
    Obadiah Howell v. Peter Fry, Administrator of Elizabeth Howell, deceased.
    i. In a summary proceeding before the probate court, under the act of February 36, 1843 (S. & O. 618), on complaint of an administrator against a party suspected of embezzling, concealing, or conveying away the property or effects of the estate, the court has no constitutional power to render judgment against the party so charged, except for such property and effects as he, on his examination, admits himself guilty of having embezzled, concealed, or carried away; and to the extent that the statute professes to authorize a judgment in cases where there is a controversy between the parties, it is unconstitutional.
    3. On petition in error to reverse such judgment, the written examinations taken before the probate court are a legitimate part of the transcript or record of the proceeding, without any bill of exceptions setting them forth; and it is error in the court above to order such written examinations to be stricken from the record.
    Error to the court of common pleas of Logan county. Reserved in the district court.'
    The judgment sought to be reversed was rendered by the probate court in a summary proceeding under the act of February 26, 1843 (S. & C. 618), supplementary to the act for the settlement of estates of deceased persons.
    The act provides, that upon complaint of an executor or administrator before the probate court, against any person suspected of having concealed, embezzled, or carried away the property or effects of the estate, the party suspected shall be cited to appear before the court, and submit to an examination touching the matter of complaint. It also provides that either party may examine witnesses, and requires the court to reduce all such examinations to writing, to be signed by the parties and witnesses respectively, and filed in the court. The act further provides, “ that if, upon such examination, the probate court shall be of opinion that the person or persons so accused is or are guilty of having concealed, embezzled, or carried away any of the money, goods,” etc., of the estate, “ the court shall forthwith render judgment in favor of the executor,” etc., against such person for the amount or value of the money or goods, together with ten per cent penalty; which judgment, the act declares, shall be a lien upon his estate, and be collected by execution.
    The record of the probate court shows that upon complaint made by Fry, as administrator of Elizabeth Howell, charging the plaintiff in error with embezzling and carrying away certain articles of property belonging to the estate, he was cited to appear before said court. On his appearance he filed a motion to dismiss the proceeding, alleging in his motion that the property in question belonged to him, and denying the jurisdiction of the court, on the ground that he had the right to a jury trial. This motion was overruled, and the court proceeding to hear the case “ upon the evidence and arguments of counsel,” found the plaintiff in error guilty, and rendered a judgment against him for the value of the property, with ten per cent penalty thereon. What the “evidence” in the case was — whether the plaintiff in error was examined, and whether he admitted or denied the truth of the complaint — does not, as the record now stands, appear. But it does appear, that when the case first came into the common pleas, on petition in error, the transcript from the probate court, accompanying the petition in error, contained the written examinations before the probate court, without, however, any bill of exceptions setting them forth; and that the common pleas, on motion of the defendant in error, ordered the written examinations to be stricken from the transcript; which was done accordingly, and the judgment of the probate court was thereupon affirmed.
    The errors assigned are, substantially,
    (1.) That the probate court had no jurisdiction of the case; and,
    (2.) That the common pleas erred in ordering the written examinations to be stricken from the transcript.
    
      W. H. West for plaintiff in error:
    The whole case was virtually and in fact a trial of the right of property.
    
      The plaintiff in error denied the jurisdiction of the probata court, the constitutionality of the statute, and his liability to be condemned without trial by jury.
    The right of trial by jury shall be inviolate. Const., art. 1, sec. 5, and cases cited. S. & C. 22.
    The proceeding under the act of 1843, as in this case, is summary, and in its nature penal, as a penalty of ten per cent is exacted. The denial of the right to a jury trial was, therefore, a clear violation of his constitutional rights, whether the action be considered as purely civil or penal and criminal in its nature.
    The act of 1843 does not, nor does any other act, make provision for a jury in such summary proceeding before the probate court. Nor does the act of 1843 or any other authorize an appeal in such proceeding; so that a trial by jury is not possible in any stage of the proceeding.
    In the present case the contest was one involving an honest controversy about the right of property — nothing more and nothing less.
    The act was and is clearly unconstitutional.
    
      Stanton da Allison for defendant in error :
    1. The record shows no question of title to the property in controversy.
    The constitution does not guarantee a jury trial in such a case as this. Const, of 1851, art. 1, sec. 5; Const, of 1802, art. 8, sec. 8. The constitution simply recognizes the existence of the right of jury trial, and provides only for its unimpaired continuance. It was the right known to the common law, and generally adopted in thjs country. “ Whenever facts are to be found in any proceeding in which a jury was not required by the common law,” this jury trial is not required. Work v. The State, 2 Ohio St. 296; Norton v. McLeary, 8 Ohio St. 205; Willyard v. Hamilton, 7 Ohio, pt. 2, 115; Kramer v. C. & P. R. R. Co., 5 Ohio St. 140; Hunt's lessee v. McMahan, 5 Ohio, 133.
    The constitution does not apply to chancery cases nor to special statutory proceedings. Harman v. Kelley, 14 Ohio, 502; S. & C. 1084, 1085, 1488, secs. 21, 24.
    2. A motion was made in the- common pleas to strike the evidence from the record, as improperly certified with it. The evidence was no part of the record and the motion was properly sustained. The statute authorizing proceedings by executors and administrators against parties wrongfully withholding or concealing assets, authorizes no appeal, and makes the judgment of the probate court final, subject only to reversal for errors in law.
   Welch, J.

We think the court of common pleas erred in ordering the written examinations to be stricken from the transcript. They are a very important part of the proceeding, and, indeed, the only part which the statute directly requires to be' recorded. Without them it is impossible to say whether the court had jurisdiction to render the judgment, or rather, the court being of limited jurisdiction, it is impossible to find anything which gave it power to render the judgment. If the examinations showed that the defendant assented to the truth and justice of the charges, the court had authority to render the judgment; otherwise, we hold the court had no such power. If the defendant denied the truth of the charge, he had a constitutional right to a jury trial, and could not be deprived of that right by this summary proceeding, in which no provision is made for a jury trial, or for the right of appeal. The statutory provision authorizing a judgment can only be sustained as constitutional and valid in so far as it applies to a case where the defendant does not controvert the truth of the complaint.

For the error committed by the court of common pleas in striking from the transcript the written examinations, the judgment will be reversed, and the cause remanded to the -court of common pleas for further proceedings according to law.*

Brinkerhoff, C.J., and Scott, White, and Day, JJ., concurred.  