Hamilton Circuit Court.

SWING, J.

The judgment of the court of common pleas should be affirmed. 1. After the court took the testimony of the witness, Sullivan, from the jury, there was no evidence before the jury as to the loss of corn as claimed. We think the court did not err in taking Sullivan's testimony from the jury. Fairly considered, his testimony amounted to nothing more than what was contained in the certificates. He had no independent recollection of the weights; all he knew was what was contained in the certificate, and the certificate of weight, we think, was not evidence. The book of original entries would have been, had it been properly proved, as was done in Moots v. State, 21 Ohio St., 653, but it was not shown that the certificate before the jury, and from which the witness, Sullivan, was testifying, was an exact copy, or that it was given in the regular course of business by one authorized to do so.

2. The action was against both the Ohio & Mississippi and the Cincinnati Hamilton & Dayton railroad companies, and it was alleged in the petition that the defendants received the corn at and that they agreed to deliver it at Lockland. The proof showed that the Ohio & Mississippi Railroad Company received the corn at Vincennes, and agreed to deliver it to a connecting line, to be by it delivered at Lockland, and that it dia deliver the corn to the Cincinnati, Hamilton & Dayton Railroad Company, as such connecting line, and by the terms of the contract the responsibility of the Ohio & Mississippi Railroad Company was to cease when it delivered the corn to a connecting line, and such connecting line was to be responsible for loss occurring on its own line. There was no testimony tending to show any loss while on the line of the Ohio & Mississippi Railroad Company, and there was no evidence tending to show what was alleged in the petition, viz., that the said Cincinnati, Hamilton & Dayton Railroad Company received said goods at Vincennes, and agreed to carry them to Lockland, Ohio. Undoubtedly, what it did was to receive the car of coin at its connection with the Ohio & Mississippi Railroad from said railroad company, for transportation to Lockland. But this was not the claim against it. This, together with the want of any evidence showing the loss of any corn-which was the way the case stood after the ruling out of Sullivan's evidence-left no case against either company. The judgment must therefore be affirmed.

ACTIONS-CORPORATIONS-JURISDICTION.
[Hamilton Circuit Court.]

PATTERSON A. REECE V. WEST HAMILTON HYDRAULIC Co. ET AL.

1. JURISDICTION OF COMMON PLEAS.

The court of common pleas has jurisdiction of action brought to require stock holders of an insolvent corporation to pay an amount equal to the stock held by them, to answer to the debts of the corporation.

2. ACTION BROUGHT IN WRONG COUNTY-WAIVER OF OBJECTION.

An objection that the action was not brought in the proper county, cannot be made for the first time on appeal in the circuit court by defendants who answered and went to trial on the merits in common pleas.

3. ACTION AGAINST CORPORATION-WHEN BROught by Consent.

An action against a corporation may be brought by consentof parties in a county where defendant is not situated or has no office, officer or agent, i

Reece v. Hydraulic Co.

the court has jurisdiction of the subject matter of the action, and such consent is evidenced by answer and trial on the merits.

MOTION to dismiss appeal.

Alfred Yaple and P. A. Reece, tor plaintiff.

Ramsey, Maxwell & Ramsey, and Chas. Darlington, contra. SMITH, J.

This action was brought in the court of common pleas of this county, against the West Hamilton Hydraulic Company, and others, the other defendants being stockholders of such company, to enforce the double liability of such stockholders, it being alleged that the corporation was wholly insolvent. It is further averred in the motion now filed to dismiss the action, that the usual place of business of such corporation was in Butler county Ohio, and that at the time the action was commenced and prior thereto, and ever since, said corporation had not any place of business or office of any kind in Hamilton county. At the commencement of the suit, a summons was issued to the sheriff of Hamilton county, and served on the corporation by delivering a copy thereof to Mr. Potter, the principal officer thereof, who was found in said county. At the same time the summos was served upon Mr. Potter himself personally, he being a defendant and stockholder in such corporation. A summons was issued to the sheriff of Greene county Ohio, and afterwards served on D. M. Stewart and J. R. Stewart, the parties who in this court file the motion to dismiss the action. But it also appears that after the service of such summons upon them, the said Stewarts appeared in the court of common pleas, and filed answers going to the merits of the case and of the right of the plaintiff to maintain the action. The case was afterwards tried on the pleadings and evidence, and a finding made in favor of the defendants, that the plaintiff was not a creditor of the corporation, and the action was dismissed at his costs. From this judgment the plaintiff appealed to the circuit court, in which the action has been pending since March, 1889, awaiting the decision of a case in the Supreme Court.

On December 7, 1892, the said D. M. Stewart and J. R. Stewart filed in this court this motion to dismiss, based on the ground that the action could only be brought in Butler county.

Section 5026, Rev. Stat., provides that: "An action other than one of those mentioned in the first four sections of this chapter, (of which this is not one) against a corporation created under the laws of this state, may be brought in the county in which such corporation is situate, or has or had its principal office or place of business, or in which any corporation has an office or agent.

If this was the only statutory provision upon this subject, we think that it would be clear that the defendants to such an action would have the right to require that it should be brought in the county in which the defendant corporation had an "office or agent." That the words "may be brought," as there used, are to have the construction "must be brought." But in addition to the section quoted, Sec. 5031, Rev. Stat., provides that: "Every other action must be brought in the county in which the defendant resides or may be summoned, except," etc., and Sec. 5038, Rev. Stat., that: "When the action is rightly brought in any county * * a summons may be issued to any other county against one or more of the defendants at the plaintiff's request."

*

It is probable that the two members of the court who heard this motion might not agree, as the question whether in an action like this,

Hamilton Circuit Court.

where one of the stockholders and the defendant company were served in this county, under the circumstances hereinbefore stated, the action could be said to have been properly brought in this county so as to warrant the issue of a summons for other defendants to another county. But whether this be so or not, we are of the opinion under the facts herein stated, the defendants filing this motion having made no objection to the jurisdiction of the court of common pleas, but having filed answers therein denying the right of the plaintiff to the relief sought, and having had a hearing of the case on its merits, obtained a decree against the plaintiff, can not, when the plaintiff has appealed the case to the circuit court, object there, for the first time to the jurisdiction of that court or of the common pleas.

The latter court certainly obtained jurisdiction of these persons by their appearance and filing answers, even if the service of summons upon them was not good. And while it is the undoubted rule of law, that if a court has not jurisdiction of the subject matter of an action, the consent of the parties thereto can not conter it, and that any adjudication thereof will be a nullity, we think that this principle does not apply to this case. Clearly the court of common pleas has jurisdiction of actions of this character, brought to require stockholders of an insolvent corporation to pay an amount equal to the stock held by them, to answer to the debts of the corporation.

The only question then is, whether, when the statute provides as to the county in which it may be brought (other than in those cases men. tioned in the first four sections of Chap. 5, viz., Secs. 5022-3-4 and 5, Rev. Stat.) It may legally be tried by the consent of the parties, in another county if the action is brought in such county, and if such last court would have had jurisdiction of the subject matter if brought there. We think it may. The provision in such case as to the place of the trial is one for the benefit of those sued, and we are of the opinion may be waived by them.

We think that this is Supreme Court, announced by Long, 18 Ohio St., 526, 534. whether the objection to the set it up by plea.

substantially held in the opinion of the Judge White in Steamboat Gen. Buell v. He says: "The remaining question is jurisdiction was waived by a failure to

This is not a case where the court has jurisdiction of the subject matter of the suit by law, but the defendant is exempt from being required to submit to the jurisdiction of the court. In such case the exemption pertains to the defendant as a personal privilege which he may waive. In this case (the one before that court) the want of jurisdiction grows out of the subject matter of the suit." and therefore it was held that it could not be waived.

We think too that the holding of the Supreme Court in Mason v. Alexander, 44 Ohio St., 318. [7 N. E. Rep. 435], which was a very similar case to the one at bar, justifies us in the conclusion which we have reached. And in Caldwell v. High, 8 Dec. (Re.) 183, it was held by the district court of this county that a resident householder of one township, sued before a justice of the peace in another township, going to trial on the merits of the case without objection to the jurisdiction of the magistrate, will be taken to have waived his right to object.

For these reasons the motion will be overruled.

In Re Assignment of Abram Bell.

HOMESTEAD.

[Hamilton Circuit Court.]

Cox, Smith and Swing, JJ.

IN RE ASSIGNMEnt of Abram Bell.

1. ALLOWANce in Lieu of Homestead ExemptiON.

An assignor for the benefit of creditors and his wife are entitled to $500 in lieu of homestead out of the balance of the estate assigned, when the homestead so assigned was so incumbered with liens precluding the allowance of a homestead, as to leave no balance, when sold, in the hands of the assignee, after the payment of such liens, when neither of them have any other homestead. 2. TEMPORARY Residence in Wife's Incumbered PropERTY.

In such case, where, after the assignment, the assignor and wife moved temporarily into a house belonging to the wife, which was built for sale and not for their residence, and which was incumbered for nearly its value, and which was sold and vacated by them before the hearing on the application for the allowance in lieu of homestead, such facts will not preclude the granting of such allowance.

3. POLICY OF THE LAW.

The homestead laws being designed for the benefit of the debtor, should be so construed as to effectuate and not to thwart its object and policy.

HEARD ON ERROR.

SMITH J.

The following facts appear from the record: On September 24, 1889, Abram Bell assigned all his property, real and personal, to F. S. Spiegel for the benefit of his creditors. It is conceded and shown that the deed of assignment did not, under the provisions of Sec. 6348, Rev. Stat., "cover any property exempt from *** execution or from being by any legal process applied to the payment of debts" of the assignor. It is further conceded that the real estate so assigned was the family homestead of Bell and wife, and their minor children, and was so occupied by them at the time of the assignment, but the same was covered by mortgages executed by Bell and wite to an amount greater than the value thereof, and when the same was sold by the assignee, the proceeds were not sufficient to pay the mortgage liens thereon. There was, however, $3,100 of personal estate in the hands of the assignee for distribution.

On May, 1891, after the sale of the real estate, Mrs. Bell, the wife of Abram, filed in the probate court a motion that the assignee be required to pay $500 from the personal property, in lieu of a homestead, and setting up the grounds therefor. This motion was denied by the probate court, and an appeal was take by her to the court of common pleas. On the hearing there it further appeared in addition to what has already been stated, that at the time of filing such application in the probate court, Mrs. Bell was the owner of two lots in Bell's subdivision of Cumminsville, on each of which is a new brick house, one of which Mrs. Bell, with her husband and children, then (December 29, 1891)..occupied as a homestead, and the allegations of an affidavit filed on behalf of the creditors, were that it was then (at the filing of the affidavit, December 29, 1891,) worth more than $1,000 over and above all incumbrances, and that she, with her husband and children, had occupied it as a homestead ever since they had left the homestead formerly owned by Abram Bell, in which they had lived at the time of his assignment.

Hamilton Circuit Court.

The affidavit of Mrs. Bell, first made in the common pleas, dated December 23, 1891, further alleges that by reason of the assignment, and the incumbraces on the real estate, her husband had no homestead, or unincumbered real estate, out of which the $500, in lieu of a homestead, could be allowed, and that it must come, if at all, from such personal estate; that no such allowance was made by the appraisers or the assignee, though demanded by both husband and wife; that neither she or her husband, after the assignment, was the owner of a homestead, but in a subsequent affidavit, made December 28, 1891, she alleges, that, since the filing of her motion, and the decision thereon in the probate court, she had disposed of the two lots in Cumminsville. She says that when they were conveyed to her they were vacant and unimproved, and that in order to pay for them and improve them, she had borrowed money from a building association and given a mortgage thereon, and that the mortgage was nearly or quite for the full value of the lots. That at the time the case was heard and decided in the probate court, she, by written contract, had bargained to sell one of them, and was at the same time living with her family in the house on the other lot, but that she had been living there but six weeks, and that she did not purchase or improve said lots or either of them for a homestead, tut for the purpose of improving and selling them only for profit, and not for a home, and that their occupation of said premises was temporary only, till she could sell them. She further alleges that it was her separate property and wholly controlled by her, and that since the hearing in the probate court she had sold and conveyed both of said lots, and long ago removed therefrom, and that she was then living in a rented house.

On the hearing, the court of common pleas also refused her application, and overruled a motion for a new trial, and a bill of exceptions was allowed containing all the evidence offered at the trial.

There is substantially no conflict in the evidence as to any material point. Mr. Pugh, in his affidavit for the creditors, says that the Cumminsville lots of Mrs. Bell were worth $1,000 more than the incumbrances upon them. She says that the mortgage was for nearly or quite the full value thereof. There is no denial by either side of the other facts alleged by the other, and they must be taken as true, and on this state of fact the question is, whether Mrs. Bell was entitled to an allowance from the personal estate in the hands of the assignee, of $500, in lieu of a homestead.

In view of the laws on exemptions, and of the decisions of the Supreme Court, we think that it must be conceded that it the homestead property of Bell, which was sold by his assignee, had produced a sum sufficient to pay the liens thereon, which precluded the allowance of a homestead (as they did, his wife having joined with him therein), and $500 in addition that this sum of $500 would have been payable to Bell or his wife, in lieu of the homestead. While Sec. 5440, Rev Stat., does not in express terms provide for such a case, but for one where in addition to liens which preclude the allowance of the homestead, there are other liens which do not preclude it, yet it has been held in two cases, that where the real estate has been sold to pay liens which preclude the allowance of the homestead and there were to others still that the owner should receive from the surplus, an allowance in lieu of his homestead thus