
    Duffy v. Meyers.
    
      Section 455 Revised Statutes — Reference—Issues of fact.
    
    1. Prior to the amendment of section 455 Revised Statutes, passed April 18, 1883 (80 Ohio L. 169), by virtue of which the district court was expressly required to find the facts upon the reservation of a cause to this court, only important and difficult questions of law were authorized to be reserved for disposition here, and such reservation was unauthorized until' the issues of fact were determined in the district court, or other court below.
    2. This cause was referred by the district court to a referee “ to hear and determine all the issues of fact in the cause.” Upon the coming in of his report, with the testimony, the plaintiffs moved for judgment thereon, while the defendants concurrently moved to set aside the report upon the alleged ground that it was against the weight of the evidence. Without passing upon these motions, the court reserved the cause for disposition here. Held, as such order of reservation would, if authorized, call upon this court first to dispose of these motions, and thereby weigh the evidence, and determine the issues of fact, it was without authority.
    Reserved in the District Court of Hamilton county.
    
      Healy ft Brannon, for plaintiffs.
    
      Burnet ft Burnet, E. A. Guthrie, and D. W. Huntington, for defendants.
   By the Court.

This cause was appealed from the court of common pleas to the district court, by which it was referred to a referee “ to hear and determine all the issues of fact in the canse/’ and report his findings and testimony.

Upon the coming in of his report, which, with the testimony, occupies several hundred pages of the printed record, the plaintiffs moved .the court for judgment thereon. At. the same time the defendants moved the court to set aside the report upon the alleged ground that it was against the weight of the evidence. Without passing upon either motion, the district court made the following order :

“ This day came the parties and submitted this cause to the court for decision, on consideration whereof, it appearing to the court that difficult and important questions arise and are involved in said cause, on motion of the plaintiffs thereto, none of the defendants objecting, it is ordered that said cause be and the same is hereby reserved to the supreme court for decision.” This order was entered prior to the amendment of section 455 Revised Statutes, passed April 18, 1883 (80 Ohio L. 169), expressly requiring the district court to find the facts, upon the reservation of a cause to this court.

The evident purpose of the order of reservation was to invoke the action of this court, as a preliminary question upon these motions so left undisposed of by the district court. This necessarily involved the determination of the question whether the evidence taken by the referee sustains his conclusions of fact.

The action of this court can not be thus invoked, upon issues of fact, as a court of first resort or trial court.'

Only important and difficult questions of law are authorized to be reserved for disposition here. Hubble v. Renick, 1 Ohio St. 171; Wilson v. Hamilton, 4 Ohio St. 722; Ogborn v. Taylor, 6 Ohio St. 199; unreported case of Richmond v. Richland Furnace Co., in this court, January term, 1883. Not until the issues of fact are settled below is this court empowered to entertain a case upon reservation. The cause will be remanded to the circuit court for further proceedings.  