#### PAINE v. G. F. AND W. COMMISSIONERS OF PORTAGE COUNTY.

Liability of county commissioners — they are a corporation, not a sovereignty — jurisdiction— costs.

it is error for the Court of Common Pleas to quash an appeal from a justice of the peace, unless the waut of jurisdiction in the justice or the appellate court appear on the proceedings, or are named as the ground of the order.

That the defendant before the justice was a householder, lived in* a different township from that of the justice, will not be presumed in the appellate court, or be ground to quash an appeal, unless it otherwise appear than in the motion of the defendant to quash.

Where G. T. and W. are sued and described as commissioners of Portage county, the suit is against them in their corporate capacity, not as individuals.

The county commissioners are a mere corporation, performing certain public duties, and as such are subject to suit before a justice or in the courts. They are not lords paramount, nor a sovereignty, exempt from suit.

A court quashing an appeal for want of jurisdiction in the court appealed from, cannot render judgment for costs.

Error to the Court of Common Pleas. Paine sued the commissioners by their individual names, before a justice, in debt. The justice gave a judgment of non suit, and for costs for the defendants, for which the plaintiff appealed to the Common Pleas. The defendants moved the court to quash the appeal, for the following reasons:

1. That as the commissioners represent the *sovereignty of the*county, and the jurisdiction of a justice is limited to the township, he has no jurisdiction against the commissioners.

2. The individual commissioners were not subject to the jurisdiction of the justice, because they lived out of the township where he resided.

The Court of Common Pleas quashed the appeal, and rendered judgment against the plaintiff for costs, to reverse which he brings error.

By the Court.

The record does not' show that any evidence was adduced of the residence of the individual commissioners, or of the justice; nor that the court found any facts as the predicate of the order to quash, and judgment for costs. It is erroneous to quash an appeal, without presenting some state of fact to warrant the order. If, therefore, the order to quash, was predicated on the residence of the justice, and the individual commissioners, it was erroneous, because it nowhore appears that they reside in different townships, except in the motion of the defendants.

We entertain no doubt, but that a justice has jurisdiction of a suit against the county commissioners. Their claim of exemption, on account of their *sovereign*character, cannot be recognized. They are but a corporation, performing certain public functions — not lords paramount, or sovereigns. It appears to us clear, also, that *418the suit under review, is one against the corporation, not against the individual commissioners.

But, if the order to quash was made because the justice had no jurisdiction, there was no legal foundation for the judgment for costs, and the judgment for costs is erroneous, because a court without jurisdiction can give no judgment; 4 O. *It.*200.

All the proceedings since filing the appeal are reversed, and the cause remanded for entry and further proceeding. '