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(146 N.E.) tlement by administrators and executors and This question involves two subquestions: including items and sums therein as found here (1) Does the settling of an account of an in aforesaid and also excluding therefrom all executor constitute a chancery case? (2) items and sums as likewise found and ordered If so, when such settlement is appealed to disallowed herein aforesaid. And the said Amended Account is to include any indebted- | the court of common pleas from the probate ness of the said George H. Eberle, however court, is the judgment of the court of comarising, to said estate at said U. H. Gurnea's mon pleas again appealable to the Court of death and to include all collections on notes Appeals? and accounts and all receipts of cash and other [1] We shall consider these questions in assets prior to the filing of said account be- their order. Throughout the course of this longing to the estate of U. S. Gurnea, deceased, opinion the plaintiff in error will be called and likewise to include all collections on notes the executor. and accounts and all cash receipts on sales at auction or at private sales of Glen Echo Farm, laid down in the case of Wagner v. Arm

The executor claims that within the rule and also Lion Hardware Company partnership, received prior to the filing of said account, and strong, 93 Ohio St. 443, 113 N. E. 397, the showing how, from whom, and when received, matter of an accounting by an executor or now held, and how now invested, and with whom administrator does constitute a chancery invested by the executor.

The rule in the Wagner Case is as "Sarah Helen Gurnea, by her counsel, ex- follows: cepts to the finding and order number one aforesaid, and to each and every part thereof; and the usages and practices in courts of chancery

“A chancery case is one in which, according to she also excepts to the findings and orders prior to and at the time of the adoption of the aforesaid numbered four, eight and ten.

Code of Civil Procedure, remedies were award"To the twelfth, thirteenth, fourteenth, fifteenth and sixteenth paragraphs and finding and not in accordance with rules of law. And

ed in accordance with the principles of equity hereof, the defendant, George H. Eberle, executor, by his counsel, excepts."

the proper definition of the term in our new Constitution cannot be regarded as affected by

the provisions of statutes relating to appeals The executor later appealed from the judg- nor by the introduction bodily of equitable remment of the court of common pleas to the edies into our statutes.” Court of Appeals; whereupon the attorneys for Sarah Helen Gurnea filed a motion to dis

The executor also urges that the accountmiss the appeal upon several grounds, only ing involves a settlement of partnership afone of which is important to the decision fairs and an accounting for partnership asherein, namely:

sets, and claims that by virtue of this fact

the proceedings herein constitute a chancery "That this court (Court of Appeals] has no appellate jurisdiction to try and decide the We cannot agree that the fact that the accase, “it not being a chancery case.''

counting involves a settlement of partner

ship affairs affects the decision of this quesThe Court of Appeals heard the motion of tion. It is true that the adjustment of partMrs. Gurnea and sustained the same and or- nership accounts between two living partners dered the appeal dismissed. The case comes is a branch of equity jurisdiction. But when into this court upon petition in error filed as

one of the partners dies the partnership is a matter of right, a constitutional question ipso facto terminated, in absence of express being involved.

agreement to the contrary. The personal

property of the deceased partner passes to Zimmerman, Zimmerman & Zimmerman his personal representative, and his real and Martin & Corry, all of Springfield, for property vests in the heirs at law. Since plaintiff in error.

the partnership is dissolved the settlement Keifer & Keifer, of Springfield, opposed.

of the estate of the deceased person is purely a probate and not, except incident

ally, a partnership matter and necessarily ALLEN, J.

The legal question involved the settlement of the account of the executor in this case is whether the settling of the of the deceased person is a probate matter. account of an executor in the probate court, This is so provided by statute, and justified which is appealed to the court of common by sound logic. The mere fact that the execpleas, is, after judgment thereon in the court utor happens to have been one of the partof common pleas, in turn appealable to the ners in a partnership now terminated does Court of Appeals under the provision of not affect the problem. If the settlement of a section 6, article IV, of the Constitution of probate account does not in and of itself conOhio

. The pertinent portion of this pro- stitute a chancery case the Court of Appeals vision reads as follows:

does not have jurisdiction herein merely be*The Courts of Appeals shall have original cause of the fact that affairs of a former jurisdiction in quo warranto, mandamus, habeas partnership are incidentally involved.

The principal question therefore is whethcorpus, prohibition and procedendo, and appel

er the matter of an accounting by an execulate jurisdiction in the trial of chancery cases.

tor or administrator was within the juris


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p. 636.

diction of the courts of chancery prior to, and The very division of article III, into secat the adoption of, the Code of Civil Proce- tions 1, 2 and 3, three successive sections dure.

relating to common law and chancery jurisPlaintiff in error quotes various eminent diction, section 4, relating to criminal jurisauthorities to the effect that in England diction, and section 5, investing the court the trial of disputed accounts of executors of common pleas with jurisdiction of probate and administrators formerly was in the and testamentary matters, shows beyond chancery court. Woerner's American Law a doubt that equity at this time and in the of Administration, vol. 1, sec. 140; Pomeroy, intention of the Constitution framers was Equity Jurisprudence (4d Ed.) vol. 1, § 346, undersood not to include probate and testa

mentary matters. The argument is amplified by the citation

Moreover, this court held decisively under of various cases which show that in Eng- the Constitution of 1802 that the Supreme land courts of chancery early assumed an Court had no power of reviewing probate extensive jurisdiction over the administra- matters, for the very reason that that Contion of estates of decedents.

stitution gave the Supreme Court appellate The important question before us, however, is whether in Ohio, prior to the adoption of jurisdiction both in common law and chan

to law and equity. . the Code of Civil Procedure, the settlement of cery and judicial power an executor's or administrator's account was

In re Gregory, Admr., 19 Ohio, 357; Gillirecognized as a chancery case. We think

land v. Administrators of Sellers, 2 Ohio St. that such was not the fact, and base our opin- 223. In the Gregory Case the question was ion upon the following propositions:

squarely raised upon a motion to dismiss First. That the Constitution of the State a certiorari, which had previously been alof Ohio enacted in 1802 separated the pro

lowed. The motion was based upon the bate and testamentary jurisdiction from that ground that the Supreme Court had not the in equity.

constitutional power to interfere in matters Second. That the decisions of this court of testamentary and probate nature. The under the Constitution of 1802 held that court held in the syllabus that: the settlement of an executor's account does

"By the Constitution of the state, exclusive not constitute a chancery case.

jurisdiction in probate and testamentary matThird. That by the Constitution of 1851 | ters is vested in the courts of common pleas, itself probate courts were created with a and the orders of those courts made in the separate jurisdiction, and hence the de- progress of such matters, cannot be reviewed cision in Wagner v. Armstrong, supra, does in the Supreme Court upon certiorari.” not apply. Taking up these points in order, let us

The matter involved in the case was the examine the provisions of the Constitution of 1802 (article 3) with regard to courts. settlement of accounts between an adminis

trator de bonis non and the former adminThese provisions are as follows:

istrator of the estate, The court in its Section 1: “The judicial power of this state, opinion, speaking through Chief Justice both as to matters of law and equity, shall be Hitchcock, cites those sections of the Convested in a Supreme Court, in courts of common pleas for each county, in justices of the peace, stitution which give to the Supreme Court and in such other courts as the Legislature appellate jurisdiction in chancery matters, may, from time to time, establish.”

and holds specifically that as the jurisdicSection 2: “The Supreme Court shall consist tion of this court at that time was limited of three judges, any two of whom shall be a to cases in law and chancery, the Supreme quorum. They shall have original and appel. Court could not review probate proceedings. late jurisdiction, both in common law and In other words, this court then held that chancery, in such cases as shall be directed by law.

jurisdiction in law and chancery did not inSection 3 constitutes the court of common clude jurisdiction of the kind involved herein. pleas, and says that it “*

shall have Also, when the Constitution of 1851 was common law and chancery jurisdiction in all written, a distinct system of probate courts such cases as shall be directed by law. * Section 4: “The judges of the Supreme Court defined in section 8, article IV, which reads

was created, the jurisdiction of which was and courts of coinmon pleas, shall have com

as follows: plete criminal jurisdiction in such cases and in such manner as may be pointed out by law. Section 5: “The court of common pleas in probate and testamentary matters, the appoint

“The probate court shall have jurisdiction in each county shall have jurisdiction of all pro- ment of administrators and guardians, the setbate and testamentary matters, granting ad

tiement of the accounts of executors, adminisministration, the appointment of guardians, and

trators, and guardi and such jurisdiction in such other cases as shall be prescribed by law.” habeas corpus, the issuing of marriage licenses

and for the sale of land by executors, adminisThese sections distinguished four separate trators, and guardians, and such other jurissystems of law, namely: Law; equity; crim- diction, in any county or counties, as may be inal law; probate and testamentary matters. provided by law."

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(146 N.E.) This provision in the organic law of the state gave to the probate court separate HESS v. DEVOU et al. (No. 18461.) existence and separate jurisdiction. The question involved herein, therefore, is quite

(Supreme Court of Ohio. Jan. 27, 1925.) different on the facts from that involved in

(Syllabus by the Court.) the case of Wagner v. Armstrong, supra, i 1. Courts C 190(12)—Act held not to exclude which held that a partition action was a chan

jurisdiction of court of common pleas of cery case because prior to and at the adop

Hamilton county over proceedings in error tion of the Code of Civil Procedure a parti from judgments of municipal court of Cincintion action was cognizable in courts of chan nati. cery. No separate court had been created by Section 26 of the act of April 17, 1913 (103 the Constitution with jurisdiction over parti-O. L., 279, 286), as amended February 6, 1914 tion suits, and this fact distinguishes the (104 O. L. 187, 188), does not by its terms exWagner holding from the instant case.

In clude the jurisdiction of the court of common other words, even though an action was orig. pleas of Hamilton county over proceedings in inally cognizable in a court of chancery this

error from judgments of the municipal court of

Cincinnati, court could not lightly hold that the sovereign people could not place such an action within 2. Courts Om 190(1)-Statutes Om74(2)-Act the exclusive jurisdiction of another court, held to be general law and to define general whose system was created and established jurisdiction of courts of common pleas to by the Constitution.

review judgments of other courts including

municipal courts. [2] It will be observed finally that this is

Section 12241, General Code, is a law of a not a question of appealing to the Court


general of Appeals a matter which originated in the throughout the state, and defines the general

having uniform operation court of common pleas. This is a question jurisdiction of the courts of common pleas of of appealing to the Court of Appeals from a the state to reverse, vacate or modify judgjudgment rendered in the court of common ments of other courts, including municipal pleas, upon exceptions to an account made courts. in the probate court and excepted to in the

3. Statutes mw98(1)-General Assembly canprobate court, and later appealed under the

not by special legislation take from courts of statute to the court of common pleas. Upon

common pleas any jurisdiction conferred by appeal in the court of common pleas the mat statute. ter was heard once de novo.

Now this pro The General Assembly is not empowered ceeding in the court of common pleas was by special legislation to take away from the never cognizable in courts of equity. Equity court of common pleas in any county any of the did not provide for an appeal from settlement jurisdiction conferred by section 12241, Genof an executor's account in a probate court to eral Code. the court of common pleas. The proceeding 4. Landlord and tenant om 167(2)—Lessor out is purely the creation of statute, and hence,

of possession and control is not responsible if for no other reason, it is not appealable to

for injuries from defective condition during the Court of Appeals.

lease where no claim is made of construction. This is not a question of introducing into al defects. our statutes a proceeding which was original A lessor of a building, out of possession ly chancery, such as arose in the Wagner and control, is not responsible for injuries Case. We have here special jurisdiction con caused by a defective condition of the premises ferred upon a special court with a purely arising during the continuance of the lease statutory appeal provided to the court of where no claim is made of defects in original common pleas. To hold that the matter 264, 30 Am. Rep. 584, and Stackhouse v. Close,

construction. Shindelbeck v. Moon, 32 Ohio St. herein involved is a chancery case in our

83 Ohio St. 339, 94 N. E. 746, approved and opinion violates the distinction made be- followed. tween chancery and probate matters in the Constitution of 1802, runs counter to the de Error to Court of Appeals, Hamilton cisions of this court under that Constitution, County. ignores the fact that in the Constitution of

Action by John W. Hess against William 1851 the probate court was created as a

P. Devou and another. Judgment for plainseparate and distinct tribunal with ex

tiff in municipal courtand defendants clusive jurisdiction over testamentary mat- brought error to court of common pleas. A ters, and lightly passes by the circumstance motion of plaintiff in court of common pleas that the appeal in the court of common pleas to dismiss proceeding in error was overruled, is purely statutory. For the foregoing reasons judgment will of common pleas was affirmed and record

and, on error to Court of Appeals, judgment be affirmed.

certified to Supreme Court. Judgment afJudgment affirmed.

firmed.—[By Editorial Staff.] MARSHALL, C. J., and JONES, MAT This litigation originated in the municipal THIAS, DAY, and CONN, JJ., concur. court of Cincinnati as an action for dam

For o'her cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ages, seeking to recover the sum of $750., ment of more than three hundred dollars has Hess, while walking along the sidewalk in been granted, or being prayed for has not been front of real estate owned by Devou, fell into granted, proceedings in error from a final judg. an open cellarway, the door of which had ment or order of the court of common pleas of been left open by a tenant. There were sev

Hamilton county, upon a petition in error from eral tenants in the building, and, while court to the court of common pleas of Hamil

such final judgment or order of the municipal the cellar was rented to one, other tenants ton county, may be had as in other cases origihad access to the cellar for the purpose of nating in said court of common pleas, to the reaching pipes .which supplied the entire court of appeals of Hamilton county." building with water. Devou had no property in the cellar and retained no control there

This controversy does not involve the ques. of. The only charge of negligence in the tion whether a judgment of the court of com. bill of particulars was that of opening the mon pleas reviewing a judgment of the muni. door and leaving it open without guards or

cipal court may be further reviewed on error barricades. No allegation is found of de to the Court of Appeals; that question having fective construction of the door or cover. A been decided by this court in Cincinnati judgment was rendered for the plaintiff in Polyclinic v. Balch, 92 Ohio St. 415, 111 N. the sum of $200. Error was prosecuted to E. 159. A reversal of the judgment in the the court of common pleas, which court re

instant case requires an extension of the versed for the following reason, as stated doctrine of the Polyclinic Case, and requires a in the opinion:

declaration of unconstitutionality of the pro

visions of section 155826, other than those "On the trial the evidence showed without already declared unconstitutional in the dispute that a store with the cellar in question Polyclinic Case. The Polyclinic Case is by was rented to one McGahy, who had excusive possession; that the defendants had nothing no means decisive of this controversy, but, on whatever to do with the opening of the cellar the contrary, every member of this court nor the leaving of it open; that any injury agrees that in any event the Court of Appeals resulted from the act of some other person has jurisdiction to review, affirm, modify, or over whom the defendants had no control reverse the judgments of the court of comwhatsoever.”

mon pleas; that being the essential point de

cided in the Polyclinic Case and in fact the In the common pleas court the defendants only real controversy of that case. That case in error moved to dismiss the proceeding involved the sole question of the jurisdiction in error on the ground that the court had of the Court of Appeals. This controversy no jurisdiction of the case at bar, and that involves the sole question of the jurisdiction the sole jurisdiction for proceedings in error of the court of common pleas. The Poly. from the municipal court was in the Court clinic Case involved section 6, art. 4, of the of Appeals. This motion was overruled. In Constitution, while the instant case involves the Court of Appeals the judgment of the section 4, art. 4, of the Constitution. The common pleas was affirmed. Thereupon a provisions of section 4 are very brief. It motion was filed in this court to have the

provides: record certified, which motion was allowed.

"The jurisdiction of the courts of common Wm. Thorndyke and A. L. Luebbers, both pleas, and of the judges thereof, shall be fixed of Cincinnati, for plaintiff in error.

by law." Jackson & Woodward, of Cincinnati, for defendants in error.

If it should be conceded that everything con

tained in the syllabus and in the majority MARSHALL, C. J. [1] The question first opinion in the Polyclinic Case is sound, it does to be considered is the jurisdictional

not reach to the extent of declaring that there

question of the power of the court of common is anything in section 6 which makes the ju. pleas to review a judgment of the municipal risdiction of the Court of Appeals, as therein court of Cincinnati where the amount pray- conferred, exclusive in matters of review of ed for is more than $300. This branch of judgments of courts inferior to the court of . the case involves the interpretation and de

common pleas. If section 6 contained words termination of the constitutionalty of sec

of exclusion, and should be found to be in tion 1558—26, General Code (104 O. L. 188), conflict with section 4, it would necessarily being a part of the municipal court act of the prevail over section 4, being a later enact. city of Cincinnati. The pertinent provisions ment, and more especially by virtue of schedof that statute are as follows:

ule 20, adopted September 3, 1912, the pro

visions of which are familiar. "Proceedings in error may be taken to the

[2] Finding no conflict, the conclusion is ircourt of common pleas of Hamilton county, resistible that section 4 confers upon the from a final judgment or order of the municipal court of Cincinnati in the same manner

General Assembly power to establish the juand under the same conditions as provided by risdiction of the courts of common pleas and law for proceedings in error from the court of of the judges thereof. The Legislature has common pleas to the court of appeals, of Ham-spoken on this subject, and we accordingly ilton county. In civil cases in which a judg-turn to section 12241, General Code, to ascer

(146 N.E.) tain the jurisdiction of the common pleas( same convention made amendments to seccourt to review the judgments of other tion 3, and did not see fit to include within courts:

those amendments the matter of jurisdiction. "An order made by a probate court removing It requires no analysis of that portion of secor refusing to remove an executor, administra- tion 1558—26 quoted to show that the Legtor, guardian, assignee, trustee or other officer islature did not even attempt to exclude the appointed by a probate court, and a judgment court of common pleas of Hamilton county rendered or final order made by a probate from jurisdiction to review the judgments court, insolvency court, justice of the peace or

of the municipal court of Cincinnati, and it any other tribunal, board, or officer, exercising is quite certain that it did not have any right judicial functions, and inferior to the court of to do so. It must be borne in mind that that common pleas, may be reversed, vacated, or modified by the common pleas court."

section relates to the jurisdiction of the mu

nicipal court of Cincinnati, and, in so far as This statute clearly confers · upon the it seeks to regulate only the jurisdiction of court of common pleas jurisdiction to review that court, the Legislature was within its the judgments of municipal courts, unless it rights in legislating upon that subject, notbe refuted upon the theory that a municipal withstanding it is special legislation. This court is not inferior to the court of com- court has, in a number of instances, upheld mon pleas. If any argument is needed to the right of the Legislature to create local demonstrate that a municipal court is inferi- courts and to confer upon such local courts or to a court of common pleas, that demon- jurisdiction to meet local needs.' Those cases stration is found in the fact that the court are numerous and so familiar that it is unof common pleas is a court of general juris- necessary to cite them. On the other hand, diction. In civil cases it is defined in section when the Legislature includes in the special 11215, General Code, in the following sen- act provisions relating to the jurisdiction of tentious language:

other courts of general jurisdiction, and "The court of common pleas shall have origi- which exist in every county of the state, a nal jurisdiction in all civil cases where the sum different principle is involved. This subject or matter in dispute exceeds the exclusive orig-received collateral notice in Pullman Co. v.' inal jurisdiction of justices of the peace.” Automobile Ins. Co., 107 Ohio St. 283, at page

286, 140 N. E. 355, wherein Judge Day, of As compared to this broad jurisdiction of the opinion, pointed out that section 1579—the court of common pleas, the municipal 54, General Code (part of the Dayton mucourts have but limited jurisdiction as to nicipal court act), related to the jurisdiction subject-matter and the amount involved. It of the municipal court and not to that of may be assumed without further argument the court of common pleas. The Legislature that municipal courts are inferior to courts has a wide latitude in conferring jurisdiction of common pleas.

upon a local court and in making a part of (3) Section 12241 being broad enough to that jurisdiction concurrent with a court of include within its terms the jurisdiction to

common pleas, but it does not have the right review judgments of municipal courts gen- to confer exclusive jurisdiction upon a local erally, and it being conceded that there is

court, where such jurisdiction has already nothing in the language of section 1558 been conferred upon courts of common pleas 26 which excludes that jurisdiction, or which generally throughout the state. This court seeks to make the municipal court of Cin- has frequently spoken on the subject of laws cinnati an exception to the general provisions of a general nature, which, in obedience to of section 12241, this problem becomes a very the mandate of section 26, art. 2, of the Consimple one, unless the court shall determine stitution, are required to have a uniform op that section 6, art. 4, of the Constitution, is eration throughout the state. paramount to section 4 of that article, and

One of the clearest cases on this subject shall so construe the language of section 6 as

is Cincinnati v. Steinkamp, 54 Ohio St. 284, to take away from the Legislature the power 43 N. E. 490. The rule is declared at page to give to courts of common pleas any juris- 295 (43 N. E. 492) of the opinion, in language diction to review the judgments of other quoted from McGill v. State, 34 Ohio St. 228: courts of record. The Court of Appeals was created by the Constitution in section 6, art.

"The test is said to depend upon the char4, and in the same section its jurisdiction acter of its subject-matter; that, if that is of was defined. The common pleas court was cial nature, existing in every county through

a general as distinguished from a local or spealso created by the people in section 3 of out the state, a subject in which all the citithat article, and instead of defining its ju- zens have a common interest, then the law is risdiction, as might have been done, it was one of a general nature, iring a uniform seen fit by the provisions of section 4 to dele operation throughout the state.” gate the power to fix its jurisdiction to the Legislature. This could not have been an The case of McGill v. State has been quot. oversight on the part of the people, because ed with approval in subsequent cases. at the same time the jurisdiction of the In State v. Spellmire, 67 Ohio St. 77, at Court of Appeals was fixed, in section 6, the page 82, 65 N. E. 619, 621, this court declared

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