Marvin v. Trout

The plaintiff in error in these cases seeks to review the judgments of the supreme court of Ohio, affirming judgments recovered against him by the defendant in error in one of the circuit courts of Ohio. The two cases involve the same question, which relates to the validity of the sections of the statute of the state of Ohio in regard to gambling, known as §§ 4270, 4273, and 4275 of the Revised Statutes of that state. The sections are set forth in the margin.

The defendant in error commenced these actions in the court of common pleas of Hancock county, under § 4275, for the purpose of making certain judgments, recovered by her against other parties, a lien on the property of the plaintiff in error to the extent of those judgments. The defendant demurred to the petition in each case. One of the grounds of demurrer was that the petition showed a former judgment in favor of defendant for the same cause of action. The demurrers were sustained, and judgments to that effect were affirmed on error by the circuit court; but the supreme court reversed them and remanded the cases for further proceedings. 62 Ohio St. 132, 56 N. E. 655. The defendant then answered, and the cases went to trial in the common pleas, where plaintiff recovered judgments in her favor. On appeal in each case, to the circuit court of Hancock county, a trial was had de novo, which resulted in judgments in favor of plaintiff (24 Ohio C. C. 333), which were affirmed, without any opinion, by the supreme court of Ohio. 70 Ohio St. 437, 72 N. E. 1161, 1162. The defendant below has brought the cases here by writs of error.

The following are the facts upon which the questions arise: At the March term, 1895, of the court of common pleas for Hancock county, the defendant in error brought her action under the above § 4273, to recover from the defendants in that suit, who were named Clifford, Gassman, and Marvin (the last named being this plaintiff in error), monevs alleged to have been lost by the plaintiff's husband in gambling (and won by them) between the 20th day of March, 1893, and the 19th day of March, 1894. She subsequently brought another action at the September term, 1896, in the same court of common pleas, against the same parties, to recover moneys alleged to have been so lost and won between March 19 and June 19, 1894. In the first action she recovered $3,473 and costs against all three defendants, and in the second she recovered $1,300 and costs against the same defendants. Those judgments were subsequently reversed on error, by the circuit court, as to Marvin, and affirmed as to the other defendants.

The plaintiff below then commenced these actions in the court of common pleas of Hancock county against the defendant Marvin as the owner of the premises in which the gambling was carried on, to make the judgments theretofore obtained by her against Clifford and Gassman a lien upon the building of which Marvin, the defendant, was the owner, on the ground that he knowingly permitted the same to be used by them for gambling purposes. The petition in each case stated in substance the ownership by defendant Marvin of the property where the gambling was carried on; that Clifford and Gassman carried on gambling there in violation of law; that the defendant knowingly permitted his building to be so used. The petition then alleged the recovery of a judgment by plaintiff against the defendants Clifford, Gassman, and Marvin, for the amount stated in the judgment; that the action was brought pursuant to § 4273 of the Revised Statutes of Ohio, to recover from the defendants money staked and betted by plaintiff's husband, and the judgment recovered was for the amount found by the court to have been staked and betted by plaintiff's husband and won by the defendant; that the judgment was, on error, reversed as to Marvin, but affirmed as to the other defendants, and that the judgment remained in full force as to them, and was wholly unpaid; that the said games of chance, 'on which said money was staked and betted and lost' by plaintiff's husband, to the defendants Clifford and Gassman, were played at the rooms in defendant Marvin's building, and while defendant knowingly permitted the same to be used by them for such purpose. The prayer was to have the judgment declared a lien on the building, and that it be sold, etc.

The defendant, in his answer in each case, admitted the ownership of the premises at the times alleged in the petition, and also the recovery of the judgment as stated in the petition, and that such judgment as to the defendant Marvin was reversed, and the defendant denied the other allegations in the petition. He subsequently filed an amended answer setting up the Ohio statute of limitations. The cases were tried substantially as one case in the common pleas, and resulted in judgments in favor of the plaintiff. Upon appeal to the circuit court a retrial of the case was had. 24 Ohio C. C. 333. On that trial it was admitted that at the times mentioned in the petition the premises described therein were used for gambling purposes by Clifford and Gassman, that they are the same premises in which the money described in judgment or represented by the judgments set up in the petition are claimed to have been lost, but, not admitting that plaintiff's husband, in fact, gambled with Clifford and Gassman between March 19, 1893, and June 20, 1894, it is admitted, for the purposes of this action, that if he did, such gambling was done in the building and upon the premises of the defendant described in the petition. It was also conceded that the judgments were rendered against Clifford and Gassman, and that they occupied no other premises, and conducted no gambling during the periods specified in the petition except upon the premises described in the petition In the course of the trial, the judgments against Clifford and Gassman were offered and received in evidence, under a general objection on the part of the defendant Marvin.

The plaintiff also proved, outside the record of the Clifford and Gassman judgments, by a witness called by her, the fact of the gambling, and the amount lost, and the place where it was lost. The witness having stated that he had lost the money to the full amount represented by the judgments, in gambling, was asked to state whether he had lost it at Clifford and Gassman's. This question was objected to at the very moment that the witness answered that he had, the objection being as follows: 'Counsel on behalf of defendant Marvin objected to the above answer and moved the court to strike out so much of the answer as relates to the fact and the extent of the loss, on the ground that it is not alleged in the petition, and is not an issue of fact in the case. Which motion the court overruled, to which ruling of the court the defendant then and there excepted.'

The witness then again stated, under this objection, that the moneys were lost at gaming in this building, and were represented by these judgments, and that the moneys said sections of said statutes and the Clifford and Gassman's.

There was also evidence given on the trial tending to prove that the premises were not only used by Clifford and Gassman for gambling purposes during the times mentioned in the petition, but that such user was with the knowledge of the defendant Marvin, and that he knowingly permitted the same.

Upon the trial the defendant gave no evidence.

The circuit court, in giving judgment for the plaintiff, found these facts, and stated (24 Ohio C. C. 333) that in an action under § 4275, to subject the premises where the gaming was carried on and the money lost, to the payment of a judgment recovered against the winner, such judgment, when not impeached for fraud or collusion, was conclusive that the moneys lost and winnings secured, which caused the plaintiff's injury, were lost in gaming, and were won by the defendant in the judgment; that the same were won and lost in violation of law, and that the plaintiff, in consequence thereof, sustained damages to the amount of the judgment; that such judgments as to these facts are not open to dispute by the owner of the premises, in an action against him under that section.

The defendant Marvin then brought the cases by writs of error to the supreme court of the state for review, where they were affirmed, without any opinion; but some weeks after the mandate to the court below had been issued from the supreme court, that court, on motion of the plaintiff in error, ordered what is termed a 'journal entry' to be made, as follow:

Journal Entry.

Whereupon, on motion of said plaintiff in error, William Marvin, the court order it to be certified and made part of the record of this case and of the judgment of affirmance heretofore entered herein, that this action is founded upon sections forty-two hundred and seventy-three (4273) and forty-two hundred and seventy-five (4275) of the Revised Statutes of Ohio on the subject of gaming.

It is further certified that said plaintiff in error set up in his petition in error, asking the reversal of the judgment of the circuit court of Hancock county, Ohio, that said section of said statutes and the proceedings of said circuit court had thereunder were repugnant to section one, article fourteen of the amendments to the Constitution of the United States, and repugnant to article one, section nine, and article one, section ten, and section three of article three of said United States Constitution. Also that said sections of said statutes and the proceedings had thereunder were claimed and set up by plaintiff in error to be an invasion of his private right of property, in violation of said Constitution and amendments. That said judgment of affirmance was in favor of the validity of said statutes and of said proceedings had thereunder, and that they were not repugnant to any of the provisions of said Constitution or of the amendments thereto.

Mr. George F. Pendleton for plaintiff in error.

[Argument of Counsel from pages 218-220 intentionally omitted]

Mr. John Poe for defendant in error.

Statement by Mr. Justice Peckham:

[Argument of Counsel from pages 220-222 intentionally omitted]

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: