
    City of Toledo v. Preston.
    
      Constitutional law—Municipal corporations—Probate courts—Jurisdiction of—Bill of exceptions—Nunc pro tunc order.
    
    1. Section 2316, Revised Statutes, authorizing municipal corporations to postpone, until after a proposed public improvement shall have been completed, a judicial inqfiiry into claims for damages filed on account thereof, by owners of abutting property, is not in conflict with section 16 of article I of the constitution of 1851.
    2. The jurisdiction conferred upon probate courts by sections 2317 to 2321 inclusive, Revised Statutes,'to inquire into and determine the damages sustained by owners of abutting property on account of such improvements, is warranted by section 8 of article IV of the constitution of 1851'; and the proceedings had in the probate court may be pleaded in bar of an action subsequently brought in a court of common pleas upon the same claim.
    3. A probate court has no power, under the form of a procedure, to obtain an order nunc pro tunc, to inquire into, ascertain and declare of record, the reasons that induced a jury to arrive at the verdict it had rendered in a cause, theretofore tried in that court.
    4. The only lawful method of bringing into the record the propositions of law given to the jury on the trial of a cause is by a bill of exceptiors taken and perfected within the time and in the manner provided by statute. And where at the trial no exception was noted to the charge of the court, and no bill of exceptions attempted to be taken to make that charge a part of the record, the court has no jurisdiction after the cause has ended, to ascertain and declare what those propositions were, and a nunc pro tunc order to that effect is absolutely void.
    (Decided May 9, 1893.)
    Error to the Circuit Court of Rucas county.
    In the year 1854, the city of Toledo established a grade for Erie street of said city at its intersection with Jefferson street. The defendant in error was, at that time, or after-wards became, the owner of certain real estate located on one of the corners formed by the intersection of said streets, and improved the same with reference to said grade. After-wards, in the year 1880, the city changed the grade of Erie street in front of the lot of the defendant in error, by raising it about four and one-half feet above the grade established in 1854, and proceeded to improve the street with reference to such new grade. The plantiff was notified of the adoption of the resolution providing for the improvement, and filed with the city clerk a claim for the damages, claimed by him on account thereof. Afterwards the city, in the ordinance providing for the improvement and the method for-paying the cost thereof, also provided that the claims for damages arising from said improvement should be inquired into after the completion of the proposed improvement. On October 18, 1881, after the improvement had been completed, the city, through its solicitor, instituted proceedings in the probate court of Rucas count}^ to ascertain the damages that had accrued to the owners of property adjoining said improvement, making the defendant in error, among others, defendant thereto. A trial was had before the probate judge and a jury, which resulted in the jury returning a verdict of “no damages” in respect to the claim of the defendant in error. The defendant in error took no exceptions either to the rulings of the judge or to the finding of the jury; nor did he institute any proceedings whatever to set aside the verdict or reverse any ruling of the probate court that lead up thereto.
    In 1886, over four years thereafter, however, he began a suit in the court of common pleas of Lucas county to recover from the city the damages he claimed to have sustained on account of the improvement. To this action the city answered, setting up in bar thereof the proceedings had, upon the inquest of damages, in the probate court. .
    To this answer the defendant in error replied as follows:
    “The plaintiff for reply to the matters set forth in the said answer of said defendants, admits: That in a certain so-called proceeding in the probate court begun in November, 1881, by the city of Toledo, the said plaintiff was summoned into said court under the order and direction of .the city of Toledo, for the purpose of summoning a jury to assess the damages sustained by said plaintiff, by reason of the change of grade and the filling of Erie street in front of said plaintiff’s said premises.
    “That at the time of said proceedings the said property of said plaintiff, had been injured and damaged to the amount claimed in his said petition, and said plaintiff made it appear, then and there, in said probate court, upon the hearing before the jury to assess the said damage, which amount of his said damage and injury was undisputed by said city of Toledo.
    “That the sole ground upon which said city sought to defeat an award to said plaintiff, was upon the ground that his said claim for damages had not been filed within time.
    “Said plaintiff says that the jury was instructed by said court, and the jury found, or attempted to find in said action, that the said plaintiff’s claim had not been filed within the time provided by law, and for that reason and none other, the said jury returned in said proceedings, no award in favor of said plaintiff.
    “Attached hereto and marked Exhibit “O,” and made a part hereof is that part of the record and finding in said cause made May 19, 1887, as relates to the said matter.
    “ That in fact and in law the said plaintiff’s claim had been filed within the time provided by law, and in fact said plaintiff had suffered and sustained damages to the extent and amount claimed in his said petition, but that under the instructions of the probate court, the jury in said proceedings, in said probate court, made no award in favor of said plaintiff for the sole and only reason as aforesaid that said plaintiff’s claim had not been filed within the time.
    “Said plaintiff says that he was served with a notice which is hereto attached marked Exhibit “A,” and made a part hereof, upon the 9th day of June, 1880, and thereafter upon the 25th day of June, 1880, filed said written claim for damages (Exhibit “A”), with the clerk of the city council of the city of Toledo.
    “ Said plaintiff says that said proceedings in said probate court, to assess said compensation and damages to said plaintiff, were made after said improvement had been made and after said plaintiff had suffered and sustained the injury and damages that he claims herein.
    “That at the time of said appropriation or improvement the said city had failed and omitted to make compensation to him in any manner whatever before making said improvement or since.
    “Said plaintiff says that said proceedings by said city of Toledo in said probate court were unconstitutional and void, and the “action of said probate court therein is in no way binding upon said plaintiff herein and was not in due course of law.
    “That the provisions of the statute under which said proceedings were instituted, were in violation of the provisions of the constitution of the state of Ohio, article I, sections 16-19, and article XIII, section 5.
    “The said plaintiff denies the validity of said proceedings or said judgment in said probate court, or that the same has a'ny force or effect whatever as against said plaintiff herein.
    “Denies that said court and jury found that the property of said Preston had sustained no damage by reason of the said improvement of Erie street, set forth in said defendant’s answer.”
    The following is Exhibit “O,” referred to in the reply and made a part thereof:
    “Probate Court, May 19, 1887.
    ‘‘ The City of Toledo v. James W. Meyers et al.—Erie street damages, from Madison to Monroe.
    “This day came the plaintiff by its attorney, G. W. Kinney, and one of said defendants, F. W. Preston, by his attorney, E. D. Potter, Jr., on application of said defendant, and showing that the record in said cause was and is incomplete, and the court being advised in the premises, does find that the said probate court on the trial of said cause against said Preston charged the jury that if they found that the notice to file his claim for damages was served upon him on the 9th day of June, 1880,-and he filed his said claim for damages upon the 25th day of June, 1880, then they should return no award in his favor, for the reason, that he had not filed his claim within the time provided by law. That thereupon said jury retired and returned no award in his favor, and for the only reason that said claim had not been filed in time. And the court now orders that this finding be made a part of the record in said cause. And thereupon the said plaintiff, by its said 'attorney named herein, excepts to the order made herein.”
    A demurrer to this reply was interposed by the city and overruled by the court of common pleas, to which ruling the city excepted. Thereupon a jury being waived, the cause was tried to the court and a finding made in favor of the defendant in error, upon which he recovered judgment. The circuit court having affirmed this judgment, the proceedings are brought here for review.
    
      W. H A. Reed, for plaintiff in error.
    
      E. D. Potter, for defendant in error.
   Bradbury, C. J.

The only question for this court to consider is whether the proceedings had in the probate court upon an inquest of damages is a bar to the action of the plaintiff below, brought to recover upon the identical claim passed upon by the jury in the probate court.

The jurisdiction of the probate court to inquire by jury into a claim for damages, like that of the defendant in error, caused to abutting property by a street improvement, is clearly established by sections 2315 to 2327, inclusive, of the Revised Statutes, if there is no constitutional objection to such jurisdiction being exercised by that court. Section 2319 going to the extent of making the verdict of the jury final, and prohibiting an appeal therefrom, leaving to the aggrieved party such remedy, only, as may be provided by the statutes regulating proceedings in error. Section 8, of article IV, of the constitution of 1851, relating to probate courts and their jurisdiction, provides that “the probate court shall have jurisdiction in probate and testamentary matters * * * and such other jurisdiction as may be provided by law.” Under the provisions of this section of the constitution the general assembly were fully warranted in conferring upon the probate court the jurisdiction under consideration.

Counsel for defendant in error further contended that section 2316, Revised Statutes, that authorizes councils of municipalities to postpone the inquest of damages until after the improvements should be completed, violates section 19, of article I, and section 5, of-article XIII, of the constitution of 1851, designed to protect private property from unjust seizure and appropriation to the use of the public, and also conflicts with section 16, article I, of that instrument, which secures a speedy remedy by due process of law to one who may be injured in his person, reputation or property.

Section 5, of article XIII, does not apply to cases of property taken to construct roads which shall be open to-the public without charge, in which class the streets of our towns and cities belong. The rights of the owners of property taken and applied to such use falls within the protection guaranteed by section 19, of article I, by the provisions of which compensation is not required to be made before the property is taken.

The jurisdiction conferred on probate courts, and the course of proceedure prescribed by statute for ascertaining the damages resulting to abutting property on account of improving a street, do not conflict with section 16, of article I, of the constitution, which provides that “all courts shall be open, and every person, for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law, and justice administered without denial or delay,” for the probate court is a tribunal provided by the constitution itself, and the statute authorizing the proceedings before it, gives “a remedy by due course of law” in prescribing that notice shall be given to all parties to be affected by the inquiry, and that the trial shall be by jury.

The constitutionality of the provision of the statute authorizing the inquiry to be postponed until after the improvement should be completed may be a question not so readily and satisfactorily solved; for certainly it might be claimed with great show of reason that, when an injury has been fully accomplished, section 16, of article I, denies to the general assembly the power to postpone, directly or indirectly to a future period, the right of the injured party to seek redress in the tribunals established to administer justice.

The statute under consideration, however, only contemplates a delay until the injury shall be fully accomplished; for, until the improvement has been completed, it is, perhaps, always impracticable to ascertain with certainty the extent of the injury, the fill or excavation, as the case may be, will cause; in fact the injury has not been completed until then; and a delay of the proceedings until that time, we do not think, necessarily conflicts with that provision of the constitution, before -quoted, which provides that the administration of justice shall neither be denied- nor delayed. No doubt a municipality should be required .to proceed in good faith and with reasonable diligence with the work of improvement.

We are of the opinion, therefore, that the statute -which confers the jurisdiction under consideration, upon the probate courts of the state, is not in conflict with any of the provisions of our present constitution.

The defendant in error contends further, that if the jurisdiction exists, the probate court and jury are limited to the question of the amount of damages, and if any other ground to defeat a recovery existed, than that the improvement caused no injury, and - it was not available in the inquiry before that tribunal. This we think is too narrow a construction of the statute (sections 2317 to 2321, Revised •Statutes), that confers the jurisdiction. The municipality, in availing itself of the remedy thus provided, should not be held to have confessed its liability in every particular except one, and limited itself to contesting, the claim on • the sole ground that the property was not injured at all, or if injured, that the damages were less than the sum claimed. The object of the statute was to provide a more summary and less expensive proceeding to ascertain the liability of the municipality arising from the improvement than was afforded by the usual method of procedure. The statute authorizes the inquiry to be had before either the common pleas or the probate court; but whichever tribunal may be selected the jurisdiction should be held broad enough to determine the full measure of the liability of the municipality, or exonerate it altogether if no legal obligation exists against it, at the time of the inquiry.

However, if the contention of the defendant in error in this particular was right, it would not aid him in the case under consideration, for the verdict of the jury in the inquiry before the probate court was that the defendant in error had sustained no damages. The record of this inquiry is not set forth in haec verba, but the answer of the city, setting up the proceedings in the probate court, in bar of the action brought by defendant in error in the court of common pleas, shows that the defendant in error was served with process and appeared in the probate court, that the cause was tried to a jury, who rendered a verdict of “no damages ” against the defendant in error, and that the claim involved in that proceeding is the same that he afterwards sued on in the court of common pleas. The record of the proceedings in the probate court seems to have correctly recited every step taken therein, omitting nothing that should have been recorded. Nearly six years after the cause was tried and the verdict rendered, application was made to the' probate court by the defeated party to correct the record by supplying an alleged omission. This application was successful, and Exhibit “O,” which attempts to show the instructions given by the probate court upon the inquest of damages, and the reasons that controlled the jury in returning its verdict, was added to the record. We know of no practice by which a court can ascertain and declare of record the reasons which induced a jury to arrive at a particular-conclusion, orjby which the jury itself is permitted to assign and place upon record the reasons that produced its verdict. If the court committed an error in some material part of its. instructions, it will be presumed that the verdict may have-resulted therefrom; but the only legal and proper method of bringing upon the record the instructions given to a jury by the trial court is by a bill of exceptions taken at the time and in the manner prescribed by statute. In the inquest of damages had in the probate court no bill of exceptions was taken, and therefore the charge of the court was not preserved in that, the only manner, known to the law for its preservation. For aught that appears another judge, than he who instructed the jury, was called upon to ascertain, how is not shown, but probably by the introduction of evidence pro and con, what legal propositions had been submitted to a jury by his predecessor, upon the trial of a cause six years before. Judicial determinations could have but little stability or value in causes or tribunals where this is permissible. No doubt that in a proper case and upon satisfactory proof a nunc pro tunc entry may be had, many years after a record has been made up, correcting the entry so that it shall conform to the actual order or judgment of the court; but the order or judgment must have been in fact made, and in no case should that be added to the record which is not properly a part thereof.

If the probate court had jurisdiction in the matter of ascertaining the damages that accrued to the owners of propert3' abutting on the improvement, it is now too late to review its action, however erroneous it may have been. That could only be done by a proceeding instituted for that purpose directly upon the record itself. If the jurisdiction existed, the verdict is equally binding whether it was for a large sum, a small sum, or no sum at all. If no damages had been sustained the jury were bound by their oaths to return a verdict according^. If, in obedience to an erroneous charge of the court, the jury returned a verdict for too large or too small an amount, or for “no damages,” as ■ in the case under consideration, it is nevertheless their verdict and binding on the parties until set aside, either by the probate court or some one of the superior courts vested with power to review its proceedings; and this would be so even if the claim of the defendant in error for damages caused by the improvement should be regarded as in the nature of a claim for property taken and appropriated to a public use. It follows from these conclusions that the demurrer to the reply ought to have been sustained.

Jtidgment reversed.  