« ΠροηγούμενηΣυνέχεια »
beneficiaries (Overman's Appeal, 88 Pa. 276), though this would constitute no factor of the common-law rule against perpetuities.
We are of opinion, therefore, that the judgment of the Appellate Division in so far as it dismissed the complaint was erroneous, that that judgment should be so modified as to direct a new trial, and as thus modified affirmed, without costs in this court to either party.
GRAY, EDWARD T. BARTLETT, WERNER, HISCOCK, and CHASE, JJ., concur. O'BRIEN, J., absent.
trust is for charity, and that may be made in perpetuity, the trust during the lives of the seven annuitants cannot add anything to the inalienability of the fund. To this suggestion, for it is only such, we cannot accede. If it were accepted it would practically abrogate all our statutory limitations upon the power to suspend the alienation of real estate or the absolute ownership of personal property, for a grantor or testator might create any number of legal or equitable life estates whether for persons in being or not and for any term of years, provided he gave the ultimate remainder, however remote, in trust for a charity.
We are therefore of opinion that this trust is invalid under the laws of this state, but we are also of opinion that those laws do not control. The trustee is a corporation created by and located in the state of Pennsylvania. The fund is to be there held, and the trust to be there administered. Therefore, if the trust, though invalid by our law, is legal under the laws of Pennsylvania, the fund
, should be transmitted to that state and the trust upheld. Chamberlain v. Chamberlain, 43 N. Y. 424; Hope v. Brewer, 136 N. Y. 126, 32 N. E. 558, 18 L. R. A. 458. The limitations on the power to tie up property, to which we have referred as rendering the trust invalid in this state, are solely the creation of our statute law. At common law all equitable interests were alienable by the beneficiaries except in the case of married women (Bryan v. Knickerbocker, 1 Barb. Ch. 409), and the rule against perpetuities, ultimately applied to personal property as well as to real estate (Gray on Perpetuities, § 98), and equally controlling equitable as well as legal interests, only requires that future estates shall vest within a life or lives in being and 21 years (1 Perry on Trusts, $8 380, 382). The trust, therefore, would be good at common law. There is no presumption that our statute law prevails in other states. The presumption is that the common law there obtains. First Nat. Bank of Paterson v. Nat. Broadway Bank, 156 N. Y. 459, 51 N. E. 398, 42 L. R. A. 139. There was no evidence given at the trial as to the law of Pennsylvania on the subject. The Appellate Division was therefore justified in reversing the judgment of the trial court, but we think it should have ordered a new trial, for foreign law is usually a question of fact (Genet v. Delaware & Hudson Canal Co., 163 N. Y. 173, 57 N. E. 297), and the validity or invalidity of this trust is the subject of proof. We do not know what the Pennsylvania law is on the subject, for it is possible that the common law may have been changed in that state as in our own by statute; nor do we know to what extent it has been adopted. Seemingly in that state, as in some others, even wthout statute, there has been developed the doctrine of so-called “spendthrift" trusts which are inalienable by the
(74 Ohio St. 232) UIHLEIN et al. v. GLADIEUX. (Supreme Court of Ohio. May 22, 1906.) 1. JUSTICES OF THE PEACE-PLEADING-BILL OF PARTICULARS.
A statement in a bill of particulars filed by the plaintiff, in a suit before a justice of the peace, that the first name of one of the defendants is unknown, is in effect an allegation that the real name is unknown. 2. SAME-SUMMONS-SERVICE.
In such case it is, by section 5118, Rev. St. 1906, made the duty of the plaintiff to allege that he could not discover the true name of such defendant, and the service must be made by serving a copy of the summons containing the words “real name unknown"
upon such defendant personally. If the return of the summons shows that it was served only by leaving copy "at the defendants' usual place of residence, they being absent," no jurisdiction by reason of such service is acquired over the defendant whose name is unknown. 3. SAME-RECORD-FACTS SHOWING JURISDICTION.
The record of a justice of the peace must affirmatively show facts which give the justice jurisdiction over the person of a defendant, and where, in the case stated, the suit is broughc against two parties, and the record shows that the case was continued "by agreement,” such entry does not import that both parties were present assenting to such continuance, and the defect in the manner of service is not cured so as to give the justice jurisdiction of the party not personally served. 4. SAME-PROCESS-PERSONAL SERVICE.
An action brought before a justice of the peace against Wm. Rogers, and Mrs. Wm. Rogers, whose first name is unknown, is, as to the latter, an action against one whose real name is unknown, and brings the case within the purview of sections 6475 and of 5118, Rev. St., 1906, requiring personal service. 5. JUDGMENT-LIEN TRANSCRIPT FROM JusTICE.
A transcript of the judgment rendered in such action against Mrs. Wm. Rogers, whose first name is unknown, filed in the office of the clerk of the court of common pleas of the county wherein such judgment was rendered, does not constitute such judgment a lien on the lands of Lucy Rogers, although she may in fact be Mrs Wm. Rogers.
[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, g 1324.]
(Syllabus by the Court.)
Error to Circuit Court, Lucas county.
Action by George Gladieux against August Uihlein and the Joseph Schlitz Brewing
Company. From a judgment of the circuit transcript which was filed was not entered court for plaintiff, defendants bring error. on the execution docket, nor indexed in the Reversed.
index of the execution docket, but was enGeorge Gladieux (defendant in error) con
tered in the appearance docket and so in. menced an action in the common pleas ni
dexed, and not otherwise, and that said Lucas against August Uihlein and the Joseph
judgment and transcript was against Mrs. Schlitz Brewing Company, seeking to en
Wm. Rogers and did not purport to be aforce an alleged lien against lot 577 in tlie
gainst Lucy Rogers. By reply the plaintiff Birmingham Addition to the city of Toledo,
took issue with all the allegations of the by reason of an alleged judgment rendered
answer, save as to the title and ownership by a justice of the peace in favor of Glad
of Lucy Rogers. Trial was had in the comieux against one Lucy Rogers. It Wils
mon pleas which resulted in a dismissal of averred that judgment was rendered against
the petition. Plaintiff appealed to the cir
cuit court. the defendant Lucy Rogers under the name
That court on trial found for by which she was usually known in tlie
the plaintiff and established the lien of his community, to wit, Mrs. Wm. Rogers, July judgment as against the mortgage of the . 2, 1896, for $150.25 and costs; that a tran
brewing company and the title of Uihlein. script of such judgment was, on October 6,
That company and Uihlein bring error. 1896, filed with the clerk of the court uf Seney, Johnson & Seney, for plaintiffs in common pleas of Lucas county, and on De- error. Rhoades & Rhoades, for defendant in cember 24, 1897, execution was issued and error. thereupon levied upon the lot above described ; that no part of the judgment has SPEAR, J. (after stating the facts). In been paid; that the defendants claim interest its findings the circuit court found that the in the real estate hostile and adverse to the allegations of the petition respecting the suit rights of plaintiff therein, but that any rights and judgment before the justice and the filing of defendants therein are subject to the of a transcript thereof with the clerk of the rights of plaintiff. The defendants by an- common pleas court, and the issue and levy swer took issue with the averments of the of the execution on lot 577, were substantially petition, and further alleged, in substance, true as stated. Also that the allegations of that on March 21, 1895, Lucy Rogers, being
the answer respecting the origin, character, then the owner of said lot 577, mortgaged the and amount of the debt of Lucy Rogers to same to the People's Savings, Loan & Building the building company, and the origin, characCompany for $700 to secure a loan of money ter, and amount of the debt of Lucy Rogers then made, which mortgage was then duly to the brewing company, and with respect to filed for record and recorded; that on De- the notes and mortgages given the respective cember 2, 1896, being indebted to the Joseph companies, and the filing and recording of Schlitz Brewing Company in the sum of said mortgages, and also with respect to the $900, upon a note then executed and de- proceedings in foreclosure brought by the livered for money loaned, she mortgaged the brewing company, and the disposition of lot to that company, which mortgage was the money arising from the sale of lot 577, on that date duly filed with the recorder, and were also true. Also that Gladieux (defendduly recorded; that said company had not ant in error) was not a party to the abovethen, nor for a long time afterwards, any described foreclosure suit. It was further knowledge or notice of any claimed lien of found, as shown by the transcript of the plaintiff; that in September, 1901, the brew- justice's docket, that the bill of particulars ing company brought action to foreclose; was filed June 15, 1896, summons returnable that such proceedings were had that Novem- June 18, 9 a. m.; that the parties defendant ber 23, 1902, the sheriff of Lucas county de- were described in the bill as "Wm. Rogers and livered to defendant August Uihlein a derd Mrs. Wm. Rogers, whose first name is unof said lot, he being the purchaser thereof; known"; that the summons was returned that at the sale he paid the sheriff $900, June 16th, showing service on the defendants which sum was paid out by said officer in by copy left at usual place of residence, they taxes and costs, $98.73—to the said building being absent; that June 18th, at 9 a. m., company $431.89, and the balance was cred- the cause was continued to June 25th, at 9 a. ited on the claim of the said brewing com- m., "by agreement"; that June 25th, 9 a. m., pany—that the defendant Uihlein was, by the cause was continued to July 20, 9 a. m., order of court, subrogated to all the rights, "by agreement"; that July 20, 9 a. m., the liens and securities of said lienholders, but plaintiff and defendant Wm. Rogers appeared, that he purchased for said company, and and Wm. Rogers then confessed that he was had no interest in said lot except only the indebted to plaintiff in the sum claimed, and legal title. It was further alleged that de- asked that judgment be entered against him, fendants knew said Lucy Rogers by the but the defendant, Mrs. Wm. Rogers, whose name of Lucy Rogers and no other; that first name is unknown, did not appear, nor she bore that name and no other; that no for one hour thereafter. Trial was then had. transcript was filed in the office of the clerk George Gladieux was sworn and examined on against the said Lucy Rogers; that the plaintiff's behalf, and upon cousideration
the justice found for the plaintiff, and rendered this judgment, viz.: “It is thereupon considered by me this second day of July, 1896, that the plaintiff have and recover of the defendant Mrs. Wm. Rogers, whose first name is unknown, the sum of $150.25 and costs herein taxed at $5.60."
It is apparent from these findings that the initial question to be determined is with respect to the legal validity of this judgment as a judgment against Lucy Rogers. Coming to the direct question: Did the justice of the peace acquire jurisdiction over Lucy Rogers? She was sued as Mrs. Wm. Rogers, whose first name is unknown, and the judgment was rendered with the same designation. Was it her name in law? The meaning of the word "name" is given as the distinctive appellation by which a person or thing is designated or known; or, as better given by another lexicographer, that by which an individual person or thing is designated and distinguished from others. The law recognizes one Christian name or given name and one family surname. Bouvier's Law Dict. 467; 21 A. & E. Ency. of Law, 306. At marriage the wife takes the husband's surname, and, to distinguish her from the husband, is called "Mrs." or "Mistress," not as a name but as a mere title; but otherwise her name is not changed. This person's real and legal name, therefore, was “Mrs. Lucy Rogers,” and not “Mrs. Wm. Rogers." True, the allegation is that she was then usually known in the community as Mrs. Wm. Rogers, but the bill of particulars, the docket entries, and the judgment itself all show that her real name was unknown to the plaintiff in the action before the justice and to the justice himself, for, since the first name was part of the actual name, and since they did not know that first name, while stating that she had a first name, they did not know her name. She was therefore in the class of defendants whose real name is unknown, being sued by a name which was in effect fictitious. What, then, follows from this situation ? Section 6475, Rev. St. 1906, provides that the summons “must contain the name or names of a defendant or defendants, if known; if unknown a description of him or them, and command the officer * *
to summon the defendant or defendants to appear before the justice," etc. The summons does not appear in the record, but it could not have contained the name of the defendant Lucy Rogers, for that was not known, and the attempted description (Mrs. Wm. Rogers) is at most exceedingly meager. But passing that, what sort of service was necessary? Section 5118, Rev. St. 1906 (made applicable to this case by force of section 6705) provides that, “when the 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 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.” The constable's return shows service of the summons by leaving copy “at the defendants' usual place of residence, they being absent." There was therefore, as it seems to us, no service such as is required by statute upon the defendant against whom judgment was rendered, and unless this defect was cured it is fatal to the validity of the judgment.
But it is claimed by defendant in error that this fault, if fault it was, was cured by the appearance of the defendant. Does the record show that there was such appearance?. It shows by the transcript that there were two continuances "by agreement." It is shown, also, that the defendant Wm. Rogers appeared in person. No such entry is made as to Mrs. Wm. Rogers. We are asked to draw the inference that, because the cause was continued "by agreement,” Mrs. Rogers must have been present in court. Perhaps this might reasonably follow in support of a judgment of a court of general jurisdiction, but a justice's court is not such a court. The facts upon which its jurisdiction depends must be shown affirmatively. Robbins v. Clemmens, 41 Ohio St. 285. What is required with respect to entries in a justice's docket is prescribed by section 594, Rev. St. 1906. Among other things it must show which of the parties, if either, appears at the trial; also must show every adjournment, stating on whose application, whether on oath or consent, and to what day. The transcript fails to show affirmatively that Mrs. Wm. Rogers, first name unknown, appeared at any time, and is entirely consistent with the supposition that, of the defendants, Wm. Rogers only appeared, and that he only was a party to the agreements to continue. She did not appear at the time of trial as the transcript affirmatively shows. We think the conclusion inevitable that the justice did not acquire jurisdiction of the person of Lucy Rogers, and if this be so the conclusion also follows that the judgment has no legal validity.
Attention is called to the finding of the circuit court to the effect that the brewing company learned of the claim of Gladieux, and of the filing of his transcript in the clerk's office, at a time when only $115, of the $900 agreed to be loaned, had in fact been turned over to Lucy Rogers, and the claim is made that the brewing company should at most be protected to the extent only of said amount of $115. But the party at that time had taken its note and mortgage, the latter being filed and of record, and was obligated by its contract to complete the agreement, and it is not perceived how, in the absence of misrepresentation or fraud on the part of the borrower (and none ap
pears), the company could have avoided completing its contract. At all events it has a legal right to stand on its mortgage.
Another question is pressed by counsel for plaintiffs in error. The record shows that the clerk did not enter the transcript upon a docket known exclusively as the execution docket, but upon a docket which was a sort of combination of appearance and execution. Section 5377, Rev. St. 1906, makes it the duty of the clerk, upon the filing of a transcript from a justice's docket, to enter the case on the execution docket, etc., with proper indexes, etc., and the proposition is that, the clerk having failed to perform this duty, no lien could be acquired. The question is of importance, but, as its determination is not essential to a disposition of the present case, we express no opinion upon it.
The conclusion hereinbefore announced with respect to the effect of the proceeding before the justice finds support when we consider the purpose of our registry and recording laws. They are intended, among other things, to facilitate operations in real estate by affording to purchasers record evidence of titles and incumbrances. It is the duty, therefore, of one who desires to obtain a lien upon land, to comply with reasonable fullness and accuracy with all the steps required of him by the statute, in order to afford notice of his claimed lien to all who may be interested in the property and themselves use reasonable diligence. This general subject is treated at some length in Bank v. Wallace, 45 Ohio St. 152, 12 N. E. 439, and in Coe v. Erb, 59 Ohio St. 259, 52 N. E. 640, 69 Am. St. Rep. 764, and repetition is not needed here. In the case at bar it would have been entirely easy for the plaintiff before the justice to comply with the statute as to the real name of the party whose land he desired to subject to his claim, and as to service, and, having amended the bill by correcting the name, thus making proper parties, and then obtain judgment accordingly. It was not reasonable to expect that the judgment against Mrs. Wm. Rogers, even if it had been lawfully rendered, would be supposed by an abstractor of titles to create a lien upon the real estate of Lucy Rogers.
The judgment of the circuit court will be reversed, and final judgment entered by this court for the plaintiff in error.
entitled "An act to provide for the improvement of public roads," mean, and were intended to designate and include, all owners of real estate who are residents of the county and own lands lying within one mile of the road to be improved, and all must be considered and counted in determining whether a majority of the resident owners of real estate have signed the petition asking for the improvement. 2. SAME-PETITION-SUFFICIENCY.
A petition presented to the county commissioners under favor of this section, asking for the improvement of a public road, which is not signed by a majority of such resident landowners, does not confer upon the commissioners jurisdiction; and where said commissioners assume to act on such petition, and are threatening to proceed with and make said improvement, they may be restrained therefrom by injunction.
[Ed. Note.—For cases in point, see vol. 25, Cent. Dig. Highways, 8 41.]
(Syllabus by the Court.)
Petition by George W. Baker and others against one Alexander and others, commissioners of Darke county, to enjoin the laying out of a highway. A judgment granting the injunction was affirmed by the circuit court, and the commissioners bring error. Affirmed.
On the 20th day of March, 1905, the defendants in error presented to the county commissioners of Darke county, Ohio, and caused the same to be filed with the auditor of said county, a petition asking for the improvement of a certain public road lying and being within said county, pursuant to an act of the General Assembly of the state of Ohio passed April 4, 1900, entitled "An act for the improvement of public roads" (94 Ohio Laws, p. 96). On March 30, 1905,
) said commissioners having theretofore considered said petition and having found and determined that the same was signed by a majority of the resident owners of the real estate lying and being within one mile on either side of said road, and having found upon actual view of said road that the public utility required its improvement they thereupon, on said 30th day of March, in conformity with said findings ordered said road improved by grading and graveling according to the specifications fixed by them in said order, and directed the county surveyor to go upon the line thereof and perform the duties specified in said order in accordance with section 1 of said act. Said commissioners also determined and ordered that one-half of all the costs and expenses of the improvement of said road, except bridges, sewers, and culverts should be paid out of the proceeds of any levy, or levies upon the grand duplicate of the county, to be assessed by them against the taxable property of the townships of Twin and Monroe in said county, in which townships said road is located, in proportion to the length of said road in each township, and ordered that the balance of said costs and expenses thereof be assessed upon, and collected from the owners of real estate situate within one mile of
SHAUCK, C. J., and PRICE, CREW, SUMMERS, and DAVIS, JJ., concur.
(74 Oh. St. 258) ALEXANDER et al., County Com'rs, V.
BAKER et al. (Supreme Court of Ohio. May 22, 1906.) 1. HIGHWAYS-PETITION FOR IMPROVEMENT“RESIDENT OWNERS.'
The words “resident owners,' as used in section 1 of the act of the General Assembly passed - April 4, 1900 194 Ohio Laws, p. 96),
said road on each side thereof benefited there- be heard in the court of common pleas upon by, and in proportion to the benefits to be the pleadings and evidence and the court, on derived therefrom to said real estate, and submission of said cause, having been refurther determined and ordered, that the quested by the defendants, the county commisestimated assessment therefor be made after sioners, to separately state its finding of facts said improvement was completed. There and conclusions of law, found among other after, on the 30th day of June, 1905, the facts the following, which are the only facts defendant in error, George W. Baker, suing found by the court that are material or perfor himself and others, commenced an tinent to the present inquiry. (4) That the
. action in the court of common pleas of Darke village of Arnettsville is a municipal corporacounty, Ohio, against the commissioners of tion, situate wholly within one mile of said said county, the petitioners for said road road sought to be improved in petition deimprovement and James R. Marker, coun- scribed, but said road does not extend into, ty surveyor, to enjoin the making of said nor through the municipal limits of said vilimprovement, plaintiffs alleging in their lage. (5) That at the time said defendants, petition as grounds for said injunction: the commissioners of said county, heard said (1) That a majority of the resident land- petition for said road improvement, and deowners had not signed the petition asking termined that a majority of all resident ownfor said improvement; (2) that the public ers of land lying and being within one mile utility did not require said improvement; thereof had signed said petition, there were (3) the costs
would exceed the benefits; 106 persons owning lands lying and being (4) the commissioners ordered the road im- within one mile of said road, of whom 98 proved by grading instead of by stone as resided within one mile of said road in said prayed for in the petition; (5) said act of county and state, and the other 8 resided in the General Assembly of April 4, 1900, pur- Darke county, Ohio, but more than one mile porting to authorize said improvement, is from said improvement; that neither of said unconstitutional. To this petition the com- 8 persons so residing within said county, but missioners interposed a demurrer, and this more than one mile from said road, signed being overruled they thereupon filed their said petition, and all are opposed to the imanswer, pleading therein three several de provement of said road. (6) That of said 98 fenses. The first defense consisted of specific persons so owning lots and lands and residing denials of certain of the allegations of said within one mile of said road, 52 signed said petition. The second defense of said answer petition to improve the same; that of said set up and alleged affirmatively the facts as 52 persons so signing said petition, 34 thereof to the resident owners of land lying and be- resided within the municipal limits of said ing within one mile of said road, and further village of Arnettsville, owning real estate averred that the estimated assessment for therein consisting of lots, and 18 outside said road was to be made after said road thereof owning lands. That of the 46 persons was completed; and that the engineer had so owning lots and lands and residing within not made an estimated assessment of the one mile of said road, who did not sign said proportion of the costs and expenses of said petition, 42 owning lands resided without, improvement upon the real estate to be and four owning real estate therein consistcharged therewith, and had not fixed and ing of lots resided within the municipal Jimdetermined the amount or proportion there. its of said village of Arnettsville. And as of that should be assessed against plaintiff's conclusions of law upon the above facts the lands, or others, and had not determined the court found: (1) That all land owners residbenefits that would result to plaintiff's lands ing in said county of Darke, in the state of from said improvement; that he would not Ohio, who own lands lying and being within do so until said road was completed as di- one mile of said road, whether residing withrected by said order of said commissioners;
in one mile of said road or residing beyond and that said commissioners did not intend or more than one mile from said road, should to assess plaintiff's lands or the lands of be counted in determining whether a majorthose whom he claimed to represent, in ex- ity had signed said petition therefor. (2) cess of the special benefits said lands would That all owners of real estate consisting of derive from said improvement. Defendants lots situate within the municipal limits of for a further and third defence set up that said village of Arnettsville, and residing the alleged want of jurisdiction of said com- within the municipal limits of said village, missioners to make said improvement was should also be counted in determining whethshown upon the commissioners' journal, to- er a majority had signed said petition for gether with the exceptions of said plaintiff said road improvement. * * * (4) That to said action of said commissioners in pro- a majority of all the land owners residing ceeding with said improvement, and that in said county, who owned lands lying and the error, therefore, if any, was apparent being within one mile of said road, did not upon the record of said commissioners. sign said petition therefor, and said defend
Demurrers having been filed and sustained ants, the commissioners of said county, are to the second and third defenses of said an- without jurisdiction to proceed with the imswer and plaintiffs having filed a reply to the provement of said road, and by reason therefirst defense therein, the cause came on to of should be perpetually enjoined from so