Cuyahoga Circuit Court. judgment of September 14, 1893; excluded all evidence tending to establish that judgment, and as there was no other evidence offered by the plaintiff, directed a verdict for the defendant, to which the plaintiff excepted. Exceptions were also noted by the plaintiff to the overruling of a motion for a new trial. The evidence offered was not a record of the entire proceedings in the probate court. It consisted of the citation that I have quoted, and of certain docket entries which is denominated Docket D, probate court, page 131, as follows: "June 8, 1874, George Gilbert, guardian for William A. Gilbert, age twenty years. Bond, $500.00. J. M. Richards and E. M. Brown, sureties. Bond filed and letters issued, 42. April 23, 1883, citation to file account issued. April 30, 1883, citation returned not served. August 28, 1893, complaint by former ward filed, set for,hearing September 14, 1893, at 10 A. M., and citation ordered, etc., Journal 41-44. Citation issued." The complaint itself was not produced, and it does not appear from this record what it was other than appeared from the journal entry and these brief docket entries. Upon this evidence the plaintiff rested his case. The plaintiff contends that that judgment is a final and conclusive determination of the account due William Gilbert from his father and former guardian, and by that judgment both the principal and surety who signed the bond are bound; while the defendant asserts that such adjudication was and is absolutely void. The determination of this question in favor of either party determines the case. The other questions are of comparatively small importance, for if that judgment was conclusive upon the surety, logically I do not see why that does not end the case. All the defenses sought to be made here, should have been plead when the judgment was taken. If it was not conclusive, but absolutely void, the judgment of the court of common pleas was right; because there was no evidence other than that offered to sustain that judgment, and if that judgment was void, then the judgment of the court of common pleas is correct. As I have said, at the time the judgment was rendered, Gilbert was a non-resident of the state. Had the probate court jurisdiction to render that judgment? This question must be solved by an examination of the statutes of the state upon which the validity of that adjudication depends. There was an attempted service of process upon the guardian, the former guardian, proceeding upon the supposition that notice of some kind to the guardian was necessary in order to give the court jurisdiction to render the judgment that was rendered. But so far as we are able to find, there is no provision made by the statutes of our state, for the service of process in this proceeding upon a former guardian, in a foreign state in which he resides. There is no express provision of the statute authorizing such a service. It is said that section 6406 of the Revised Statutes is sufficient to sustain the service of this citation. That section provides that, "When notice of any proceedings in a probate court shall be required by law, or be deemed necessary by the probate judge, and the manner of giving the same shall not be directed by statute, the probate judge shall order notice of such proceeding to be given to all persons interested therein, in such manner and for such length of time as he shall deem reasonable. We are of the opinion that this statute was not intended to provide a means of serving process upon a non-resident, but has effect only within the jurisdiction of the court. Gilbert v. Gilbert and Pope. The record discloses n order of the probate court providing the manner and the length of time for which notice should be served. Notice was served apparently as if no order was required. Again, it is said that sections 5048 and 5052 Revised Statutes are broad enough to authorize the service that was made in this case. We think there was no attempt on the part of the plaintiff to procare service under those sections. Nor are we convinced that they are applicable to this kind o proceeding. The general rule, of course, is that process served beyond the mits of the state in which the court is located, is without any effect, certainly unless authorized by some statute of the state. In this case the process was without authority, and wholly void as we think. No jurisdiction therefore was obtained by virtue of the process served on the defendant, Gilbert in Chicago. And if some process was necessary then the court was without jurisdiction. It is further said in support of this judgment, that the proceedings in the probate court, of September, 1890, were in the nature of proceedings in rem, and no notice on the person was necessary. We are aware that it is sometimes said, that proceedings to settle an account between the administrator and the estate, is of the nature of a proceeding in rem, to some extent. The argument by counsel for plaiatiff in brief is, that the bond was within the jurisdiction of the court; that it was the thing sought to be reached, and to reach it was an action in cm The bond could only be enforced against the surety certainly by a personal action. And it would seem that any judgment by which he could de concluded, was as to him an action in personam. The bond is a contract; and fixes and measures the ability of the surety to the ward. We cannot assent to the proposition that because the bond was within the jurisdiction of the court, the setting of that account was conclusive as to the surety upon the bond, without notice. Again, it is said that by the appointment of the guardian, the court acquired jurisdiction to compe this accounting and render the judgment which was awarded by the probate court, and that no notice whatever was necessary. The Jansdicnon was acquired in the appointment of the guardian. This cuestio is not without difficulty. We are aware that the district court of Hamilton county, in case in som respects like the one now under consideration, reported in the Twelfth Weekly Law Bulletin, page 107, stained the jurisaiction or the probate court. In that case, however, the proceedings were commenced promptly in the probate court, and prosecuted without delay. In the case under consideration, the facts are entirely different. The guardian, after his ward became of age, remained in the state for a year or more. Whether he appropriated the property of ais ward to hrs own use before or after he left the state, is not disciosed in the record The ward made no move to compel an accounting during the year his father remained within the jurisdiction of the court, aor for more than seventeen years after he be came a nonresident of the state. The claim insisted on here is that under these circumstances the probate court obtained jurisdiction to render the judgment and award an execution. We think such a rule would be grossly unjust, and should not prevail. Reason and common tustice require that after this long length of time, and such laches on the part of the ward, some legal notice should De given the former guardian before an accounting could be legally made between him and his ward. It will be observed that the surety alone de Cuyahoga Circuit Court. fends the action brought upon the bond. He seeks to defend against an action brought upon his contract, and is met with the objection that in a proceeding had in the probate court, without notice either to the former guardian or to himself, and nearly twenty years after that contract was made, an accounting was had between the guardian and the ward, conclusive against him, and against which no defense can be made. Judgment is sought on the bond against him, based solely upon that judgment of accounting made in the probate court. If for the reason now under discussion, the probate court had at any time jurisdiction to compel this accounting without notice to the former guardian, who had become a non-resident of the state, certainly it seems to us that a time must come when such jurisdiction would be lost. We are therefore of the opinion that under the circumstances of this case, the jurisdiction of the probate court cannot be sustained under this claim. Without extending this discussion, we hold that the judgment rendered in the probate court, relied on as a basis of this action, is without any binding effect or force whatever as against the surety in the bond. Upon the proof offered upon the trial, no other judgment could properly have been rendered than the one that was rendered. It may be said that this leaves the ward without any remedy whatever. That proposition is not well taken. While in this state, as a foundation for an action upon a bond, an accounting in the probate court ordinarily is first to take place to ascertain the amount due the ward, still if for any reason the probate court loses jurisdiction of the guardian to compel an accounting, an action in equity may be maintained upon the bond without that accounting. Such has been, at least, the expression of our supreme court, in a case, it is true, where it was not directly involved. But a case to which our attention has been called recently decided in the state of New York, in the supreme court, the appellate division, an action was sustained upon an executor's bond, given in the state of New York, where the property came into the hands of the executor, who removed to the state of New Jersey, and there squandered the estate, or in some way disposed of it. An action was instituted upon the bond in the state of New York, and the defense made that no accounting had been had, and therefore no action upon the bond could be maintained, but the court held: "The non-residence of the executor gave to a court of equity jurisdiction upon the bond without the accounting." We do not mean to say that at this late day an accounting upon this bond in equity can be had. An attempt to institute and enforce that right would be met by a plea of the lapse of time that had been allowed to pass, the effect of which we need not here pass upon. That action, if it could be maintained at all, could have been maintained many years ago. But the view we have taken results in the affirmance of this judgment. It might be suggested that the judgment goes beyond the power of the probate court; that is, conceding that the probate court may compel an accounting in a case of this kind, it may well be suggested that was not what the probate court did. That court found that there had been no accounting, that the guardian was in default, and thereupon found the amount due the ward and rendered a personal judgment for that Railway Co. v Tuttle. amount against the guardian. But possibly that would be not a void but an erroneous judgment, and not subject to a collateral attack. But we have concluded to affirm this judgment. Winch & Wolcott, counsel for plaintiff in error. PLATS-BOUNDARIES. [Sandusky Circuit Court, December 15, 1896.] Haynes, Scribner and King, JJ. C. S. & C. R. R. Co. v. FRANK J. TUTTLE. 1. CHANGE OF PLAT BY SURVEYOR. Where a surveyor makes a plat of certain land and the dimensions or lengths of the lines that are laid down upon the plat conflict with proved or admitted facts they must give way to them. 2. INTENT OF OWNER TO PREVAIL. Where certain lands have been platted in lots which the owner conveys by lot numbers, it matters not whether their boundary lines are correct or whether he gave entirely wrong lengths to all of them, as the intent s manifest to convey all the land, which intent cannot be overcome by any theory that may be subsequently discovered. 3. SHORTAGE ON PLAT TO BE DIVIDED PRO RATA BETWEEN THE PARTIES. If there is a shortage on a plat in which the owner intended to plat all his property, it is the well settled rule in this state that such shortage will be divided as near as possible pro rata between the owners of the whole. KING, J. This action was pending in this court by an appeal from the judgment of the court of common pleas. July 21, 1886, the railroad company filed its petition in the court of common pleas against Franklin J. Tuttle in which they averred that they were the owners of a certain described piece of land and entitled to ts possession and that the defendant was keeping them out of possession of part of it and that unless restrained he would appropriate the premises in question to his own use. There was an answer to that petition after a time in which the defendant denied that plaintiff was the owner of the premises in question and he went forward in his answer to state the circumstances under whic th property had been divided into lots and conveyed to its different owners and proprietors bu claimed from its allegations that the plain it had never acquired any title to the premises which defendant was claiming and also set up as defense that the rights, if any there were, were vested in another defendant, to-wit: The I. B. & W. Railway Company. There was also an amended answer to that petition setting for t substantially the same facts as originally, denied the title of the plaint f, denied the defendant was keeping the plaintiff out of possession of his own property and then going forward to set up facts with relation to th platting of this land and its conveyance and showing by the allegations of the answer that according to the original plat there was a portion of the land in the tract platted or which was claimed to be platted that had not been actually platted and had not been conveyed and he gives the Sandusky Circuit Court. dimensions substantially of this strip of land and alleges the plaintiff has not any interest in it and he prays that all the matters in difference between the parties concerning the said boundary may be adjusted and said plat may be reformed so as to represent the survey as made between the said lots. Sometime after that, January 10, 1890, the plaintiff filed another petition called an amended petition in which the plaintiff averred it was a corporation, that it was the owner of the lots, giving their numbers, and that the plaintiff was at the time of the commencement of this action, in the actual possession of the said lots and had good title thereto in fee simple, that these lots had formerly borne a different numbering and he gives it, and that defendant was giving out at the time of the commencement of this action, 1886, in public speeches and making claim to part of the lots, a strip off of the south part-o said lots, and that defendant threatened to take possession of the same and gave out that he had title thereto and that plaintiff had no title to any part of the premises in question, or on part of the premises lying south of a certain line and that soon after the commencement of this action the defendant had knocked down about rods of the fence plaintiff had erected in the north line of the premises, was still giving out and claiming that he was the owner of these premises and that the defendant since the commencement of this action had built a shed on the west extremity of one of the lots and said building or shed now stands on part of defendant's premises, and prays that defendant's title may be determined, plaintiff's title may be quieted and defendant enjoined from interfering with the plaintiff in any manner. If he should be found in possession of any part of these premises that he be ordered to surrender them. In due time there was an answer filed to that petition. There was a denial that plaintiff was the owner and also a denial that he was in the posession of any part of this strip, and then setting up substantially the facts as previous answers, praying that the amended petition be dismissed and that to avoid further litigation the defendant prayed that the plat which he before described might be corrected in the manner he therein alleges. Soon after this a supplemental answer was filed, setting up some additional facts, averring all the interest the plaintiff company have in the premises, came to it by virtue of a deed from a prior company and that there never had been any conveyance of the premises in question by the prior company, the owner, who held the. title originally, to the plaintiff company. There was a reply filed to that, and another supplemental answer is filed, alleging that since the filing of the petition the plaintiff had conveyed its title to still another corporation, then there is a third amended and supplemental answer filed and it seems to cover substantially the same ground the original answer covered with many additional allegations, the length of which will preclude me from reading. There was a reply denying the allegation that the land was conveyed to another corporation and there was a lease for a term of 99 years, renewable forever. Finally these parties came to trial in this court upon the evidence and issues joined by these pleadings, and I will briefly state the conclusion we have come to. From all these pleadings we can extract this fact. that this controversy is a dispute over boundary line and is as fairly within the case of Ellithorpe against Buck, 17th Ohio State, 72. It is |