
    John Trimble v. John Koch et al.
    1. Under the act of April 12, 1871, “relating to ditches” (68 Ohio L. 60), as amended by the act of March 28, 1873 (70 Ohio L. 79), the findings and decision of a board of county commissioners, locating and establishing a ditch, relate to the ditch as an entirety, and not to any particular part of it.
    2. "Where, on appeal from such decision to the Probate Court, the jury report that they have carefully examined the ditch and find, that to locate and establish a certain part of it, which they describe in their report, would not be conducive to the public health and welfare, is not a compliance with the statute and is insufficient, and should have been set aside by the court, on a motion filed for that purpose.
    3. In such case the Probate Court has power to set the imperfect report aside and impanel a jury anew.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Crawford county.
    
      This was a proceeding by the board of commissioners of Crawford county, to locate and establish a ditch, petitioned for by John Koch and others, through certain lands described in the petition, under the act of April 12,1871, “ relating to ditches ” (68 Ohio L. 60), as amended by the net of March 28,1873 (70 Ohio L. 79).
    The petition was filed on the 24th of January, 1874, and ■on the 18th of April following, the commissioners located ■and established the ditch in accordance with the prayer of the petition.
    An appeal was taken by the present plaintiff to the Probate Court from the decision of the commissioners locating and establishing the ditch through his lands.
    The appeal was perfected, and on the first day of May, 1874, a jury was impaneled in the Probate Court, to whom the oath, required by section 7 of the original act, was administered by the probate judge.
    On the same day, the jury made a report in writing to the Probate Court, signed by all the jurors, as follows: ■“ John Trimble, plaintiff, v. The Commissioners of Crawford County, Ohio, defendants. We, the undersigned jurors, after having been duly impaneled and sworn, have carefully examined the Koch ditch, and we do find and report that to locate and establish that part of said ditch from station 4 to station 23 would not be conducive to the public health and welfare.”
    Judgments were rendered by the court against the defendants for costs on the appeal, and against John Koch, the principal petitioner, for costs on the proceedings before the commissioners, and execution awarded therefor.
    A motion was then filed by the defendants to set aside the finding and report of the jury, and dismiss the appeal, which was overruled by the court, and the ruling excepted to by the defendants.
    On a petition in error, afterward filed in the Court of Common Pleas by John Koch and the board of commissioners of Crawford county, against John Trimble, the judgment of the Probate Court was reversed for error in overruling the motion of the commissioners to set aside' the findings and report of the jury, and the cause was re-manded to the Probate Court for further proceedings according to law.
    The judgment of the Court of Common Pleas was afterward affirmed by the District Court on the petition of John Trimble against the present defendants, and he now files his motion for leave to file a petition in error in this court to reverse the judgment of the District Court for reasons therein set forth.
    
      S. B. Harris, for the motion, claimed:
    That the person appealing may appeal from that portion of the ditch in which he has an interest; that the appeal is not from the whole ditch; and to try the merits of another portion of it beyond what the appellant is interested in, any farther' than to ascertain whether on the whole it requires the condemnation of his land, to that extent, and that alone, does his appeal take up the whole case.
    That the Court of Common Pleas and District Court erred in holding the report of the jury to be bad, and re7 versing the judgment of the Probate Court, and commanding the Probate Court to set aside the report of the jury.
    That the report of the jury was not void; that the plaintiff is entitled to its protection, and that the Probate Court had no power under the law to set it aside and grant a new trial.
    A finding by a jury that the public health does not require the ditch to be established, its entire route, as petitioned for, designating the portion thus exempt, is a report against the whole ditch. Sessions v. Crunkleton, 20 Ohio-St. 360. This is equally true, if a portion of it is not required for public purposes.
    
      E. JB. Einley, contra, claimed:
    That in locating and establishing the ditch the proceeding of the commissioners was upon the whole ditch as an. entirety, and that the appeal could not be from a part of their proceeding; that the bond must be conditioned, as prescribed by the statute, or the appeal will not be perfected, nor the Probate Court have jurisdiction. Geddis v. Rice, 24 Ohio St. 60; Job v. Harlan, 13 Ohio St. 486; Bradley v. Sneath, 6 Ohio, 496; 6 Ohio St. 84; Sessions v. Crunldeton, 20 Ohio St. 349.
    This proceeding does not come under the code, and the code provision for amending bonds does not apply.
    The filing of a sufficient bond is a jurisdictional question, and no provision is made for filing an amended bond under the act of 1871.
    If the bond was sufficient to appeal the case, it appealed the whole proceeding of the commissioners, and divested the board of commissioners of all further jurisdiction until the ditch as an entirety was passed upon by the jury in the Probate Court. 68 Ohio L. 61; 8 Ohio St. 233; 4 lb. 214.
   Rex, J.

The questions arising in this case are:

1. Whether the report of the jury was such a report as they had the power to make under the provisions of section 7 of the original act ? and

2. Whether the probate judge had the power to set aside the report of the jury, and again submit the cause to a jury impaneled and summoned in the manner provided for in section 6 of the original act ?

Of these questions in their order.

1. Under the acts referred to, the findings and decision of a board of county commissioners, locating and establishing a ditch, relate to the ditch as an entirety, and not to any particular part of it. An appeal from their decision carries up the whole of their proceedings for review by a jury in the Probate Court.

Section 7 of the original act requires the jury, in reviewing the proceedings of the commissioners, to view the premises along the route of such proposed ditch, and report whether it will be conducive to the public health and welfare to .cause said ditch to be established.

In prescribing the duties of the jury, the act limits them to the ditch established by the commissioners as a whole, and does not authorize them to report as to the effect upon the public health and welfare of a part of the proposed ditch.

A report of a jury, which does not state what the effect of the establishment of the ditch, as located and established by the commissioners, will be up®n the public health and welfare, does not conform to the statute, and is therefore insufficient.

2. Although the act relating to ditches does not authorize the Probate Court to compel the attendance of jurors, nor to set aside the venire and cause a new jury to be summoned, if the jurors summoned ai’e interested, or from any cause fail to attend, yet it must be conceded that the court may, of right, without any express provision in the statute authorizing it, exercise these and all other powers necessary to secure a speedy and impartial trial of all cases-pending therein.

The power to impanel a jury for the trial of a cause carries with it the powrer to set aside the verdict of the jury, if it be contrary to law or against the evidence, and to again submit the cause to a new jury for trial.

In this case, the jury having failed to report as required by the statute, the motion of the defendant ought to have been sustained, and the cause submitted to a new jury, with proper instructions as to their duty under the acts named.

We are therefore of opinion that the judgment of the' Court of Common Pleas reversing the judgment of the Probate Court, and remanding the cause for further proceedings, was properly affirmed by the District Court.

Leave refused.

Welch, C. J., White, Gilmore, and McIlvaine, JJ., concurred.  