Harrington v. Heath.

1846.

IN BANK. This section draws the action on the case for nuisance to the Dec. Term, Common Pleas. If we construe the justices' act as conferring jurisdiction also upon justices of the peace in such case, it would follow that two rules for the taxation of costs would exist, one in the Court of Common Pleas, and the other before a justice, respecting the same matter. If an action should be brought before a justice, and one dollar be recovered, it would carry costs; if appealed to the common pleas, and a recovery should be had for the same sum, or a greater sum, within the limits of five dollars, then it would not carry costs. It cannot be presumed that the Legislature intended such a result. The learned judge who pronounced the opinion of the Court in the case of Moeller v. Flowers, 7 Ohio Rep. 2d part, 230, which decides that justices of the peace have jurisdiction of cases of nuisance to lands, speaking of the seventh section of the judiciary act above named, says: "Here, the action for a nuisance, by necessary implication, is withdrawn from the jurisdiction of a magistrate;" but concludes, on the whole, the magistrate has jurisdiction, and overrules the case of Nichol v. Patterson, in 4 Ohio Rep. 200, which denied jurisdiction to justices of the peace in cases of nuisance to lands. We say, the case of Moeller v. Flowers, is not law, and reassert the doctrine, as to jurisdiction of justices of the peace, declared in Nichol v. Patterson. We do not know what the facts were in the case of Moeller v. Flowers. The Judge says it was an injury in the character of a nuisance. It may have been decided rightly upon the facts, and probably was; but the reasoning is wholly wrong, as far as it impugns the case of Nichol v. Patterson; and it is difficult to say whether the learned Judge intended to overrule that case, although the language bears that interpretation.

The next point is as to the effect of an appeal, where the case has been tried before a magistrate, and a declaration and plea has been filed in the Common Pleas. The magistrate having no jurisdiction over such case, all the proceedings before him are void; but if such case be appealed, and a declara

Harrington v. Heath.

Dec. Term, 1816.

tion filed, the Court of Common Pleas having jurisdiction over IN BANK. the subject matter of complaint stated in the declaration — if the defendant came into Court and plead to it, he has appeared and answered to a matter within the jurisdiction of the Court, and will not be permitted, in the face of his plea, to deny that he is in Court. It is precisely as though a declaration had been filed without process and answered by plea. The object of process being to obtain jurisdiction of the person, if he comes in, and by his plea admits jurisdiction, he has submitted his person to the jurisdiction of the Court, and can take no advantage of want of process, or of defective process. This is a fundamental principle of judicial action, recognized every where in all the books, and in all judicial action. If the party wished to take advantage of the manner in which the case came into court, and of the want of jurisdiction by the magistrate, he should have done so by motion to dismiss. It, in the common sense, is not a defect of jurisdiction but of process; for the Court of Common Pleas has jurisdiction of the subject matter set forth in the declaration. So that it follows, necessarily, in a case of this sort, that the plea of the defendant brings himself properly within the jurisdiction of the Court; and the Court having jurisdiction of the subject matter, the case is properly before it, and the void proceedings before the magistrate constitute no objection to proceeding to judgment.

In the case of Nichol v. Patterson, the court felt the pressure of this argument, and attempted to escape its force by stating that it would be a convenient and safe rule to adopt, that if the papers disclosed that the appellate, and not the original jurisdiction of the court was sought, and the subject matter was not within the jurisdiction of the justice, to dismiss, upon motion, in any stage of the cause; but, where the papers did not sufficiently disclose these facts, and the defendant pleads, in bar, to consider the defect in the process as waived, or the jurisdiction admitted.

This rule, as laid down, is too broad. If the defendant wish to object, for want of jurisdiction in the justice, he may do so

Dec. Term, 1846.

Caldwell and others v. Dunshee.

IN BANK. by motion; but, if he submits himself to the jurisdiction of the Common Pleas, rightfully having jurisdiction of the subject matter, by plea, he shall not thereafter be permitted, after costs may have accumulated by his own act, and the Court have proceeded upon his plea to take cognizance of the case, to deny jurisdiction, and withdraw himself from the control of the Court. After plea it is too late to urge that the justice had no jurisdiction. Those proceedings are a nullity, and the case is precisely as though a declaration was filed without process.

Of course, in a case of this sort, the costs before the justice cannot be included in the judgment of the Common Pleas. The judgment of the Common Pleas is affirmed, except as to the costs accruing before the justice, and, to that extent, reversed.

HITCHCOCK, J., having been of counsel with one of the parties, took no part in the decision of this case.

The Court of Common Pleas has exclusive jurisdiction in actions on the case for nuisance upon lands.

THIS is a WRIT OF ERROR to the Court of Common Pleas of RICHLAND County.

The action below was in case, for nuisance, brought by the plaintiff below, to recover damages of the defendant for flowing water upon his land, by the erection of a dam. The plaintiff recovered a verdict for $52, for which the Court gave judgment, and for the plaintiff's costs.

The error assigned is, that the Court rendered judgment for costs.

Ellis and others v. Bervellier.

James Stewart and J. Sherman, for Plaintiffs in Error.

Bartley & Kirkwood, for Defendant in error.

READ, J. The error is assigned, upon the ground that the case fell within the jurisdiction of a justice of the peace, and the recovery not being one hundred dollars, it could not carry cost. We have decided at this term, in the case of Harrington v. Heath, that an action for nuisance upon land did not fall within the jurisdiction of a justice of the peace. Hence, the recovery being over five dollars, the case carries costs.

We report this case, because one member of the Court appearing to have his name attached to the proceedings in that case by his partner, as counsel, did not sit..

We here assert, that it is the unanimous opinion of the Court, that the case of Harrington v. Heath, decided at this term, is law.

IN BANK. Dec. Term.

1846.

Judgment affirmed.

ROWLAND ELLIS and another vs. NICHOLAS BERVEL

LIER.

An indorser of a Bill of Exchange, whose interest is equally balanced, is a competent witness to prove a prior indorsement, claimed to have been forged.

The interest is so balanced, where the recovery by the Plaintiff or Defendant will E subject him to the suit of the one or the other, in an action where the recovery, by either, must be for the same amount.

THIS is a WRIT OF ERROR directed to the Court of Common Pleas of HAMILTON County.

The original action was trover, by Nicholas Bervellier, against the plaintiffs' in error, Ellis & Vallette, to recover the value of a bill of exchange, which, it was alledged, belonged to Bervellier, and in which he recovered the sum of $668 damages, and the costs of suit.

IN BANK.

Ellis and others v. Bervellier

During the progress of the trial, a bill of exceptions was Dec. Term, taken, from which it appears that the draft in controversy was

1846.

dated at Metz, Nov. 3, 1841, drawn by Dorr & Brothers upon Rogers & Co., in New York, for $544, payable to the order of Bervellier at two days sight.

The bill of exceptions further shows, that Ellis & Vallette are brokers, and purchased this draft, in the usual course of business, of one Jesse Justice. It was proved, that a Mr. Maltitz and the plaintiff below, Bervellier, as the witness believed, came to his father, Jesse Justice's office; that Maltitz acted as interpreter for the plaintiff, who was a German, and proposed selling the draft in question to Jesse Justice. The latter said be had no correspondents in New York, but he would see if he could sell it for him; that his father, Jesse Justice, went out, and came back and told the parties that Ellis would take the draft and pay $200 down and the balance as soon as he could get advice of its payment in New York; that he had received the $200 of Ellis, and told Maltitz the plaintiff, Bervellier, must indorse the draft; that, after conversation between Maltitz and the said Bervellier, in a language which the witness could not understand, Maltitz signed Bervellier's name on the draft, the plaintiff being then standing close by the said Maltitz. After the name was signed, Jesse Justice asked if it was all right, to which the plaintiff nodded assent, and the money was counted out to the plaintiff, but whether he or Maltitz took the money out of the office, he could not tell. He says Jesse Justice was not to charge any thing for his services in the busi

ness.

The defendants below, now plaintiffs' in error, then offered Jesse Justice as a witness to prove that he sold the draft in question to Ellis for the plaintiff, and at his request, and as his agent; that he did not and was not to charge any thing for his services, but merely did it as a friendly act.

The introduction of Jesse Justice was objected to, because he had put his own name on the draft and was, therefore, liable to Ellis as indorser. The witness was rejected by the Court,