
    Deniel v. The State of Ohio.
    
      Intoxicating liquors — Error will not lie to court of appeals — From refusal of court of common pleas — To review finding of magistrate, when.
    
    Where one who has been tried and convicted before a magistrate for violation of the law against the sale of intoxicating liquors applies to the court of common pleas for leave to file a petition in error to review the proceedings and judgment of the magistrate, and the court to whom the application is made refuses to grant leave to file a petition in error, such refusal is not reviewable on error in the court of appeals.
    Decided September 11, 1913
    On Motion: Court of Appeals for Ashtabula county;
    Norris, J.; Pollock and Metcalfe, JJ., concurring.
   Motion for leave to file petition in error to review the refusal of the court of common pleas to permit a petition in error to be filed in the same case and motion to strike off that motion.

Deniel was convicted before a magistrate of violation of the law ag-ainst the sale of intoxicating liquors. He made application to the court of common pleas for leave to file a petition in error to review the proceedings and judgment of the magistrate, which leave was refused. Application was made to this court for leave to file a petition in error to review that refusal, and motion made to strike off the motion for review.

We had supposed that the question of granting leave in such a case was settled by the supreme court in the case of The Village of Canfield v. Brobst, 71 Ohio St., 42, the syllabus of which is as follows: “Where one who has been tried and convicted before the mayor of a municipal corporation for violation of an ordinance, applies under section 1752, Revised Statutes, to the court of common pleas, or a judge thereof, for leave to file a petition in error to review the proceedings and judgment of the mayor, and the court, or judge, to whom the application is made refuses to grant-leave to file the petition in error, such refusal is not reviewable on error in the circuit court.”

Now it is urged that there is a distinction between this case, which is a prosecution for violation of the liquor law, and a prosecution for violation of the village ordinance, but the supreme court do not put the decision in the Canfield case upon any such distinction as is urged by counsel. In this case application was to be made to the court. In the Canfield case it might have been made to the court or a judge thereof. But what may the court review? Section 6707, Revised Statutes, provided:

“An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, is a final order which may be vacated, modified, or reversed, as provided in this title.”

Now the supreme court in the Canfield case say that there was no action pending, simply an application for leave to file, and it could not be claimed that it was an order made in an action, and they say:

“The application for leave to file a petition in error, cannot be dignified with the name of a proceeding, special or otherwise. The term ‘special proceeding’ is sometimes defined as a proceeding in a court which was not, under the common law and equity practice, either an action at law or a suit in chancery. The term is used in code states in contradistinction to ‘actibn.’ The defendant in error sought to institute a proceeding. He could do so only upon leave of the common pleas court or a judge thereof. The asking leave is not a special proceeding, and does not become such until the door of the court is opened for its entrance.”

Now it would seem that this reasoning applies with equal force to proceedings under the liquor law, which provides that no petition in error can be filed without leave of the court, and when such leave is refused there is nothing for a higher court to review. See also the case of Walder v. State, 82 Ohio St., 452, where the supreme court applied the reasoning in the Canfield case to a case for violation of the law prohibiting the sale of intoxicating liquors. There is a further reason that under the new constitution the jurisdiction of the court of appeals is expressly limited as follows: “The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas.”

Mr. R. E. Mygatt, for motion to strike off.

Messrs. Chadman & Appleby, contra.

As we have already found, there was no judgment of the court of common pleas in this case, so there was nothing for this court to modify or reverse. The motion to strike off the motion for leave to file a petition in error will be sustained and the motion stricken off.

Motion sustained.  