Opinion
No. 29583
Decided June 30, 1943.
Appeal — Jurisdiction of Court of Appeals — Section 6, Article IV, Constitution — Chancery cases — Appellate court not authorized to try issues of fact initially — Appeal on questions of law and fact may be dismissed — And appeal retained for review on questions of law alone.
1. Under the provisions of Section 6, Article IV of the Constitution of Ohio the Courts of Appeals of this state have appellate jurisdiction in the trial of chancery cases.
2. Such appellate jurisdiction does not authorize such courts to conduct a trial on issues of fact unless such a trial has been had in the court of first instance.
3. It is not error for a Court of Appeals to dismiss an appeal on questions of law and fact and retain the appeal on questions of law alone when only a question of law has been decided by the court of first instance.
CERTIFIED by the Court of Appeals of Cuyahoga county.
This case originated in the Court of Common Pleas. The plaintiff was C.H. LeMaistre as administrator of the estate of Jonathan Warner, deceased. The petition consisted of two causes of action.
At the trial the Court of Common Pleas required the plaintiff to elect between his two causes of action, and he chose to proceed on the first. At the conclusion of the plaintiff's case the trial court directed a verdict in favor of the defendant. This judgment was affirmed by the Court of Appeals. Notices of appeal were filed by the plaintiff, but this court ordered them stricken from the files for the reason that the plaintiff failed to file a motion to certify the record.
Approximately three years thereafter the Court of Common Pleas permitted Clara Warner as administratrix de bonis non to be substituted as party plaintiff and to file an amended petition in chancery. The defendant filed no answer but simply interposed a motion to strike the amended petition from the files and enter judgment in his favor on the ground that the disposition of the case three years previously was complete and final. This motion was granted by the Court of Common Pleas.
From this judgment the plaintiff appealed to the. Court of Appeals on questions of law and fact. The defendant then filed a motion to dismiss the appeal on questions of law and fact and retain the appeal as one on questions of law alone. This was granted. That court then certified the record of the case to this court for review and final determination on the ground that the judgment is in conflict with that pronounced upon the same question by the Court of Appeals for Henry county in the case of Pioneer Mutual Casualty Co. of Ohio v. Pennsylvania Greyhound Lines, 68 Ohio App. 139, 37 N.E.2d 412.
Messrs. Payer, Bleiweiss Cook and Mr. David Perris, for appellant.
Messrs. Manchester, Bennett, Powers Ullman, Messrs. Baker, Hostetler Patterson, Mr. Howard F. Burns and Mr. John Adams, for appellee.
The single question presented for consideration by this court is the correctness of the judgment of the Court of Appeals in dismissing the plaintiff's appeal on questions of law and fact and retaining the appeal as one on questions of law alone.
The plaintiff relies upon one sentence in Section 6, Article IV of the Constitution of Ohio which reads in part as follows:
"The courts of appeals shall have * * * appellate jurisdiction in the trial of chancery cases * * *."
Restating the question more simply, what is contemplated by the phrase " appellate jurisdiction in the trial of chancery cases"?
The plaintiff contends that in a chancery case the original trial on issues of fact may occur in the Court of Appeals. In other words, she insists that as soon as the Court of Common Pleas renders a judgment or final order in such a case, an appeal may be perfected to the Court of. Appeals and that court may retain jurisdiction for all purposes, including the procedure of trying issues of fact for the first time. The defendant contends that the first trial must take place in the Court of Common Pleas as the tribunal of first instance.
Three sources of assistance immediately come to mind in seeking the answer to this problem.
The first is the official report of the proceedings and debates of the constitutional convention held in this state in the year 1912 when the quoted provision was incorporated in Ohio's organic law. In the discussions relating to the judicial branch of the government the shibboleth of one trial and one review" is found repeatedly. If the initial trial of issues of fact could occur in the Court of Appeals that court in that respect would be exercising original rather than appellate jurisdiction, and the litigants would be entitled to no review as to factual issues, inasmuch as the Supreme Court is not required to weigh evidence.
A second source of assistance is found in the statutes relating to appellate procedure. While the General Assembly obviously possesses no power to enlarge or restrict the constitutional jurisdiction of the Court of Appeals, it has provided much of the procedure for invoking that jurisdiction. Paragraph 3 of Section 12223-1, General Code, reads as follows:
"The 'appeal on questions of law and fact' shall be construed to mean a rehearing and retrial of a cause upon the law and the facts and shall include all the proceedings heretofore and otherwise designated as an appeal, and shall be the same as may be designated by the phrase 'appeal on questions of fact.' " (Italics supplied.)
There cannot well be a rehearing or a retrial of factual issues in the Court of Appeals if there has been no previous hearing or trial.
Then, too, Section 12223-21, General Code, contains the following provision:
"(2) An appeal taken on questions of law and fact shall entitle the party to a hearing and determination of the facts de novo and shall be upon the same or amended pleadings."
Ballentine's Law Dictionary defines " de novo" as "Anew; over again; a second time."
Furthermore, the following provision is found in Section 12223-22, General Code:
"(2) Whenever an appeal on questions of law and fact is taken in a case in which it is determined by the appellate court that the appellant is not permitted to retry the facts, the appeal shall not be dismissed, but it shall stand for hearing on appeal on questions of law." (Italics supplied.)
A third source of assistance is the decision of this court in the case of Forest City Investment Co. v. Haas, 110 Ohio St. 188, 143 N.E. 549. That action was one in chancery for an accounting and for the incidental appointment of a receiver. The Court of Common Pleas appointed a receiver, and an appeal (now known as an appeal on questions of law and fact) was immediately perfected to the Court of Appeals. The appeal was dismissed. Upon review this court affirmed the judgment of dismissal on the ground that the incidental appointment of a receiver presented no chancery question but was reviewable on error (now an appeal on questions of law) alone.
In the instant case there was no trial on factual issues in the Court of Common Pleas. The only question decided by it was one of law. Hence, the Court of Appeals was confronted with this question alone and was not in error in dismissing the appeal on questions of law and fact and retaining the appeal as one on questions of law.
The judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
MATTHIAS, HART, ZIMMERMAN, BELL and TURNER, JJ., concur.
WILLIAMS, J., not participating.