Opinion
No. 23564
Decided February 8, 1933.
Supreme Court — Jurisdiction — Case originating in Court of Appeals — Contempt for violating injunction order — Section 2, Article IV, Constitution.
Under favor of Section 2, Article IV of the state Constitution, a proceeding in contempt, instituted in the Court of Appeals for the violation of its former order, is a case originating in the Court of Appeals, and a petition in error thereto may be filed in this court as of right.
ERROR to the Court of Appeals of Portage county.
Some years ago Albertus B. Cady and his wife instituted an action in the Portage county common pleas court against the Cleveland Worsted Mills Company, defendant in error. It involved the title and possession of lands adjoining the shore of a body of water known as Sandy Lake. The defendant in error cross-petitioned and asked for an injunction preventing Cady and his wife from renting boats and bathing suits, and from advertising that he (Cady) was the owner of the property in litigation. The suit eventually reached the Court of Appeals on appeal, and in October, 1924, that court found against the present plaintiffs in error and in favor of the Cleveland Worsted Company on its cross-petition, and quieted the latter's title to the lands in controversy, but granted the plaintiffs certain rights of ingress and egress to their premises, certain rights to water their stock in the lake, and the privilege of using a rowboat for their personal use. The Court of Appeals restrained the plaintiffs in error from inviting persons, by public advertisement or otherwise, to come on defendant's land near the lake for the purpose of fishing, bathing or boating, and from holding out to the public that they had such privileges. The plaintiffs in error were also enjoined from interfering with the defendant's construction of gates in a wing fence forming an approach to the premises. While the decree was more specific than here detailed this was its substance as rendered by the Court of Appeals in October, 1924.
It appears that nothing further eventuated until September 14, 1931, when the defendant in the cause, the Cleveland Worsted Mills Company, filed its motion in the Court of Appeals charging Cady and his wife with contempt for the violation of the court's, decree made in October, 1924. The motion contained eleven specifications. These are very lengthy and need not be here recited in order to determine the chief legal question presented. The court appointed a referee with power to take testimony and report his finding to the court. The referee found that the evidence sustained five of the eleven charges of contempt specified in the motion. The Court of Appeals found, from the evidence submitted to it by the referee, that Cady and his wife had "wilfully and contemptuously" violated its former decree, as found by the referee, approved the latter's report, assessed a fine and costs against plaintiffs in error, and ordered them confined in the county jail upon failure to pay the fine and costs. A motion for a new trial having been overruled, the Cadys prosecuted error to this court, filing their petition as of claimed right.
Thereupon the defendant in error filed its motion to dismiss the petition in error, assigning as a reason therefor that the "action did not originate in the Court of Appeals," and could not be lodged here under the Constitution without certification by this court.
Mr. Eugene F. Trunko and Mr. Edward H. Boylan, for plaintiffs in error.
Mr. W.J. Beckley, for defendant in error.
There is no debatable constitutional question involved in this case. No such question was presented in the appellate court; nor do plaintiffs in error, in their brief, make any such claim in this court; on the other hand the plaintiffs in error claim their right to file the case here for the reason that it originated in the Court of Appeals; and this is the only question, other than one of fact, which is presented upon the motion of defendant in error to dismiss the petition in error.
Section 2, Article IV, of the State Constitution, confers upon this court appellate jurisdiction "in cases which originated in the courts of appeals." This proceeding for contempt was an independent proceeding arising out of the main action theretofore heard on appeal. Had the contempt proceedings been inaugurated in the trial court its avenue to this court would be by way of certification by motion; but, since the contempt proceedings were first filed in the Court of Appeals, under favor of Section 2, Article IV, of the State Constitution, it assumes the status of a "case" which originated in the Court of Appeals, and a petition in error thereto may be filed in this court as of right.
While the foregoing question has not been determined in any of the former syllabi of this court it has been recognized as a proper procedural step in contempt proceedings where such proceedings were filed in the Court of Appeals. Board of Commissioners of Greene County v. Harshman, 102 Ohio St. 452, 132 N.E. 925; Globe-Wernicke Co. v. Safe-Cabinet Co., 98 Ohio St. 447, 121 N.E. 901.
The remaining question presented is one of fact purely. The Court of Appeals found that there had been five specific violations of the injunctive order which it made in October, 1924. The testimony relating to the violation of the court's order is quite voluminous, and, while some of it is direct, the testimony relating thereto is largely circumstantial. From an examination of the record we are of opinion that there was substantial evidence introduced warranting the finding that the plaintiffs in error were guilty of contempt.
The motion to dismiss the petition in error will be overruled and the judgment of the Court of Appeals will be affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, ALLEN, STEPHENSON and MATTHIAS, JJ., concur.
KINKADE, J., not participating.