
    Shaw v. Foley, Assignee of Mattingly, et al.
    
      Exemptions allowed married woman — Living apart from husband— Section 5319 Rev. Stat. — Applies to demand for money in lieu of homestead — Averment in pleadings — Service of summons— Waiver of notice.
    
    1. The rule established in Kimmel v. Paronto, 52 Ohio'St., 468, that “under section 5319, of the Revised Statutes, a married woman is entitled to the benefit of all exemptions allowed by law to the heads of families, though she be living apart from her husband, and have no child or children living with, or supported by her,” is not confined to a case where the demand is for an allowance of wearing apparel and household goods in lieu of homestead, but applies also to a case where the demand is for an allowance' of money in lieu of a homestead.
    2. Under our liberal practice an averment in a pleading that the party, at a date stated, “began an action in the court of common pleas,” etc., followed in a subsequent part of the pleading by an averment that one of the defendants was served with summons and the other defendants waived service and entered their voluntary appearance in said action, will be taken as an allegation of fact, and, if uncontradicted, will justify a finding that the action was in fact commenced at the date named.
    (Decided February 20, 1900.)
    Error to the Circuit Court of Muskingum county.
    November 1,1895, George L. Foley, as assignee for the benefit of creditors of Thos. Mattingly, commenced a proceeding in the probate court of Muskingum for an order to sell certain real estate of his assignor, and Martha E. McGowan, who had a mortgage on the real estate to secure seven notes of $1,000 each, given her by Mattingly about September 1, 1884, all past due, was made defendant.. The notes had all been pledged by Mrs. McGowan, as surety for Mattingly, to certain other creditors of his, all of whom were also made defendants. The claims of these parties having been satisfied, they are not further concerned in the case. Mrs. McGowan answered, setting up her right to any surplus arising from the sale of the land after satisfaction of the claims of the other defendants named.
    George W. Shaw (plaintiff in error), having, on November 25,1895, obtained a judgment for $100 and costs against Mrs. McGowan, on December 10, 1895, filed a petition in the court of common pleas of Muskingum, in the nature of a creditor’s bill to subject the surplus arising from the sale which might be found going to Mrs. McGowan, to the satisfaction of his judgment, making Mrs. McGowan, the assignee, and the other named defendants parties to his action.
    January 8, 1896, one Collin Vandenbark began a similar action in the common pleas against the same defendants, seeking to subject the same fund to the payment of a judgment recovered by him January 6, .1896, against Mrs. McGowan, for $441.80- and costs.
    The Citizens’ National Bank became defendant in both the Shaw and Yandenbark cases, setting up a judgment against both Mattingly and Mrs. McGowan, for $301.87 and costs, and praying proper relief against Mrs. McGowan, the same to be satisfied out of the funds in the hands of Foley, assignee.
    Subsequently Yandenbark, the Bank and Shaw became each on his own motion, party defendant to the suit of the assignee in the probate court, where each filed answer and cross-petition.
    Mrs. McGowan then filed an answer to the cross-petitions, averring that “she is, and all her life has been, a resident of Muskingum county, in the state of Ohio; that she is a married woman living separate and apart from her husband, who left her without cause on her part and for no cause of complaint against her; that she is not the owner of a homestead; that she owns no real estate; her husband is not the owner of a homestead; that no allowance has ever been made to him or to her in lieu of a homestead; that she was the owner of all of the several notes secured by mortgage named in the said assignee herein until the same were, so far as they have been, paid and satisfied by said assignee under the order of this court; that she pledged and delivered all of said notes for the indebtedness of her co-defendant, Thomas Mattingly, but not to the full value of said notes. She demands, claims and prays that the net sum of five hundred dollars in lieu of a homestead, according to the statute, be set off to her out of the proceeds remaining after satisfying the indebtedness for which her said notes were pledged as aforesaid. She further says said promissory notes were all the while her sole and separate property subject only to the claims of the pledgees thereof under her delivery of them in pledge as aforesaid.”
    To this answer a reply was filed by Vandenbark.
    Upon hearing in the probate court, May 28, 1896, findings were had in favor of Shaw and of Yandenbark, upon their claims, and against Mrs. McGowan upon her demand for an allowance in lieu of a homestead, and a judgment entered ordering the surplus arising from the sale, after payment of costs, to be paid to those judgment creditors in the order named. From this judgment an appeal was taken by Mrs. McGowan to the court of common pleas, where, upqn trial, issues were .found, as to the claim of Mrs. McGowan, in her favor and the sum of $500 ordered paid to her out of the surplus after payment of costs, and as between Shaw and Yandenbark, in favor of Shaw.
    Error being prosecuted by Yandenbark to the circuit court, that court affirmed the judgment of the common pleas as to Mrs. McGowan’s claim in lieu of a homestead. The court, however, reversed the judgment as to the order respecting the priority of liens, holding that after costs and the claim of Mrs. McGowan had been satisfied, Yandenbark should be first paid, then the Bank, and lastly Shaw. To this judgment Shaw brings error. Also by cross-petition in error Yandenbark brings error.
    
      Fred 8. Oates and H. F. Achauer, for plaintiff in error.
    Upon the facts the circuit court held, as a matter of law, that the claims of Collin Yandenbark and The Citizens’ .National bank, in the order named, were prior liens to that of the plaintiff in error.
    We claim the law to be:
    1. The probate court had no jurisdiction over the fund in Foley’s hand due to Martha McGowen and the parties to whom she had pledged the seven notes, further .than to determine questions of priority under and by virtue of R. S., Sec. 6351. Having determined that matter the probate court exhausted itself. These notes were the property of Martha McGowan, subject to the rights of the persons to whom they had been pledged.
    
      As a mere incident of Ms trust the fund provided for the payment of those notes was in the hands of Foley, assignee. Davis v. Davis, 11 Ohio St., 386.
    Whatever jurisdiction the probate court had in the matter under consideration must have been by virtue of Sec. 6351, R. S. Havens v. Horton, 53 Ohio St., 342; Mercer v. Cunningham, 53 Ohio St., 353.
    Upon these cases the circuit court based its opinions. While we are willing to admit that the jurisdiction of the probate court as to the assigned property is full and complete, yet our contention is that the property of Martha McGowan was not assigned property, and it was her property, which we were pursuing, and the probate court not being one of general jurisdiction, was not “adequate” to furnish us with the remedy we were seeking under Section 5464, E. S.
    But the decision of the circuit court in effect clothes probate courts with general equity jurisdiction; and such a holding is not warranted by the statute law of the state.
    2. If this action of Shaw was rightly brought, then he being prior in time to Vandenbark and the Bank, had a prior lien. 4 Ohio St., 623 and 13 Ohio, 197. All of these matters have been fully and ably discussed in case 5738 by counsel for Collin Vandenbark; the question in that case being identical with those here presented, we deem it unnecessary to further discuss them.
    
      Charles M. Vandenbark, for Collin Vandenbark.
    Collin Vandenbark certainly had the right to go into the common pleas court and file his petition in aid of execution as he did, to get his lien and get it fixed. As to priority see Sec. 5464, E. S. The record does not show that Shaw served the assignee with summons even in common pleas; it does show that the assignee did enter his appearance to that petition filed by Shaw in common pleas court, but does not show that he entered his appearance before summons was served on the assignee by Collin Vandenbark on his petition; the record does not show when Foley entered his appearance in Shaw’s case in common pleas, and although the record does show that Shaw filed his petition December 10, 1895, and Collin Vandenbark, January 8, 1896, nothing can be presumed; Collin Vandenbark’s lien stands fixed at January 8, 1896, till Shaw alleges and proves a date previous as to the entering of appearance, the date when the assignee entered his appearance on Shaw’s creditor’s bill is not even alleged; Shaw no doubt relied on the case of Cincinnati v. Hafer, 49 Ohio St., 60. We claim that is the law only as between the parties. As to third parties the time of service of process fixed the lien; Bowery v. Odell, 4 Ohio St., 623. “The filing of a creditor’s bill and service of process’ gives the lien. Union Bank v. The Bank, 6 Ohio St., 254 and section 5055, R. S. So as to any lien fixed by common pleas court, Collin Vandenbark is ahead of Shaw, and also ahead of the Citizens Rational Bank and Luby, because they filed no pleadings anywhere in common pleas till after Collin Vandenbark’s service of process, and if Vandenbark, Shaw and Luby had no right to file petitions in common pleas court to get a lien and only (with the Bank) had a right to file answers and cross-petitions in probate court, then from that standpoint Collin Vandenbark is still ahead of all of them in any view, because he filed his answer and cross petition first, and if service of process is to count for anything in probate court, Collin Vandenbark is still ahead of the Bank, Shaw and Luby, because Vandenbark was the only one who got process on the assignee which he did on his amended answer and cross-petition.
    And we further claim that the plaintiff in error, Martha E. McGowan, is not entitled to $500 or any part of this $700 in lieu of a homestead, as a wife nor in any other way; and eertainly she can not hold it as a widow; no claim in the pleadings and no evidence that she is a widow.
    So the question is presented in the abstract, can a married woman who owns a house and lot “in Ohio” not exceeding in value $1,000, get in debt in Ohio, then abandon her family, desert her husband without any fault on his part and live over in England, or any place outside of Ohio, then claim this house and lot as a “homestead” against her creditors, even if her husband has a homestead in Ohio, and he and his children live in it; or $500 in lieu of that homestead? The husband got all the things of Section 5430, R. S., simply because “he had a family.” Sproul v. McCoy, 26 Ohio St., 577. Can she have the $500 simply because she is a married woman? We claim not; that section 5319 — even with the construction put upon it by the court in Kimmel v. Paronto, 52 Ohio St., 468.
    We claim all the exemption laws must be considered together with the idea that the state’s principle is to preserve the home, and that this exemption is not for an individual, but for the benefit of the family to keep them together, as such “husband and wife living together.” Regan v. Zeeb, 28 Ohio St., 483; Sears v. Hanks, 14 Ohio St., 300; Elliott v. Platter, 43 Ohio St., 198; Davis v. Dodds, 20 Ohio St., 473; Dwinell v. Edwards, 23 Ohio St., 603.
    
      Ball & Swingle, for Martha E. McGowan.
    
      Durban & McDermott, for Citizens National Bank.
   Spear, J.

The errors complained of by plaintiff in error, as well as by Vandenbark, cross-petitioner in error, are as to the affirmance of the judgment of the common pleas allowing to Mrs. McGowan $500 in lieu of a homestead, and in holding that the probate court had jurisdiction of the controversies between the judgment creditors as to priorities of their respective claims against Mrs. McGowan. The plaintiff: in error further insists that the circuit court erred in holding that the judgments of Vandenbark and the Bank were prior liens to that of the plaintiff in error.

Respecting the claim of Mrs. McGowan for allowance in lieu of homestead. The first objection urged is that the judgment of the common pleas in favor of Mrs. McGowan is not supported by any evidence. An inspection of the record, including the bill of exceptions, makes it apparent that the facts set forth in the answer of Mrs. McGowan were not seriously contested at the trial. The evidence offered by her was not contradicted; and, although brief and somewhat fragmentary, tended, we think, to support the material elements of her claim. We cannot say that the trial court erred in its conclusion and finding that all the allegations of her answer were true. It is, however, strenuously contended that, admitting the facts to be as the court found them, yet the intent of our homestead laws being to give exemptions to heads of families in order to preserve the home for the benefit of the family and to keep the members together, and not fof the benefit of any individual, Mrs. McGowan is not entitled to the allowance claimed because it does not appear that she was, in this sense, the head of the family. The proposition is urged in an able and ingenious brief by counsel for the cross-petitioner in error. The argument, however, if accepted, would seem to defeat the apparent intent of section 5319 of the Revised Statutes, and to require the overruling of this court’s holding in Kimmel v. Paronto, 52 Ohio St., 468. The section retejed to reads as follows: “When a married woman sues or is sued, like proceedings shall be had and judgment rendered and enforced as if she were unmarried, and her property and estate shall be liable for the judgment against her, but she shall be entitled to the benefits of all exemptions to heads of families.” In giving construction to this section the court, in the case above cited, held: “Under section 5319, of the Revised Statutes, a married Avoman is entitled to the benefit of all exemptions allowed by law to the heads of families, though she be living apart from her husband, and have no child or children living with or supported by her.” “The last clause of the section,” it was further held, “does not mean that to entitle a married woman to such exemptions she must be the head of a family, and it is not essential to her right to them that she shall be living with her husband, or have a child or children living with or supported by her.” In principle the case is on all fours with the case at bar. Attention is called by counsel to this distinction in fact between the cases, viz: The claimant in the Kimmel case demanded wearing apparel and household goods as exempt; in the present case the demand is for money. But we are satisfied that there is no distinction in legal effect, and that, unless we are prepared to overrule the Kimmel case, we cannot do other than sustain the ruling below. We think it wiser to adhere to that decision.

It may be proper to add that we have not overlooked other sections relating to exemptions, and while it may be conceded that there is an absence of entire harmony in the phraseology in parts of the legislation, yet the purpose of the whole we think not difficult to ascertain. Attention is specially directed .by counsel to section 5441, as amended April 12,1884. The full scope of the amendment may be open to some question, but there is not sufficient reason to conclude that the amendment was intended to repeal or modify the effect of section 5319,' and we are of opinion that the two may well stand together. As conclusion, we do not think the courts below erred in making to Mrs. McGowan the allowance in lieu of homstead.

The question as to the jurisdiction of the probate court to adjudicate the controversies between the judgment creditors of Mrs. McGowan becomes unimportant in view of the conclusions stated further on. No objection was made in the common pleas as to its jurisdiction on appeal, and no question as to that is made here.

As between the judgment creditors, what was the rightful order of priority? It is insisted by plaintiff in error that he has the first lien on the fund belonging to Mrs. McGoAvan because his action in the common pleas was commenced first. The claim of Vandenbarlc to priority rests upon the assumption that, Avhile his petition was filed after that of plaintiff in error, yet he first got service upon the defendants, and the action is to be deemed commenced, not necessarily at the date of the filing of the petition, but at the date of the summons which is served, or at the date of the entry of appearance where voluntary appearance is entered. The record discloses that the trial court had before it, in determining priorities, the pleadings only. Vandenbark’s answer alleges that he “duly caused a summons to be issued from said court of common pleas on the said George L. Foley, as said assignee, and the same was duly served upon him by the proper officer on the 8th of January, 1896; said Mattingly and Martha E. Mc-GoAvan duly entered their appearance in said case and Avaive issue and service of summons.” Shaw’s ansAver avers tliat “on the tenth of December, 1895, he began an action,” etc. (referring to the creditor’s bill), * * "* “that the defendant, Martha E. McGowan, was served Avith summons; that * * * Foley, assignee, waived service and entered voluntary appearance in said action.” The precise point made in favor of Vandenbarlc is that the record does not show any summons issued in the Shaw case for Foley, assignee, and does not show that the assignee entered his appearance before summons was served on him in the Vandenbark case, and that Vandenbark’s lien stands fixed as of January 8th, 1896, until Shaw alleges and proves an entry of appearance previous to that date. Probably this was the view taken by the circuit court when it placed the Bank ahead of Shaw, although we have no brief by the Bank definitely stating the ground. However, it seems clear to us that this proposition is fatally faulty in that it avoids giving force to the allegation in the answer of Shaw that he began his action on the tenth day of December. While it may be claimed that this averment partakes somewhat of the nature of a legal conclusion, yet it is not more obnoxious to that objection than many other averments which we meet with in pleadings that are regarded as allegations of fact, for instance that in Vandenbark’s cross-petition to the effect that on the date named he recovered a judgment, etc.; and, standing uncontradicted either by reply or proof, and taken in connection with the subsequent averment of entry of appearance by the assignee, it would, we think, be reasonable to give to it the force of an allegation of fact, and as implying that proper service was had at the date named. The presumption of fact as to service in time is somewhat strengthened by what would be usual in a case where, as here, a creditor would be impelled to at least usual diligence.

The conclusion requires a reversal of the judgment of the circuit court as to priorities and the affirmance of that of the common pleas.

Reversed.  