
    Jenney, Administrator de bonis non, et al., v. Walker et al.
    
      Appeal from probate court to common pleas — Does not vacate judgment appealed from — Error for court to so decree — When appeal proceedings are dismissed — Court procedure.
    
    1. An appeal from a judgment of the probate court to the court of common pleas, although properly taken and perfected, does not operate to vacate or annul the judgment appealed from, but merely suspends its execution or enforcement during the pendency of such appeal in the appellate court.
    2. If after the taking and perfecting of such appeal, the appellant commences a proceeding in error in the court of common pleas to obtain a reversal of the judgment appealed from, and thereafter, without objection and before trial, said appeal is dismissed and abandoned, it is error for the court to then dismiss said proceeding in error without other reason therefor than that the appeal taken, vacated and extinguished the judgment appealed from and left no judgment to be reviewed
    (No. 11347
    Decided March 9, 1909.)
    Error to the Circuit Court of Hamilton county.
    On March 31, 1905, in the matter of the estate of James H. Walker, deceased, the plaintiff in error, Elizabeth W. Perry, as executrix of the will of Aaron F. Perry, deceased, who at the time of his death was executor of the will of James H. Walker, deceased, filed in the'probate court of Hamilton county, Ohio, her final account of the decedent’s administration of said James H. Walker’s estate, and on the same day, the plaintiff in error, Herbert Jenney, who had theretofore been, duly appointed administrator de bonis non with the will annexed of said James H. Walker, deceased, filed therein his account current. On April 24, 1905, exceptions' were filed by the defendants in error to each of said accounts. These exceptions were subsequently heard by the probate court, and that court having found and adjudged that said exceptions were not'well taken, on August 9, 1905, overruled the same and approved and confirmed said accounts. From this finding and judgment of the probate court the exceptors, defendants in error herein, appealed to the court of common pleas of Hamilton county, and duly perfected such appeal on September 26, 1905, said appeal .being docketed and numbered in said court of common pleas as case No. 132489. Thereafter, to-wit: on December 7, 1905, defendants in error herein also commenced in said court of common pleas a proceeding in error to obtain a reversal of said judgment of the probate court by filing therein their petition in error together with a transcript of the docket and journal entries, original papers, and bill of exceptions from said probate court, which error proceeding was docketed in said court of common pleas as case No. 132992. On Ma}' 29, 1906, the following entry was made in the court of common pleas in the appeal case: “In the matter of the estate of James Walker, deceased, No. 132489. Now come the appellants in the above case and dismiss their said appeal at their costs.” Thereafter, to'-wit: on May 31, 1906, plaintiffs in error filed their motion in the court of common pleas, in the error case No. 132992, asking that said error proceeding be dismissed, which motion was in the words and figures following: “The defendants in error move to dismiss the petition in error in this case, for that prior to the time when said petition in error was filed in this court, the plaintiffs in error had taken and perfected an appeal, case No. 132489 of this court, from the same judgment in the probate court of Hamilton county, Ohio, case No. 8229 of said probate court, to reverse, vacate and modify which the petition in error in this case was filed, and because at the time the petition in error in this case was filed in this court, the said judgment in said probate court had been vacated and suspended by the said appeal taken and perfected therefrom to this court and filed in this court, and because by said appeal-all the proceedings in said probate court in the said case from which said appeal had been taken, had been removed to this court, prior to the filing of said petition in error, for its hearing and determination, and because at the time of the filing of the petition in error herein there was no judgment in said probate court to which error could be assigned which could be made the basis of proceedings in error, and because at the time of the filing of the said petition in error there was pending in this court case No. 132489, an appeal from the same judgment of the said probate court, which the petition in error herein seeks to reverse, vacate or modify.” This motion was sustained by the court of common pleas and said petition in error was dismissed for the reasons and upon the grounds stated in said motion. This judgment of dismissal was subsequently reversed by the circuit court and we are noy/ asked to reverse said judgment of the circuit court and to affirm the judgment of the court of common pleas. .
    
      Mr. W. H. Mackoy; Mr. Herbert Jenney and Mr. Anthony B. Dunlap, for plaintiffs in error.
    As the order of the probate court, in the case at bar, was appealable, the perfecting of the appeal had the effect to suspend the judgment or order of the probate court, so far vacating it that no final order was left in the probate court upon which to predicate error and no further steps could be taken in the probate court pending the appeal. Grant v. Ludlow’s Admr., 8 Ohio St., 1; Mason v. Alexander, 44 Ohio St., 318; Ginn v. Commissioners, 11 O. C. C., 396, 58 Ohio St., 693; Bassett v. Daniels, 10 Ohio St., 617; Bradford v. Watts, Wright, 495; Field & Co. v. Esch, 18 C. C., 749; State, ex rel., v. Meacham, 6 O. C. C., 31; Brewster, Auditor, v. Anderson, 1 O. C. C, 479; Guardianship of Oliver, 77 Ohio St., 474; Railway Co. v. ITurd, 17 Ohio St., 144; Foeller v. Voight, 4 Am. Law Rec., 671; Tcatf v. Hewitt, 1 Ohio St., 511; Wanser v. Self, 3Ó Ohio St., 378; Menúes v. Candy Co., 77 Ohio St., 386; Rice v. Reed, 29 Ark., 320; Loyd & Wells v. Welch, 35 Ga., 104; Armstrong v. Hand, 36 Ga., 267; In re Railroad Co., 37 Pa. St., 333; Johns v. Fuller & James, 13 Ga 506; Thompson v. Thompson, 1 N. J. L., 159; Martsinger v. Smith, 9 Weekly Notes of Cases, 274; Brozvn v. Plummer, 70 Cal., 337; Heirs of Ludlow v. Kidd’s Exrs., 3 Ohio, 547; Sections 5235 and 6407,’ Revised Statutes.
    
      Mr. J. M. Dawson, for defendants in error.
    Applying- the rule of Section 6411, that the pro? visions of law governing- civil proceedings in the court of common pleas shall, so far as applicable, govern like proceedings in the probate court, we find, that appeals in the court of common pleas are governed by Section 5235, Revised Statutes. This provides that “when an appeal is taken and bond given, the judgment is thereby suspended.”
    But suspension is not vacation. Indeed, suspension implies the existence of the judgment, because, unless the judgment subsisted, there could be no judgment suspended.
    As the statute itself defines the effect of the appeal to be “suspension,” does not this exclude the idea of vacation?
    And when Section 5236 of the statutes provides that, “when the party against whom a judgment is rendered appeals his case the lien of the opposite party on the real estate of the appellant, created by the judgment, shall not be removed or vacated by the appeal,” does it contemplate that there shall be a judgment lien upon a judgment that no- longer subsists, a judgment lien without a judgment? Coffman v. Finney, 65 Ohio St., 61; Oakes v. Williams, 107 111., 154; Curtis v. Root, 28 111., 367; Clay v. Notrebe, 11 Ark., 637; Runyon v. Bennett, 4 Dana (Ky.), 599; Insurance Co. v. Hill, 17 Mo. App., 590; Burgess v. Hitt, 21 Mo. App., 315; Railroad Co. v. Railroad Co., 71 N. Y., 430; Walls v. Palmer, 64 Ind., 493; Fawcett v. Superior Court, 15 Wash., 342; Hull v. Bell Bros. & Co., 54 Ohio St., 228; Foster on Federal Practice, Section 487; McFadden v. Mining & Milling Co., 97 Fed. Rep., 670; Hurst v. Hollingworth, 94 U. S., Ill; Mining Co. v. Canal Co., 118 U. S., 264; Thompson v. Thompson, 1 N. J. L., 159; Rice v. Reed, 29 Arle, 320; Paper Co. v. Iron Works,-46 Neb., 900; Iones v. Crawford, 18 Ga., 282; Improvement Co. v. Malone, 78 Ohio St., 232; In re Railroad Co., 37 Pa. St., 333; Smith v. Morrill, 11 Col. App., 284.
   Crew, C. J.

The record in this case presents but a single question, namely: Can the appellant, in a case which is of right appealable, after he has taken and perfected an appeal, prosecute error to the judgment appealed from before his appeal is dismissed or abandoned. That appeal and error may be concurrently taken under the procedure and practice in this state, was affirmatively held by this court in Hull et al. v. Bell Bros. & Co., 54 Ohio St., 228, in which case it was said: “We are not aware of any statutory provision or rule of law which prevents a party who has taken an appeal from a judgment, from also prosecuting error to obtain its reversal. When doubtful of his appeal, that may be a prudent and commendable practice, otherwise, if his right of appeal should not be determined until after the expiration of the time allowed for prosecuting' error, and then be determined adversely to him thus leaving the judgment in force, his remedy on error would be lost.” This rule, that appeal and error may, under our practice, be concurrently prosecuted, was again recognized and reaffirmed by this court in the recent case of The Willson Improvement Co. v. Malone et al., 78 Ohio St., 232. Notwithstanding these adjudications, it is contended by counsel for plaintiff in error in the present case, that even though it may have been held and settled as in the cases above cited, that a party is not required to determine in the first instance, and at his peril, whether or not a cause is appeal-able, but may if he so elects concurrently invoke both the remedy by appeal and by a proceeding' in error, yet, that where the right to an appeal in fact exists and has been exercised, and the appeal duly taken and perfected, thereafter no proceeding in error can be instituted by the appellant to reverse the judgment appealed from, for the reason, as claimed, that after the appeal is perfected there no longer remains any judgment to be reversed or from which error can be prosecuted, but that the operation and effect of the appeal is to wholly avoid, vacate and annul the judgment appealed from. The error of such contention or claim is found in the fallacy of the premise upon which it rests, namely: that the appeal cancels and destroys the judgment. The effect of the appeal is not, as assumed by counsel, to vacate and destroy the judgment appealed from, but its only effect is to suspend such judgment, and to stay proceedings to enforce its execution. It does not operate to annul the judgment; or to otherwise impair its vitality and obligation than by merely suspending its enforcement during the pendency of the appeal. The lien, if any, created by the judgment is not removed or vacated by the appeal, but subsists and continues in the same manner and to the same extent as if the appeal had not been taken. Section 5236, Revised Statutes. Furthermore, in this state, the effect of an appeal upon the judgment appealed from is not left to speculation or conjecture, but is matter of express statutory regulation, and is defined and declared by Section 5235, Revised Statutes, which provides: “When an appeal is taken and bond given, the judgment is thereby suspended,” etc., and this section, by force of the provisions of Section 6411, Revised Statutes, comprehends and includes, as well appeals from the probate court to the court of common pleas, as from the common pleas to the circuit court. If, then, the only effect of the appeal taken by defendants in error in this case, was to suspend the judgment of the probate court, and not to vacate, annul or set it aside, it follows, that when said appeal was dismissed, and the same wholly abandoned by appellants, and this without objection or exception on the part of the appellees and without the cause having been submitted or tried on its merits, there remained and was a subsisting judgment of the probate court, which appellants were entitled to have reviewed by the court of common pleas on the petition in error filed by them for that purpose. The court of common pleas having erroneously refused to hear said petition in error, and having entered a judgment dismissing the same, such judgment was properly reversed by the circuit court, and said judgment of reversal must be

Affirmed.

Summers, Spear, Davis, Shauck and Price, JJ., concur.  