
    The State, ex rel. Lander, v. Prestien et al.
    
      Courts of appeals — Jurisdiction—Cases filed after January i, 1913 —Controlled by Section 6, Article IV, Constitution, 1912— Schedule to constitution inapplicable, when — Dismissal of appeal after case submitted on merits.
    
    1. Section 6 of Article IV of the Constitution as amended September 3, 1912, specifically provides that the provisions of that section in reference to the jurisdiction of the courts of appeals shall apply to all cases coming into that court after the taking effect of the amendment, which was on the first day of January, 1913. Upon this question the special provision found in that section must control. The provision of the general schedule to the amendments to the constitution has no application.
    2. If is not error for a court of appeals to sustain a motion to dismiss an appeal, for want of jurisdiction, filed after the cause has been submitted to the court upon its merits.
    (No. 15042
    Decided February 15, 1916.)
    Error to the Court of Appeals of Cuyahoga county.
    On the 3d day of February, 1912, the plaintiff in error, Marcellus A. Lander, filed a petition in the common pleas court of Cuyahoga county, praying that a writ of mandamus issue against the defendants in error, Charles T. Prestien and others, as auditor, treasurer and commissioners of Cuyahoga county, Ohio, directing them to cause to be paid to the plaintiff the sum of $61,224.64, unlawfully withheld from him, together with lawful interest, from the commencement of this action.
    On the 29th day of January, 1914, the plaintiff filed an amended petition, making John A. Zangerle and others, the successors in office of the original defendants, parties to the suit and praying for the same relief.
    Issue was joined by the proper pleadings. The cause was tried in the court of common pleas and judgment rendered on the 3d day of July, 1914, from which judgment an appeal was taken by the plaintiff in error to the court of appeals of Cuyahoga county.
    On March 22, 1915, a motion to dismiss the appeal was sustained and the appeal dismissed.
    On April 28, 1915, this judgment of dismissal was vacated and a rehearing granted.
    On August 30, 1915, the court of appeals again sustained the motion of the defendants to dismiss, but there are no other or further entries showing that the cause was tried and submitted to the court.
    It is made to appear, however, by a bill of exceptions, that on the 6th day of November, 1914, the cause was orally argued by counsel and submitted to the court upon the transcript of the evidence taken in the common pleas court, but no judgment was rendered upon the merits, either before or after the filing of the motion to dismiss.
    This proceeding in error is prosecuted in this court to reverse the judgment of the court of appeals in sustaining the motion of the defendant in error and dismissing the appeal.
    
      Messrs. Griswold, White & Hadden and Messrs. Thompson, Hiñe & Flory, for plaintiff in error.
    
      Mr. Cyrus Locher, prosecuting attorney, and Mr. Frederick W. Green, for defendants in error.
   Donahue, J.

It is not claimed by counsel for plaintiff in error that this cause was appealable under the provisions of the constitution of Ohio, as amended September 3, 1912. It is contended, however, that the action having been commenced in the common pleas court prior to the time these amendments to the constitution took effect, the provisions of the statute then in force regulating appeals applies to this case.

This contention is predicated upon the general schedule to the amendments to the constitution adopted September 3, 1912, which is in part as follows:

“All laws then in force, not inconsistent therewith shall continue in force until amended or repealed; provided that all cases pending in the courts on the first day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law.”

It is unnecessary to determine at this time whether this language in the general schedule is subject to the construction contended for.by counsel for plaintiff in error, for the reason that there is a special provision in the amendments to the constitution that definitely provides when the provisions of the constitution fixing the jurisdiction of the court of appeals shall apply to cases in that court. Necessarily the special provision must obtain, even though it be in conflict with the general provision.

Section 6 of Article IV, among other things, specifically provides:

“The courts of appeals shall continue the work of the respective circuit courts and all pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective courts of appeals, and the supreme court, as now provided by law, and cases brought into said courts of appeals after the taking effect hereof shall be subject to the provisions hereof.”

This case was brought into the court of appeals after the taking effect of the amendments to the constitution, to-wit, January 1, 1913; therefore, this specific provision in Section 6 of Article IV, that it shall be subject to the provisions of that amendment, applies, and this section of the constitution limits the jurisdiction of the courts of appeals to “appellate jurisdiction in the trial of chancery cases.”

It is further contended on the part of the plaintiff in error that, under the doctrine announced in the case of Drake et al., Trustees, v. Tucker et al., 83 Ohio St., 97, the court of appeals erred in sustaining this motion. In that case the appeal was taken from the judgment of the common pleas court to the circuit court. No objection was interposed to the manner in which the appellate jurisr diction of that court was invoked, and the cause proceeded to trial and judgment. The question of the'jurisdiction of the circuit court to hear that cause upon appeal was made for the first time in the supreme court upon the proceedings in error to reverse the judgment of the circuit court. This court held that this objection came too late; that a litigant could not be permitted to submit his cause to the court in the hope of securing a more favorable judgment than the judgment secured below, and, when disappointed in that expectation, then complain in the reviewing court that the appellate jurisdiction of the circuit court had not been properly invoked.

It is true it is said in that case that this question “cannot be effectively made except by a motion to dismiss the appeal interposed in the circuit court before the trial in that court,” but it is equally true that the syllabus of every case must be construed with reference to the facts presented by the record in the case under consideration. In Drake v. Tucker judgment had been rendered by the circuit court before any objection to its jurisdiction was interposed, and the court, in using the word “trial” in the syllabus of that case, evidently .intended to include as a part of the trial not only the introduction of evidence and the argument of counsel, but also the judgment of the court upon the issues joined and submitted to it. Technically, of course, the word “trial” does not necessarily include judgment, but it is evident that the court did not use that word in any technical sense, and even if it did, no such case was presented for its consideration, and therefore the authority of that case extends only to the same state of facts presented by the record and is not controlling in this case.

The motion to dismiss in this case was interposed before judgment. The mere fact that the cause had been submitted upon its merits did not prevent that court from entertaining that motion, or, for that matter, dismissing the case sua sponte, if upon consideration it reached the conclusion that it had no jurisdiction on appeal.

Judgment affirmed.

Nichols, C. J., Johnson, Newman, Jones and Matthias, JJ., concur.  