
    Robert J. McGonnigle et al v. Charles Arthur et al.
    1. Under the act of February 14, 1867 (S. & S. 677), supplementary to the act of April 5, 1866 (63 Ohio L. 114), authorizing county commissioners to purchase and make free any turnpike road, on the conditions and by the procedure provided for the improvement of roads in the act to which it is supplementary, and the acts amendatory thereof, the commissioners have no power to make the final order declaring them free roads and for their improvement, except upon the petition of a majority of the resident persons, who will be charged with the expense of the same, and who are asking for the improvement at the time the final order is made.
    2. Where amotion for a new trial, made on the ground that the finding and judgment of the court is not supported hy the law and the evidence, is overruled, and all the testimony offered before the trial court is in an agreed statement of facts, in writing, carried into the record, and found hy the court to he all the testimony offered hy the parties on the trial, it is not necessary, on overruling the motion, to re-emhody the testimony in a hill of exceptions.
    Error, to the District Court of Delaware county.
    
      Beid ‡ Powell, for plaintiffs in error :
    I. The only question in this case is, had- the commissioners power or authority to purchase said road and declare it free.
    The commissioners could not exercise such power without the consent,at the time,of the majority of the persons to be assessed. Such consent, before it is acted upon can be withdrawn. The consent must be a continuing consent. The People v. Godwin, 5 N. Y. (1 Selden), 568; Day v. Essex County Bank, 18 Vt. 97; King v. Joseph, 5 Taunton, 452; Allen v. Watson, 16 Johnson, 205.
    II. Injunction is the proper remedy. Comm’rs of Defiance County v. Croweg, 24 Ohio St. 492; Ruffner v. Hamilton County, 1 Disney, 39, 196; High on Injunction, 476, 802, 803; Kerr’s Injunction in Equity, 572, 5.
    III. It was entirely unnecessary to re-embody the testimony in a bill of exceptions. Brown &. Co v. Mott & Bros., 22 Ohio St. 150; Clinton Bank of Columbus v. Ayres, 16 Ohio, 282; Powell on Appellate Proceedings, 8, 211, 225.
    
      Jones $ Dytle, for defendants in error;
    1. The case is not properly here for the reason that no proper motion for a new trial was made. The record shows, so far as the journal entry is concerned, that the parties “ moved for a new trial of the cause, which motion the court refused to allow,” etc. No motion, in fact, was made, and the journal entry does not help the matter. In the language of the court, in the case of Randall v. Turner, 17 Ohio St., “ It may have been for any one of the eight causes for which a motion for a new trial may be made un.der the 297th section of the code;” and,.it may be added, it may have been for some cause not recognized by the practice and unknown to the code. The findings of a court or jury, on the trial of issues of fact made by the pleadings in an action, are not subject to review on error, except where it appears that a motion for a new trial was made. And the refusal of a new trial, where no reasons for a new trial are alleged in a motion therefor, can not be assigned for error. Westfield v. Dugan, 14 Ohio St. 276; Hoffman v. Gordon Bros., 15 Ib. 212; Randall v. Turner, 17 Ib. 262; Turner v. Turner et al., Ib. 450.
    2. "We insist that the rulings claimed to be erroneous are not evidenced or authenticated by bill of exceptions or other proper entry of record made by order of the District Court. This case does not come within the decisions in the cases of Clinton Bank v. Ayres, 16 Ohio, 282, and of Brown & Co. v. Mott & Bros., 22 Ohio St. 150. In the case of the Clinton Bank, by stipulation judgment was to be entered upon the agreed statement of facts, and in the case in 22 Ohio St., it was a submission upon an agreed statement of facts without issue, and the agreement, in such cases, constitutes the record. In Acheson v. Sutliff, 18 Ohio, 122, there was a bill of exceptions making the agreement part of the record. In the present case the judgment is rendered upon the issues joined between the parties and the findings of the court thereon, and not upon an agreed statement of facts. Bank of Virginia v. Bank of Chillicothe, 16 Ohio, 170; Shinkle v. Bank of Ripley, 22 Ohio St. 516; Young v. The State, 23 Ib. 578.
    3. The aid of a court of equity can not be invoked to review the errors of public officers in the discharge of their legitimate duties, unless they act in bad faith. “ A court of equity is not a court of errors to review the acts of public officers, nor will it revise their decisions upon matters within their discretion, if they have acted honestly.” High on Injunctions, sec. 365, p. 204; Livingston & Hollenbeck, 4 Barb. 9; Clinton, etc., Appeal, 56 Penn. St. 315; O’Neal v. Virginia, etc., 18 Md. 1; Heywood v. Buffalo, 14 N. Y. 534; Mayor v. Messerole, 26 Wend. 132.
    4. No provision is made by tbe statute for a remonstrance, and tbe signing of such a paper was not a jurisdictional act like the signing of a petition, and the signing of a remonstrance eould not cancel the original petition.
    The signing of the petition was jurisdictional. It gave the commissioners power to act, and the rights of parties were fixed. It partakes of the nature of a joint undertaking, necessarily incurring much expense, etc. We submit, therefore, that the petitioners are estopped from remonstrating after obligations have been incurred. 1 Shelford on Railways, 127; Hooker v. Wittemburg College, 2 C. S. C. R. 353; 16 Ohio St. 20.
   Ashburn, J.

Proceedings were commenced before the board of county commissioners under the act passed February 14, 1867 (S. & S. 677), authorizing county commissioners “ to purchase and make free any turnpike road . . within the limits of their county.” This act was supplemental to the act of April 5,1866, authorizing the improvement of roads upon the petition of a majority of the resident land-holders, etc., and on the conditions and by the procedure which are provided for the construction or improvement of roads in the act to which this is supplementary.”

The act of April 5, 1866, was amended from time to time, and these amendments, so far as applicable, apply to proceedings under the act of February 14, 1867. After the commissioners had purchased the “ Ashly and Delhi turnpike road,” they, on the 6th of March, 1873, at a regular session, found that “ public utility required the conversion of said road into a free l’oad,” and made the final order declaring the same “ a free public highway.” Their authority to make this final order was dependent upon the fact whether or not a “ majority of the resident landholders of the county, whose lands are reported as benefited, and ought to be assessed, had subscribed a petition, and were at the time asking the commissioners to make the order.”

This jurisdictional fact is a disputed question in the pleadings of the parties as they appear on the record. The District Court found there was a majority of qualified land-holders then petitioning for the improvement, and that the said commissioners, at the time of the making of the order for the conversion of said turnpike road, and in declaring it free upon said facts aforesaid, had jurisdiction of the said matter, and had the power and authority in the premises to take such action and to convert said road and to declare it free, and entered up a final judgment, dismissing the plaintiff’s petition. A motion was made for a new trial. Motion overruled and exception taken. No bill of exceptions embodying the testimony was taken or asked on the overruling of the motion for a new trial.

Plaintiffs in error assign the following as the alleged errors appearing on the record of the District Court:

1. The court erred in finding as was by them found as shown by said record.

2. The court erred in making the order by them made as shown by said record.

3. The court erred in dismissing the petition and cross-petitions in said case.

4. The court erred in refusing to grant a new trial, as moved in said cause.

5. The .court erred in giving judgment for defendants herein, when it ought to have been given for plaintiffs herein.

6. The court erred in holding that the said commissioners, at the time of taking said orders by them, had jurisdiction and had power and authority to make said orders and declare said road free.

Two questions arise upon this record : •

I. Had the county commissioners, at the time they made the alleged final order, jurisdiction over the subject matter ?

II. Where all the testimony heard in the trial court is, by agreement of parties, a statement of facts in writing by them, and without objection appears in full upon the record, should such testimony, upon the overruling by the court of a motion for a new trial, be embodied in and brought on the record again by a bill of exceptions for the purpose of having the case reviewed here ?

The agreed facts as it appears of record, and as recited in the findings of the court, reads :

“ It is agreed in this case that a majority of the landowners whose lands were assessed, signed the petition for the conversion of the said turnpike into a free road ; but it is further agreed that of the persons who had signed said petition, enough of them changed and signed remonstrances to the conversion of said road, so as to make a majoi’ity of the persons whose lands were assessed opposed to the conversion of the road at the time it was so converted by the commissioners, on the 8d day of March, a. d. 1873; or, in other words, if the commissioners, on the day when they converted said turnpike into a free road, had counted the persons who had changed from the petition to the remonstrance against the conversion and not in favor of it, there was a majority of the persons assessed opposed to such conversion.

[Signed,] “ Reid, Powell & Godman,

“Attorneys for Plaintiff and Defendants, other than Commissioners and Auditor.

“ Jones & Lytle, and J. Hipple,

“Attorneys for Auditor and Commissioners.”

These facts, as agreed upon, bring this case within the ruling of this court, as to the right and the effect of remonstrance by petitioners against the final order for the improvement, in the case of Hays et al. v. Jones et al., (ante, 218). There was, at the time the county commissioners made the alleged final order, a clear want of jurisdiction over the subject-matter, and their action in relation thereto was and is a nullity.

On the second question, defendants claim “ the case is not properly here for the reason that no proper motion for a new trial was made.” The record does not show that a motion with reasons assigned was made in the ease, but it does recite that plaintiff's “ moved the court for a new trial of this cause, -which motion the court refused to allow, but did overrule the same.” Whereupon plaintiff- had his exception to the overruling of his motion for a new trial noted on the journal of the court.

The action was submitted to the trial court upon the agreed statement of facts above recited, and the court found, as the record declares, they were “the facts upon which this cause is submitted to the court, and no other testimony being offered on either side ” We have, then, before us all the testimony as agreed facts that was before the District Court, and by which we are to test the correctness of the judgment of that court.

The office of a bill of exceptions, taken to the judgment of a court in overruling a motion for a new trial 'on the facts, is to bring all the testimony before the reviewing court, offered to the court or jury on the trial. Where the parties agree upon all the facts that are to be used on the trial, and that agreed statement of facts goes into and forms part of the record in the case, and remains in the record as the agreed facts, and the trial court sends us word in their judgment that no further testimony was offered on either side, this court will not dismiss the case for want of a formal bill of exceptions embodying all the testimony. There appears to us no sound reason why a vain thing should be required.

As early as 1847, this question was considered by the Supreme Court. On page 288 (16 Ohio) the court remarks, “ The agreed statement was an agreement of what the evidence was on the litigated points of the case, from which the court had to find what were the true facts before they could determine the law arising upon them. In this case all the facts were agreed upon. In this agreed statement the facts were admitted, leaving for the court nothing to find, and only the naked duty of declaring the law upon the given statement of admitted facts.”

The judgment of the District Court is erroneous in finding that the board of county commissioners had, at the time the final order was made, jurisdiction over the subject-matter thereof, and erred in overruling the motion for a new trial.

Judgment reversed at defendant’s costs, and remanded to the District Court of Delaware county.

Scott, Chief Judge, Day, Wright, and Johnson, JJ., concurred.  