
    F. A. Allyn v. G. H. Depew et al.
    "Where, in proceedings on appeal to the prohate court to establish a ditch, under the provisions of the act of May 6,1868 (S. & S. 322), and the record here is so defective as to fail to furnish evidence to the reviewing court as to what steps were taken to perfect the appeal, and no objection appears on the supposed record to the jurisdiction of the probate court until after the case has been reversed by the court of common pleas and remanded to the probate court for further proceedings:
    Held, 1. It will be presumed in such caso that a complete record would show the existence of all the necessary jurisdictional facts.
    
      2. In an action on appeal from the order of township trustees for the construction of a ditch, where the proceedings and report of a jury in the probate court have been reversed and remanded, the probate court has authority to impanel a second jury.
    3. Where the report of the second jury is in accordance with the requirements of the-statute, the probate court may, of right, approve and record such report.
    Error to the District Court of Ottawa county.
    Proceedings were commenced before the trustees of Erie township, Ottawa county, in 1869, to establish and construct a ditch in Erie township, under the provisions of the act of May 6, 1868 (S. & S. 322). Such proceedings were had by and before the trustees, that in June, 1869, the ditch was ordered to be constructed; and it was ordered, among other things, that “ P. A. Allyn is to dig thirty rods of said ditch, commencing at stake No. 25 to section stake No. 35.”
    We next find the case in the probate court, under date of August 6, 1869, entitled as follows:
    
      "F. A. Allyn, appellant, v. George H. Depew et al., defendants. Ditch matter appealed from the decision of the trustees of Erie township.”
    The record shows that P. A. Allyn prosecuted the case in the probate court as appellant. A jury was impaneled, and returned a finding in favor of establishing the ditch. Allyn then took the case on petition in error to the court of common pleas, where the proceedings had in the probate court were reversed for insufficiency of the finding in the report of the jury. An order was made by the court of common pleas, remanding the case to the probate court for further proceedings. The mandate was filed in the probate' court November 25, 1869, and the probate court ordered a second venire for a jury, returnable December 8,1869. All parties appeared on that day, when Allyn made a motion, in writing, to dismiss the appeal, for the following reasons:
    1. The trustees acquired no jurisdiction to lay out and establish said ditch, and did not find it conducive to the public health, convenience, and welfare, and necessary.
    
      2. Because the probate court has no authority to send out second jury.
    3. Because the record of the trustees, in the premises is legally insufficient to support an appeal, or to give trustees jurisdiction to establish the ditch.
    This motion was overruled. Allyn excepted. The jury was sworn, and sent out along the proposed route for the ditch. The jury on the same day returned, in writing, their report, which report was received and approved, and the ditch ordered to be located and established, as set forth in the alleged proceedings of the trustees of Erie township. No exception appears by the record to have been taken to the finding of the jury and order of the court establishing the ditch.
    May 5,1870, Allyn filed a second petition in error in the court of common pleas, setting out, this record says, “ the entire record,” and assigning for error that:
    1. The jury did not find the amount of labor to be performed by each person in locating said ditch.
    2. In sending out second jury.
    3. In attempting to exercise any jurisdiction in premises.
    4. In confirming report of jury.
    5. In ordering the ditch.
    This petition in error was heard at the May term, 1870, of said court, proceedings affirmed, and Allyn duly excepted.
    June 20,1870, Allyn filed his petition in error in Ottawa district court to reverse this judgment of the common pleas.
    The case was heard at April term, 1871, of the district court, and judgment of the common pleas at May term, 1870, affirmed, and Allyn excepted.
    Leave having been obtained to file a petition in error in the supreme court, March 17, 1873, Allyn seeks to reverse the proceedings of the probate, common pleas, and district courts for the following reasons:
    The probate court had no jurisdiction to hear the matter, nor to order said ditch.
    The probate court erred in refusing to dismiss said appeal.
    
      
      John M. Lemmon, for plaintiff in error.
    
      J. H. Magruder, for defendant in error.
   Ashburn, J.

Two questions arise in this case :

1. Whether the probate court erred in refusing to dismiss the appeal ?

. 2. Did the probate court err in proceeding to impanel a jury in the case after it was reversed and remanded back by the court of common pleas ?

These questions will be considered in their order.

!• The records of this court show that a motion was made and allowed to supply a lost record in the case. The record before us was filed to supply the missing one. Counsel for plaintiff in error admit this record is defective, and without such admission its defects are so manifest as to render it wholly unreliable. Some portions of it may contain a true representation of a transaction in the lower courts, but when it fails to speak, and it so fails in many instances, we have no means of knowing what action was taken.

In this class of cases the probate court has only appellate jurisdiction, and the statute points out what must be done to complete the jurisdiction in that court. The appellant must give a written notice to the township clerk within five days after the decision of the trustees, and file a bond with the township clerk to his acceptance and that of the probate judge. Within ten days after filing the appeal bond there must be filed with the probate judge a full transcript of the proceedings. The existence of these things give jurisdiction.

The statute enabling probate courts to receive jurisdiction by appeal in ditch cases of this class provides (sec. 9) : That at the time specified in said notice said probate judge shall hear and determine all preliminary questions pertaining to such case. . . If, ou the hearing of the preliminary proceedings referred to above in this section, the probate judge shall find that the proceedings in appeal have not been perfected according to this act, he shall dismiss the appeal at the costs of the appellant,” etc.

The statute requires the township clerk to make a “ full and complete record” of all the proceedings of the trustees, and also requires the probate judge to make in his court a record of the proceedings had in the case.

The record in this case is so defective that we can not say it contains any portion of the recorded proceedings of the trustees. It contains a paper signed by John Hardenfeldt, aud certified by John Hardenfeldt as a “full and complete transcript taken from the proceedings,” etc. He has no official character or designation in the record. As record authority, in evidence, the paper might as well have been signed by John Smith.

Where jurisdiction is special and the law requires the concurrence of certain facts to confer jurisdiction, it will not be inferred that the tribunal had acquired jurisdiction because it proceeded to act as if jurisdiction had in fact been conferred. In this class of cases notice given and bond filed in a given time are jurisdictional facts. But, while this is the general rule in the absence of a complete record of the proceedings, we are authorized to presume that a “ full and complete record ” would show that the required notice was given and the necessary appeal bond filed with the proper officer in due time.

This presumption comes with more force when we consider that Allyn, the plaintiff in error, was appellant, and it was his duty to give the notice for appeal and file the requisite bond. As an element in the case we will presume the probate court examined all preliminary jurisdictional questions, and that a complete record would show the court found the appeal had been perfected.

2. It is claimed, when the probate court had sent out one jury, its powers were exhausted, and it was error to impanel and send out a second.

The appeal to the probate court vacated all the proceedings had before the trustees. After the appeal the law required the probate judge to impanel a jury of twelve disinterested freeholders of the county, administer to them an oath, and then the jury are to investigate the questions submitted to them by the statute, and make report in writing to the court. This was done. But the report of the jury was so defective that the court of common pleas reversed the proceedings of probate court and jury, and remanded the case to the probate court for further proceedings.

The reversal of the case as effectively vacated the proceedings of the probate court, as the appeal did the proceedings of the trustees. The appellant here interposed his first objection, and denied the power of the court to impanel a ■secondjury. What could the court do in the absence of express statutory provision on the subject ? Proceed as a matter of right arising from the nature and necessity of the case. Without express provision authorizing it, a court, having acquired jurisdiction of the parties and the subject-matter, may exercise all powers necessary to secure a speedy and impartial trial of all cases pending therein. 26 Ohio St. 434. The case then stood in the probate court as if no jury had ever been impaneled, and the probate court had the same power to impanel a jury after reversal as it had before.

It is urged that the probate court erred in making a finding approving the report of the jury. We think the statute, from the nature of the duties required of the court, authorizes an approval and confirmation of the report of the jury. If it does not, no error could result to the prejudice of the plaintiff in error from such act of the court.

Many suggestions are made by counsel for plaintiff in error (no counsel appearing for the defendants), indicating error in the proceedings of the courts, but in the absence of a full and complete record, we are unable to say how far they are sustained.

Judgment affirmed, and cause remanded to the court of common pleas for execution.  