THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW 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 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 unr 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, 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, 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 :uiYSI-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 :inerformance 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 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\vurt, 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 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 suhuld 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 sier) 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. 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; ann .-.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!iy 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 lKK, 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 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 saif 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. 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- cluject-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. ( 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
  • 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. > 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 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 . 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, 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' 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 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 ttlc, 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 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 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. (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, 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. ( 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 (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 rnhio. (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 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 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 - 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. 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 - 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, tlitor 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. !' 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 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 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.) 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-. //;>.">. 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 [ 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. . 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 , 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 Ilnd, 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',,,.'/.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 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!ihall 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 <-/i/r.j/., 240 8 (6) A stakeholder, with whom money - r pr.ijH-rty lias been 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. (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>eyonaee 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<-t1 would seem to apply, other- wise the service could not be made ". 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> 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 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. etiti > 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 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 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 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-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'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 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-- fiocial 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-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 .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 namf 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 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 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 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 \ 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 nr 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. 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 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. 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' 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. He 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 [ >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 anl, -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 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'"/. , j>. 344.^ A. witness shall not be com|>elle <>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 bron 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 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 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, 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 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 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 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/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 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 "!,"/ 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 f making the motion; the causes enumerated in subdivisions tw>, three, and seven, of section 5305 r must be sustained by affidavits or depositions, *hsitions, 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 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 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 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 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-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.?> 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.,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>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 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. .> 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
    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 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. 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; 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: [// 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 [ 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. /'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 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