
    BILLS OF EXCEPTIONS — JUDGMENTS—EMINENT DOMAIN.
    [Darke (2nd) Circuit Court,
    November 23, 1903.]
    Sullivan, Summers and Wilson, JJ.
    Dayton & Union Ry. Co. v. Dayton & Muncie Traction Co.
    1. Bun op Exceptions to Review Preliminary Findings and Order, and Final Judgment in Appbopbiation Proceedings Under Secs. 6420 and 6432 Rev. Stat.
    A bill of exceptions to review tbe finding and order of tbe probate court upon tbe preliminary bearing provided for under Sec. 6420 Rev. Stat., in an appropriation proceeding, must be taken, if at all, witbin tbe time prescribed by Sec. 5301 Rev. Stat. from tbe date of tbe order; and a bill of exceptions not taken witbin tbe prescribed time from tbe date of tbe order, although within tbe proper time from the judgment under Sec. 6432 Rev. Stat., confirming tbe verdict of the jury, will only be considered in reviewing tbe latter judgment. But, whether error can be prosecuted from tbe findings and order upon the preliminary bearing, quaere.
    
    2. Judgment in Appropriation Proceedings Under Sec. 6414- Rev. Stat., Res Adjudicata.
    Tbe final judgment of tbe probate court in a condemnation proceeding commenced by an interurban electric railway company under Sec. 6414 Rev. Stat., et seq., to appropriate a right of way over tbe tracks and property of a steam railroad company is res adjudicata as to all questions involving tbe private rights of each company in, about, and over the crossing; and such questions cannot be relitigated in an action commenced by the latter to restrain tbe former company from appropriating and using such right of way, notwithstanding such action was commenced prior to tbe commencement of tbe appropriation proceeding.
    3. Statutes Applicable to Steam Railroads not Applicable to Electric Railways.
    Steam railroad companies and electric railway companies are classified and recognized as separate and distinct from each other by tbe statutes of Ohio; and statutes relating to and regulating tbe former are inapplicable to tbe latter unless an intention to tbe contrary clearly appears.
    
      4. Section 3333-1 Rev. Stat. not Applicable to Electric Railways Crossing Steam Railroads.
    A steam railroad company cannot invoke the power of the common pleas court under Sec. 3333-1 Rev. Stat. to ascertain and define the manner in which an interurban electric railway company may cross its right of way, as the statute is applicable to steam railroad companies only. Hence, an answer filed by a railroad company in an appropriation proceeding commenced against it in the probate court by an electric railway company under Sec. 6414 Rev. Stat., et seq., pleading the pendency of an action commenced in the common pleas court under Sec. 3333-1 Rev. Stat. to have the manner of crossing ascertained and defined by said court, should be stricken from the files.
    5. No Appeal Under Secs. 3333-1 or 5226 Rev. Stat., From Order Dismissing Application Under Former Section.
    No appeal is specially provided for from the judgment of the common pleas court in dismissing an application made to it by a railroad company under Sec. 3333-1 Rev. Stat. 'to ascertain and define the manner in which another company may cross its tracks; and as such proceeding' is not a civil action, no appeal can be taken under See. 5226 Rev. Stat., notwithstanding the right of trial by jury does not exist and the judgment of dismissal is a final order.
    6. Railroad Property may be Appropriated by Another Company.
    A railroad company has no such preemptory and exclusive right to property appropriated, paid for, and used by it in conducting its business as will prevent another company, under a like. franchise, from appropriating a right of way across its tracks and property.
    Nevin & Nevin, J. C. Clark and C. B.'Heiserman, for plaintiff in error. ,
    Anderson, Bowman & Anderson and C.. P. Matthews, for defendant in error:
    Plaintiff in this action bad a right to set np in the probate court all matters alleged in his petition herein as a defense to the condemnation proceedings. This right afforded him a complete and adequate remedy at law. Injunction will not be granted to restrain the occupation or lands sought to be taken for public use where the owner has a plain and adequate remedy at law in the condemnation proceedings. Chicago & N. W. Ey. Co. v. Chicago, 151 Ill. 348 [37 N. E. Eep. 842] ; Lewis, Eminent Domain Sec. 646; Lake Shore & M. S. Ey. Co. v. Eail-way Co. 96 Ill. 125; Detroit, G. H. & M. Ey. Co. v. Detroit, 91 Mich. 444 [52 N. W. Eep. 52] ; Joplin Consolidated Mining Co. v. Joplin (City), 124 Mo. 129 [27 S. W. Eep. 406] ; Phillips v. Watson, 63 Iowa 28 [18 N. W. Eep. 659],
    This is the rule in Ohio. Walker v. Eailway Co. 8 Ohio 38.
    This is true even though the proceedings in the condemnation case are erroneous. Cooper v. Eailway Co. 85 Ala. 106 [4 So. Eep. 689].
    The plea of the pendency of this action was no bar to the action commenced subsequently in the probate court because:
    1. The plaintiffs in each suit were not the same. Barr v. Chapman,. 3 Cire. Dee. 36 (5 R. 69); Walsworth v. Johnson, 41 Cal. 61; Colt v„ Partridge, 48 Mass. (7 Mete.) 570; New England Screw Co. v. Bliven',, 3 Blatehf. 240 [18 Fed. Cas. 69]; Pierce v. Feagans, 39 Fed. Rep. 587;; Washbnrn & Moen Mfg. Co. v. Scntt, 22 Fed. Rep. 710; O’Conner v~ Blake, 29 Cal. 312; Felch v. Beaudry, 40 Cal. 439, 440; Langham w. Thomason, 5 Tex. 127; Weil v. Gnerin, 42 Ohio St. 299; Sparry’s Case,. 5 Coke 61.
    2. The defense of a former action pending in the probate court, was not good because the subject matter of the causes of action was not: the same. Spinning v. Insurance & Tr. Co. 13 Re. 206 (2 Disn. 336) Pugh v. Brown, 19 Ohio 202; Spence v. Insurance Co. 40 Ohio St. 517C The object of both actions must be the same. ■ Coles v. Yorks, 31 Minn. 213 [17 N. W. Rep. 341]; Bolton v. Landers, 27 Cal. 104; McKaig v. Piatt, 34 Md. 249; Streator v. Ricketts, 2 Kulp (Pa.) 529; Mullin v„ Mullock, 22 Kan. 598.
    The existence of the first is no ground for abating the second action only where it is legally possible for the same judgment to be rendered upon the cause of action alleged in the second, and was brought for the purpose of obtaining such judgment. Damon v. Denny, 54 Conn. 253 [7 Atl. Rep. 409]; State v. Railway Co. 77 N. C. 299; Smith v. Moore, 79 N. C. 82; Wisconsin v. Torinus, 28 Minn. 175 [9 N. W. Rep, 725] ; Mathews v. Bank, 44 Minn. 442 [46 N. W. Rep. 913]; Phillips v. Quick, €8 Ill. 324, 325.
    The court of common pleas did not have jurisdiction to grant this defendant all of the relief it sought .in the probate court. It sought the probate court because its jurisdiction of such matters was exclusive. Sections 524, 6416, 6440 Rev. Stat. .
    The jurisdiction conferred upon the probate court by Sec. 524 Rev. Stat., is original and exclusive of the subject matter in respect to that of which it is given any jurisdiction, and in such cases no other court can take original or concurrent jurisdiction of the same subject matter. First Nat. Bank v. Beebe, 62 Ohio St. 41, 45 [56 N. E. Rep. 485]; Brown v. Burdick, 25 Ohio St. 260, 265; Mosier v. Harmon, 29 Ohio St. 220, 222; Havens v. Horton, 53 Ohio St. 342 [41 N. E. Rep. 253]; Gor-man v. Taylor, 43 Ohio St. 86, 89 [1 N. E. Rep. 227] ; Newton v. Hammond, 38 Ohio St. 430, 436.
    Where the court in which the former suit is pending has no jurisdiction of the subject matter or the suit, or proceeding is otherwise so defective as to be ineffectual, its pendency will not abate a second suit between the same parties for the same cause of action. 1 Enc. PI. & Pr. 766.
    
      The exclusive jurisdiction of the probate court cannot be ousted on equitable grounds only. Gorman v. Taylor, 43 Ohio St. 86 [IN. E. Rep. 227].
    The same rule was announced by our own circuit court sitting in this county, at the November term, 1902, in the case of Pittsburg, C. C. & St. L. Ry. Co. v. Greenville (City), unreported.
    The plea in bar set out, contained in the first defense of the answer of the defendant herein, is a complete defense to this action. Doyle v. West, 60 Ohio St. 438 [54 N. E. Rep. 469],
    Plea of a prior action pending is a plea in abatement, and not in bar, which does not go to the merits of the claim, or cause of action, but rather to the procedure, and is thus distinguished from a plea in bar, which is addressed to the merits, and tends to show that the plaintiff cannot maintain any action at any time. Moore v. Sargent, 112 Ind. 484, 487 [14 N. E. Rep. 466] ; 1 Chitty, Pleading 462, 470; Coke, Little-ton, 134 B. 277a; Sullings v. Goodyear Co. 36 Mich. 313; Near v. Mitchell, 23 Mich. 382, 383; 1 Bacon’s Abridgment, Abatement (M).
    The plea of a former action pending, denies only plaintiff’s right to maintain the present acton, and.does not act as a bar or defense to the whole action. Morton v. Sweetser, 94 Mass. (12 Allen) 134; Mattel v. Conant, 156 Mass. 418, 424 [31 N. E. Rep. 487] ; Moore v. Sargent, 112 Ind. 484, 487 [14 N. E. Rep. 466].
    Under the code of civil procedure, the objection that another action is pending must be plead by answer. Weil v. Guerin, 42 Ohio St. 299; Secs. 4971, 5067 Rev. Stat.
    This plea is personal, and may therefore be waived. Commonwealth v. Cope, 45 Pa. St. 161; Hollister v. Stewart, 111 N. Y. 644, 646, 659 [19 N. E. Rep. 782] ; Drake v. Brander, 8 Tex. 351, 352; Larco v. Clements, 36 Cal. 132; Kenyon v. Williams, 19 Ind. 44; Fahy v. Bran-nagan, 56 Me. 42, 44; Coubrough v. Adams, 70 Cal. 374, 375 [11 Pac. Rep. 634] ; Pugh v. Brown, 19 Ohio 202.
    Waiver of the plea of plea in abatement. 24 Am. & Eng. Enc. Law (2 ed.) 833; Shepard v. Stoekham, 45 Kan. 244,-249 [25 Pac. Rep. 559]; Chicago, K. & W. Ry. Co. v. Anderson Co. (Comrs.) 47 Kan. 766, 767 [29 Pac. Rep. 96] ; Coal Co. v. Brick. Co. 52 Kan. 747, 749 [35 Pae. Rep. 810]; Allis v. Davidson, 23 Minn. 442; Poorman v. Mitchell, 48 Mo. 45; Duffy v. Lytle, 5 Watts (Pa.) 120; Casebeer v. Mowry, 55 Pa. St. 419 [93 Am. Dec. 766] ; Estep v. Larsh, 21 Ind. 190, 196.
    For brief filed in common pleas, also used in circuit court, see Dayton & U. Ry. Co. v. Traction Co. 14 Dec. 24.
   WILSON, J.

Three- cases have been submitted to the court under the title of The Dayton' & Union -Railroad Company v. Dayton & Muncie Traction Company, 14 Dec. -17, 22, 143, numbered 489, 495 and 497. Nos. 489 and 495 are on appeal. No. 497 is a proceeding in error.

They arose in this way. -On July 11, 1903, The Dayton-& Union Railroad Company filed its petition in- the court of common pleas to enjoin The Dayton & Muncie Traction Company from constructing a crossing at a designated point over its-tracks for the reason that to permit it to cross would be destructive to the rights and property of the plaintiff and would necessarily endanger- the interests of the public as well as the property of the defendant; also that there was no necessity for the crossing at the point designated.

A temporary restraining order was issued upon the filing of this petition and served upon the defendant.

On July 13, 1903, The Dayton & Muncie Traction Company filed its petition in the probate court under the' statute seeking to appropriate the same crossing.

Subsequently on August 15, The Dayton & Union Railroad Company filed an application under Sec. 3333-1 Rev. Stat. (95 O. L. 530), authorizing the court of common pleas, upon the application of a railroad, to prescribe the mode and manner in which one read may cross another.

In the action in the probate court for the appropriation of the property, The Dayton & Union Railroad Company appeared and joined issue by filing an answer therein. The first defense in the answer is a general denial; the second is the pendency of the injunction-case in the court of common pleas, relying upon it as ousting the jurisdiction of the probate court over the subject matter of the suit. Subsequently on August 17, 1903, it filed a supplemental answer setting out the prosecution of the proceeding under the statute, 95 O. L. 530. A motion was made to strike this supplemental answer from the files in the probate court, and sustained.

The case in the probate court went -to trial upon the issues joined and -resulted in a finding and decree in favor of The Dayton & Muncie Traction Company, on August 10, 1903, that it had the right to prosecute the proceeding, that -it was necessary for it to cross, and that it was- 'not -destructive of The Dayton & Union Railroad Company’s franchise; and subsequently passing to the inquiry of damages, judgment was-entered, fixing-the-compensation at $75 and damages at $25.

Error was prosecuted from- this judgment of the probate court to the-court' of common 'pleas and- there- affirmed ;. error is now'prosecuted Fere to reverse the judgment of affirmance in the court of common pleas and the judgment of the probate court. This is the error case.

No. 489, which is the application to the common pleas court to fix. and determine the mode and manner of crossing, resulted, in that court in a decree in favor of the defendant and the dismissal of the application. The plaintiff gave notice of appeal and seeks now to have the matter retried in this court. A motion is interposed here to dismiss the appeal. <

An appeal is not specially provided for under this statute. If the right of appeal exists it must be under the general statute, Sec. 5226 Rev. Stat. In order that a party may be entitled to appeal under that section, three things must concur. The order from which appeal is sought to be prosecuted must be a final order; it must be made in a civil actio'n in which the court has original jurisdiction; and the parties must not be. entitled to a jury trial. The order in question here is a final order in the proceedings; the parties are not entitled to a jury trial; but it is not a civil action. So that the three things necessary do not concur and the party is not entitled to prosecute the appeal. The appeal, therefore, will be dismissed.

In the injunction case, being causé No. 495 in this court, The Dayton & Muncie Traction Company, the defendant in that action, filed an answer in which it pleaded the adjudication in the appropriation proceedings in the probate court. The Dayton & Union Railroad Company interposed a demurrer to this defense. The demurrer was overruled, and the plaintiff not desiring to plead further a decree was entered in favor of the defendant. ‘ The case on appeal is now submitted to this court upon the demurrer to this defense.

We are of the opinion that when The Dayton & Muncie Traction Company instituted the proceeding in the probate court to appropriate the property, The' Dayton & Union Railroad Company, appearing and answering in that case, had then a plain and adequate remedy at law to which it was remitted; and when it litigated the questions necessarily involved in the appropriation proceedings to a final judgment in that court it had adjudicated all of the questions which could arise in the injunction case in the court of common pleas. What was involved in both cases was the private right of the parties in, about, and over, this crossing. They each had a franchise right to use it as a crossing. The Dayton & Union Railroad Company had appropriated and paid for its private right but it. had no preemptory exclusive right that would prevent another road from appropriating a crossing on the same land under a like franchise from the state. What they had to contend about was .upon what terms, if at all, could The Dayton & Union Railroad Company be deprived .of its private property in that crossing by tbe power ot eminent domain. The same subject matter and the same questions would necessarily arise and be involved in the litigation in either one of the eases, except that the jurisdiction of the probate court was broader than the jurisdiction of the court of common pleas, in that it could give affirmative relief to The Dayton & Muncie Traction Company as well as to The Dayton & Union Railroad Company.

The demurrer to the answer will be overruled.

The preliminary hearing in the condemnation proceeding was had in the probate court on August 10, at least it resulted in the finding and order of the court on that date in favor of The Dayton & Muncie Traction Company upon all of the questions which were required by the statute .to be determined as preliminary to the inquiry of damages. The Dayton & Union Railroad Company fild a bill of exceptions in the probate court on October 9; that was ten days after the judgment on the inquiry of damages, but more than sixty days after the finding and order of the court upon the preliminary hearing. A motion was made in the court of common pleas, to strike the bill of exceptions from the files. The motion was overruled by that court for the reason that the bill, when filed, was a good bill, at least, for the purpose of reviewing the judgment upon the inquiry of damages. A motion was also made to strike out of the bill that part which had reference to the trial on the preliminary questions which resulted in the judgment and order of August 10. This motion was overruled, the court, in the consideration of the whole record, being of the opinion that the proper proceeding would be to ignore so much of the bill as was not authorized by law. It then found that for the purpose of reviewing the preliminary order made on August 10, the bill of exceptions was not taken in time; that an appropriation proceeding is in effect two separate proceedings or .actions; upon the preliminary hearing The Dayton & Muncie Traction Company is the plaintiff and had the burden of proof; upon the inquiry of damages The D,ayton & Union Railroad Company stood in the attitude of plaintiff and had the right to open and close upon the question of damages; that when error is prosecuted from the probate court to the court of common pleas and results in a reversal of the judgment of the probate court the action is set down for trial upon the inquiry of damages only, and not for a rehearing upon the preliminary questions. All of which being true, the court was of the opinion that in order to review the order made upon the preliminary hearing a bill of exceptions must be taken within the time prescribed by the statute from the date of that order, and this was not done.

This question is very obscure. We are not convinced that there is any right to prosecute error from the order made upon the preliminary hearing. It has been done however and has’ been passed upon by the Supreme Court without raising the question. If it can be done, then we are of the same opinion as the court' of common pleas that the preliminary hearing is so far separate from the inquiry of damages, as that, in order to review it, a bill of exceptions must be taken from the date of the order, and if not taken within the time prescribed by the statute the bill is .not effective to bring the evidence on that question before the court. The common pleas court was right in refusing to-look to the bill for the purpose of determining whether or not the order upon the preliminary hearing was made upon sufficient evidence.’

But the motion of The Dayton & Muncie Traction Company to strike from the files the answer of The Dayton & Union Railroad Company, pleading its proceeding under the statute to have the common pleas court fix the terms and conditions upon which one road could cross another, was sustaine this raises the question which was sought to be raised by the appeal in case No. 489. Because if The Dayton & Union Railroad Company was entitled under that statute to go into the court of common pleas and have that court fix the terms, modes, and conditions- upon which The Dayton & Muncie Traction Company could cross its road, and havng done that, came into the probate court and pleaded- the pendency of that proceeding, it ought tó stay the hand of the probate court until the common pleas court had so fixed the mode and manner of crossing, for the reason that it would affect the question of compensation and damages.

We are called upon therefore to construe that statute; the question being whether or not it applies to The Dayton & Muncie Traction Company. The court of common pleas was of the opinion that it does not apply. We are of the same opinion, and might rest our conclusion in that respect upon the reasoning and the authorities found in the opinion of the learned judge of that court which has been filed with the paper in the case. But it is very easy to reenforcé that opinion by other authorities.

In Cincinnati, L. & A. Elec. St. Ry. Co. v. Lohe, 68 Ohio St. 101, the Supreme Court has held:

“An interurban and electric railroad is classed ’as a street railroad by the statutes of this state'.

In the case of Massillon Bridge Co. v. Iron Co. 59 Ohio St. 179 [52 N. E. Rep. 192], it is held :

“The statutes of this state relating to railroads are separate and distinct from those relating to street railroads, and-the word ‘railroad’ in Sec. 3208 Rev. Stat. and in Sec. 1 of the act of March 20, 1889, 86 O. L. 120, Sec. 3231-1 Rev. Stat. does not include street railroads.”

Turning to the last section referred to, See. 3231-1 Rev. Stat., we find it reads as follows, “Any person who shall have performed common or mechanical labor upon, or furnished supplies to any railroad, street railroad, or railroad operated wholly or in part by electric motor power,” clearly implying that a railroad is one thing, street railroad is another, and that a railroad operated wholly or in part by electric motor power may be another. They are not treated by the legislature as synonymous terms. The statutes generally lead to this same conclusion. When one steam railroad crosses its trains over another steam railroad, if they have not the interlocking switch they must stop at a certain distance and not pass until they get the signal. When an electric railroad car passes over a steam railroad it must send an employe forward to ascertain whether the track is clear, and the car cannot cross until it is signaled by the employe that the road is clear.

On the same day that the special act under which this proceeding is sought to be prosecuted was passed, the legislature passed another act conferring upon electric roads the power of eminent domain. The railroads had had that power from their inception, and if an electric road is identical that legislation would be superfluous. The legislature clearly understood that they were different roads and we are driven to the conclusion that the word “railroad” in this statute has a fixed legal signification. It means a steam commercial road and nothing else, and whenever it is used in a statute that meaning must be given to it unless it clearly appears that some other meaning is intended. It does not appear in this statute that they had such other intention, nor does it appear from the proceedings upon the journals of the legislature that it had any intention, to give to the word any other than the ordinary legal signification.

We find that the direct question was decided by the superior court in Cincinnati in the case of Rapid Ry. Co. v. Railway Co. The court says:

“We are of the opinion that House Bill No. 230; 95 O. L. 530, does not refer to the kind of road operated by the plaintiff. ”'

The road in question was an electric - road. So that we'hold the statute does not apply to The Dayton & Muncie Traction Company; that the Dayton & Union Railroad Company was not authorized by law to prosecute -the proceeding which it did, in the court of common pleas, invoking the power of that court to fix the mode and manner of crossing, and that the answer setting up that proceeding in the probate court was properly stricken from the files.

We find no error upon the record. The judgment of the court of common pleas is affirmed.

Sullivan and Summers, JJ., concur.  