Evans v. Iles.

state, but that on the contrary she was, and had all along been, a resident of Licking county. In this motion she specially protests that she appears in court only to make the motion and point out its want of jurisdiction.

April 20, 1854, and during the pendency undecided of this motion, the defendant files a demurrer to the petition.

April 28, 1854, the plaintiff urging that she shall elect between her motion and demurrer, defendant files a motion in writing, asking leave to withdraw her demurrer, which leave was granted by the court, and the demurrer was accordingly withdrawn.

At the October term, 1854, the common pleas, on hearing the testimony in support of the defendant's original motion, order the proof of service by publication to be set aside and stricken from the files. And afterward, at the same term, it appearing that the plaintiff had failed to cause due service by summons to be made on the defendant, the court ordered the case to be stricken from the docket, and that the plaintiff pay his own costs. And thereupon the plaintiff gave notice of appeal; and the court fixed the amount of the bond for appeal, which was duly given; and the papers were removed to the district court as on appeal.

At the June term of the district court of Licking county, 1855, *the defendant moved to dismiss the appeal, on the ground [235 that there was no final judgment in the court of common pleas from which an appeal to the district court could be had. This motion the district court overruled, and, on hearing of the defendant's original motion made in the common pleas, and the decision of which was appealed from, also order the proof of service by publication to be stricken from the files, and the petition to be dismissed for want of proper service, and that the plaintiff pay the

costs.

To reverse these orders of the district court, this petition in error is prosecuted in this court.

It is clear to us that the district court erred in overruling the motion of the defendant in error to quash the appeal. An appeal lies only from a final judgment and certain specified judgments of nonsuit. Here, we think, was no judgment in the common pleas, but only an order; and certainly there was no final judgment. A final judgment is defined in the code (sec. 370) to be a "final determination of the rights of the parties in an action." It is true. the statute regulating appeals is prior in date to the code; but we

Evans v. Iles.

accept that of the code as being an accurate common-law definition of a final judgment. An order dismissing a case for defect or irregularity of process, or in the service of process, and in no way founded on, or passing upon, the allegations of the parties in their pleadings, can not be considered a final judgment.

It is true, the plaintiff in error is not entitled to complain of the order of the court overruling the motion to quash the appeal, for that motion was made by the defendant in error, and was decided in favor of the plaintiff in error. Nevertheless, the facts appear on the record; they show that the district court had no jurisdiction in the premises; and its orders are, therefore, void. And being void, for want of jurisdiction in the court which made them, it is competent for us, on error, to reverse them, although the plaintiff in error voluntarily resorted to such court (Capron v. Van Noordan, 2 Cranch, 126); and we think it best, in order to put an end to controversy, to do so.

What we have already said would be sufficient to dispose of the 236] *case, as it stands before us; but as the main question intended to be presented by this petition in error, is of practical interest to the profession, we have thought it might not be improper to express an opinion upon it.

We are of opinion, then, that the court of common pleas first, and the district court afterward (supposing the latter to have had the question properly before it), erred in the determination of the motion to strike the case from the docket. Looking alone to the testimony, as to whether the defendant was or was not a resident of Licking county, we presume those courts correctly found that she was, and had all along been, such resident, and might, therefore have been served with process otherwise than by publication. But we think those courts were precluded from dismissing the case for want of service, by what appeared upon the journals of the common pleas. The defendant had pleaded to the action by filing a demurrer to the petition; and, unless she could impeach the authority by which this was done, she was estopped from denying the service of process. She had pleaded to the action, and had thus, by implication of law, entered her appearance in it. 1 Ld. Raymond, 21. Nor do we think the case is, in this respect, altered by her subsequent withdrawal of the demurrer. As a demurrer, it ceased to be of any consequence in the case; but as a fact, the evidence of which was indelibly fixed on the journal of the court, and

Debolt v. Trustees Cincinnati Tp.

constituting of itself an appearance in the case, it was as significant and as operative after the demurrer was withdrawn as it was before. The court of common pleas, looking to its own journal, ought to have overruled the motion to strike the case from the docket; and, had a motion for that purpose been made, it ought to have ordered the costs of the service by publication to be paid by the plaintiff.

When the court of common pleas struck the case from the docket, the counsel for the plaintiff mistook their remedy. They resorted to an appeal, to which they were not entitled, instead of to a petition in error, to which, under sec. 512 of the code, they evidently were entitled. And the proceedings in the district court being coram non judice, leaving the orders of the common *pleas [237 in full force, they might still resort to petition in error, if it were not barred by lapse of time under the statute.

Judgment of the district court reversed.

BARTLEY, C. J., and SWAN, SCOTT, and SUTLIFF, JJ., concurred.

HENRY DEBOLT v. THE TRUSTEES OF CINCINNATI TOWNSHIP.

An officer whose fees are regulated by statute can charge fees for those services only to which compensation is by law affixed. The office of township treasurer having been abolished in Cincinnati, and the county treasurer of Hamilton county being required to hold all moneys in his hands belonging to the township of Cincinnati, subject to the orders of the trustees of the township, the county treasurer can not charge the fees allowed by law to the township treasurers for the receipt and disbursement of township funds, in the absence of any law allowing him to do so.

PETITION in error to reverse the judgment of the district court of Hamilton county.

Debolt's term, as treasurer of Hamilton county, expired in 1852. When he came to a settlement with the trustees of Cincinnati township, he held township funds amounting to $11,687.65. On the 9th of June, 1852, he paid them $4,129.67 of this sum, for which they gave a receipt, as a payment on account. The balance, $7,557.98,

Debolt v. Trustees Cincinnati Tp.

was retained by him as fees, "for receiving, safe-keeping, and paying over" moneys belonging to the township, during his term of office. To test his right to these fees, an amicable suit was brought against him, in the court of common pleas of Hamilton county, by the trustees; and judgment was rendered against Debolt, and he appealed.

The district court likewise rendered judgment against him; and to reverse that judgment, he now prosecutes this petition in error. The act of March 5, 1831, fixes the compensation of township 238] *treasurers. The 23d section provides "that each township treasurer shall be allowed, and may retain, three per centum of all moneys paid into the township treasury, for receiving, safe-keeping, and paying over the same to the order of the trustees."

The act of February 25, 1834, " to amend the several acts regulating the township of Cincinnati," provides, in section 3, "that from and after the taking effect of this act, the offices of township treasurer, overseer of the poor, and fence-viewers, for the township of Cincinnati, shall be and they are hereby abolished; and the treasurer of Hamilton county shall hold all moneys which are or may be in his hands, belonging to the township of Cincinnati, subject to the orders of the trustees of said township, any law, usage, or custom to the contrary notwithstanding: Provided, that nothing in this act shall be so construed as to change or vary the application of the funds of said township from the object designated by law."

Under the last-mentioned act, the treasurer of the county has retained the funds of the township in the county treasury, receiving from the county auditor an order therefor, and disbursed the same on the orders of the trustees of the township. For the purpose of keeping the fund and drafts upon it separate from the county funds, and orders on the county treasury, the treasurer of the county has required the trustees to draw upon him, as treasurer of the township, and has kept separate accounts of said funds in separate books. The office of township treasurer, however, being abolished, he performed these duties by virtue of his office of county treasurer, under the above-mentioned law.

The treasurer of the county claims that he is entitled to the fees prescribed for treasurers of townships.

Pugh, for plaintiff in error.

Kelley v. Maxwell.

James & Jackson, for defendants in error.

J. R. SWAN, J. The fees of the county treasurer are limited and prescribed by law. No officer, whose compensation is regulated *by fees, can charge for a particular service, unless the law [239 specifically gives him fees for that service. The law under consideration, abolished the office of township treasurer, and devolved most of the duties of the township treasurer upon the county treasurer; but gave no fees therefor.

Fees are not allowed upon an implication; but if they were, the implication in this case is, that the legislature, if they intended to give the fees of a township treasurer to the county treasurer, would have said so.

Judgment below affirmed.

BARTLEY, C. J., and BRINKERHOFF, SCOTT, and SUTLIFF, JJ., concurred.

IRAD KELLEY V. JOSHUA MAXWELL.

A party having demurred to the first count of the declaration, and pleaded the general issue to the other counts, and afterward, by leave of the court, having withdrawn the demurrer for amendment, and filed a second demurrer to the declaration generally, and no objection having been taken by adverse counsel to the irregularity, the court, on hearing, might properly regard the demurrer as a demurrer to the first count only.

A clause in a chattel mortgage upon a steamboat, executed by K. & R. to M., reciting that M. had the same day sold the boat to K. & R., and taken fourteen promissory notes of $250 each, executed by K., payable at different days thereafter to M., and fourteen promissory notes of the same time and amount, executed by R., and that K. & R. had agreed to execute said mortgage for the security of said twenty-eight notes, and also to effect an insurance on said boat for the amount due M. for his further security upon said notes, and that said K. & R. promise to pay said sum of $7,000, as above, does not change the liabilities of K. & R., as expressed by said promissory notes.

The object and effect of the mortgage were merely to secure the performance of the undertaking of K. & R., as expressed by said notes, without chang. ing the terms of their undertaking.