In re Kurtzhalz, 29442.
| Court | United States State Supreme Court of Ohio |
| Citation | 141 Ohio St. 432,48 N.E.2d 657 |
| Docket Number | No. 29442.,29442. |
| Parties | In re KURTZHALZ. |
| Decision Date | 28 April 1943 |
141 Ohio St. 432
48 N.E.2d 657
In re KURTZHALZ.
No. 29442.
Supreme Court of Ohio.
April 28, 1943.
Proceeding in the matter of Emerson D. Kurtzhalz, who filed a petition for writ of habeas corpus to obtain discharge from custody of the Sheriff of Franklin County, Ohio. From a judgment of the Court of Appeals denying the writ, the petitioner appeals.-[Editorial Statement.]
Affirmed.
[48 N.E.2d 657]
1. An appeal on questions of law brings before the appellate court only the final order, judgment or decree sought to be reviewed.
2. As to the remainder of the cause, the lower court retains all jurisdiction not inconsistent with that of the appellate court to review, affirm, modify or reverse the final order, judgment or decree from which the appeal has been perfected. (Goode v. Wiggins, 12 Ohio St. 341, approved and followed.)
Appeal from Court of Appeals, Franklin County.
This action originated in the Court of Appeals where Emerson D. Kurtzhalz filed a petition in which he asks a writ of habeas corpus upon the ground that he is unlawfully restrained of his liberty by the sheriff of Franklin county, Ohio, under an invalid order of the Court of Common Pleas.
The Court of Appeals denied the writ.
[48 N.E.2d 658]
The case is in this court for review upon an appeal as a matter of right.
Binns & Tresemer, of Columbus, for appellant.
Hamilton & Kramer, of Columbus, for appellee.
WEYGANDT, Chief Justice.
The complaint of the petitioner is that the order of commitment entered by the Court of Common Pleas is invalid for the reason that that court was at that time wholly without jurisdiction to enter any order whatsoever in that case. Is this contention correct? The Court of Appeals held to the contrary.
Although the instant case originated in the Court of Appeals and is an action for a writ of habeas corpus, the background of the controversy lies in a different action that was filed previously in the Court of Common Pleas. The petitioner in the instant case is the defendant in that action in which his wife seeks a divorce and alimony. As the defendant he filed an answer and cross-petition in which a third person was made a party defendant by reason of some alleged claim of interest in certain realty owned by the plaintiff and defendant. The plaintiff obtained a continuing order requiring the defendant to pay her temporary alimony in the sum of $35 per month. Later she filed a motion to strike from the defendant's answer and cross-petition all portions thereof referring to the inclusion of the third person as a party defendant. This motion was overruled. From this overruling the plaintiff then filed in the Court of Common Pleas her written notice of appeal to the Court of Appeals on questions of law. Ten days thereafter the plaintiff changed her mind, and at her request but over the defendant's objection the Court of Common Pleas entered an order permitting her to withdraw the notice of appeal she had filed in that court. However, on the following day the defendant nevertheless filed in the Court of Appeals a transcript of the docket...
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Ferraro v. B.F. Goodrich Company, 01CA007887.
...that is not inconsistent with the court of appeals' jurisdiction to reverse, modify, or affirm the judgment. In re Kurtzhalz (1943), 141 Ohio St. 432, 25 0.0. 574, 48 N.E.2d 657, paragraph two of the syllabus. Nunc pro tune entries Page 287 add Civ.R. 54(B) language to trial court orders ha......
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Malinovsky v. Court of Common Pleas of Lorain County, 92-3691
...Appellate Review § 246 (1978); Yee v. Erie County Sheriff's Dep't, 51 Ohio St.3d 43, 553 N.E.2d 1354, 1355 (1990); In re Kurtzhalz, 141 Ohio St. 432, 48 N.E.2d 657, 659 In the case of appeals on grounds of double jeopardy, the courts almost uniformly hold that when an appeal is taken, the t......
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Harkai v. Scherba Industries, Inc., 2925-M.
...the order.2 See, e.g., Yee v. Erie Cty. Sheriffs Dept. (1990), 51 Ohio St.3d 43, 44, 553 N.E.2d 1354, 1355; In re Kurtzhalz (1943), 141 Ohio St. 432, 25 O.O. 574, 48 N.E.2d 657, paragraph two of the That is not to say that a trial court cannot change its judgment. All judgments are potentia......
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Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc., s. 94-11
...or affirm the judgment. Yee v. Erie Cty. Sheriff's Dept. (1990), 51 Ohio St.3d 43, 44, 553 N.E.2d 1354, 1355; In re Kurtzhalz (1943), 141 Ohio St. 432, 25 O.O. 574, 48 N.E.2d 657, paragraph two of the syllabus. The issue presented by the court of appeals' decision is whether a trial court r......
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Ferraro v. B.F. Goodrich Company, 01CA007887.
...that is not inconsistent with the court of appeals' jurisdiction to reverse, modify, or affirm the judgment. In re Kurtzhalz (1943), 141 Ohio St. 432, 25 0.0. 574, 48 N.E.2d 657, paragraph two of the syllabus. Nunc pro tune entries Page 287 add Civ.R. 54(B) language to trial court orders ha......
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Malinovsky v. Court of Common Pleas of Lorain County, 92-3691
...... In general, the trial court retains jurisdiction over those matters not inconsistent with the appellate court proceedings. 4 O.Jur.3d, Appellate Review § 246 (1978); Yee v. Erie County Sheriff's Dep't, 51 Ohio St.3d 43, 553 N.E.2d 1354, 1355 (1990); In re Kurtzhalz, 141 Ohio St. 432, 48 N.E.2d 657, 659 (1943). . In the case of appeals on grounds of double jeopardy, the courts almost uniformly hold that when an appeal is taken, the trial court retains jurisdiction to decide whether the appeal is frivolous, and if it determines that it is, to proceed to trial. ......
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Harkai v. Scherba Industries, Inc., 2925-M.
...the order.2 See, e.g., Yee v. Erie Cty. Sheriffs Dept. (1990), 51 Ohio St.3d 43, 44, 553 N.E.2d 1354, 1355; In re Kurtzhalz (1943), 141 Ohio St. 432, 25 O.O. 574, 48 N.E.2d 657, paragraph two of the That is not to say that a trial court cannot change its judgment. All judgments are potentia......
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Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc., s. 94-11
...... When a case has been appealed, the trial court retains all jurisdiction not inconsistent with the reviewing court's jurisdiction to reverse, modify, or affirm the judgment. Yee v. Erie Cty. Sheriff's Dept. (1990), 51 Ohio St.3d 43, 44, 553 N.E.2d 1354, 1355; In re Kurtzhalz (1943), 141 Ohio St. 432, 25 O.O. 574, 48 N.E.2d 657, paragraph two of the syllabus. The issue presented by the court of appeals' decision is whether a trial court retains jurisdiction to consider a Civ.R. 60(B) motion for relief from judgment when an appeal from the same judgment is pending. Page ......