State Ex Rel. v. Richards Et Al.
| Citation | 114 N.E. 263,94 Ohio St. 287 |
| Decision Date | 29 May 1916 |
| Docket Number | 15250 |
| Parties | State, Ex Rel. Sylvania Home Telephone Co., v. Richards Et Al., Judges. |
| Court | United States State Supreme Court of Ohio |
Courts of appeals - Certiorari - Entry finding conflict of judgment - Prerequisite to review by supreme court - Conflict must exist when judgment rendered - Certification not authorized where conflict subsequently arises.
1. The provision in Section 6, Article IV, of the Constitution, that "whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeal of the state, the judges shall certify the record of the case to the supreme court for review and final determination," confers exclusive authority on the judges of the court of appeals to find the existence of the conflict referred to, and in order ta vest this court with jurisdiction to review and determine the case that finding must he entered and certified with the record of the case to this court.
2. Where one court of appeals has entered a final judgment in a case pending before it and another court of appeals subsequently renders a judgment upon the same question in conflict therewith, the judges of the former court are not authorized by the provision quoted to make and enter a finding of such subsequent conflict, arrest the enforcement of the judgment entered by it and certify the record of the case to this court for final determination.
This is a proceeding in mandamus brought on the relation of The Sylvania Home Telephone company against the defendants, who are judges of the court of appeals of Lucas county, to compel them to certify to this court for review and final determination the case of The Sylvania Home Telephone Company v. The Berkey Farmers' Mutual Telephone Company et al. The latter case was brought in the common pleas of Lucas county to enjoin the defendant company, which was a company organized not for profit, from constructing and operating a telephone plant in territory already occupied by the plaintiff, until the defendant should procure from the public utilities commission of Ohio permission so to do.
The defendants in that action admitted in their answer substantially that they were constructing a telephone system in Richfield township in the territory occupied by the plaintiff and that they had not received from the public utilities commission and,permission to operate their telephone plant in the territory occupied by the plaintiff company, but alleged that they were not required under the laws of Ohio to procure from the public utilities commission such permission for the reason that they were a mutual company not for profit.
It is admitted by the pleadings in the case at bar that the common pleas court in the original proceeding found for the defendants on the issues joined; that the cause was appealed to the court of appeals, where judgment was entered in favor of the defendants on the sixteenth of February, 1914; and that on the fourteenth of October, 1915 the plaintiff company filed its motion in the court of appeals of Lucas county, moving that court to certify the record of the case to the supreme court for review and final determination for the reason that the decision of the court of appeals was in conflict with judgments rendered by the courts of appeals of Delaware and Morrow counties in causes involving a similar state of facts and the construction of the same section of the code. On the eleventh day of January 1916, the court of appeals caused an entry to be made upon its journal which is set out in the petition of the relator herein. That entry, after reciting the filing of the motion to certify, states that the court "find that the original action was decided and the judgment entered by this court in favor of the defendants, on the sixteenth day of February, 1914; that subsequent to the entering of said judgment, the court of Appeals of Delaware county and Morrow county in the causes set forth in said action, each rendered judgments directly in conflict with the judgment entered by this court in this cause; that the Supreme Court, subsequent to the entering of said judgment, decided in litigation between other parties, that the principle announced by this court in this cause is not the law; and that this cause should not be certified except upon order from the Supreme court so to do, because of the length of time since the entering of the judgment in this case, and because of the changed condition of the parties, and said motion is therefore overruled."
The answer of the defendant-judges in this case substantially alleges that on account of the things recited in the entry referred to they are not required to certify the record.
On the hearing there was no dispute as to the facts and the cause was submitted to the court on the legal question presented.
Messrs Ray & Cordill, for the relator.
Messrs Marshall & Fraser, for the defendants.
Section 6 of Article IV of the constitution contains the following: "Whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination."
A single question is presented: Were the defendant-judges, under the circumstances shown by the pleadings, required by the provision of the constitution above quoted to certify to this court the record of the case referred to?
It will be observed that on February 16, 1914, the court of appeals entered final judgment in favor of the defendant company in the original case. The motion to certify was filed about 20 months thereafter, October 14,1915. On January 11, 1916, the court of appeals caused an entry to be made on its journal in which it is recited that the original action was decided and judgment entered in favor of defe...
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