Mantho v. Board of Liquor Control, s. 33786

• Decision Date: 23 June 1954
• Docket Number: Nos. 33786,33787,s. 33786
• Citation: 162 Ohio St. 37,120 N.E.2d 730
• Parties: , 54 O.O. 1 MANTHO v. BOARD OF LIQUOR CONTROL et al. DIAZ v. BOARD OF LIQUOR CONTROL er al.
• Court: Ohio Supreme Court

Page 37

162 Ohio St. 37

120 N.E.2d 730, 54 O.O. 1

MANTHO v. BOARD OF LIQUOR CONTROL et al.

DIAZ v. BOARD OF LIQUOR CONTROL er al.

Nos. 33786, 33787.

Supreme Court of Ohio.

June 23, 1954.

Syllabus by the Court.

1. The Court of Appeals has jurisdiction of the subject matter involved in an appeal from a judgment of the Common Pleas Court which is rendered on appeal from a decision of the Director of Liquor Control with respect to the issuance or renewal of liquor permits.

2. Although neither the Director of Liquor Control nor the Board of Liquor Control nor the Department of Liquor Control had authority to prosecute an appeal from a judgment of the Common Pleas Court with respect to the issuance or renewal of liquor permits, at the time such an appeal was taken, nevertheless, where such appeal was prosecuted by the Board of Liquor Control and no objection was raised to the prosecution of such appeal in the Court of Appeals, and the appeal was heard and judgment was rendered by the Court of Appeals, such judgment was valid and can not thereafter be set aside or vacated on the ground of lack of jurisdiction of the Court of Appeals.

Appeals from the Court of Appeals for Franklin county.

These two cases involve the same questions of law and have traveled together through the courts from the Board of Liquor Control. The Mantho case (No. 33786 herein) arose out of the rejection by the Board of Liquor Control on March 28, 1950, of an application for classes D-2 and D-3 permits. The Diaz case (No. 33787 herein) arose out of the rejection by the Board of Liquor Control on March 23, 1950, of an application for a class D-5 permit. In both cases appeals were prosecuted to the Common Pleas Court by the applicants on April 6, 1950, under Section 154-73, General Code.

The Common Pleas Court on April 13, 1951, reversed the decisions of the Board of Liquor Control in both cases and ordered the issuance of permits to the applicants in accordance with their respective applications. Appeals were then promptly prosecuted to the Court of Appeals on questions of law by the Board of Liquor Control, Department of Liquor Control and Director of Liquor Control.

In the Court of Appeals no question was raised as to the right of the appellants to appeal the cases and the cases were there presented on their merits.

On September 30, 1952, the Court of Appeals reversed the judgments of the Common Pleas Court in both cases and affirmed the decisions of the Board of Liquor Control. From those judgments the applicants filed notices of appeal to this court as of right as in cases involving a constitutional question and on condition that motions to certify the records be allowed.

On November 19, 1952, this court dismissed the appeals as of right, Diaz v. Board of Liquor Control, 158 Ohio St. 330, 109 N.E.2d 11, Mantho v. Board of Liquor Control, 158 Ohio St. 331, 109 N.E.2d 14 and overruled the motions to certify the records.

On August 10, 1953, the applicants filed motions in the Court of Appeals asking that the judgments entered therein on September 30, 1952, be stricken from the records of the court. The basis for those motions was the decision of this court in Corn v. Board of Liquor Control, 160 Ohio St. 9, 113 N.E.2d 360.

On October 19, 1953, the Court of Appeals sustained the motions of the applicants and ordered that its judgments of September 30, 1952, be stricken from its records for the reason that the Court of Appeals did not have jurisdiction of the parties in said appeals from the Common Pleas Court and that the judgments of the Court of Appeals reversing the judgments of the Common Pleas Court and affirming the decisions of the Board of Liquor Control are void.

The causes are now in this court upon the allowance of motions made by the board, the department and the director to certify the records.

C. William O'Neill, Atty. Gen., Robert E. Leach, Columbus, and Ralph N. Mahaffey, Ashville, for appellants.

Don Isham, Akron, for appellees.

MIDDLETON, Judge.

The controlling question raised in this court is with respect to the validity of the judgments of the Court of Appeals entered on September 30, 1952 (hereinafter sometimes referred to as one judgment), which reversed the judgments of the Common Pleas Court and affirmed the decisions of the Board of Liquor Control. The position of the appellees, who were the applicants, is that the judgment of the Court of Appeals entered September 30, 1952, is void for the reason that under the decision of this court in Corn v. Board of Liquor Control, 160 Ohio St. 9, 113 N.E.2d 360, the Board of Liquor Control was not authorized by Section 154-73, General Code, to prosecute appeals from the judgments of the Common Pleas Court. Therefore, it is claimed by them that the motion of the appellees herein to vacate its judgment was properly sustained by the Court of Appeals.

The appellants herein--the board, the department and the director--assert that the appellees did not object to the prosecution of the appeals by the appellants from the judgments of the Common Pleas Court at the time the appeals were taken and that the right to prosecute such appeals was not questioned until the motions were filed in the Court of Appeals on August 10, 1953 as hereinabove stated. It is, therefore, asserted by the appellants that the judgment of the Court of Appeals entered September 30, 1952, was a valid and binding judgment which can not now be disturbed.

These are not proceedings to vacate judgments after term pursuant to Section 11631, General Code. Fraud in the procureement of the judgment is not charged. The sole ground of the motions to vacate is lack of jurisdiction in the Court of Appeals to render its judgment of September 30, 1952.

It is elementary that in order to render a valid judgment a court must have jurisdiction of the subject matter and of the parties. Section 6 of Article IV of the Constitution of Ohio invests the Court of Appeals with certain original jurisdiction and 'such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the court of appeals'.

Section 12223-3, General Code, provides:

'Every final order, judgment or decree of a court * * * may be reviewed as hereinafter provided, unless otherwise provided by law * * *.'

Section 12223-22, General Code, provides:

'Appeals on questions of law and fact may be taken:

'(1) From any court, tribunal, commission, or officer to any court of record as may be provided by law.'

Thus it appears that the Court of Appeals has general appellate jurisdiction except as may be specifically limited by statute.

Section 154-73, General Code, which is a part of the Administrative Procedure Act, provides for an appeal to the Common Pleas Court of Franklin County by any party adversely affected by any order of an agency denying the issuance or renewal of a license. That section provides that the judgment of the court to which such appeal has been taken shall be final and conclusive 'unless reversed, vacated or modified on appeal.' In the instant cases the appeals to the Common Pleas Court were regularly prosecuted by the applicants who were unquestionably the parties adversely affected.

Although it can be said that there is no authority for an appeal by the Board of Liquor Control, it can not be validly argued that there is no authority for an appeal from a judgment of the Common Pleas Court to the Court of Appeals, which judgment of the Common Pleas Court was rendered on appeal from a decision of the Board of Liquor Control.

This court has consistently recognized that further appeal to the Court of Appeals may be prosecuted by the party adversely affected, here, the applicants, from an adverse judgment by the Common Pleas Court. It is well settled that the Court of Appeals has complete jurisdiction in an appeal from a judgment of the Common Pleas Court involving the issuance or renewal of liquor permits when such appeal to the Court of Appeals is prosecuted by the applicant as the party interested. In other words, the Court of Appeals has jurisdiction over the subject matter in any appeal from a judgment of the Common Pleas Court involving the issuance or renewal of liquor permits. The only question here posed is whether in the instant cases the Court of Appeals acquired jurisdiction of the persons, when the appeals were prosecuted by the Board of Liquor Control.

The Board of Liquor Control submitted itself to the jurisdiction of the Court of Appeals. The applicants had the right at that time to raise objections to the prosecuting of the appeals and to move for their dismissal. They did not exercise that right but proceeded in such manner as to constitute approval of the appeals. By such conduct they waived their right to raise the question of jurisdiction over the parties after judgment.

In Drake v. Tucker, 83 Ohio St. 97, 93 N.E. 534, 535, the plaintiff insisted that from the nature of the issues joined the case was not appealable from the Common Pleas Court to the Circuit Court, and that the latter court was, therefore,...