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Weber v. Beier et al.

“Where one or more sections of a statute are repealed and re-enacted in a different form, the fair inference is, in general, that a change in meaning was intended; though even in such a case the intention may have been to correct a mistake or remove an obscurity in the original act, without changing its meaning. But where all the general statutes of a state, or all on a particular subject, are revised and consolidated, there is a strong presumption that the same construction which the statutes receired, or, if their interpretation had been called for, would certainly have received, before revision and consolidation, should be applied to the enactment in its revision and consolidated form, although the language may have been chauged. Of course, if it is clear from the words, that a change in substance was intended, the statute must be enforced in accordance with its changed form."

"The commissioners appointed under the act of 1875 were required to revise and consolidate the statutes of a general nature and make report to the general assembly. They determined that the best way to perform that duty was to arrange all the general laws under the proper heads, and report the same to the general assembly in the form of a bill. power to change was very limited. It was confined to 'making alterations to reconcile contradictions, supply omissions, and amend impertections in the original acts, so as to reduce the general statutes into as concise and comprehensive form as is consistent with the clear expression of the will of the general assembly.'

And now the court say:

“Their power to change did not extend to matters of substance, like the right to a homestead. The commissioners were vested with no legislative power. They could recommend, and that was all; and the bill which they prepared obtained its vitality solely from its adoption by the general assembly. Changes were undoubtedly made in the bill by the general assembly, but they were not numerous. That the rule which I have stated as applicable to revisions should be applied to the Revised Statutes can admit of no doubt; and, applying the rule, it is clear a widow is entitled to a homestead, although she may not be so fortunate as to live with, or even have, "an unmarried daughter or unmarried minor son.”

Now coming back to this act of 1850, it seems to us that the original section was left out really as a matter of surplussage. It merely made the general statement that a head of a family should have a homestead. By section 2 of this act it was provided that any debtor might make a demand for a homestead, “and if such debtor have a family, and if the lands or tenements about to be levied on, or any part or parcel thereof, shall be the homestead thereof," the officer shall cause the homestead to be set oft. That is to say that section of itself gave power to the sheriff, without any previous provision of the statute, to award or set off to the head of a family a homestead. Anü the matter remains, in our judgment in this shape. That in 8220 revision and consolidation of the statutes, the revisers, and the legislature why adopted that provision, supposed that section 2 of the act of April 9, 1869, gave to the head of a family all the rights that could be given to him by the original section 1; and we therefore hold that the construction oí that section of the statute should be—that the head of a family shall have a homestead allowed to him. Under section 5440 and in the origival section 4 of the act of 1850, are simply designated certain classes thau might come in under the definition of "head of a family,” but do not

7 Dec. 25.


Lucos Circuit Court.

exclude any others. Others may be included under the term "head or a family.” The result is that we must look to section 5438 to see first who is entitled to have a homestead exemption, and to section 5440 to see who is entitled to have an allowance in lieu of a homestead.

It is claimed here that in the term "head of a family" the word “family" means husband, wife and children. We are not disposed to take that view of it. We think that is too narrow and limited a construction to be placed upon the statute. We think that where a man is living with his minor children, or a woman is living with her minor children in the homestead, that she should be entitled to a homestead, or that he should be entitled to a homestead, the same as if husband and wife were living together and occupying the homestead. In various de cisions in this state it has been held that a liberal construction should be given to this act for the benefit of the families of the debtors.

This matter is one of some perplexity and we have endeavored to give it very careful attention and have spent much time in reading different statutes which seem to bear upon it and have endeavored to arrive at a conclusion which shall carry out the spirit of the statutes and which shall be just to all who may claim their provisions. As I have said, there is a very large class of cases in the state of Ohio, which must be constantly arising, where the husband obtains a divorce from his wife and remains in the house with his family of minor children. Cases may arise where the wife obtains a divorce from her husband and remains in the homestead with a family of children; which homestead may have been awarded to her in the way of alimony, ana we see no reason why those persons should not have the benefit of a statute of this kind. And so cases may arise, like the present one, where the husband is left with the minor children and his wife may have left him-perhaps through his own fault -but still we do not think that affects the question of his right to have a homestead. We are of opinion, therefore, in the present case, that the $500 demanded by Beier should be allowed him, or so mucb of it as sha! remain in the hands of the court after paying the costs herein to the ea. tent of $500.

M.P. Delphy, Attorney for Plaintiff.
1. M. Ritchie, Attorney for Defendant.


(Lucas Circuit Court, June 11, 1897.]

King, Haynes and Parker, JJ. THE STATE, EX REL. ANNA HERR V. PATRICK J. O'BRIEN, A NON-RESIDENT DEFENDANT IN A BASTARDY PROCEEDING MAY CLAIM HIS EXEMPTIONS. A defendant in a bastardy proceeding whose earnings have been garuisheed, is

entitled to his exemptions under the provisions of section 5430, Revised

Statutes, even though such defendant be a non-resident HAYNES, J.

A petition in error is filed in this court for the purpose of reversing the action of the court of common pleas in discharging a certain attachment in a case there pending wherein Anna Herr was plaintiff and O'Brien was defendant. The complaint filed in the common pleas was

The State, ex rel. Herr v. O'Brien.


one in bastardy, originally commenced before a magistrate, upon a sug gestion or showing that the defendant was a non-resident of the state and could not be arrested within the state. The case was certified up to the common pleas and there proceedings were had in attachment, under the statute of the state of Ohio. The officer, not being able to come at any property of O'Brien's served a process of garnishment upon the Wabash Railway Company, in whose service O'Brien was. Afterwards O'Brien came into court and moved to “discharge the attachment and release said garnishee, the Wabash Railroad Company, from the order of garnishment in his action: First, that the grounds stated and set forth in the affidavit for attachment are untrue; and Second, that the property attached in this action is, under the law, exempt from attachment.”

Upon the hearing the court ordered the attachment, as to the garnishee, to be discharged and the garnishee released from the effects of the garnishment, and thereupon a bill of exceptions was taken, setting forth the evidence presented to that court.

The question that is argued before us is, that the defendant, being a non-resident of the state, was not entitled to the benefits of the exemption laws of the state of Ohio. It is very earnestly contended that they were not applicable to him, in a proceeding of this kind—that even if they were in a civil action, they were not in a proceeding of this nature, which was claimed to be of a quasi-criminal character. The exemption act section 5430, provides:

"Every person who has a family, and every widow, may hold the following property exempt from execution, attachment or sale, for any debt, damages, fine, or amercement, to-wit: * *

*6. The personal earnings of the debtor, and the personal earnings of his or her minor child or children, for three months, when is made to appear by affidavit of the debtor or otherwise, that such earnings are necessary to the support of such debtor, or of his or her family; and such period of three months shall date from the time of issuing any attachment or other process, the rendition of any judgment, or the making of any order, under which the attempt may be made to subject such earnings to the payment of a debt."

So far as the question is concerned whether that law would apply to a non-resident or not, in a civil action—that question has been settled for us in the supreme court of the state, in a decision which may be found in the case of Sproul v. McCoy, 26 O. S., 577:

"By the Court: The exemptions from execution or sale allowed to every person who has a family, under the provisions of the act of April 16, 1873, (70 O. L., 132),” which is in fact, the act which I have just read may be claimed by any debtor against whom an action is prosecuted in the courts of this state, whether such debtor be or be not a resident of this state."

Looking now at the question, whether the defendant in a bastardy proceeding should have the benefit of that act, we will turn to the bastardy act itself. Section 5627 provides:

"Such putative father, after having been confined in prison for the period of three months, for failing to comply with the order of the court provided for in the last section, shall be entitled to the benefits of the provisions of law relating to insolvent debtors, in the same manner as persons imprisoned for debt; but before such putative father shall receive or be entitled to such benefits, he shall give at least three days'


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Lucas Circuit Court.

notice to the complainant or her attorney of his intention to apply therefor."

So that if the defendant had been arrested in this state, he would, after three months, have had a right to make application for the benefits of the provisions of the law applying to insolvent debtors.

Section 6361, makes this provision-among others:

"When any person, whether a resident in this state or not, shall be arrested, or be in custody of any sherill, or other officer, on miesne or final process, in any civil action, the officer having such person in custody, if requested by him, shall go with such person before the commissioner of insolvents of the county where such person shall be arrested, or in custody,” and * * * there he has to make out certain schedules and make certain disposition of his property, if any he has-and then it proceeds: **Provided, however, that nothing herein shall be construed to deprive any person of any right he may have to hold property exempt irom the payments of his delts, or to require him to assign or surrender any such property or rights in action to the commissioners, *** and it goes on to provide that a separate schedule is to be made etc., so that, if he had been a resident of the state, or arrested within the state being a non-resident, upon complying with the provisions of this act, he wculd have been entitled to the exemptions provided by the statutes of the state of Ohic.

Turning again to the pastardy act, secron 5633, it was provided in regard to attachments that may issue: "And attachments under this chapter shall be subject to the provisions of this title in reference to attachments in civil actions, and be governed in all respects thereby,' that is to say—by the general attachment laws of the state of Ohio.

Section 5636 provides as follows: "If, upon such trial, the accused be adjudged to be the reputed father of the child, the court shall order that unless the defendant within a day to be fixed by the court, pay the sum adjudged against him, with costs of prosecution, so much of the property remaining in the hands of the officer, after applying the money arising from the sale of perishable property, and so much of the personal property and lands and tenements, if any, as may be necessary to satisfy such order, be sold, under the same restrictions and regulations as if the same had been levied on by execution; the moneys arising therefrom, with the amount that may be recovered from the garnishee, shall be subject to the order and control of the court, and be applied to satisfy such order in such sums and at such times as the court may order and direct; if there be not enough to satisfy the same, the order of the court shall stand, and execution may issue thereon for the residue, in all respects as in judgments at law; and any surplus of attached property, or its proceeds, shall be returned to the defendant."

We feel quite clear, from the provisions of these various statutes, that the defendant in this action was entitled to his exemptions under section 5430 and that the court of common pleas did not err in so holding and in discharging the attachment and releasing the garnishee, and for that reason, the judgment of the court of common pleas will be affirmed.

M. B. Lemmon, Attorney for Plaintiff in Error.
Frank E. Wright, Attorney for Defendant in Error

Schausten, Admr. v. The Toledo Consolidated St. Ry. Co.


(Lucas Circuit Court, June 11, 1897.]


Ry. Co. NEGLIGENCE OF PERSON IN DRIVING UPON AND ATTEMPTING TO CROSS THE TRACKS OF A STREET RAILWAY. In this case the decedent was guilty of negligence in driving upon and attempt

ing to cross the track of a street railroad under all the circumstances attend.

ing the attempted crossing without looking to see if the cars were coming. HAYNES, J.

A petition in error is filed in this case by Emil W. Scbausten, an administrator, for the purpose of reversing the judgment of the court of common pleas in an action which was brought by Schausten, as administrator of Wm. Gerlach, against the Toledo Consolidated Street Railway Company, for alleged negligence causing the death of said Gerlach. The case was tried before the court and jury. A verdict was rendered in favor of the defendant company, a judgment rendered on that verdict by the court, and this case is brought here to reverse that judgment.

The facts surrounding the accident, as disclosed by the record, briefly stated, are these: Gerlach and a man named Butcher were employees of the Toledo Electric Company. Butcher was a night inspector, whose duty it was, in the night season, to go around through the different parts of the city and observe the city lights, and if any of them were found out of order or not burning, he was to attend to them. While on his rounds in the performance of this duty, it seems he met Mr. Gerlach, who seemned to have had a good deal of interest in the electric lights -being an employee of the same company with Butcher—and he concluded he would accompany Butcher and accordingly got into the buggy with him (which buggy, I think, belonged to the Electric company) and the two men then proceeded together about the business that Butcher had in hand. About 10:30 in the evening, or possibly a little later, they came on to Summit street and observed that the electric light located near the westerly end of the Cherry street bridge was not burning, and they thereupon drove down said street, upon the northeasterly side of it, to a point about thirty feet from the end of said bridge, driving up to the curbstone there and Butcher alighting and proceeding to climb the electric light pole and to adjust the light which he soon succeeded in doing, and he then returned to the buggy. As he came to the buggy and proceeded to get into it, Gerlach, who had driven the horse down there, was sitting in the buggy still holding the reins having charge of the horse. As Butcher stepped into the buggy the horse startedbefore Butcher had got his seat-started ahead a little, so that, as Butcher testifies, he had got down within ten feet of the bridge before it commenced to turn to go across the track—as they intended to turn at that point in the street. There was no room to turn between the curbstone and the nearest track of the street railway and thus it would be necessary in turning to cross the track, and perhaps both tracks, of the defendant company. As the horse tnened ond got somewhat on to the northeasterly track, the parties in the buggy suddenly discov

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