(145 N.E.) Porter v. Rohrer, supra, forbids so strict a construction of the steps necessary to perfect a proceeding in error, and we are of opinion that the Court of Appeals erred in striking the transcript of the docket and journal entries from the files and in dismissing the petition in error. The judgment of that court in so doing is, therefore, reversed, and this cause is remanded for further proceedings according to law. Judgment reversed. time after such filing and withdrawal would be needed to prepare a transcript of the record for filing (later) in the reviewing court, which obviously would be after the expiration of the 70-day period, it follows that time is not of the essence, and that the failure to file the transcript of the docket and journal entries or the final record at the precise time the petition in error is filed is not jurisdictional. Moreover, it has been held that where the excepting party does everything required of MARSHALL, C. J., and ALLEN and him, the inattention, malfeasance, nonfeasCONN, JJ., concur. CONN, J., concurring. My concurrence in the judgment of reversal is based on the following reasons: It is the commonly accepted rule that the statutory steps must be followed strictly to pave the way for review. Under our practice, an excepting party is required to file a petition in error, a bill of exceptions, if necessary to show the facts, and procure the issuance and service of summons, all within the prescribed time. The statute provides also that such party shall file with the petition in error a transcript of the docket or journal entries, or a transcript of the original record. ance, or misfeasance on the part of an administrative officer will not deprive such party of his right of review; for instance, if a bill of exceptions is filed with the clerk within time, the failure of the trial judge to sign same within rule will not prevent allowance of the bill, since the judge may sign after the expiration of the statutory period. See Porter v. Rohrer, referred to in Judge DAY'S opinion. petition in error is directory only, and that where the excepting party, within rule, has filed the appropriate precipe for a suitable transcript, and has followed the matter up with such diligence as results in a filing of the transcript in the reviewing court within a reasonable time, the excepting party is entitled to have his case reviewed. In view of this, and of the holding in Heininger v. Davis, Mayor, 96 Ohio St. 205, 117 N. E. 229, also referred to in the opinion of Judge DAY, and also of the quoted portion of the above section, I am of opinion that the provision of the statute requiring the filThe question in the instant case grows outing of the docket or journal entries with the of the fact that the excepting party, having filed in the Court of Appeals a petition in error, bill of exceptions, and waiver of issue and service of summons, and having also filed with the clerk of the common pleas within the requisite time a precipe for a transcript of the docket and journal entries, did not procure such transcript to be filed in the reviewing court within the prescribed time; indeed, did not cause same to be filed until the seventy-sixth day after the overruling of the motion for a new trial. If it were not that the closing sentence of section 12263, General Code, provides as it does, such omission would have been fatal. That portion of the section reads: "If the original papers and pleadings are filed, and the final record has not been made, the reviewing court may permit their temporary withdrawal for a reasonable time to allow the recording thereof, or direct copies to be made and filed and the originals to be returned to the inferior tribunal." SNEDAKER v. KING. (No. 18155.) * (Supreme Court of Ohio. Oct. 7, 1924.) (Syllabus by Editorial Staff.) Injunction 94-Restraining defendant from associating, being near, or communicating with plaintiff's husband held unwarranted. In alienation suit, decree restraining defendant from associating with plaintiff's husband, going near, or communicating with him held unwarranted extension of equity jurisdiction. Marshall, C. J., and Day, J., dissenting. Error to Court of Appeals, Adams County. Action by Grace King against Jessie L. Snedaker. Judgment for plaintiff was arfirmed by the Court of Appeals, and defendModified and affirmed. ant brings error. [By Editorial Staff.] Under favor of this provision of the statute, the excepting party may file his petition in error and bill of exceptions in the reviewing court before the record in the trial court has been made up, and the papers so filed then be withdrawn temporarily and returned to the trial court to permit the final record to be made. The excepting party thus may Grace King filed suit in the court of comfile his petition in error on the fifty-ninth mon pleas of Adams county against Jessie L. minute of the eleventh hour of the last day Snedaker, and in her amended petition allegand then withdraw the papers for the prep-ed that she is the wife of Homer King, they aration of the record. As some period of having been married May 14, 1908, to which For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied November 13, 1924. Upon the issues thus tendered the parties went to trial, and the court of common pleas reached the following conclusion: "This cause now coming on for hearing, and a jury having been by the parties in open court orally waived, and the court consenting thereto, was submitted upon the pleadings and the evidence to the court; on consideration whereof the court find on the issues joined for the plaintiff, and that the allegations of the petiplaintiff is entitled to the relief prayed for. tion and each of them are true, and that the marriage four children were born, all now, denial of each and everv averment and albeing under 16 years of age, who reside with legation of the amended petition. the plaintiff; that about five years prior to the filing of the amended petition the defendant, purposely and maliciously, intending to win from the plaintiff the affection, companionship, conjugal relation, support, and love of her husband, and to appropriate the same to herself, wickedly, secretly, stealthily, and maliciously caused him to dislike plaintiff by making to him false statements regarding plaintiff, and by showing him numerous marks of affection, and by writing, speaking, and communicating with him and visiting him at his home and other places, and by other acts of conduct toward and with him, by which means the defendant unlawfully, purposely, and maliciously caused plaintiff's husband to begin to lose his love and affection for plaintiff, and to form an attachment and affection for the defendant. The plaintiff says that upon discovering this condition she asked the defendant to desist from further attentions to her husband, but this the defendant declined to do, and the plaintiff says that the defendant will continue in doing these things complained of unless restrained by an order of court, by which, if permitted to continue, plaintiff will be entirely deprived of the love, esteem, affection, co-operation, aid, support, and conjugal relation of her husband. The plaintiff further avers that the defendant is financially irresponsible for the actual financial damages already suffered by the plaintiff, and as a prayer for relief the plaintiff asks that the defendant be restrained and enjoined from visiting or associating with plaintiff's husband, or going to or near him at plaintiff's home or elsewhere, or at any other house or place where her said husband may be; that she may be restrained and enjoined, either in person or through an agent or employé, or otherwise, from writing or speaking to him, or in any manner, either directly or indirectly, communicating with him by word, letter, writing, sign, or symbol, or doing or causing to be done any act or thing whatever preventing or tending to prevent plaintiff's husband from giving to plaintiff his love, affection, companionship, conjugal relation, or support; that the defendant, her agents or servants, be restrained from interfering with the plaintiff in her peaceful efforts to speak, talk, write, and communicate with her husband, and to regain his love, esteem, support, and conjugal relation, and that upon final hearing the injunction be made perpetual, and that she recover damages in the sum of $20,000, and for all such other and further relief to which she may be entitled, either in law or equity. A motion was filed to this amended petition, which was overruled and exception noted. A demurrer was then filed by the defendant, which was likewise overruled. An answer was then filed, consisting of a general "It is therefore considered and decreed by the court that the defendant, Jessie L. Snedaker, be and she hereby is perpetually enjoined from visiting or associating with Homer King, husband of plaintiff, or going to or near him at plaintiff's home or elsewhere, or any other house or place where said Homer King may be; and that she be and hereby is further enjoined, either in person, through an agent, employee, or otherwise, from writing or speaking to him, or in any manner, either directly or indirectly, communicating with him by word, letter, writing, sign, or symbol, or doing or causing to be done any act preventing or tending to prevent said Homer King from giving to plaintiff, Grace King, his wife, his love, affection, companionship, conjugal relation, or support, and servants, be and hereby is enjoined from interthat said Jessie L. Snedaker, her agents and fering with plaintiff in her peaceful efforts to speak, talk, write, and communicate with her said husband, Homer King, and to regain his love, esteem, affection, support, and conjugal relation; to all of which finding, judgment, and decree the defendant excepts, and asks that her exceptions be noted of record. And the plaintiff having waived any damages above the sum of five ($5), the court further find that by reason of the facts set up in the petition the plaintiff has been damaged by the said defendant in the sum of five dollars ($5). "It is therefore considered by the court that the said plaintiff, Grace King, recover from the defendant, Jessie L. Snedaker, the said sum of five dollars ($5), and her costs herein expended. Approved December 1, 1922. "This case heard on defendant's motion for said motion not well taken, and overrules the new trial, and on consideration the court finds same; to which finding, ruling, and judgment defendant, by her attorneys, excepts, and her exceptions are noted of record." Error was prosecuted to the Court of Appeals, and the finding of the court of common pleas was affirmed. To reverse this judgment of the Court of Appeals, error is now prosecuted to this court. C. E. Robuck, of West Union, for plaintiff in error. Blair & Blair, of Portsmouth, for defendant in error. PER CURIAM. The decree in this case is an extreme instance of government by injunction. It attempts to govern, control, and direct personal relations and domestic affairs. Among other restrictions placed upon the de (145 N.E.) fendant by this decree is that of remaining,olation of this particular order will depend, away from any place where plaintiff's hus- at least largely, upon the testimony, not of band may be, and from interfering with indifferent third parties but of these particuplaintiff's efforts to communicate with her lar two people. Under these circumstances it husband, and with her efforts to regain his is difficult to see how the court can enforce love, esteem, support, and conjugal relation. the injunction granted herein without attachIt would be only a little more extreme if the ing a probation officer permanently to both husband had been made a party defendant, Miss Snedaker and King. and a mandatory injunction decreed requiring him to discharge all the duties of companionship, affection, love, and all other obligations, legal and moral, assumed by him when he entered the conjugal relation. Ample and adequate provision has been made by statute whereby the plaintiff's husband may be required to discharge every obligation imposed upon him by law, not only toward the plaintiff, but also in behalf of their children. There is no averment that the husband has failed in any of these particulars. In that respect the injunction is based upon the apprehension of the plaintiff that she may in the future be deprived of support, by reason of the alleged alluring conduct of the defendant toward plaintiff's husband. Such extension of the jurisdiction of equity to regulate and control domestic relations, in addition to the legal and statutory remedies already provided, in our opinion is not supported by authority, warranted by sound reason, or in the interest of good morals or public policy. The opening of such a wide field for injunctive process, enforceable only by contempt proceedings, the difficulty if not impossibility of such enforcement, and the very doubtful beneficial results to be obtained thereby, warrant the denial of such a decree in this case, and require a modification of the judgment in that respect. Judgment modified and affirmed. any * * * Second: The order passes all bounds in its lack of limitation. Under this order, what is Miss Snedaker to do if she passes King upon the street? Must she cross the street in order not to go "near him * * at place where said Homer King may be,” or may she stay upon the same side of the street and pass him? Under such circumstances may she say "good morning" to him, or in so doing will she be violating the order that she is not to communicate with King "by word"? Third: This injunction should not issue, because an order that forbids a man and woman to see each other or to speak to each other under the facts herein set forth, merely adds fuel to the flame. If the wife is to be assisted in her fight for a rehabilitated home, action should not be taken which will almost inevitably make wrong-doing even more alluring to her husband. It has been urged that to dissolve this injunction is to condone the action of the plaintiff in error. Equity, however, refuses to enjoin many acts which it does not condone. Equity will not enjoin the commission of crime. This is not because it condones the commission of crime, but because it takes no part in the administration of the criminal law. Neither does this court condone the acts set forth in the petition and found by the trial judge. It is significant to note that the judgment against Miss Snedaker has not been reversed; ROBINSON, JONES, MATTHIAS, and AL the injunction only has been dissolved. Up LEN, JJ., concur. CONN, J., not participating. ALLEN, J. (concurring). No one who views the marriage contract from an ethical standpoint can have the slightest sympathy for the plaintiff in error upon the record disclosed herein; however, I concur in the per curiam opinion of the majority of the court for the following reasons: First: While it is true that any injunction is enforceable only through contempt proceedings, it is also true that this particular order is unusually difficult of enforcement. The ordinary injunction involves a prohibition against selling property or against doing some act which will involve indifferent third parties; that means that proof of the violation of the order may usually be readily secured. In this case the injunction affects two people only. Under the facts as found, these two people stand in a wrongful relationship to each other. Proof of the vi 145 N.E.-2 on the facts as found by the trial court Miss Snedaker's action is still branded in this court. That condemnation is her most adequate punishment. To add thereto a judgment, which, from the perversity of human nature, would tend to defeat rather than to accelerate the reconciliation of the husband and wife, seems unwise. MARSHALL, C. J. (dissenting). The state ment of facts in the brief per curiam opinion shows that this is a case where a lawful, dutiful wife has invoked the aid of a court of equity to protect her marriage contract, her home, and her little brood of infant children, against a "vampire" who persists in her efforts to win the husband and father from the performance of his duties to his home and family. It must be kept clearly in mind in a discussion of this case that the husband is not a party to the suit, and that the wife, Grace King, brings the action soley against the vampire, Jessie L Snedaker. 18 145 NORTHEASTERN REPORTER The case comes to this court in a very | the decree is "an extreme instance of govThe ernment by injunction." This rather odious unusual and extraordinary manner. amended petition of the wife was filed May expression had its origin in the widespread 15, 1922, and, after motions were filed there- criticism of injunction suits arising out of to and overruled, a demurrer was filed on labor strikes, where it was claimed that the Manifestly, that October 24, 1922, which was promptly over- government was trying to maintain law and ruled by the court on November 3, 1922. order by civil processes. Thereafter, on December 1, 1922, Miss Sne- odious expression has no proper application daker filed an answer which was a general to the case at bar. The very next sentence denial. Upon the issues thus joined the par- of the per curiam opinion shows that it has ties went to trial; a jury being waived and no application, because the second sentence the case being tried to the court upon the states that this case is an attempt to "govquestions of injunction and damages. After ern, control and direct personal relations and The husband not being full hearing, and it appearing that Miss Sne- domestic affairs." Again the majority opindaker was not financially responsible, and ion is inaccurate. Mrs. King having offered to waive any damages above $5, judgment was entered in the sum of $5. As a part of the same judgment Miss the injunction was made perpetual. Snedaker promptly prosecuted error to the Court of Appeals, but it is significant that she did not see fit to procure a bill of exceptions, and that she was content to rest her error proceedings upon the record without a bill of exceptions, and it is well settled by the practice of this court that she therefore presented in the Court of Appeals, and also in this court, only such alleged error as the petition, the answer, and the judgment of the court should disclose. The only assignment of error in the petition in error filed in this court is that the Court of Appeals erred in refusing to reverse the judgment of the common pleas court. The unwillingness of Miss Snedaker to sub- | mit a transcript of the testimony in the trial court for the consideration of the Court of Appeals on review leaves her in no position for charitable consideration at the hands of this court. By reason of her financial irresponsibility, and the judgment for damages having been placed at the nominal sum of $5, Miss Snedaker has suffered practically no damage at the hands of the trial court, except the deprivation of the society of the husband of another woman. It is not by any means to her credit that she has prosecuted this action to the second court of review, seeking to reverse a judgment which takes nothing from her except the right to consort with this husband and father. The lower courts having issued a perpetual injunction, this court is placed in the rather unenviable situation of restoring to Miss Snedaker certain privileges which can be of no possible benefit to the person who seeks them, and which clearly appear by this record to be of irreparable damage to the lawful wife. This court assumes the further dangerous responsibility, in reversing the judgments of the lower court, of acting without the benefit of the evidence upon which the trial court reached its judgment. The very brief per curiam opinion of the majority of this court deserves a careful analysis. made a party to this suit, there can be no The third sentence of the per curiam opin- It is to be feared that the per curiam opinion seeks to treat this matter from a facetious standpoint, and that it fails to look upon this matter in the seriousness which it deserves. The fourth sentence of the per curiam opinion concedes that it would be a more extreme case if the husband had been made a party defendant and a court of equity should seek by a decree of mandatory injunction to require the husband to discharge his marital duties. The fifth sentence states that ample and adequate provision has been made by statute to require the husband to discharge all his marital obligations to the wife and children, and if that sentence had omitted the words "ample and adequate" we would have no quarrel with the fifth sentence. It is true that the statute seeks to make provisions to regulate the duties of a husband and The first sentence of the opinion is that father, but surely no one would deliberate (145 N.E.) ly claim that such regulations are ample, and where injunction is recognized as a proper adequate to meet the requirements of the extraordinary remedy. case. The sixth sentence states that there is no averment that the husband has failed in any of these particulars. In this the opinion of the majority is clearly in error. In the amended petition it is clearly stated that, by reason of the acts of Miss Snedaker, the wife and mother has been "deprived of the love, esteem, affection, support, and peaceful consortium of her said husband." It further charges that she will continue to be thus deprived unless relief is granted by the court. The judgment of the trial court contains the following finding: "On consideration whereof, the court find on the issues joined for the plaintiff, and that the allegations of the petition, and each of them, are true." It therefore follows that the seventh sentence of the per curiam opinion is unsupported by the facts. The final paragraph of the per curiam opinion states in a few lines a discussion of the legal principles involved, and again makes it clear that the majority of the court is proceeding upon the wrong assumption that there is an attempt to regulate and control domestic relations, and states that such an attempt "is not supported by authority, warranted by sound reason, or in the interest of good morals or public policy." It shall be our task to show that there is authority for such a proceeding and that it is warranted by sound reason, but we shall not seriously attempt to inquire whether it is in the interest of good morals or public policy, because, if there is authority and reason for the exercise of such jurisdiction, a court of equity should not inquire in each individual case into the question of good morals or public policy. It must be borne in mind that equity is a separate system of jurisprudence, having its own precedents and principles, and, if there is to be any uniformity in the administration of courts of equity, such precedents and principles must be followed, and it must not be left to the discretion of the chancellor in each individual case to determine for himself whether upon grounds of good morals or public policy he may decline to entertain the cause. In other words, courts of equity are not inquisitorial, but remedial. The remaining reason set forth in the majority opinion is based solely upon the doubt therein expressed of the ability of a court of equity to adequately enforce its order by contempt proceedings. Upon this subject, it need only be stated that contempt proceedings are the only method of enforcing injunctive process, and that reason is therefore not a whit more applicable to this particular case than it is to any other case Let us first inquire whether the orders of the lower courts in this case are supported by authority, and whether they are warranted by sound reason. It requires no argument or citation of authority to show that the marriage relation is based upon civil contract. It follows, as the night the day, that the parties to such a contract are entitled to protection against unlawful interference with the obligations of that contract on the part of third persons. If this action were for damages alone, instead of damages and injunction, it would be conceded on all sides that the wife is entitled to maintain an action to recover a money judgment for any damages she may have suffered. It is equaly well settled that the wife would be entitled to compensation, not only for loss of support, as alleged in the petition and as found by the trial court, but that she would also be entitled to recover damages for loss of consortium. Both of these elements are recognized as elements of the marriage contract and as rights of property. Any person who interferes with the marriage rela tion, or who seeks to induce either party to the marriage relation to commit a breach thereof, is held liable to respond in damages for such injury. And this is entirely separate and distinct from any statutory legal remedy which may be provided for the regulation and control of the marriage relation. Such an action can be maintained against any person who thus interferes, even though the offending party to the marriage relation may be entirely consenting, or even a party thereto. It is very clear therefore that, while certain provisions have been made by statute whereby a husband and father may be required to discharge certain marriage obligations imposed upon him by that relation, it is at the same time clearly recognized that such provisions are not ample and adequate; otherwise there would be no occasion for calling upon third persons to respond in damages. It is not necessary to cite any of a large number of authorities which have dealt with this subject, but we shall briefly discuss two cases of this court where the principles have been laid down clearly, and those principles will be quite sufficient for the purposes of this discussion. |