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where the provision applicable to the matter in hand is, as it is in this case, clear beyond question.

Hanaghan v. The State, 51 Ohio St., 24, is cited as giving the key to the proper construction of section 1817. We fail to see the application. The court in that case was dealing with a trial before a justice of the peace where the accusation was such as gave the accused a right to a trial by jury and involved a construction of sections 7146 and 7147. No reference whatever was made, and none was needed, to section 1817. We have no such case.

The judgment of the circuit court will be reversed and that of the common pleas affirmed, and an order directed for the execution of the judgment of the mayor of the city of Bellaire.

Reversed.

DAVIS, C. J., SHAUCK, PRICE and CREW, JJ.,

concur.

LEMERT V. LEMERT ET AL.

Money decree for alimony-Not a provable claim under Bankruptcy act-Does not become dormant, when.

1. A money decree for alimony, rendered in a proceeding for divorce and alimony, is not a provable claim under the bankruptcy statute of the United States of July 1, 1898. Hence, a discharge in bankruptcy does not work a satisfaction of such decree.

2. Such decree for alimony does not become dormant because of the failure to issue execution thereon for more than five years.

(No. 8711-Decided May 2, 1905.)

ERROR to the Circuit Court of Muskingum county.

Statement of the Case.

The issues of fact raised by the pleadings in this case present two questions of law, one with respect to the effect of a discharge in bankruptcy upon a decree for alimony, and another respecting the effect upon such decree of failure to issue execution for more than five years.

It was found as matter of fact by the circuit court, where the cause was tried on appeal, "that the said Amelia Lemert on the twenty-third day of May, 1890, in an action then pending in the court of common pleas of Franklin county, Ohio, obtained a decree of divorce from said William S. Lemert, and said William S. Lemert was ordered to pay said Amelia Lemert alimony in the sum of $1,000.00, payable onethird in cash, one-third in one year, and one-third in two years from the date of said decree, and execution was awarded therefor; that afterwards at various dates executions were issued and proceedings in contempt and attachment were had against said William S. Lemert under said decree; that more than five years have elapsed since the last execution was issued under said decree and before the issuing of the execution herein complained of; that on the -day of January, 1903, an alias execution was issued upon said decree to the sheriff of Muskingum county, Ohio, and levied on the real estate described in the petition, and that the sheriff of said county was proceeding to appraise, advertise and sell said real estate under said execution, when he was served with summons and notice herein.

"That on the ninth day of June, 1900, plaintiff was discharged as a bankrupt by the district court of the United States for the southern district of Ohio in proceedings therein pending; that in said proceedings in bankruptcy the said claim of said Amelia

Argument for Defendants in Error.

Lemert was scheduled, and said Amelia Lemert was notified of said proceedings, but took no part therein."

Thereupon the court rendered judgment dismissing the petition. Plaintiff brings error.

Mr. A. J. Andrews, attorney for the plaintiff in error, cited and commented upon the following authorities:

Railroad Co. v. Belle Centre, 48 Ohio St., 273; Heckman v. Adams, 50 Ohio St., 305; Shroyer v. Richmond, 16 Ohio St., 455; Rowan v. Holcomb, 16 Ohio, 463; Brown v. Kroh, 31 Ohio St., 492; Howland v. Carson, 28 Ohio St., 625; Smith v. Ramsey, 27 Ohio St., 339; Rayl v. Lapham, 27 Ohio St., 457; Bartges v. Bartges, 1 O. S. C. D., 116; 23 W. L. B., 208; Fite v. Fite, 61 S. W. Rep., 26; Petersine v. Thomas, 28 Ohio St., 601; Howk v. Minnick, 19 Ohio St., 462; Lytle v. Manufacturing Co., 4 Ohio, 459; Mullane v. Folger, 10 Dec. Re., 485; 21 W. L. B., 277; Conrad v. Everich, 50 Ohio St., 480; State v. Cook, 66 Ohio St., 566; Simpson v. Hook, 6 C. C. R., 30; 3 Circ. Dec., 333; Wuest v. James, 51 Ohio St., 230; Smith v. Hogg, 52 Ohio St., 527; Miller v. Longacre, 26 Ohio St., 297; Darst v. Phillips, 41 Ohio St., 514; Handy v. Insurance Co., 37 Ohio St., 366; Elliott v. Lawhead, 43 Ohio St., 171; Smith v. Hoover, 39 Ohio St., 257.

Mr. F. F. D. Albery and Mr. H. C. Wine, attorneys for defendants in error, cited and commented upon the following authorities:

Loveland on Bankruptcy, form 59, 778; Audubon v. Shufeldt, 181 U. S., 575; Mullane v. Folger, 10 Dec. Re., 485; 21 W. L. B., 277; Gallagher v. Fleury, 36

Opinion of the Court.

Ohio St., 590; Bishop on Marriage and Divorce, secs. 1092, 1096; 25 B., 514; 23 B.; Kaderabek v. Kaderabek, 2 Circ. Dec., 236; 3 C. C. R., 419; State v. Cook, 66 Ohio St., 566; Tolerton v. Williard, 30 Ohio St., 579; Broadwell v. Broadwell, 21 Ohio St., 657; King v. King, 38 Ohio St., 370; Cox v. Cox, 20 Ohio St., 439; John v. John, 5 Circ. Dec., 535; 12 C. C. R., 328; Webster v. Dennis, 2 Circ. Dec. 566; 4 C. C. R., 313; Olin v. Hungerford et al., 10 Ohio, 268; Doyle v. West, 60 Ohio St., 438; N. B., 444; 1 Black on Judgments, sec. 462; Kinkead's Practice, 567; Stewart on Marriage and Divorce, sec. 358; 2 Bishop on Marriage and Divorce, sec. 138; Beaumont, Jr., et al. v. Herrick, 24 Ohio St., 445; Moore v. Ogden, 35 Ohio St., 430; Rankin v. Hannan, 37 Ohio St., 116; Butt v. Maddox, 7 Ga., 495; Butler v. Butler, 33 Ga., 148; Conrad v. Everich et al., 50 Ohio St., 476; Lockwood v. Krum, 34 Ohio St., 1; sec. 5367, Rev. Stat.

BY THE COURT. 1. Was the decree for alimony discharged by the final discharge of the plaintiff in the bankruptcy proceedings, the claim not having been proven therein nor any dividend paid thereon? The circuit court held that it was not discharged because the decree for alimony was not a provable claim in the bankruptcy proceeding. We think this conclusion was sound both upon reason and upon authority. Audubon v. Schufeldt, 181 U. S., 575; Dunbar v. Dunbar, 190 U. S., 340; Wetmore v. Markoe, 25 S. C. R., 172.

2. Did the decree for alimony become dormant because no execution had been sued out thereon within five years? The circuit court answered this question in the negative. In this conclusion, also, we think the

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court was right. A decree for alimony is not a judgment within the meaning of section 5380, Revised Statutes, which provides that a judgment on which execution has not issued for five years shall become dormant and shall cease to operate as a lien on real estate, nor is it a judgment or finding, within the meaning of section 5367, which provides for the revivor of a dormant judgment, or a finding for money in any equitable proceeding.

Judgment affirmed.

DAVIS, C. J., SHAUCK, PRICE, CREW, SUMMERS and SPEAR, JJ., concur.

THE WHEELING & LAKE ERIE RAILROAD COMPANY v. TOLEDO RAILWAY & TERMINAL COMPANY.

THE ANN ARBOR RAILROAD COMPANY ET AL. v. TOLEDO RAILWAY & TERMINAL COMPANY.

Corporation has primary discretion in determining land for appropriation, when-Probate judge has jurisdiction over right of corporation to appropriate, when-Section 6420, Revised Statutes—Judge may dismiss petition for appropriation, when— Injunction will not lie to prevent appropriation proceedings, when-Act of May 10, 1902-Provision for steam railroad crossing another railroad-Proceedings as to enforcement of such right of crossing-Priority of proceeding-Law of corporation appropriation.

1. While a corporation has primary discretion in determining what land is necessary for the purpose for which it is authorized to make appropriations, the probate judge has, under the jurisdiction vested in him by section 6420, Revised Statutes, to hear and determine the questions of the right of the corporation to make the appropriation, and the necessity for the appropriation, power to prevent abuse in its exercise, and, if