
    Kaufman v. The McCall Co.
    (Decided January 3, 1928.)
    
      
      Messrs. Dinsmore, Shohl S Sawyer and Mr. F. B. McGonaughy, for plaintiff in error.
    
      Mr. Edward II. Brink and Mr. Jolm J. Cooney, for defendant in error.
   Hamilton, P. J.

The defendant in error, the McCall Company, brought an action in the municipal court of Cincinnati on an account. Plaintiff in error, Clarence Kaufman, defendant in the action, filed a general denial, and then, by way of a cross-bill of particulars filed in the case, asked the court to permanently enjoin the plaintiff from proceeding further with the action, and from bringing any other action against the defendant, Kaufman, covering the matters at issue in the case.

The cross-bill of particulars, seeking the injunctive relief, was based upon the plea that the action was vexatious litigation, that many suits on the same account had been filed and dismissed without prejudice, putting the defendant, Kaufman, to trouble and expense, and it was claimed that the suit was without merit.

A demurrer was filed to the cross-bill of particulars, and was sustained by the municipal court. Kaufman prosecuted error to the court of common pleas from the sustaining of the demurrer to the cross-bill. The court of common pleas affirmed the municipal court, and Kaufman prosecutes error to this court, seeking a reversal of the judgment of the court of common pleas and of the municipal court.

The question here is whether or not the municipal court had jurisdiction to grant the equitable relief sought by the cross-bill of particulars.

It is the law that the municipal court has no general jurisdiction, and is without general equitable power; that the only power possessed by the municipal court is such as is expressly granted by the statutes. These propositions are conceded by the plaintiff in error, but it is argued by counsel for plaintiff in error that such authority is to be found in Section 1558-9, General Code, the pertinent part of which is as follows:

“In the actions and proceedings of which the municipal court has jurisdiction, all laws conferring jurisdictions upon a court of common pleas, a police court or a justice of the peace, given [giving] such court or officer power to hear and determine such causes prescribing the force and effect of their judgments, orders or decrees, * * * shall be held to extend to the municipal court, unless inconsistent with this act * * * or plainly inapplicable. ’ ’

It is argued that, since the municipal court had jurisdiction in the action on the account and the relief being sought in the same action by way of a cross-bill of particulars, the municipal court has jurisdiction to grant the equitable relief under the provision of the section just quoted,

"We do not construe Section 1558-9 as giving general equitable power to the municipal court. The cross-bill brings before the court the question of the exercise of general equitable power. The relief is not based on any rights growing out of the merits of the case, or liability on the account. It seeks to defeat the prosecution of the action. It may well be doubted whether the cross-bill could be injected into the case had the court general equitable power.

It is argued that there is an action pending in which the court could exercise equitable jurisdiction, granting the relief sought, but, if the relief sought should be granted, there would be no action pending, conferring the right upon the court to exercise the power. In other words, the relief sought is upon the ground that the action should be thrown out of court, although the claimed equitable power of the court is based on the fact that an action is pending.

Section 1558-9, General Code, but gives the municipal court equitable jurisdiction when necessary, in order to carry out its judgments and orders, and in such matters as affect the rights of the parties on the merits of the case pending.

It is suggested in the brief that the section in question does not expressly exclude the granting of an injunction by the municipal court in this case. But this is not the rule. The power must be expressly granted, and, not having been so granted, the municipal court was correct in sustaining the demurrer to the cross-bill of particulars.

The judgments of the court of common pleas and the municipal court will be affirmed.

Judgments affirmed.

Mills and Cushing, JJ., concur.  