#### Uihlein et al. *v.*Gladieux.

*Bill of particulars before justice of peace*— Stating *that first name of defendant is unknown*— Is *allegation that real name is unknown*— Sections *5118 and 6415, Revised Statutes*— Ques*tion of proper service*— Leaving *summons at usual place of residence*— Gives *no jurisdiction, when*— Justice’s *record must affirmatively show fact, when*— Question *of continuance “by agreement"*— Transcript *of judgment filed in office of clerk of common pleas*— Does *nor constitute lien, when.*

1. A statement In a bill of particulars filed by tbe plaintiff in a suit *before*a justice of the peace that the first name of one of the defendants is unknown, is in effect an allegation that the real name is unknown.

*2332. In such ease it is, by section 5118, Revised Statutes, made the duty of the plaintiff to allege that he could not discover the true name of such defendant, and the service must be made by serving a copy of the summons containing the words “real name unknown” upon such defendant personally. If the return of the summons shows that it was served only by leaving copy “at the defendants’ usual place of residence, they being absent,” no jurisdiction by reason of such service is acquired over the defendant whose name is unknown.

3. The record of a justice of the peace must affirmatively show facts which give the justice jurisdiction over the person of a defendant, and where, in the case stated, the suit is brought against two parties, and the record shows that the case was continued “by agreement,” such entry does not import that both parties were present assenting to such continuance, and the defect in the manner of service is not cured so as to give the justice jurisdiction of the party not personally served.

4. An action brought before a justice of the peace against Wm. Rogers, and Mrs. Wm. Rogers whose first name is unknown, is, as to the latter, an action against one whose real name is unknown, and brings the case within the purview of sections 6475, and of 5118, Revised Statutes, requiring personal service.

5. A transcript of the judgment rendered in such action against Mrs. Wm. Rogers, whose first name is unknown, filed in the office of the clerk of the court of common pleas of the county wherein such judgment was rendered, does not constitute such judgment a lien on the lands of Lucy Rogers, although she may in fact be Mrs. Wm. Rogers.

(No. 9495

Decided May 22, 1906.)

Error to the Circuit Court of Lucas county.

George Gladieux (defendant in error) commenced an action in the common pleas of Lucas against August Uihlein and The Joseph Schlitz Brewing Company, seeking to enforce an alleged lien against lot 577 in the Birmingham Addition to the City of Toledo, by reason of an alleged judgment rendered by a justice of the peace in favor of Gladieux against one Lucy Rogers. It was *234averred that judgment was rendered against the defendant Lucy Rogers under the name by which she was usually known in the community, to-wit:Mrs. Wm. Rogers, July 2, 1896, for $150.25 and costs; that a transcript of such judgment was, on October 6, 1896, filed with the clerk of the court of common pleas of Lucas county, and on December 24, 1897, execution was issued and thereupon levied upon the lot above described; that no part of the judgment has been paid; that the defendants claim interest in the real estate hostile and adverse to the rights of plaintiff therein, but that any rights of defendants therein are subject to the rights of plaintiff.

The defendants by answer took issue with the averments of the petition, and further alleged in substance that on March 21, 1895, Lucy Rogers, being then the owner of said lot 577, mortgaged the same to The Peoples Savings, Loan & Building Company for $700.00 to secure a loan of money then made, which mortgage was then duly filed for record and recorded; that on December 2, 1896, being indebted to The Joseph Schlitz Brewing Company in the sum of $900.00, upon a note then executed and delivered for money loaned, she mortgaged the lot to that Company, which mortgage was on that date duly filed with the recorder, and duly recorded; that said Company had not then, nor for a long time afterwards, any knowledge or notice of any claimed lien of plaintiff; that in September, 1901, the Brewing Company brought action to foreclose; that such proceedings were had that November 23, 1902, the sheriff of Lucas county delivered to defendant August Uihlein a deed of said lot, he being the purchaser thereof; that at the sale he paid the sheriff $900.00, *235which sum was paid out by said officer in taxes and costs, $98.73; to the said Building Company $431.89, and the balance was credited on the claim of the said Brewing Company;- that the defendant Uihlein was, by order of court, subrogated to all the rights, liens and securities of said lienholders, but that he purchased for said Company, and had no interest in said lot except only the legal title. It was further alleged that defendants knew said Lucy Rogers by the name of Lucy Rogers and no other; that she bore that name and no other; that no transcript was filed in the. office of the clerk against the said Lucy Rogers; that the transcript which was filed was not entered on the execution docket, nor indexed in the index of the execution docket but was entered in the appearance docket and so indexed, and not otherwise, and that said judgment and transcript was ^against Mrs. "Win. Rogers and did not purport to be against Lucy Rogers.

By reply the plaintiff took issue with all the allegations of the answer save as to the title and ownership of Lucy Rogers.

Trial was had in the common pleas which resulted in a dismissal of the petition. Plaintiff appealed to the circuit court. That court on trial found for the plaintiff and established the lien of his judgment as against the mortgage of the Brewing Company and the title of Uihlein. That Company and Uihlein bring error:

*Messrs. Seney, Johnson S Seney,*for plaintiffs in in error.

Was the judgment of the justice of the peace attempted to be rendered against “Mrs. Wm. Rogers, whose first name is unknown,” *valid*or *void?**236We contend that the judgment was void, because the justice was without jurisdiction as to such defendant. This court has decided what is also well established as elementary law, that the jurisdiction of the justice of the peace must appear and be shown by his record. *Robbins*v. *Clemmens,*41 Ohio St., 285; *Edmiston*v. *Edmiston,*2 Ohio St., 251; *Jones*v. *Railroad,*10 Circ. Dec., 789; 20 C. C. R., 63.

Section 594, Revised Statutes, provides as to what the civil docket of a justice of the peace must contain.

The transcript does not show that the defendant “Mrs. Wm. Rogers, first name unknown,” appeared in court. It distinctly shows that she was not present when judgment was entered.

When the name of a party is unknown, provision is made by statute as to what the summons shall contain and as to how the same shall be served. Swan’s Treatise (19 ed.), pages 55 and 56.

The provisions of the statute appear to have been entirely ignored in the proceedings before the justice of the peace.- The return of the summons affirmatively shows that the writ *was not served personally.*The allegation in the bill of particulars and the finding of the justice conclusively establish the fact that the name of the person sought to be charged, was unknown. Jurisdiction to render a judgment against the person of the unknown name, could be obtained only by summons issued and served pursuant to the statute. The judgment as rendered was against an alleged defendant, not by the true name, but expressly finding the name of this defendant to be unknown. The magistrate therefore acquired no jurisdiction to thus render judgment.

*237*The name*of an individual is the appellation or cognomen by which he is 'distinguished or designated among his fellows. See Century Dictionary definition of “name.”

At common law the name of an individual consists presumptively of one Christian, baptismal, or given name and one family name, surname, or patronymic. 21 Am. *&*Eng. Ency. Law (2 ed.), p. 306, title “Name.”.

The statute requires that the title of the cause be set forth on the docket of the justice. See code provisions with respect to pleadings. Sections 594, 5056 and 4972, Revised Statutes.

The summons issued by the justice of the peace was not such as to confer jurisdiction, because it did not contain either the name of the defendant or a description. Section 6475, Revised Statutes.

The transcript shows that the name of one of the defendants was *unknown.*The transcript also shows that this defendant was not sued by a fictitious name, but merely by an abbreviation of a fictitious name. The judgment against the defendant of unknown name gives neither fictitious names nor description. The name, therefore, could not have been upon the summons.

The judgment asserted by the defendant in error is not aided by the fact that the title “Mrs.” is added to designate the defendant sought to be named and charged. In the first place the title is affirmatively alleged not to be her name. Again, the term is not a name, but a title or character. Am. *&*Eng. Ency. Law (2 ed.), title “Mrs.;” sec. 5188, Rev. Stat.

The claim, therefore, that these terms were used as description, would itself defeat the jurisdiction *238and avoid the judgment because the record affirmatively shows that the defendant of unknown name *was not personally served*but was absent when the summons was left at the residence. The direct provision of the statute re-enforces and gives construction to the other sections of the code and confirms the common law rule requiring a complete name. Section 5010, Revised Statutes; *Elberson*v. *Richards,*42 N. J. Law, 69; *Enewold*v. *Olsen,*39 Neb., 59.

The transcript in the case of *Gladieux*v. *Rogers,*even if the judgment was valid, did not confer a lieu in favor of Grladieux upon the property of *Lucy Rogers.*

This is so for several reasons. The records and entries required by law to constitute a judgment lien were not made; a judgment against one denominated “Mrs. Vm. Rogers, whose first name is unknown,” can not in law constitute a lien upon real estate of Lucy Rogers, and a judgment against “Mrs. ¥m. Rogers,” whose first name is unknown, can not by parol be varied and the party identified by éxtraneous evidence with Lucy Rogers and a lien be thereby established. The requisite legal steps to constitute the judgment a lien upon land were not taken. Sections 5377 and 5378, Revised Statutes.

It appears thus that a party seeking a lien in behalf of a justice judgment, must (1) file in the office of the clerk of the common pleas court, a transcript; (2) the clerk must then enter the case on the *execution do diet,*together with a. statement of the amount of the judgment and time of filing of transcript. This done, the judgment constitutes a lien. The clerk of the common pleas court is *239required by law to keep certain books. Sections 4957, 4958, 5339 and 5423, Revised Statutes.

Section 4958 prescribes tbe entries which may be made by the clerk on the appearance docket. An unauthorized entry upon the appearance docket is a nullity and notice to no one. This was substantially held by this court in *Miller*v. *Railway Co.,*60 Ohio St., 374, where an unauthorized entry was held to be notice to no one.

The first objection was to evidence to the effect that Lucy Rogers was the same as Mrs. Wm. Rogers.

The record by which a lien is claimed must, as we contend, be such of itself as to inform the world as to the identity of the parties. The court allowed the plaintiff to show by evidence outside the record, that Lucy Rogers was as well known by the name of Mrs. Wm. Rogers. To do this, the court assumed of course that “Wm.,” which the record showed, was “William,” as shown by the evidence. The purpose of this proof was to establish the allegation of the petition of a judgment against *Lucy Rogers*and thus by parol complete the lien which was claimed.

Evidence for that purpose can not be received and considered. *Godfred*v. *Godfred,*30 Ohio St., 53.

Proof of a judgment against Mrs. Wm. Rogers, even if she be Lucy Rogers, can not support a lien on land of Lucy Rogers.

There is no lien, because section 5377, Revised Statutes, as heretofore shown, requires that the *names*of the parties be entered upon the execution docket, and only *such judgments*as are thus entered, obtain a lien. Section 5378, Revised Statutes.

*240Without the given and the surname, our records become an impenetrable maze. *Bank*v. *Wallace,*45 Ohio St., 152; *Johnson*v. *Hess,*126 Ind., 298; Pomeroy on Equity Jurisprudence, 311.

*Messrs. Rhoades S Rhoades, ■*for defendant in error.'

The judgment rendered by the justice against Mrs. Wm. Rogers was and is a valid judgment.

She entered her appearance in the cause, and failing to object to any misnomer or irregularity in the service thereby waived any and all such irregularities. Mrs. Rogers was properly sued by the name Mrs. Wm. Rogers.

'Mrs. Rogers was properly served with summons under the provisions of section 5118, Revised Statutes, providing for service upon parties whose names are unknown.

As to the matter of “agreement” and “continuance” see Vol. 2, Am. & Eng. Ency Law (2 ed.); secs. 6534, 6535 and 6536, Rev. Stat.; Swan’s Treatise (20 ed.), 95; *Dunlap*v. *Robinson, Admr.,*12 Ohio St., 530.

Moreover, if we assume that Mrs. Rogers did not consent to the continuance (which we are not warranted in assuming), then the justice lost jurisdiction as to her and must have proceeded to render a judgment against her, knowing that he had no jurisdiction to do so.

Unless Mrs. Rogers consented to these continuances then the justice twice made false entries on his docket and in addition thereto proceeded to render judgment against her in defiance of the known law of the state that he had lost jurisdiction by an unauthorized continuance.

*241The jurisdiction of the justice must appear from his record and from the transcript; but there is no law that would raise a presumption that the justice made false entries and that would presume the judgment to be void.

A continuance by agreement is tantamount to a general appearance. 2 Ency. Pleading and Practice, pp. 633 and 634,-and cases there cited.

Having appeared in the action, any irregularity in the service or misnomer is waived because she did not object thereto in that action. 2 Ency. Pl. & Prac., pp. 646-647; *State ex rel.*v. *Telephone Co.,*35 Ohio St., 296; 11 Ency. Pl. *&*Prac., p. 954; 14 Ency. Pl. & Prac., p. 298; *Lindsey*v. *Delano,*78 Ia., 352; Freeman on Judgments, sec. 154; *Bank*v. *Jaggers,*31 Md., 38; *Bloomfield Ry. Co.*v. *Burress,*82 Ind., 83; *Lafayette Ins. Co.*v. *French,*18 How., 404.

Lucy Rogers was properly sued as “Mrs. Wm. Rogers” and the judgment rendered against her in that action was and is a valid judgment. A name is simply a means of identification, and it is proper to sue a party by the name in which he or she is usually known in the community. *It is the person that is sued and not the name.*

It is found as a fact in this action that Lucy Rogers was equally well known by the name of Mrs. William Rogers. 14 Ency. Pl. & Prac., 278; *Parry*v. *Woodson,*33 Mo., 347; *Bell*v. *State,*25 Tex., 574.

The name is simply used to designate the person, and when it does so it is sufficient. *Carroll*v. *State,*73 N. W. Rep., *939; Peterson*v. *Little,*74 Ia., 223; *Hibernia Ins. Co.*v. *O’Connor,*29 Mich., 242; *Lintan*v. *Bank,*10 Fed., 894; *Lindsey*v. *Delano,*78 Ia., 350; *Bank*v. *Jaggers,*31 Md., 38; *Railway Co.*v. *242*Burress,*82 Ind., 83; *Clark*v. *Clark,*19 Kan., 522-525; *Cooper*v. *Burr,*45 Barb., 9; *Gillespie*v. *Rogers,*146 Mass., 610; *Insurance Co.*v. *Lee,*19 S. W. Rep., 1030; *Donaldson*v. *Donaldson,*1 Dec., 289; 31 W. L. B., 102; *Goodenow*v. *Tappan,*1 Ohio, 61.

His point is not well taken. True, some cases do hold that initials are not a name — plaintiff in error has been able to cite two such cases.

But *Wm. is not an initial*— it is a well-known and exceedingly common contraction of the name “William,” and courts take notice of such common and ordinary abbreviations of the Christian names. 21 Am. & Eng. Ency. Law (2 ed.), p. 309. Among the large number of cases there cited are the following few: Arch as abbreviation for Archibald, in *Rupert*v. *Penner,*35 Neb., 587; Barna and Barney for Barnabas, in *McGregor*v. *Balch,*17 Vt., 562; Dan for Daniel, in *Sparks*v. *Sparks,*51 Kan., 195; Eliza for Elizabeth, in *Goodell*v. *Hall,*112 Ga., 436; Hen. for Henry, in *People*v. *Ferguson,*8 Cow., 106; Jas. for James, in *People*v. *Tisdale,*1 Dougl., 59.

Moreover in this state a party to an action may be designated by initials, independent of any statute on the subject. *Smith*v. *State,*8 Ohio, 295.

In other words, such a judgment is not void, as plaintiff in error contends. *Lasure*v. *State,*19 Ohio St., 43; *State*v. *Miller,*7 Circ. Dec., 552; 13 C. C. R., 67; *Miller*v. *State,*55 Ohio St., 685.

Even conceding, for the sake of argument merely, that “Mrs. Wm. Rogers” was not her name; still she was properly served within the meaning of section 5118, Revised Statutes, quoted by plaintiff in error. “Mrs. Wm. Rogers” Vas certainly *a description*of the defendant, and she was personally served within the meaning of section 5118.

*243Broadly speaking the code provides two methods of service, (1) that by which the defendant receives actual personal notice of the proceeding against him; and (2) that by which he is constructively served, i. e., is presumed to have notice of the proceeding against him.

We contend that the *personal service*required by section 5118 means actual service as distinguished from *constructive*— not personal service as distinguished from service by leaving a copy at the usual place of residence. This construction fully accomplishes the purpose of the act and a similar statute of the state of Indiana has been so construed. *Dunkle*v. *Elston,*71 Ind., 585; *Nysewander*v. *Lauman,*124 Ind., 585.

The jurisdiction of the justice of the peace both as to subject matter and to the parties is shown, and the judgment cannot be collaterally attacked in this action by any party hereto. *Paine*v. *Mooreland,*15 Ohio, 435; *Gaw*v. *Glassboro N. G. Co., 11*Circ. Dec., 32; 20 C. C. R., 416.

Transcript of the judgment having been filed, this judgment became, and still is, a valid lien upon said lot. It is true that judgment liens are created by statute, and their extent and duration are such as the statute prescribes. It is equally true that only the *essential*facts required by statute are necessary to render the judgment a lien. *Pierce, Jr.*v. *Wimberly,*78 Tex., 187; *Gin Co.*v. *Oliver,*78 Tex., 182; secs. 4957, 4958 and 5423, Rev. Stat.

The book kept by the clerk contained all that the law required of an appearance docket and of an execution docket. Section 4948, Revised Statutes, above quoted, says that section 4957, Revised Statutes, shall be liberally construed to promote justice.

*244Thé lien of the judgment is not dependent upon any entry upon the docket or any indexing, but became complete upon the filing of the transcript. That this is unquestionably true appears from— (1) The Ohio statutes and the decisions upon the subject; (2) Analogous provisions relating to the filing, recording, and indexing of deeds and mortgages.

(1) Ohio statutes and the decisions upon the subject. The Ohio statutes relating to the filing of transcripts for lien and the lien secured thereby are sections 5377, 5378 and 5379, Revised Statutes. *Green*v. *Garrington,*16 Ohio St., 548; *McComb*v. *Thompson,*42 Ohio St., 139; *Hesse*v. *Mann,*40 Wis., 560.

We submit that this is the law unless the statute expressly requires that the instrument be recorded before the lien attaches, as was the case with the Ohio statute as to deeds, etc., when the case of *Jennings*v. *Wood,*20 Ohio, 261, (which is quoted by plaintiff in error) was decided. *Gillespie*v. *Rogers,*146 Mass., 610; *Ouimet*v. *Sirois,*124 Mass., 162.

This question as to the' lien acquired by filing, independent of any subsequent act of the officer with whom filed, is very lucidly set forth in Jones on Chattel Mortgages (4 ed.), secs. 271 and 272. *Tousley*v. *Tousley et al.,*5 Ohio St., 78; *Brown*v. *Kirkman,*1 Ohio St., 116; *Smith*v. Smith, 13 Ohio St., 523.

Plaintiff in error had such notice of the judgment prior to paying out the money on its mortgage as to make it take subject thereto.

(a) Constructive notice.

*245It is a well-settled rule that where a purchaser has knowledge or information of facts which áre sufficient to put an ordinarily prudent man upon inquiry, and the inquiry, if followed with reasonable diligence would lead to the discovery of defects in the title or of equitable rights of, others affecting the property in question, the purchaser will be held chargeable with knowledge thereof, and will not be heard to say he did not actually know of them. 23 Am. & Eng. Ency. Law (2 ed.), p. 495; Pomeroy on Equity Jurisprudence, sec. 587. ■ ■

Measured by this standard what notice had plaintiff in error of this judgment? ■ ■

The records of the clerk’s office showed a judgment against “Wm. Rogers and Mrs. Wm. Rogers” in. favor of Gladieux, defendant in error herein.

It was taking a mortgage on the land owned by Lucy Rogers. It knew that her husband’s name was William Rogers. It knew that Gladieux had a claim against Mrs. Rogers for drilling a well on this very property, and it was notified by the record of a judgment in favor of Gladieux and against “Mrs. Wm. Rogers.”

Beyond all question it had sufficient information to put any reasonable person, or even a corporation, upon inquiry, and the very slightest inquiry would have disclosed all the facts. *Jenny*v. *Zehnder,*101 Pa. St., 286; *Green*v. *Meyers,*72 S. W. Rep., 128; *Hibberd*v. *Smith,*50 Cal., 511; *Mack*v. *Schlotman,*7 Dec. Re., 737; 3 W. L. B., 737.

•(b) Actual notice and knowledge.

Thus it will be seen that after the payment of $115.00 the Brewing Company had actual knowledge of the filing of this transcript and of the whole. proceedings. 23 Am. & Eng. Ency. Law (2 ed.), *246520; *York Bank’s Appeal,*36 Pa. St., 458; *Cushing*v. *Edwards et al.,*68 Ia., 145; *Hamilton*v. *Whitney,*19 Neb., 303; *Gillespie*v. *Rogers,*146 Mass., 610; *Bank*v. *Wallace,*45 Ohio St., 152.

Spear, J.

In its findings the circuit court found that the allegations of the petition respecting the suit and judgment before the justice and the filing of a transcript thereof with the clerk of the common pleas court, and the issue and levy of the execution on lot 577, were substantially true as stated. Also that the allegations of the answer respecting the origin, character and amount of the debt of Lucy Rogers to the Building Company, and the origin, character and amount of the debt of Lucy Rogers to the Brewing Company, and with respect to the notes and mortgages given the respective companies, and the filing and recording of said mortgages, and also with respect to the-proceedings in foreclosure brought by the Brewing Company, and the disposition of the money arising from the sale of lot 577, were also true. Also that Gladieux (defendant in error) was not a party to the above described foreclosure suit. It was further found, as shown by the transcript of the justice’s' docket, that the bill of particulars was filed June 15, 1896, summons returnable June 18, 9 a. m. ; that the parties defendant were described in the bill as “Wm. Rogers and Mrs. Win. Rogers, whose first name is unknown;” that the summons was returned June 16, showing service on the defendants by copy left at usual place of residence; they being absent, that June 18 at 9 a. m. the cause was continued to June 25, at 9 a. m. “by agreement;” that June 25, 9 a. m. the cause was continued to July 2d, 9 a. m. “by agreement;” that *247July 2d, 9 a. m. the plaintiff and defendant, Wm. Rogers, appeared, and Wm. Rogers then confessed that he was .indebted to plaintiff in the sum claimed and asked that judgment be entered against him, but the defendant, Mrs. Wm. Rogers, whose first name is unknown, did not appear, nor for one hour thereafter; trial was then had. George Gladieux was sworn and examined on plaintiff’s behalf, .and upon consideration the justice found for the plaintiff, and rendered this judgment, viz.: “It is thereupon considered by me this second day of July, 1896, that the plaintiff have and recover of the defendant, Mrs. Wm. Rogers, whose first name is unknown, the sum of $150.25 and costs herein taxed at $5.60. ’ ’

It is apparent from these findings that the initial question to be determined is with respect to the legal validity of this judgment as a judgment against Lucy Rogers. Coming to the direct question, did the justice of the peace acquire jurisdiction over Lucy Rogers? She was sued as Mrs. Wm. Rogers whose first name is unknown, and the judgment was rendered with the same designation. Was it her name in law? The meaning of the word, name, is given as the distinctive appellation by which a person or thing is designated or known; or, as better given by another lexicographer, that by which an individual person or thing is designated and distinguished from others. The law recognizes one Christian name or given name and one family surname. Bouvier’s Law Diet., 467; 21 Am. & Eng. Ency. Law, 306. At marriage the wife takes the husband’s surname, and, to distinguish her from the husband, is called Mrs. or Mistress, not as a name but as a mere title; but otherwise her name is not changed. This person’s real and legal name, therefore, was Mrs. Lucy Rog*248ers, and not Mrs. Wm. Rogers. True, the allegation is that she was then usually known in the community as Mrs. Wm. Rogers, hut the hill of particulars, the docket entries and the judgment itself all show that her real name was unknown to the plaintiff in the action before the justice and to the justice himself, for, since the first name was part of the actual name, and since they did not know that first name while stating that she had a first name, they did not know her name. She was, therefore, in the class of defendants whose real name is unknown, being sued by a name which was in effect fictitious. What, then, follows from this situation? Section 6475, Revised Statutes, provides that the summons “must contain the name or names of a defendant or defendants, if known; if unknown a description of him or them, and command the officer ** * **to summon the defendant or defendants to appear before the justice,” etc. The summons does not appear in the record, but it could not have contained ' the name of the defendant, Lucy Rogers, for that was not known, and the attempted description (Mrs. Wm. Rogers), is at most exceedingly meagre. But passing that, what sort of service was necessary? Section 5118, Revised Statutes, (made applicable to this case by force of section 6705) provides that “when the plaintiff is ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name and description, and when the true name is discovered the pleading or proceeding may be amended accordingly; and the plaintiff, in such case, must state, in the verification of his petition, that he could not discover the true name, and the summons must contain the words ‘real ■ name *249unknown,’ and a copy thereof must be served personally upon the defendant.” The constable’s return shows service of the summons by leaving copy “at the defendants’ usual place of residence, they being absent.” There was, therefore, as it seems to us, no service such as is required by statute upon the defendant against whom judgment was rendered and unless this defect was cured it is. fatal to the validity of the judgment.

But it is claimed by defendant in error that this fault, if fault it was, was cured by the appearance of the defendant. Does the record show that there was such appearance? It shows by the transcript that there were two continuances “by agreement.” It is shown, also, that the defendant Wm. Rogers appeared in person; no such entry is made as to Mrs. Wm. Rogers. We are asked to draw the inference that, because the cause was continued “by agreement” Mrs. Rogers must have been present in court. Perhaps this might reasonably follow in support of a judgment of a court of general jurisdiction, but a justice’s court is not "such a court. The facts upon which its jurisdiction depends must be shown affirmatively. *Robbins*v. *Clemmens*, 41 Ohio St., 285. What is required with respect to entries, in a justice’s docket is prescribed by section 594, Revised Statutes. Among other things it must show which of the parties, if either, appears at the trial; also must show every adjournment, stating on whose application, whether on oath or consent, and to what day. The transcript fails to show affirmatively that Mrs. Wm. Rogers, first name unknown, appeared at any time, and is entirely consistent with the supposition that of the defendants Wm. Rogers only appeared, and that he only was a party to the *250agreements to continue. She did not appear at the time of trial as the transcript affirmatively shows. We think the conclusion inevitable that the justice did not acquire jurisdiction of the person of Lucy Rogers, and if this be so the conclusion also follows that the judgment has no legal validity.

Attention is called to the finding of the circuit court to the effect that the Brewing Company learned of the claim of Grladieux, and of the filing of his transcript in the clerk’s office, at a time when only $115.00 of the $900.00 agreed to be loaned, had in fact been turned over to Lucy Rogers, and the claim is made that the Brewing Company should at most be protected to the extent only of said amount of $115.00. But the party at that time had taken its note and mortgage, the latter being filed and of record, and was obligated by its contract to complete the agreement, and it is not perceived how, in the absence of misrepresentation or fraud on the part of the borrower (and none appears), the Company could have avoided completing its contract. At all events it has a legal right to stand on its mortgage.

Another question is pressed by counsel for plaintiffs in error. The record shows that the clerk did not enter the transcript upon a docket known exclusively as the execution docket, but upon a docket which was a sort of combination of appearance -and execution. Section 5377, Revised Statutes, makes it the duty of the clerk, upon the filing of a transcript from a justice’s docket, to enter the case on the execution docket,' etc., with proper indexes, etc., and the proposition is that the clerk having failed to perform this duty no lien could be acquired. The question is of importance, but as its determination *251is not essential to a disposition of the present case, we express no opinion upon it.

The conclusion hereinbefore announced with respect to the effect of the proceeding before the justice finds support when we consider the purpose of our registry and recording laws. They are intended, among other things, to facilitate operations in real estate by affording to purchasers record evidence of titles and encumbrances. It is the duty, therefore, of one who desires to obtain a lien upon 'land to comply with reasonable fullness and accuracy with all the steps required of him by the statute, in order to afford notice of his claimed lien to all who may be interested in the property and themselves use reasonable diligence. This general subject is treated at some length in *Bank*v. *Wallace,*45 Ohio St., 152, and in *Coe*v. *Erb,*59 Ohio St., 259, and repetition is not needed here. In the case at bar it would have been entirely easy for the plaintiff before the justice to comply with the statute as to the real name of the party whose land he desired to subject to his claim, and as to service, and, having amended the bill by correcting the name, thus making proper parties, and then obtain judgment accordingly. It was not reasonable to expect that the judgment against Mrs. Wm. Rogers, even if it had been lawfully rendered, would be supposed by an abstractor of titles to create a lien upon the real estate of Lucy Rogers.

The judgment of the circuit court will be reversed and final judgment entered by this court for the in error. '

*Reversed.*

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