Fields v. Fields
| Decision Date | 20 April 1950 |
| Citation | 94 N.E.2d 7,88 Ohio App. 149 |
| Parties | , 57 Ohio Law Abs. 225, 42 O.O. 427 FIELDS v. FIELDS et al. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. An order for alimony pendente lite is not 'an order affecting a substantial right made in a special proceeding' within the terms of Section 12223-2, G.C.
2. An action for divorce and alimony is an 'action' within the terms of Section 12223-2, G.C.
3. An order for alimony pendente lite does not in effect determine such action for divorce or alimony.
4. An order for alimony pendente lite is not a final order or judgment from which an appeal on questions of law may be taken to the Court of Appeals.
5. Jurisdiction to entertain an appeal upon questions of law cannot be conferred upon the Court of Appeals by consent, if such jurisdiction does not otherwise exist.
6. By virtue of the 1912 and 1944 Amendments of Art. IV, Sec. 6 of the Ohio Constitution, Courts of Appeals only have jurisdiction to entertain appeals upon questions of law from the final orders and judgments of courts of record within their districts.
7. Where it appears that the order from which an appeal on questions of law is taken to the Court of Appeals is not an order effecting a substantial right in an action in effect determining such action or preventing judgment and is not an order effecting a substantial right in a special proceeding or an order made in a summary application in an action after judgment, and it does not appear that the trial court abused its discretion in making such order, it is the duty of such Court of Appeals sua sponte, to dismiss such appeal upon questions of law.
M. H. Dixon, Cleveland, for plaintiff appellant.
Irwin Greene, Cleveland, for defendant appellee.
An appeal upon questions of law and fact was originally filed from an order of the Court of Common Pleas of Cuyahoga County fixing alimony pendente lite. This appeal was reduced to an appeal upon questions of law.
An examination of the record is conclusive in showing that there was no abuse of discretion by the trial court in making the order from which such appeal was taken. This court has been informed that a motion to dismiss the latter appeal on the ground that no final order or judgment is involved was passed upon by the Court of Appeals of the Eighth District and the motion overruled. Such motion was not renewed before this Court. However, if this Court has no jurisdiction to entertain such an appeal, it becomes the duty of this Court sua sponte to dismiss such an appeal.
It is the conclusion of this Court that it has no such jurisdiction for the reason that no final order or judgment was entered or rendered in the trial court. Jurisdiction on appeal may not be conferred by consent or waiver. The appeal upon questions of law must, therefore, be dismissed.
It is recognized in so holding that its conclusion is in conflict with the judgment of the Court of Appeals of the 9th District in the case of Taylor v. Taylor, 74 Ohio App. 191, 57 N.E.2d 931, and with the action of the Court of Appeals of the 8th District in the instant case, and this case will therefore be certified to the Supreme Court for such conflict. This Court reaches its conclusions for the following reasons:
An Act, being 'An Act Concerning Divorce and Alimony' passed March 6, 1840, Chap. 305, Revised Statutes of Ohio, 1853, Curwen Vol. 1, p. 602, was repealed March 11, 1853 and new provision made for this action. Revised Statutes of Ohio 1854, Curwen, Vol. 3, p. 2167, designated Chapter 1252.
Under the former Act, jurisdiction was placed in the Supreme Court, in the latter in the Courts of Common Pleas.
In Curwen's Revised Statutes of Ohio 1854, Vol. 3, page 1938, will be found an Act of the General Assembly passed March 11, 1853. This Act is entitled 'An Act to Establish a Code of Civil Procedure.' Section 604 of this Act, page 2036, Curwen's Revised Stat. Vol. 3, entitled 'Code Not to Control Special Proceedings' provides that 'Until the legislature shall otherwise provide this Code shall not affect proceedings on Habeas Corpus, Quo Warranto or to assess damages for private property taken for public uses; or proceedings under the statutes for the settlement of estates of deceased persons; nor proceedings under statutes relating to dower, divorce or alimony, or to set aside a will; nor proceedings under statutes relating to apprentices, arbitration, bastardy, insolvent debtors; nor any special statutory remedy not heretofore obtained by action; but such proceedings may be prosecuted under the Code, whenever it is applicable.' (Emphasis added.)
Going back to Section 3 of this same Act, page 1939, Curwen's Revised, Statutes 1854, Vol. 3, we find
Sec. 512 of this same Act, page 2021, Id., is:
It is clear, therefore, that under the Code so in effect in 1854, an action for divorce or alimony or both would have been considered special proceedings and an order made therein affecting a substantial right, such as an order for alimony pendente lite would have been a final order under Section 512, supra.
This Code of Civil Procedure took effect by its terms July 1, 1853, Sec. 614, page 2040, Id.
In Swan & Critchfield Statutes 1868 we still find the provision that the general provisions of the Code are not applicable to certain special proceedings, including divorce and alimony, until the legislature shall provide otherwise. Swan & Critchfield Statutes 1868, Vol. II, page 1131, Sec. 604.
It would seem that the view that actions for divorce and alimony were special proceedings under the Code of Civil Procedure of 1853 is sustained by Ex parte Collier, 6 Ohio St. 55, 60.
In 1878, the General Assembly passed an Act: 'To revise and consolidate the laws relating to civil procedure in courts of common pleas and superior courts, in district courts on appeal and also the laws relating to procedure in error, mandamus and quo warranto.'
This Act was Senate Bill No. 115, and will be found in Vol. 75 Laws of Ohio, beginning at page 597. Title I of the Act bore the heading: 'Procedure in the Courts of Common Pleas and Superior Courts and in District Courts of Appeal.' The heading also carried designation of the following divisions:
'Heading Division I. General and Preliminary Provisions
'Division V. Enforcement of Judgment.
Turning to the Heading Division VII, at page 726, Vol. 75 Laws of Ohio, under the title 'Special Proceedings' the following Chapters appear, page 726, Id.:
'Chapter 1. Amercement
Chapter 13. Taxes and Assessments--Relief against illegal.
Chapter 19. Wreck-Masters.'
Now it appears from such category of actions that many other civil actions, in addition to action for divorce and alimony, now clearly recognized as not properly falling within the designation of 'Special Proceedings' are included in this list such as 'Partition' and 'Replevin.'
This Act was incorporated in the Revised Statutes of Ohio 1879 as Section 4947 et seq.
Revised Statutes, Section 6707 is the same as Section 512, Curwen's Statutes 1854, supra, and Divorce and Alimony are carried under Title I, Division 7 as Special Proceedings. Section 5689 et seq.
In An Act passed by the General Assembly, February 14, 1910, the First General Code of Ohio came into existence. By such codification an entirely different classification of actions and proceedings was adopted. By reference to the Titles of Part Third, the same as now in force, it will be found that under 'Title IV--Procedure in the Common Pleas Court' that Division II covers 'Civil Actions;' that Division VII covers 'Special Actions;' and Division IX covers 'Special Proceedings' and that under Chapter III is devoted to 'Divorce and Alimony' commencing with Section 11979. Under it is provided that 'An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense.' Section 11237.
This definition obviously includes both civil and criminal actions and prosecutions.
Under this Division appear: Chapter 1, dealing with the 'Form of Action;' Chapter 2, dealing with 'Parties to Action;' Chapter 3 providing where the action shall be brought; Chapter 4, covering the 'Commencement Of Action' and Chapter 5, relating to 'Pleadings.'
Although Division VII, Chapter 3, dealing with Divorce and Alimony, has many separate provisions as to pleading, process and parties, on the other hand many provisions of Division II,...
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