Summary
In Ewers v. Coldren, 151 Ohio St. 193, 85 N.E.2d 107, the same question was before the court and Judges Turner, Matthias, and Hart said they were of the opinion expressed in that dissent, but, on the doctrine of stare decisis, they believed, on the procedural question, the law should be regarded as settled, and Squire, Supt. of Banks, v. Guardian Trust Co., was followed.
Summary of this case from House v. LanoOpinion
No. 31489
Decided March 23, 1949.
Appeal — Conditional order of revivor, not final order — Section 12223-2, General Code — Doctrine of stare decisis applied — Cases, actions or proceedings pending January 1, 1945 — Tried and reviewed pursuant to procedure in effect prior thereto — Amended Section 6, Article IV, Constitution, 1945.
1. By the terms of the amendment of Section 6, Article IV of the Ohio Constitution, effective January 1, 1945, all cases, actions or proceedings pending before or in any board, commission, officer, tribunal or court on the first day of January 1945, shall be heard, tried and reviewed in the same manner and by the same procedure as was authorized by law in effect prior to January 1, 1945.
2. Cases pending prior to January 1, 1945, are to be heard, tried and reviewed in the same manner and by the same procedure as authorized by law prior to January 1, 1945.
3. Under the doctrine of stare decisis, an order overruling a motion to quash an order of revivor in a case pending January 1, 1945, is not a final order from which appeal will lie, within the contemplation of Section 12223-2, General Code. ( Squire, Supt. of Banks, v. Guardian Trust Co., 147 Ohio St. 1, followed.)
APPEAL from the Court of Appeals for Hancock county.
Prior to the effective date of the amendment of Section 6, Article IV of the Constitution of Ohio, an action was instituted by the filing of a petition in the Court of Common Pleas of Hancock county to which petition an answer was filed and to which answer a reply was filed. The defendant died and a conditional order of revivor was filed.
Appellants (administrators of the estate of defendant) filed a motion to quash the purported order of revivor and to strike the cause from the docket. The trial court overruled such motion.
Upon appeal to the Court of Appeals by appellants here, a motion was filed in that court by the appellee to dismiss the appeal on the ground that the order overruling the motion to quash the purported order of revivor was not a final order. In sustaining the motion to dismiss, the Court of Appeals held that the order was interlocutory in character and an incident of the main action; and did not assume the aspect of a special proceeding and was but a substitution of one party for another and did not determine the action or prevent a judgment.
The Court of Appeals found such motion to be well taken, dismissed the appeal and remanded the cause to the trial court.
The cause is in this court pursuant to the allowance of a motion to certify the record.
Messrs. Rockey Rockey, for appellee.
Mr. Harley A. Watkins, Mr. Richard H. Peters and Mr. Donald A. Dietsch, for appellants.
The Court of Appeals decided the instant case on the authority of Squire, Supt. of Banks, v. Guardian Trust Co. 147 Ohio St. 1, 68 N.E.2d 312, 167 A.L.R., 255.
Appellants contend that the Squire case should be overruled. Appellants say in their brief:
"We respectfully submit the decision of this court in Squire v. Guardian Trust Co., supra, does not give due effect to the provisions of Article IV, Section 6 of the Constitution of Ohio, as amended effective January 1, 1945, and Section 12223-2, General Code, as originally enacted and as amended September 30, 1947, and presently in force, and should be overruled."
Appellants' contention overlooks a provision in the amendment of Section 6, Article IV of the Constitution, effective January 1, 1945, which provides:
"* * * that all cases, actions, or proceedings pending before or in any board, commission, officer, tribunal, or court on the first day of January, 1945, shall be heard, tried, and reviewed in the same manner and by the same procedure as is now authorized by law."
An examination of the files of this court discloses that the Squire case originated in the Court of Common Pleas on December 30, 1935. As shown by the record, the instant case was instituted February 16, 1944, and is to be decided under the constitutional provision in effect prior to January 1, 1945.
While the writer of the present opinion wrote the dissent in the Squire case, and while Judge Matthias and Judge Hart, who concurred in such dissenting opinion, and the writer are still of the opinion expressed in such dissent, yet we believe that generally in procedural questions the doctrine of stare decisis should be recognized.
In the case of Montana Horse Products Co. v. Great Northern Ry. Co., 91 Mont. 194, 7 P.2d 919, the Supreme Court of Montana concluded it had judged wrongly in a previous case, overruled it and decided the court would not follow it in the future, but sustained a recovery on a claim made by reason of the former decision. The court gave as its reason that a contract is made in consideration of the law in force at the time of its execution, whether it be statute law or a decision of the court, and that the construction given to a statute by the court, although erroneous, becomes and remains a part of it as much as though written into it.
When the same question involved in the instant case arises in a case originating subsequent to January 1, 1945, we shall be free to entertain the contention that inasmuch as the jurisdiction of the Court of Appeals has been augmented or at least clarified, the doctrine of stare decisis will not apply.
Therefore, the judgment of the Court of Appeals should be and hereby is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART and TAFT, JJ., concur.