Opinion
No. 30719
Decided November 27, 1946.
Supreme Court — Appeal of right dismissed — Case did not originate in Court of Appeals — Motion in that court to enforce execution of Supreme Court mandate.
APPEAL from the Court of Appeals for Franklin county.
ON MOTION to dismiss appeal.
The relator filed in the Court of Appeals his petition for a writ of mandamus to compel the Industrial Commission to grant him an award of workmen's compensation for disability and wage impairment, as required by Section 1465-80, General Code. The Court of Appeals by journal entry ordered the issuance of the writ.
The Industrial Commission prosecuted an appeal to this court, the judgment of the Court of Appeals was affirmed ( 142 Ohio St. 193, 51 N.E.2d 643) and a mandate was issued by this court to the Court of Appeals.
The relator filed in the Court of Appeals an application for a rule in contempt for failure of the Industrial Commission to comply with the journal entry of that court ordering the issuance of the writ of mandamus. After a hearing, that court held the commission was not in contempt and denied the application.
The relator thereafter filed in the Court of Appeals a motion to require that court to carry into execution the mandate of the Supreme Court. The Court of Appeals overruled that motion and the relator filed an appeal as of right in this court on the ground that the case originated in the Court of Appeals.
The Industrial Commission filed a motion to dismiss this appeal on the ground, inter alia, that "there are no facts stated to show an appeal as a matter of right."
Mr. Benjamin F. Hughes, for appellant.
Mr. Hugh S. Jenkins, attorney general, Mr. C.G.L. Yearick, Mr. Wm. T. Burgess and Mr. Albertus B. Conn, for appellee.
Counsel resisting the motion to dismiss this appeal contends that the case at bar originated in the Court of Appeals and therefore the motion is not well taken since this court has "appellate jurisdiction * * * in cases which originated in the Courts of Appeals * * *."
The petition in mandamus was filed in the Court of Appeals and the issues in the original proceeding were adjudicated by this court when the judgment of that court was affirmed. The relator is not entitled to a second appeal as of right to this court from the same judgment in a case which originated in the Court of Appeals.
Counsel contends further that "this is an action which was originally filed in the Court of Appeals * * * in the form of a motion * * *."
No "case" originated in the Court of Appeals by the mere filing of such a motion.
The motion to dismiss the appeal is sustained.
Appeal dismissed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, MATTHIAS and HART, JJ., concur.
TURNER, J., not participating.