Marvin v. Trout, 199 U.S. 212 (1905)

Marvin v. Trout

Nos. 19

, 20

Argued October 24-25, 1905
Decided November 13, 1905
199 U.S. 212

ERROR TO THE SUPREME COURT

OF THE STATE OF OHIO

Syllabus

A certificate of the presiding judge of the state court made after the decision to the effect that a federal question was considered and decided, cannot confer jurisdiction on this Court where the record does not otherwise show it to exist.

When the court makes such a certificate and orders it to be attached to and form part of the record itself, it may be sufficient to show that federal questions were before the state court decided by it so that this Court may pass upon those questions which are specified, but the statement that the plaintiff in error made a general contention that the statute involved and proceedings thereunder were an invasion of his private rights in violation of the Constitution is too vague to raise any federal question.

The suppression of gambling is within the police power of the state, and it may make a judgment against those winning the money a lien upon property owned by another and in which the gambling is conducted with the knowledge and consent of the owner, and such a statute does not deprive the owner of his property without due process of law.

Such a statute does not deprive the owner of the property upon which the judgment is made a lien of his property without due process of law because it does not provide for trial by jury in the action to enforce the lien.

The state can give the whole or any part of the amount recoverable under such a statute to the informer.

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. 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. 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 section 4273 to recover from the defendants in that suit, who were named Clifford, Gassman, and Marvin (the last named being this plaintiff in error), moneys alleged to have been lost by the plaintiff’s husband in gambling (and won by them) between the twentieth day of March, 1893, and the nineteenth 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 section 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 were lost as stated in the petition, and at 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 section 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 follows:

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.