Hamilton Common Pleas.

PRACTICE-PLEADINGS.

[Hamilton Common Pleas Court, November, 1896.]

WM. LINKENSdorfer v. John Wentzel.

1. DECISION OF A DIVIDED COURT.

The opinion of a divided circuit court of another circuit, and contrary to the uniform holding of the common pleas court, of a certain district, is not binding on such common pleas court though it may be entitled to great respect as an authority.

2. A DEMURrer SearchES THE RECORD.

The rule that "a demurrer searches the record" does not apply to the record before a justice of the peace where all averments of appeal from a justice's court are omitted. BUCHWALTER, J.

The petition seeks recovery for $25, and omits all averment of appeal from the justice's court.

The original petition was in like form, to which Judge Sayler, of this court, sustained a demurrer as to jurisdiction of the court.

Plaintiff relies on McCullough Cromblef, 1 Ohio Cir. Dec., 182, which is a direct holding in his favor.

The decision is by a divided court and contrary to the uniform holding of our common pleas court in this district from time within our memory.

The seventh circuit, not being the reviewing tribunal of this court, does not bind our judgment though entitled to great respect as an authority. Neither is it conclusive authority for the Judges of another circuit.

The demurrer searches the record as pleaded. The transcript and original papers of the justice's court are not a part of such pleaded record.

This court has no authority to look at them in the determination of such demurrer to the jurisdiction.

The parties" proceed in all respects as though action had been originally in. stituted in the said common pleas court," section 6587, R. S. and are required to file their pleadings as in an original action in this court, sections 6589, 6598; the parties may waive such pleadings, Hallam v. Jacks, 11 O. S., 692; yet the plaintiff never becomes entitled to a judgment by default against the defendant except his petition be filed in this court setting up his claim as provided by statute.

The rule of judgment that the demurrer searches the record, is that it searches the pleadings of the parties to the end that the judgment should be given against the party whose pleadings were first defective in substance. Trott v. Sachrett, 10 O. S. 24 1-4; Railroad v. Mowatt, 35 O., S. 284-6, and citations therein.

We deem it the better practice, and with more satisfactory results in litigation for the pleader to waive such technical rights arising under our present code, but the question being raised can be logically determined only by sustaining the demurrer to the petition.

Righter v. Thornton et al.

JUDGMENTS-CREDITOR'S BILL.

[Hamilton Common Pleas Court, April Term, 1893.]

RIGHTER V. THORNTON ET AL.

JUDGMENT Rendered by Default.

A justice's judgment by default, where the summons was not served three days before, is not collaterally impeachable, and hence may be a valid foundation for a creditor's bill. Plaintiff's suit is a creditor's bill to subject assets to pay a justice's judgment rendered by default, the transcript of which shows that the constable served the summons on the second day before the trial, thus not giving the three full days required by Revised Statutes, section 6476. This transcript was objected to as evidence on the ground that the judgment was without jurisdiction, and void. BATES, J.

It is only necessary to mention the difference between want of jurisdiction and irregularity in procuring it or in acting under it when procured. The former renders the judgment void, and the latter only voidable; that is, not impeachable collaterally, though to be set aside on motion or error. The question came up on a direct attack on such a judgment in Williamson v. Nicklin, 34 Ohio St., 123, and it was reversed as erroneous. The question here is, whether the judgment , is void as well as voidable.

First-To examine the question in the light of the authorites collected by a somewhat careful search, they substantially point in the same direction, and classing them according to the facts, they divide thus: (a) Where the summons or publication is regular and state the answer day, or the statute fixes it, but judgment is entered by default before the defendant has had such time, the judgment is reversible on error, but is not void, and hence is not collaterally impeachable, such are the cases of Alderson Bell, 9 Cal., 315; Newman's Estate, 213; Town of Lyons v. Coclredge. 89 111. 529; Essig v. Lower, 120 Ind., 239; Mitchell v. Atehn, 7 Kan., 33; and Woodward v. Baker, 10 Oreg. 481, and there are no contrary authorities; (b) The same doctrine was applied to a justice's judgment by default entered before the return day, and the judgment was held validas against collateral attack in McAlpine v. Sweetzer, 76 Ind. 78, and Glover v. Holman, 3 Heisk, Tenn., 519; so of a justice's judgment without waiting one hour; Green v. Tower, Kan., 80 Pac. Rep., 468; (c) Where the writ or summons was not served in time to give the defendant the statutory number of days (three days in our state,) the justice's judgment was held good collaterally in Ballinger v. Tarbell, 16, Iowa, 491, Stea v. Painton, 30 Iowa, 58; and Darrah v. Watson, 36 Iowa, 116, but was held wholly void in Johnson v. Baker, 38 Ill., 293, Williams v. Bower, 26 Mo., 601; Howard v. Clark, 43 Mo., 344; France v. Evans 90 Mo., 74. Somewhat like this is where the writ itself did not give the statutory time for answer, the judgment was held good collaterally, as in Whitwell v. Gambier, 7 Cal., 54.

The above authorities establish that a premature judgment is not void, but voidable only, and hence good collaterally. A service of summons on the return day was held good in Meisse v. McCoy, 17 Ohio St., 225, and yet that shortened the defendant's time one day. True the decision does not notice this point, but it was noticed in the exactly similar decision of Dutton v. Hobson, 7 Kan., 175.

The last class of the above authorities is most nearly like the case at bar, and yet the majority, composed of Illinois and Missouri cases, deny the validity of the judgment in toto, contrary to the general drift of the foregoing decisions. Second-On principle, the defect in the writ does not make the judgment void collaterally. The justice's jurisdiction extended over such subject matter as was in controversy, and there had been personal service, hence, under the above

Hamilton Common Pleas.

authorities, the error was not in a want of jurisdiction, but in the mode of exercising his powers. The Missouri cases cited above proceeded on the theory of an essential difference between a justice's court and a superior court. But in Ohio a justice's court is a constitutional tribunal, (Const., art. IV, sec. 9), and except that as a limited one, it is to be strictly held within the limits of its prescribed jurisdiction, and its records must affirmatively show the facts establishing jurisdiction, there is no difference between courts of inferior and general jurisdiction, or rather between courts of record and not of record. See Hendrick v. Whittemore, 105 Mass., 24; McCurdy v. Baughman, 43 Ohio St., 78; Moore v. Robinson, 6 Ohio St., 302; Sheldon v. Newton, 3 Ohio St., 404, 500; Adams v. Jeffries, 12 Ohio, 253, 272.

If then, as above shown, the judgment of a superior court, before the answer day called for in writ or publication, is merely erroneous, but not colatterally impeachable, how much more so is a judgment taken at the exact time called for in the writ; for here the defendant is not misled, and if he does not choose to appear and object, should be held to waive the defect of delay in the service. The case of Gifford v. Morrison 37 Ohio St., 502, is analagous where the constable altered the writ by changing the date of trial, and a judgment by default on the day named in such unauthorized writ was held not enjoinable.

The transcript thereof is admissible in evidence, and shows a sufficient judgment to sustain a creditor's bill, for the attack on it is collateral and not direct.

Scott Bonham, for Plaintiff.

Judge Wm. L. Avery, for Defendant.

MEAT STANDS-LICENSE-ORDINANCE.

[Hamilton Common Pleas Court, July, 1896.]

KRAFT V. CINCINNATI.

1. SELLING CONTRARY TO MARKET REGULATIONS, WHEN NOT PUNISHABLE.

Where a license has been issued to sell fresh meats from a stand, and the holder is refused a stand in the market-house, he cannot be prosecuted for selling in the open air, contrary to the market regulations.

2. ORDINANCES REGULATING SALE of NecesSARIES OF LIFE.

Where the municipality regulates the sale of the necessities of life in its markets by ordinance, such ordinance should be general in its nature and impartial in its operation.

ERROR from the police court of Cincinnati.

HOLLISTER, J.

The plaintiff in error was licensed by the city auditor "to peddle or hawk" meats from a "stand" by virtue of a municipal ordinance. He erected a stand at the curb of Court street, in that part thereof set apart for market purposes on designated market days, and on a market day sold fresh meats in quantities less than one-quarter at retail. In Court street is a market house wherein are stands used by butchers under license. It does not appear from the bill of exceptions that the stands within the market house are different from the stands without it, or whether the license issued to vendors of fresh meats within the market house differ from the license granted to peddle and hawk. And it does not appear but that the license fee exacted in each case is the same.

Plaintiff in erorr was arrested tried and convicted in the police court for unlawfully offering, exposing for sale and selling, "in the streets of said city set apart for market purposes, to wit, Court street, certain fresh meats in quantities less than one-quarter," under an ordinance which prohibits such conduct.

Kraft v. Cincinnati.

It does not appear that the butchers occupying stands in the market house are permitted to sell fresh meats in quantities less than one-quarter. The stand of the plaintiff in error was at the curb of the street, opposite the market house and within a short distance therefrom.

It may be assumed that the licenses to sell meats are the same whether the stand of the licensee is located within the market house, or in the street within the market space (and that is the necessary assumption, there being no evidence to the contrary). There is authority for the contention that it is competent for the city to require that all vendors of fresh meats in quantities less than onequarter in market spaces shall obtain stands in the market house and vend their wares therefrom. City of St. Louis v. Jackson, 25 Mo., 37; City of St. Louis v. Weber, 44 Mo., 547. If this is true then the city must provide space within the market house for its licensees; otherwise it would exact fees for licenses under which the licensees would not acquire any right or privilege although they had paid for it. And this statement brings into view the pertinence of a line of questions propounded by counsel for plaintiff in error which the court held to be inadmissible.

The plaintiff in error offered to prove "that all of the stands that are set aside for the butchers in the Court street market house are occupied," and that he had made application for a stand in the market house, and had been refused. He also offered to prove that the butchers within the market house are permitted to sell meats in quantities less than one quarter; but was not permitted to do so. Now if the licensee desired to sell and was licensed to sell quantities less than one quarter, and the only place where he could legally sell was in the market house, he was entitled on application to a place for his stand in the market house. If the market house was full, then the city had no right to take his money and grant him a license to do that which it was impossible for him legally to do. And it the market house was not full, and he had been arbitrarily refused a place therein, the result would be the same, with the additional criticism that the city would be fostering monopoly in the interest of the few butchers who are permitted to occupy stands within the market house, and sell therein in quantities less than one quarter. The result under the facts offered to be proved by the plaintiff in error would be unjust and unreasonable, in that the city would make his conduct unlawful, against his will, and in spite of his efforts to conform with the ordinance, and would discriminate arbitrarily against him in favor of others licensed to carry on exactly the same business which he had authority to pursue, and because the city had, with one hand, so to speak, granted him the right to do a thing, and had, with the other, taken it away, by rendering its performance impossible.

This cannot be permitted under the law.

Judge Dillon, speaking clearly on this subject, says: "As it would be unreasonable and unjust, to make under the same circumstances, an act done by one person penal, and if done by another not so, ordinances which have this effect can not be sustained. Special and unwarranted discrimination, or unjust and oppressive interference in particular cases, is not to be allowed. The powers vested in municipal corporations should, as far as practicable, be exercised by ordinances general in their nature and impartial in their operation." Dillon on Munic. Corp., 322 (256).

And, "the test is," says the same author in note 2 to the section cited, "that the regulation must be reasonable as applied to the subject-matter.

The effect and operation of this ordinance under the facts offered to be proved made it necessary for the plaintiff in errror to infringe the ordinance or abandon the sale of fresh meats in quantities less than one quarter.

I am of opinion that even if the ordinance in question is on its face regarded as a proper exercise of the city to regulate the sale of the necessaries of life in the markets, yet in its operation and effect as applied to the facts offered to be proved in this particular case, it is oppressive, discriminating, unreasonable and

Franklin Common Pleas.

unjust, and tends to foster monopoly. In this view of the case the conclusion must be that the plaintiff in error should have been permitted to prove the facts which would have made the ordinance invalid as to its operation and effect in this case.

See, also, City of Bloomington v. Wahl, 43 I11., 489; City of St. Paul v. Laidler, 2 Minn., 190; City of Burlington v. Dankwardt, 73 Iowa, 170.

Judgment reversed.

Judge Ermston, for Plaintiff in Error.
J. C. Hart, for the City.

CONTEMPTS.

[Franklin Common Pleas, 1896.]

IN RE PRESS-POST.

1. RIGHT OF NEWSPAPERS TO REPORT COURT PROCEEDINGS.

A newspaper is granted immunity from responsibility for fair, accurate and impartial reports of a trial held in open court, and for editorial comments upon the manner of administering justice therein, which are made fairly and in good faith.

2. ABUSE OF PRIVILEGE GRANTED TO NEWSPAPERS TO REPORT COURT PROCEEDINGS. Where a newspaper criticises a court or any of its officers, attorneys, witnesses or parties, unjustly or intemperately, or if it publishes a false or unfair report, during the pendency of a case, tending to prejudice the public or the jury, and tending to obstruct the administration of justice in that particular case, then in such case it makes itself liable for contempt.

PUGH, J.

Passing to the oral charge that the Press-Post has been publishing matter calculated to obstruct the administration of justice in this case, for the purpose of determining whether a formal charge of contempt should be ordered against that newspaper, I have read all the editorials and reports published in its columns since the trial began. The inquiry could not be extended back of that period, for the contempt of law only reaches and regulates publications made during the trial of a case.

A newspaper is granted immunity from responsibility for fair, accurate and impartial reports of a trial held in open court, and for editorial comments upon the manner of administering justice therein, which are made fairly and in good faith. If the editor criticises the court or any of its officers, attorneys, witnesses or parties, unjustly or intemperately, or, if the reporter publishes a false or unfair report during the pendency of the case, tending to prejudice the public or the jury, and tending to obstruct the administration of justice in that particular case, they make themselves liable for contempt.

It is just as pernicious and reprehensible for either the editor or reporter, by such publications, to cast unjust reflections on the conduct of witnesses, parties, counsel, jurors, or judges, during the pendency of the trial or in any other way to unlawfully seek to influence the administration of justice, when such publications are liable to be read by the jurors, as it would be for an individual to write a letter containing such reflections which would be liable to be read by the jurors. These observations are fully supported by the decisions of our supreme court in the case of State v. Myers, 46 Ohio St., 473. Indeed the court goes much further in the statement of the law.

An editor or reporter who loves Anglo-Saxon fair play will not, in this way, invade the temple of justice even to promote and hasten punishment upon what seems to him to be a great municipal or public wrong, because such conduct is calculated to destroy that benign and humane principle which presumes that the accused are innocent till the proof establishes their guilt; and because it tends