either to enter a judgment in his favor similar to that entered by
the justice of the peace, and for all costs that have accrued in said
court, and award execution thereon ; or such court may, with the con-
sent of said appellee, dismiss the appeal at the cost of the appellant,
and remand the cause to the justice of the peace, to be thereafter pro-
ceeded in as if no appeal had been taken.
Failure to file petition when plaintiff appeals. SEC. 6589. If the
plaintiff, in the action before the justice, shall appeal from any judg-
ment rendered against such plaintiff, and after having filed his tran-
script and caused such appeal to be docketed, according to the provis-
ions of this chapter (tit. 3, ch. 8), shall fail to file a petition, or
otherwise neglect to prosecute the same to final judgment, so that such
plaintiff shall become nonsuit, it shall be the duty of the court to ren-
der judgment against such appellant, for the amount of the judgment
rendered against him by the justice of the peace, together with in-
terest accrued thereon, and for costs of suit, and to award execution
therefor, as in other cases.
Justice?* proceeding* when both parties fail to perfect appeal. SEC. 6590.
If both parties fail to enter such appeal within the time limited as
aid, the justice, on receiving a certificate from the clerk of the
court, stating that the appeal was not entered, or being enter, d. was
dismissed as aforesaid, shall thereupon issue execution u|x>n the judg-
ment, in the same manner as if such appeal had never l>een token.
Effect of less recovery tlian before the justice. *SEC. 6591. If any per-
son appealing from a judgment rendered in his favor shall n
a greater sum than the amount for which judgment was r.-n.l. -red.
besides costs and the interest accruing thereon, every such appellant
hall pay the costs on such appeal.
708 CODE" PRACTICE AND PRECEDENTS.
Proceedings by defendant appellant w!ien plaintiff 1 fails to file petition.
SEC. 6592. If the defendant appeal from any j udgraent rendered in favor
of the plaintiff, and after having filed his transcript and caused ?uch
appeal to be docketed, the plaintiff shall fail to file a petition, or other-
wise fail to prosecute the same to final judgment, the defendant in such
action may file his answer setting up whatever claim or demand he may
have against such plaintiff, and prosecute the same to final judgment, in
which case, if the defendant shall recover judgment against the plaint-
iff, all costs which have accrued before the justice, and in the appellate
court, shall be adjudged against the plaintiff, or he may, on motion
to the court, suffer judgment to be entered against him for the amount
of judgment below, in which case all costs which have accrued be-
fore the justice and in the appellate court, shall be adjudged against
such defendant.
Note. If a plaintiff becomes so derelict, and the defendant has no cross-
claim or demand, he may move to dismiss the case for want of prosecution, not
to dismiss the appeal, for that would leave the judgment of the justice in favor
of the plaintiff in full force, and would be the same as if he had not appealed.
Such dismissal of the cas-e would be without prejudice to another action by the
plaintiff.
Liability of surety for appeal. SEC. 6593. When an appeal shall be
dismissed, or when judgment shall be entered in the Court of Com-
mon Pleas against the appellant, the surety in the undertaking shall
be liable to the appellee for the whole amount of the debt, costs, and
damages recovered ag*ainst the appellant.
When appeal quasJied, cause must be stated in the order. SEC. 6594.
When an appeal, taken to the Court of Common Pleas, shall there bo
quashed, by reason of irregularity in taking or consummating the same,
the cause for quashing shall be stated in the order of the court, and a
transcript of such order shall be lodged with such justice, who shall
thereupon proceed to issue execution, in the same manner as if no ap-
peal had been taken.
Amendment or change of undertaking for appeal. SEC. 6595. In pro-
ceedings on appeal, when the surety tu the undertaking shall be in-
sufficient, or such undertaking may be insufficient, in form or amount,
it shall be lawful for the court, on motion, to order a change or renewal
of such undertaking, and direct that the same be certified to the jus-
tice from whose judgment the appeal was taken, or that it be recorded
in said court.
Appeals not allowed, in what cases. SEC. 6596. Appeals in the fol-
lowing cases shall not be allowed: 1. On judgment rendered on con-
APPEALS TO COMMON PLEAS COURT FROM JUSTICES, ETC. 709
n. In jury trials where neither party claims in his bill of par-
ticulars a sum exceeding twenty dollars. 3. In the action for the forc-
ible entry and detention, or forcible detention of real property. 4.
In trials of the right of property under the statutes, either levied* upon
by execution or attached.
Aofc. In a case tried to a jury where the claim in the bill of particular* U
jiift $20, no appeal can be taken. Error, of course, may, as in all caves. AD
M|>i-itl 1'u-s from the Circuit Court of the United States to the Supreme Court,
whfii the matter or thing in controversy exceeds the value of $">,000. From a
decree for $5.000 no appeal lies. Alabama, etc^ Int. Cn. v. ffiehoU, 100 I S.
232; First Nat. Bank v. Rcdick, 110 id. 224; T/wmpaon v. Butler, 95 U. 8.
694.
See section 6597, when justice's commission expires before appeal taken.
(o) Where, in an action for less than twenty dollars, after the plaint-
iff had introduced his evidence, on the motion of the defendant the
justice discharges the jury and renders judgment, the case was not
tried to a jury, and either party may appeal. BeOiel v. Woodtoorth, 11
11 3. 393. (See section 6559, when jury fails to agree, and the parties
submit the cause by agreement to the justice on the evidence already
heard.)
Ride days for pleading in appeal case*. SEC. 6598. The rule day for
filing a petition in the Court of Common Pleas in a case appealed from
a justice of the peace shall be the tfiird Saturday after the expiration
of the time limited for filing the transcript; and the subsequent plead-
ings shall be filed within such times thereafter as is provided for the
filing thereof in cases commenced in that court after the return day of
the summons.
Note. By Rule G, of the first Common Pleas District, Hamilton county,
the same rule days arc prescribed when the judgment of a justice i< reversed on
error. In framing the petition, the averment is often made: "This cause
comes into this court by appeal from the docket of G. II., a justice of the peace
within said county." This is unnecessary. No averment need be made in n
pleading of any fact shown by the record.
ARBITRATIONS BEFORE JUSTICE.
.\ f)j>eal from jiutice'is judgment on aicard. SEC. 6570. But no appeal
shall be allowed to the Court of Common Pleas, from a judgment <>f
a justice of the peace rendered on an award, unless the party praying
such appeal shall file with such justice an affidavit, therein stating that
he or she does verily believe that such award was obtained by fraud,
corruption, or other undue means.
What to be licard in t\e Common Pleas Court. SEC. 6571. And if.
710 CODE PRACTICE AND PRECEDENTS.
on appeal from the judgment of a justice rendered on any such award,
the Court of Common Pleas shall be satisfied that the award was ob-
tained by fraud, corruption, or other undue means, such court shall sot
aside the award, and proceed to hoar and determine the eause on the
merits, as in other cases of appeal.
Note. The appeal bond should not be less than $>0, in any case, and double
the amount of the judgment. lioSt. And tor arbitrations before justices, see
sections 6566-6569.
Ulicn judgment to be entered on avxtrd. SEC. 6572. But if the said
court shall be of opinion that the award was not obtained by fraud.
corruption, or other undue means, they shall render judgment there-
on, and for the costs of suit, and award execution as in other east's.
By section 3485, a turnpike or plank-road company, when a judg-
ment before the justice, for a sum to make repairs, etc., exceeds $20,
may appeal, as provided in that section, lo the Court of Common
Pleas. See section 3485.
APPEAL FROM BOARD OF COMMISSIONERS OF COUNTY.
SEC. 896. If a person is aggrieved by the decision of the county
commissioners in any case, such person may, within fiftirn days then-
after, appeal to the next Court of Common Pleas, notifying the com-
missioners of such appeal at least few days before the time of trial, which
notice shall be in writing, and delivered personally to the commission
ers, or left with the auditor of the county, and the court shall, at their
next session, hear and determine the same, which decision shall be
final.
Note. Such decision is reviewnble on petition in error. The commissioners
keep a record of their proceedings: a copy of these, certified by their clerk,
should be filed with the appeal. See section 952, Sup., p. 68.
(a) Appeals from decisions of, county commissioners are allowed
only in cases founded upon claims and demands against the county in
its qua.fi corporate capacity. Com'r& Clermont Co. v. Robb, 5 O. 41)1.
There is no appeal to the Court of Common Pleas from orders made
by boards of county commissioners appropriating private property for
public drains, or free turnpikes, or from orders assessing the costs ami
expenses of such public improvements upon lands Hpecially benefited
thereby. Bowersox v. Com'rs of Seneca Co., 20 O. S. 406. Nor in the
case of proceedings to improve a county road. Soutliard v. Steplwtm,
27 O. S. 649.
Appeal lies from the decisions of the commissioners on a claim
APPEALS TO COMMON PLEAS COURT FROM JUSTICE.-, ETC. 711
against the county, and this is the only remedy. Skephard v. Com'n
of Dark Co., SO. 8. 354 ; .State v. Com'n of Hamilton Co., 26 O. 8. 364.
Ho, where a claim against a county must he allowed before it can be
[aid, appeal is the ezdunve remedy. Com'n of Bdmtmit Co. v. Znegd-
iiofcr, 38 O. 8. 523.
ASSESSMENT OF DAMAGES.
Claims for damages miMeount of proposed improvements by muni<--
ipal corporations, under tit. 12, div. 7, ch. 4, and ch. 3, div. 6, sec.
etc.
A**wment of damage*. SEC. 2317. When claims for damages are
filed within the time limited, and the council, having passed an ordi-
nance for making the improvement, determines that the damages shall
be assessed before commencing it, the mayor or solicitor shall make
written application for a jury, to the Court of Common Pita*, or a judge
thereof in vacation, or to the Probate Court of the county in which the
corporation, or the larger part of it, is situated; and the court or
judge shall direct the summoning of the jury in the manner provided
in chapter three of this division (tit 12, div. 7, sees. 2235-22G1), and
fix the time and place for the inquiry, and the assessment of such dam-
ages, which inquiry and assessment shall be confined l > the claim- till
as aforesaid, except as provided in section 2315. (And see sections
2318-2327. When claim for damages must be filed with clerk of corpo-
ration and sixty days elapse before suit can be brought. 2326.)
Appropriation of property by municipal corporation. Sice. 2236. Upon
the passage of the resolution by the requisite majority, application in
writing shall be made to the Court of Common Pleat of the proper
county, or to a judge thereof in vacation, or to the Probate Court of the
county, which application shall describe, as correctly :n possible, the
property to be taken, the object proposed, and the naim- of the owner
of each lot or |>arcel of the property. (See sections 2232-2261, for
provisions governing the whole subject.) When the proceedings are in
the Prolate Court, an appeal may IK; taken to the Court of Common
Pleas. 2254.
Krnr may be taken in every case from every court, though the
statute provides that the judgment shall lie final. Only :i judgment
free from material error can be so. A spenal t^rm <(' the court may
be called. 2239.
In appropriations of private property by private corporations, when
money is paid into Probate Court, and there are diverse claims to it. a
party claiming a legal or equitable iutcn-t in the property, or in
may bring a civil action in the Court of Common Pleas.
71 '2 CODE PRACTICE AND PRECEDENTS.
Sections 6437, 6438, regulate proceedings in error to the Common
Pleas from the Probate Court. When probate judge is interested, pro-
ceedings may be had in the Common Pleas. 6440 (Sup., p. 376).
"Trustees of benevolent institutions" may appropriate private prop-
erty by proceedings in the Court of Common Pleas. 624.
Proceedings to condemn unfinished road-bed by railroad corporation
may be had in Common Pleas. ^ i>447 Sup., p. ?7~
There are rights of action and liabilities created by statute enforci-
ble in the Common Pleas Court, and regulated by statute, that will be
stated in their appropriate places.
[Form 433. | o25, 5227, 5228, 5230.]
A. B )
No. .] r*. > Judgment and Notice of Appeal by
C. D. J
[At the foot of the journal entry, with or ttithout noting an exception, add : J
And thereupon comes the said and enters notice herein of hia
intention to appeal this cause to the Circuit Court ; * and the court doth
fix the amount of the undertaking for appeal at dollars, with surety
to the approval of the clerk [or, :i judge] of this court, according to law.
[If tke judgment it for the payment of money only, the undertaking must be in
double Ike amount of the judgment]
[Both parties may enter notice of intention to apptal, and the entry and fixing of
the amount of the undertaking will be the tame in bote inttaneet.']
[If the party appealing if a party in a trust capacity and hat given bond in thit
state accordinj to law, the entry after the * may be a* follows :]
And it being made to appear to the satisfaction of the court, that the
said . who gives notice of his intention so to appeal, in his trust capacity,
is the [administrator] of , deceased, and has given bond in this state,
with sureties according to law. no undertaking for such appeal is required
of him.
WHERE OXE PARTY'S INTEREST is SEPARATE AND DISTINCT AND
HE DESIRES TO APPEAL His PART OF THE CASE.
[Form 434. 5232.]
A. B. )
No. .] ft. \ Judgment and Notice of Appeal by .
C. D et als )
And thereupon comes the said and enters notice herein of his in-
tention to appeal the part of this case in which he is interested to the
Circuit Court ; and the court doth find that his part of the case is separate
and distinct from that of the other parties defendant [or, plaintiff;] and
the court doth fix the penalty of the appeal bond at dollars, condi-
tioned and payable to said , according to law. And as to the papers
and pleading?, and the supplying of copies thereof, the court doth make
the following order : [Here state /.] [It will be made in view of the division of
713
ike COJK for ike p*rp*t f appeal.'] [Form 433 will fvrmuk At atkcr mtetstary
for tkt emtry.
APPEAL BOND OB UNDERTAKING CONVERTIBLE TERMS (Socnov
4947) BOSD.
[Pom 435. {5231.]
Know all men by these presents, that we, as principal, and aad
as sureties, jointly and sererally hereby acknowledge onrselrce to owe
and beindebted to ,in the sum of dollars, for the payment of which,
well and truly, to amid , his heirs, executors, administrators, and iaiifin,
we hereby obligate and bind ourselves, our heirs, executors, and admi nistra-
tors. Sealed with our seals, ami dated as hereinafter stated. [Pritxxtc*eaLi
are abotukaL \ 4 ] Provided that the conditions of this bond and obli-
gation are such that, whereas, in a certain civil action. No. : . lately
pending in the Court of Common Pleas of County, Ohio, wherein
was plaintiff and defendant, and in which action, after judg-
ment rendered, the said caused to be entered in due form of law
notice of his intention to appeal said BMMB to the Circuit Court of said
County, Ohio; whereupon the court fixed the amount of the appeal
bond at dollars, all of which will more fully and at huge appear, ref-
erence being had to the record of said cause, which is hereby had and
. ; . -
Now, if the said shall abide and perform the order and judgment
of the said Circuit Court of taid county, and chall pay all money, eosta.
and damages which may be required of. or awarded against, him by such
said Circuit Court, then this obligation to become and be void ; otherwise
to be and remain in full force and virtue in law.
Witness our bands and seals this day of . in the year of our
Lord one thousand eight hundred and
. Principal
The within {or, foregoing] bond approved by me. this day of .
18. . Clerk of Court of Common Pleas
[Or, . Judge of Court of Common Pleas.]
UXDEKTAJtWO.
:Form438. {1231]
Court of Common Pleas of County. Ohio.
A 3 Plaintiff. 1 r-nd^ruking in Appeal. * Principal and
~D ] 'lUndantJ
Whereas, in this case, on the day of . A. . 1* [r. at the
term, A. n. IS ,of said Court of Common Pleas] in said court a judg-
ment was rendered, and amid canard to be entered, in doe form of
714 CODE PRACTICE AND PRECEDENTS.
law, notice of his intention to appeal said cause to the Circuit Court of
said county ; whereupon the court fixed the amount of the appeal bond at
dollars, conditioned, and with sureties to the approval of the clerk
of said court, according to law.
Now, therefore, we, , as principal, and , as sureties, hereby un-
dertake and bind ourselves to said , in the sum of dollars, that
, said appellant, shall abide and perform the order and judgment of
the said Circuit Court, and shall pay all money, costs, and damages which
may be required of, or awarded against, him by such said Circuit Court.
In witness whereof, we hereunto subscribe our several names this
day of , A. D. 18 . , Principal.
~' ! Sureties.
The above undertaking approved by me, this day of , 18 .
, Clerk of Court of Common Pleas.
WHEN INTERLOCUTORY ORDER DISSOLVING AN INJUNCTION is AP-
PEALED FROM (SECTION 5226).
[Form 437. 5226.]
AT? )
^r - (Order Dissolving Interlocutory Injunction Notice
' C'D \ ot ' A PP eal - etc -
\_Entry of notice of intention to appeal, etc., as in Form 433, and add:"]
And this order dissolving said interlocutory order of injunction ia
hereby suspended for ten days.
\If the court refuses to suspend the order, so soon a? the case is appealed, the
appellant may give notice, in writing, to the adverse party, of application and the
time and place thereof, to the Circuit Court or two judges thereof, to suspend the
order dissolving such injunction. A motion should also belled in the Circuit
Court for such suspension. Affidavits can be used anil the notice should specify
that they will be, as the grounds for c temporary injunction, pending the final deter-
mination of the case in the Common Picas, may thus be determined at one hearing.^
The undertaking for such appeal can be drawn from Form 436.
The case, to be tried on its merits, will remain in the Common Pleas
Court. Only the grounds for a temporary injunction will be in the Cir-
cuit Court for determination.
CIRCUIT COURT ENTRIES.
[Form 438.]
A. B. )
No. .] vs. > Appeal Order Suspending Order Dissolving Injunction.
C. D. ]
In this case, the interlocutory order of the Court of Common Pleas, dis-
solving the injunction, is hereby * suspended until the final trial and de-
APPEAL TO CIRCUIT FROM COMMOM PLEAS COURT, ETC. TI3
termination of said cause upon its merits by said Court of Common Pleas
[or, if suspension is refuted, say after the *: refused to be suspended*].
\Renderjudgmentfor costs.]
And it is further ordered that a copy of this entry be forthwith certified
by the clerk of this court to said Court of Common Pleas.
WHKN PARTY GIVING NOTICE OF APPEAL, DIES BEFORE PERFECT-
ING IT.
[Form 439. 5229.]
A R \
JJ Q I Notice of Intention, etc., to Appeal, etc., of , Ad-
( . , , ministrator of , Deceased.
This day came . and it being made to appear that he was, on the
day of , A. i>. 18 , duly appointed and qualified, and gave bond
with sureties approved by the Probate Court of County, according to
law, as the administrator of , deceased, who died before perfecting his
appeal herein, and gives notice of his intention, as such said administrator,
to appeal this causo to the Circuit Court of this county ; and said , as
such said administrator of said . deceased, is made a party to the said
judgment herein, and his appeal is hereby perfected.
If any essential fact exists which prevents a valid appeal by such
representative, it can he availed of in the Circuit Court by a motion
to dismiss the appeal. "
\\ lies- SURETY IN THE APPEAL BOND HAS REMOVED FROM THE
STATE, OR THE SAME is INSUFFICIENT IN FORM OR AMOUNT
(SECTION 5233).
[Form 440. '2:w.]
Circuit Court of County, Ohio.
A. B., Plaintiff, I
No. .] v*. [ Motion to Require New Appeal Bond, etc.
<'. !>., Defendant, j
And now comes the said .and moves the court to order a change
or renewal of the undertaking for appeal herein, or that a new undertak-
ing be given, with security to the approval of this court, or the rl.-rk
thereof, for the following reasons:
1. , the surety in said appeal bond, has removed from :md is mm-
:i non-resident of this state.
'1. r-:iid undertaking is insufficient in amount
3. The same is insufficient in form in this, to wit : [ II, r,- state what condi-
tion it does not contain, or the informality. ]
On failure to comply with such order, the said asks that the appeal
be dismissed, and for all proper relief iu the premises.
, Attorney for .
716 CODE PRACTICE AND PRECEDENTS.
ORDER UPON SUCH MOTION.
[Form 441. 5233.]
A. B. )
No. .] vs. > Order for New Appeal Bond.
C. D. i
The motion filed herein to require- the appellant to change, renew, or
give a new appeal bond herein, is * granted.
It is, therefore, ordered by the court that said , within days
from this date, give a new bond or undertaking in appeal, in the sum of
dollars, payable to , the appellee, conditioned according to law,
with security to be approved by this court, or the clerk thereof; and in
default of so doing that the appeal herein be dismissed at the costs of the
appellant.
\_Tf the motion is overruled, instead of the word " granted " after the *, add the
word " denied," and the entry will be complete.^
The Court of'Comraon Pleas will, on notice of intention to appeal being
entered upon the journal, order a stay of execution upon the judgment
for thirty days. Until an appeal bond is given and accepted, execution
may issue upon a judgment, notwithstanding the defendant has given
proper notice of his intention to appeal.
The order to stay execution may follow the notice in the entry, as
follows :
[Form 442. 5234.]
And, on motion of said , execution is ordered to be stayed herein
for thirty days, on the following terms, for the security of the judgment
creditor being complied with, to wit : [Here state the terms of granting such
stay.']
On appeal, new parties may be made as in actions pending in the
Common Pleas. Amendments to pleadings will be permitted for good
cause shown and for the purpose of doing full justice to the parties.
They should not be as liberally allowed as in the lower court, as there
is danger of manufacturing a defense, etc., after the trial below hasshown
that those relied on can not be sustained, and the same rule will apply
to a petition or reply as to an answer.
APPEALS TO CIRCUIT FROM COMMON PLEAS COURT, ETC. 717
[Form 443. g 5225.]
A. B. )
No. .] v*. V Amendment of Petition [Answer, or Reply.]
)
On his motion the .herein, is granted leave to amend his ,
herein Amendment to [or, amended ] filed this day by leave of the
court.
WHEN A CASE 19 APPEALED IN WHICH THERE IS AX INJUNCTION.
Such appeal does not dissolve the injunction, as before the statute
(section 5235) ; but this can only be done on notice to the adverse
party, upon motion, by the Circuit Court, or two judges thereof. The
court will hear affidavits, and the notice should state that affidavits
will be used on the hearing of the motion, the form of which will
sufficiently suggest itself, if previous portions of this work have been
observed. Prior to the Code, an appeal vacated the entire judgment.
By sections 5235, 5236, the judgment is "suspended," and its liens
and the injunction part of it preserved.
[Form 444. 5235.]
A. B. |
No. .] vs. > Suspension of Judgment of Injunction.
C. D. j
The motion of said to suspend the injunction specified in the judg-
ment of the said Court of Common Pleas, during the pendency of this
case on the appeal in this court, is * granted by the court [or, by and
, two judges of this court]. [Or, if overruled, after the *, and in lieu of
the word granted, write denied.]
DAMAGES AWARDED BECAUSE OF THE APPEAL WHEN JUDGMENT is
SUBSTANTIALLY THE SAME AS THAT OF THE COMMON PLEAS (SEC-
TION 5238).
1. Xo DAMAGES WHKX COURT SATISFIED OF REASONABLE GBOCKD FOR APPKAL.
[Form 445. 5238.]
A. B. |
No. .] tw. > Judgment
C. D. )
[Here give the judgment of the court, and add :]
And the court is satisfied that there was reasonable ground for the ap-
peal of this cause.
718 CODE PRACTICE AND PRECEDENTS
2. WHEN NOT REASONABLE GROUND, EOT THE APPEAL NOT TAKEN FOR DELAY
MERELY.
[Form 446. 5238.]
A. B. |
No. .] vs. > Judgment.
C. D. )
And it is further adjudged by the court that said recover against
the said the further sum of five per cent upon the said sum of
dollars, the amount of the judgment rendered by said Court of Common
Pleas, as damages by reason of the appeal herein.
3. WHEN APPEAL is FOR DELAY MERELY.
[Form 447. 5238.]
A. B. )
No. .] vs. > Judgment.
C-D. J
And the court find that the appeal herein was for delay merely, and
adjudge that the said recover against the said the further sum
of ten per cent upon the said sum of dollars, the amount of the judg
ment rendered by said Court of Common Pleas, as damages by reason of
the appeal herein.
Where the judgment is not for money, or is for nominal damages,
the damages that may be awarded on account of the appeal can not
exceed $200. The entry in such cases will be suggested by Forms
445-447.
All appealed cases are tried and determined independently of, and
without reference to, the trial or judgment of the lower court, or tri-
bunal, and as if they were )riginally brought in the appellate court,
and never had been tried or determined.
APPEAL FROM THE PROBATE TO THE COMMON PLEAS COURT UNDER
SECTION 6407.
When the party is required to give an appeal bond, it will be ad-
visable to make the notice of intention to appeal part of the entry of
the final order or judgment to be appealed from, and fix the amount
of the appeal bond in such entry when necessary, or required ; and
when such appeal bond is given, its execution and acceptance should
be stated'on the journal of the Probate Court. When money is di-
rected to be paid, the bond should be in double that amount, and in
other cases in such reasonable sum as the Probate Court shall prescribe.
APPEALS TO CIRCUIT FhOM COMMON PLEAS COURT, ETC. J19
UNDERTAKING FOR APPEAL.
[Form 448. 6408.]
Whereas, in the matter of [here state the name, designation, or style of
the cause], being cause No. , in the Probate Court of County, the
folloxving order, decision, and decree was entered by the said Probate
Court, on the day of , A. D. 18 , to wit: [Here give the same in
substance ]
And , desiring to appeal this cause to the Court of Common Pleas
of said county, of which intention he, at the time, gave due notice
[and the court having fixed the amount of the appeal bond at dol-
lars when the amount is required to be Jfxed by the court].
Now, therefore, we, as principal, and and as sureties,
hereby undertake and bind ourselves, jointly and severally, to [the
adverse party in interest], in the said sum of dollars, conditioned that
the said , the appellant, shall abide and perform the order, judgment,
and decree of the said Court of Common Pleas, and shnll pay all moneys,
costs, and damages, which may be required of or awarded against him,
the said , by said Court of Common Pleas.
In witness whereof, we have hereunto severally subscribed our names,
this day of , A. D. 18 . , Principal.
> Sureties.
The within [or, above; or, foregoinj] bond app'roved by me, this
day of , A. D. 18 . , Probate Judge of County.
WHEN ONE IN A FIDUCIARY CAPACITY is A PARTY, AND HAS GIVEN
BOND IN THIS STATE AS REQUIRED BY LAW, AND APPEALS IN THE
INTEREST OF THE TRUST (SECTION 6408) WRITTEN NOTICE OF IN-
TENTION TO APPEAL.
[Form 449. 6408.]
Probate Court of County, Ohio.
No. ] In the Matter of .
[Style the case, correctly.]
And the said , as [the administrator of the estate of , deceased],
who has duly given bond within this state for the faithful discharge of his
duties as such said [administrator], now hereby gives notice to this court
that he intends to appeal this cause, in the interest of his said trust,
within twenty days, to the Court of Common Pleas of said counfy ;
and for such purpose he files this notice.
, as Administrator of , Deceased.
This notice should be filed in the cause, and a journal entry made
of the fact and date of such filing, as it is a substitute for an appeal
bond, and necessary to take aud perfect the appeal. Section 6409 pre-
720 CODE PRACTICE AND PRECEDENTS.
scribes what the probate judge shall do after the giving of the bond,
or such notice.
CERTIFYING BACK TO PROBATE COURT THE PROCEEDINGS OF THE
COMMON PLEAS COURT (SECTION 6410).
[Form 450. 6410.]
The State of Ohio, County, ss.
To the Probate Judge of said County, Greeting:
I, , as clerk of the Court of Common Pleas of said county, in
pursuance of and compliance with the statute in such case made and pro-
vided, herewith certify to you the authenticated transcript of the orders,
judgment, and proceedings of the said Court of Common Pleas, in cause
No. , in said Court of Common Pleas, being: [Here style the case.]
In witness whereof, I have hereunto set my hand and affixed the seal
of said Court of Common Pleas, this day of , A. i). 18 .
[SEAL.] . Clerk of County Common Pleas.
[Here attach the transcript, duly certified by the clerk under the seal of '.he
court.~\
APPEAL FROM REFUSAL TO ADMIT WILL TO PROBATE.
[Form 451. 5934.]
Probate Court of County, Onio.
No. .] In the Matter of the Probate of the Will of , Deceased.
And now comes , a person aggrieved by the refusal of this court
to admit the will of said , deceased, to probate, and appeals from such
decision of this court to the next term of the Court of Common Pleas,
within and for said county, to be holden, according to the statute in
such case made and provided. ,
By , his Attorney.
Note. This notice should be filed as it is the act of appeal, and a condition
precedent to the jurisdiction of the Common Pleas. Its filing should also be
noted in the journal of the Probate Court.
The certificate and transcript, together with the will and testimony,
and the final order of the Court of Common Pleas, are to be sent back
to the Probate Court, and there recorded. Form 450 will be a suffi-
cient guide to the clerk.
APPEAL OF EXECUTOR OR ADMINISTRATOR FROM REJECTION OF HIS
CLAIM AGAINST THE ESTATE.
An executor or administrator who has a claim against the estate must
prove it to, and have it allowed by, the Probate Court to entitle him-
self to retain it out of the assets in his hands. 6099.
When his claim is not allowed to an amount exceeding $100, he may
APPEALS TO CIRCUIT FROM COMMON PLEAS COURT, ETC. 721
appeal to the Court of Common Pleas. He should have his notice of
intention to appeal noted on the journal of the Probate Court, with
the entry fixing the amount of the appeal bond, and also the giving
of the appeal bond. The appeal must be perfected by giving the bond
in tioelve days after the entry of the order of disallowance. 6101.
No pleading need be filed in the appellate court, unless ordered by the
court to be filed. Any interested party may appeal.
UNDERTAKING FOR APPEAL.
[Form 452. \ 6101.]
Probate Court of County, Ohio.
In the Matter of the Estate of , Deceased,
Whereas, the claim for dollars of , as [administrator] of the
said , deceased, against said estate, has been disallowed and rejected
by the said Probate Court of said county [to the amount of dol-
lars]; and said has given due notice of his intention to appeal
said cause and matter to the Court of Comman Pleas of said county,
according to the statute in such case made and provided, his appeal bond
having been fixed at dollars by said Probate Court.
Now, therefore, we, , as principal, and , as surety, hereby under-
take and bind ourselves, jointly and severally, to the State of Ohio, for
the use and benefit of whom it may concern, in the said sum of dol-
lars conditioned that the said , the appellant, shall pay all costs that
may be awarded against him in the eaid Court of Common Pleas.
In witness whereof, we have hereunto severally subscribed our names,
this day of , A. D. 18 . , Principal.
, Surety.
The within [or, above] undertaking approved by me, this day of
, A. D. IS . , Probate Judge of County.
For certifying transcript, etc. , back to the Common Pleas, see Form
450.
APPEALS IN CASES OP APPROPRIATIONS OF PRIVATE PROPERTY TO
PUBLIC USE BY MUNICIPAL CORPORATIONS (SECTIONS 2254, 2255,
2256) NOTICE OF APPEAL TO BE FILED WITHIN TEN DAYS.
[Form 453. g 2255.]
Probate Court of County, Ohio.
[Style the ca*e.~\
And now comes , a party interested in the inquiry and assessment
herein, and files with the probate judge of said county this notice of his
46
722 CODE PRACTICE AXD PRECEDENTS.
intention to appeal this cause to the Court of Common Pleas of said
county, according to the statute in such case made and provided.
By , his Attorney.
See note to Form 451.
UNDERTAKING FOR APPEAL WITHIN TWENTY DAYS.
[Form 454. $ 2255.]
Whereas, in the cause, No. , of [here style the caase~] t in the Probate
Court of County, and State of Ohio, , a party interested in the
inquiry and assessment therein, has filed, according to law, notice of his
intention to appeal from the final order of the said Probate Court to the
Court of Common Pleas of said county, made in said cause on the
day of , A. D. 18 , determining the rights of said , the appel-
lant, and the said court having duly fixed the amount of the appeal bond
at dollars.
Now, therefore, we, , as principal, and , as surety, hereby,
jointly and severally, undertake and bind ourselves to [the adverse
party] in the said sum of dollars, conditioned that the said , the
appellant, shall abide by and perform the order, judgment, and decree
of the Court of Cornmen Pleas, and pay all costs and moneys which may
be awarded against the said appellant by said Court of Common Pleas.
In witness whereof, we have hereunto severally subscribed our names,
this day of , A. n. 18 . , Principal.
, Surety.
Approved by me, this day of , 18 .
, Probate Judge of County.
For certificate, etc., from Common Pleas back to Probate Court, see
Form 450.
The municipal corporation can not appeal. 2259.
The undertaking for appeal under the one mile assessment pikes
(sections 4784, 4774-4828) can readily be framed from preceding forms.
APPEALS FROM JUDGMENTS OF JUSTICES OF THE PEACE AND MAYORS
WITHIN TEN DAYS FROM ENTRY OF JUDGMENT UNDERTAKING
FOR APPEAL.
[Form 455. % 6584. From Swan's Treatise (12th ed.), p. 241.]
A. B. )
vs. > Judgment before G. H., J. P.
C. D. j
Whereas, on the day of , A. D. 18 , the said A. B. obtained
judgment against the aid C. D., on the docket of G. H., J. P., for
dollars and cents, and costs, taxed \_etc.~\, and the said C. D. intends
to appeal therefrom to the Court of Common Pleas of County.
APPEALS TO CIRCUIT FROM COMMON PLEAS COURT, ETC. 723
Now. tlu-refore, I, S. S.,of .hereby promise and undertake, in the sum
and to the amount of [here insert at least fifty dollars, and not less than double
the amount of the judgment and costs of the appellee} dollars, that the said ap-
pellant [or say, appellants], if judgment be adjudged against [him, or say,
them or either of them], on the appeal, will satisfy such judgment and
costs; and also that said appellant [or say, appellants] will prosecute [his,
or say, their] appeal to effect, and without unnecessary delay.
[Date, signed, etc.'] S. 8.
Taken, executed, and acknowledged before me, and surety approved,
thn day of , A. i). 18. G. II., J. P.
WHEN APPELLANT, AFTER GIVING BOND, FAILS TO PERFECT HTH
APPEAL.
[Form 456. 6588.]
A. B., Plaintift, )
No. .] vi. \ Appeal from G. H., J. P.
C. D., Defendant. ) ,
In this case, the appellant, C. D., having failed to deliver the transcript
and other papers to the clerk of this court, and have this appeal dock-
eted, on or before the thirtieth day from the rendition of the said judg-
ment by said justice of the peace, this day, at the term of this court next
after the expiration of said thirty days, came the said A. B., and, on his
motion, was granted leave to file, and filed herein, a transcript of the pro-
ceedings and judgment of such said justice, in said cause, which, on mo-
tion of said A. B., is docketed in this court; * and, on his application, it
is adjudged by the court that the said A. B. recover against the said C. D.
the said sum of dollars, the amount of said judgment so rendered by
uaid justice of the peace, with interest from the day of , A. D.
18 [the date of the justices judgment], together with all costs that have ac-
crued in this court, taxed at dollars, and execution is hereby awarded
upon this judgment.
[Or follow above form to the *, and add, instead of what follows : And with
the consent of said appellee, said appeal is hereby dismissed, at the costs
of the said appellant, C. D., and this cause is ordered to be remanded to
said G. II., said justice of the peace, to be proceeded in by him as if no ap-
peal had been taken.]
The clerk will scud to the justice a certified copy of such entry in
the Court of Common Pleas. And if both parties fail to enter such
appeal, within the limited time, the clerk can certify the fact to such
justice, who will then proceed as if no appeal bond had been given.
6590.
724 CODE PKACTICE AND PRECEDENTS.
WHEN PLAINTIFF APPEALS AND FAILS TO FILE PETITION, ETC.
[Form 457. 6589.]
A. B., Plaintiff, ]
No. .] vs. > Judgment for Defendant, $ .
C. D., Defendant. )
In this case, the said A. B., appellant, having failed to file a petition*
and otherwise neglected to prosecute his action to final judgment, is
hereby nonsuited. And thereupon it is adjudged by the court that the
said C. D. recover against the. said A. B. the sum of dollars, with in-
terest from the day of , A. D. 18 , the amount of the judgment
rendered against him by said justice of the peace, and for the costs of
this suit, taxed at dollars; and execution is hereby awarded on this
judgment.
The rule day for filing a petition, in a case appealed .from a justice,
is the third Saturday after the thirty days limited for filing the tran-
script ; the answer day is the third Saturday, and the day for reply the
fifth Saturday, thereafter. 6598.
WHEN DEFENDANT APPEALS AND PLAINTIFF FAILS TO FILE His
PETITION.
[Form 458. 6592.]
A. B., Plaintiff, ]
No. .] vs. > Judgment for Defendant, $ .
C. D., Defendant. J
In this case, the plaintiff having failed to file a petition, and otherwise
has failed to prosecute his action to judgment, the said defendant now
comes and files his answer herein, setting up his demands against the
plaintiff therein mentioned; anil thereupon, the plaintiff still failing to ap-
pear or reply to such said answer, arid having made default in the premises,
the defendant submitted the cause for trial to the court waiving a jury
upon said answer, and the evidence adduced by him, upon which the
court doth adjudge that the said defendant recover against the said plaint-
iff the sum of dollars, together with all costs that have accrued be-
fore said justice of the peace, taxed at dollars ; and all the costs
that have accrued in this court, taxed at dollars, for which execution
is hereby awarded.
If, after appealing, the defendant considers that he has no defense,
and wishes to avoid the additional cost of a trial, be may, on motion,
the plaintiff consenting thereto, suffer judgment to be rendered against
him for the amount rendered by the justice, and for all costs that ac-
crued before the justice and in the Court of Common Pleas. Such
APPEALS TO CIRCUIT FROM COMMON PLEAS COURT, ETC. 725
judgment can be drawn without difficulty by any one with the statute,
section 6592, before him.
MOTION TO QUASH APPEAL.
[Form 459. 6594.]
Common Pleas Court of County, Ohio.
A B., Plaintiff, j
No. .] vs. > Motion to Quash Appeal.
C. D., Defendant. )
And now comes the said and moves the court to quash the appeal
herein, by reason of irregularity in taking and consummating the same, for
the reasons following:
First. [Bere state the grounds, numbering them.'}
, Attorney for .
ENTRY GRANTING MOTION AND QUASHING THE APPEAL.
[Form 460. 6594.]
A. B. ]
No. .] vs. > Appeal Quashed.
C. D. J
The motion heretofore filed herein to quash the appeal is * granted.
And it is hereby ordered by the court that the said appeal herein be
and the same is hereby quashed by reason of irregularity in taking and
consummating the same, and the following are the causes for quashing the
same:
First. [Here state the causes as found by the court.]
It is further ordered by the court that said appeal be and the same is
hereby dismissed.
\_Ifthe court acrfuired jurisdiction, render judgment for costs against the appellant ;
if not. no judgment for costs can be rendered.'}
CHANGE OR RENEWAL OF UNDERTAKING IN APPEAL WHEN SURETY
INSUFFICIENT, OR THE SAME is NOT SUFFICIENT IN FORM OR
AMOUNT.
[Form 461. 6595.]
A. B. )
No. .] vs. > Order for Renewal of Undertaking for Appeal.
C. D. j
On motion to the court by , the appellee herein, and it being made
to appear to the court that , the surety in the appeal bond herein, is
insufficient [or, that the undertaking for appeal herein is insufficient in
amount or in form], it is hereby ordered by the court that said , the
appellant, within days from the date of this entry, cause to be ex-
ecuted an undertaking for appeal herein, in the sum of dollars, con-
ditioned according to law, with sufficient surety to the approval of the
clerk of this court
726 CODE PRACTICE AND PRECEDENTS.
And when such undertaking is so given and accepted, it is ordered that
the clerk certify the same to said G. H., said justice of the peace.
In default of such undertaking, ordered, that the appeal be dismissed.
APPEAL FROM ARBITRATION BEFORE A JUSTICE OF THE PEACE.
[Form 462. 6570. Swan's Treatise (12th ed.), p. 241.]
-v _ -i ' ' [ Judgment on Award upon the Docket of G. H. f
C. W i>. J J " R
The State of Ohio, County, ss.
The said , party to said suit, makes oath and says, that the award in
the above cause was, as he verily believes, obtained by fraud and other
undue means. .
Sworn to and subscribed before me, this day of , 18 .
G. H., J. P.
For appeal bond, see section 6584 ; arbitrations before justices of the
peace, sections 6566-6569.
On appeal the first trial before the Court of Common Pleas will be
whether or not the award was obtained by fraud, or other undue
means. If this be found against the appellant, the court will render
judgment upon the award, and for the costs of suit, and award ex-
ecution as in other cases. 6572.
If it be found that such award was obtained by fraud, corruption,
or other undue means, the court will set aside the award and retain
the case for trial on its merits, as in other cases of appeal. 6571.
JUDGMENT ON APPEAL, WHERE No FRAUD is FOUND.
[Form 463. 6572.]
' A. B. )
No. .] vs. > Appeal Judgment on Award, $ .
C. D. J
This day this cause came on to be heard upon the appeal to set aside
the award herein, and the court having heard the evidence adduced by
the parties respectively, and the arguments of their counsel, and being
fully advised in the premises, is of opinion that said award was [not] ob-
tained by fraud, corruption, or other undue means;* and thereupon, on
said award, it is adjudged by the court that said recover against said
the said sum of dollars, together with his costs of suit, taxed
at dollars, and for which execution is hereby awarded.
APPEALS To riKCUIT FROM COMMON PLEAS COURT, ETC. 727
WHERE FRAUD is FOUND IN OBTAINING THE AWARD.
[Form 464. 6571.]
A. B. |
No. .] vs. >. Judgment Setting Aside Award.
C. D. j
[Follow above form to *, leaving out t/>e words " not " and " opinion," and, for
the latter, insert " satisfied," and add in lieu of above entry] : And thereupon
it is hereby ordered by the court that said award he and the same is here-
by set aside and held for naught, and it is further ordered that this
cause be heard and determined on its merits, as in other cases of appeal.
The parties will be required to file pleadings as the court may order.
APPEAL FROM COMMISSIONERS OF COUNTY.
The party appealing from an order of the board, should within fif-
teen days after the order is made, present an entry of his intention to
appeal, and take a certified transcript of the record of their proceed-
ings in such matter, and file the same in the office of the clerk of the
Common Pleas Court; and when such appeal is filed, notify the com-
missioners personally of it, at least ten days before the time of the
trial.
NOTICE TO BOARD OF COMMISSIONERS.
[Form 465. 896.]
To the Board of Commissioners of County, Ohio :
Gentlemen : You are hereby personally notified that I have appealed
from to the Court of Common Pleas of said county, from your order,
made on the day of , A. D. 18 , in the matter of \here state, the
transaction and nature of the orefer].
Said appeal was filed in said court on the day of , 18 , and
will be heard and determined at the next session of said Court of Com-
mon Pleas hereafter to be holden in said county.
You will act accordingly.
[Date ] , Appellant.
APPLICATION TO COURT OF COMMON PLEAS FOR ASSESSMENT OF
DAMAGES TO CLAIMANTS ON ACCOUNT OF PROPOSED IMPROVE-
MENTS BY MUNICIPAL CORPORATION JURISDICTION CONCURRENT
WITH PROBATE COURT.
[Form 466. 2317.]
To the Court of^ Common Pleas of County, Ohio :
The [name of the municipal corporation], within said county, by
\city solicitor or mayor of said ], hereby represents that the council of
said municipal corporation have duly, in accordance with the require-
728 CODE PRACTICE AND PRECEDENTS.
ments of law, passed an ordinance for making the following improve-
ment, to wit: \jiere state }he proposed improvement] ; and has also determined
by said ordinance that the damages resulting to the property of persons
thereby shall be assessed before commencing the same, and that the fol-
lowing claims for damages have been filed within the time limited there-
for by law, to wit: [Here set forth the name of each claimant for damages, and
the description of the property claimed to be damaged, as near as may be, and the
amount of each claim.']
Wherefore, application is hereby made for a jury, according to the stat-
ute in such case made and provided, for the assessment of such damages,
etc. , City Solicitor.
[Or, Mayor of .]
The claimants of damages should be notified of the application, an/1
of the time and place for the inquiry.
The court will, in granting such application, fix such time and place,
and direct proper notice thereof to be given to such claimants; and a
judge may, in vacation, appoint a special term of the court to hear
such inquiry. The action of the court upon the application will be
entered upon the journal. The subject will be more fully treated
under section 2236.
APPROPRIATION OF PROPERTY FOR PURPOSES OF A MUNICIPAL COR-
PORATION (SECTIONS 2232, 2233, 2236) JURISDICTION CONCUR-
RENT WITH PROBATE COURT.
Sections 2232 and 2233 define the purposes for which u city or vil-
lage may appropriate, enter upon, and hold real estate. They are
twenty-two in number. To condemn real estate two-thirds of all the
members elected to the council must concur in the by-law, ordinance,
or resolution directing the same. . 2234. The yeas and nays must be
recorded upon the passage thereof. 2235. After such passage appli-
cation in writing shall be made to the court, etc. 2236. Notice of
the time and place of such application must be given personally, in
the ordinary manner of serving legal process, to all the owners or
agents of owners of the property sought to be condemned, resident in
the state, and by publication for three weeks next preceding the time
of the application, to non-residents of the state. 2237. (Holders
of the legal title are owners within the meaning of the statute, not
mortgagees, or equitable owners.) If notice has been served or pub-
lished five days before the time of the application, the court or judge
will set the time for the inquiry into the assessment and compensation,
by a jury of twelve, unless the parties agree to a less number. 2238.
The court, or a judge thereof, may fix a special term to hear such appli-
APPEALS TO CIRCUIT FROM COMMON PLEAS COURT, ETC. 729
cation, and the jurors are to be summoned in the same manner as petit
jurors in other cases. 2239. The inquiry, etc., must be made at the
time set, unless continued for good cause. 2241. A view of the premi-
ses will be ordered, when desired by the jury or a party. 2242.
If any of the owners are infants or insane, guardians ad litem must be
appointed for them. 2243. The corporation may be required to
file a more full and accurate description of the property, with maps,
plaL<, surveys, etc. 2244. The jury's assessment must be in writing,
signed by the jury, finding the amount payable to each owner by name,
or designating each lot or parcel of land. The owners of the real
estate have the right to open and close the evidence and argument, two
counsel only having the right to be heard for the corporation or the
owners of any separate lot or tract, etc. 2245. The jury are sworn
to make the whole inquiry, but may be allowed to return a verdict for
part, and be discharged as to the residue, etc. 2246. The court
makes an order for the payment or deposit of the money by the cor-
poration, and designates the persons entitled to receive the same. Ad-
verse claimants for the same money may interplead. 2247. The
court may enforce the taking of possession by the corporation, if asked
by it, by an order, etc. 2248. The costs are to be paid by the cor-
poration. 2249. No delay in making the assessment or in taking pos-
session will be occasioned by any doubt as to ownership, the money be-
ing deposited according to the order of the court. 2250. For bond
of interested party to pay compensation, see section 2251. From both
Common Pleas and Probate Court there is a remedy by petition in
error on overruling motion for a new trial. 2252. How execution
is suspended in such case. 2253. From the Probate Court an ap-
peal may be taken to the Common Pleas. 2254. And see sections
2255-2259. Possession must be taken by the corporation within six
months after the assessment, or the proceedings abate. 2260. But
new proceedings may be instituted in such event, the former proceed-
ings not being a bar. Cincinnati Soutliern Railway v. Haas, 42 O. S.
239. The provisions of these sections apply to hamlets as fur as prac-
ticable. 2261.
APPLICATION OF MUNICIPAL CORPORATION TO CONDEMN PROPERTY
FOR USES MENTIONED ix SECTIONS 2232, 2233.
[Form 467. I 2236.]
To the Court of Common Pleas of County, Ohio :
The city of , by , city solicitor [or by , the mayor thereof], rv
spectfully represents that, on the day of , A. n. 18 , the council of
said city of , in the said county of , duly passed, by two-thirds of all
730 CODE PRACTICE AND PRECEDENTS.
the members elected thereto, the following resolution, which is in full
force: [Here copy the ordinance.] Also that the following described prop-
erty is sought to be taken, in pursuance of said resolution, for the object
proposed thereby. The following named persons as the owners of each
of said lots and parcels of real estate, to wit: [Here describe each parcel,
giving the name of its owner. ~\
Wherefore, said city of asks that the time and place of hearing
such application to condemn said property may be fixed, and such pro-
ceedings be further had therein, according to the statute in such case
made and provided. , City Solicitor of the City of .
The notice to owners, whether personally served, or served by pub-
lication, will contain the substance of the application, with a statement
of the time and place of the hearing.
UEMjVAL OP CAUSES FROM A STATE COURT, BTC. 731
CHAPTER XL.
REMOVAL OF CAUSES FROM A STATE COURT TO THE CIRCUIT
COURT OF THE UNITED STATES.
The Revised Statutes of this state, volume 2, pp. 1806-1810, con-
tain the provisions of the Revised Statutes of the United States
(sections 639-647) in relation to the removal of causes from state to
federal courts; but not the act of March 3, 1875, poet, largely super-
seding the former.
The right of such removal is now so frequently exercised that any
work on practice would be incomplete without properly treating this
subject.
hemoval of suils against aliens and non-residents, where value exceeds
$500. SEC. 639. Any suit commenced in auy state court, wherein the
amount in dispute, exclusive of costs, exceeds the sum or value of five
liiiinlred dollars, to be made to appear to the satisfaction of said court,
may be removed, for trial, into the Circuit Court, for the district where
such suit is pending, next to be held after the filing of the petition for
such removal hereinafter mentioned, in the cases and iu the manner
^tated in this section.
First. When the suit is against an alien, or is by a citizen of the state
wherein it is brought, and against a citizen of another state, it may be
removed on the petition of such defendant, filed in said state court at the
time of entering hi* appearance in said state court. (Time extended by act
of March 3, 1875, to term at which Hie cause could be first tried.)
Second. When the suit is against an alien and a citizen of the state
wherein it is brought, or is by a citizen of such state against a citizen
of the same, and a citizen of anotiier state, it may be so removed, as
against said alien or citizen of another state, upon the petition of such
defendant, filed at any time before the trial or final hearing of the
raiiM-, if, so far as it relates to him, it is brought for the purpose of
restraining or enjoining him, or is a suit in which there can be a final
determination of tho controversy, so far as concerns him, without tiie pres-
ence of the oilier defendants as parties in tin, cause. But such removal
shall not take away or prejudice the right of the plaintiff to proceed at
the same time with the suit in the state court, as against the other de-
fendants. (Repealed by act of March 3, 1875.)
Third. When a suit is between a citizen of the state in which it is
732 CODE PRACTICE AiND PRECEDENTS.
brought and a citizen of another state, it may be so removed on the
petition of the latter, whether he be plaintiff or defendant, filed at any
time before ilie trial or final hearing of the suit, if, before or at the time
of filing said petition, he makes and files in said state court an affidavit,
stating that he has reason to believe and does believe that, from preju-
dice or local influence, he will not be able to obtain justice in such state
court, (In force.)
In order to such removal, the petitioner in the cases aforesaid must,
at the time of filing his petition therefor, offer in said state court good
and sufficient surety for his entering in such Circuit Court, on the first
day of its session, copies of said process against him, and of all the plead-
ings, depositions, testimony, and other proceedings in the cause, or, in
said cases where a citizen of the state in which the suit is brought is
a defendant, copies of all process, pleadings, depositions, testimony,
and other proceedings in the cause concerning or affecting the peti-
tioner, and also for his there appearing and entering special bail in the
cause, if special bail was originally requisite therein. (No special bail
is required in Ohio, unless the party has been arrested for the claim.}
It shall thereupon be the duty of the state court to accept the
surety and to proceed no further in the cause against the petitioner,
and any bail that may have been originally taken shall be discharged.
When the said copies are entered as aforesaid in the Circuit Court, the
cause shall there proceed in the same manner as if it had been brought
there by original process, and 'the copies of pleadings shall have the
same force and effect, and in every respect and for every purpose, as
the original pleadings would have had by the laws and practice of the
courts of such state if the cause had remained in the state court.
SEC. 640. Any suit commenced in any court other than a Circuit or
District Court of the United States against any corporation other titan
a banking corporation, organized under a law of the United States, or
against any member thereof as such member for any alleged liability
of such corporation, or of such member as a member thereof, may be
removed, for trial, in the Circuit Court for the district where such suit
is pending, upon tJie petition of such defendant, verified by oath, stating
that such defendant has a defense arising under or by virtue of the
constitution or of any treaty or law of the United States. Such re-
moval, in all other respects, shall be governed by the provisions of the
preceding section.
(The Circuit Court of the United States, as well as the state courts,
has jurisdiction of suits by and against national banks established
in the district for which the court is held. 629, clause 10; 563,
clause 15, U. S. Rev. Stats.
REMOVAL OP CAUSES FROM A STATE COURT, ETC. 733
Section 641 provides for the removal of causes against persons de-
nied civil rights by such state.
Section 642 provides for release of the person imprisoned by the
state court, when he has complied with all the requirements for the
removal of the cause.
Section 643 relates to causes against revenue officers, etc.
Section 644 to removals of suits brought by aliens against a person
acting as a civil officer of the United States.
Section 645 provides for obtaining copies of records, etc., from the
htate court, when the same are refused.
Section 647 provides for removals of suits from state courts to Cir-
cuit Court, where the parties claim land under title from different
states.
Attachments, injunctions, and indemnity bonds in state court. SEC. 646.
When a suit is removed for trial from a state court to a Circuit
Court, as provided in the foregoing sections (647 not included), any at-
tachment of the goods or estate of the defendant by original process
shall hold the same to answer the final judgment, in the same manner
as by the laws of such state they would have been held to answer final
judgment had it been rendered by the court in which the suit was
commenced; and any injunction granted before the removal of the
cause against the defendant applying for its removal shall continue in
force until modified or dissolved by the United States Court into which
the cause is removed ; and any bond of indemnity or oilier obligation,
given by Hie plaintiff upon the issuing or granting of any attachment,
writ of injunction, or other restraining process, against the defendant
petitioning for the removal of the cause, shall also continue in full
force and may be prosecuted by the defendant and made available for
his indemnity in case the attachment, injunction, or other restraining
process be set aside or dissolved, or judgment be rendered in his favor,
in the same manner, and with the same effect as if such attachment,
injunction, or other restraining process had been granted, and euch
bond had been originally filed or given in such state court.
ffote. An attachment can not be issued in a suit brought in such Circuit
Court unless personal service of summons can be bad upon the attachment de-
fendant. This is not tbe case in the courts of Ohio, where property cun be
found to attach ; and in some states suits are begun by "original process" in
" foreign attachment." When such suita are afterwards removed to the federal
court, such attachments are preserved as fully as they would have been in the
state court.
734 CODE PRACTICE AND PRECEDENTS.
[Act of March 3, 1875, Sup. U. S. Rev. Stat., vol. 1, ch. 187, pp. 173-177.]
Circuit Courts Jurisdiction in civil cases. SEC. 1. That the Cir-
cuit Courts of the United States shall have original cognizance, con-
current with the courts of the several states, of all suits of a civil
nature at common law or in equity, where the matter in dispute ex-
ceeds, exclusive of costs, the sum or value of five hundred dollars, and
arising under tJie constitution or laws of the United States, or treaties made,
or which shall be made, under their authority, or in which the United States
are plaintiff's or petitioners, or in which there shall be a controversy be-
tween citizens of different states, or a controversy between citizens of the
same state claiming lands under grants of different states, or a contro-
versy between citizens of a state and foreign states, citizens, or sub-
jects. . . .
Removable from state to federal courts. SEC. 2 (639a) provides that in
such cases " either party may remove said suit into the Circuit Court
of the United States for the proper district. And when in any suit
mentioned in this section there shall be a controversy which is wholly
between citizens of different states, and which can be fully determined
as between them, then eitlier one or more of the plaintiffs or defendants
actually interested in such controversy may remove said suit into the
Circuit Court of the United States for the proper district."
SEC. 3 (6396). That whenever either party, or any one or more of
the plaintiffs or defendants entitled to remove any suit mentioned in
the next preceding section shall desire to remove such suit from a state
court to the Circuit Court of the United States, he or they may make
and file a petition in such suit in such state court before or at the term
at which said cause could be first tried and before the trial thereof for the
removal of such suit into the Circuit Court to be held in the district
where such suit is pending, and shall make and file therewith a bond,
with good and sufficient surety, for his or their entering in such Circuit
Court, on the first day of its then next session, a copy of the record
in such suit, and for paying all costs that may be awarded by the said
Circuit Court, if said court shall hold that such suit was wrongfully
or improperly removed thereto, and also for there appearing and en-
tering special bail in such suit, if special bail was originally requisite
therein, it shall then be the duty of the state court to accept said pe-
tition and bond, and proceed no further in such suit, and any bail that
may have been originally taken shall be discharged ; and the said copy
being entered as aforesaid in said Circuit Court of the United States,
the cause shall then proceed in the same manner as if it had been
originally commenced in the said Circuit Court ;
REMOVAL <>F CAUSES FROM A STATE COURT, ETC. 735
And if in any action commenced in a state court the title of land
be concerned, and the parties are citizens of the same state, and the
matter in dispute exceed the sum or value of jive hundred dollars, ex-
clusive of costs, the sum or value being made to appear, one or more
of the plaintiffs or defendants, before the trial, may state to the court,
and make affidavit, if the court require it, that he or they claim and
shall rely upon a right or title to the land under a grant from a state,
and produce the original grant, or an exemplification of it, except
where the loss of public records shall put it. out of his or their power,
and shall move that any one or more of the adverse party inform the
court whether he or they claim a right or title to the land under a grant
from some other state, the party or parties so required shall give such
information, or otherwise not be allowed to plead such grant, or give
it in evidence upon the trial ; and if he or they inform that he or
they do claim under such grant, any. one or more of the party moving
for such information may then, on petition and bond as hereinbefore
mentioned in this act, remove tlje cause for trial to the Circuit Court
of the United States next to be holden in such district ;
And any one of either party removing the cause shall not be al-
lowed to plead or give evidence of any other title than that by him
or them stated as aforesaid as the ground of his or their claim ;
And the trial of issues of fact in the Circuit Courts shall, in all
suits except those of equity and admiralty and maritime jurisdiction,
be by jury.
Section 4 (639c) preserves previous attachments, injunctions, bonds,
security, orders, etc., taken in the state court.
Section 5 (639d) provides for dismissing or remanding cases im-
properly removed.
Section 6 (639e) requires such suits to be proceeded in as if origi-
nally brought in such Circuit Court.
Section (639/) gives twenty days for filing the papers in the Circuit
Court when the term begins less than twenty days after proceedings in
the state court for removal ; and aho gives remedy if clerk of the
state court denies a copy of the record, etc.
SEC. 10. That all acts and parts of acts in conflict with the provis-
ions of this act are hereby repealed.
[Act of February 4, 1880, ch. 18, 8, 21 Stat. at Large, G4.1
Removals in southern district of Ohio. In all cases of removal of suits
from ,the courts of the State of Ohio to the courts of the United
States in the southern district of Ohio, such removal shall be to the
United States court in the division in which the county is situated
736 CODE PRACTICE AND PRECEDENTS.
from which the removal is made ; and the time within which the re-
moval shall be perfected, in so far as it refers to or is regulated by the
terms of the United States courts, shall be deemed to refer to the
terms of the United States courts in such division.
Terms of the United States courts in Ohio. SEC. 572. That the ses-
sions of the Circuit and District Courts of the United States in the
northern district of Ohio shall begin and be held as follows : In Cleve-
land, iu the eastern division, on the first Tuesdays of February, April,
and October of each year ; and in Toledo, in the western division, on
the first Tuesdays of June and December of each year. All acts and
parts of acts inconsistent herewith are repealed.
In the southern district of Ohio, at Cincinnati, on the first Tuesdays in
February, April, and October.
A term of the Circuit Court and of the District Court for the
southern district of Ohio shall be held at Columbus, in said state, on
the first Tuesdays of the months of June and December in each year.
NORTHERN DISTRICT OF OHIO WESTERN AND EASTERN DIVISIONS.
[Act of June 8, 1878, Rev. Stat. U. S., Sup., p. 338, ch. 169.]
SEC. 2. The northern district shall be, and hereby is, divided into
two divisions, to be known as the eastern and the western divisions of
the northern district of Ohio.
The western division shall consist of twenty-four counties, to wit:
Williams, Defiance, Paulding, Van Wert, Mercer, Auglaize, Allen,
Putnam, Henry, Fulton, Lucas, Wood, Hancock, Hardiu, Logan,
Marion, Wyandot, Seneca, Sandusky, Ottawa, Erie, and Huron ; and
the eastern division shall consist of the remaining counties in said dis-
trict. But no additional clerk .or marshal shall be appointed in said
district.
(The counties in the eastern division of the northern district are as
follows : Ashland, Ashtabula, Carroll, Columbiana, Crawford, Cuya-
hoga, Geauga, Holmes, Lake, Lorain, Mahoning, Portage, Medina,
Richland, Stark, Summit, Trumbull, Tuscarawas, Wayne.)
SOUTHERN DISTRICT OF OHIO WESTERN AND EASTERN DIVISIONS.
[Act of February 4, 1880, Rev. Stat. U. S., Sup., p. 509, ch. 18.]
Transfer of counties, etc. SEC. 1. That the counties of Union, Dela-
ware, Morrow, Knox, Coshocton, Harrison, and Jefferson, heretofore
composing part of the nortJiern district of Ohio, be transferred to, and
henceforth form a part of, the southern district of Ohio.
Counties in eastern and western division. SEC. 3. Said southern dis-
KKMOVAL OF CAUSES FROM A STATE COURT, ETC. 737
trict shall be, and hereby is, divided into two divisions, to be known
as the eastern, and western divisions of the southern district of Ohio.
Tlie eastern division shall consist of twenty-nine counties, to wit:
Union, Delaware, Morrow, Knox, Coshocton, Harrison, Jefferson,
Madison, Fayette, Franklin, Pickaway, Ross, Pike, Gallia, Jackson,
Meigs, Vinton, Athens, Hocking, Fairfield, Licking, Perry, Mus-
kingum, Morgan. Washington, Noble, Monroe, Belrnont, and Guern-
sey ; and the western division shall consist of the remaining counties
in the district.
But no additional clerk or marshal shall be appointed in said
district.
(The counties in the western division of the southern district are as
follows: Hamilton, Butler, Warren, Clinton, Highland, Clermont,
Adams, Brown, Scioto, Lawrence, Preble, Shelby, Champaign, Darke,
Clarke, Green, Miami, and Montgomery.
Note. Tde power of removal of causes from a state to a federal court is derived
from article 2, section 2, as modified by the eleventh amendment of the con-
stitution of the United States: "The judicial power shall extend to all cases, in
law and equity, arising under this constitution, the laws of tho United States
and treaties made, or which shall be made, under their authority; to all cases
of admiralty and maritime jurisdiction; to controversies to which the United
States shall be a purty; to controversies between two or more states; . . .
between citizens of different states; between citizens of the same state claiming
lands under granU of different states." . . .
Al>o the fourteenth amendment: "No state shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
Slates; nor shall any ttate deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction tbo
equal protection of the laws."
Also article 6, clause 2: "This constitution, and the laws of tho United States
which shall be made in pursuance thereof, and all treaties made, or which shall
be made, under the authority of tho United States, shall be the supreme law
of the land; and the judges in every state shall be bound thereby, any thing in
the constitution or laws of any state tc the contrary notwithstanding."
Amendments 9 and 10: '-The enumeration in the constitution of certain
rights shall not be construed to deny or disparage others retained by the
people."
"The powers not delegated to the United States by the constitution, nor pro-
hibited by it to the states, are reserved to the states respectively, or to the
people."
Rule to determine constitutionality of act of congress. Is power granted
expressly, or by necessary implication, in the constitution, to enact it?
If not, it is unconstitutional.
47
738 CODE PRACTICE AND PRECEDENTS.
Rule as to act of state legislature. Is power to enact such law forbidden
by the constitution of the state, or of the United States, or by treaty,
or act of congress passed in pursuance of the constitution of the United
States? If not, such law is constitutional.
When a party can not remove the cause. A suit can not be removed
from a state court, under the act of 1875, unless the requisite citizen
ship of the parties exists, both when the suit was begun in the state
court and when the petition for removal was filed. Gibson v. Bruce,
108 U. S. 561 ; Ackers \. Ackers, 117 U. S. 197 ; Huston, etc., R. Co.
v. Shirley, 111 U.S. 358.
(If both parties reside in the state where the petition for removal is
filed, the cause can not be removed to the Circuit Court, though they
may not have been such residents when the suit was begun in the
state court. This question could not arise under the act of 1789, as
the petition for removal had to be filed when the defendant entered
his appearance.)
Removals under first clause of section 639. By the defendant " at tho
time of entering his appearance." If the defendant wishes to save the
question of jurisdiction of his person for decision by the Circuit Court,
his appearance should be limited thus: "And now comes the defend-
ant, aud appearing for no other purpose, files his petition/' etc.
Removals under second clause of section 639. "At any time before the
trial or final Jiearing." " Trial" refers to actions at law only ; "final
hearing," to cases in equity ; and " final" refers to " trial," as well as
to " hearing." Home Life Ins. Co. v. Dunn, 19 Wall. 214.
The meaning is, a trial or heating on the merits, such as results in
a final judgment in an action at law, and a final decree in .a suit in
equity. Ib.
''Final trial or hearing" is that in tJie court originally Jiaving jurisdiction
of the c'tuse. A case pending in an appellate tribunal can not be re-
moved, for the words " before final trial or hearing" clearly mean be-
fore final judgment in the court of original jurisdiction where the suit
is brought. Stevenson v. Williams, 19 Wall. 572 ; Lowe v. Williams,
94 U. S. 650.
Where, under an act of Ohio to relieve District Courts, a party
could take a second trial in the same court, by giving bond, etc., and
such second trial was taken in the case, the defendant was held to be
entitled to remove the cause to the Circuit Court. Home Life Ins. Co.
v. Dunn, 19 Wall. 214.
At the time of filing the petition for removal, the case must be ac-
tually pending for trial. Vannevar v. Bryant, 21 Wall. 41.
Removal under third clause of section 639. "At any time before Hie trial
KLMOVAL OF CAUSES FROM A STATE COURT, ETC. 739
or final Iiearing." A removal of a cause from a state court on the
ground of local prejudice can only be had where all the parties to the
suit on one side are citizens of different states from those of the other
tide. Jefferson v. Driver, 117 U. S. 272; Bible Society v. Grove, 101
U. S. 610; Myers v. Swum, 107 U. S. 546; Cambria, Iron Co. v. Ash-
bum, 118U. S. 54.
The provision as to the removal of a separable controversy under
the second subdivision of Rev. Stat., section 639, has no application to
removals tinder the Hard subdivision ; and the similar provision in the
act of March 3, 1875, applies only to removals under tiiat act Ib.
Removal under act of March 3, 1875. "Make and file a petition in
such suit, in such state court, before or at Hie term at which such cause
could be first tried, and before the trial thereof, for the removal of such
suit iuto the Circuit Court."
" The act of 1875, . . . while superseding, by its general pro-
visions, nearly all the removal statutes, prescribes a rule which is
neither so stringent as the act of 1789, nor so lax as those of 1866 and
1867. While the party who has a case for removal is not put to his
election to exercise or abandon the right to remove at the moment of
entering his appearance, he is not permitted unreasonably to delay his
election during all the period incident to the preparation of the case,
until both parties find themselves in condition to go to trial at law, or
are ready for a hearing in chancery. The latter act clearly requires
more diligence in making the election than this. If it had intended
to enact that the removing party had until the case was ready for trial
on both sides, or was fully at issue, or was noticed or set down for trial,
it would have been easy to indicate this in words. The language,
however, which was adopted, means a very different thing. It is not
the tinie when the casestands ready for trial on the calendar, but the
term at which it could be first tried. Not the term at which the
party can no longer delay a trial, but the term at which it could
be first tried. These words have no meaning if they do not mean
the first term after the commencement of the suit at which a trial
was in order, when such trial was a thing which the urging or
pursuing party had a right to look for, and to put his adversary
to a showing if he desired a continuance. In the language of this
court, 'The election must bo made at the first term at wh'u-.h tho can-
is in law triable.' Babbitt v. Clark, 103 U. S. 606. In other words,
at that term in which, according to the rules of procedure of the c >urt,
whether they be statutory or rules of the court's adoption, the cause
would stand for trial if the parties had taken the usual steps as to
pleading and other preparations. Tin's t*rm at which the ca.se could
be first tried is to be ascertained by these rules, and not by the manner
740 CODE PRACTICE AND PRECEDENTS.
in which the parties have complied with them, or have been excused
for non-compliance by the court or by stipulations among themselves.
On this point the language of McCrary, circuit judge, in Murray v.
Holden, 1 McCrary, 341, is very pertinent. ' One of the objects,' he
gays, ' of the act of 1875, was to prevent the abuses which had been
practiced under the acts of 1866 and 1867, which allowed a removal
at any time before the final hearing. It was evidently the purpose
of congress to fix an earlier and a definite time, which would not per-
mit the litigant to experiment in the state court until satisfied he would
fail there, and then change his forum. In all the states there is by
la w or rule a trial term i. e. , a term at which a cause may for the
first time be called for trial. In practice but few contested cases are
tried at the first term, and it often happens that controversies arise
upon questions of pleadings, so that, as in this case, no issues of fact
are joined at that term. It is nevertheless the term at which, within
the meaning of the law, such cases first could be tried, and therefore,
is the term at or before which the petition for removal must be filed.'
" The case of Babbitt v. Clark, supra, in this court, is also in point.
The court there says : ' The act of congress does not provide for the
removal of a cause at the first term at which a trial can be had on the
issues as finally settled by leave of court or otherwise, but at the first
term at which the cause, as a cause, could be tried."' Opinion of
Supreme Court: Pullman Palace Car Co. v. Specie, 113 U. S. 86-87 ;
Phoenix Life Ira. Co. v. Saeitel, 33 O. S. 278 ; Bates v. Railroad Co., 39
O. S. 157. This case is controlled by decisions of the Supreme Court
of the U. S.
It is again decided that the words " term at which said cause could
be first tried and before the trial thereof," act cf March 3, 1875, ch.
137, section 3, 18 Stat. 471, mean the first term at which the cause is
in law triable, i. e., in which it would stand for trial, if the parties had
taken the usual steps as to pleadings and other preparations. Gregory
v. Hartley, 113 U. S. 742. Also that there can not be a removal under
that act after hearing on a demurrer to a complaint on the ground that
it does not state facts sufficient to constitute a cause of action. Ib.
Alley v. Nott t 111 U. S. 472, and Sliarp v. Levy, 112 U. S., affirmed.
The act of 1875 did not repeal or supersede other statutes oa the
subject, except such as are in conflict with it. Clause 3, of section
639 local prejudice, etc., is not repealed, but is still in force. Hess
v. Reynolds, 113 U. S. 73.
(Act of 1875, by its general provisions, supersedes nearly all the
removal statutes. 113 IT. S. 86 ; Pullman, etc., case.')
A decree entered in a state court against A., by default and without
REMOVAL OP CAUSES PROM A 'STATE COURT, ETC. 741
service of summons, was set ;i>id<- on his seasonable application, and :i
petition for removal then filed. Held to be in due time. JJarter v.
Kernodian, 103 U. S. 562.
The right t > remove a suit from u state court to a Circuit Court of
the United States, being once lost by reason of non-user " before or at
the term at which said cause could be first tried, and before the trial
thereof," is not revived by a subsequent amendment of the pleadings
which creates new and different issues. Phoenix Life Ins. Co v. Walrath,
117 U. S. 365.
When one of the several defendants in a suit on a joint cause of
action in a state court loses his right to remove the action into a Cir-
cuit Court of the United States by failing to make the application in
time, the right is lost as to all: Fletclter v. Hamlt, 116 U. S. 408.
Corporations, created and organized under the laws of the United
States, under the act of March 3, 1875, are entitled to remove causes
from a state court to a Circuit Court of the United States. Pacific
Railroad Removal cases, 115 U.S. 1. (But not banking corporations. \
A suit pending before a mayor of a city and a jury to take land far
widening a street, etc., is not, while pending there, a suit at law within
.the meaning of this act; but is so on appeal, and may then bo re-
moved. Ib.
Separate controversy as to one cf the parties. A purchaser pendents lite
or real esXte who becomes a party to the suit is subject to the disabili-
ties of the parties at the time he comes in, in resj>eet of removing the
cause from a state court to the Circuit Court of the United States.
Je/'rson v. Driver, 117 U. S. 272.
A substituted party stands in the shoes of him whose place ho takes,
and is subject to all his disabilities as t > removal. Cable v. Ellis, 110
U. S. 389 ; Houston, etc., R. Co. v. &'drlry, 111 U. S. 358.
The filing of separate answers by several defendants, sued jointly in
a state court, on an alleged joint cause of action in tort, in which each
avers that he acted separately on his own account and not jointly, in
the a<'ts complained of, does not divide the suit into separate contro-
versies so as to make it removable into the Circuit Courtof the United
States. Shane v. Anderson, 117 U. S. 275; Piriev. Tvedt, 115 U.
S. 41; Core\: Vinal, 117 U. S. 347. Nor does a separate deiVn-
when sued with others on a j >int or a joint and several cause of action.
Starinv. Xcw York, 115 U. S. 115.
A creditor's bill to subject incumbered property to the payment of
his judgment, by sale and distribution of the proceeds among lien-hold-
er* according to priority, creates no separate controversy, within the
meaning of the removal acts, as t > the separate lieu-holder* parties
742 CODE PRACTICE AND PRECEDENTS.
respondent, although their respective defenses may be separate. Fi-
delity Ins. Co. v. Huntington, 117 U. S. 280.
Where a person resident of the state is a necessary party defendant
with one a resident of another state, the latter can not remove the cause.
Bond v. Walker, 117 U. S. 340 ; Chicago & N. W. E. Co. v. Crane, 113
U. S. 424.
Aud the right is confined to parties actually interested in the con-
troversy. Ib.; Crump v. Thurber, 115 U. S. 56.
After a trial in the state court, reversal of the judgment by an ap-
pellate court, and remanding the cause for a retrial, it is too late to
remove it on the ground of separable controversy. Core v. Vinal, 117
U. S. 347.
A removable suit under the 12th section of the judiciary act (sec-
tion 639, except clause 3) must be a suit regularly commenced by pro*
cess served upon the defendant. Plaintiff, who has dismissed his action,
can not, under this section, remove defendant's counterclaim. West v.
Aurora, 6 Wai. 139.
A writ of habeas corpus is not removable from a state court into a
Circuit Court of the United States under the act of March 3, 1875, ch.
137, section 2. Kurtz v. Moffit, 115 U. S. 487.
Effect of removal. On filing the petition and bond in a suit which is
removable, the state court is divested of jurisdiction, and can not pro-
coed with the suit. Kern v. Huidekoper, 103 U. S. 485 ; Dletzsch v.
Huidekoper, id. 494 ; Railroad Co. v. Koontz, 104 id. 5 ; Steamship Co.
\. Tugman, 106 id. 118.
]Vhen state court not bound to surrender jurisdiction. A state court is
not bound to surrender its jurisdiction of a suit on petition for removal,
until a case has been made which on its face shows that the petitioner
has a right to the transfer; and if it decides against the removal and
proceeds with the cause, its ruling is reviewable, after being affirmed
by the highest court in the state, by the Supreme Court of the United
States. Stone \. South Carolina, 117 U. S. 430.
Issues of fact made upon the petition for removal, when it is suffi-
cient upon its face, must be tried in the Circuit Court. Id.; Chicago &
N. W. R. Co. v. Okie, 117 U. S. 123.
The judge of the state court must exe rcise a legal discretion as to
the right claimed. Gordon v. Longest, 16 Pet 97.
When a case is properly removed, but the state court nevertheless
proceeds with the case and forces parties to trial, the proper remedy is
by writ of error after final judgment, not prohibition or contempt
proceedings. CJiesapeake <fc Ohio R. Co. v. White, 111 U. S. 134.
After a refusal of state court to remove a cause, the defendant is
REMOVAL OP CAUSES FROM A STATE COL'KT, ETC. 743
not bound to plead to the jurisdiction, as his claim is that all proceed-
ings there ceased at the filing of his petition. K*iv>u>it v. Martin, 15
How. 198. And a party who is forced to trial in the state court after
failing in his efforts to obtain a removal, loses thereby none of his
rights. Insurance Co. v. Dunn, 19 Wai. 214; Removal cases, 100 U.
S. 457; Railroad Co. v. Mississippi, 102 id. 135.
After such removal is complete, and a ruling of the state court that
the suit is not removable, the party's consent to an order of reference,
and his contesting the case before the referee and in the courts of the
state, do not restore jurisdiction of the state court. Insurance Co. v.
Dunn, 19 Wai. 214; Steamship Co. v. Tugman, 106 U. S. 118.
Failure to file transcript in the Circuit Court within the statutory
time does not restore jurisdiction to the state court; the Circuit Court
must determine what shall be done. Railroad Co. \. Koontz, 104 U.
S. 5; Steamship Co. v. Tugman, 106 id. 118.
Upon good cause being shown, the entry in the Circuit Court at a
subsequent day than that prescribed by law may be permitted, and
such good cause is shown where, the petition having been overruled in
the slate court, the petitioner is forced to trial there on the merits.
Railroad Co. v. Koontz, 104 U. S. 5.
The petition. A petition for removal is insufficient unless it sets
forth, in such form as good pleading requires, the essential facts en-
titling the party to the removal, which do not otherwise appear in the
record of the case, and which are conditions precedent to removal.
Gold-washing Co. \. Keyes, 96 U. S. 199.
The conditions of section 2 of the act of 1875 are indispensable ;
they can not be waived, and must be shown by the record. Ayres v.
Watson, 113 U. S. 594. The requirements of section 3 are not juris-
dictioual, and may be waived. Id. And if the petition is sufficient
under one act, it is immaterial that it refers to another act only. Canal
Street R. Co. v. Hart, 114 U. S. 654.
Objection that the petition for removal was not verified by oath, or
that there was delay in filing it, may be waived by the other party by
delay in objecting. Pacific R. Removal cases, 115 U. S. 1.
Clause 2, section 639, as to removal <>f causes, was repealed by the
act of March 3, 1875. Hyde v. Ruble, 104 U. S. 407 ; Ayres v. Wat-
son, 113 id. 594.
Clause 3, section 639, is not repealed by act of March 3, 1875.
Hess v. Reynolds, 113 U. S. 73.
Remanding cause. If the case was not properly removable from the
state c;>urt, or the copy of the record, etc., is not filed in the federal
court in time, the proper procedure is to move in the latter to remand
744 CODE PRACTICE AND PRECEDENTS.
the cause to the state court. St. Paul, etc., R. Co. v. McLean, 108 U.
S. 212. And if so remanded, the same party is not entitled to file a
second petition for removal on the same ground. Ib.
Where a motion was made to remove a cause to the Circuit Court
of the United States and denied, the Supreme Court of the United
States may yet have jurisdiction by writ of error to the highest
state court. Kanouse v. Martin, 14 How. 23 ; Same v. Same, 15 How.
198.
An order of the Circuit Court remanding a cause to the state court
is reviewable in the Supreme Court of the United States. Ayres v.
Chicago, 101 U. S. 184.
For further information, see Bump's Federal Procedure, " Removal
of Suits;" and Desty's Federal Procedure, "Removal of Causes."
Note. While the Code states have abolished the distinctions between legal
and equitable proceedings this, by reason of the provisions of the federal con-
stitution, can not be done in the federal courts. Jones v. McMasters, 20 How.
9; Greer v. Meyers, 24 How. 268; Bennett v.^Butterworth, 11 How. C69; Rob-
inson v. Campbell, 3 Wheat. 212; Thompson v. Railroad Co., 6 Wai. 134.
The forms and requisites of equity pleadings may, however, be prescribed, or
changed, as has been done in many respects by rules adopted by the Supreme
Court of the United States. A Code petition stating the cause of action cog-
nizable by a court of chancery and asking equitable relief could be made suffi-
cient as a pleading. (See last paragraph of section 039.)
In Gridley v. Westbrook, 23 How. 503, the Supremo Court of the United
States hold: "When proceedings are instituted in a state court, . . . under
certain articles of the Code, and then removed into the United States Court, al-
though these proceedings do not conform to the mode prescribed for chancery
proceedings in the courts of the United States, yet, if the pleadings and proofs
show the matter in dispute between the parties, this court will adjudicate the
questions which they present."
In case the pleadings are not deemed sufficient fully, fairly, and properly to
present the case to the court, an order may be made requiring the parties to re-
frame the pleadings.
In other than equity and admiralty causes, the practice, pleadings, and forms
and modes of proceeding in civil case?, in the Circuit and District Courts, con-
form, as nearly as may be, to those of the state, at the time in like causes in the
courts of record of such state, any rule of the court to the contrary notwith-
standing. Revised Stats. U. S., section 914.
In order to preserve uniformity, the following forms under the fore-
going provisions are taken from Bump's Federal Procedure, pp. 907-
911.
REMOVAL 09 CAUSES FROM A STATE COURT, ETC. 745
PETITION FOR REMOVAL.
fForm 468. Act of March 3, 1875, 2. Bump.]
Tho petition of A. B. respectfully represents to this honorable court
that your petitioner, at the time of the commencement of this suit, was
and still is a citizen of the State of , and that C. D. was and still is
a citizen of the State of \_here in like manner allege the citizenship of the
various parties to the suit]; that the matter in dispute exceeds, exclusive of
costs, the sum of five hundred dollars [/ the right to remove it claimed -under
the constitution, laws, or treaties of the United Slates, set forth the facts which thow
that the suit so arises ; or, that the United States is plaintiff or petitioner;
or, that there is a controversy in this suit between citizens of different
states; or, that there is a controversy in this suit between citizens of the
same state claiming lands under grants of different states; or, citizens and
subjects of a foreign state; or, that there is a controversy in this suit
which is wholly between citizens of different states, and which can be
fully determined by them].
Your petitioner makes nnd files herewith a bond with good and suffi-
cient surety for his entering into the Circuit Court of the United States
for the District, Division 'of , on the first day of its next
session [or, within twenty days, if the next session commences within such period
of twenty days'], n copy of the record in this suit, and for paying all costs
that may be awarded by the said Circuit Court if said Circuit Court shall
hold that this suit has been wrongfully or improperly removed thereto.
[If special bail has Iten required, add : and also for his there appearing and
entering special bail.]
Your petitioner, therefore, prays this honorable court to accept this pe-
tition and said bond, and order the transfer of said suit to said Circuit
Court of the United States for the District, Division of .
, Attorney for Petitioner.
United States of America, District of , ss.
A. B., being duly sworn, deposes nnd says that he is the petitioner
named in the above petition, and that he has heard the same read nnd
knows the contents thereof, and that the same is true of his own knowl-
edge. ' A. B.
Subscribed and sworn to before me, this day of , A. D. 18 .
[SEAL.] , U. S. Commissioner.
Note. The petition may be verified before any officer authorized to adminis-
ter oaths.
(Petition wider section 639, d. 2, is omitted, as that clause was repealed
by the act of March 3, 1875. Ayres v. Watson, 113 U. 8. 594.)
746 CODE PRACTICE AND PRECEDENTS.
PETITION UNDER SECTION 639, CLAUSE 3. (In force. Hess v. Reynolds,
113 U. S. 73. Bump.)
[Form 469.]
The petition of A. B. respectfully represents to this honorable court,
that, at the time of the commencement of this suit, he was and still is a
citizen of the State of , and that C. D. was and still is a citizen of the
State of , and that the amount in dispute, exclusive of costs, exceeds the
sum or value of [five hundred] dollars; that he files herewith an affidavit
stating that he has reason to believe, and does believe, that from prejudice
and local influence he will not be able to obtain justice in this court.
Your petitioner makes and files herewith a bond, with good and suffi-
cient surety for his entering in the Circuit Court of the United States, for
the district, division of , on the first day of its next session
[or, twenty days, etc., as in last form], a copy of the record in this suit,
and for paying all costs that may be awarded by the said Circuit Court,
if said Circuit Court shall hold that this suit has been wrongfully or im-
properly removed thereto. [//" special bail has been required, add: and also
for his there appearing and entering special bail.]
Your petitioner, therefore, prays this honorable court to accept his peti-
tion and said bond, and order the transfer of said suit to said Circuit
Court of the United States for the district, division of .
[Affidavit as in Form 429.] , Attorney for Petitioner.
AFFIDAVIT OF PREJUDICE OR LOCAL INFLUENCE.
[Form 470. To accompany Form 434. Bump.]
A. B.
vs.
C. D.
In the [here set forth the name of the court}.
I, A, B., being duly sworn, do say that I am the plaintiff in the above
entitled cause, and that I have reason to believe, and do believe, that from
projudice and local influence I will not be able to obtain justice in said
\_here insert the name of the court}. , Petitioner.
Subscribed by the said A. B., in my presence, and by him sworn to be-
fore me at , this day of , A. D. 18 .
BOND FOR THE REMOVAL OF A CAUSE UNDER THE ACT OF MARCH
3, 1875.
[Form 471. Bump.]
Know all men by these presents, that , as principal, and and
, as sureties, are held and firmly bound unto , in the penal sum
of dollars, for the payment whereof well and truly to be made unto
the said , heirs, representatives, and assigns, we bind ourselves, our
REMOVAL OP CAUSES PROM A STATE COURT, ETC. 747
heirs, representatives, and assigns, jointly and severally, firmly by these
presents.
Yet, upon these conditions: the said having petitioned the
Court of County, State of , for the removal of a certain ran-
therein pending, wherein was plaintiff, and defendant, to the Cir-
cuit Court of the United States in and for the district of .
Now, if the said , your. petitioner, shall enter in said Circuit Court
of the United States, on the first day of its next session, a copy of the rec-
ord in said suit, and shall well and truly pay all costs that may be awarded
by said Circuit Court of the United States, it said court shall hold that
said suit was wrongfully or improperly removed tkereunto [if special
bail was originally required, add: and shall then and there appear and enter
special bail in said suit], then this obligation to be void; otherwise, in full
force and virtue.
Witness our hands and seals, this day of , A. D. 18 .
. [L.8.]
. [I. 8.]
. [U 8.]
State of , County of , ss.
I, , of said county, the surety named in the foregoing bond, being
duly sworn, do depose and say that I am a resident of the State of ,
and a property holder therein ; that I am worth the sum of dollars,
over and above all my debts and liabilities, and exclusive of property ex-
empt by law from execution [or, homestead] ; that I have property in the
State of liable to execution of the value of more than dollars.
Subscribed in my presence by , and by him sworn to before me,
this day of , A. i>. 18 .
ORDER IN STATE COURT STAYING PROCEEDINGS ON REMOVAL.
[Form 472.]
A. B.
No. .] vs.
C D.
The said , having fully complied with the laws of the United States
in that behalf for the removal of this cause to the Circuit Court of the
United States, within and for the district. division of- , it is
hereby ordered that all further proceedings in this cause on the part of
in this suit be stayed until the further order of this court
Kote. The party removing the cause, on filing a copy of tho record in th<
Circuit Court of tho United States, should give security for costs; and if ho i.
not the plaintiff, tho plaintiff must also give security for costs in the Circuit Court*
Money, to such amount as tho court or clerk may require, may bo deposited
in lieu of giving personal security.
748 CODE PRACTICE AND PRECEDENTS.
MOTION TO REMAND THE CAUSE TO THE STATE COURT.
[Form 473.J
Circuit Court of the United States, [Sixth] Circuit, [Southern 3 District
of Ohio, [Western] Division.
A. B. |
No. .] vs. V Motion to Remand Cause.
C. D. I
And now comes the said , and moves the court to remand this
cause to the Common Pleas Court of County, Ohio, upon the grounds
and for the reasons following:
1. \_Here state separately and number the grounds to remand.]
, Attorney [or, Solicitor] for said .
Note. The right of removal can not be taken away or abridged by a slate.
A statute forbidding any foreign insurance company to do business in a state
without filing an agreement not to remove causes to the Circuit Court of the
United States is void. Ins. Co. v. Morse, 20 Wai. 445.
But a condition may be lawfully imposed on a foreign insurance company
that its license or permission to do business in the state will be revoked or denied
if it does remove any case against it into the United States courts. Doyle v.
Continental Ins. Co., 94 U. S. 535.
A state may forbid a foreign corporation from engaging in business within
it entirely, and may revoke a license given by it to such corporation at any time,
and for any reason deemed sufficient by it.
Congress may prescribe limitations as to time for removal of suits into
United States courts, and such statute of limitations is binding on state as well
as federal courts. Mitchell v. Clark, 110 U. S. 633.
See Vol. II., p. 1315, for act of March 3, 1887, relating to "remov-
als," etc.
NOV 7 1952
LAW LIBRARY
UNIVERSITY OF CALIFORNIA
LOS ANGELES
UC SOUTHERN REGKMM. LIBRARY FAOi
A 000 698 206 o