
    The State, ex rel. Kennelly et al., v. Miller, Judge, et al.
    
      (Decided May 16, 1932.)
    
      Mr. G. Eugene Smith, for plaintiffs.
    
      Mr. Francis M. Thompson, for defendant Marion L. Thompson.
   Hornbeck, J.

This is an action seeking a writ of prohibition addressed to defendants, Fred J. Miller, and associate judges of the municipal court of Columbus, Ohio, prohibiting them from proceeding further in a suit in the municipal court wherein Marion L. Thompson is plaintiff, and the relators here, George F. Kennelly and Leona H. Kennelly, are the defendants. The action against which the writ of prohibition is sought was for unlawful and forcible detention from the plaintiff of the possession of certain described real estate in the city of Columbus. The petition in municipal court avers that the defendants Kennelly entered upon the premises under a land contract; that the defendants were in default for more than thirty days in the payment of installments due; and that the contract was declared forfeited. A copy of the land contract is attached. Defendants in the municipal court demurred to the jurisdiction of the court and filed a motion to dismiss the action against them. Evidence was offered on the demurrer and thereafter the court overruled the same. It is further averred in the petition that the consideration for the land contract was $5,700.

It is claimed, first, that the municipal court has no jurisdiction of the subject-matter of the action because the relators, having made substantial payments of installments due under the land contract, are the equitable owners of the real estate, the subject of the action, and can not be evicted until a court with jurisdiction in equity has determined that the contract should be canceled; and, second, that as the jurisdiction of the municipal court is limited to $750, exclusive of interest and costs, and the amount of money involved as a consideration in the land contract is in excess of the sum of $750, that court is without jurisdiction to consider the case.

An answer to the petition in prohibition is filed here in which the land contract between the parties is set up, and it was offered in evidence in this court. Appearing therein is the following clause: “On default in the payment of one of the above installments of the purchase money for a period of thirty (30) days after it becomes due, first party reserves the right to declare this contract null and void without notice thereof to second party and without demand of payment on him, and in such event, the first party may re-enter and re-possess the above described premises and be seized thereof as of his first and former estate, and all payments made hereunder by second party, shall be retained by first party as rent for said premises and as liquidated damages for the breach of this contract, and on the breach of any condition in this contract by second party, he shall immediately surrender said premises and shall deliver possession thereof, and he shall become a tenant at will of said premises at the option of first party and shall vacate said premises without legal proceedings and without cost to first party.”

Plaintiff relies upon State, ex rel. Morgan, v. Stevenson, Justice of Peace, 39 Ohio App., 335, 177 N. E., 247, decided by this court, in which the opinion was written by Judge Levine of the Eighth Appellate District, sitting by designation in this district. In that case the court held that a justice of the peace had no jurisdiction in a forcible detainer action by a vendor against the defaulting purchaser, under contract not providing for vendor’s repossession upon purchaser’s default, title to real estate being involved. Section 10232, paragraphs 5 and 6, General Code.

A careful analysis of the opinion in above case discloses that it did not appear that the land contract under consideration had a clause providing for repossession by the vendor upon default of the purchaser. Thus it would have become necessary for the court to consider and pass upon the equitable rights of the parties to the land contract.before it could determine the right of the vendor to restitution. We held that the justice of the peace, having no such chancery powers, had no jurisdiction to proceed, and that the writ of prohibition could be invoked.

This court in Felger v. Thompson, 27 Ohio App., 310, Judge Kunkle writing the opinion, expressly held at page 314 [161 N. E., 42, 44], that the municipal court of the city of Columbus had jurisdiction in a forcible entry and detainer action to render judgment for restitution to the vendor where “there was an express provision for forfeiture contained in the contract.” This opinion sets forth at length authorities on the question presented and the sections of the statute pertaining to the jurisdiction of the municipal court of the city of Columbus. We therefore will not carry them here.

Another well-considered opinion wherein the distinction to which we have heretofore directed attention is made is that of Hughes v. Kline, 16 N. P. (N. S.), 493 [25 O. D., (N. P.), 263], the syllabus of which reads: “The Ohio forcible detainer statute is broad enough to permit of a suit in forcible detainer against a vendee who has defaulted in his payments under a contract of purchase which expressly provides that in case of default possession shall be surrendered to the vendor. ’ ’

We perceive no conflict in these decisions. Our position is strengthened by the recent opinion of the Court of Appeals of the Ninth Appellate District, State, ex rel. Halchak, v. Doyle, Judge, 41 Ohio App., 569, 180 N. E., 388, especially the fourth proposition of the syllabus: “If a court competent to pass upon its own jurisdiction decides that it has jurisdiction of a subject which clearly is not confided to it by the fundamental law from which it derives its existence and powers, it should be held that the ordinary and usual remedies provided by law for review are not adequate, and a writ of prohibition should be issued; but if the jurisdiction of the court depends upon facts and circumstances which the court passes upon in determining its jurisdiction, it should be held that the ordinary and usual remedies provided by law for review are adequate, and a writ of prohibition should not be issued.”

We do not have the full record of the proceedings on the demurrer in the municipal court. If the facts developed in the municipal court brought this case under the letter and spirit of State, ex rel. Morgan, v. Stevenson, supra, the court was clearly without jurisdiction, but, if the facts brought the case under the law as enunciated in Felger v. Thompson, supra, the court had jurisdiction.' It must be presumed under the evidence in this case that the facts developed permitted a finding by the court of its own jurisdiction. Whether or not the facts were properly determined by the trial judge would, in the event of dispute, be the subject of an error proceeding and not the extraordinary action in prohibition.

The second proposition urged by counsel for plaintiff is that the municipal court cannot assume jurisdiction of the subject-matter of the cause pending there because the amount involved as purchase price for the premises sold, or as balance due under the land contract, is in excess of the maximum fixed as the limit of jurisdiction of the municipal court.

This claim, in our judgment, is without application, for the reason that the gist of the action for forcible detainer is a determination of the right of possession of real estate, and no money judgment, except for costs, is contemplated. We, therefore, are of opinion that the petition of the plaintiff should be dismissed and it is accordingly done.

Petition dismissed.

Allegad, P. J., and Kunkle, J., concur.  