Weeden v. Weeden

• Decision Date: 15 May 1927
• Docket Number: 19955
• Citation: 116 Ohio St. 524,156 N.E. 908
• Parties: Weeden v. Weeden.
• Court: Ohio Supreme Court

156 N.E. 908

116 Ohio St. 524

Weeden v. Weeden.

19955

Supreme Court of Ohio

May 15, 1927

Court of Appeals - Jurisdiction - Divorce judgment may be reversed on weight of evidence - Section 6, Article IV, Constitution.

Under Section 6, Article IV, of the Ohio Constitution, a Court of Appeals has jurisdiction to reverse a judgment entered in a divorce action by a court of common pleas upon the ground that such judgment is contrary to the weight of the evidence.

This case arose as a divorce suit filed by the plaintiff in error against the defendant in error in the curt of common pleas of Franklin county, Ohio. The plaintiff in error obtained service upon the defendant in error by publication. The defendant filed an answer, and the case was tried wit], both parties being present in court and represented by counsel. The court of common pleas granted the plaintiff a divorce upon the ground of willful absence, and awarded the defendant certain alimony. After motion for new trial was overruled, the defendant filed a petition in error in the Court of Appeals. The Court of Appeals reviewed the record and reversed the decree of the court of common pleas for the following reason:

"That said decree in the court of common pleas of Franklin county Ohio, was not sustained by sufficient evidence, and therefore prejudicial error was committed by said court in that said decree was contrary to the weight of the evidence."

The case comes into this court upon allowance of motion to certify the record.

Mr Robert M. Hunter and Mr. Hugh M. Bennett, for plaintiff in error.

Mr Maurice V. Kessler, and Mr. Robert S. Hayes, for defendant in error.

ALLEN J.

The legal question of substance presented by this record is whether Courts of Appeals in this state have jurisdiction to reverse divorce decrees upon the weight of the evidence. Article IV, Section 6, of the Ohio Constitution, provides:

"* * * The Court of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm modify, or reverse the judgments of the court of common pleas, superior court and other courts of record within the district as may be provided by law * * *."

The same article of the Constitution recognizes the right of Courts of Appeals, within their respective districts, under this constitutional jurisdiction, to reverse on the weight of the evidence, for it provides:

"No judgment of a court of common pleas * * * shall be reversed except by the concurrence of all the judges of the Court of Appeals on the weight of evidence, and by a majority of such Court of Appeals upon other questions * * *."

But the specific question before us is whether a divorce decree is reversible upon the weight of the evidence.

There was in the past a distinction between judgments and decrees, the term "judgment" being properly applied to the judicial decision and final determination of the rights of the parties in an action at law, and the term "decree" being applied to the judicial decision and final determination of the rights of the parties in an equitable action.

Does the decree in question constitute a judgment? It makes findings upon the jurisdictional facts alleged in the pleadings, finds upon the evidence adduced that the defendant has been guilty of willful absence for more than three years prior to the time of filing the petition, and grants the plaintiff a divorce as prayed for. It then orders and adjudges that the marriage contract between the parties be dissolved, that the plaintiff pay the defendant certain alimony in lieu of property set- tlement, and bars the parties from dower rights in the real property of each other.

Certainly this decree contains every element of a judgment. The court of common pleas had jurisdiction of the action and of the parties, and the decree embodied the final determination of that court of the rights of the parties upon all the matters presented by the record, and hence the Court of Appeals had jurisdiction to reverse the decree, just as any other kind of judgment, under the constitutional provision as above cited.

Moreover, if any vital distinction ever had existed between decrees in a divorce court and ordinary legal and equitable judgments, so far as the jurisdiction of the Court of Appeals is concerned it has been completely wiped out by the adjudication of this court in the cases of Cox v. Cox, 104 Ohio St. 611, 136 N. E., 823, and Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St. 188, 135 N. E., 620. The first paragraph of the syllabus in the Chandler case reads as follows:

"1. Such interpretation must be given a provIsion of the Constitution as will promote the object of the people in adopting it, and narrow and technical definitions of particular words should be avoided. In obedience to this rule the term `judgments' appearing in Section 6, Article IV, of the Constitution as amended in 1912, is used in its broad and generally accepted meaning and not in that restricted meaning formerly given it by the Legislature in Section 11582, General Code. The term comprehends all decrees and final orders rendered by a court Of competent jurisdiction and which determine the rights of parties affected thereby."

The plaintiff in error contends, however, that no procedure is provided for review in divorce cases, that divorce cases constitute a class by themselves, and that the general provisions for review are not available in such actions. He grounds a careful and ingenious argument upon the proposition that neither the Constitution nor the judicial decisions provide procedure for reviewing a divorce case, that the divorce chapter contains no provision for error...