
    McCormick, Administrator, v. The Sells Company.
    
      Sections 6583 <ffld 6584, Revised Statutes — Justices’ Civil Code— Regulates appeals from justices’ courts — Section 6408, Revised Statutes — Applies when party is in fiduciary capacity and gives no bond — Such party must given written notice of intention to appeal — Oral notices entered on docket, etc., is insutficient.
    
    Sections 6583 and 6584;, Revised Statutes,' et seq., Justices’ Civil Code, regulate appeals generally in civil cases from the courts of justices of the peace to the court of common pleas, but Section 6408, Revised Statutes, applies when a person who is a party in a fiduciary capacity appeals without giving an appeal bond, and in such cases the party appealing must give a separate written notice to the court of his intention to appeal within the time limited for giving bond. Oral notice to the justice and an entry of notice of appeal by him on his docket Or in the transcript is not sufficient.
    (No. 10084
    Decided February 26, 1907.)
    Error to the Circuit Court of Franklin County.
    In 1905 the defendant in error, a corporation, sued the plaintiff in error, as administrator, on an account, before a justice of the peace. Judgment was rendered for the plaintiff, and the defendant gave oral notice of its intention to appeal, to the justice, who endorsed upon the bill of particulars “Notice of appeal,” and in the transcript of the proceedings before him, filed in the court of common pleas, immediately after the entry of judgment, appears this notation, “Notice of appeal.” No appeal bond was given. In the court of common pleas the appeal was dismissed on the ground that this was not‘a good statutory notice of appeal. The circuit court affirmed and error is prosecuted in this court.
    
      Mr. Henry M. Butler and Mr. Seth L. McMillan, for plaintiff in error,
    cited and commented upon the following authorities:
    
      Thomas, Admx., v. Moore, etc;, 52 Ohio St., 200; Scovern v. State, 6 Ohio St., 288; Whittaker’s Ohio Code of Evidence, 512; Collins, Exr., v. Millen et al:, 57 Ohio St., 289; Lessee of Haines v. Lindsey, 4 Ohio, 88; C. H. & D. Ry. Co. v. Bailey, 70 Ohio St., 88; Irwin et al. v. Bank of Bellefontaine, 6 Ohio St., 81; Kenton et al. v. Board of Education, 70 Ohio St., 172; Charles v. Fawley et al., 71 Ohio St., 50; Hirsh v. Kilsheimer, 12 C. C., 291; Miller et al. v. Albright, 12 C. C., 534; In re Estate of Sidwell, 67 Ohio St., 464; Doyle v. Doyle, Ir., et al., 57 Ohio St., 330; Layer, Gdn., v. Schaber, Admr., 57 Ohio St., 234; Coates v. Chillicothe, etc., Bank, et al., 23 Ohio St., 415; Scofield v. L. T. & M. S. Ry. Co., 43 Ohio St., 571; Seeley v. Thomas, Auditor, 31 Ohio St., 301; Brundige v. Village of Ashley et al., 62 Ohio St., 528; Henry v. Trustees, 48 Ohio St., 671; Rhodes v. Weldy, 46 Ohio St., 234; Rose, Sheriff, v. Willet, 54 Ohio St., 150; Robinson v. Orr et al., 16 Ohio St., 285 ; Lewis’ Sutherland Statutory Construction, Sections 368 and 370; Medical College of Ohio v. Zeigler et al., 17 Ohio St., 53; State for the use of, etc., v. Blake et al., 2 Ohio St., 147; C. W. & Z. R. R. Co. v. Commissioners, 1 Ohio St., 77; Miller v. State, 3 Ohio St., 475; Pim v. Nicholson, 6 Ohio St., 177; Harris v. State, 57 Ohio St., 92; Columbus Street Ry. Co. v. Pace, 68 Ohio St., 200; Teaff v. Ross et al., 1 Ohio, 469; Coe v. C. P. & I. R. R. Co., 10 Ohio, 384; Conger et al. v. Barker’s Admr. et al., 11 Ohio, 1; Burgunder et al. v. Weil et al., 60 Ohio St., 234; Gilpin et al. v. Williams et al., 25 Ohio St., 283; Toledo Commercial Co. v. Glen Mfg. Co., 55 Ohio St., 217; United States v. Wilson, 58 Fed. Rep., 768; Rutherford & Co. v. C. & P. R. R. Co., 35 Ohio St., 559; Lane v. State, 39 Ohio St., 312; Myers v. Seaberger, 45 Ohio St., 234; Shultz v. Village of Cambridge, 38 Ohio St., 659; Goodall v. Gerke Brewing Company, 56 Ohio St., 257; State v. Johnson, 64 Ohio St., 270; Aultman, Miller & Co. v. Assignees of J. F. Seiberling Co. et al., 31 Ohio St., 201; Steamboat Messenger v. Pressler, 13 Ohio St., 255; Brigel v. Starbuck, 34 Ohio St., 280; McCormick v. Alexander, 2 Ohio 65; Trustees v. White et al., 48 Ohio St., 581; Sawyer v. State, ex rel., 45 Ohio St., 343; Rolling et al. v. Lorain, 13 Low, D., 87; Story on Contracts, Section 776; C. S. & H. R. R. Co. v. I. B. & W. Ry. Co., 44 Ohio St., 287; Mintier et al. v. Mintier, 28 Ohio St., 307; Stone v. Elliot, 11 Ohio St., 252; Bulkley v. Stephens et al., 29 Ohio St., 620; Cobble et al. v. Farmers’ Bank, 63 Ohio St., 528; Norris v. State, 25 Ohio St., 217; Johnson v. Johnson, Exr., 31 Ohio St., 131; Greenhow et al. v James, Exr., 80 Va., 636; State, ex rel., v. Wright, Treas., 17 Ohio 33; City of Cincinnati et al. v. Guckenberger, 60 Ohio St., 353; A Mad World, by Masters; Humphreys, Exr., et al. v. State et al., 70 Ohio St., 68; Bahmann v. Stoner, 59 Ohio St., 497; Hallanan v. Crow, 15 Ohio St., 178; Courtright v. Staggers, 15 Ohio St., 511; Cohoon et al. v. Kincon, 46 Ohio St., 590; Bancroft & Co. v. Talbott et al., 29 Ohio St., 538; Steamboat Ohio v. Stunt, 10 Ohio St., 583; Jones v. Wilson Carr & Co., 16 Ohio St., 420; Debolt, Treas. v. Ohio Life Ins. & Trust Co., 1 Ohio St., 563; Hollmeyer v. McKinney, 15 C. D., 704; Bernard et al. v. Schwartz, 22 C. C., 149; 1 Kent’s Commentaries, 464; Sutherland on Statutory Construction (1st Ed.), Sections 308 and 311; Jewett v. Valley Ry. Co., 34 Ohio St., 501; Rogers v. Goodzvin, 2 Mass., 476; State ex rel. v. Cook, 20 Ohio St., 232; Prentice v. Pickers gill, 6 Wallace, 511; Chesnut v. Shane’s Lessee, 16 Ohio, 599; Citizens’ Savings Bank v. Ide, 20 C. C., 665; Campbell, Admx., v. Campbell, 3 C. C., 449; Dutoit v. Doyle et al., 16 Ohio St., 400; Murphy’s Admr. v. Northern Transportation Co., Harding v. Trustees of New Haven Tp., 3 Ohio, 15 Ohio St., 536; Austin v. Hayden, 6 Ohio, 388; 227; McGarvey v. Puckett, 27 Ohio St., 669; Scioto Valley Ry. Co. v. Cronin, 38 Ohio St., 122; Broom’s Legal Maxims, 147; Root & McBridge Bros. v. Davis et al., 51 Ohio St., 29; Sections 549, 4948, 4956, 4982, 5228, 5353, 5363, 6407, 6408, and 6594, Revised Statutes.
    
      Mr. B. L. Bargar and Mr. William J. Ford, for defendant in error,
    cited and commented upon the following authorities:
    
      Thomas, Admx. v. Moore, etc., 32 Ohio St., 200; Layer, Gdn. v. Schaber, Admr., 57 Ohio St., 234; 
      Humphreys, Exr., et al. v. State et al., 70 Ohio St., 73; Browne, Assignee, v. Wallace, Assignee, et al., 66 Ohio St., 57; Collins, Exr., v. Mitten et al., 57 Ohio St., 289; Dennison et al., Exrs., v. Talmadge et al., 29 Ohio St., 433; Western Union R. R. Co. v. Dickson, 30 Wis., 389; Blum v. Brozvnstone Bros., 50 Cal., 293; Pollock et al.,v: School District et al., 54 Neb., 172; State ex rel. v. Hanousek, 19 C. C., 303; Mumma et al. v. Mumma, 23 Ohio St., 602; Reber v. Columbus Machine Mfg. Co., 12 Ohio St., 175; Sections 213, 5227, 5228, 6408 and 6584, Revised Statutes.
   By the Court:

Section 6584, Revised Statutes, in the Justices’ Code of Civil Procedure, prescribes the mode of appeal from the judgment of a justice of the peace to the court of common pleas, and does not except parties, who are such in a fiduciary capacity and háve given bond in this state, and who appeal in the interest of their trust, from the requirements of notice and bond for appeal. In Section 5228, Revised Statutes, in the chapter relating to civil procedure in the court of common pleas, it is provided that: “A party in any trust capacity, who 'has given bond in this state with sureties according to law, shall not be required to give -bond and security to perfect an appeal,” and in Section 6408, Revised Statutes, in a chapter relating to civil procedure in probate courts, it is provided that: “When the person appealing, from any judgment or order in any court, or before any tribunal, is a party in a fiduciary capacity, in which he has given bond within the state, for the faithful discharge of his duties, and appeals in the interest of the trust, he shall not be required to give bond, but shall be allowed the appeal, by giving written notice to the court of his intention to appeal within the time limited for giving bond.”

In Thomas, Admr. v. Moore, etc., 52 Ohio St., 200, it is decided that a party in' a fiduciary capacity to a case in the justice’s court, and who has given bond in this state, is not relieved bjr Section 6408 from giving bond for appeal from a justice’s court when the appeal is not in the interest of his trust, and in Browne, Assignee, v. Wallace, Assignee, et al., 66 Ohio St., 57, it is held that to perfect an appeal under 6408, Revised Statutes, a separate written notice to the court of an intention to appeal is necessary, and that a recital of notice in a journal entry is not sufficient. Ip the opinion in Thomas, Admr. v. Moore, supra, it is said that Section 6408, Revised Statutes, is applicable to appeals from justices of the peace and that Section 5228, Revised Statutes, is applicable onfy to appeals from the court of common' pleas to the circuit court; and in the opinion in Layer, Gdn. v. Schaber, Admr., 57 Ohio St., 234, it is said that Sections 5227 and 5228 apply to appeals from the common pleas court to the circuit court, and that Section 6408 applies to appeals from a probate court to the court of common pleas, and to appeals from other courts inferior to the court of conimon pleas. Unless some section other than 6408 applies, and unless these decisions are wrong, the judgments below are correct. Counsel for plaintiff in error contend that the statements referred to are merely obi-ter, that they are-based upon a mistaken view of the statutes, that Section 6408 is limited to appeals from the probate courts to courts of common pleas, that Section 5228 is made applicable to appeals from justices to the court of common pleas by Section 6705, Revised Statutes (Justices’ Civil Code), which provides that the provisions of the code of civil procedure in the court of common pleas, which are in their nature applicable, shall apply to proceedings before justices of the peace where no special provision is made in the title of the Revised Statutes relating to proceedings before justices of the peace and mayors; that such was the contemporaneous view of the statute by a former distinguished member of this court in his celebrated vade me cum for -justices known as Swan’s Treatise, and' that ever since such has been the uniform practice. Whether or not in the absence of Section 6408, Section 5228 would by virtue of Section 6705 apply to appeals from' justices of the peace to the court of common pleas, and, if it did, whether the appeal was properly taken need not be considered, since it is easily susceptible of demonstration that Section 6408 does apply!

• Prior to the adoption of the present Constitution in 1851, probate courts did not exist in this state. In the administration act of 1840, 38 Ohio Laws, 146, S. & C., 563, Sec. CCLXIII, it is provided: “Every executor or administrator who may have given bond in this state, with- sureties, agreeable to law, shall be authorized in all cases of an appeal from one court to another, by him made, to prosecute the same without filing any appeal bond.'” This section remained in force until repealed in 1878, 75 Ohio Laws, 836-963, by an act, “To revisé and consolidate the laws relating to procedure in the probate court,” passed in pursuance of the plan that resulted in the Revised Statutes of 1880. Section 8 of Chapter *7 of the Act of 1878, 75.Ohio Laws, 836-957, provided for appeals as to certain matters from the probate court to the court of common pleas, and Section 9 provided: “But when the person appealing is a party in a fiduciary capacity, in which he has given bond within the state for the faithful discharge of his duties, and appeals in the interest of the trust, he shall not be required to give bond, but shall be allowed the appeal, by giving, written notice to the court of his intention to appeal within the time limited for giving bond,” and as to the source of the section reference is made to section CCLXIII of the statute of 1840 and to Sections 4 and 6 of an act passed in 1854 (52 Ohio Laws,-103), supplementary to an act relating to practice in the probate court. It may be that Section 9 related solely to appeals from the probate court to the court of common pleas, and was inapplicable to appeals from justices of the peace to the. court of common pleas, but it appears as Section 6408 of the Revised Statutes of 1880, with these words added, “from any judgment or order in any court, or before any tribunal,” and then read as it does now, so that the intention that this provision shall apply to every case for which special provision has not been made is so plain “that he may run that readeth.”

Judgment affirmed.

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