court, which entry shall be evidence of such service. [51 v. 57, 22 305, 587; S. & C. 1034, 1129.] 24959. Writs to issue on precipe. All writs and orders for provisional remedies, and process of every kind, shall be issued by the clerks of the several courts; but before they are issued a precipe shall be filed with the clerk demanding the same. [51 v. 57, ? 584; S. & C. 1129.] The clerk is not bound to issue process without a written precipe. 60. 150 4960. Clerk to file and preserve papers. The clerk shall file together, and carefully preserve in his office, all papers delivered to him for that purpose, in every action or proceeding. [51 v. 57, 2 585; S. & C. 1129.] A paper is considered filed when delivered to and received by the proper officer, 43 O. S. 57; when placed in the clerk's office and either strung upon a thread or laid in a drawer or pigeonhole, 4 O. 88. The indorsement by the clerk is but evidence of such filing, 43 O. S. 57. ? 4961. Clerk's indorsement of papers filed. The clerk shall indorse upon every paper filed with him the date of the filing thereof; and upon every order for a provisional remedy, and upon every undertaking given under the same, the date of its return to his office. [51 v. 57, 2586; S. & C. 1129.] 4 0.88; 43 O. S. 57. 24962. Clerk to keep books and make records. The clerk shall keep the journals, records, books, and papers appertaining to the court, and record its proceedings. [51 v. 57, 588; S. & C. 1129.] See 1 O. 268; 5 O. 486; 6 O. 409; 1 C. C. R. 28, 30. 4963. Record of orders out of court. Orders made out of court shall be forthwith entered by him in the journal of the court, in the same manner as orders made in term. [51 v. 57, 2 510; S. & C. 1099.] The clerk should minute on the journal the receipt of a mandate from the supreme court, its judgment, and order for execution, 6 O. 409; 2 O. S. 98. 24964. Provisions applicable to all clerks. The provisions prescribing the duties of clerks of the court of common pleas shall, so far as they are applicable, apply to the clerks of other courts of record. [51 v. 57, 589; S. & C. 1129.] It is the practice of the clerk of the supreme court of the state to enter mandates from the U. S. Supreme Court, 6 O. S. 342. 24965. General provisions as to duties of clerks. The clerk of each of the courts shall exercise the powers conferred and perform the duties enjoined upon him by statute and by the common law; and in the performance of his duties, he shall be under the direction of his court. [51 v. 57, 590; S. & C. 1129.] The court has power to direct the clerk to correct errors in the records and files, 8 O. S. 201. 24966. Sheriff to indorse on writ time of its receipt. The sheriff shall indorse upon every writ or order the day and hour it was received by him. [51 v. 57, ? 591; S. & C. 1130.] ? 4967. When process directed to coroner, or other person. Process in an action wherein the sheriff is a party, or is interested, shall be directed to the coroner; and if both these officers are interested, the process shall be directed to, and executed by, a person appointed by the court or judge. [51 v. 57, 582; S. & C. 1128.] 24968. Person appointed to serve process. The court or judge may, for good cause, appoint a person to serve a particular process or order, who shall have the same power to execute it which the sheriff has; the person may be appointed on the motion of the party who obtains the process or order, and the return must be verified by affidavit; and he shall be entitled to the fees allowed to the sheriff for similar services. [51 v. 57, 583; S. & C. 1128.] 4969. Sheriff may adjourn court when judges absent. If the judge of the common pleas court, or a quorum of the judges of the circuit court, fail to attend at the time and place appointed for holding the court, or if, after the calling of the court, the judge of the common pleas court or a quorum of the judges of the circuit court are unable, on account of sickness, or from any other cause, to attend the daily sessions thereof, the sheriff shall adjourn the court from day to day, until the judge of the common pleas court attends or a quorum of the circuit court is convened; but if the judge or judges be not present within three days after the first day of the term, or if, after the court is called, such judge or judges are unable, on account of sickness, or from any other cause, to be present for ten days, the court shall stand adjourned for the term. [82 v. 16; 79 v. 15; 51 v. 57, 2 593; S. & C. 1130.] 24970. General duties of sheriff. The sheriff shall execute every summons, order, or other process, return the same as required by law, and exercise the powers conferred and perform the duties enjoined upon him by statute and by the common law. [51 v. 57, ?? 593, 594; 65 v. 96, 592; S. & C. 1130; S. & S. 572.] An officer may not examine into the irregularity of the proceedings of the court whose process he executes, 6 0.144. He is not bound to execute a writ void upon its face, 6 0.11, and may refuse to execute it for want of jurisdiction, 29 O. S. 617. He is liable for executing a process when it appears on its face that the court had no jurisdiction of the person or subject matter, 7 O. S. 42; but is justified when no want of jurisdiction appears on its face, 7 O. (Pt. 2) 133. He can not claim a reward for arresting a fugitive from justice, 12 0. 281, and is not entitled to fees for making an arrest in another state, 9 O. 25. He can not refuse to execute process in a civil action because his fees are not tendered or secured in advance unless the action is brought by a non-resident or firm in its firm name, 17 Bull 86 (C. P.) DIVISION II. COMMENCEMENT OF AC TIONS―JURISDICTION—Issue. CHAPTER I. FORM OF ACTION. ? 4971. One form of action. There shall be but one form of action, which shall be known as a civil action. [51 v. 57, 23; S. & C. 941.] The code has abolished distinctions between actions at law and in equity, so far as relates to name and form, 70. S. 325; 11 O. S. 635; 12 0. S. 165; 16 O. S. 552; 21 O. S. 596; 33 O. S. 541; but it has not abolished legal or equitable rights, 15 O. S. 415; 2 W. L. M. 125. Its leading object is to avoid circuity and multiplicity of suits, 20 O. S. 38, 54; 14 O. S. 302, 306; and the court is to be regarded as a court of law or equity, and the petition a declaration or a bill in chancery, according to the nature of the case, 11 O. S. 626, 635. Prior to the revision of 1880, the term "civil action" only embraced such cases as were known as "actions at law" and "suits in equity," 15 O. S. 461, and did not embrace proceed ings in mandamus, 32 O. S. 236, nor proceedings in habeas corpus, quo warranto, nor special statutory proceedings, such as partition, dower, divorce, etc., Yaple's Code Practice, etc., p. 288. ? 4972. Parties, how designated. In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant. [51 v. 57, 24; S. & C. 941.] 24973. Feigned issues abolished. There can be no feigned issue (1); but a question of fact not put in issue by the pleadings may be tried by a jury, upon an order for the trial stating the question of fact to be tried; and such order shall be the only authority necessary for a trial (2); or such question may be referred, in the same way, to one or more persons. [51 v. 57, 5; S. & C. 941.] 1. 6 Rec. 66; 12 Barb. 385. 2. In a proceeding to contest the validity of a will, an issue must be made up, "whether the writing produced be the last will of the testator or not," 11 O. S. 329; 2 W. L. M. 84. In such case an issue must be made up to be tried by a jury, and final judgment can not be rendered on demurrer to an answer, 14 O. S. 157. CHAPTER II. TIME OF COMMENCING ACTIONS. SUBDIVISION I. ACTIONS IN GENERAL-ABATEMENT. 24974. To what cases this chapter does not apply. This chapter shall not apply to actions already commenced (1), nor to cases wherein the right of action has already accrued (2); but the statutes in force when the action accrued shall be applicable to such cases, according to the subject of the action, and without regard to the form; nor shall this chapter apply in the case of a continuing and subsisting trust (3), nor to an action by a vendee of real property, in possession thereof, to obtain a conveyance of it. [51 v. 57, 26; S. & C. 941] See also 379, 1539, 1542. 1. 11 O. S. 442; 17 O. S. 484, 509. The code applies to proceedings to reverse a judgment rendered before it took effect, 4 O. S. 500. 2. 8 0. S. 428; 11 O. S. 444; 12 O. 8. 209; 19 O. S. 413; 28 O. S. 568, 577; 4 C. C. R. 38. 3. It is only between trustee and cestui que trust that lapse of time does not constitute a bar, 1 O. S. 478, 507; 28 O. S. 568, 579; 38 O. S. 96. A devise by testator of all his real estate to his son, he to pay testator's daughter a legacy in annual installments, does not create & continuing and subsisting_trust, 40 O. S. 27; 11 Bull 248; see also 21 Bull 357; 46 O. S.-. Trustees of a township holding title to lands granted to them by the general government for school purposes are not exempt from the operation of the statute of limitations in an action prosecuted by them to recover possession of the premises, 38 O. S. 87; but where the trustee, with knowledge of the cestui que trust, disclaims the trust, either expressly or by acts necessarily implying a disclaimer, lapse of time may be relied on as a defense, 10. S. 507; see 35 O. S. 317 24975. What causes of action survive. In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to real (1) or personal estate (2), or for any deceit or fraud, shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same. [51 v. 57, 398; S. & C. 1058.] 1. No cause of action survives against one who so negligently erected a building that it fell and injured another building where he died before the injury, 7 O. S. 369. 2. See 40 O. S. 111. A cause of action for wrongfully causing death abates by the death of the wrong-doer, 37 O. S. 372. But death pending the action does not abate it, 1 Clev. R. 122; see 5144. ? 4976. Special limitations saved. Civil actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues; but where a different limitation is prescribed by statute, that shall govern. [51 v. 57, 2 8; S. & C. 943.] Decedent's estates, executors, and administrators, see 22 6097, 6098, 6113, 6115, 6120, 6126, 6139; forcible entry and detainer, see 86599; habeas corpus, & 5752; infants, 5330; mines, 4378; new trial, 35309; quo warranto, 6789; railroads, 22 3276, 3283; revivor of actions, 2 5157, 5158; revivor of dormant judgment, 5368; proceedings in error, 26723; proceedings to vacate judgment, etc., 5363; taxes, 2 5848; will, contest of, 2 5866. The provisions of this chapter do not apply to a proceeding in error, 4 O. S. 500. SUBDIVISION II. ACTIONS CONCERNING REAL PROPERTY. 24977. Actions to recover real estate limited to twenty-one years. An action for the recovery of the title or possession of real property can only be brought within twenty-one years after the cause of such action accrues, and whenever any of the streets or alleys or any part or parts thereof lain [laid] out and shown on the recorded plat or plats of any cities or villages in the state of Ohio, shall not have been opened to the public use and occupancy of the citizens of said cities or villages, or other person or persons, and said streets or parts thereof not opened to public use as aforesaid shall have been enclosed by a fence by the owner or owners of the inlot or lots [or] outlots lying on, adjacent to, or |