
    PROCEEDINGS TO DETERMINE TITLE TO PROPERTY TAKEN ON EXECUTION.
    Common Pleas Court of Montgomery County.
    State, ex rel Leona Sonnanstine, v. Homer Z. Bostick, Justice of the Peace.
    Decided, January Term, 1918.
    
      Execution — Property Levied ' Upon Claimed by a Third Person — Determination ' of Title-r-Three-Eourths' Jury Law Not Applicable— Remedy — Justice of the Peace May Not-be Compelled by Mandamus to Enter Judgment in Such a Case.
    
    1. Tbe three-fourths jury law is not applicable to an action before a justice of the peace involving the right of property.
    2. Mandamus is not the appropriate remedy to compel a justice of the peace to render judgment upon a verdict returned before him.
    
      Joy H. Hunt, for the plaintiff.
    
      C. E. Blanchard, contra.
   Kinkead, J.

This action is brought to require the defendant, as justice of the peace, to render judgment upon what is claimed to have been a legal verdict in proceedings in the trial of right of property, under'General Code, Section 11742. Under an execution issued in Midland Grocery Company v. Tootle, the sheriff levied upon an .automobile alleged to' have been owned by the relator. The defendant, as justice, summoned'five jurors, who after deliberation returned with a verdict signed by only four men. The justice instructed them to retire' for further consideration, 'and that the' verdict should be unanimous. They returned and the foreman-stated that they all could not agree upon a verdict. The verdict signed by the four was lodged with the justice, and is among the papers now before the court. All of the jurors gave testimony — the- four who signed the' verdict, that it was their verdict, while the fifth, the foreman, stated that it was not his verdict. The cause was continued, and a new jury was summoned, whereupon proceeding was brought to test the question. It is claimed by defendant that this is not the proper remedy, but that error should have been prosecuted.

The question is whether under an act passed February 6th, 1913, 103 O. L., 13, relative to three-fourths jury applies to this kind of proceeding.

The character of this proceeding must first be determined before either the propriety of the remedy pursued herein, or the applicability of the amended jury law, can be decided.

Section 10223, General Code, provides: Unless otherwise directed by law, the jurisdiction of justices of the peace in civil cases, is limited to the township wherein they reside.

Other statutes confer jurisdiction in particular matters, such as solemnization of marriages, acknowledgments, in forcible entry and detainer, attachments, garnishment over non-resident, etc. Sections 10224 and 1Q225.

Justices of the peace are given—

“Exclusive original jurisdiction in civil actions for the recovery of sums not exceeding one hundred dollars,” etc. General Code, Section 10226.

Exclusive jurisdiction is given in replevin (Section 10230) and in certain actions in which the title to real estate may be drawn in question, trespass, proportion of expense in obtaining evidence in surveys to fix corners or settle boundary lines, Section 10231.

. Provision is made for the commencement of actions, summons, service-, etc., Section • 10233, for-an-order of attachment “in a civil action before a justice,” Section 10253 and garnishment therein. . ■ • •

• “In -all eases -before a justice,” a bill of particulars of the demand is to -be filed (Section 1030i3), which must state the cause of action, Section 10304. Detailed provision is made for the trial.of civil.actions, for a jury, verdict-,.-and the usual -maU ters pertaining to the same, for; judgment, appeals,.etc.;.-,.. -; = :

Section--10382-provides:

■ “In all eases, not otherwise specially provided for by law, either party may appeal from the final judgment of a justice of the peace, etc.”

Special provision is made for procedure in forcible entry and detainer, Section 10447 ei seq., for replevin, Section 10462, without special designation as to the nature or character of such cases. But of course they are civil cases or actions.-

The proceeding authorized by Sections 11741, 11742, 11743 is a civil proceeding for the trial of the right of property upon which a levy of execution from a court of record has been made. It is not a civil action in the same sense as are actions, or civil' actions, provided for by the statutes prescribing the' jurisdiction of justices. When ownership of the property is claimed by one other than the execution defendant, the execution officer is required to give written notice to a justice of the peace, setting forth the names of plaintiff and defendant, and a schedule of the property. ...

Tt is then made the duty of the justice to immediately make an entry on his docket, and issue a summons, directed to the sheriff or any constable of the county, commanding him to sum-i mon five disinterested men, electors, to .appear to try and determine the claimant’s right of property.

The justice is required to enter the receipt of the notice and schedule, and to make an entry on his docket. He must then issue a summons directed to the sheriff or a constable for five disinterested men, who are electors, to try and determine the claimant’s right to the property in controversy. The claimant is required to give two days notice of the trial to the party in whose favor the execution was' issued.

“If the jury finds that the right to the goods-and chattels,, in whole or in part, is in the claimant, they also shall find th.9 value thereof, and the justice shall render judgment upon such finding for the claimant, that he recover his costs against the plaintiff in execution, * * * and .also have restitution of-the goods and chattels, * * * according to the finding of. the jury,” etc. ' ■ . . ■ , .

If the jury-fails to agree, costs aré taxed, and another jury shall’ be summoned as before. „

This is what may be appropriately designated as & civil case or proceeding; it is not a civil action according to the ordinary acceptation of that term. A civil action in .the justice court prescribed by statute is analogous to the common law civil action, commenced in the same way, and attended with the same procedural incidents. In such actions the function of the justice and the jury are like those of a court of general jurisdiction.

This proceeding to try the right of property is not like the civil.action; it is not commenced in the same way, no summons is' issued to the parties. The claimant does not immediately commence the proceeding before the justice, this being done by the execution officer. Notice of the hearing by the jury is given by the claimant.

The precise nature of the proceeding must be first determined in 'order to decide whether the remedy in mandamus is appropriate as well as whether the three-fourths jury law applies. It was treated as a statutory remedy in Petty v. Mansfield, 8 O. S. 369. And it was considered that the party was concluded or bound by it, so far as the officer is concerned. Id. If he pursues this method .and fail to establish this right, he may not be allowed in a subsequent proceeding against the officer to show his right to it. Abbey v. Searls, 4 O. S., 598, Ralston v. Ousler, 12 O. S., 105.

A' justice of the peace is given jurisdiction in “criminal cases” as provided by statute, Section 13422.

An appeal can be taken in civil cases tried 'to a jury when more than twenty dollars is claimed, Section 10354. But no appeal can be allowed in trials of the right of property under the statute either levied upon'by execution or attached, Section 10396.

An order made by a justice of the peace may be heard on error by the court of common pleas, Section 12241; Abbey v. Searls, 4 O. S., 598, and Jones v. Wilson, 16 O. S., 420, are cases where error was prosecuted.

Section 10350 as amended, 103 O. L., 13, provides that in all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. Section 10350 is part of the chapter relating Jto “Trial, and its Incidents’.’ before justices of the peace.

Sections 11741-11743 is part of the Civil Code, and .apply to cases of execution where the sheriff is executing the process. Section 10371-10373 applies to executions made by the constables in justices’ courts. The fact that Sections 11741-11743, under which this proceeding w,as had, is part of the Civil Code of Procedure applicable to the common pleas court, and that there are separate sections applicable to justices’ courts, demonstrates that it is to be regarded as a statutory proceeding in which power is conferred upon a justice of the peace to issue a summons, impanel a jury and enter judgment upon its verdict. It is not a civil action or civil case such as contemplated by Section 10|350 of the justices’ code, wherein it is now provided that a three-fourths verdict may be rendered by a jury.

It must be concluded also that mandamus is not the appropriate remedy in view of the provision made that any order made by a justice of the peace may be reversed by the common pleas court. Section 12241.

The finding and judgment is against the relator and in favor of defendant.  