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Section 5024 of our statutes provides :
“To compel specific performance or land contract, the action may be brought in the county where detendants or auy of them reside.” Why so? In such cases, among other reasons, the court of equity has power in such case to compel defendant to perform the decree, by process of contempt.
Under section 5372, three kinds of execution may issue. First, against property of judgment debtor, including orders of sale. Second, against the person of judgment debtor. Third, for delivery of possession of realty.
Under section 5375: Such lands and tenements within the county where the judgment is rendered, shall be bound for the satisfaction thereof from the first day of the term at which the judgment is rendered, * * all other lauds shall be bound from the time they are seized in execution.
Under section 5376 : Judgment of the Supreme Court shall bind the lands and tenements of the debtor, within the county where the suit originated, from the time they are seized in execution.
And section 5377: The transcript of the justice shall be filed in common pleas court of county wherein judgment was rendered.
Section 5381: Execution to run first against personal property ; in default to be levied upon realty.
Section 5398: Upon return of execution for satisfaction of which lands and tenements have been sold, the court is to confirın sale.
Section 5405: If lands and tenements levied on, or ordered to be sold, be not sold upon execution, other executions may issue.
Section 6410: If sale invalid, the purchaser subrogated to rights of judgment creditor.
Section 5421: Execution may issue to other counties.
Section 5525: Orders of attachment may issue to different counties. Lands in other counties than the one in which process issues can be subjected by statutory authority in two cases, under sec. 5372 on execution, and sec. 5525 on writs of attachment. Under the latter section successive orders of attachment may issue to other counties where the lands of the debtor in attachment are.
I simply refer to these sections to show what statutory provisions there are to seize property in other counties. These are the only two cases under the statute of this state where you can, by statutory authority, issue orders to other counties in execution or attachment and seize property there, unless this section contended by counsel, 5703, is broad enough.
In Moore v. Starks, 1 Ohio St., 369, 373, our Supreme Court held, in foreclosure: "There must be in Ohio both jurisdiction of the person and the thing." That is, the land. “These are requisites to the validity of the court's action."
From the foregoing and fundamental principles of jurisdiction, the court has no extra territorial jurisdiction, unless sec. 5703, Divorce Chapter, is broad enough to give such jurisdiction.
It is claimed that 26 Iowa, 503, is a case directly in point supporting the proposition of the plaintiff, that this sale can be supported; that the court in Geauga county had jurisdiction of land in Cuyahoga county, and is decisive. Now that is a case under a more restricted statute than we have here. That is to say, that statute, which has an analogy to our sec. 5703, simply refers to property; and it does not say that the court
may allow in three ways, out of the personalty, out of the realty, out of both, or in money; it simply uses the word "property.” I have examined carefully the case in 26 Iowa, 503, Harshberger v. Harshberger. It was decided at the December term, 1868. March 4, 1868, plaintiff brought an action in Keokuk county on two notes against the defendant as maker, and had writ of attachment issue against defendant in Keokuk · county. At the October term, 1868, judgment was rendered in favor of the plaintiff. The same term, October 1, 1868, Mary E. H. filed petition of intervention, stating that in December, 1867, she filed her petition in the district court of Mahaska county for divorce from said defendant, and for alimony; that service was had ; that defendant was the owner of said thirty acres, and prayed that any alimony be inade a lien thereon. February 21, 1868, decree of divorce was granted, and alimony of $100 made a lien thereon, and an order for special execution for the sale of said thirty acres was made. Now this special execution I find would go on the foreign execution book in the sheriff's office, the same as here, and in every county where executions are received would be notice in the chain of title. April 16, 1868, she filed a transcript thereof in the office with the clerk of said district court of Keokuk county. This case was heard, and the court found the alimony judgment should be first paid ; from this action the plaintiff appealed. Chief Justice Cole says:
“Section 2532 (Iowa code) provides that the district court of the county where plaintiff resides has jurisdiction of all divorce and alimony
"Section 2537. When a divorce is decreed, the court may make such order in relation to the children and property of the parties and maintenance of the wife as shall be proper.
“The district court of Mahaska county had jurisdiction of the cause; it might rightfully enforce any lien connected with the subject matter of the action, although the real property, upon which such lien was claimed and enforced, was situated in another county. This priuciple has been several times applied by this court. 4 Iowa, 151; 9 Iowa, 396; 10 Iowa, 299; 12 Iowa, 521."
"The petition (divorce and alimony case) described the land, and asked that the alimony be made a lien thereon. The decree fixed the rights of the parties to the land. The attaching creditor acquired no better right than defendant in his suit had at the time of the attachment; that was the defendant's interest, subject to the lien for alimony.” Notice also that when the transcript was filed, a special execution was ordered.
The 10 and 12 Iowa were cases of foreclosure, and the court permitted the same to be brought in the county where the mortgagor resided, or where the property was situated.
As the case in 26 Iowa is based upon the principle which that court had announced in prior cases, it becomes necessary to examine those cases to ascertain the foundation of this case. Without going into detail, the 4 Iowa, 151, does not present the question.
The 9 Iowa, 397, Breckinridge v. Brown, the plaintiff held a note of the defendant in Linn county, Iowa. The petition was filed in the district court of Linn county, asking judgment on the note in foreclosure. On the thirteenth of March, 1858, petition was filed. April 6, 1858, the defendant moved for change of venue to Jones county, where the property was, and because defendants resided there. April 8, 1858, the motion was overruled aud exception taken. April 17, 1858, the plaintiff was
permitted to dismiss the second count of his bill praying for foreclosure, and judgment was taken by default. It was held by the Supreme Court that the note, being payable in Linn county, both causes did not belong to Jones county, even admitting second count of forclosure, belonged to Jones county, and that defendant was in default at his peril upon first count.
This case is not germain to the question. In the case in 10 Iowa, 399, it was held: Proceedings for the foreclosure of a mortgage, for judgment and general execution against the mortgagor, may be prosecuted in the county where the mortgagor resides, or in the county in which the property is situated. When the object is to foreclose equity of redemption by sale of the property only, it should be brought in the county where the property is situated. That is under the statute of Iowa.
The foreclosure of a mortgage in Iowa is a proceeding under its code, in personam as well as in rem. The service of notice upon defendant in the county where he resides, confers upon the court equal jurisdiction with that of the mortgaged premises. In this case the object of the suit was twofold, judgment to be satisfied by general execution in the event of the insufficiency of the mortgaged premises, and also the foreclosure. It was error to abate the suit because the same was not brought in the county where the property was situated. But where the object only is to sell the equity of redemption, it should be brought in the county where the property is.
In the last case, 12 Iowa, 521, the court say, that under the code of 1851, in foreclosure and for judgment, the cause may be brought in the county where the debtor resides, or where the property is situated. It will thus be seen that the 26 Iowa, 503, resting upon said prior cases, is no authority in support of plaintiff's claim, because the Iowa code distinctly gave jurisdiction in such cases. We have no such provision, and the Moore v. Starks, 1 Ohio St., 369, distinctly holds the contrary in such cases.
I am of opinion that the court must have jurisdiction of the subject out of which plaintiff seeks alimony, and then sec. 5703 applies. The court may then act directly upon the subject matter, the land, decree it to her, or out of it a certain sum, make it a lien thereon, and order the same sold for payment, but not having jurisdiction of the land (the same being out of the county), the court can only render judgment enforcible by the ordinary process of execution, as by statute provided, and that this view is consistent and in harmony with the power of the court in alimony cases under sec. 5703. Any other view would be inconsistent with the statute and practice of the state. It follows that the demurrer must be and is sustained.
Emerson H. Eggleston, for Larkworthy.
Strauss v. City of Cincinnati.
(Superior Court of Cincinnati, Special Term, April, 1890.)
† SOPHIA STRAUSS V. CINCINNATI (City). Action to enjoin two assessments for the opening and improvement of Ashland street,
in the city of Cincinnati. Noyes, J. Held:
1. The Board of Public Affairs, has the power under Rev. Stat., 2314a, to pass the assessing ordinance in condemnatiou cases, as well as in ordinary improvement cases. This action is general in its terms, and is a part of the assessment chapter.
2. If council, in passing the ordinance to improve, omits to fix the value of the abutting lots to be assessed, in advance, as required by Rev. Stat., 2271, such omission does not render the proceedings invalid.The requirement is not jurisdictional, and the omission is only an irregularity, the court having power, in a proper case, under the same section, to limit the assessment to one-quarter of the value as found by the court after the improvement is made.
3. The requiremeut of Rev. Stat., 2264 that the council shall specifically set forth in the improvement ordinance the lots and lands to be assessed, is fully complied with wben the ordinance provides that the assessinent shall be upon the lots and lands abutting a street named between two termini distinctly designated.
4. In case of two assessments on the same street, if it appears that both were intended to make one and the same improvement under Rev. Stat., 2284, they may be treated as one proceeding for the purpose of applying the one fourth limit of assessment under Rev. Stat., 2271.
5. When improvements have been ordered by council, it is to be presumed that they are beneficial. A court will not interfere with the assessment where the proceedings are regular, except for fraud, malice, gross mistake or abuse of corporate power. Where an improvement results in damage to an abutting owner, his remedy is by an application under Rev. Stat., 2315. A claim for damages can not be offset against an assessment.
6. The law is settled in Ohio that where a part of one's property is taken for a street by condemnation proceedings the remainder is subject to assessment under the restrictions governing assessments.
7. Where, under Rev. Stat., 2315, a return under oath has been filed in the city clerk's office showing that an abutting owner has been personally served with a copy of the resolution, the return is prima facie evidence of such service, and the burden of proof is upon the abutter who denies the service.
H. D. Peck, for plaintiff.
GRADE OF STREETS.
359 (Superior Court of Cincinnati, General Term, April, 1890.)
CINCINNATI (City) v. CATHERINE CORRY. Notice of resolution to improve by change of grade, etc., should set forth in detail
the extent and character of the grade, so that the abutting property owner may be informed with reasonable certainty as to the effect upon his land and improvements.
Catherine Corry, as a tax payer, for herself and other property owners, filed a petition, an amended and a supplemental petition, against the board of public affairs and other officials of the city of Cincinnati, pray
This judgment was affirmed by the Superior Court in general term; opinion post 24 B., 422.
Superior Court of Cincinnati.
ing that all proceedings of the board of public affairs to improve Vine street between Corry and Molitor streets, be suspended and enjoined for the reason, among others, that the change of grade of the street to which the contemplated improvement was to be made, was not published as required by the provisions of the statute, to-wit, the act passed April 25, 1885, commonly known as the Two Million act. It will appear that Catherine Corry did not file her claim for damages in pursuance of the alleged notice therefor in certain proceedings brought by the City of Cincinnati to assess the damage to abutting property by reason of the change of grade. The property of the defendant in error was omitted, so that the present question in fact affects her interest as an individual, rather than as a tax payer. MOORE, J.
This is a petition in error, prosecuted by the city of Cincinnati against Catherine Corry, to reverse the judgment of this court at special term in overruling a demurrer to the defendant in error's supplemental petition.
The sufficiency of the notice to plaintiff, an abutting property owner, of the adoption of a resolution declaring it necessary to improve Vipe street between Molitor and Corry streets by changing the grade, setting curbs, etc., after a grade had once been established, and the street improved in accordance therewith, is the question now presented. The , board of public affairs on the fifteenth day of February, 1887, adopted a resolution declaring it necessary to improve said Vine street between the points named by constructing the necessary foundations, etc., in accordance with the plans on file in the office of the chief engineer of the Board of Public Affairs, which exhibit the necessary changes of grade on said street, and the specifications on file in the office of the board of public affairs.
Section two, of the act of the general assembly passed April 25, 1885, Ohio L. Vol. 82, page 156, provides that the board of public works shall declare by resolution the necessity of such improvement, and give notice thereof as required by Council in sec. 2304, and shall carry out and be governed by the provisions of said sec. 2304, and any duty required therein to be done or performed by council shall devolve upon said board of public works. Said board of public works shall have full and final authority in any such improvement to make such change or changes in the grade, or in the streets, avenues or highways, to be so improved as may be deemed necessary to best conform the same to such ! contemplated improvement. Any such change of grade shall be published with the advertisement provided for in said sec. 2304.
On or about the twenty-fifth day of February, 1887, the board of public works caused to be served upon the plaintiff a notice to the effect that a resolution declaring it necessary to improve Vine street, upon which the property of the defendant in error abutted, had been adopted by the board, the notice reciting the exact language of the resolution as adopted, and no more.
It has so often been held by our Supreme Court that a resolution declaring it necessary to improve is jurisdictional and necessary before proceeding with the work, that a question no longer exists. Section 2304 of the Rev. Stat., provides that publication shall be made of the adoption of the resolution to improve, and that abutting property owners shall, within two weeks from the publication thereof, file their claims for