
    PROSECUTION FOR ILLEGAL SALE OF INTOXICATING LIQUORS.
    Court of Appeals for Ashtabula County.
    Michael Deniel v. The State of Ohio.
    Decided, September 11, 1913.
    
      Procedure in Prosecution for 'Violation of an Ordinance Against Sale of Intoxicating Liquor—Effect of Refusal Toy the Common Pléas of Leave to Pile Petition in Error.
    
    Where one who has been tried and convicted before a magistrate for violation of the law against th© sale of intoxicating liquors, applies to the court of common pleas for leave to file a petition in error to review the proceedings and judgment of the magistrate, and the court to whom the application is made refuses to grant leave to file a petition in error, such refusal is not reviewable on error in the court of appeals.
    
      Mr. Mygatt, for motion to strike off.
    
      Chadman dt Appleby, contra.
    Norris, J.; Pollock, J., and Metcalfe, J., concur.
   Motion for leave to file petition in error to review the refusal of the- court of common pleas to permit a petition in error to be filed in the same case and motion to strike off that motion.

Deniel was convicted before a magistrate of violation of the law against the sale of intoxicating liquors. He made application to thé court of common pleas for leave to file a petition in error to review the proceedings and judgment of the magistrate, which leave was refused. Application was made to this court for leave to file a petition in error to review that refusal, and motion made to strike off the motion for leave.

We had supposed that the question of granting leave in such a case was settled by the Supreme Court in the case of Village of Canfield v. Probst, 71 O. S., 42, the syllabus of which is as follows:

11 Where one who has been tried and convicted before a mayor of a municipal corporation for violation of an ordinance, applied under Section 1752, Revised Statutes, to the court of common pleas, or a judge thereof, for leave to file a petition in error to review the proceedings and judgment of the mayor, and the court or judge, to whom the application is made refuses to grant leave to file the petition in error, such refusal is not reviewable on error in the circuit court.”

Now, it is urged that there is a distinction between this ease, which is a prosecution for violation of the liquor law, and a prosecution for violation of the village ordinance, but the Supreme Court does not put the decision in the Canfield case upon any such distinction -as is urged by counsel. In this case application was to be made to the court. In the Canfield case it might have been made to the coqrt or a judge thereof, but what may the court review? Section 6707, Revised Statutes, provides :

“An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, is a final order which may be vacated, modified or reversed as provided in this title.”

Now, the Supreme Court in the Canfield ease say that there was no action pending, simply an application for leave to file, and it could not be claimed that it was an order made in an action, and they say:

“The application for leave to file a petition in error, can not be dignified by the name of a proceeding, special or otherwise. The term ‘special proceeding’ is sometimes defined as a proceeding in a court which was not, under the common law and equity practice, either an action at law or a suit in chancery. The term is used in code states in contradistinction to ‘action.’ The defendant in error sought to institute a proceeding. He could do so' only upon leave of the common pleas court or a judge thereof. The asking leave is not a special proceeding and does not become such until the door of the court is opened for its entrance. ’ ’

Now, it would seem that this reasoning applies with equal force .to proceedings under the liquor law, which provides that no petition in error can be filed without leave of the court, and when such leave is refused there is nothing for a higher court to review.

See also the case of Walder v. State of Ohio, 82 O. S., 452, where the Supreme Court applied the reasoning in the Canfield ease to.a case for violation of the law prohibiting the sale of intoxicating- liquors. There is a further reason that under the new Constitution the jurisdiction of the court of appeals is expressly limited as follows:

“The court of appeals shall have original jurisdiction’in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery eases, and to review, affirm, modify or reverse the judgments of the court of common pleas.”

As we have already found, there was no judgment of the court of common pleas in this case, so that there was nothing for this court to modify or reverse. The motion to strike off the motion for leave to file a petition in error will be sustained and the motion stricken off.-  