Corry v. Lamb

• Citation: 43 Ohio St. 390,2 N.E. 851
• Parties: CORRY v. LAMB.
• Decision Date: 06 October 1885
• Court: United States State Supreme Court of Ohio

43 Ohio St. 390

2 N.E. 851

CORRY

v.LAMB.

Supreme Court of Ohio.

Filed October 6, 1885.

Motion to dismiss petition in error to the district court of Hamilton county.

[Ohio St. 391]Simeon M. Johnson, for the motion.

I. J. Miller and George B. Okey, contra.

OWEN, J.

The plaintiff in error, Catherine Corry, brought the original action in the court of common pleas of Hamilton county, in 1881, for assignment of dower in lands in which she alleged her husband died seized of a legal estate which the defendant in error, Elizabeth Lamb, claimed to hold. Issue was joined, and the cause tried, resulting in a judgment for the defendant. The plaintiff perfected proceedings for appeal of the cause to the district court, wherein a motion to dismiss the appeal was overruled, to which the defendant excepted. The cause was then heard by that court, a finding of facts stated, and the cause reserved for final disposition in this court. The defendant now moves to dismiss the proceeding in error upon the alleged ground that the cause was a special statutory proceeding,-was not a civil action,-and was not appealable.

The plaintiff in error maintained that as the action of the district court in refusing to dismiss the appeal is one of the matters for review in this court, the present motion is premature, and should await the consideration of the whole case upon its merits. (1) If the cause was not appealable, the district court acquired no jurisdiction to hear and reserve it, and this court is entirely without jurisdiction to hear it upon its merits. This court may entertain, at any stage of the proceedings, a question involving its own jurisdiction of the controversy before it. (2) Was the cause appealable? Section 5226, Rev. St., provides that ‘appeal may be taken * * * from a judgment or final order in a civil action rendered by the court of common pleas, and of which it had [Ohio St. 392]original jurisdiction, if the right to demand a jury therein did not exist,’ etc.

The defendant maintains that a proceeding for assignment of dower is a special statutory proceeding, as distinguished from a civil action; that the dower remedy in the Revised Statutes is not classified with civil actions under the Code, as it appears in part 3, Remedial, in tit. 1, under ‘Division 8, Special Proceedings.’ Rev. St. 1361.

This argument is sufficiently answered by the fact that actions to recover lands, actions to quiet title to lands, actions of replevin, and actions to collect back or to enjoin the collection of illegal taxes, are also classified with and as ‘Special Proceedings.’ Are not these civil actions? It was held in Chinn v. Trustees, 32 Ohio St. 236, that ‘the civil action of the Code is a substitute for all such judicial proceedings as were previously known either as actions at law or suits in equity.’ It may be profitable, in the light of this test, to notice the course of legislation concerning dower prior to and since the Code. By an act relating to dower passed January 28, 1824, (2 Chase's St. 1316,) it was provided ‘that the widow applying for dower in the lands of her deceased husband may file her petition in chancery * * * setting forth her rights thereto,’ etc. No special provision was made by this act for the mode of service, etc., thus leaving the petitioner to pursue the mode of proceeding prescribed for suits in equity. This provision remained in force in the same form until March 9, 1866, when it was amended by providing that the widow may ‘file her petition * * * as in civil actions under the Code, * * * upon which...