
    The Commonwealth Oil Co. v. Turk et al.
    (No. 20647
    Decided March 14, 1928.)
    
      
      Mr. Joseph L. Stern, for plaintiff in error.
    
      Mr. Marry E. Davis, for defendants in error Dora . ánd James W. Turk.
    
      Mr. R. T. Sawyer, Mr. G. M. Cummings, Mr. DeLo Mooh and Mr. W. A. Strong, for defendant in error Cleveland Trust Co.
    
      Mr. Marry G. Fuerst, for defendant in error Ira H. Fisher.
   J ones, J.

The case filed in the municipal court of Cleveland was one sounding in chancery, and under Sections 1579-6, 1579-7, and 1579-9, General Code, jurisdiction to hear it was conferred upon the municipal court. The appeal filed in the Court of Appeals was evidently dismissed for the reason that it was unahle to find any law of the state giving the right of appeal from the municipal court to the Court of Appeals, or providing a procedure for perr fecting such appeal.

The sole question to be determined is whether an appeal may be perfected from the municipal court to the Court of Appeals.

Section 6, Article IV, of the Ohio Constitution, provides that:

“The Courts of Appeals shall have * * * appellate jurisdiction in the trial of chancery cases-.”

This constitutional provision ex proprio vigore has conferred absolute and complete appellate juris* diction upon the Court of Appeals in all chancery cases. This appellate jurisdiction, thus conferred by the Constitution, can neither be enlarged nor limited by the Legislature. The General Assembly, however, may provide for the method of exercising this appellate jurisdiction. Thompson v. Redington, 92 Ohio St., 101, 110 N. E., 652, Ann. Cas., 1918A, 1161; Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, 111 N. E., 159; Wagner v. Armstrong, 93 Ohio St., 443, 113 N. E., 397; Complete Building Show Co. v. Albertson, 99 Ohio St., 11, 121 N. E., 817.

It is now claimed that since no appeal, or procedure therefor, from the municipal court to the Court of Appeals has been provided by law, the Court of Appeals did not err in dismissing the appeal, although the case was one in chancery and could have been appealed from the common pleas court had the case been instituted there. If this argument be sound and were adopted by this court, it would result in a legislative power to nullify the foregoing provision of the Constitution. It connotes power in the Legislature, by enactment or non-enactment, to defeat the provisions of our organic law, which confers on the Court of Appeals appellate jurisdiction, thus enabling it to hear cases de novo. We cannot adopt a construction which would so effectually nullify the constitutional provision by the mere failure of the Legislature to provide a remedy for the exercise of appellate jurisdiction in the Court of Appeals.

The municipal court act of Cleveland confers upon the nisi prius judges of that court fairly wide jurisdiction in law and chancery and in civil and criminal cases, being confined in its civil jurisdiction, to the limits of that municipality. In that respect its jurisdiction is somewhat analogous to that formerly conferred upon the superior court of Cincinnati.

Section 10214, General Code, provides that:

“The provisions of part third [of the Code] and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.”

All the appeal sections relating to the procedure for appeals from the common pleas court to the Court of Appeals come within said part third of bur General Code.

Being under the duty of construing remedial provisions with such liberality as to make effective the appellate jurisdiction of the Court of Appeals, we are of the opinion that our appellate procedure applying to courts of common pleas applies as well to the municipal court of Cleveland, or, in other words, that the sections relating to appeal from the common pleas court in chancery cases (Section 12224 et seq., General Code) apply by analogy to the municipal court of Cleveland. This court has been committed to this principle in the case of Haas v. Mutual Life Ins. Co., 95 Ohio St., 137, 115 N. E., 1020. It is impossible to distinguish the Haas case from the case at bar. There a chancery case had been instituted in the superior court of Cincinnati after the adoption of said Article IY, Section 6, of the Constitution. The petition of the plaintiff was dismissed, and an appeal taken to the Court of Appeals, where the appeal was dismissed. This court vacated the judgment of dismissal. The argument claiming the right to dismiss the appeal was predicated upon the fact that the statute had conferred no right of appeal from the superior court of Cincinnati; that the section relating to appeals applied solely to the court of common pleas. This court held that chancery cases tried in the superior court of Cincinnati were appealable to the Court of Appeals, notwithstanding “no specific provision has been made’ as to procedure in case of an appeal from the superior court of Cincinnati. ’ ’ In this judgment every member of this court concurred. Newman, J., in closing his opinion, said, notwithstanding the statute gave no right of appeal from the superior court to the Court of Appeals:

“We think that, by analogy, the provision as to procedure in the case of an appeal from that court [the court of common pleas] should be applied to the superior court.”

While not so exact in point of application, the same principle of analogy was applied in the case of City of Akron v. Roth, 88 Ohio St., 456, 103 N. E., 465. In that case no limitation of time had been legally fixed for making an application to review the judgment of a Court of Appeals in this court. This court applied, by analogy, the 70-day statute of limitation generally applicable to the review of eases on error, and commenting upon that feature, Shauck, J., on page 465 (103 N. E., 468), said:

“No limitation having yet been prescribed for invoking our authority with respect to cases of this character, a limitation of 70 days is now prescribed in analogy to the statute applicable to other cases in error,” etc.

We are therefore of the opinion that the sections pertaining to the procedure on appeal from the common pleas court to the Court of Appeals apply by analogy to the municipal court of Cleveland, and that, having perfected its appeal under these statutes, the Court of Appeals was in error in dismissing the appeal of the plaintiff in error. The judgment of the Court of Appeals is vacated and the cause remanded to that court, with direction to overrule the motion to dismiss the appeal and for further proceedings according to law.

Judgment vacated and cause remanded.

Day, Allen, Robinson and Matthias, JJ., concur.

Marshall, C. J.,

dissenting. It is not doubted that this was a chancery case in the municipal court of Cleveland. It is not doubted that the Legislature had conferred jurisdiction upon the municipal court of Cleveland to hear and determine certain classes of chancery suits. It is not doubted that the Legislature had a right to confer such jurisdiction. It is not doubted that the Commonwealth Oil Company was entitled ultimately to have this suit heard, on appeal, in the Court of Appeals. The question before us is whether there was a right to have a direct review on appeal in the Court of Appeals from the judgment of the municipal court. A determination of this question requires that we should ascertain, first, whether the provision of Section 6 of Article IV of the Ohio Constitution quoted in the majority opinion is self-executing, and whether the procedural steps to perfect such an appeal are required to be provided by legislation; second, whether in any event the jurisdiction of the Court of Appeals is conclusively defined by the Constitution, or whether, on the other hand, it may be invested with such additional jurisdiction as the Legislature may prescribe.

That Section 6 of Article IV is not self-executing seems too plain to admit of discussion. That no procedure has been provided to take causes on appeal from a municipal court to the Court of Appeals is conceded. It seems also to be conceded by the majority opinion in this case that the Legislature had power to prescribe the procedural steps and the procedural conditions for taking cases on appeal from the courts of common pleas to the Courts of Appeals. At any rate such procedural steps and conditions have been provided in elaborate detail, and they have been followed by the Courts of Appeals and by this court in a great number of cases, and in many, many cases judgments rendered on appeal have been reversed by this court for failure to observe those procedural steps and conditions. It seems, therefore, to have been admitted in many instances • that the Legislature not' only had the power to provide the procedure, but that the failure to observe that procedure was' fatal. Perfecting an appeal from any court to a court higher in authority, and by the process of giving bond to vacate the judgment in the lower court, is a very serious matter, which should not be made to depend upon analogies. Many provisions of the Ohio Constitution are self-executing, and clearly so, and many other provisions are not self-executing, and that fact is equally clear. Where constitutional provisions are made self-executing it becomes necessary to apply reasonable rules to carry out the constitutional mandate. We know of no rule of law which permits a court to supply a legislative omission by applying a rule of analogy. Where a constitutional provision is not self-executing and requires some legislative act to complete the process, the failure to supply the legislative act renders the constitutional provision nugatory, and the only safe course in the instant case is to follow that principle. If it be argued that the Court of Appeals has appellate jurisdiction in the trial of chancery cases, and that that provision will be defeated by failing to supply a procedure by analogy, it may be answered that there has been no legislative omission which absolutely prevents the instant case from being heard on appeal in the Court of Appeals. There is ample provision for carrying the case to the court of common pleas on appeal, and there is ample provision for carrying the case by a successive step form the court of common pleas to the Court of Appeals on appeal. These steps can be taken without supplying any omissions and without applying any rule of analogy. The majority opinion.cites the case of Haas v. Mutual Life Ins. Co., 95 Ohio St., 137, 115 N. E., 1020. In that case it was sought to appeal a case from the superior court of Cincinnati to the Court of Appeals of Hamilton county, and in the opinion in that case the right to appeal was upheld and the principle of analogy to the court of common pleas was declared. That case was rightly decided, but for a wrong reason.- Section 1576, General Code, being a part of the superior qourt act, provides that all acts “regulating their practice and forms of process, prescribing the force and effect of their judgments, orders, or decrees, and authorizing or directing the execution thereof, shall be held to extend to the superior court of Cincinnati as fully as they extend to the common pleas court.”

It is not necessary in that case to apply the rule of analogy. The Legislature made ample provision by specific reference. It is not necessary in this case for this court to apply a rule of analogy. The Legislature has made ample provision for procedure by successive appeals.

The majority opinion cites several cases in which this court has declared that Section 6 of Article IV of the Ohio Constitution confers jurisdiction upon the Courts of Appeals and that the General Assembly has no power to enlarge or limit that jurisdiction, but may only provide by law for the method of its exercise. The leading case thus interpreting the Constitution is Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, 111 N. E., 159. That case has been followed in many subsequent cases, and the writer of this dissenting opinion has followed it more than once, believing that any rule which settles a disputed point should be followed in the interest of greater stability, even though the rule might not be a sound rule. That case was decided in 1915, and time and experience have demonstrated the unsoundness of the rule and necessity for its abrogation. Nichols, C. J., wrote a strong dissenting opinion, and experience has demonstrated that his dissenting opinion declared the sounder principle. Witho.ut repeating any part of that dissenting opinion, it need only be stated that it is unanswerable, and the majority rule declared in that case should be overruled, and it should be held that the Legislature has the power to confer additional jurisdiction upon the Court of Appeals by legislation.

This cause comes to this court from the Court of Appeals of Cuyahoga county. In no other county in the state are causes taken either on error or appeal from a municipal court to a Court of Appeals. By reason of cases being taken on error from the municipal courts in Cuyahoga county to the Court of Appeals of that county, the work of that court has become enormously congested, making it impossible for that court to promptly dispose of its business, even with such help as other Courts of Appeals can render. For the year 1926, this being the last year for which figures are available, there were 3,167 cases filed in all Courts of Appeals in the state, and of this total number 946 were filed in the Court of Appeals of Cuyahoga county. Only 649 of those cases were carried from the court of common pleas to the Court of Appeals of Cuyahoga county, and 297 were carried from other courts inferior to the court of common pleas directly to the Court of Appeals. Until such time as the Polyclinic case is reversed, or until a constitutional amendment can be framed and adopted in such language that it is impossible to misconstrue it, this deplorable condition must continue in the Court of Appeals of Cuyahoga county. It is stated in the majority opinion that remedial provisions should be liberally construed. To this proposition we agree, but there is a vast difference between a liberal construction of an existing provision and supplying by analogy a provision entirely omitted. In the Polyclinic case, as well as in the Haas case, this court has resorted to expedient at the expense of sound principle, and it is inevitable that in every such case the end of the road must be reached.

We have taken the trouble to ascertain the practice in other stat'es of the Union and in the English courts, and it is found that in thirty-five states of the Union, where the laws have been examined, twenty-five states require appeals and error proceedings to be carried by successive steps from the inferior courts to the courts next higher in authority until the court of last resort has been reached. In the laws of ten states which have been examined a limited provision has been made for taking cases on appeal and error from an inferior court directly to a court of last resort over the heads of intermediate courts, but this is found to be true in those states where the business of the courts is not large and where the courts of last 'resort are not burdened with business. It is well known and well established by experience that parties will not prosecute successive appeals, but are usually satisfied if they can have a single review. In those cases where they are sufficiently persistent to seek a second review less damage will be done by according it than by permitting the superior court to be hopelessly congested by direct appeals and error proceedings from inferior tribunals over the heads of intermediate courts. It should further be added that in not a single instance do the courts of England permit any review of the judgment of any court except by successive steps through the courts next higher in authority. The right to appeal from the municipal court of Cleveland to the Court of Appeals of Cuyahoga county was properly denied, and the judgment of the Court of Appeals should be affirmed.

Kinkade, J., concurs in this dissenting opinion.  