#### Ohio, for the use of Brown County, *v.*John C. Kelley et al.

1. Under the provisions of section 1 of the act of April 12,1858, “ to relieve • District Courts,” etc., a second trial is not allowable in actions on the bonds of county treasurers executed in pursuance of the act of March 12, 1831, prescribing the duties of county treasurers, etc.

2. An order allowing a second trial in such case may be reviewed on error under section .512 of the code.

Error to the' Court of Common Pleas of Brown county.

The action in the court below was on the bond of the defendants, executed under the provisions of the act of March 12,1831, prescribing the duties of county treasurers (S. & C. 1584), and conditioned for the payment over, by A. J. Parker, according to law, of all moneys which might come into his hands as treasurer of Brown county, during ■ the term of said office to which he had been elected on the ■ 10th day of October, 1871.

*30An issue of fact as to the breach of the bond having been joined, the cause was tried to a jury, which resulted in a verdict and judgment in favor of the plaintiff.

Thereupon the defendants demanded a second trial, as provided in the act of April 12,1858, to relieve District Courts, •etc. (S. *&*C. 1155), and the court, being of opinion that the ■case rvas one in which a trial by jury might be demanded by either party, allowed a second trial to the defendants as • demanded.

The order of the court allowing the second trial is assigned for error.

*Loudon Young,*for plaintiff:

The acts of June 1,1831, which provided for appeal from ¡a judgment or decree of the Common Pleas to the Supreme Court, were repealed by section 606 of the code.

The code abolished the Supreme Court on the circuit, ■and substituted the District Court in its stead. And on March 23, 1852, an act was passed regulating appeals to the District Court (2 S. & C. 1161), the first section of which provided that all cases formerly appealable either as chancery or law cases, should thereafter be appealable to the District Court.

The act (2 S. & C. 1587) under which this action is brought, provides, among other things, that there shall be ■no appeal nor stay of execution, and that the property of the treasurer and his sureties may be sold without appraisement.

The treasurer’s act and the act regulating practice at law, already quoted above,uvere passed at the same session, .and took effect on the same day, June 1, 1831.

The rule is well settled that both these statutes, so far as their provisions affect cases like the one at bar, are to be •construed together as one act.

The practice act allows, as a matter of course, an appeal in civil cases, without exception. The treasurer’s act declares, that in suits on bonds of defaulting treasurers, there ¡shall be no appeal.

*31The two acts taken together must be held to mean, that •as a general rule in suits at law, the right of appeal existed, hut that suits on bonds of defaulting treasurers were excepted from the operation of the general rule. If this be .so, then a case like this could not have been appealed at any time by virtue of the act of 1831, n,or by virtue of the act of March 23,1852, because the treasurers act continued in full force, and was always to be considered a part of the law regulating appeals in suits at law, until appeals in such suits were abolished.

The act of April 12,1858 (2 S. & C. 1155), is a substitute for the previous acts regulating appeals. It provides, in substance, that cases which previously might be appealed as civil cases at law, could no longer be appealed, but in lieu of an appeal, provided for a second trial in that class of cases in the common pleas. *{■:*

This case, not belonging to the class of appealable cases, it follows that it is not a case for second trial, as the second trial is only a substitute for appeal.

*White 8? Waters,*for defendant.

By the Court.

Two questions are raised in this case:

1. Is the order complained of such as may be reviewed on error?

This question must be answered in the affirmative. We think the order affected a substantial right, and was made “ upon a summary application in an action after judgment,” within the meaning of section 512 of the code. ,S. & C. 1099.

2. Was the ease one in which a second trial was allowable, under the act of April 12, 1858 ?

We think this question should be answered in the negative. By the act of March 12, 1831, which makes special provisions for the prosecution of suits on such bonds, it is expressly declared, that from judgments rendered in such •cases “ there shall be no appeal.” By the practice act of ■March 8,1831, section 123, it was provided. “ that in civil *32cases an appeal shall be allowed, of course, to the Supreme-Court, from any judgment or decree rendered in the Court of Common Pleas in which such court had original jurisdiction.”

Under this state of legislation, it is quite clear that an appeal would not lie from a judgment rendered in the-Court of Common Pleas on a treasurer’s bond, to the Supreme Court.

The District Courts, in their respective counties, were made successors of the Supreme Court by section 12 of the schedule in the constitution of 1851.

The right of appeal from the Common Pleas to the District Court, substantially as provided for in the act of 1881,. was continued by subsequent legislation (Swan’s Revised Stat. 717), until the passage of the act of April 12, 1858, entitled *“*an act to relieve District Courts, and to give-greater efficiency to the judicial system of the state.”

Dy the last-named act, the right of appeal is limited to-civil actions in which the parties thereto have not the-right, by virtue of the laws of this state, to demand a trial by juxy. See section 5. And by the first section of the act, the right to demand a second trial, of course, in the Court of Common Pleas, is given in any civil action in which that court has original jurisdiction, and in which either-party has the right to demand a trial by jury, if an issue of fact has been joined therein.

In the change thus made, we think the intent of the-legislature was to substitute a second trial in the Court of Common Pleas, in the cases embraced in the first section, of the act, in lieu of another trial in the District Court, in which cases the right to appeal to the District Court was taken away by the fifth and sixth sections of the act.

Previous to this enactment it had been the policy of the state, as a general rule, to afford litigants two trials, of course, upon all issues of fact in civil cases, and the mode adopted was one trial in the court of original jurisdiction, and another in the appellate court. This practice, however, resulted in overburdening the appellate court to-*33such an extent as to render inefficient the judicial system of the state. To remedy this mischief, and at the same time preserve the right to two trials, was the sole purpose in giving a second trial in the Common Pleas. ■

An exception, however, to the general policy above named was found in the act of March 12, 1831, in relation to actions on treasurers’ bonds. In such cases, the policy was not only to bring the delinquent to trial without delay, but also to make the first judgment final as to all questions of fact.

It is true, the terms of the statute allowing second trials of course in the Comm'on Pleas, are broad enough to include actions on- such bonds, being civil actions in which either party has the right to demand a trial by jury; but nevertheless, as the right to two trials, contrary to the general rule, bad been denied by special enactment, we think a change or modification of the general rule should not be construed to affect the exception which had been provided for by special enactment. *Fosdick*v. Perrysburg, 14 Ohio St. 472; *Shunk*v. *First National Bank of Galion,*22 Ohio St. 515.

The order allowing second trial, is therefore reversed.