
    Degenhart v. Harford.
    (Decided May 25, 1938.)
    
      
      Mr. A. G. Link and Mr. M. E. Spencer, for plaintiff.
    
      Mr. George S. Dial, for defendant.
   Ross, P. J.

This' is an original proceeding filed in this court.

The petition contains recitals of a former proceeding and decree of the Court of Appeals for Clark county. The prayer of the petition is directed to the vacation of such decree.

The original jurisdiction of this court is defined and limited by Article TV, Section 6 of the Constitution of Ohio. Wagner v. Armstrong, 93 Ohio St., 443, 113 N. E., 397.

This proceeding is an original action and does not come within the purview of any original action mentioned in the appropriate constitutional provision.

The desirable characteristic of finality of judgments has been recognized by the people and their Legislature, and it is only in exceptional cases, specifically noted, that the judgment of any court may be affected by any subsequent proceeding after term. The decree in the instant case was entered May 25,1936. This petition was filed October 25, 1937. The decree was not disturbed by proceedings to review the decree in the Supreme Court. It is not contended that it is void; nor is it. It is not contended that it was induced or procured by fraud. It is merely asserted that conditions existing at the time the decree was entered and upon which the conclusion of the court was predicated have changed.

Counsel for the original plaintiff, defendant in the instant action, has not raised the question of the jurisdiction of this court to entertain this action. In fact, such counsel seems to acquiesce in suggesting that this court entertain the proceeding. That parties litigant may not by acquiescence or request confer jurisdiction upon a court, not having jurisdiction of the subject-matter of the action, is a principle too well recognized to require other than the mere statement of the rule. Rohn, Admr., v. Dunbar, 13 Ohio St., 572.

Granting that Section 11631, General Code, may be construed to provide for other than original actions, none of its provisions apply or are invoked by the facts set forth in the petition.

As the action stands, therefore, it is not maintainable.

As' was stated from the bench, such being the case, in the interests of justice this court will consider the proceeding as a motion to modify the continuing injunction contained in the original decree. Such injunction was made permanent, and was based upon a certain set of conditions prevailing at the time the decree was entered. If such conditions have materially changed, it would be unjust to longer continue such injunction, and this court has inherent power to modify or vacate the same, even after term.

The original petition contained two causes of action. One set forth facts developing that the maintenance of a funeral home in close proximity to the residence of the plaintiff was in effect a nuisance. The second cause of action was based upon facts showing that the ordinances of the city of Springfield forbade, in effect, the maintenance and operation of a funeral home in a residence district.

The prayer of the petition upon each cause of action was sustained and the Court of Appeals considering the case de novo, upon the former appellat¿ practice, so entered its decree upon both causes of action.

The matter is presented to this court upon an agreed statement of facts.

It is’ not contended by counsel, nor do we find stated in the agreed statement of facts, that any condition or situation different from that prevailing at the time of the original decree exists, with the single exception that the city of Springfield has modified its zoning ordinances so as now to permit the existence, maintenance, and operation of funeral homes within residence districts.

It is' to be noted that the Court of Appeals of Clark county found as a matter of law that the operation of such funeral home in the residence district under consideration constituted a nuisance, and that, although the zoning ordinance as then enacted, forbidding such operation in residence districts, was before the court, such fact was not the basis for the conclusion that the operation constituted a nuisance, for this fact was made the specific basis for sustaining the second cause of action based solely upon the ordinance.

The court, in its decree, stated, as to the first cause of action predicated upon nuisance:

“First: that the operation of a funeral home in the manner and with the effects heretofore set forth, and at the place where it would be conducted namely, in a residential district, is a nuisance, and that the plaintiff has sustained the first cause of action of her petition.”

Were we to modify the injunction based upon this finding and decree, we would be, in effect, acting as a court of review upon the decree of the Court of Appeals' of Clark county, and in effect reversing the legal conclusion of that court upon a state of facts which has not been changed. This we are not permitted by law to do.

While the predicate for the court’s conclusion upon the second cause of action, based upon the zoning ordinance has been changed, it would be unavailing to make any finding as to such second cause of action in view of the finality of that portion of the decree dealing with the first cause of action.

Our conclusion, therefore, is that the petition, as such, in this cause shall be dismissed, and, considered as a motion to modify the injunction, such motion is overruled.

Decree accordingly.

Hamilton and Matthews, JJ., concur.

Ross, P. J., Hamilton and Matthews, JJ., of the First Appellate District, sitting by designation in the Second Appellate District.  