
    The Milson Rendering and Fertilizer Co. et al. v. Ronk.
    
      Jurisdiction of probaste judge — Section 5449, Revised Statutes— Invalidity of execution issued by probate judge on judgment rendered in common pleas court.
    
    A probate judge has no jurisdiction under section 5449, Revised Statutes, to allow an execution to be issued against the person upon a judgment rendered in the court of common pleas ; and his assumption of such jurisdiction gives no validity whatever to his order allowing such execution to be issued.
    (Decided March 31, 1896.)
    Error to the Circuit Court of Huron county.
    The plaintiff in error having obtained a judgment against the defendant in error, in the court of common pleas of Huron county, for 1385.47, the proceeds of sales of fertilizer sold by him as the ag’ent of the company, and which amount he had converted to his own use, the company applied to the judge of the court of common pleas for an order for execution against the person of Mr. Ronk, on the ground that the judgment was for the payment of money, and that he fraudulently contracted the debt upon which the judgment was rendered. The application for execution against the person of the defendant in that case was made under that part of section 5449, Revised Statutes, which reads as follows: “An execution against the person of the debtor * * * can be issued only when allowed by the supreme court, the district (circuit) court, the court of common pleas, or the probate court, or any judge of either, upon being satisfied, by affidavit, of the judgment credit- or or his attorney, and such other evidence as may be presented, of the existence of one or more of the particulars mentioned in the preceding section.” Tbe judge of the court of common pleas being about to leave the county, refused to hear the application, and suggested that the application be made to the probate judge, which was done and execution allowed, and Mr. Ronk was taken into custody, and imprisoned, where he remained until released on habeas corpus.
    
    Thereupon he commenced his action against the company and its agents and attorneys for damages for false imprisonment based on the ground that the probate judge had no jurisdiction to allow such execution to be issued upon a judgment rendered in the court of common pleas. Issue having been joined between the parties, the court of common pleas held that the probate judge had jurisdiction to allow the execution, and thereupon directed a verdict for the defendants. Upon petition in error, the circuit court was of opinion that the probate judge had no jurisdiction to allow the execution to be issued, and reversed the judgment of the common pleas and granted a new trial. Thereupon the plaintiffs in error brought the case here seeking to reverse the judgment of reversal, and asking that the judgment of the common pleas be affirmed.
    
      Johnston c& Leonard and O. P. Wickham, for plaintiffs in error.
    
      L. P. Strutton and G. T. Stewcvrt for defendant in error.
   By the Court.

A majority of the court hold that in the exercise of the jurisdiction to- allow executions to issue against the person, as conferred upon the different courts and the judges thereof, by section 5449, Revised Statutes, each court is limited to judgments rendered in such court, and each judge is limited to judgments rendered in such court of which he is judge. That the probate judge in the case under consideration had no jurisdiction to allow execution to issue upon the judgment rendered in the court of common pleas, and that his assumption of jurisdiction gave no validity whatever to the order by him made.

The “process,” mentioned in section 5456, Revised Statutes, is evidently the execution, and not the order allowing such execution. An execution can only be issued out of the court where the judgment was rendered- Hence, the court out of which the process issues, and the court where the judgment was rendered, is one and the same court. The judgment in this case could not have been rendered in the probate court, for want of jurisdiction of the subject-matter, and therefore it cannot be said that it might have been rendered in that court.

. In view of the limited jurisdiction of the supreme court under the constitution, it is clear that it can have no power to make an order in a case not pending in said court; and the same may be said of the circuit court. And in Railway Co. v. Hurd, 17 Ohio St., 144, this court held, and we think correctly, that a judge of this court can have no wider jurisdiction at chambers than the whole court in regular session.

Section 5449 becomes in part unconstitutional when construed as authorizing the supreme court or the circuit court, or the judges of either, to allow the issuing* of executions upon judgments rendered in the lower courts; while in limiting each court, and the judge thereof, to judgments rendered in such court, the section is not only constitutional but in harmony with our judicial system. It follows that the judgment of the circuit court must be affirmed.

Judgment affirmed.

Spear and Minshall, JJ., dissent.  