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Cook v. Pardee.

ceived from the adjudicated cases. It must largely be worked out from the statutory provisions providing for the contest of elections, but it may not be amiss to refer to the holding of our Supreme Court in construing statutes under somewhat similar conditions.

In the case of Collins v. Millen, 57 Ohio St. 289 [48 N. E. Rep. 1097], Bradbury, Justice, on page 291, in speaking of the right of appeal, says:

"The right, doubtless, is remedial in its nature; it is a proceeding in a civil action, given by our code of civil procedure. and falls within the letter and spirit of Sec. 4948 R. S., which commands a liberal construction of the provisions of our civil code.

"This court has heretofore recognized these liberal principles in a number of cases respecting steps necessary to perfect an appeal, and has been especially liberal in sanctioning amendments made to cure defects in the methods that parties have pursued in exercising this right of appeal."

The court at that time had before them an appeal in a civil action. We are considering not an appeal in a civil action, but in a special proceeding from a board, but we think the same liberal construction should be placed upon the statutes in this proceeding.

And further, on page 292 of the same case, the justice says: "We recognize, however, that the courts can dispense with no condition prescribed by statute, as necessary to perfect an appeal, and that the only field open to the display of liberality in this connection is, in the construction of the statutes that prescribe these conditions."

And in this case we are not dispensing with a requirement prescribed by the statute, but we are determining whether a mistake in stating the time fixed by the statute for taking depositions will destroy the jurisdiction of the court over the proceedings.

Again, in the case of Howard v. Shields, 16 Ohio St. 184, Justice Welch, in the opinion on page 189, says:

"We think the notice was sufficient. It contains all that

Ashtabula County Appeals.

the statute requires-notice that the election will be contested, and a specification of the 'points' relied upon. There is no analogy between such a notice and a declaration at law."

In that case they were considering whether or not the grounds of the contest had been set out with sufficient particularity, and they construed that provision of the statute liberally.

Now, then, applying these rules to the present case we find that the notice of appeal filed with the clerk set out with special particularity all of the requirements of Sec. 5149, including when the depositions should be taken. but upon an examination of the time fixed for taking the dépositions that the time allowed the defendant was not sufficient. The object of giving the contestee notice is that he may be apprised of the fact that there is a contest, and also of the grounds of that contest, in order that he may have a proper opportunity to meet the claims of the contestant.

The provision for taking the depositions is a mere procedure for getting the evidence before the court, and if there was no other provision for bringing the evidence before the court the mistake as to time might be fatal to contestant's proceedings, but the statute is now amended so that under the provision of Sec. 5152 a trial can proceed by taking oral testimony or depositions, as in civil actions. The striking from the files of these depositions would not deprive the contestant of an opportunity of introducing evidence in the case. He could produce his evidence under the provision of the latter section.

We think that it is placing too technical a construction upon a statute which should be liberally construed in order that the will of the people as expressed at the polls might be carried out, to hold that a mere mistake in the time provided for taking the depositions was jurisdictional, and deprived the court of common pleas of the right to hear and determine the case. We think that it was error in the court to sustain the motion to set aside the service and dismiss the appeal.

The defendant in error further urges that even if the court was in error in this, that the court erred in overruling the mo

Cook v. Pardee.

tion to dismiss the proceedings on the ground that there had been a prior notice filed of a contest of this election by the same contestant, and therefore there was no prejudicial error in the dismissal of this case.

The record shows that on November 20, 1913, the contestant filed a notice of appeal with the clerk of the court of common pleas of this county contesting the same election of the contestee; that on November 28, a motion to make this notice of contest more definite and certain was filed and sustained, and that afterwards, on December 2, the contestant caused an entry to be made as follows:

"This day came the plaintiff, by his attorney, and dismissed this action at his costs without prejudice to a new action. No record to be made."

The contestee claims that this proceeding was an adjudication of the matter, and an affirmance of the acts of the board of deputy state supervisors of elections.

In the case of Siegfried v. Railway, 50 Ohio St. 294 [34 N. E. Rep. 331], the Supreme Court, in the opinion on page 296, distinguish between the dismissal of an action by the court and the voluntary dismissal of an action by the plaintiff himself without prejudice, and in the last sentence of the opinion the court say:

"A dismissal by the plaintiff involves no action of the court; it is a voluntary withdrawal of his case, and is not a failure in the action."

Again the Supreme Court in the case of Wanzer v. Self, 30 Ohio St. 378, say in the second proposition of the syllabus:

"A judgment dismissing an action without prejudice to a future action is an entirety, and, though it may have been so rendered erroneously, it will not constitute a bar to a subsequent action upon the same subject-matter.'

In Black, Judgments Sec. 721, says:

"Where a bill in equity is dismissed 'without prejudice,' the effect of the reservation is to prevent the decree from constituting a bar to another suit brought upon the same subjectmatter.

Ashtabula County Appeals.

"If the decree is absolutely void for want of authority to make such a reservation, there is no valid adjudication to stand in the way of a new suit. And if it is merely irregular or erroneous, it must be corrected on appeal, and until that is done, it must stand as rendered and can not be impeached collaterally."

The first appeal was dismissed by the voluntary action of the contestant without prejudice and is not a bar to a second appeal, by the same contestant, if perfected within the time fixed by the code.

We think there was no error in the court's action in overruling the motion to dismiss the action on this ground. The judgment of the court below is reversed and the cause remanded.

Spence and Metcalfe, JJ., concur.

CONTEMPT-HABEAS CORPUS.

[Hamilton (1st) Court of Appeals, June 1, 1914.]

Swing, Jones and Jones, JJ.

(Swing, J., not sitting.)

IN RE DAVIS FUSFELD. IN RE DAVID OSTEND.

IN RE, NATHAN CARL.

Habeas Corpus Does Not Lie for Release of One Committed for Contempt.

Habeas corpus does not lie for the release of a prisoner who has been committed for contempt of court, where the court has Jurisdiction and punishment by commitment is authorized.

HABEAS CORPUS.

Louis Katz and Snyder & Dickerson, for petitioners.
Miller & Foster, contra.

Fusfeld, In re.

PER CURIAM.

The three parties named in the caption above have severally applied to this court for a writ of habeas corpus asking that the same issue against Charles C. Cooper, sheriff of Hamilton county, commanding him to discharge them from custody. They are each under sentence by the superior court for violation of an order of that court enjoining them from interfering in various and specific ways with the business of the Fullworth Garment Company by which they had been employed.

A writ of habeas corpus can not be used to perform the office of a writ of error. This well known principle of law is clearly stated in Shaw, Ex parte, 7 Ohio St. 81 [70 Am. Dec. 55], as follows:

"A habeas corpus cannot be used as a summary process to review or revise errors or irregularities in the sentence of a court of cempetent jurisdiction. Imprisonment under a sentence cannot be unlawful, unless the sentence is an absolute nullity. If clearly unauthorized and void, relief from imprisonment may be obtained by habeas corpus; if voidable, a writ of error is the appropriate remedy."

See also, Swan In re, 150 U. S. 637 [14 Sup. Ct. Rep. 225; 37 L. Ed. 1207]; United States v. Pridgeon, 153 U. S. 48 [14 Sup. Ct. Rep. 746; 38 L. Ed. 631].

The return of the sheriff shows the authority under which the prisoners are being held. It is contended by counsel for petitioners that the return is insufficient; for, while the jurisdiction of the court which imposed the sentence is conceded, it is argued that it exceeded its authority with respect to the extent of the punishment fixed. In support of this contention it is claimed that the court acted under authority of Sec. 12142 G. C., in imposing the sentence, when in fact the penalty for the breach of an order of injunction is fixed by Sec. 11888 G. C.

There is nothing in the return or in the record of proceedings in the superior court as shown by the affidavits and papers filed herein to indicate the particular section of the code upon which the court imposing the sentence relied. It is true that Sec. 11888 does provide especially for the punishment of a

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