
    Fisher & Lanning v. Quillen.
    
      Offer to confess judgment — Section 5141, Revised Statutes — Plaintiff recovers less than offer — Costs adjudged against plaintiff— Presumption that statute was complied with, when — Court procedure.
    
    Where, in an action for the recovery of money, it appears from the journal entries that the defendant offered in court to confess judgment for part of the amount claimed, and that on the trial the plaintiff did not recover more than was offered to be confessed and the interest thereon from the date of the offer, and that all' the costs incurred after the offer was made were adjudged against the plaintiff; on error it will be presumed, in the absence of a different showing on the record by bill of exceptions or otherwise, that the requirements of Section 5141, Revised Statutes, were complied with, and that the judgment for costs, is correct.
    (No. 9713
    Decided April 16, 1907.)
    Error to the Circuit Court of Tuscarawas County.
    In the court of common pleas Quillen sued Fisher & Lanning in an action for money only. In one of the journal entries appears the following: “And now come the defendants and in open court offer to confess judgment in favor of the plaintiff for one hundred and ninety dollars and costs to and including- this date.” Subsequently, the following judgment was entered: “It is therefore considered and adjudged by the court that the plaintiff, Oscar A. Quillen, recover from the defendants; Craft Fisher and Wayne Lanning, partners doing business under the name of Fisher & Lanning, the said sum of one hundred and eighty-nine, and 21-100 dollars, as heretofore by the verdict of the jury found due him, and the amount
    
      here recovered by the plaintiff being less than the amount the said defendants heretofore, in open court, to-wit, on' the twenty-second day of September, 1904, offered to. allow judgment to be taken for, it is considered by the court that said plaintiff recover of said defendants his costs herein prior to the time of said offer to confess. And it is ordered that said plaintiff pay all costs made herein since said offer, for which judgment i.s rendered against him. And judgment is rendered against said defendants for their own costs prior' to said offer to confess. To which judgment of the court as to costs plaintiff excepts.”
    Quijlen prosecuted error in the circuit court, which court found that the' court of common pleas erred in its judgment as to costs, and adjudged that Quillen recover from the defendants all of his costs.
    
      Messrs. Wells & Sheppard and Mr. Henry Bowers, .for plaintiffs in error.
    The only exception taken by plaintiff in error herein to the judgment of the circuit court is to said circuit court’s reversing the lower court upon the matter of costs, upon the fifth ground of error assigned in plaintiff in error’s petition in said circuit court. Did the circuit court err in reversing the lower court on the judgment for costs? We submit that it did.
    This offer to confess was made in accordance with the provisions of Section 5141, Revised Statutes of Ohio. The amount was specified. It was done in open court. Plaintiff below by his counsel was present.
    
      The offer was not accepted. It is true'the record does not in so many words state that plaintiff below was present, although showing all of the other requisites. But what is the presumption as to his presence? Is there not a presumption in law that plaintiff below was present and refused to accept the offer? Would “the offer to confess” have been made in open court except in plaintiff below’s presence? Would the court below have entertained such offer in the absence of plaintiff below ? The trial court made the entry of the offer to confess in open court and its amount. Then after trial and a verdict for plaintiff below, but for an amount less than the offer, the trial court rendered judgment for plaintiff below for the amount of the verdict and costs to the date of entry, but rendered judgment against plaintiff below for the amount of the costs accruing subsequent to .the date of the offer. Would the trial court have given such' judgment as to costs, or rather could the trial court have rendered such judgment as to costs except it is assumed that plaintiff below was present in open court that day and refused the offer? We claim it would not and could not have so done. We submit that it is the law, and well substantiated by the decisions of this and other courts, that where the lower court, as in this case, renders judgment against plaintiff for costs accruing subsequent to the date of an offer to confess judgment for a certain amount -in his favor, and he fails to recover an amount equal to such an amount, it must be presumed that such offer to confess was made, in such plaintiff’s presence in open court. Otherwise the court would have had no power to so render judgment.
    
      The circuit court was bound to presume, in the absence of any proof or showing to the contrary, that the offer, to confess judgment in the court below was made in the presence of plaintiff below,' and that he refused it. If so, it should then have affirmed the lower court upon this ground of error, and its reversal was therefore erroneous.
    We give as a well established proposition of law that “where an act is done which can be done legally only, after the performance of some prior act, proof of the latter carries with it' a presumption of the due performance of the prior act.” Felch, Assignee, v. Hodgman et al., 62 Ohio St., 312; Brewing Co. v. Brown, 62 Ohio St., 202; Knox County v. Bank, 147 U. S., 91; Heddleson v. Hendricks, 49 Ohio St., 297; Lewis et al. v. Laylin et al., 46 Ohio St., 663; Titus et al. v. Lewis, 33 Ohio Sr., 304; Lessee of Ward v. Barrows, 2 Ohio St., 242; United States v. Lobe, 99 Fed. Rep., 723; Lessee of Winder v. Sterling, 7 Ohio, part 2, 190.
    The above case of Felch, Assignee, v. Hodgman et al., is a leading case upon the proposition claimed herein, and is cited in the unreported cases of Rubber Co. v. Manufacturing Co. et al., 63 Ohio St., 76; Miller v. Overholt, 63 Ohio St., 588; Messner v. Heller, 63 Ohio St., 509; Johnson v. Findley, Admr., 63 Ohio St., 589.
    And as further substantiating our claim herein: “Acts done which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter.” Bank v. Dandridge, 12 Wheat., 70; Lessee of Combs & Ewing v. Lane, 4 Ohio St., 112.
    Instances of the application of this doctrine under a variety of circumstances may be formed in the following cases: Scovern v. State, 6 Ohio St., 288; Silvus v. State, 22 Ohio St., 90; Admr. of Townsend v. Bank, 2 Ohio St., 345; Shackford v. Town of Newington, 46 N. H., 415; Board of Education Boyer, 47 Pac. Rep., 1090; Maxwell Code Pleading, 696; Carpenter v. Rannels, 86 U. S., 138, Cornett v. Williams, 87 U. S., 226; Tecumseh Town Site Case, 3 Neb., 267; Sinclair v. Learned, 51 Mich., 335; Hobson v. Dutton, 9 Kan., 477; Reynolds and Ahren v. Schweinefus, 27 Ohio St., 311.
    
      Messrs. Lindsey & Murphy, for defendant in error.
    We do not take issue with counsel for plaintiff in error upon the proposition of law which they base error on, but say that such rule does not apply in this case.
    They assert that the circuit court was bound to presume in the absence of any proof to the contrary that the offer to confess judgment was made in the presence of plaintiff below and that he refused,' and to support their proposition they cite several authorities in two or three different forms, as to the rule, that when any judicial or official act is shown to have been in manner substantially regular, it will be presumed that the formal requisites for its validity were complied with.
    An offer to confess judgment does not affect mere matters of practice, but affects the substantial rights of plaintiff. The mere entering of the offer to confess is an official or judicial áct, and in order to enter a valid offer to confess the court must have jurisdiction so to do, and it has not the .jurisdiction to enter a valid offer unless the terms of the statute are complied with. The record must show jurisdiction. It will not be presumed in a direct attack on error.
    In a default judgment upon suggestion of counsel the court may enter the judgment in a regular way, when in fact an inspection of the record would show want of jurisdiction over the person of the defendant. In a collateral attack on such judgment, proof' of such judgment being shown, it will be presumed that the formal requisites of its validity were complied with, but if error be prosecuted therefrom, thereby dir'ectly attacking the same, such presumption will not arise and the -whole record speaks for itself.
    We submit that the same rule applies in an offer to confess.
    If the record shows a compliance with the statute the court will presume that all things pertaining thereto were regular, and will not hear evidence aliunde to impeach the same. Heddleson v. Hendricks, 49 Ohio St., 297.
    • In this cáse it does not show a compliance with the statute.
    A judicial or official act must be shown to have beén done in a manner substantially regular before it will be presumed that the formal requisites of its validity were complied with. Felch, Assignee, v. Hodgman et al., 62 Ohio St., 312.
    The record does not show the judicial or official acts of the court in entering the offer to confess to be substantially regular.
    When a record is attacked collaterally,- jurisdiction is presumed prima facie, unless the record1 itself disproves it, while if it is directly impeached by proceedings in error, its existence must be proved by the record itself. Trimble et al. v. Longworth et al., 13 Ohio St., 439.
   Summers, J.

The general rule as to costs, in actions for recovery of money only, is (Section 5348, Revised Statutes) that they shall be allowed, of course, to the plaintiff upon a judgment in his favor, when it is not otherwise provided by statute. It is otherwise provided by Section 5141, Revised Statutes, that: “The defendant in an action for the recovery of money may offer in court to confess judgment for part of the amount claimed, or part of the causes involved in the action; whereupon, if the plaintiff, being present, refuse to accept such confession of judgment, in full of his demands against the defendant in the action, .or having had such notice that the offer would be made, of its amount, and of the time of making it, as the court deems reasonable, fail to attend, and, on the trial, do not recover more than was so offered to be confessed, and the interest thereon from the date of the offer, such plaintiff shall pay all the costs of the defendant incurred after the offer was made.”

It appears from the record that the defendants offered to confess judgment for an amount in excess of that subsequently recovered by the plaintiff, but it does not appear that the plaintiff was present, or that he had notice that the offer would be made. It is conceded that an offer made in the absence of the plaintiff and without notice, would not be good, but it is contended that the.maxim omnia pr,aesumuntnr rite et solenniter esse acta applies and that a ground of reversal is not apparent unless the record affirmatively shows an absence of these statutory requirements. Counsel for the defendant in error denies that the maxim is applicable. His contention is that the court was without jurisdiction to enter judgment by confession unless' the terms of the statute were complied with, that the record must show jurisdiction, and that the record not so showing the judgment as to costs is erroneous.

The judgment of a court of general jurisdiction is presumed to be within its jurisdiction, but the jurisdiction of inferior courts, and of superior courts when their proceedings are under special authority, is not presumed but must be shown.' Galpin v. Page, 18 Wallace, 364; Lawson on Law of Presumptive Evidence, 29 and 30.

But what is jurisdiction ? In Sheldon’s Lessee v. Newton, 3 Ohio St., 494, it is defined as follows: “The power to hear and determine a cause is jurisdiction; and it is coram judiee whenever a case is presented, which brings this power into action. But before this power can be affirmed to exist, it must be made to appear .that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred; and that such person or thing has been properly brought before the tribunal to answer the charge therein contained.” And it is then ruled: “When these appear, the jurisdiction has attached; the right to hear and determine is perfect; and the decision of every question thereafter •arising is but the exercise of the jurisdiction thus conferred; and whether determined rightfully or wrongfully, correctly or erroneously, is alike immaterial to the validity, force and effect of the final judgment when brought collaterally in question. The proposition that the jurisdiction can be made to depend upon the record’s disclosing such a state of facts to have been shown in evidence, as to warrant the exercise of its authority, was distinctly repudiated in.the early case of Ludlow’s Heirs v. Johnston, 3 Ohio, 560, and has been no less positively denied in every subsequent case, including Lessee of Adams v. Jeffries, 12 Ohio, 253. This court wholly dissents from it, both on reason and on authority. These rules apply to proceedings of the old court of common pleas in Ohio, on petition by executors or administrators for the sale of real estate to pay debts.” The same effect is to be given to the judgment upon a direct attack, in the absence of an affirmative showing that the court was without authority to enter the judgment. Work on Courts and Their Jurisdiction, 165. The statutory provisions respecting costs do not confer jurisdiction; they merely prescribe how in the exercise of jurisdiction costs shall be awarded.

The court having adjudged the costs against the plaintiff, the presumption is that the facts existed that warranted .the court in so adjudging them. Section 5141 does not require the facts to be entered of record, and to overcome this presumption and to warrant a reviewing court to reverse the judgment, it was incumbent upon the plaintiff to make the want of authority appear affirmatively on the face of the record. The Warder Bushnell & Glessner Co. v. Jacobs, 58 Ohio St., 77.

Underhill v. Shea et al., 21 Neb., 154, is directly in point. In that case the docket of the justice contained the following entry: .“January 20, 1885, 10 o’clock a. m., summons returned. Parties appeared. Defendants offered to confess judgment to the sum of $84.25 and costs to date. Plaintiff refused to accept.” In the opinion it is said: “The sole question, then, before us is, whether or not the court erred in sustaining defendant’s motion to the extent of charging plaintiff with the costs of his own witnesses. We think not. The real basis of the contention of plaintiff in error is the alleged fact that the offer to confess judgment was not in writing as required bjr Section 1004 of the civil code. From the record before us we can not say with certainty whether the offer was made in writing or not. It is only shown that the offer was made and refused by plaintiff. There is nothing in the record which gives any light upon the subject, unless the fact that a fee was charged by the justice for filing the offer might be taken as a suggestion that it was in writing. But as it is a well established rule that error must affirmatively appear before a judgment will be reversed, we need only say that as the record stands we must presume the ruling of the district court to be correct and sustained by the record before it.”

The following cases are more- or less illustrative of the application of the rule.

In Shroyer, Gdn., v. Richmond and Staley, 16 Ohio St., 455, it is held: “The probate courts of this state are, in the fullest sense, courts of record; they belong to the class whose records import absolute verity, that are competent to decide on their own jurisdiction, and to exercise it to final judgment, without setting forth the facts and evidence on which it is rendered. Hence, an order appointing a guardian, made by a probate court, in the exercise of jurisdiction, can not be, collaterally, impeached. The record showing nothing to the contrary, it will be conclusively presumed, in all collateral proceedings, that such order was made upon full proof of all the facts necessary to authorize it.”

In Sheehan et al. v. Davis, 17 Ohio St., 571, 580, it is said: “But the journal in this case did not show that the president judge of the court was present, sitting in court, when the minutes of the proceedings of the last day of the term, on which the confirmation was ordered, were read and signed. If he was then absent, the journal was properly signed by the senior associate judge, who, in such case, would be the presiding judge of the court. We think the maxim Omnia rite acta presiummtur is properly applicable to such a case. We are not to presume a state of facts- which would invalidate the journal entries, when a different state of facts may be -reasonably presumed which would make them regular and valid.”

In The Village of Monroeville v. Root, 54 Ohio St., 523, where the court did not comply with counsel’s request to give certain instructions before argument and there was an exception, it was held that error did not affirmatively appear, because it did not appear that the exception was to the failure to the court to give the instructions before the argument. And in the case of The Warder Bushnell & Glessner Co. v. Jacobs, supra, where the record showed the use of improper language in the argument of counsel and an exception, it was ruled that prejudicial, error did not appear, because it did not appear but that the court might have admonished counsel and instructed the jury not to regard the remarks of counsel.

The judgment of the circuit court is reversed and the judgment of the court of common pleas is affirmed.

Reversed.

Shauck, C. J., Price, Crew, Spear and Davis, JJ-, concur. .  