Job v. Harlan

Peck, J. The suit before the justice of the’ peace, was for the recovery of $300, for injuries to plaintiff’s sheep, by the dog of defendant. The cause, after final trial by the justice, was appealed by the plaintiff therein, to the court of common pleas of Greene county, and the first error assigned, is the refusal of that court to dismiss the appeal, for want of jurisdiction in the justice to try it. This objection, if it be one, was saved to plaintiff it error, it having been made by him before the justice, and overruled. In McKibben v. Lester (9 Ohio St. Rep. 627), it was-decided, and we think correctly, that the amendatory act of May 1,1854, conferring concurrent jurisdiction upon justices of the peace, for sums over $100, and not exceeding $300,fis to be construed as if embo'dieu in the act which it amends; so that the words, “under the restrictions and limitations herein provided,” refer to the restrictions and limitations of the original act, after all the amendments made thereto, are introduced into their proper places' therein; and also, that the second section of said amendatory act does not restrict the enlarged jurisdiction conferred by the first section, but extends it to suits upon contracts for a still larger amount, where the balance claimed to be due does not exceed $300 The rule of construction established in the case cited, is decisive of the question before us. The concurrent jurisdiction conferred by the act extends to any suit, for an amount — 489 — exceeding $>100 and not exceeding $300, as to which the original act had given justices of the peace exclusive jurisdiction for the lesser sum, and prominent among these subjects of exclusive jurisdiction, are actions for injuries to personal property, where the damages claimed do not exceed the sum of $100. 2. Was the defect in the transcript, in not setting forth a copy of the undertaking, such as required a dismissal of the appeal ? Section 113 of the act regulating the jurisdiction and procedure before justices of the peace, provides that in cases of appeal from his final judgment, the justice “ shall make out a certified transcript of his proceedings, including the undertaking taken for such appeal, and shall, on demand, deliver the same to the appellant or his agent, who shall deliver the same to the clerk of the court, to which such appeal may be taken, on or before the day of the term next following such appeal.” The transcript in this case, does not set forth a copy of the undertaking. It recites that the plaintiff, Harlan, gave notice for an appeal of the case, and that Joseph R. Weakly entered into a recognizance for such appeal, in the sum of $100. The undertaking does not appear to have-been ever entered at large upon the docket; but the original undertaking itself, as taken and approved by the justice, was delivered to the clerk by the appellant, together with the transcript, and at the same time. The thirteenth subdivision of section 203 of the same act, seems to require that the undertaking shall he entered at large upon the docket; but it was held in Carper v. Richards, decided at the present term (ante, p. 219), that the requirements of that section were merely directory to the justice, and that if the act enjoined was in fact done, the mere omission of the justice to record it at length upon the docket would not prejudice the party. So, too, a literal compliance with section 113 would, perhaps, require the transcript to contain a copy of the undertaking, but a substantial compli anee with the statutory 'equisites for perfecting an appeal, is — 490 — all that is necessary,.and especially so, in appeals from such inferior tribunals. The object of the requirement is to notify the court, and the adverse party, of the existence and effect of the undertaking which has been executed; and this would-be .effected as well, if not better, by the exhibition of the original undertaking itself. Regularly, the undertaking, not being a paper used on the trial (sec. 113), should remain on file with the justice before whom it was executed, and a certified copy only transmitted to the appellate court, for its information; still, we think, the filing of the original undertaking, is, as regards the adverse party, a substantial compliance with the statute, requiring a certified transcript of the proceedings-,, including the undertaking for an appeal. 3. A third ground relied on in the court below, for a dismissal of the appeal, was that the .original undertaking filed with the transcript, is not such as the law requires to perfect an appeal, in two particulars : 1st. That it is not executed to-the adverse party. 2d. That it does not contain, either in substance or effect, the stipulation, that the appellant would “ prosecute his appeal to effect, and without unnecessary delay.” Section 112 of the statute reads as follows: “ Seo. 112. The party appealing shall, within ten days from the rendition of the judgment, enter into an undertaking to the adverse party, with at least one good and sufficient surety, to be approved of by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned : 1. That the appellant will prosecute his appeal to effect, and without unnecessary delay. 2. That if judgment be adjudged against him on the appeal, he will satisfy such judgment and costs. Such undertaking need not be signed by the appellant.” There is nothing in the objection that the undertaking is not, in express words, made to the “ adverse party.” It is entitled in the action, and taken and approved by the justice trying it. The docket shows that Weakly was surety for the appeal of this cause, and that the “ appellant ” specified in — 491 — the undertaking is the plaintiff, Harlan, and the appellee, or “ adverse party,” is, of necessity, the defendant, Job. In this view, the undertaking is a substantial compliance with the statute. Besides, section 112, is, in this respect, identical with section 41 of the former statute (Swan’s St. of 1841, 512), and yet in the form given on page 527, for a recognizance under that section, the “ adverse party ” is not named, nor expressly alluded to, and the form there given is identical with the one used in the present ease. The legislature, therefore, in using the same words, in the same connection, must be supposed to have sanctioned the legislative construction which had been put upon them A much more serious question is presented by the objection, that the undertaking does not, in substance nor effect, contain one of the- conditions specially required by section 112, above quoted. The condition of the undertaking is, “ that the appellant, if condemned in the action, shall pay the condemnation money, and costs that have or may accrue in the court' of common pleas.” This, in substance and effect, is nothing more than the second requirement of section 112 : “That if judgment be adjudged against the appellant on the appeal, he (the appellant) will satisfy such judgment and costs.” The undertaking, it will be perceived,, entirely ignores the first requirement of the section, “ that the appellant will prosecute his appeal to effect, and without unnecessary delay.” This particular requirement was, for the-first time, introduced by the act of March 14, 1853. All Jie-previous legislation in regard to the condition of a bond for appeal, is substantially embraced in the second specification and the court below, in overruling the motion, probably thought that the first specification was of no practical importance to the appellee, or to any one interested in the litigation. But are we justified in so holding, even if it is difficult to discover the reason and object of the enactment?. The legislature had the undoubted right to prescribe the-terms upon which appeals might'be effected, and when, as iu this instance, they deliberately depart from all former legislation, and attach to the exercise of the privilege, an addi — 492 — ■tional condition, separately numbered, as in section 112, it is assuming somewhat dangerous ground, for a court to bold that such requirement is unimportant, and may be disregarded altogether. If the appeal is not filed by the appellant on or before the second day of the next term, and the appellee is aware of his intention to omit filing it, and is himself prepared to docket the appeal, he could probably gain all the advantages by so doing which a suit upon the undertaking, with the added condition, would call for. But if, on the other hand, the appellee was absent, prostrated by disease, or confidently relies upon the good faith of the appellee in taking the appeal, or where, as sometimes happens, the term itself consists of but two days, so that the term passes without any action on his part, he would probably be in a worse condition if the undertaking did not contain the stipulation to “ prosecute the appeal to effect, and without unnecessary delay.” We do not wish to be understood as indicating the precise legal effect of this clause of the undertaking ; and the foregoing suggestions are made merely to show that we are not justified in holding that an additional stipulation, deliberately .annexed by the legislature, should be altogether ignored as unimportant or unmeaning. Whenever it is sought to enforce that stipulation upon a given state of facts, it will be time enough to determine its precise scope and effect. We think, therefore, that the court below erred in refusing to dismiss the appeal for a deficiency in the undertaking, in the absence of an application, on the part of the appellant, to give the further undertaking authorized by section 122 of the -same statute. The result to which we have come necessarily reverses the judgment, and we might, perhaps, stop here without disposing of the other errors assigned, which relate to the admission of testimony of injuries to the sheep of the plaintiff, resulting solely from a chasing and worrying by the dog of defendant, without any proof that defendant knew of the vicious propensities of his animal; and to a charge given to the-jury that •defendant was liable for such injuries, although ignorant that — 493 — his dog was accustomed or disposed to run and worry sheep ; but inasmuch as the question has been argued, and may possibly arise upon a retrial of the case, we will briefly indicate our present impression in regard to the question, subject, of course, to a reconsideration should it be again presented to us. There is no doubt but that, at common law, before the owner of such domestic animals can be made liable for injuries inflicted by them, it must be shown that he had knowl- • edge of their vicious propensities. Kinnion v. Davies, Cro. Car. 487; Smith v. Pelah, 2 Strange, 1264; Hudson v. Roberts, 6 Exch. 698; Vrooman v. Lawyer, 13 Johns. 339. The propriety of the testimony admitted and the charge given to the jury, depends solely upon the question, whether this acknowledged rule of the common law was changed by the statute of April 23, 1852, upon which the action below was founded, and which reads as follows: “ Sec. 1. That if any dog or dogs shall, kill or injure any sheep, the owner or harborer of such dog or dogs, or any of them, shall be liable for all damages that may be sustained. thereby, to be recovered by the party injured, before any court having competent jurisdiction. “ Sec. 2. It shall be lawful for any person, at any time, to kill any dog which may be found running, worrying, or' injuring sheep.” The third section authorizes any person to kill a dog of wandering habits, when found wandering about off the premises of the owner, and unaccompanied by him, after notice of such wandering habits and neglect, or refusal of the owner to confine him. It is manifest that this statute does not make the owner’s-knowledge of the vicious propensities of his dog a prerequisite to a recovery for the injuries done by the dog; and the inference to be drawn from the third section, where scienter is expressly required, is opposed to any such construction The liability of the owner is declared in express terms, and without any qualification. It is, therefore, obvious that the first section, as to the subjects of recovery embraced* — 494 — within its provisions, abrogates the rule of the common law. But it is said that the words “ Mil or injure" as used in the first section, were not intended to include injuries from a mere worrying, where neither death nor visible external injury ensued; and it is sought to fortify this construction by the second section of the same act, and the practical construction placed, by township assessors, upon the act of 1859, requiring them to report the number of sheep killed and injured by dogs within their respective townships, and the extent of the damage done. The word “ injure,” used in the first section, is certainly broad enough to include an injury by 'means of a chasing or worrying, although no external hurt was occasioned by it. Among the popular significations of the word, as given by lexicographers, are, “ to do wrong or harm to ” — “ to cause loss or detriment to” — “ to impair” — “to impair soundness, •as of health” — “to damage and lessen the value of” — “to make worse,” etc; and there is nothing in the context, we conceive, to show that the word was used in a more restricted sense in the statute. The second section is not restrictive of the words used in the first. It provides that the trespassing animal, if found running, worrying, or injuring sheep may be killed. It is protective, and preventive of further injury, but not intended as compensatory for injuries already inflicted. .The two sections are not inconsistent with each other. The one authorizes the killing of dogs found injuring animals, and the other allows a recovery for the injury already inflicted. Such being the clear meaning of the language employed, we do not -see that a practical construction of township assessors of similar words, in another act, can shed any beneficial light upon the meaning of the section under consideration. We are of the opinion that there was no error in admitting the testimony objected to, nor in giving the charge set forth .in the bill of exceptions. The judgments of the common pleas and district courts are — 495 — hereby reversed, and the cause remanded to the court of common pleas for further proceedings. Sutlwe, C.J., and Gholsoh, Brinkerhoef and Scott, JJ., concurred.