
    Rezin Franks and Philip Lawrence v. The State of Ohio.
    1. Where the journal entry shows a substantial finding of the issue for the plaintiff, but it is preceded or accompanied by a contradictory or inconsistent statement of grounds or reasons, the same not having been requested under section 280 of the code, with a view of excepting to the decision of the court upon the questions of law involved in the trial, and there being no exception, such statement can not be relied on as showing error in the judgment.
    2. The act of 12th March, 1853, “ relating to the entry and recording of recognizances in the court of common pleas,” does r.ot extend to recognizances taken before the court of common pleas, or to the forfeiture of such recognizances, and does not repeal or supersede the provisions of the third section of “ an act to amend an act to regulate the practice of the judicial courts,”, passed February 25,1848, in relation to such recognizances.
    3. Where the taking and forfeiture of a' recognizance before the court of common pleas is shown in the manner provided by that section, the effect given to the act of the clerk in attesting the recognizance and making a memorandum of the forfeiture, is not impaired by corresponding entries on the journal of the court. They may be regarded as mere repetitions, and unless there be a manifest and material inconsistency in the different statements, the validity and effect of the record are not impaired.
    Error to the district court of Perry county,
    
      An action was brought against the plaintiff in error in the court of common pleas of Perry county on a recognizance.
    The petition'stated that the defendants appeared before the court of common pleas of Licking county, and entered into a recognizance before said court as follows : “ The State of Ohio v. John W. Lawrence. Be it remembered, that on this twenty-third day of April, A. D. 1856, at the April term of the court of common pleas for said county, in compliance with an order of said court, personally appeared in open court, John W. Lawrence (who stands indicted for the high misdemeanor of administering medicine to one Charlotte Cross-mock, she being a woman pregnant with a quick child, with intent thereby to destroy such child, the same not being necessary to preserve the life of such mother, and not having been advised by two physicians as necessary for such purpose, in consequence whereof such mother died), together with Rezin Franks and Philip Lawrence, his sureties, and jointly and severally acknowledged themselves to owe and stand indebted unto the State of Ohio in the sum of one thousand dollars, to be levied of their goods and chattels, lands and tenements, if ■default be made in the condition following, to-wit: The con■dition of this recognizance is such that if the above bound •John W. Lawrence shall personally be and appear before the -court of common-pleas, on the first day of the next term to •■be holden in and for said county, then and there to answer to ■said indictment for said high misdemeanor, and abide the judgment of the court, and not depart without leave; then ■this recognizance shall be void, otherwise it shall remain in ■full -force and virtue in law.” The petition then states a failure to comply with the condition of the- reimgnizance, at the ■term of the court next after entering into it, the term of August, A. D. 1856, and proceeds : “ Whereupon the said court ■declared the said recognizance to be and it is forfeited; all which will more fully appear, reference being had, which is Fere made, to the records of said court in which the said recognizance and its forfeiture are duly recorded.” The petition concludes with a breach, in the non-payment of the sum -named in the .recognizance.
    
      To this petition a demurrer was filed, which by the court of common pleas was sustained and leave given to amend the petition.
    An amended petition was filed, which set forth substantially the same matters contained in the original, with the variation or addition of statements. The amended petition contains the caption of a written recognizance — “ The State of Ohioj Licking County ” — the names as signed and the attestation of the clerk, and it states that the recognizance “ was taken in open court and attested by the clerk of the same, by his authorized deputy, and filed in said court on the said 23d day of April, 1856.” The amended petition, after stating the failure to comply with the condition of the recognizance, proceeds: “ Whereupon the said court, on the 11th day of August, 1856, declared the said recognizance to be and it is forfeited.” And there is no statement, that all this appears of record, and that the recognizance and its forfeiture are duly recorded.
    A demurrer was filed to the amended petition, which was overruled, and an answer was filed, containing three parts:
    
      “ 1. That the said court of common pleas of said county of Licking, had no authority to order the said John W. Lawrence to enter into the supposed recognizance set out in plaintiffs’ petition, nor had said court or the clerk thereof any authority to take the same for the purposes therein expressed, because they say that it is not true that the said John W. Lawrence was in custody upon the indictment therein named, at the time said supposed recognizance is alleged to have been taken; neither was he called to answer to, or put to plead to said indictment, at the April term, 1856, of said court, nor was the prosecution upon said indictment against said John W. Lawrence continued to the next or any subsequent term thereof.
    
      “ 2. Said defendants say that said court of common pleas of Licking county ha’d no authority to declare said supposed recognizance forfeited for the non-appearance of the said John W. Lawrence at the said August term, 1856, of said court, because they say no continuance of the prosecution upon said indictment was entered or took place in said court, requiring the appearance of the said John W. Lawrence at the said August term thereof, and no default could be legally entered therein, there having been no continuance of said cause for trial to the August term aforesaid.
    “ 3. The said defendants further state, that there is not any record of said supposed recognizance and forfeiture thereof in the said petition mentioned remaining in the said court of common pleas of Licking county, in manner and form as said plaintiff hath in her said petition alleged, and this they are ready to verify.”
    There was a demurrer to the 1st and 2d parts of the answer ; which demurrer was sustained.
    The case was heard in the common.pleas, on “ the petition of the plaintiff, the third ground of defense, and testimony,” and there was a finding and judgment in favor of the plaintiff.
    An appeal was taken to' the district court, where the demurrer to the answer being reheard, it was again sustained. The record then states: “ This cause came on to be heard upon the original and amended petitions filed by the plaintiff herein and the third ground of defense in the answer of said defendants, Rezin Franks and Philip Lawrence, thereto, and neither party demanding a jury, the same is submitted by consent to the court; and the court, after hearing the testimony and arguments of counsel, being fully advised in the premises, doth find that the allegations of said original petition are true, and the allegations of said amended petition are. not true, and that the allegations in said third ground of defense of said defendants’ answer are not true; that said defendants, Franks and Philip Lawrence, are indebted to the plaintiff in the sum of one thousand dollars. It is therefore considered,” etc. — rendering a judgment against the defendants for the amount found and costs.
    A motion was made by the defendants for a new trial, which was overruled, and a bill of exceptions allowed and signed. The bill of exceptions shows that there was offered .in evidence the record of the proceedings in the court of common pleas of Licking county, in the case of The State v. John 
      
      W. Lawrence. The recognizance, as shown by this record, was as set forth in the pleadings. The statement of the forfeiture is as follows: “ And afterward, to-wit, on the 11th day of August, at the August term of said court, A. D. 1856, this day was returned into court a certain recognizance entered into at the last term of this court by John W. Lawrence and Rezin Franks and Philip’Lawrence in the penal sum of one thousand dollars, conditioned for the appearance of the said John W. Lawrence at the present term of this court to answers charge of producing an abortion, and thereby causing death, and abide the order of the court and not depart without leave. And thereupon the said John W. Lawrence, being three times solemnly called to come into court and answer such charge, came not, but made default; and the said Rezin Franks and Philip Lawrence being in like manner called to come into court and bring with them the body of the said John W. Lawrence, as by the terms of their recognizance they were bo.und to do, came not but made default. Whereupon the court declares said recognizance forfeited.”
    The record also showed that on the written recognizance there was indorsed, “ The State of Ohio v. John W. Lawrence. Recognizance filed April 28, 1856. This recognizance was forfeited in open court by order of court, August 11, 1856.”
    The statements of the clerk and deputy clerk of Licking county, were also embodied in the bill of exceptions. These statements showed that the written recognizance and the journal entry of a recognizance had reference to the same transaction, as also the memorandum of a forfeiture and the journal entry thereof, being made, as the clerk- said, on account of a question whether the taking a recognizance and not making a journal entry would suffice.
    
      Charles Lollett, for plaintiffs in error.
    
      James Murray, attorney general,, for the state.
   Gholson, J.

It is not denied that the district court might, had an application for the purpose been made, have reheard the demurrur to the original petition, but no such application having been made, it is claimed, that the original petition should have been regarded as disposed of, and not properly a part of the pleadings in the trial of the issue. The amended petition, not merely supplying by an additional statement a defect in the original, but being a re-statement of the whole cause of action, and in its character a substitute for the original, strictly and regularly, this view taken for the plaintiffs in error is correct. It would have been proper in stating the issue presented to the district court for trial to have referred only to the amended petition and the defense not disposed of by the demurrer. But the original petition, though disposed of, still constituted a part of the record, and if the journal entry in the district court, fairly construed, shows, that it was referred to for the purpose of more conveniently stating the conclusions of the court, it would be exceedingly technical to say, that such reference might not be made.

The amended petition contained all the substantial allegations found in the original; and it was certainly competent for the district court to hold and decide, that those allegations, if established in testimony, independent of the additional statements in the amended petition,- entitled the plaintiff to a judgment. The decision on the demurrer to the original petition would not have bound even the court of common pleas to hold otherwise. A demurrer is filed to a petition containing a statement of facts. The court thinking that one or more additional facts are necessary to constitute a cause of action, sustains the demurrer and permits an amendment introducing those facts. The case when tried stands as if the petition had originally contained those fa'cts, and the court is at liberty, if, upon further argument and consideration, they are deemed unnecessary, so to decide. In this view, the district court may have intended, by referring to the original petition, to say, that, while the allegations in the amended petition as an entirety were untrue, that portion of them contained in the original petition were true.

But the plaintiffs in error are not in a position to require us to construe and reconcile what are claimed to be the findings of the district court. The journal entry substantially shows a finding of the issue for the plaintiff, and the inconsistency is in the statement of the grounds or reasons for that finding. To remove any doubt, the bill of exceptions expressly states, “ that the court found said issue in favor of said plaintiff.” There being then, a general finding for the plaintiff, section 280 of the code declares, that “ Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally, for the plaintiff or defendant, unless one of the parties request it,.with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found, separately from the conclusions of law.” Yery certainly this was not done, or intended, by the court or the parties. The entry not only fails to show such a statement as the code contemplates, but there is no exception either to the form of the entry, or to any conclusion which it contains. It was not prepared with a view to an exception, and there was no exception. A party against whom an issue is found, can not stand by when the journal entry is made, make no objection to its form, and afterward seek to avail himself of inaccuracies or inconsistencies in the statement of the steps by which the court reached its conclusion, a statement which the law declares unnecessary, Avhen no exception is proposed.

Journal entries, Avhen the court is not called upon to make special findings Avith a view to any exception, are frequently loosely draAvn, and do not always set forth fully and accurately the predicate of the judgment. It would be unfair to the court and unjust to the party, in whose favor the judgment was entered, to allow the other party, without an effort to correct the entry, or an endeavor to point out the mistake, and without exception, to allege error in an appellate court. In such a case it is certainly sufficient, if the record substantially shows, all that the law requires, a general finding of the issue for the plaintiff and the proper judgment thereon.

The plaintiffs in error have the less right to complain of the failure of their objection to the form of the entry, as, by a bill of exceptions showing all that occurred on the trial, they have secured a full inquiry into the merits of the case. To no part of the evidence offered was any objection interposed on the ground of a want of relevancy or accordance with the allegations in the pleadings. Nothing is left but to inquire whether the evidence was sufficient to sustain the finding of the court. In this connection it may be observed, that a variance between-the allegation and proof is not material, unless the allegation to which the proof is directed is .unproved in its general scope and meaning, and not in some particular or particulars only. Code, secs. 131, 132, 133. — - Within this rule, supposing the plaintiff to have been confined to the amended petition, under the allegation in it that the defendants had entered into a recognizance and that it had been forfeited before the court of common pleas of Licking .county, whether the proof was by a written recognizance filed in the clerk’s office with a forfeiture indorsed, made by statute equivalent to a record, or by entries on the journal of the court, could not be regarded as material. It was substantially the same claim, is so shown to be by the bill of exceptions, and a party who makes no objection on the ground of variance, can not be heard to say that there ought to have been an amendment. The materials for the amendment being on the record, as to him it will be regarded as actually amended.

In either view of the law, then, as to the form in which a recognizance may be taken and forfeited before the court of common pleas, the plaintiff in the action may recover, if a compliance with it has been shown. The state of the law on the subject has been rendered a little uncertain by the reenactment, 12th March, 1853, of 'the act of the 8th March, 1831, which had been superseded by the act of 25th February, 1848. The act of 12th March, 1853, does not repeal the act of 25th February, 1848, but has been supposed to supersede it, in whole or in part. (State v. Wert, 3 Ohio St. Rep. 509, 520; 2 S. and C. Rev. St. 1192, 1193, note.)

By reference to the act of 8th March, 1831, it appears that its subject matter was, recognizances returned to the court of common pleas, by a justice of the peace or other officer authorized to take such recognizances. The act in no manner affected recognizances tajeen before the court of common pleas. It is very probable that a doubt arose whether the act applied only to recognizances returned forfeited, and not to recognizances which required the appearance of parties before the court of common pleas. The act of 25th February, 1848, in direct terms, embraced recognizances forfeited in the court of common pleas, whether taken before such court, before a judge of any court of the state, or before any justice of the peace, and also to recognizances declared forfeited by a justice of the peace and returned into the court of common pleas, providing that it should not be necessary ■ to make any minute of such forfeiture or of such return, but only a memorandum of the forfeiture in court, or of the date of the return of the justice, upon the back of the recogniz anee, to be attested by the signature of the clerk. And, thereupon, the act declared that the recognizance and the forfeiture should be deemed to be of record in the court. The act then proceeds, in conclusion, to provide for another subject matter — the taking recognizances during the session of the court, declaring that££ it shall not be necessary to enter upon the journal of the court, any recognizance which shall be taken during the session of the same, but every such recognizance shall be deemed valid in law, if taken in open court, and attested by the clerk of the court.”

. The act of 12th March, 1853, re-enacted the act of 8tb March, 183l, and there being no express repeal of the aci of 25th February, 1848, the question arises, how far it is to be regarded as still in force. If the act of 12th March, 1853, is to be regarded as an amendment of the act of 25th February, 1848, then, under the provision of the constitution, it should have been repealed. The failure to do this does not, we think, have the stringent effect claimed by the counsel for the plaintiffs in error; but if it had, the consequence would be different from what he supposes. It would annul not the act of 25th February, 1848, but the act of 12th March, 1853, in the enactment of which the failure to comply with the direction of the constitution occurred. It is rather to be presumed that what the legislature intended was not strictly an amendment, but rather the withdrawal from the operation of the act of 25th February, 1848, of a part of the subject matter upon which it operated. It is certainly obvious, that the act of 12th March, 1853, can only repeal or supersede the act of 25th February, 1848, so far as they affect a common subject matter; and according to well established principles, if both can stand together by any fair construction, then both are to have their appropriate effect and operation. As before stated, the act of 8th March, 1831, re-enacted by the act of 12th March, 1853, did not embrace, as any part of its subject matter, a recognizance taken before the court of common pleas, either with respect to the taking or the forfeiture of such a recognizance, whereas the express provisions of the act of 25th February, 1848, did. With what propriety, then, can it be claimed, that as to this subject matter, the act of 12th March, 1853, repealed or superseded the act of 25th February, 1848? We think it did not; and as we have before us a recognizance taken before a court of common pleas during a session of the same, both its taking and forfeiture are governed by the act of 25th February, 1848; and the proceeding in both particulars appears to have been in conformity with that act.

In sustaining the recognizance and its forfeiture upon this ground, we do not desire to be understood, that the act of 25th February, 1848, excludes the other mode of taking and forfeiting a recognizance. That it does not, is the basis of an argument offered by the counsel foi; the plaintiffs in error, who claims, that although it may be sufficient to take the recognizance and enter the forfeiture as provided in the act of 25th February, 1848, still if an entry be also made of the same transaction on the journals of the court, the latter and not the former is the true record. But this would be denying effect to the words of the statute, which declare that the recognizance and entry of forfeiture shall be valid in law and deemed of record. In truth, there is but one record — the history of the transactions in the case as they occurred in court. A repetition of a part of that history does not make either statement any less a -part of the record; and if they do not contradict each other, but, by fair construction, may be reconciled and stand together, the mere repetition, while perhaps improper and unnecessary, can not be allowed to destroy the effect of the record.

The views we have expressed dispose of the case; and it ■ is not necessary to notice the other points presented by the counsel for the plaintiffs in error.

The judgment must be affirmed.

Scott, C.J., and Sutliee, Peck, and Briñkerhoee, J J., concurred.  