Sterwerf v. Smith

Ohio Supreme Court

Sterwerf v. Smith

73 Ohio St. (N.S.) 62

CourtOhio Supreme Court

DecidedOctober 31, 1905

DocketNo. 9236

StatusPublished

This text of 73 Ohio St. (N.S.) 62 (Sterwerf v. Smith) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sterwerf v. Smith, 73 Ohio St. (N.S.) 62 (Ohio 1905).

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Opinion

By the Court.

Without determining whether or not the courts have inherent power to require security for costs, as has been held sometimes, we are of the opinon that within the language of Eevised Statutes, sections 5340-1 and 5340-2, the judgment of the circuit court was right. The power conferred by the statute is not limited to ‘ ‘ civil actions, ’ ’ originally commenced; but it is provided that the plaintiff shall be bound for the payment of the costs which may be adjudged against him in the court in which the action is brought, “or in any other court to which it may be carried, ’ ’ etc. This broad language covers appellate jurisdiction, whether by appeal or in error; for, although a proceeding in error is not a “civil action,” the identity of the action is not lost in the proceeding in error, and hence the action may be “carried” to a court of review by a proceeding in error.

Affirmed.

Davis, C. J., Shauck, Price, Summers and Spear, JJ., concur.

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By the Court.

Without determining whether or not the courts have inherent power to require security for costs, as has been held sometimes, we are of the opinon that within the language of Eevised Statutes, sections 5340-1 and 5340-2, the judgment of the circuit court was right. The power conferred by the statute is not limited to ‘ ‘ civil actions, ’ ’ originally commenced; but it is provided that the plaintiff shall be bound for the payment of the costs which may be adjudged against him in the court in which the action is brought, “or in any other court to which it may be carried, ’ ’ etc. This broad language covers appellate jurisdiction, whether by appeal or in error; for, although a proceeding in error is not a “civil action,” the identity of the action is not lost in the proceeding in error, and hence the action may be “carried” to a court of review by a proceeding in error.

Affirmed.

Davis, C. J., Shauck, Price, Summers and Spear, JJ., concur.

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Bluebook (online)

73 Ohio St. (N.S.) 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sterwerf-v-smith-ohio-1905.