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(145 N.E.) Porter v. Rohrer, supra, forbids so strict as time after such filling and withdrawal would construction of the steps necessary to perfect be needed to prepare a transcript of the reca proceeding in error, and we are of opinion ord for filing (later) in the reviewing court, that the Court of Appeals erred in striking which obviously would be after the expirathe transcript of the docket and journal en- tion of the 70-day period, it follows that tries from the files and in dismissing the pe- time is not of the essence, and that the failtition in error.

ure to file the transcript of the docket and The judgment of that court in so doing is, journal entries or the final record at the therefore, reversed, and this cause is remand- precise time the petition in error is filed is ed for further proceedings according to law. not jurisdictional. Judgment reversed.

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.

ance, or misfeasance on the part of an admin

istrative officer will not deprive such party CONN, J., concurring. My concurrence in of his right of review; for instance, if a the judgment of reversal is based on the fol- bill of exceptions is filed with the clerk withlowing reasons: It is the commonly accepted in time, the failure of the trial judge to sign rule that the statutory steps must be fol

same within rule will not prevent allowance lowed strictly to pave the way for review. of the bill, since the judge may sign after the Under our practice, an excepting party is re-expiration of the statutory period. See Porquired to file a petition in error, a bill of ex: ter v. Rohrer, referred to in Judge DAY'S ceptions, if necessary to show the facts, and

opinion. procure the issuance and service of summons,

In view of this, and of the holding in Heinall within the prescribed time. The statute inger v. Davis, Mayor, 96 Ohio St. 205, 117 provides also that such party shall file with N. E. 229, also referred to in the opinion of the petition in error a transcript of the dock- Judge Day, and also of the quoted portion et or journal entries, or a transcript of the of the above section, I am of opinion that original record.

the provision of the statute requiring the file The question in the instant case grows outing of the docket or journal entries with the of the fact that the excepting party, having petition in error is directory only, and that filed in the Court of Appeals a petition in er- where the excepting party, within rule, has ror, bill of exceptions, and waiver of issue filed the appropriate precipe for a suitable and service of summons, and having also transcript, and has followed the matter up filed with the clerk of the common pleas with such diligence as results in a filing of within the requisite time a precipe for a tran- the transcript in the reviewing court within script of the docket and journal entries, did a reasonable time, the excepting party is ennot procure such transcript to be filed in the titled to have his case reviewed. 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 SNEDAKER V. KING. (No. 18155.) • that the closing sentence of section 12263, General Code, provides as it does, such omis

(Supreme Court of Ohio. Oct. 7, 1924.) sion would have been fatal. That portion of

(Syllabus by Editorial Staff.) the section reads;

Injunction 94-Restraining defendant from "If the original papers and pleadings are filed, associating, being near, or communicating and the final record has not been made, the re with plaintiff's husband held unwarranted. viewing court may permit their temporary with In alienation suit, decree restraining defenddrawal for a reasonable time to allow the re ant from associating with plaintiff's husband, cording thereof, or direct copies to be made and going near, or communicating with him held filed and the originals to be returned to the in- unwarranted extension of equity jurisdiction. ferior tribunal."

Marshall, C. J., and Day, J., dissenting. Under favor of this provision of the stat

Error to Court of Appeals, Adams County. ute, the excepting party may file his petition in error and bill of exceptions in the review

Action by Grace King against Jessie L. ing court before the record in the trial court Snedaker. Judgment for plaintiff was arbas been made up, and the papers so filed firmed by the Court of Appeals, and defendthen be withdrawn temporarily and returned ant brings error. Modified and affirmed. to the trial court to permit the final record [By Editorial Staff.] 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 alleg. and 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-NU 31 BER iu all Key-Numbered Digests and lodexes

*Rehearing denied November 13, 1924.

marriage four children were born, all now , denial of each and every averment and albeing under 16 years of age, who reside with legation of the amended petition. the plaintiff; that about five years prior to Upon the issues thus tendered the parties the filing of the amended petition the defend- went to trial, and the court of common pleas ant, purposely and maliciously, intending to reached the following conclusion : win from the plaintiff the affection, compau

“This cause now coming on for hearing, and a ionship, conjugal relation, support, and love jury having been by the parties in open court of her husband, and to appropriate the same orally waived, and the court consenting thereto herself, wickedly, secretly, stealthily, and to, was submitted upon the pleadings and the maliciously caused him to dislike plaintiff by evidence to the court; on consideration wheremaking to him false statements regarding of the court find on the issues joined for the plaintiff, and by showing him numerous plaintiff, and that the allegations of the petimarks of affection, and by writing, speaking, plaintiff is entitled to the relief prayed for.

tion and each of them are true, and that the and communicating with him and visiting

"It is therefore considered and decreed by him at his home and other places, and by oth- the court that the defendant, Jessie L. Snedaker acts of conduct toward and with him, by er, be and she hereby is perpetually enjoined which means the defendant unlawfully, pur- from visiting or associating with Homer King, posely, and maliciously caused plaintiff's hus- husband of plaintiff, or going to or near him band to begin to lose his love and affection at plaintiff's home or elsewhere, or any other for plaintiff, and to form an attachment and house or place where said Homer King may be; affection for the defendant.

and that she be and hereby is further enjoined, The plaintiff says that upon discovering

either in person, through an agent, employee,

or otherwise, from writing or speaking to him, this condition she asked the defendant to or in any manner, either directly or indirectly, desist from further attentions to her hus- communicating with him by word, letter, writband, but this the defendant declined to do, ing, sign, or symbol, or doing or causing to and the plaintiff says that the defendant be done any act preventing or tending to prewill continue in doing these things complain- vent said Homer King from giving to plaintiff, ed of unless restrained by an order of court, Grace King, his wife, his love, affection, comby which, if permitted to continue, plaintiff panionship, conjugal relation, or support, and will be entirely deprived of the love, esteem, that said Jessie L Şnedaker, her agents and affection, co-operation, aid, support, and confering with plaintiff in her peaceful efforts to

servants, be and hereby is enjoined from interjugal relation of her husband. The plain-speak, talk, write, and communicate with her tiff further avers that the defendant is finan- said husband, Homer King, and to regain his cially irresponsible for the actual financial | love, esteem, affection, support, and conjugal damages already suffered by the plaintiff, relation; to all of which finding, judgment, and and as a prayer for relief the plaintiff asks decree the defendant excepts, and asks that her that the defendant be restrained and enjoined exceptions be noted of record. And the plainfrom visiting or associating with plaintiff's tiff having waived any damages above the sum husband, or going to or near him at plain- of five ($5), the court further find that by reatiff's home or elsewhere, or at any other tiff has been damaged by the said defendant in

son of the facts set up in the petition the plainhouse or place where her said husband may the sum of five dollars ($5). be; that she may be restrained and enjoined, "It is therefore considered by the court that either in person or through an agent or em the said plaintiff, Grace King, recover from the ployé, or otherwise, from writing or speak defendant, Jessie L. Snedaker, the said sum of ing to him, or in any manner, either direct-five dollars ($5), and her costs herein expended. ly or indirectly, communicating with him by Approved December 1, 1922. word, letter, writing, sign, or symbol, or do

“This case heard on defendant's motion for ing or causing to be done any act or thing said motion not well taken, and overrules the

new trial, and on consideration the court finds whatever preventing or tending to prevent same; to which finding, ruling, and judgment plaintiff's husband from giving to plaintiff defendant, by her attorneys, excepts, and her his love, affection, companionship, conjugal exceptions are noted of record." relation, or support; that the defendant, her agents or servants, be restrained from inter Error was prosecuted to the Court of Apfering with the plaintiff in her peaceful ef- peals, and the finding of the court of comforts to speak, talk, write, and communicate mon pleas was affirmed. To reverse this with her husband, and to regain his love, es- judgment of the Court of Appeals, error is teem, support, and conjugal relation, and now prosecuted to this court. that upon final hearing the injunction be made

de C. E. Robuck, of West Union, for plaintin perpetual, and that she recover damages in in error. the sum of $20,000, and for all such other Blair & Blair, of Portsmouth, for defendand further relief to which she may be enti- ant in error. tied, either in law or equity.

A motion was filed to this amended peti. PER CURIAM. The decree in this case is tion, which was overruled and exception not an extreme instance of government by ined. A demurrer was then filed by the defend- junction. It attempts to govern, control, and ant, which was likewise overruled. An an- direct personal relations and domestic affairs. swer was then filed, consisting of a general | Among other restrictions placed upon the de

(146 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 requir Second: The order passes all bounds in its ing him to discharge all the duties of com- lack of limitation. Under this order, what panionship, affection, love, and all other obli- is Miss Snedaker to do if she passes King gations, legal and moral, assumed by him upon the street? Must she cross the street when he entered the conjugal relation. in order not to go "near him

at Ample and adequate provision has been


place where said made by statute whereby the plaintiff's bus- Homer King may be,” or may she stay upon band may be required to discharge every obli- the same side of the street and pass him? gation imposed upon him by law, not only to- Under such circumstances may she say "good ward the plaintiff, but also in behalf of their morning” to him, or in so doing will she be children. There is no averment that the violating the order that she is not to comhusband has failed in any of these particu- municate with King “by word"? lars. In that respect the injunction is based Third: This injunction should not issue, upon the apprehension of the plaintiff that because an order that forbids a man and woshe may in the future be deprived of sup- man to see each other or to speak to each port, by reason of the alleged alluring con- other under the facts herein set forth, mereduct of the defendant toward plaintiff's hus- ly adds fuel to the flame. If the wife is to band.

be assisted in her fight for a rehabilitated Such extension of the jurisdiction of equity home, action should not be taken which will to regulate and control domestic relations, in almost inevitably make wrong-doing even addition to the legal and statutory remedies more alluring to her husband. already provided, in our opinion is not sup It has been urged that to dissolve this inported by authority, warranted by sound rea- junction is to condone the action of the plainson, or in the interest of good morals or pub- tiff in error. Equity, however, refuses to lic policy. The opening of such a wide field enjoin many acts which it does not condone. for injunctive process, enforceable only by Equity will not enjoin the commission of contempt proceedings, the difficulty if not crime. This is not because it condones the impossibility of such enforcement, and the commission of crime, but because it takes no very doubtful beneficial results to be obtained part in the administration of the criminal thereby, warrant the denial of such a decree law. Neither does this court condone the in this case, and require a modification of acts set forth in the petition and found by the the judgment in that respect.

trial judge. Judgment modified and affirmed.

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. UpLEN, JJ., concur.

on the facts as found by the trial court Miss

Snedaker's action is still branded in this CONN, J., not participating.

court. That condemnation is her most ade

quate punishment. To add thereto a judgALLEN, J. (concurring). No one who views ment, which, from the perversity of human the marriage contract from an ethical stand- nature, would tend to defeat rather than to point can have the slightest sympathy for the accelerate the reconciliation of the husband plaintiff in error upon the record disclosed and wife, seems unwise. herein; however, I concur in the per curiam opinion of the majority of the court for the MARSHALL, C. J. (dissenting). The state following reasons:

ment of facts in the brief per curiam opinFirst: While it is true that any injunc-ion shows that this is a case where a lawtion is enforceable only through contemptful, dutiful wife has invoked the aid of a proceedings, it is also true that this particu- court of equity to protect her marriage conlar order is unusually difficult of enforce-tract, her home, and her little brood of inment. The ordinary injunction involves a fant children, against a "vampire” who perprohibition against selling property or against sists in her efforts to win the husband and doing some act which will involve indiffer- father from the performance of his duties ent third parties; that means that proof of to his home and family. It must be kept the violation of the order may usually be clearly in mind in a discussion of this case readily secured. In this case the injunction that the husband is not a party to the suit, affects two people only. Under the facts as and that the wife, Grace King, brings the found, these two people stand in a wrongful action soley against the vampire, Jessie Le relationship to each other. Proof of the vi- | Snedaker.

145 N.E.-2

The case comes to this court in a very the decree is “an extreme instance of govunusual and extraordinary manner. The ernment by injunction." This rather odious 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 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. Manifestly, that 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 "gov. questions of injunction and damages. After ern, control and direct personal relations and full hearing, and it appearing that Miss Sne- domestic affairs." Again the majority opindaker was not financially responsible, and ion is inaccurate. The husband not being Mrs. King having offered to waive any dam- made a party to this suit, there can be no ages above $5, judgment was entered in the possible effort by judicial process to govern, sum of $5. As a part of the same judgment control, and direct domestic affairs. This the injunction was made perpetual. Miss case only seeks to prevent interference on Snedaker promptly prosecuted error to the the part of a third party with the obligaCourt of Appeals, but it is significant that tions of a contract, and to prevent such she did not see fit to procure a bill of ex- third party from inducing one of the parceptions, and that she was content to rest ties to a lawful contract to commit a breach her error proceedings upon the record with thereof. out a bill of exceptions, and it is well set The third sentence of the per curiam opintled by the practice of this court that she ion is equally inaccurate. The decree of the therefore presented in the Court of Appeals, trial court does not require Miss Snedaker and also in this court, only such alleged er- to remain "away from any place where plainror as the petition, the answer, and the judg- tiff's husband may be.” On the contrary, as ment of the court should disclose.

clearly shown by the quotation from the The only assignment of error in the peti-journal entry appearing in the statement of tion in error filed in this court is that the facts, Miss Snedaker is only enjoined "from Court of Appeals erred in refusing to reverse visiting or associating with Homer King, busthe judgment of the common pleas court band of plaintiff, or going to or near him at The unwillingness of Miss Snedaker to sub- plaintiff's home or elsewhere, or any other mit a transcript of the testimony in the trial house or place where said Homer King may court for the consideration of the Court of be." A careful analysis of this sentence Appeals on review leaves her in no position shows that the forbidden feature is "going to for charitable consideration at the hands of or near him," and that she is not forbidden this court. By reason of her financial ir- to go to any public gathering where they responsibility, and the judgment for damages might by chance appear at the same time, having been placed at the nominal sum of and that, if such chance meeting should oc$5, Miss Snedaker has suffered practically no cur, the injunction order would be fully damage at the hands of the trial court, ex- obeyed by her refraining from going to or cept the deprivation of the society of the near him or communicating with him. husband of another woman. It is not by any It is to be feared that the per curiam means to her credit that she has prosecuted opinion seeks to treat this matter from a this action to the second court of review, facetious standpoint, and that it fails to look seeking to reverse a judgment which takes upon this matter in the seriousness which it nothing from her except the right to consort deserves. with this husband and father,

The fourth sentence of the per curiam The lower courts having issued a perpet- opinion concedes that it would be a more ual injunction, this court is placed in the extreme case if the husband had been made rather unenviable situation of restoring to a party defendant and a court of equity Miss Snedaker certain privileges which can should seek by a decree of mandatory inbe of no possible benefit to the person who junction to require the husband to discharge seeks them, and which clearly appear by this his marital duties. record to be of irreparable damage to the law The fifth sentence states that ample and ful wife. This court assumes the further adequate provision has been made by statdangerous responsibility, in reversing the ute to require the husband to discharge all judgments of the lower court, of acting with his marital obligations to the wife and child out the benefit of the evidence upon which dren, and if that sentence had omitted the the trial court reached its judgment.

words "ample and adequate" we would have The very brief per curiam opinion of the no quarrel with the fifth sentence. It is majority of this court deserves a careful true that the statute seeks to make provianalysis.

sions 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.

Let us first inquire whether the orders of The sixth sentence states that there is no the lower courts in this case are supported averment that the husband has failed in any by authority, and whether they are of these particulars. In this the opinion of ranted by sound reason. It requires no arthe majority is clearly in error. In the gument or citation of authority to show that amended petition it is clearly stated that, by the marriage relation is based upon civil conreason of the acts of Miss Snedaker, the tract. It follows, as the night the day, that wife and mother has been "deprived of the the parties to such a contract are entitled love, esteem, affection, support, and peaceful to protection against unlawful interference consortium of her said husband." It further with the obligations of that contract on the charges that she will continue to be thus de part of third persons. If this action were prived unless relief is granted by the court. for damages alone, instead of damages and The judgment of the trial court contains injunction, it would be conceded on all sides the following finding:

that the wife is entitled to maintain an ac

tion to recover a money judgment for any "On consideration whereof, the court find.on damages she may have suffered. It is equalthe issues joined for the plaintiff, and that the allegations of the petition, and each of them, ly well settled that the wife would be enare true.”

titled to compensation, not only for loss of

support, as alleged in the petition and as It therefore follows that the seventh sen

found by the trial court, but that she would tence of the per curiam opinion is unsup of consortium.

also be entitled to recover damages for loss

Both of these elements are ported by the facts.

The final paragraph of the per curiam recognized as elements of the marriage conopinion states in a few lines a discussion of tract and as rights of property. Any perthe legal principles involved, and again son who interferes with the marriage relamakes it clear that the majority of the court tion, or who seeks to induce either party to is proceeding upon the wrong assumption thereof, is held liable to respond in damages

the marriage relation to commit a breach that there is an attempt to regulate and control domestic relations, and states that such for such injury. And this is entirely sepan attempt “is not supported by authority,

arate and distinct from any statutory legal warranted by sound reason, or in the inter: remedy which may be provided for the regest of good morals or public policy.” It Such an action can be maintained against

ulation and control of the marriage relation. shall be our task to show that there is authority for such a proceeding and that it any person who thus interferes, even though is warranted by sound reason, but we shall the offending party to the marriage relanot seriously attempt to inquire whether it tion may be entirely consenting, or even a is in the interest of good morals or public

party thereto. It is very clear therefore policy, because, if there is authority and made by statute whereby a husband and fa

that, while certain pr sions have been reason for the exercise of such jurisdiction, a court of equity should not inquire in each ther may be required to discharge certain individual case into the question of good

marriage obligations imposed upon him by morals or public policy. It must be borne in that relation, it is at the same time clearly mind that equity is a separate system of ju- recognized that such provisions are not amrisprudence, having its own precedents and ple and adequate; otherwise there would be principles, and, if there is to be any uni- no occasion for calling upon third persons formity in the administration of courts of to respond in damages. It is not necessary equity, such precedents and principles must to cite any of a large number of authori. be followed, and it must not be left to the ties which have dealt with this subject, but discretion of the chancellor in each individ

we shall briefly discuss two cases of this ual case to determine for himself whether court where the principles have been laid upon grounds of good morals or public poli- down clearly, and those principles will be cy he may decline to entertain the cause.

quite sufficient for the purposes of this dis

cussion. In other words, courts of equity are not in

The earliest of these two cases is Westlake quisitorial, but remedial. The remaining reason set forth in the ma

v. Westlake, 34 Ohio St. 621, 32 Am. Rep. jority opinion is based solely upon the doubt 397. The first syllabus declares: therein expressed of the ability of a court "A wife may maintain an action for the loss of equity to adequately enforce its order of the society and companionship of her husby contempt proceedings. Upon this subject, band, against one who wrongfully induces and it need only be stated that contempt pro-procures her husband to abandon or send her ceedings are the only method of enforcing away.” injunctive process, and that reason is there fore not a whit more applicable to this par In the opinion by an elaboration of articular case than it is to any other case gument it is shown that the wife may main

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