Tit. IV, Ch. 5. SUPERIOR COURT OF MONTGOMERY CO. $$ 508-517. such officers and the mode of proceeding against them, or either of them, for any neglect of official duty, allowing fees, and providing for the collection thereof, in the court of common pleas, shall be held to extend to the superior court of Montgomery county, unless the same are plainly inapplicable. [53 v. 38, § 7.] SEC. 508. The superior court of Montgomery county shall be held at the court-house in Dayton, or at such other convenient place in that city as the commissioners of Montgomery county provide. [53 v. 38, $ 8.] SEC. 509. The terms of the court shall commence on the first Mondays of October, January, March, and May, and they shall be respectively named the October, January, March, and May terms, and may be continued and held from the time of their commencement every day, Sundays excepted, until and including the last Saturday before the first day of the next term, excepting the May term, which shall end the Saturday preceding the first Monday of July; and in the months of July, August, and September a term or terms of the court may be held, if directed by the court at any previous term. [72 v. 90, $ 9.] SEC. 510. The judge of the court may dispense with any term thereof, adjourn the same on any day previous to the expiration of the term for which it is held, and also from any one day in the term over to any other day in the same term, if, in his opinion, the business of the court will admit thereof. [53 v. 38, § 10.] SEC. 511. In case the court is not held at the time appointed, or any term thereof is interrupted, by reason of the non-attendance of the judge thereof, the clerk may adjourn the same from day to day, or until the next term, and all process and other proceedings shall be continued over accordingly. [53 v. 38, § 11.] SEC. 512. The superior court of Montgomery county shall have the same powers, authority, and original jurisdiction in civil actions and other proceedings as by the constitution and laws have been or may be conferred upon the court of common pleas, but said court shall have no jurisdiction in criminal or bastardy cases, nor in applications for divorce and alimony, nor for alimony, nor for the benefit of the laws for the relief of insolvent debtors. [52 v. 38, § 12.] SEC. 513. When an action is rightly brought in this court, a summons shall be issued to any county against one or more defendants at the plaintiff's request. [53 v. 38, § 13.] SEC. 514. This court shall have the same power to vacate or modify its own judgments or orders during or after the term, and to enter judgments by confession, as is vested by law in courts of common pleas. [53 v. 38, The process of this court shall have the seal affixed and SEC. 515. be attested, directed, served, and returned, and be in form as is provided for the process of the court of common pleas, varying only in the style of the court, and to conform, as far as may be necessary, to its terms. [53 V. 38, § 15.] SEC. 516. This court shall have full power to classify and distribute its business as it deems necessary; to make rules and regulations for practice; to appoint masters, receivers, and other officers necessary to facilitate its business, to direct as to the mode of proceeding. by or before such officers, and to tax costs. [53 v. 38, 16.] SEC. 517. All laws now in force, or which may hereafter be enacted, conferring powers, authority, and jurisdiction, in civil cases and other proceedings, upon the courts of common pleas, or district courts, giving them power to hear and determine cases, and to preserve order and S$ 518-522. SUPERIOR COURT OF MONTGOMERY CO. Tit. IV, Ch. 5. punish contempt, regulating their practice and forms of process, prescribing the force and effect of their judgments, orders, or decrees, and authorizing or directing the execution thereof, shall extend to the superior court of Montgomery county, as fully as they extend to the courts of common pleas and district courts, unless the same are inconsistent with this chapter or plainly inapplicable; and the superior court of Montgomery county, in respect to the form and manner of all pleadings therein, and the force and effect of the judgments, orders, or decrees, shall be a court of general jurisdiction; and it shall sign bills of excep- Bills of exceptions, if required, the same as is provided for in trials in the courts of tions. common pleas. [53 v. 38, § 17.] on error in dis SEC. 518. A judgment rendered, or final order made, by the supe- Judgments of the rior court of Montgomery county, may be reversed, vacated, or modi- court reviewable fied, by the district court of that county for errors appearing on the trict court. record. [53 v. 38, § 18.] rior court: how SEC. 519. In Montgomery county there shall be, annually, appor- Jurors for supetioned and selected two hundred and sixteen persons, having the qual- provided and ifications of electors, to serve as grand and petit jurors; and the clerk drawn. of the court of common pleas of the county shall, at least thirty days prior to each term ot this court, unless otherwise ordered by the judge thereof, draw the names of twelve persons to serve as petit jurors therein; and the clerk of the court shall forthwith issue a venire facias to the sheriff of the county, commanding him to summon the persons whose names have been drawn, as aforesaid, to attend as petit jurors at the court-house in Dayton, on the first day of the next term of the superior court. [53 v. 38, § 19.] Powers of judge SEC. 520. The judge of the superior court of Montgomery county, in vacation. in the exercise of the jurisdiction conferred, and in granting remedial writs and orders, shall, in the recess of the court, have the same power and authority as the judges of courts of common pleas. [53 v. 38, § 20]. Removal of causes from common pleas to su perior court. SEC. 521. The parties to any suit at common law, or in chancery or to any civil action or other proceedings originally commenced in the court of common pleas of Montgomery county, and now or at any time hereafter pending therein, of which the superior court of Montgomery county would have jurisdiction if originally commenced therein, may, by written consent, signed by themselves or their attorneys, remove the same to the superior court of Montgomery county. The clerk of the court of common pleas, upon the application to remove, shall make out a statement, under seal, of the docket entries in such case, with a statement of his costs, and deliver the same, with all the original papers in the cause, to the parties or their attorneys, taking their receipt for the same; and upon the filing of the papers, with the written agreement to remove, with the clerk of the superior court, he shall forthwith docket the cause, and the same shall be thenceforth considered in this court, and be proceeded in, as if the cause had been originally commenced in it, having regard to the former proceedings, the agreement to remove, and the costs before accrued, in the final record, as is right and proper; and when such cause is removed from the court of common pleas, as aforesaid, the clerk shall enter such removal on his docket, and thenceforth the cause shall not be considered in that court. [53 v. 38, $ 23.1 SEC. 522. If the judge of the superior court is interested in the When judge has event of any action pending before him, the same shall be removed for expressed an opinion, or is intrial into the court of common pleas of Montgomery county, under an terested. order of the court. [53 v. 38, § 24.] Tit. IV, Ch. 6. PROBATE COURT. $$ 523-524. Where probate court held. 523. Where probate court held: office for, etc. 526. Power to administer oaths and take ac- 527. Jurisdiction acquired excludes other pro- 528. Books to be kept, and indexes thereto. 530. Probate judge shall make entries and 532. Shall be paid by county and recovered of 533. The judge to be clerk, and may appoint 534. Probate judge or his clerk not to practice 535. Matters in which judge interested to be SECTION SEC. 523. There is established in each county of this state a probate court, which shall be held at the county seat, in an office in which shall be deposited and safely kept by the judge of the court all books, records, and papers pertaining to the court; and such office shall be furnished by the county commissioners, and provided with suitable cases What to be kept for the safe keeping and preservation of the books and papers of the therein, and how furnished. Exclusive jurisdiction. court, and also with such blank-books, blanks, and stationery as are required by the judge in the discharge of his official duties. [51 v. 167, S1; 64 v. 72, § 13.] SEC. 524. The probate court shall have exclusive jurisdiction, except as hereinafter provided: First, to take the proof of wills, and to admit to record authenticated copies of wills executed, proved, and allowed in the courts of any other state, territory, or country; and in case of the sickness or unavoidable absence of the probate judge, any of the judges of the court of common pleas may take proof of wills and approve any bonds to be given, but the record of such acts shall be preserved in the usual records of the probate court: Second, to grant and revoke letters testamentary and of administration: Third, to direct and control the conduct and to settle the accounts of executors and administrators, and to order the distribution of estates: Fourth, to appoint and remove guardians, to direct and control their conduct, and to settle their accounts: Fifth, to grant marriage licenses, and licenses to ministers of the gospel to solemnize marriages: Sixth, to make inquests respecting lunatics, insane persons, idiots, and deaf and dumb persons, subject by law to guardianship: Seventh, to make inquests of the amount of compensation to be made to the owners of real estate when appropriated by any corporation legally authorized to make such 524. The common pleas, as a court of probate under the old constitution, had exclusive jurisdiction in probate and testamentary matters, and its orders in that behalf could not be reviewed by certiorari in the supreme court, Gregory's estate, 19 O. 357; that court, as a court of probate, had no chancery jurisdiction. Gilliland v. Seilers, 2 O. S. 223. Under the second section of the act of March 14, 1853 (51 v. 167), the probate court had power, on final settlement with an administrator, to order distribution of moneys in his hands to the persons entitled thereto, and, for this purpose, to determine every disputed question necessary to ascertain the amount due, and enforce payment by execution; but that the court when it went that far exhausted its power, and it could not entertain a petition to enforce the collection as a debt against the estate. McLaughlin v. McLaughlin, 4 Ó. S. 508. The probate court has no authority to cancel the election of a widow, previously made and entered on its journal. Davis v. Davis, 11 O. S. 386. When the clerk of the court of common pleas had the issuing of marriage licenses, in an action by the father of a female against the clerk, for granting a marriage license contrary to the statute, evidence of the bad character of the husband might be received. Whether he is, in all cases where there is a legal impediment, liable if he does not administer an oath, quære: Larwill v. Kirby 14 O. 1. appropriation: Eighth, to try contests of the election of justices of the peace: Ninth, to qualify assignees and appoint and qualify trustees and commissioners of insolvent debtors, control their conduct, and settle their accounts. [52 v. 103, § 2; 75 v. 836, §§ 1, 25.] SEC. 525. The probate court shall have concurrent jurisdiction: 1. In the sale of lands on petition by executors, administrators, and guardians, and the assignment of dower in such cases of sale. 2. In the completion of real contracts on petition of executors and administrators. In allowing and issuing writs of habeas corpus, and determining the validity of the caption and detention of the persons brought before them on such writs. $$ 525-528. Its concurrent jurisdiction. minister oaths, edgments and 4. Of all misdemeanors in the counties specified in section Authorized to adsix thousand four hundred and fifty-four. [75 v. 9, § 3; 75 V. 960, and take acknowl § 1.] SEC. 526. Probate judges may administer oaths in all cases where depositions. oaths are authorized by law; take the acknowledgment of deeds, mortgages, and other instruments of writing required by law to be Jurisdiction acacknowledged, and take depositions in all cases where the same are authorized to be taken by the laws of this state. [51 v. 167, § 4.] SEC. 527. The jurisdiction acquired by any probate court over a matter or proceeding, is exclusive of that of any other probate court, except where otherwise provided by law. [51 v. 167, § 5.] SEC. 528. The following books shall be kept by the probate court, and blank-books for the purpose shall be procured by the county commissioners on the order of the probate judge, at the expense of the County: 1. A criminal record, in which shall be made a fair and accurate entry of all criminal actions instituted in the court, with the proceedings had therein. 2. An administration docket, showing the grant of letters of administration or letters testamentary, the name of the decedent, the amount of bond and names of sureties therein, and containing a minute of the time of filing every paper, and brief note of every order or proceeding relating to the estate, with reference to the journal or record in which the order or proceeding is found. A guardians' docket, showing the name of each ward, (and if an infant, his age, and the name of his father,) the amount of bond and names of sureties therein, and a minute of papers, orders, and proceedings as in preceding clause. 4. A civil docket, in which shall be noted the names of parties to all actions and proceedings: it shall also contain a minute of the time of the commencement of such actions and proceedings, and filing the papers relating thereto, and also a brief note of all orders made in such action, proceeding, or matter, and the time of entering the same. 5. A journal, in which shall be kept minutes of all official business transacted in the probate court, or by the probate judge, in all civil actions and proceedings. 6. A record of wills, in which shall be recorded all wills proved in such court, with a certificate of the probate thereof, and all wills proved elsewhere, with the certificate of probate, authenticated copies of which have been admitted to record by the court. 7. A final record, which shall contain a complete record in each cause or matter of all petitions, answers, demurrers, motions, returns, reports, verdicts, awards, orders, and judgments; which record shall be made up and completed within ninety days after the final order or judgment has been made in any of the matters aforesaid; and he shall also, quired exclusive judge, and how. shall be kept by Tit. IV, Ch. 6. Indexes. Bond. Condition. PROBATE COURT. $$ 529-530. within thirty days after the return of the same, record all inventories, sale bills, and allowances to widows, in a book provided for that purpose. 8. A record of accounts, which shall contain an entry of the appointment of executors, administrators, and guardians, and all partial and final accounts of the same, and the orders and proceedings of the courts thereon, within sixty days after the filing and approval thereof. 9. An execution docket, in which shall be entered a memorandum of all executions issued by the probate judge, both in civil and criminal cases, stating the names of the parties, the name of the person to whom delivered, and his return thereon: It shall also contain the date of issuing the execution, and the amount ordered to be collected, stating the costs separately from the fine or damages, and the payments thereon, and the satisfaction thereof, when the same is satisfied. 10. A marriage record, in which shall be entered all licenses issued, the names of the parties to whom, the name of the person or persons applying for the same, with a brief statement of any facts sworn to by such person, and the return of the person solemnizing the marriage. 11. A record of bonds, in which shall be recorded all bonds of executors, administrators, guardians, trustees, and assignees which have been taken and approved by him. 12. A naturalization record, in which shall be entered the declaration of intention of the person seeking to be naturalized, the oath of the person naturalized, and the affidavit or oath of witnesses who may testify in his behalf, in which affidavit shall be stated the place of residence of such witnesses. To each of these books shall be attached an index, securely bound in the volume, which shall at all times be kept up with the entries therein, and refer to such entries, alphabetically, by the names of the parties or persons in which it is originally entered, indicating the page of the book where the entry is made. [51 v. 167, § 12; 38 v. 146, § 244; 75 v. 9.] V. SEC. 529. Before any probate judge enters upon the discharge of his duties, he shall give a bond to the state, with sufficient security, to be approved by the board of county commissioners of the proper county, or, in the absence of any two of the commissioners from the county, by the auditor and recorder of the proper county, in any sum not less than five thousand dollars, to the effect that he will faithfully pay over all moneys that are by him received in his official capacity, that he will enter and record all the orders, judgments, and proceedings of the court, and faithfully and impartially perform all the duties of his office; which undertaking, with his oath of office indorsed thereon, shall be deposited with the county treasurer; and such additional undertaking may be required by the county commissioners from the probate judge, Shall be filed with from time to time, as the state of business in his office renders necessary. [51 v. 167, § 6.] treasurer. On probate judge taking his office he shall make all entries, records, etc., omitted by his predecessor. SEC. 530. If, when a probate judge, whether elected or appointed, enters upon the discharge of his duties, proper and necessary entries and records of the business, or any portion thereof, transacted in the court, during the continuance in office of any former judge thereof, had not been made, as required by law, by the probate judge whose duty it was to make such entries or records, the probate judge shall make, in the respective books of his office, the proper records, entries, and indexes, so omitted by his predecessor or predecessors in office; and when so made, they shall have the same validity, force, and effect, as though they had been made at the proper time, as prescribed by law, and by the officer whose duty it was to make them; and such probate judge shall sign all entries and records made by him, as aforesaid, as |