and once in fulfillment of its duty as the entered at the Appellate Division. We think county paper. The concession is that: "No one of said laws was inserted, printed, or appeared more than once or in more than one issue of said newspaper." There has thus been a single service, and a double reward. The statutes do not justify that outcome. We perceive no reason why the same paper if designated both as the state and as the county paper, may not thereafter, by publishing the statutes twice, earn a compensation in each capacity. There must, however, be a twofold service. The Legislature did not intend that the designation should be made use of as an honorary title, yielding new emoluments without the burden of added duties. it embodies new findings in such a form as to satisfy the requirements of the rule laid down in Bonnette v. Molloy, 209 N. Y. 167, 102 N. E. 559. [7] The defendant also assigns as error the ruling that the people were entitled to recover the excessive payments for 10 years previous to the date when the action was begun. We think that period of limitation, which is prescribed by section 1973 of the Code of Civil Procedure is applicable to this case. The judgment should be affirmed with costs. WERNER, HISCOCK, CHASE, COLLIN, and HOGAN, JJ., concur. MILLER, J., not sitting. Judgment affirmed. (90 Ohio St. 110) CHILDREN'S HOME OF MARION COUN- MISSAL. Where a judgment is rendered against two or more parties, they may unite in prosecuting dismissed as to them by the reviewing court, error, and the proceeding in error will not be although it appear that a stranger to the judgment has joined with them in the petition in error in asking for a review of the judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 784.*] CONCLUSIVENESS ATTACK-JUDGMENT [6] We cannot sustain the defendant's argument that the approval of its bills by the comptroller is an audit which bars the state from the recovery of the illegal payments. We are not dealing with such a problem as would be before us if some question of fact in respect of the performance of the services or their value had been the subject of genuine dispute. In such a case the determination by the comptroller might in the absence of fraud or collusion be controlling upon the 1. APPEAL And Error (§ 784*)-PARTIES-DIScourts. People v. Sutherland, 207 N. Y. 22, 100 N. E. 440. In the case at bar there was no such dispute. There is none now. It is conceded that there was one publication and one only. In such circumstances it was beyond the power of an executive officer of the state by any audit of the claim to render the payment legal. The auditing officer, so far as the record shows, did not know that there had been a single publication. The presentation of separate bills, accompanied by a sworn statement that the services had been rendered, was equivalent to a representation that there had been a separate publication. But if the truth had been known, the effect of the audit would not for that reason be enlarged. The public funds may not be gratuitously distributed at the will of any officer. Village of Ft. Edward v. Fish, 156 N. Y. 363, 374, 50 N. E. 973. It might as well be urged that a second payment of the same bill would be protected if a comptroller, knowing that it was a second payment, deter-ward of the juvenile court, and it has been comWhere a delinquent child has become a mined to allow it. In the present case both mitted to an institution, under the provisions the public officers who approved the bills and of the General Code relating to the juvenile the defendant which presented them acted in court, a proceeding in habeas corpus by a parent against the institution or its officers for the good faith. None the less, the conceded custody of the child will not lie. facts demonstrate that the double payment was illegal, and no audit by any public officer could make it anything else. People ex rel. Smith v. Clarke, 174 N. Y. 259, 66 N. E. 819; People ex rel. Coughlin v. Gleason, 121 N. Y. 631, 25 N. E. 4; Board of Supervisors, Richmond County v. Ellis, 59 N. Y. 620; People ex rel. McSpedon v. Stout, County Treasurer, 4 Abb. Prac. 22; Haswell v. Mayor, etc., of N. Y., 81 N. Y. 255; Osterhoudt v. Rigney, 98 N. Y. 222, 233. 2. JUDGMENT (§ 472*) juvenile courts under the provisions of section [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 908; Dec. Dig. § 472.*] 3. HABEAS CORPUS (§ 99*)—RIGHT TO REMEDY -JUVENILE DELINQUENT. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.*] Error to Court of Appeals, Marion County. Habeas corpus by Minnie Fetter against the Children's Home of Marion County, and others. Judgment for plaintiff on appeal to the Court of Appeals, and defendants bring error. Reversed and remanded. Minnie Fetter, on April 23, 1913, filed an application in the Court of Appeals of MarThe defendant criticizes the form of order ion county in which she represented that she For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes was the mother of Howard Fetter, a minor 9 | ty, abandoning said child, who was a ward years of age; that she was entitled to his of the court under an order made as to care, custody, that she was unlawfully deprived protection, and custody; that he (the father) thereof; and that said minor was restrained had in every way abided by said order; that of his liberty by Sylvester Hurr, superintend- the mother had wholly disregarded the same; ent of the County Children's Home of Marion that she had removed to the city of Sanduscounty, Ohio, at which home he was unlaw- ky, Ohio, where she was working in a launfully detained. She asked that a writ of dry, rooming with a family, and being in no habeas corpus be issued, and that said How- position to care for or in any way to look aftard Fetter be discharged from said illegal re-er the child, and showed by leaving him that straint. To this application was attached, as an exhibit, a certified copy of the record of the proceedings theretofore had in the probate or juvenile court of Marion county "in the matter of Howard Fetter, a minor under 17 years of age and a juvenile delinquent," including the order of the juvenile court committing Howard Fetter to the Children's Home of Marion county. It appears from this exhibit: That on March 12, 1912, the truant officer of the city of Marion filed in the juvenile court an affidavit setting forth that Howard Fetter appeared to be delinquent or neglected, and that thereupon he and William P. Fetter and said Minnie Fetter, his parents, were duly cited to appear in court. That on March 17, 1912, the juvenile court made the following order: "March 13, 1912. This day this case came on for hearing. The said child was brought before the court, and it appearing that the citation heretofore issued has been duly served, and that all persons interested are now before the court. And the judge, having heard the evidence and being fully advised in the premises, finds that said Howard Fetter is under the age of 17 years to wit, about the age of 9 years-and is a delinquent child, as alleged in the petition; that he is incorrigible, and by his conduct in school interferes with the progress thereof and with his own educational welfare, due to the estrangement between W. P. Fetter, his father, and Minnie Fetter, his mother, and therefore comes into the custody of the court, and will continue for all necessary purposes of discipline and protection a ward of the court, until he shall attain the age of 21 years. There, upon motion of the father and agreed to by the mother, it is ordered that until the further order of the judge the said child is permitted and ordered to make his home with his father on Monday, Tuesday, Wednesday, and Thursday of each week, and with his mother the remainder of the week, Friday, Saturday, and Sunday, and stand subject to such other discipline, disposition, and conditions as may be imposed by the judge during its term of probation; and so long as such child shall, in the opinion of the judges, comply with the conditions and terms of its probation, final judgment herein, or final commitment to any other place, person, or institution is hereby stayed and suspended, such suspended judgment, however, to be subject to the direction and conditions imposed by the judge for such time as, in the opinion of the judge, such child has been sufficiently corrected of its delinquency and final judgment entered herein, otherwise committing or disposing of the custody of such child or discharging it from any further control by the judge in this cause." she was little concerned about his care, custody, or welfare. He asked the court to modify the order of March 13, 1912, in such respect as to the court seemed just and for the best interests of the child. It further appears from this exhibit that upon March 28, 1913, the following order was entered on the record of the juvenile court: "March 28, 1913. This day this cause came on to be heard upon the motion of William P. Fetter, praying for a modification of the order heretofore made on the 13th day of March, 1912, wherein the time of custody of said child, Howard Fetter, was divided between the father and mother, who were separated and living apart, and. it appearing that all parties interested are now before the court. And the judge, having heard the evidence and being fully advised in the premises, finds that said former order of is, modified; it further appearing to the judge March 13, 1912, should be, and the same hereby that because of the estrangement of the parents it would now be to the best interests of said child to remove him from the custody of both William P. Fetter and Minnie Fetter, his parents. It is therefore ordered and adjudged that said child, Howard Fetter, be committed to the Marion County Children's Home, Marion, Ohio, to be there received, cared for, educated, and kept, subject to the control of, and until discharged by, the proper authorities of said institution, or until further orders of this court upon the proper adjustment of the differences of said parents. It is further ordered that William P. Fetter pay to the superintendent of said Marion County Children's Home weekly for his keeping therein, and that a warrant to convey issue to S. N. Titus, probation officer, to convey said child to said institution, and that due return thereof be made to this office." That the said Howard Fetter, on March 29, 1913, upon a warrant issued for that purpose, was delivered to the Children's Hometo the superintendent thereof. Upon the filing of the application of Minnie Fetter, a writ of habeas corpus was issued by the Court of Appeals commanding the sheriff of the county to take the child imprisoned and restrained of his liberty by Sylvester C. Hurr, superintendent of the Children's Home, and have said child before said court, and to summon Sylvester C. Hurr, to appear to show the cause of the taking and detention of said child. A copy of the writ was served upon the superintendent of the Children's Home, and on May 3, 1913, he filed an answer to the complaint of Minnie Fetter, which answer consisted of five defenses. That on March 26, 1913, William P. Fetter, In the first defense he averred that the comthe father of the child, filed a motion in the plaint or so-called affidavit in habeas corpus juvenile court asking for a modification of did not state facts sufficient to warrant a this order, in which motion he represented writ or any order or judgment. In the second that several weeks prior to March 26, 1913, | defense he averred that the Court of Appeals On May 16, 1913, the Court of Appeals ordered that the determination of the cause be reserved for twenty days, to afford opportunity for application for a modification or vacation by the probate or juvenile court of Marion county, Ohio, of its order of March 28, 1913, touching the custody of Howard Fetter, or to the trustees of the Children's Home for the parole or discharge of the child from the home. On June 18, 1913, the cause was heard on the petition and the evidence, and the Court of Appeals found that Howard Fetter was unlawfully detained by the officers and agents of the Children's Home of Marion county, and that Minnie Fetter was entitled to his custody. It was ordered that Howard Fetter be forthwith discharged from such detention; that Minnie Fetter, the mother, have his custody; that said officers and agents of the Children's Home deliver said child to Minnie Fetter, and that the Children's Home pay the costs of the proceeding. in habeas corpus proceedings. In the third de-swers are practically identical with the anfense he averred that upon the face of the rec- swer of the superintendent of the Children's ord habeas corpus proceedings could not be Home. No replies were filed to these anmaintained. In the fourth defense he denied swers. that he was then or ever had been unlawfully restraining Howard Fetter of his liberty, and denied that Minnie Fetter was entitled to the custody of the child. In the fifth defense he set out, in substance, the proceedings had in the juvenile, court, a certified copy of the record of which was attached to the application filed by the mother, and averred further that several months after the order and decree of March 13, 1912, Minnie Fetter, who was then living separate and apart from her husband, left Marion county and took up her abode in Sandusky city, Erie county, Ohio, where, in the month of December, 1912, she instituted a proceeding in divorce against her husband, in which she asked for alimony and the custody of the child, and that on March 24, 1913, said proceeding was heard in the court of common pleas of Erie county, and that court ordered that Minnie Fetter should have the sole and exclusive custody of the child. He further averred that neither the sheriff of Marion county, nor said juvenile court, nor said Children's Home, or the superintendent thereof, were parties to said divorce and alimony proceedings; that the only parties to the suit were Minnie Fetter and William P. Fetter, and that by virtue of the premises said court of common pleas had no jurisdiction or authority to make any order respecting the custody and control of the child; that said Minnie Fetter did not at any time, prior to the decree of the common pleas court of Erie county respecting the custody of the child, make known to said court that the juvenile court of Marion county had prior to that time assumed and retained the jurisdiction and authority over said child. Said superintendent further averred that the orders and decree of the juvenile court were in full force and effect; that the same had not been stayed or appealed from; that no proceedings had been instituted to reverse, modify, or change the same; that said Minnie Fetter had at no time made application to the juvenile court to alter or modify its order or to place the child in her custody; that he had the custody of said child as superintendent of the Children's Home of Marion county, by virtue of a commitment paper under seal of the probate or juvenile court of Marion county, and that said custody was legal and lawful by virtue of said commitment, and that by reason thereof Howard Fetter was not restrained by him as such superintendent unlawfully or illegally. He asked that said habeas corpus proceeding be dismissed, and that the custody of said Howard Fetter be continued in him as such superintendent. Answers were filed by John C. Francis, the sheriff of Marion county, and William P. Fetter, the father, on the same date, which an A motion for a new trial was filed by the Children's Home and its superintendent, which was overruled. A bill of exceptions was taken in which it is certified by the Court of Appeals that on the hearing and trial of the cause "it was admitted by the respondent as a fact that the said Minnie Fetter would be a fit and suitable person to have the custody and control of the said child, Howard Fetter; and plaintiff introduced no other evidence in the cause, and respondent introduced no other or further evidence, in the cause, and thereupon both sides rested, and the foregoing was all the evidence introduced on the hearing of said cause." The Children's Home of Marion county, Sylvester C. Hurr, as superintendent of said home, and William P. Fetter, the father, filed a petition in error in this court in which they ask that the judgment of the Court of Appeals be reversed, and that final judgment be rendered in their favor. After the filing of the printed record in this court, counsel for Minnie Fetter filed a motion to dismiss this action and this proceeding in error and the petition in error, for the reason that there is a misjoinder of parties plaintiff in error; that the several causes of action are improperly joined; and that the petition in error does not state facts which constitute a cause of action. sideration of this motion was reserved until the disposition of the case on its merits. A con Homer Johnson, Pros. Atty., of Marion, and Finley & Gallinger, of Bucyrus, for plaintiffs in error. H. L. Peeke, of Sandusky, for defendant in error. NEWMAN, J. (after stating the facts as above). [1] Counsel in support of their motion to dismiss this proceeding rely upon court and would continue for all necessary Chapman Mfg. Co. v. Taylor, 61 Ohio St. 394, purposes of discipline and protection a ward 55 N. E. 1003. There separate judgments of the court until he attained the age of 21. were rendered against separate parties on sep | In section 1644 a "delinquent child" is definarate causes of action in favor of the same ed, and includes, among others, a child under party. The parties against whom such sep- 17 years of age that is incorrigible. Section arate judgments were rendered united in 1643, prior to the amendment of April 28, prosecuting error. The court held that there 1913, was as follows: was a misjoinder of parties plaintiff and dismissed the proceeding in error. The law of that case does not apply here, where the judgment was rendered against the Children's Home and its superintendent-neither separate judgments nor judgments based upon separate causes of action. There is no reason why these two parties may not unite in a proceeding for a review of this adverse judg-court, on motion of the father, agreed to by ment. But it is claimed that W. P. Fetter is not entitled to become a party to this proceeding, because no judgment was rendered against him. Conceding this, his joining in the petition here does not invalidate the proceeding in error as to the other two parties. The petition in error is in usual form. It recites the rendition of the judgment and assigns the several errors upon which the parties rely. Then follows the prayer for a reversal and for final judgment in favor of plaintiffs in error. This proceeding, so far as the Children's Home and its superintendent are concerned, is properly here, and the motion to dismiss is therefore overruled. [2, 3] Counsel for plaintiffs in error challenge the judgment of the Court of Appeals upon the grounds that the complaint in habeas corpus was insufficient, and that the Court of Appeals had no jurisdiction of the subject-matter. The contentions of counsel for Minnie Fetter, the mother, are: That the juvenile court never had jurisdiction. That if it had, it lost it, because it could make but one of two orders. It could commit the boy to the Children's Home, or it could discharge him. It had no authority to divide the custody of the boy between the parents. That if the juvenile court had jurisdiction, its rights were wholly subordinate to the right of either parent if fit, able, and willing to care for the child. That the court of common pleas of Erie county had exclusive jurisdiction of the parties and subject-matter and custody of the child. An affidavit as authorized by section 1647, General Code, was filed by the truant officer of Marion in the probate court, acting as a juvenile court, with the jurisdiction and powers conferred upon it by section 1639 et seq. A citation was issued to W. P. Fetter and Minnie Fetter, the parents having the custody and control of the child, as required by section 1648. On March 13, 1912, the child was brought before the court, evidence was heard, and a finding was made that he was under the age of 17; that he was incorrigible; that he was a delinquent child; "When a child under the age of seventeen years comes into the custody of the court under continue for all necessary purposes of discipline the provisions of this chapter, such child shall and protection, a ward of the court, until he or she attains the age of twenty-one years. The tinue until the child attains such age." power of the court over such child shall con On March 13, 1912, by order of the juvenile make his home with his father on certain the mother, Howard Fetter was permitted to days of the week and with his mother on the remaining days; also to stand subject to such other discipline, disposition, and conditions as might be imposed by the judge during the term of probation. It was further ordered that so long as the child should, in the opinion of the judge, comply with the conditions and terms of the probation, final judgment or final commitment to any other place, person, or institution be stayed and suspended, such suspended judgment, however, to be subject to the directions and conditions imposed by the judge, "for such time as, in the opinion of the judge, such child has been sufficiently corrected of its delinquency and final judgment entered herein, otherwise committing or disposing of the custody of such child or discharging it from any further control by the judge in this cause." Counsel for the mother insist that the juvenile court had no authority to make this order; that it could commit the child to the Children's Home or discharge it. We cannot agree with counsel; for, under the provisions of section 1652, General Code, the court is authorized to make temporary provision for a child such as was made bere, subject to be returned to the judge for further proceedings whenever such action might appear necessary. Such action was necessary in this case, as shown by the records of the juvenile court in its finding of March 28, 1913, and it is immaterial that the matter was brought to the attention of the juvenile court by the father of the child after the decree in the divorce proceeding. The court speaks by its record, and it appears that all parties interested were before the court, that the court heard evidence on the subject, and was convinced that there should be a modification of its former order in reference to the custody of the child. It did not, however, change its finding that the child was a delinquent. It found that on account of the estrangement of the parents it would be to the best interests of the child to remove it from their custody, and it committed it to the Marion County Children's Home, to be kept subject to the control of and until discharged by the proper adjustment of differences of said parents. This order of the court, at the time of the proceeding in habeas corpus, was unreversed and unmodified, and was in full force and effect. The proceeding in Erie county was one in divorce, and the only parties there were Minnie Fetter and W. P. Fetter. As between them, the common pleas court may have had the authority to determine which of the two was entitled to the custody of the child, but its order in no way could affect the order of the juvenile court under which, on March 13, 1912, the child became a ward of the juvenile court to continue as such until the age of 21. Exclusive jurisdiction of the child and of the subject-matter was acquired by the juvenile court several months prior to the proceedings in divorce and was a continuing jurisdiction, and that the order of commitment to the Children's Home was made subsequently to the decree in divorce in Erie county is wholly immaterial. As required by section 12164, General Code, a copy of the commitment of Howard Fetter to the Children's Home was exhibited to the Court of Appeals with the complaint of Minnie Fetter, the mother. The exhibit attached to the complaint contained not only a copy of the commitment, but a certified copy of the entire proceedings had in the juvenile court. It appeared then to the Court of Appeals that Howard Fetter, alleged to be restrained of his liberty, was in the custody of the Children's Home by virtue of an order of a court of record. This case, as we view it, does not support the contention of counsel, but is, we think, an authority against their position. The court there held that the jurisdiction of the court of common pleas of the subject of the custody of children in divorce cases is a continuing jurisdiction. In the case at bar, under the provisions of section 1643, General Code, Howard Fetter came into the custody of the juvenile court, and the power of that court over him was continuing until he attained the age of 21 years. An independent proceeding in another court, even of higher jurisdiction, cannot be maintained to affect this order of a court of record and competent jurisdiction. No finding of facts was made by the Court of Appeals. Counsel therefore insist upon the application of the rule announced in Mc Grath v. Cowen, 57 Ohio St. 385, 49 N. E. 338: the record does not show an agreed statement or "Where, in a proceeding in error in this court, finding of the facts, but there is a bill of exceptions purporting to contain all the evidence, and the reversal of the judgment is sought on the ground that the undisputed facts, or those proven by uncontroverted testimony, require its reversal, it will be presumed, in support of the judgment, that all facts necessary to sustain it, which the evidence fairly tends to prove, were established to the satisfaction of the court whose judgment is under review." This rule has no application here. The only evidence in the case at bar was an admission by the respondent that Minnie Fetter would be a fit and suitable person to have the custody and control of the child. ConAs has been repeatedly held by this court, ceding this to be true, in view of the finding the probate courts of this state are courts of the juvenile court this fact could not conof record, and their records import verity. fer jurisdiction of the subject-matter on the Their judgments are binding and conclusive, Court of Appeals. It would not authorize where there is no fraud, and when it appears that court to nullify completely the action of that there was jurisdiction of the person and the juvenile court. The Court of Appeals the subject-matter. The proceedings in the recognize the jurisdiction of the juvenile probate court of Marion county, acting as a court over the subject-matter, for its order juvenile court were regular, and it had ju- was reserved to afford opportunity for an risdiction to make the order of commitment. application for a modification or vacation by We are of the opinion that the Court of Ap- the juvenile court of its order of March 28, peals was without authority to allow the 1913, or to the trustees of the Children's writ of habeas corpus; for, under the pro- Home for the parole or discharge of Howard visions of section 12165, the writ shall not be Fetter. It does not appear whether such apallowed when it appears that the person al-plication was made. But by the final order leged to be restrained of his liberty is in of the Court of Appeals the child was disthe custody of an officer by virtue of a judgment or order of a court of record, and that the court had jurisdiction to issue the process, render the judgment, or make the order. Hoffman v. Hoffman, 15 Ohio St. 427, is cited by counsel for the mother. In that case it was held: "Where a court of common pleas, on rendering a decree of divorce, further decree the 'custody, care, and control' of the minor children of the marriage to one of the parties, a probate court, while such decree remains in force, cannot, as between the parties to the decree, legally interfere with the custody so decreed, either by habeas corpus or letters of guardianship." charged from the institution and awarded to the custody of the mother. Counsel claim that "no fault was charged against Howard Fetter, but against the parents of the boy." In view of the express finding of the juvenile court, such a claim is, we think, not tenable. That court found expressly that the child was incorrigible, and therefore a delinquent. True, it found that this delinquency was due to the estrangement between the parents, when it made its original order on March 13, 1912, and when the modification of the order was made there was a finding that this condition still existed. Yet there was a posi |