
    The State, ex rel. The Emery-Thompson Machinery & Supply Co. et al., v. Jones et al., Judges.
    
      Writ of prohibition,—Does not lie to prohibit court of appeals— From- determining its own jurisdiction, when.
    
    A writ of prohibition will not issue to the court of appeals prohibiting that court from determining its own jurisdiction in cases wherein jurisdiction of the subject-matter in an original action, or on appeal or in error proceeding, has been conferred upon that court by the constitution of this state.
    (No. 15661
    Decided July 3, 1917.)
    In Prohibition.
    On the 15th day of June, 1917, the relators filed a petition in this court, praying for a writ of prohibition directed to Oliver B. Jones, Frank M. Gorman, and Francis M. Hamilton, judges of the court of appeals in the first appellate district of the state of Ohio, prohibiting them from proceeding to hear or from entertaining jurisdiction in error in case No. 1094, or jurisdiction on appeal in case No. 1106, on the docket of said court of appeals.
    The petition states the official character of the defendants, and avers that on the 12th day of June, 1916, Vincent H. Beckman, trustee, filed a petition in the court of common pleas of Hamilton county, Ohio, against The F. W. Niebling Company, to foreclose a mortgage given to secure a large amount of bonds; that a receiver was appointed, with authority to conduct the business of The F. W. Niebling Company pending the foreclosure proceedings; that judgment was entered in said cause in the sum of $93,957.70; that an order of sale issued, and the sale made in pursuance of such order was confirmed on the 12th day of January, 1917; that on the 17th day of February, 1917, The Emery-Thompson Machinery & Supply Company filed its motion in said cause to set aside the confirmation of the sale and decree of distribution, which motion was sustained at the subsequent term of the common pleas court, the former receiver discharged, and another receiver appointed; that thereupon the former receiver, individually, and as a receiver for The F. W. Niebling Company, excepted; that Vincent H. Beckman, as trustee for the bondholders, and as trustee for certain of said bondholders for whom he purchased the property of said company, gave notice of his intention to appeal the cause to the court of appeals of Hamilton county; that the said Vincent H. Beckman, as trustee of The F. W. Niebling Company and as trustee for certain bondholders of that company, filed a petition in error in the court of appeals in and for the first appellate district of the state of Ohio against The Emery-Thompson Machinery & Supply Co., and others, being cause No. 1094 on the docket of said court, to review the order of the common pleas court setting aside the decree of confirmation and distribution; that on the 14th day of April, 1917, the court of appeals on application of the plaintiff in error entered an order staying the judgment of the court of common pleas setting aside the sale and decree of confirmation and distribution and appointing Edward H. Dornette receiver, and ordered said Dornette, receiver, to restore to Vincent H. Beckman, trustee, all of said property; that on the 16th day of April, 1917, The Emery-Thompson Machinery & Supply Co., Edward H. Dornette, receiver of The F. W. Niebling Company, Katherine E. Hart, and Mrs. Ben Stein, filed motions to dismiss the petition in error and to set aside the entry made by the court of appeals staying execution of the judgment and order of the court of common pleas and directing the receiver to restore to Vincent H. Beckman, trustee, the property of The F. W. Niebling Company, for the reason that the court of appeals had no jurisdiction to review either by petition in error or on appeal the order of the court of common pleas complained of by the plaintiffs in error; and that on consideration thereof the court of appeals found said motions and each of them not well taken and overruled the same, to which ruling exceptions were noted.
    The petition further avers that on May 8, 1917, Vincent H. Beckman, as trustee of The F. W. Niebling Company, and Vincent H. Beckman, as trustee for certain bondholders of that company, for whom he purchased the property at the sale held by the sheriff of Hamilton county on January 4, 1917, gave an appeal bond and filed a transcript of the docket and journal entries and the original papers in said cause in the court of appeals of the first appellate district of the state of Ohio, the same being docketed in that court as No. 1106; and that on the 10th day of May, 1917, The Emery-Thompson Machinery & Suppfy Co., Edward H. Dornette, receiver of The F. W. Niebling Co., Katherine E. ■ Hart, and Mrs. Ben Stein, having been made parties, filed their motion to dismiss the appeal, for the reason that the court had no jurisdiction thereof, which motion was overruled by the court of appeals and exceptions noted.
    And this petition is filed in this court, praying that a writ of prohibition issue, prohibiting the court of appeals from proceeding to hear or further entertain jurisdiction of said appeal or error proceedings.
    To this petition the defendants filed a general demurrer. By agreement of counsel, this cause is submitted upon this demurrer and upon its merits.
    
      Messrs. Galvin & Bauer; Messrs. Hackett, Yeatman & Harris and Mr. Alfred B. Benedict, for relators.
    
      Messrs. Dolle, Taylor, O’Donnell & Geisler, for defendants.
   Donahue, J.

This court held in the case, of State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264, that “The writ of prohibition is a high prerogative writ, to be used with great caution in the furtherance of justice and only where there is no other regular, ordinary and adequate remedy.”

To the same effect is the decision of this court in the case of State, ex rel. Garrison, v. Brough, 94 Ohio St., 115.

The jurisdiction of the court of appeals is conferred by the Constitution of the state of Ohio, as amended September 3, 1912. (Cincinnati Poly clinic v. Balch, 92 Ohio St, 415.) Therefore any question relating to the jurisdiction of that court involves a question arising under the constitution of this state, and in all such cases error may be prosecuted in the supreme court of this state. The relators in this case, therefore, have a regular, ordinary and adequate remedy at law.

It was further held by this court in the case of State, ex rel. Barbee, Exr., v. Allen, ante, 10, that where a court has jurisdiction of the subject-matter of a cause, the writ of prohibition cannot be made to serve the-purpose of a writ of error to correct mistakes of a lower court in deciding questions of law within its jurisdiction. In that case it was sought by writ of prohibition to prohibit the probate court of Fayette county from further proceedings in the matter of the probate of a will and settlement of an estate, after that court had found and determined that it had jurisdiction and admitted the will to probate.

This court held in that case that the probate court is vested by’the constitution with jurisdiction in probate and testamentary matters, and is recognized as competent to decide on its own jurisdiction and to exercise it to final judgment.

This is also held in the case, of Shroyer, Gdn., v. Richmond et al., 16 Ohio St, 455; The C., S. & C. Rd. Co. v. Village of Belle Centre, 48 Ohio St., 273; Crawford, Admr., v. Zeigler et al., 84 Ohio St, 224, and Wilberding, Admr., v. Miller et al., 90 Ohio St., 28.

If probate courts are competent to decide on their own jurisdiction and to exercise that jurisdiction to final judgment, certainly the same must be true with reference to the courts of appeals in this state, which, by the provisions of the Constitution of Ohio, are clothed with final jurisdiction in all cases excepting those involving questions arising under the Constitution of the United States or the state of Ohio, felony cases, cases of which it has original jurisdiction, cases of public or great general interest, and cases where the judges of the court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state.

The constitution of this state-vests in the court of appeals appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law.

It is admitted in this case that the cause attempted to be appealed from the common pleas to the court of appeals is a chancery case. It is also admitted that a petition in error has been filed in the court of appeals to review the judgment of the court of common pleas in the same case. Therefore, under the plain provisions of the Constitution, the court of appeals has jurisdiction of the subject-matter of both the appeal and error proceedings; and it is competent to pass upon its own jurisdiction. If it makes a mistake in that regard, the remedy is by error, and not by writ of prohibition ; for this high prerogative writ will not be used either to deprive the court of appeals of its authority to determine its own jurisdiction, or to correct any errors or mistakes that court may make affecting its jurisdiction in any cause.

This court has not considered, and will not consider, in this proceeding whether the appellate jurisdiction of the court has been properly invoked by appeal or error proceedings, or whether such appeal or error proceedings áre prematurely brought, or whether the appeal or error proceedings are directed to a judgment or final order, or any other of the questions presented by the relators’ petition touching the question of the jurisdiction of the court of appeals. If the relators desire to make such questions in this court, it can be done only in the regular and ordinary way.

The demurrer to the petition is sustained, and the petition of the relators dismissed.

Writ refused.

Wanamaker, Newman, Jones, Matthias and Johnson, JJ., concur.  