A board of education may exclude from school a child not vaccinated, but if excluded for that reason a parent can not be prosecuted for failing to send the child to that school under the compulsory education act. In other words, the parent surrenders the privilege of sending his child to a public school; insofar as he is concerned the public schools do not exist. This, however, does not lessen his duty to give the child a proper education such as enjoined by the state in pursuance of its supreme power over the welfare and education of children, and on his failure to do so he is liable under Section 1654 for contributing to dependency.

By way of summarizing the conclusions of the court are as follows:

1. That under Section 1645 a parent must provide his child with a proper education, which education shall be substantially equivalent to the education provided by the common schools.

2. That boards of education may exclude children from the public schools upon non-compliance with its rules and regulations concerning vaccination.

3. That parents of the children thus excluded are not liable to conviction under the compulsory education act.

4. That the parents of the children thus excluded can not offer such exclusion as an excuse for failure to provide the children with a proper education as required by Section 1645.

5. That if children are excluded from the public schools on non-compliance with regulations relating to vaccination they may be declared dependent under Section 1645, if they are prevented from receiving a proper education, as herein defined, because of the neglect or conduct of their parents.

6. That any person who causes or contributes towards the dependency of a child who has been deprived of a proper education as the statute sets forth is liable to conviction for causing or contributing towards dependency under Section 1654 of the General Code.

In the present case the evidence showing that Martha E Hargy is attending the public schools, this cause so far as it relates to her is dismissed.

In respect to the child Harry E. Hargy: while the court finds that at this time he is not receiving a proper education and might lawfully be declared dependent, yet it appears that at the time of the filing of the petition his father, Harry E. Hargy, Sr., had neglected this duty for eight days only and at the time of the hearing expressed his desire to give his child a proper education. In view of these facts it appears to the court that the state would not be justified in superseding the parents and making provision for the child's education, until it is conclusively shown that the said Harry E. Hargy, Sr., intends to persist in his present line of conduct and neglect his duty to give his child a proper education.

This cause, therefore, in respect to the child Harry E. Hargy, Jr., will be continued to the 14th day of January, 1921, his father being given the opportunity in the meantime to provide for giving his child a proper education which in this instance shall be equivalent substantially to that provided by the common schools.

In the event that on or before January 14, 1921, it be found that the said child, Harry E. Hargy, Jr., is receiving a proper education as herein stated, this cause will be dismissed; otherwise on that day the child will be declared dependent and thus made a ward of juvenile court.

Bragg, Administrator, v. Railway Co. [Vol. 23 (N.S.)

CONSENT TO SETTLEMENT FOR A WRONGFUL DEATH CAN NOT BE WITHDRAWN BY PROBATE COURT.

Common Pleas Court of Clark County.

JOHN T. BRAGG, ADMR., &c., VS. THE OHIO ELECTRIC
RAILWAY COMPANY.

Decided, February 1, 1920.

Jurisdiction-Not Vested in Probate Court to Withdraw Consent to Settlement for Wrongful Death-Setting Aside of Release a Prerequisite to Action for Damages-Cancellation of Release and Action for Damages Joinable.

1. When the probate court, under Section 10772, General Code, upon the application of a personal representative of a decedent, has consented to a settlement with the party claimed to have wrongfully caused the death of such decedent and where in pursuance of such consent the personal representative has settled for such wrongful death, such court has exhausted its power in giving its consent and can not at a subsequent date render void the agreement by withdrawing the consent already given under which the administrator entered into a valid contract of settlement.

2. In an action for damages the defendant may plead in bar a settlement made with the consent of the probate court.

3. Where a settlement and release has been plead by the defendant, the plaintiff, by reply, may aver such facts as may make the release void, but if such release is not void but only voidable, the plaintiff can not maintain his action until the release is set aside.

4. A cause of action for the cancellation of a release and a cause of action for damages may be joined in the same petition.

Zimmerman & Zimmerman, for the plaintiff.

Paul C. Martin and Homer Cory, for the defendant.

GEIGER, J.

The plaintiff as administrator of Rosa Bragg brings an action against the defendant to recover on account of the death of the decedent due to the alleged wrongful acts of the defendant.

The defendant filed an answer in bar setting up the fact that on the 26th day of November, 1918, the plaintiff as administrator

1920.]

Bragg, Administrator, v. Railway Co.

made an application to the probate court of Montgomery county, Ohio, for authority to settle the claim growing out of the death of the decedent under the provisions of Section 10770 G. C., and alleged that the probate court of Montgomery county made an entry upon such application, in which it is ordered that the administrator be authorized and directed to accept $367 in full settlement of the claim arising out of the death of the decedent and that he execute to the defendant a release. It is alleged that in pursuance to and in accordance with the order of the probate court the plaintiff, as administrator, in consideration of the payment of $367 executed his release to the defendant from all liability growing out of the accident resulting in decedent's death and agreed that such release should operate as a complete satisfaction and bar to every right of action against the defendant.

To this answer in bar the plaintiff filed a reply admitting that the application was made in the probate court of Montgomery county, as alleged in the answer, and that an entry was filed as alleged, but the reply further alleges that on December 24th a motion was made in said probate court to set aside said proceeding in settlement on the ground that the said settle- ment was not for the best interests of the husband and child and that the administrator was not advised of the law and that a full statement of facts was not presented to the court and for various other reasons not in conformity with the due administration of justice; that upon the hearing in said court said. settlement was set aside by the court and an entry filed, a copy of which is set out in the reply, a part of which is

"The court, being duly advised in the premises, orders and decrees that said sum of money so paid by the railway company be returned to said railway company, and sustains said motion,. to which ruling said railway company excepts."

The plaintiff alleges that he tendered the money to the defendant and upon its refusal to accept the same, it was deposited in court.

To this reply a demurrer is filed by the defendant on the ground that the proceedings of the probate court, set forth in

Bragg, Administrator, v. Railway Co. [Vol. 23 (N.S.)

the reply, were without jurisdiction and void and that the reply does not constitute a reply to the defendant's answer.

Both parties have filed extensive briefs in the matter and the court has been in some doubt as to a correct determination of the question raised.

The court is of the view that we must first resort to the section of the statute requiring that the administrator must secure the consent of the probate court before he can settle a claim for wrongful death.

Section 10772 G. C. provides, among other things:

"Such personal representative, if he was appointed in this state, with the consent of the court making such appointment, may at any time, before or after the commencement of the suit, settle with the defendant the amount to be paid."

The administrator, in pursuance of this statute, made application to the probate court of Montgomery county asking for authority to settle the claim for the sum of $367. The court, by its entry of November 26th, upon said application, authorized the administrator to accept the same, which the administrator did. The question now is whether the probate court had jurisdiction to make the order of December 24th set out in the reply, vacating the order of November 26th set out in the answer.

It is claimed by the defendant that the probate court, being of limited jurisdiction, had no power to set aside its former order upon which both parties had acted and in pursuance of which the claim had been settled.

It is claimed on behalf of the plaintiff that even though the court may not have had authority to legally set aside the order, that having jurisdiction of the cause of action and the parties, it had jurisdiction to vacate the order, and that the defendant would be required to secure a modification of that order by proper proceeding in the court of common pleas to reverse the judgment of the lower court, citing the case of Mansfield v. Cole, 16 N. P. (N. S.), 209, where it is held that

"As the court had jurisdiction of the subject matter, the decree of December 29th was not void, but merely voidable,