
    West v. West.
    
      Court of appeals — Jurisdiction on appeal — Custody and support , of children — Section 6, Article IV, Constitution, 1912.
    
    (No. 16156
    Decided May 13, 1919.)
    Certified by the Court of Appeals of Franklin county.
    The plaintiff below, David A. West, brought suit against the defendant for a divorce, and prayed for the custody of certain minor children.
    The divorce was granted and the custody of the children was also awarded him. Thereafter the defendant filed a motion for modification of the former order, and upon^ hearing had the court changed the custodianship of said children, awarding them to the defendant, and plaintiff was ordered to pay twenty dollars per month for their support.
    From the latter decree an appeal was taken to the court of appeals. The defendant wife filed a motion to dismiss the appeal upon the ground that under Section 6, Article IV of the Constitution, the court of appeals was without jurisdiction. The motion to dismiss the appeal was sustained by the court of appeals, and the cause is here upon certification of the record by the court of appeals.
    
      Messrs. DeGalley & DeGalley, for plaintiff in error.
    
      Mr. John H. Bartram and Mr. C. M. Voorhees, for defendant in error.
   By the Court.

We hold that the vital question in this case has been decided in Marleau v. Mar leau, 95 Ohio St., 162. The syllabus in that case reads:

“A proceeding for alimony does not invoke the equity powers of the court but is controlled by statute. The court is only authorized to exercise such power as the statute expressly gives, and such as is necessary to make its orders and decrees effective.”

In the course of the opinion, Johnson, J., says:

“It is also provided by Section 11987, General Code, which is included in the chapter with reference to divorce and alimony proceedings, that the court shall make such order for the disposition, care and maintenance of the children, if any, as is just. This is also purely incidental to the statutory action, and the order referred to will depend upon the action of the court concerning the original cause of action.”

It is impossible to distinguish in principle any substantial difference in the nature of the action for alimony and the kindred action of custody and support for the minor children. They both grow out of the same grievance, to-wit, the breach of the marriage relation in some behalf recognized by. the statute. . .

Judgment of the court of appeals is therefore affirmed..

Judgment affirmed.

Jones, Matthias, Johnson and WanAmaker, JJ., concur.

Nichols, C. J., Donahue and Robinson, JJ. dissent.  