Opinion
No. 30819
Decided May 7, 1947.
Courts of Appeals — Jurisdiction on appeal on questions of low and fact — Specific performance of agreement to sell real estate — Appellants entitled to trial de novo — Appellate jurisdiction remains unchanged until General Assembly acts — Section 6, Article IV, Constitution, 1944.
APPEAL from the Court of Appeals for Hamilton county.
The plaintiffs filed in the Court of Common Pleas their petition for specific performance of a written agreement to sell real estate. Issues were joined by answers and a reply. The cause was submitted on the pleadings, evidence and briefs of counsel. The trial court found that specific performance should not be decreed, dismissed the petition and overruled plaintiffs' motion for a new trial.
Plaintiffs filed a notice of appeal to the Court of Appeals on questions of law and fact. A transcript of docket and journal entries and a bill of exceptions were duly filed in that court.
The appeal was heard by three nonresident judges sitting by assignment as the Court of Appeals of the First Appellate District. Two of the judges concurred in sustaining a motion of defendants to dismiss the appeal on questions of law and fact, and the cause was retained as an appeal on questions of law only. All three judges concurred in affirming the judgment of the Court of Common Pleas and in overruling an application of plaintiffs for judgment on the opinion of the Court of Appeals or to certify the case to the Supreme Court.
Plaintiffs filed a notice of appeal to this court as of right and on condition that a motion to certify the record be allowed. A motion to dismiss the appeal as of right was overruled and a motion to certify the record was allowed.
Mr. Sol Goodman, for appellants.
Messrs. Matthews Matthews, for appellees.
The first two errors assigned in this court are that the Court of Appeals committed error in denying appellants a trial de novo, and that such court committed error in refusing to admit additional evidence. Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St. 221, 70 N.E.2d 649, is cited by appellants.
That case decided that, unless and until the General Assembly changes the appellate jurisdiction of the Courts of Appeals, their appellate jurisdiction remains as it was on November 7, 1944, the time the amendment of Section 6, Article IV of the Constitution of Ohio was adopted.
The plaintiffs in the present action for specific performance were entitled to a trial de novo in the Court of Appeals.
For error in sustaining the motion to dismiss the appeal on questions of law and fact, the judgment of the Court of Appeals is reversed and the cause is remanded to that court for a trial de novo. Judgment reversed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.