
    Dutch et al. v. Corello.
    (Decided December 23, 1935.)
    
      Mr. Arthur P. Gustafson, for plaintiffs in error.
    
      Mr. G. N. Krieg and Mr. T. J. Coleman, for defendant in error.
   Levine, J.

The parties appear in an order the reverse of that held in the Municipal Court. The action was one in replevin instituted in the Municipal Court of Cleveland by Angelo Corello, who claimed the right of possession of certain furniture and equipment by reason of a chattel mortgage given to secure a promissory note in the sum of $800. Plaintiff in error, by way of defense, maintained that the note and mortgage were executed by Mary Duich, his sister-in-law, and by a man by the name of Gust Godley. It is unnecessary to enter into a detailed discussion of the issuable facts, as the principal question before us is a question of law.

Plaintiff in error, George Duich, who was defendant in the Municipal Court, made a request for separate findings of fact and conclusions of law on December 22, 1934. Error is predicated upon the proposition that the court failed to comply with the request, as required by law. It is claimed by defendant in error that the court at a later time made compliance with the request. The record does not disclose such compliance, and if we are to take into consideration facts extraneous to the record it appears that such alleged compliance took place long after the time for the filing of the bill of exceptions had expired. It is quite apparent that findings of fact and conclusions of law filed long after the institution of error proceedings would be entirely useless. We may take it for granted upon the record that there was no compliance with the request. This leads us into a discussion of the law as to whether Section 11421-2, General Code, applies to a replevin action filed in the Municipal Court. Section 11421-2, General Code, reads as follows:

“When questions of fact are tried by the court, its findings may be general for the plaintiff or defendant, unless, with a view of excepting to the court’s decision upon questions of law involved in the trial, one of the parties so requests, in which ease, the court shall state in writing the conclusions of fact found separately from the conclusions of law.”

In the case of Cleveland Produce Co. v. Donnert, 104 Ohio St., 149, 135 N. E., 531, the Supreme Court held that the provisions of the above section confer a substantial right and are mandatory and that a failure to comply with the request for separate findings of fact and conclusions of law is reversible error. Counsel for defendant in error urge that the municipal court operates under rules of practice and procedure, including the classifications of cases which were adopted by the judges in the exercise of statutory power to enact such rules. We are cited to the rules of the. Municipal Court, which, among other things, provide that replevin actions are to be classed as second-class cases:

“Second class cases: 2. * * * all cases in proceedings for the recovery of personal property, together with damages for the wrongful detention thereof.”

Section 1579-36, General Code, reads in part as follows :

“And provided further, that in all proceedings in error relating to judgments or orders of the municipal court, the reviewing courts shall take judicial notice of all rules relating to pleading, practice or procedure of the municipal court.”

In the case of Savoccol v. Dietrich, 37 Ohio App., 228, 174 N. E., 170, the court held:

“1. The provisions of Section 11470, General Code of Ohio, are not applicable to proceedings in a court of a justice of the peace.

“2. In the municipal court of the city of Cleveland civil actions designated by court rule as second class cases are triable under the provisions of the General Code governing the practice and procedure in a justice of the peace court.

“3. In such cases it is not error for a trial judge to refuse to state in writing the conclusions of fact found separately from the conclusions of law.”

It is therefore contended by defendant in error that since all replevin actions, regardless of the amount involved, are classed as second-class cases, under the authority of Savoccol v. Dietrich, supra, it is not error for the court to refuse to state in writing the conclusions of fact found separately from conclusions of law; that the requirement of complying with the request for separate findings of facts and conclusions of law is limited to first class cases only, which, under the rule of the Municipal Court, the Ohio Code of Civil Procedure governing the procedure and practice of the Courts of Common Pleas, is made applicable.

It will be observed that the appraised value of the property taken in the instant case is a sum approximating $900. Section 10472, General Code, which deals with the jurisdiction of justices of the peace in replevin eases, reads as follows:

“When the appraised value of the property so taken exceeds three hundred dollars, the justice shall certify the proceedings in the case to the common pleas court of his county, and thereupon file the original papers, with a certified transcript of his docket entries, in the clerk’s office of such court. The ease must then proceed as if it had been commenced there.”

It is clear that a justice of the peace has no jurisdiction of a replevin case if the appraised value of the property exceeds $300. Prior to the establishment of the Municipal Court of Cleveland the case at bar could not have been tried in a justice court. The Common Pleas Court alone had jurisdiction of such a case. It will be profitable to cite the rules of the Municipal Court dealing with the procedure and practice of first and second class cases. These are as follows:

“Rule 23. In all first class cases the provisions of the Ohio code of civil procedure governing the practice and procedure of courts of common pleas, so far as the same are applicable to the municipal court and consistent with the act of May 10, 1911, establishing said municipal court, and not inconsistent with the rules otherwise adopted for the practice and procedure of said municipal court, shall he held to apply to and govern the proceedings of said municipal court.

“Rule 24. In second class cases the provisions of the Ohio code governing the practice and procedure in the court of justices of the peace, so far as the same may he applicable to the municipal court and consistent with the act creating the same, and not inconsistent with the rules otherwise adopted, shall be held to apply to and govern the proceedings in said municipal court.”

It was the purpose of Rule 23 to incorporate the provisions of the Ohio Code of Civil Procedure governing the practice and procedure of the Court of Common Pleas by reference, and make the same applicable to first class cases tried in the Municipal Court. It was likewise the purpose of Rule 24 to incorporate by reference the provisions of the Ohio Code governing the practice and procedure in the courts of justices of the peace and make the same applicable to second class cases in the Municipal Court. In both Rule 23 and'Rule 24 we have the phrase “so far as the same may he applicable.” The provisions of the justice court code may be deemed to have been incorporated in Rule 24 of the Municipal Court of Cleveland just as if they had been set forth in full therein. These provisions are applicable to the trial of second class cases in the Municipal Court.

It is difficult to comprehend a process of logic whereby the provisions of the justice court code can be made applicable to a second class case in the Municipal Court of Cleveland, when by its very wording the justice court code excludes justices of the peace from the exercise of jurisdiction therein. There is no provision in .the justice court code which governs the practice and procedure of a replevin action, when the appraised value thereof exceeds $300. We have, therefore, a situation where no provision was made to cover a replevin action classed under the rules as a second class case and where the appraised value of the property taken exceeds $300. We are of the opinion that Section 1579-19, subsection 6, General Code, applies to this situation. It reads:

“Where no special provision is made in this act, or by rule of court, the provisions of title four, part third, of the General Code [which is the Code of Civil Procedure] shall apply to the practice and procedure of the municipal court,- but this section shall not be construed to abridge the powers of the judges in respect thereto granted by this act.”

Since no provision was made, either in the act creating the Municipal Court or in the rules of court, to cover a case like the case at bar, the same must be governed by the Code of Civil Procedure, which prescribes the practice and procedure in the Common Pleas Court.

We are therefore of the opinion that the court committed error in failing to comply with the request for separate findings of facts and conclusions of law. The judgment is ordered reversed, and the cause is remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Lieghley, P. J., concurs in judgment.

Terrell, J., dissents.

Terrell, J.,

dissenting. In dissenting from the conclusion of the majority, I hereby express my reasons therefor:

The Municipal Court of Cleveland is given full power to make its own rules governing practice and procedure by the statute hereby quoted:

Section 1579-19, subsection 5. “To expedite the business and promote, the ends of justice the judges may from time to time adopt, publish, and revise rules relating to matters of practice and procedure, service and return of writs or process, classify the causes of action in the court and prescribe with reference to each class the degree of particularity with which a cause of action, set-off, counterclaim, or defense shall be set up.”

By this provision the judges have power to classify the causes of action in the court. Under this power the judges of the Municipal Court have classified the causes of action therein into first and second class cases. Under this power they have classified replevin actions, regardless of the amount of the appraisal of the property involved, as second class cases. They have 'also provided by Buie 24 that second class cases shall be governed by the procedure in the courts of justices of the peace. This rule applies to all replevin actions. According to the practice and procedure in the court of justices of the peace it is not required that the justice make a separate finding of facts and law. Therefore, in any replevin actions tried in the Municipal Court of Cleveland, regardless of the amount of the value of the chattels involved, if- the practice and procedure of the justice of the peace court applies, it is not required of the judge of the Municipal Court to make a special finding of fact and law even though it is requested by one of the litigants. To hold otherwise would be to limit the power conferred upon the judges of the Municipal Court under Section 1579-19, subsection 5. It is my opinion that this reviewing court has no right to limit the application of this section.

Section 1579-19, subsection 6, as quoted in the majority opinion, provides that where no special provision is made in the act or rule of court the provisions of the Code of Civil Procedure shall apply. This section also provides that it shall not be construed to abridge the powers of the judges in respect thereto granted by this act. Clearly, the judges of the Municipal Court have been given plenary powers to classify cases and to adopt rules of procedure pertaining to the respective classes of cases. This they have done by making a “special provision” by “rule of court” governing replevin actions. Therefore, the provisions of the Code of Civil Procedure should not apply to replevin actions in the Municipal Court of Cleveland.

The effect of the majority opinion is to decide that the Legislature did not mean what it said when it granted to the Municipal Court judges the power to classify cases and make rules of procedure pertaining thereto. By their conclusion the majority have made their own rule of classification of replevin cases, which is, apparently, that replevin actions wherein the value of the chattels in controversy is over $300 shall be first class cases, and, where $300 or less is in controversy, shall be second class cases. The Court of Appeals has thereby assumed in effect to enact a rule for the Municipal Court. I do not believe it has the power to so legislate. There is no vice in the classification of cases adopted by the Municipal Court. There are no vested rights in rules of procedure. The Legislature could change the rules of procedure pertaining to replevin actions so that all replevin actions would be governed by the justice of peace procedure. The Legislature can and did give the Municipal Court judges the power to do likewise. The Municipal Court judges have exercised this power properly.

Buie 24 consists of two parts, one is positive, and provides what practice and procedure prevails in the Municipal Court in second class cases; the other is negative in that it designates when such practice and procedure shall not apply.

A restatement of this rule might enable one to more clearly visualize the real meaning by comparison. Thus restated:

“Rule 24. In second class cases, the provisions of the Ohio Code governing the practice and procedure in the courts of Justices of the Peace, shall not apply when

“1. When they are not applicable to the Municipal Court, or

“2. When they are inconsistent with the act creating the same, or

“3. When they are inconsistent with the rules otherwise adopted.

“In all other instances said provisions shall apply.”

Thus the court has made special provision by rule of court for the procedure pertaining to replevin actions. It then follows that Section 1579-19, subsection-., 6, would not apply, because it only applies “when no special provision is made.”

The negative features of Rule 24 would only come into action when it was sought to apply some rule of justice court procedure in a municipal court, a rule that had no proper application or was inconsistent with the act creating the court or other rules adopted by the court.

In the present case no such rule is brought into question. It is not attempted to apply any inconsistent rule of procedure to this replevin action. On the contrary, the majority of this court is requiring the application of a rule of procedure that was not intended by the judges of the Municipal Court and cannot be encompassed either within Section 1579-19, subsection 5, General Code, or within Rule 24,  