
    City of Cleveland v. Purcell et al.
    (Decided May 28, 1928.)
    
      Mr. Carl F. Shuler, director of law, Mr. Alfred Glum, and Mr. Henry S. Brcdnard, for plaintiff in error.
    
      Messrs. White, Gannon S Spieth, for defendants in error.
   Vickery, J.

This cause comes into this court on a petition in error to the Common Pleas Court of Cuyahoga county to reverse a judgment of some $36,000 there rendered in favor of the present defendants in error. The case was an appropriation case and was tried to a jury, and after the verdict was rendered a motion for a new trial was made aud overruled, and it is to reverse that judgment that error is prosecuted to this court.

It seems from the record that the city of Cleveland, in the exercise of the power of eminent domain, sought to appropriate for municipal purposes certain property belonging to J. Ambrose Purcell; that appropriation proceedings were brought in the insolvency court of Cuyahoga county; that the case was heard before the insolvency judge and a jury, and a verdict rendered in favor of the defendant Purcell for some $26,000, which, I believe, the city was ready and willing to pay; that Purcell, not being satisfied with the amount of the judgment, appealed the case to the common pleas court, in which court a motion was made to dismiss the appeal, which motion was overruled; and that the case went on to trial, as already stated, resulting in verdict of some $10,000 more for Purcell, to reverse which judgment the city prosecutes error to this court.

The principal error argued in this court is that there was no appellate jurisdiction in the common pleas court from the insolvency court; that the whole procedure in the common pleas court was without authority, and the only judgment that the city should be called upon to pay is the judgment rendered in the insolvency court; and that, neither party having prosecuted error, both would be bound by the judgment of the insolvency court, if the case were wrongfully appealed to the common pleas court.

There are other errors mentioned in the brief and in the argument, but the real contention of the plaintiff in error in this court is that the judgment of the common pleas court was erroneous, because it was rendered upon appeal, and the argument is made that since the amendment of the statute there is no appellate jurisdiction from the insolvency court to the common pleas court.

We have been cited to several statutes, and at least two must be construed in order to arrive at a proper conclusion of the question in the instant case. It seems that the, insolvency court of Cuyahoga county (Sections 1620 to 1638, General Code) was established by an act of the Legislature in March, 1896 (92 Ohio Laws, 475), under the power then existing by virtue of the section of the Constitution providing that the Legislature might create courts inferior to the court of common pleas, in accordance with which provision the insolvency court of Hamilton county was established in 1894 (91 Ohio Laws, 844), and later repealed (109 Ohio Laws, 357). It is important to bear this Cuyahoga county creative act in mind, for in it (Section 9 of the act), without quoting it literally, is contained the provision, after mentioning the jurisdiction of the insolvency court of Cuyahoga county, that such appellate jurisdiction shall exist to party litigants and be maintained by them from the insolvency court as now exists or may hereafter be granted to the probate court of Cuyahoga county (Section 1629, General Code); that is, the act creating the insolvency court (92 Ohio Laws, 475), and more particularly Section 13 of that act (Section 1632, General Code), provides in effect that, if and when a litigant can appeal from the probate court of Cuyahoga county, he can appeal in the same manner in a like case from the judgment of the insolvency court to the court of common pleas. It is only necessary to say, in passing, that this ereative act still exists intact in our Code and is a part of the law of the state of Ohio.

Prior to 1902 the Supreme Court declared very many acts of the Legislature unconstitutional, especially that creating the government of Cleveland, and it seemed necessary and was deemed advisable to write a new Municipal Code of Ohio, and so in 1902 Wade Ellis, who was then city solicitor of the city of Cincinnati, prepared the Municipal Code which is known as the Ellis Code. In it (Section 21, 96 Ohio Laws, 29) appeal was allowed from the probate court, in appropriation cases of municipalities, to the common pleas court, and an appeal from the insolvency court to the common pleas court. In 1909 the Code was again amended, and Section 21 (100 Ohio Laws, 100) provided for the trial of appropriation cases in the common pleas, the probate, or the insolvency court, and likewise provided that error proceedings could be prosecuted in such cases from the common pleas court, the probate court, and the insolvency court to the then Circuit Court, and the section then provided, however, that when appropriation cases are tried in the probate court an appeal may be taken to the common pleas court.

Now it is argued from this, inasmuch as the Ellis Code of 1902 contained an express provision that an appeal from the insolvency court could be taken to the court of common pleas, that when the Legislature in the act of 1909 omitted this, and stated that an appeal could be taken from the probate court, leaving out the insolvency court, it was the intention of the Legislature to cut off the right of appeal from the insolvency court to the common pleas court, and that is practically the argument, and the sole argument, of the plaintiff in error in this action.

But does that necessarily follow? Now let us see. In Ohio at that time there were not more than four insolvency courts. There were eighty-eight counties. Each of the eighty-eight counties had a probate court, as already stated, and only four had insolvency courts. So it seemed like an unnecessary piece of legislation to provide for the appeal from the insolvency court when only four out of the eighty-eight counties had insolvency courts; and is it not reasonable to suppose that the Legislature, having in mind the statute of 1896, which created the insolvency court of Cuyahoga county, which, as already stated, provided that, wherever the litigants in appropriation cases could appeal to the common pleas from the probate court, an appeal could likewise be had from the insolvency court to the common pleas, thought it unnecessary to put into the act of 1909 anything relating to appeals from the insolvency court? Is it not reasonable to suppose that, in the debates upon this question, when the attention of the members of the Legislature from eighty-four of the counties which had no insolvency courts was called to this omission, they deemed it unnecessary to insert anything relating to appeals from the insolvency courts for the creative act of 1896 could be pointed out as taking care of the situation in Cuyahoga county? It must be borne in mind that there are no words excluding the right of appeal from the insolvency court to the common pleas court in the act of 1909. It simply confers affirmatively upon litigants in the probate court the right to appeal to the common pleas court. It does not in so many words say that there shall be an appeal from no other court. It is true that it does say that error may be prosecuted from the insolvency court, from the common pleas court, and from the probate court to the Circuit Court; but it nowhere says there shall be no appeal in cases tried in the insolvency court, and it must be remembered that appropriation cases could be heard in the insolvency court, in the probate court, or in the court of common pleas, and the mere fact that error could be prosecuted from all of these courts would not of itself deprive the litigant of the right to appeal from the insolvency court that existed prior thereto by virtue of the creative act of 1896.

Now the universal rule of construction of statutes is, I believe, that the law abhors the idea of the repeal of a statute by implication, and it is only when the existing statute is incongruous and cannot be reconciled with the new legislation that ‘the latter will have such effect. Now there is nothing irreconcilable in the fact that the statute of 1909 provides that a litigant in an appropriation case may appeal from the probate to the common pleas court which would prevent an already existing right of appeal from the insolvency court to the common pleas court from having effect. As already pointed out, the act of 1896 provided in plain, concise, unambiguous, easily understood words that appeal to the common pleas might be had by a litigant from the insolvency court whenever and however such appeals might be taken from the probate court to the common pleas court, and so the Legislature in the act of 1909, in providing that an appeal in appropriation- cases could be taken from the probate court to the common pleas court, having in mind the statute of 1896, creating the insolvency court, could readily understand that in an appropriation case there was ample provision for the perfection of an appeal from a judgment rendered in the insolvency court to the common pleas court.

We think that was the plain intent of the Legislature. We do not think that the Legislature intended to repeal by implication the statute of 1896. We do not think that it was necessary, if above statute is still in force and effect, as we believe it to be, for the Legislature to have done anything more than it did in the act of 1909 to confer appellate jurisdiction from the insolvency court to the court of common pleas.

We think, therefore, that the contention of the city in this respect is not well taken; that the case was properly appealable from the insolvency court to the common pleas court. The action in the common pleas seems to have been tried in accordance with law, a jury was properly impaneled and evidence was introduced, and we do not feel that, simply because that jury brought in a higher verdict than the jury did in the insolvency court, there is any reason why we should disturb the finding of the common pleas court.

There are several other alleged errors, none of which is of enough importance to warrant us in reversing this case.

The judgment of the court of common pleas must be affirmed.

Judgment affirmed.

Sullivan, P. J., and Levine, J., concur.  