
    Bird et al. v. Young.
    
      Designating heir at law — Section 4182, Rev. Stat. — Procedure—Not necessary in open court —Nature of proceedings.
    
    1. In giving effect to the act of April 29, 1854 (Sec. 4182. Revised Statutes), which provides for the filing of a declaration, appointing one to stand as heir-at-law to the declarant in the event of his death and for the making of an entry upon the journal by the judge and a record of the proceedings, it is not essential that the declaration be made in open court, nor that it be made in any particular place. Such declaration may be made before a judge of the probate court within his county at a place other than the office of said court.
    2. The .entry which the statute requires the judge to make upon his journal and the record.of the proceedings do not constitute a judgment, and it is not essential to the validity of the proceedings that the order for such entry be made by the court. It is sufficient if it be made by the judge.
    (Decided March 30, 1897.
    Error to the Circuit Court of Fairfield county.
    Two cases are pending between the same parties ' and involving practically the same issues. One had its origin in the probate court, founded on a motion to set aside an entry; the other originated in the court of common pleas and was commenced by the filing of a petition directly attacking the entry. In the first named case the probate court found for the plaintiffs and vacated the entry, which on error was affirmed by the common pleas, but reversed by the circuit court In the second case the common pleas found for the plaintiffs and set the entry aside. On appeal the circuit court found for the defendant, and dismissed plaintiffs’ petition. These proceedings are brought to reverse these judgments of the circuit court. Pacts necessary to an understanding of the questions involved are as follows:
    
      On September 9th, 1893, one John Young was, and for many years had been, a resident of Madison township, in Fairfield county, Ohio; his residence being on a farm at a distance of ten miles from Lancaster, the county seat. Young was then of the age of seventy-four years, and of infirm physical condition ; was without children born in lawful wedlock; had never been married ;. had executed no last will and testament; his next of kin being Elizabeth Bird, a sister, and the children of a deceased sister. He was the owner in fee of lands valued at about $10,000.00 and of personal property of the value of about $4,000.00.
    On the date named, Edward G. Rutter, the probate judge of the county, at the instance and request of one John' F. Young, went to the residence of' the said John Young, and there, in the presence of said judge and two disinterested witnesses, said John Young signed a written declaration under the provisions of section 4182, Revised Statutes, designating James Luther Young to be his heir at law in the event of his death. The probate judge returned to his office at the county seat, made an entry of his finding on the journal of the. probate court, and a complete record. The entry was as follows:
    “In the matter of the designation by John Young, of James Luther Young, as a son and heir at law.
    “This day, being September 9th, A. D. 1893, appeared before me, the undersigned judge of the probate court, in and for the county of Fairfield, Ohio, John Young, residing in Madison township, in said county, and in my presence and in the presence of John Abbott and Thomas Delong, who are disinterested persons and acquaintances of the said John Young, he, the said John Young, did file a written declaration subscribed by him and attested to by the said John Abbott and Thomas Delong, declaring that he, as a free and voluntary act, did designate and appoint James Luther Young, of Hardin county, in the state of Iowa, to stand toward him in the relation of a son and heir at law, in the event of his death. And I, the said judge, being satisfied that such declarant, the said John Young, is of sound mind and memory, and free from any restraint, do hereby order that such facts-be entered upon the journal of said probate court, and that a complete record of such proceeding be made.
    “Edward C. Rutter,
    ‘ ‘Probate Judge. ’ ’
    The designation was as follows:
    “Designation.- — Know all men by these presents, that I, John Young, of the township of Madison, in the county of Fairfield, and state of Ohio, being of sound mind and memory, and free from any restraint, do hereby publish and declare, that as my free and voluntary act, I have designated and appointed and do hereby designate and appoint James Luther Young, whose place of residence is in Hardin county, in the state of Iowa, to stand toward me in the relation of a son and heir at law, in the event of my death.
    “In testimony whereof I have, in the presence of John Abbott and Thomas Delong, who are disinterested persons, of my acquaintance, subscribed my name on this, the 9th day of September, A. D. 1893.
    “John Young.
    
      “Attested by us, who are acquaintances of the said John Young, and are persons disinterested in the above designated matter.
    “John Abbott.
    “Thomas Delong.’7
    This was done without the knowledge of the next of kin. John Young did not at any time appear before the probate court at the county seat. He died intestate on the 30th day of October, 1893, at his residence, being'then the owner of the real estate and personalty named.
    Thereupon the next of kin; the plaintiffs in error, filed their motion in the probate court to vacate and set aside the finding’, order and entry on the ground: 1. That section 4182, Revised Statutes,’ is unconstitutional. 2. That the proceedings were not had and held, and said judgment was not rendered at, the office of the probate judge at the county seat where the probate court is located and established by law. About the same time they instituted the suit herein before referred to in the common pleas, alleging the same grounds, and adding allegations that John Young- was of unsound mind and memory and mentally incapacitated from making the declaration, and that the same was procured by fraud, restraint and undue influence.
    
      M. A. Daugherty; George Bird and ¿7. M. SPriekler, for plaintiffs in error.
    Section 4182. R. S. provides for the designation of an heir.
    Section 523, R. S. establishes the Probate 'Court at the county-seat where all judicial proceedings must be held.
    
      The probate court shall be a court of record, open at all times and holden by one judge. Constitution of Ohio, Art. IV, section 7.
    
      First — Said section 4182 is unconstitutional.
    
      Second — The designation proceedings and judgment were coram non judice and void because not had at the county-seat, 'the place prescribed by law for holding the court.
    It cannot be successfully denied and the defendant in error practically admits that the finding-was a judgment; judgments are rendered only by courts as the result of judicial proceedings. The proceedings under section. 4182 are nearly identical with the proceedings for the admission of a will to probate. Probate of a will is a judicial act. 9 Ohio, 96; 8 Ohio, 239-247. There must be a finding- that the declarant “is of sound mind and memory and free from any restraint.” The terms “file,” “journal,” “complete record,” “proceedings,” “satisfied,” are significant as indicating the acts of a court and not the ministerial acts of a mere judge. It is a judgment of a higher order than a judgment admitting a will to probate because it is conclusive unless impeached for actual fraud or undue influence. It is final and of the-highest order.
    It is an indispensaole prerequisite to a valid judgment that the court obtain jurisdiction of both the person and the subject matter.
    It is essential to the validity of all judgments of all courts that they be made and entered at the time and place prescribed by law, and if made at any other time or place such judgments are absolutely void and may be successfully impeached in a collateral proceeding, or by direct proceeding. Van Fleet on Collateral Attack, section 28; Black on Judgments, section 177; White v. Biggs, .27 Maine 14; Hernclon v. Ilockins, 65 Mo. 265; Cooper v. Insurance Co., 3 Colorado, 318; Dalton v. Libbey, 9 Nevada 192; Hobart v. Hobart, 45' Iowa 501; Grimmet v. Askeio, 48 Ark. 151; Dunn v. State, Ark. 229; Northrupp v. People, 37 N. Y. 203; Burnett v. Cooper, 57 Barb, (N. Y.) 642; Wells on Jurisdiction, section 121; 12 Am. and Eng. Ency. of Law, 14.
    1 Ency. of Pleading and Practice, title “Adjournment.”
    Neither the statutes nor the constitution confer upon him such jurisdiction. Constitution, Art. IV. section 18.
    Pinal jurisdiction, such as was exercised in this case, is always conferred on courts, and not upon judges at chambers. Board of Education v. Scoville, 13 Kan. 32; Darst v. Phillips, 41 Ohio St., 514.
    
      Brasee <& Brasee and George E. Martin, for defendant in error.
    One ground for attacking the declaration, is this: That the declarant did not appear before the probate judge in his court room to make the declaration, nor in open court, but the probate judge went to declarant’s residence, and the declaration was there signed and attested in his presence. Declarant’s residence was in the same county but was some miles distant from the county seat.
    It is claimed by plaintiffs in ■ error that section 4182 confers jurisdiction upon the probate court and that no authority is conferred thereby upon the probate judge to be exercised by him apart from his court.
    It is therefore argue., that “the designation proceedings and judgment were coram non judice and void because not had at the county seat, the place prescribed by law for holding the court.”
    
      The proceeding provided by section 4182 is peculiar to our statutes. There is no such enactment in any of the other states, nor so far as known, in any other country. The proceeding does, not seem to be common in practice, nor has there been any reported litigation upon it. There is therefore no direct authority upon the question raised upon the statute in this case. The better view of the matter, however, seems to be that the authority conferred by the statute is to be exercised by the probate judge within his county and not by the probate court; and that the, entry made by the judge upon his journal is not the entry of a judgment.
    And it seems to be a misnomer to call the entry made upon the journal by the judge, a judgment. Bouvier Law, Diet; 3 Bl. Com. 395; Blood v. Bates, 31 Vt., 150; Union Bank v. Marin, 3 La. An., 35; McNulty v. Hurd, 72 N. Y., 521; 11 Ohio St., 203.
    The function is quasi judicial, but public convenience requires that it be performed by judges rather than by organized and fixed, courts.
    The legislature had undoubtedly the constitutional power to vest such authority in either the probate court or the probate judge, (Constitution of Ohio, Art. .IV, section 18.)
   Spear, J.

The statute under which the probate judge acted, is the act of April 29, 1854, (52 Ohio Laws, 78), now appearing as section 4182, of the Revised Statutes. It is as follows:

“Section 4182. (Heir at law ; how designated.) A person of sound mind and memory may appear before the probate judge of his county, and in the presence of such judge and two disinterested persons of his or her acquaintance, file a written declaration, subscribed by him, which declaration shall be attested by such disinterested persons, declaring that, as his or her free and voluntary act, he or she, did desigmate and appoint another, naming and stating the place of residence of such person specifically, to stand toward him or her in the relation of an heir at law in the event of his or her death ; thereupon the judge, if satisfied that such declarant is of sound mind and memory, and free from any restraint, shall enter that fact upon his journal, and make a complete record of such proceedings ; thenceforward the person thus designated shall be deemed and held to stand in. the same relation, for all purposes, to such declarant as he or she could, if a child born in lawful wedlock ; the rules of inheritance shall be the same, between him and relations by blood of the declarant, as if so born ; and a certified copy of such record shall be prima facie evidence of the fact stated therein, and conclusive evidence unless impeached for actual fraud, or undue influence.1’

Counsel for plaintiffs claim that the entry and record purport to be, and in order to be valid must be, a judgment of a court; that a judgment can be rendered only by a court, and the statute contemplates that the action under it, resulting as it does in a judgment, is to be taken by a court, not by a judge ; but that the proceedings are not valid ; but are void, because not had at the office of the probate court at the county seat, the place prescribed by law for holding a court; and that being thus absolutely void, may be impeached by the plaintiffs by a proceeding for that purpose, either direct or collateral.

Much, may be said in favor of the propositions stated ; but, we think, all things considered, that the better reasons are against, and will endeavor to state some of them.

The proceeding is peculiar to this state, there not being, so far as we are aware, any similiar statute elsewhere. It is, besides, anomalous in many respects. That the entry is not a judgment in the general sense of our statute, is clear by reference to section' 5310: ‘ £A judgment is the final determination of the rights of the parties in action.” There is no action, nor are there adversary parties. Hence there cannot be the determination of rights in the sense of this section.

If the entry is a judgment at all, it is a judgment inrem. Not that it brings within the grasp of the law property, and provides for its condemnation ; for such result cannot follow. But, viewed in the light of the statute, it bears resemblance to those proceedings in rem, which fix the status of a person, as in lunacy or insolvency proceedings under our statute, or bankruptcy proceedings under the United States statute, for apparently its effect is to fix the status of the one designated as heir at law, by declaring that he ma3r, standing in that relation, inherit the same as would a child born in lawful wedlock, and that the record is to be prima fade evidence of the fact stated therein, and conclusive unless impeached for fraud or undue influence; thus giving lasting effect to the action taken, and making it, save when attacked as above stated, conclusive against the world with respect to the particular matter declared. It is true, also, that the judge is authorized to make the entry only upon finding certain facts to exist, viz: that the declarant is of sound mind and memory and free from restraint. But while there are these apparent resemblances, we think the analogy is not complete, for the elements of notice and hearing are lacking. The policy of our law makes these pre-requisites necessary before final action by a court prejudicial to individual rights, either of person or property. The appointment of guardians for minors seems to be an exception to this rule, but that the general policy is as stated, admits of no question. Sometimes the notice is by publication, sometimes by a more direct process ; but notice of some kind is required, and the rule is emphasized by numerous adjudications; so that it is fair to conclude that, within the policy of our law, notice, and such hearing as that the court may be called upon to consider and determine conflicting claims, are essential pre-requisites of a judgment in rem, as well as in personam, and it would seem to follow that if the lawmakers, having this policy in- mind, had intended to set on foot a proceeding which was to result in a judgment, they would not have failed to make some provision for notice and hearing. A reason for the absence of such provision is found by a consideration of the scope of the statute. It is a method of perpetuating the desire of the declarant. He, alone, is to be heard. No provision even for securing the attendance of witnesses is made. The appearance of two disinterested persons, as well as that of the declarant, is wholly voluntary. So that, if a proceeding to which there is and can be but one party can be said to be ex parte, then this is most essentially ex parte. In any view provision for notice would seem incongruous. The next of kin, .if anybody, would be entitled to it, and yet notice to them would appear to be as unnecessary and inappropriate as would notice of intention to make a will.

If the entry is not a judgment, then the principal support for the plaintiffs’ contention fails, for there would seem to be no reason why it might not as well be ordered and made by a judge as by a court, and if by a judge then his action-at chambers, though away from the county seat, would seem not open to serious question. And what is there in the proceeding- which requires that it be transacted in open court? No one has the ear of the court save the declarant; no witness is to be called to testify; no objection from any source is in order; no exception; no appeal. The declarant only has a present legal interest in the matter. While he lives he has no heir, as no one can claim a vested right in that which is merely presumptive. iSTor is there any immediate effect upon property, for one may make the declaration who has no property, and, after the declaration is made, any property, whether then possessed or acquired afterwards, may be disposed of by deed, by gift, or by will, with the same freedom and to the same effect as though the declaration had net been made. The action of the judgé in the finding which he makes, is said to be a judicial act. It is so in the same sense that the taking the acknowledgement of a deed or other legal document requiring an acknowledgment, is judicial. That is, it is quasi judicial. There, too, the officer must be satisfied that the acknowledgment is freely made, and his certificate to that effect is conclusive evidence of it in the absence of fraud. Baldwin v. Snowden, 11 Ohio St., 203.

Nor must we fail to give proper effect to the language of the statute which in terms devolves these duties on the probate judge, the probate court being nowhere mentioned. Counsel for plaintiff, with much confidence and some plausibility, urge that this fact is of no significance, because, in many probate acts the terms probate judge and court are used interchangeably, as convertible terms, often incorrectly, and special attention is called to the chapter on appropriation of property and that relating to insolvent debtors. There is some force in this, but it is not, we submit, sufficient to overcome the natural and legal import of the terms used in this act. In the other acts there is no difficulty in determining just what the language means by resort to the context and the general subject-matter, for it .is manifest that the machinery of a court is set in motion, involving complaint, process, appearance, hearing, trial, judgment, or verdict and judgment, exceptions, appeal, etc. The statutes referred to include many sections, and afford a . system of procedure by which the claims of adverse parties ' are to be brought before the court and their rights adjudicated, the termination being a final judgment. Here we have one section, an independent act, having for its object one singlé purpose, not calling necessarily for the exercise of the functions of a court, but reasonably within the functions of a judge, and containing no interchange of terms, but a designation of judge only, in each instance. It would seem reasonable to conclude that the law makers used the term probate judge intelligently, and with full understanding of its exact meaning. They might have named the probate court; they ' did name the probate judge. Nor is the meaning rendered doubtful by the fact that the entry is to be made upon the journal, and that a record is -to be made. This is* familiar practice. All entries required to be made of action by the judge, at chambers, are made upon the court journal. The journal of the court is the journal of the judge as well; he- has no other. The complete record simply embraces a copy of the journal entry and of the declaration, and-is followed by an index. All which concerns the convenience of the matter; not its legal effect. A complete record of deeds and mortgages, and some leases, is by statute required to be made, with an index, direct and reverse, and a copy of such record, certified by the recorder, is made evidence, but it has not been supposed that the fact of making a complete record implies that the recorder, in performing such duties, is exercising the functions of a. court.

Then, too, the construction contended for by plaintiffs restrains the beneficial effects of the act. It limits its operation to such persons as may be physically able to appear personally at the office of the probate court at the county seat, and exclude all such as cannot. No reason is apparent why this exclusive policy should be favored. Impartiality and fairness would seem to require that all persons answering the description who desire to avail themselves of the statute should have the opportunity, and this consideration doubtless was present at the time of its enactment, and presumably had potent effect in shaping the phraseology of the act.

- A point advanced, though not argued, is that the act is unconstitutional. It. rests, we suppose, ■upon the assumption that rights of parties next of kin to the declarant may be taken away without notice. This is answered by the proposition heretofore suggested that no vested rights do or can exist at the time of the proceeding. And as to mere presumptive rights it is clearly within the competency of the general assembly to modify, amend or repeal statutory provisions regulating descents and distributions at any time ; and it is equally competent to reach such result by indirection as by the short cut of a direct repeal.

But even if this entry were held to be a judgment it is not easy to see how these plaintiffs can have a standing to attack it. The record is valid on its face, and, by force of the statute, save as to fraud, _ imports absolute verity. The ancestor of these plaintiffs invoked the action taken, and surely he could not be heard to question its validity on the ground that the acknowledgment was had away from the office of the court. Courts are not ordinarily open for the purpose of setting aside action taken and entries made on the motion of the partv who has procured them. And if the ancestor would be estopped to ask a vacation of this entrj?- on the ground stated, how ca.n those, who stand as privies in blood and acquire their -fights, if any they have, directly from him, have any better right to be heard?

It is complained that on the trial of the case in the circuit court error intervened to the prejudice of plaintiffs by the order limiting, the number of witnesses as to the mental condition of the deceased to six on each side, and refusing to listen to cumulative testimony on the same facts and questions by thirteen other persons. The record does not disclose error. Ordinarily, the matter is within the discretion of the trial court, and it does not appear affirmatively that the court abused its discretion in this ruling.

Judgments affirmed.  