Bradfordv.Micklethwaite

Supreme Court of OhioMay 11, 1955
163 Ohio St. 301 (Ohio 1955)

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No. 34102

Decided May 11, 1955.

Proceeding to determine heirship — Section 10509-95 et seq., General Code — Special statutory, ancillary proceeding — Appealable on questions of law only.

A proceeding instituted in the Probate Court by an executor or administrator, under Section 10509-95 et seq., General Code (Section 2123.01 et seq., Revised Code), for a determination of those persons entitled to the property of a decedent is a special statutory proceeding ancillary to the administration of an estate, is not of an equitable nature constituting a chancery case, and is appealable to the Court of Appeals on questions of law only and not on questions of law and fact.

APPEAL from the Court of Appeals for Franklin County.

The present proceeding originated in the Probate Court of Franklin County, when LeRoy Bradford and Chester A. Micklethwaite, coadministrators of the estate of Dennis Raymond Kelly, deceased, filed their petition under Section 10509-95 et seq., General Code (Section 2123.01 et seq., Revised Code), asking for a determination of the person or persons entitled to the property of such decedent.

Numerous pleadings in the form of answers and replies were filed by those claiming the property, and at the hearing considerable evidence was introduced. Notwithstanding the allegations in their pleadings, all the defendants sought but one ultimate thing, namely, to be declared the person or persons legally entitled to the decedent's estate.

Thereupon the Probate Court made its findings and adjudication as required by Section 10509-99, General Code (Section 2123.05, Revised Code).

Disappointed litigants perfected appeals on questions of law and fact to the Court of Appeals from the judgment of the Probate Court, under authority of Section 10501-56, General Code (Section 2101.42, Revised Code). A motion was then filed by Hazel M. Melick, Raymond C. Micklethwaite and Chester A. Micklethwaite, defendant appellees, for an order dismissing the appeals on questions of law and fact. Such motion was sustained, but the cause was retained for hearing as on appeal on questions of law.

The question of the correctness of such ruling by the Court of Appeals is presented to this court by appeal pursuant to our Rule XXIV.

Mr. H. Paul Joseph, for plaintiff appellees.

Messrs. Graham, Graham, Hollingsworth, Gottlieb Johnston, for defendant appellees.

Mr. Carrington T. Marshall, Mr. Orland R. Crawfis, Mr. John H. Summers, Mr. Frank A. Hunter, Mr. Peter Vacca, Mr. Aaron J. Halloran, Mr. Donald M. Hamilton, Sr., Mr. Frank H. Kearns, prosecuting attorney, Mr. Paul W. Martin and Mr. Charles A. Eberly, for appellants.


The sole question with which this court is now concerned is whether the Court of Appeals should hear and determine this controversy as on appeal on questions of law and fact, as contended by the appellants, or whether that court was correct in determining that the cause should be heard and disposed of as on appeal on questions of law only, without a retrial of the facts.

Concededly, the right of appellants to have the cause heard and determined by the Court of Appeals as on appeal on questions of law and fact is dependent on whether the proceeding is of an equitable nature and constitutes a chancery matter.

Appellants urge that such is the case and that Section 10509-95 et seq., General Code (Section 2123.01 et seq., Revised Code), which provide for the determination of the persons entitled to a decedent's property, create a situation analogous to the equitable remedy of interpleader; that an executor or administrator in asking for a determination of heirship is acting merely as a stakeholder or trustee; and that the court in adjudicating the rights of rival claimants acts as a chancellor.

In support of their position appellants rely principally on the cases of Cram v. Green, Admr., 6 Ohio, 429; Wagner v. armstrong, 93 Ohio St. 443, 113 N.E. 397; Waters v. Corlett, Admx., 123 Ohio St. 632, 176 N.E. 565; and Warner, Supt. of Building Loan Assns., v. Mutual Building Investment Co., 128 Ohio St. 37, 190 N.E. 143.

None of the cases cited is factually similar to the instant case and we find none of them particularly helpful in deciding the precise question here presented.

Section 8, Article IV of the Constitution of Ohio, provides:

"The Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians, * * * and such other jurisdiction, in any county, or counties, as may be provided by law."

The Determination of Heirship Act, comprising Sections 10509-95 to 10509-101, inclusive, General Code (Sections 2123.01 to 2123.07, inclusive, Revised Code), represents new legislation which became effective January 1, 1932. Such act provides for a special proceeding ancillary to the administration of an estate and gives permissive authority to an executor or administrator or other interested party to call upon the Probate Court for a determination of what persons are entitled to a decedent's property. And when an executor or administrator institutes such a proceeding in the Probate Court, that court has exclusive jurisdiction to make the adjudication. Kane v. Kane, 146 Ohio St. 686, 67 N.E.2d 783.

The question of what person or class of persons succeeds to the estate of a decedent is one of law governed by the statutes of descent in force at the time of his death, but the basis or grounds upon which a person claims to be heir of another is a question of fact. Ernull v. Whitford, 48 N.C. (3 Jones, Law), 474 (an action in ejectment reviewed on error from the Superior Court).

Procedure in the Probate Court is prescribed by statute, and where the statutes make no provision for a jury trial on questions of fact such questions are for the court alone. And merely because the right of trial by jury is not provided for does not make a chancery case out of one which in reality is not. 2 Ohio Jurisprudence (2d), 693, Section 99.

In most states an appeal may be taken from a judgment determining heirship. Section 10501-56, General Code (Section 2101.42, Revised Code), provides for an appeal from a judgment of the Probate Court to the Court of Appeals or to the Court of Common Pleas, a court of general jurisdiction. The latter part of the section reads:

"For the purpose of prosecuting appeals on questions of law, and of law and fact from the Probate Court, the Probate Court shall hereafter be deemed to be exercising judicial functions inferior only to the Court of Appeals and the Supreme Court. If, for any reason, a record has not been taken at the hearing of any matter before the Probate Court so that a bill of exceptions or a complete record may be prepared as provided by law in Courts of Common Pleas, then an appeal on questions of law and fact may be taken to the Court of Common Pleas by a person against whom it is made, or whom it affects, from any order, decision, or judgment of the Probate Court in the manner provided by law for the prosecution of such appeal from the Court of Common Pleas to the Court of Appeals * * *."

In 26 Corpus Juris Secundum, 1135, Descent and Distribution, Section 82, the following statements appear:

"* * * in some jurisdictions, on appeal to the appellate court after proceedings [to establish heirship] in the court of general jurisdiction on appeal from the probate court, the appellate court will review only the proceedings had in the court of general jurisdiction. [See In re Estate of Paus, 324 Ill. App. 58, 57 N.E.2d 212.] * * *

"In some states, on appeal from the probate court to a court of general jurisdiction, the court of general jurisdiction will try the case de novo * * *. Similarly, in some states, proceedings had in the court of general jurisdiction will be reviewed in the same manner as if the proceedings were in equity * * * the weight and sufficiency of the evidence is regarded as a question for the trial court, whose findings thereon ordinarily will be sustained, as variously expressed in different opinions, where supported by any evidence, or where not clearly against the weight of the evidence, or where the evidence is conflicting, or where there has not been legal error in submission of the case to the trial court." (Emphasis supplied.) See In re Estate of Westerfield, 96 Cal. 113, 30 P. 1104.

In the second paragraph of the syllabus in the case of In re Estate of O'Connor, 114 Neb. 266, 207 N.W. 31, the court held:

"A proceeding begun in the county court, to determine whether petitioners are next of kin and heirs at law of a decedent, does not present a case calling for the exercise of equitable jurisdiction, and does not fall within the provisions of Section 9150, Comp. St. 1922, requiring a trial of the issue of fact de novo in the Supreme Court."

Now, by express statutory provision in Nebraska, an action for determination of heirship and the right of descent as to real and personal property belonging to a decedent is tried as an equity case in the District Court, and on appeal to the Supreme Court the case is tried de novo on the record presented. In re Estate of Bergren, 154 Neb. 289, 47 N.W.2d 582.

In In re Milton's Estate, involving a claim of heirship, 182 Okla. 625, 627, 79 P.2d 612, 615, the court said:

"Section 1412, O.S., 1931 [58 Oklahoma Statutes, annotated, Section 735], provides:

"`When the appeal is on questions of fact, or on questions of both law and fact, the trial in the District Court must be de novo, and shall be conducted in the same manner as if the case and proceedings had lawfully originated in that court; and such appellate court has the same power to decide the questions of fact which the county court or judge had, and it may, in its discretion, as in suits in chancery, and with like effect, make an order for the trial by jury of any or all the material questions of fact arising upon the issues between the parties * * *.'

"It will thus be noted that the trial provided in the District Court is, strictly speaking, neither one at law nor one in equity, but is a statutory proceeding par-taking of some of the features of both, but more of the nature of a proceeding in equity than one at law. Where a trial has thus been had and an appeal from the judgment of the District Court is prosecuted here, this court on review will examine the whole record and weigh the evidence in like manner as if the proceeding was an equitable one, but will not disturb the finding and judgment of the District Court unless they are against the clear weight of the evidence." (Emphasis supplied.)

In Impson v. Kelley, 195 Okla. 666, 163 P.2d 984, 985, a proceeding to determine heirship and quiet title to land, the court remarked:

"The trial in the District Court was a statutory proceeding. The judgment rendered is reviewable in the same manner as a decree in an action of equitable cognizance. * * * The judgment or decree of the trial court should not be reversed unless it is clearly against the weight of the evidence." (Emphasis supplied.)

In Ohio there are no statutory enactments like the ones referred to in Nebraska and Oklahoma. Although this court has never passed directly on the nature of the Determination of Heirship Act, it has generally been held by the courts of this state that, under Ohio jurisprudence, probate and testamentary matters do not constitute chancery cases. See 2 Ohio Jurisprudence (2d), 716, 734, Sections 111, 133; In re Estate of Gurnea, 111 Ohio St. 715, 146 N.E. 308; Squire, Supt. of Banks, v. Bates, 132 Ohio St. 161, 5 N.E.2d 690; In re Estate of Stafford, 146 Ohio St. 253, 65 N.E.2d 701. Compare 2 Ohio Jurisprudence (2d), 734, Section 133, note 12; to which may be added the case of Jones, Admr., v. Lewis, 70 Ohio App. 17, 44 N.E.2d 735. See, also, Ogelsbee v. Miller, Exr., 125 Ohio St. 223, 181 N.E. 26.

In Poling v. Price, 109 W. Va. 274, 153 S.E. 581, the court flatly held in its syllabus: "Heirship to property is ordinarily a question to be determined in a court of law."

"Proceedings for the administration of the estates of deceased persons, and for their distribution to those who may be entitled thereto, including the determination of the heirs of the decedent, are purely statutory." Smith v. Westerfield, 88 Cal. 374, 378, 26 P. 206, 207. And see Bales v. Superior Court of Los Angeles County, 21 Cal.2d 17, 129 P.2d 685.

We have come to the conclusion that a proceeding instituted in the Probate Court by an executor or administrator to determine heirship as authorized by Section 10509-95 et seq., General Code (Section 2123.01 et seq., Revised Code), is strictly a special statutory proceeding incident to the administration of an estate and is not a chancery matter, and that the Court of Appeals acts properly in refusing to entertain an appeal on questions of law and fact from the judgment of a Probate Court in such a proceeding and in disposing of the appeal as one on questions of law alone.

Consequently, the judgment of the Court of Appeals herein is affirmed and the cause remanded to that court for further proceedings.

Judgment affirmed.

WEYGANDT, C.J., HART and BELL, JJ., concur.

MATTHIAS, STEWART and TAFT, JJ. dissent.


It is suggested in the dissenting opinion that the appeal in this case should be dismissed for want of a final reviewable order in the Court of Appeals.

The question there under discussion is not new, and the answer is found in both the Constitution and the statutes. Section 2505.03, Revised Code (Section 12223-3, General Code), is not mentioned. It reads in part: "Every final order, judgment, or decree of a court * * * may be reviewed as provided in Sections 2505.04 to 2505.45, inclusive * * *."

Nor has Section 2505.28, Revised Code (Section 12223-28, General Code), been mentioned. It reads in part: "A judgment rendered or a final order made by a Court of Appeals or a judge thereof * * * may be reversed, vacated, or modified by the Supreme Court * * *."

The constitutional answer to the question is found in the unanimous decision of this court in the case of Chandler Taylor Co. v. Southern Pacific Co., 104 Ohio St. 188, 135 N.E. 620.

In paragraph one of the syllabus the court held:

"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."

In his opinion Judge Jones discussed the meaning of the term, "judgments," in the following clear language:

"It is here contended by defendant in error that by the use of the term `judgments' in the Constitution of 1912, final orders were thereby definitely excluded and are no longer reviewable. While this phase of the controversy was not before us it was queried by the judge delivering the opinion in Thompson v. Denton, 95 Ohio St. 333, 340. Were we to give a restricted meaning to the term `judgment,' employed in said Section 11582, we might be forced to the conclusion that those who wrote the Constitution of 1912 did not intend to embrace final orders as being within the appellate jurisdiction of the Supreme Court and the Court of Appeals.

"When the provisions of the judicial article were under consideration by the Constitutional Convention there is nothing in the history of that body, nor in its discussion, which tends to show that an order affecting the substantial rights of litigants, whether made in an action, or in a special proceeding, or in a summary action after judgment, could not thereafter be reviewed by a higher court. On the other hand, both in its discussion and in its submission to the people stress was laid upon the fact that a litigant should have both trial and review.

"We appreciate the gravity of the legal problem here involved. But in its solution this court cannot adopt a construction so narrow as to deprive litigants of remedies enjoyed since the adoption of our Civil Code of Procedure. Our bench and bar of this and preceding generations knew that the definitions of `judgments' and `final orders' had been engrafted upon our civil code and that our remedial procedure embraced the review of final orders; and undoubtedly those who framed the Constitution of 1912 did not contemplate a restriction of those civil remedies continuously employed for a period of more than 60 years. While we may not permit the conferment of legislative jurisdiction upon the Court of Appeals under our present Constitution, it is permissible to define the term `judgments' as used in the Constitution. At common law the term was used in a restricted sense. Lexicographers and courts have variously defined it, some giving it a restricted and others a broad and comprehensive meaning. We are satisfied that in order to effectuate the purpose of those who framed this amendment, and in order to promote the object of the people in its adoption, a technical definition should be disregarded and a broad and comprehensive meaning should be adopted. We, therefore, hold that it comprehends decrees and final orders rendered by a court of competent jurisdiction and which determine the rights of parties affected thereby. Were we to arrive at any other conclusion than herein announced a review of a large number of final orders affecting the substantial rights of litigants would be denied.

"An examination of the reported cases in this state will disclose that there are a large number of final orders which have always been reviewable by our appellate courts, and, if we should hold to the strict definition of the term `judgment,' as contended for, not only would the right of review be denied to litigants in such cases, but the Legislature would be powerless to provide a remedy by proceedings in error. And while this feature of the case has not been heretofore decided by this court, final orders made since the adoption of our amended Constitution have been reviewed by the Court of Appeals and the Supreme Court in the following cases: Continental Tr. Sav. Bk. Co. v. Home Fuel Supply Co., 99 Ohio St. 453; Gorey v. Black, 100 Ohio St. 73, and First National Bank of Dunkirk v. Smith, 102 Ohio St. 120."

That decision never has been overruled and has been followed in numerous later decisions.

In 2 Ohio Jurisprudence (2d), 687, reference is made to Rule XXIV as follows:

"Before the rule was adopted, and before the adoption of the new appellate code, in a case decided at a time when both appeal and error existed and it was common practice, in doubtful cases, to prosecute both, it was held that if the motion to dismiss the appeal was sustained, in a case in which concurrent appeal and error had been taken, the appellant had the right to prosecute error to the Supreme Court from the judgment of dismissal."

The finality of such a dismissal is apparent when it is remembered that such a judgment or order definitely and finally denies the appellant the right of a retrial on the facts in that court, and, being a final order or judgment, it clearly should be reviewable at once. However, it is insisted that this final order or judgment of dismissal may not be reviewed by the Supreme Court unless and until the appellant has incurred the expense and delay of obtaining a bill of exceptions and the Court of Appeals has heard and decided the matter on questions of law only — a wholly useless procedure if the Supreme Court later decides that the Court of Appeals was in error in denying the appellant a retrial on the issues of fact.

Furthermore, in this case no question was raised by counsel concerning the immediate appealability of the dismissal of the appeal on questions of fact. This court allowed the appellant's motion to certify the record and heard the case on the merits. Yet at this late date it is now contended that this whole procedure was erroneous and that Rule XXIV, promulgated by this court itself, is retroactively invalid after having been the accepted procedure for 20 years.

Properly the majority of the court is refusing to dismiss the appeal.


I concur in the majority opinion but wish to make a statement in regard to the subject matter of the dissenting opinion.

Section 2, Article IV of the Ohio Constitution, provides that the Supreme Court, in certain specified cases, may "direct any Court of Appeals to certify its record to the Supreme Court, and may review, and affirm, modify or reverse the judgment of the Court of Appeals."

But this court has, on several occasions, held that the term, "judgment," as used in the Constitution is broad enough to comprehend "all decrees and final orders rendered by a court of competent jurisdiction and which determine the rights of the parties affected thereby." See Chandler Taylor Co. v. Southern Pacific Co., 104 Ohio St. 188, 135 N.E. 620; Union Trust Co. v. Lessovitz, 122 Ohio St. 406, 171 N.E. 849; Hoffman v. Knollman, 135 Ohio St. 170, 20 N.E.2d 221; and Schindler v. Standard Oil Co., 162 Ohio St. 96, 120 N.E.2d 590.

The statute provides that in proper cases there may be appeals on questions of law or, in chancery cases, appeals on questions of law and fact. On frequent occasions this court has held that the overruling of a motion to dismiss an appeal on questions of law and fact is not a final order within the purview of Section 12223-2, General Code, because the questions raised by the appeal are reserved for future consideration. Thatcher v. Watson, 51 Ohio St. 561; Home Building Realty Co. v. Blasberg, 81 Ohio St. 482, 91 N.E. 1131; Leashley v. Rezac, 132 Ohio St. 304, 7 N.E.2d 229; Knollwood Cemetery Co. v. Cuyahoga County, 137 Ohio St. 388, 30 N.E.2d 687.

On the other hand, in my opinion, the dismissal of an appeal on questions of law and fact is a dismissal of appellant's action as a chancery action, is a final determination of the rights of the parties in that respect, and, therefore, is a final appealable order. The order that the cause be retained for the determination of questions of law only does not save the appellant's rights in what he claims is a chancery action, not even for review on that subject. His chancery action, if he has one, is completely cancelled out. The action may, in its origin, be a single action, but on appeal in a chancery case the appellant is given a right to take either one of two distinct types of appeal, and, if he is denied one of those appeals, that denial is a final order. His deemed right is not absorbed in the remaining type of appeal. The two appeals are separate concurrent remedies. See Hull v. Bell Bros. Co., 54 Ohio St. 228, 43 N.E. 584; Willson Improvement Co. v. Malone, 78 Ohio St. 232, 85 N.E. 51; Jenny, Admr., v. Walker, 80 Ohio St. 100, 88 N.E. 123; and Union Trust Co. v. Lessovitz, supra.

This court in the case of Schottenstein v. Newburger, 148 Ohio St. 71, 72 N.E.2d 903, clearly recognized the fact that the dismissal of an appeal on questions of law and fact is a final order from which a separate appeal to this court may be taken. In that case this court reversed the judgment of the Court of Appeals for dismissing the appeal on questions of law and fact and remanded the cause to that court for a trial de novo. The disposition of the appeal to the Court of Appeals on questions of law was not before this court. This court, by its adoption of Rule XXIV, has also clearly recognized that a dismissal of an appeal on questions of law and fact is an appealable final order.

If an appeal on questions of law and fact is dismissed by the Court of Appeals, such dismissal, in my view, is a final order from which an appeal must be prosecuted to this court if the appellant desires to contest the order of dismissal. Moreover, if the Court of Appeals dismisses the appeal on questions of law and fact, and an appeal is taken to this court from that order of dismissal, for obvious reasons it should be disposed of by this court before the appeal on questions of law is disposed of by the Court of Appeals.

On this subject, Judge Jones in the case of Union Trust Co. v. Lessovitz, supra, 415, said:

"As lawyers well know, cases frequently arise where the defeated party is doubtful of the remedy that he should employ; and this is especially true under our new Constitution, where the border line between law and chancery is sometimes vague. When the lawyer is in doubt whether the judicial determination of appealability will be in his favor or otherwise, in order to safeguard his client's interests, the prudent and commendable practice is to institute both remedies; but he should first prosecute his appeal until the final determination of his right thereto. In this connection we quote from the opinion of Williams, C.J., on page 241 of 54 Ohio St. 43 N.E. 584, 587, in the case of Hull v. Bell Bros. Co., supra: `If the appeal be sustained, the proceeding in error avails nothing, for the cause then stands for a retrial of the issues in the appellate court, the judgment appealed from is superseded by that of the appellate court, and the errors occurring on the trial below, if any were committed, become immaterial.'

"* * *

"* * * While the record in this case is not explicit, it is indicated by the journal entry, and the fact is so claimed by counsel for the appellant, that the Court of Appeals, after proceeding in its determination of the error case and affirming it, thereupon dismissed the appeal at the cost of the appellant. In doing so in this case, the appellate court erred, for its first duty was to determine the appealability of the case; and, if determined against him by the dismissal of the appeal, the appellant had the right to prosecute error to the Supreme Court from the judgment of dismissal, and in the meantime his error case should be held in abeyance and lie upon the appellate docket until the right of appeal be finally determined by the Supreme Court, or until the statute of limitations for prosecuting error from the judgment of dismissal has expired."

Such practice is followed where, in the course of the trial of a case, a substantial right of a party is denied by order of the court. Such an instance arises where, during the pendency of an action, a motion is sustained dissolving an order of attachment. 2 Ohio Jurisprudence (2d), 625, Section 51. See Section 1911.28, Revised Code.

It has been suggested that the appellant whose appeal on questions of law and fact is dismissed by the Court of Appeals may make that adverse order a ground of error in an appeal on questions of law from the Court of Appeals to this court in case the Court of Appeals fails to sustain his appeal on questions of law. In my view, this suggestion is untenable because the order of dismissal of an appeal on questions of law and fact is in no way connected with the appeal on questions of law and cannot be a ground of error arising out of the affirmance of the judgment of the trial court on the appeal on questions of law.

Before the amendment of the Appellate Procedure Act, effective January 1, 1936, an appellant could take separate appeals to the Court of Appeals, one on questions of law by way of an error proceeding and the other on questions of law and fact, resulting in the appellant having two separate proceedings pending in the Court of Appeals. If the Court of Appeals decided that the case was not a chancery case it dismissed the appeal on questions of law and fact, and that was the end of that one of his two pending proceedings in the Court of Appeals, and the judgment of dismissal clearly represented a "judgment" which was a "final order."

There is nothing, so far as I know, in the present procedure act to prevent an appellant from taking the two separate appeals, one on questions of law and the other on questions of law and fact, and thus have two separate proceedings pending in the Court of Appeals. If, however, under the present procedure, the appellant appeals on questions of law and fact alone, and the Court of Appeals dismisses the only appeal before it, even though the statute automatically gives the appellant an appeal on questions of law which he does not seek, I am convinced that the dismissal of his appeal on questions of law and fact is the end of one of his proceedings in the Court of Appeals, and that that judgment of dismissal clearly represents a "judgment" which is a "final order."


This court has sua sponte raised the question whether the order of the Court of Appeals appealed from is reviewable by this court at this time. Counsel were asked by the court to and did brief and argue that question.

It is elementary that the Supreme Court can have jurisdiction to review what the Court of Appeals does only to the extent that such jurisdiction is either provided for in or authorized by the Constitution. State v. Mansfield, 89 Ohio St. 20, 104 N.E. 1001.

The provisions of the Constitution relative to the jurisdiction of the Supreme Court to review what the Court of Appeals does are found in Sections 2 and 6 of Article IV. So far as pertinent, they read:

Section 2. "* * * It shall have * * * appellate jurisdiction in all cases involving questions arising under the Constitution of the United States or of this state, in cases of felony on leave first obtained, and in cases which originated in the Courts of Appeals * * *. In cases of public or great general interest the Supreme Court may, within such limitations of time as may be prescribed by law, direct any Court of Appeals to certify its record to the Supreme Court, and may review, and affirm, modify or reverse the judgment of the Court of Appeals. * * *" (Emphasis added.)

Section 6. "* * * judgments of the Courts of Appeals shall be final in all cases, except cases involving questions arising under the Constitution of the United States or of this state, cases of felony, cases of which it has original jurisdiction, and cases of public or great general interest in which the Supreme Court may direct any Court of Appeals to certify its record to that court. * * * and 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. * * *" (Emphasis added.)

From a reading of these provisions, it is apparent that the Supreme Court is authorized only to review a "judgment" of the Court of Appeals. Although the word "judgment" might be interpreted to include an interlocutory order, this court, as recently as last year, unanimously held in a " per curiam" opinion that an order of the Court of Appeals, even if called a judgment by that court, cannot be a "judgment" within the meaning of those constitutional provisions if it "did not determine the action and is not a final order"; and that "the existence of a final order is a prerequisite to" the existence of a "judgment" as that term is used in those constitutional provisions. Schindler v. Standard Oil Co., 162 Ohio St. 96, 120 N.E.2d 590.

This court had previously held that the General Assembly could not, by describing a particular kind of order of a court as a "final order," make it a "judgment" within the meaning of that term as used in the Constitution ( Hoffman v. Knollman, 135 Ohio St. 170, 20 N.E.2d 221), although this court had previously indicated that the term "judgment" as so used did include "all * * * final orders." Chandler Taylor Co. v. Southern Pacific Co., 104 Ohio St. 188, 135 N.E. 620. In the latter case, this court held that, where a motion to vacate a judgment was filed within the term at which the judgment was rendered and such motion was granted, there was no reviewable "judgment" within the meaning of the Constitution because there was no final order. See also Green v. Acacia Mutual Life Ins. Co., 156 Ohio St. 1, 100 N.E.2d 211.

As pointed out in paragraph two of the syllabus of the Knollman case, "an order of a * * * court" which "is not a final determination of the rights of the parties * * * is not * * * a judgment or final order" so as to amount to a reviewable "judgment" as that term is used in the Constitution. As stated in the opinion by Hart, J., in that case:

"There must be a dismissal of the action or some judgment in the broadest sense, determining the ultimate rights of the parties." See also Chandler Taylor Co. v. Southern Pacific Co., supra.

Was there a "final determination of the rights of the parties" in the instant case? In order to determine this, we must look to the order made by the Court of Appeals from which an appeal has been instituted. So far as pertinent, it reads:

"* * * it is * * * ordered, adjudged, and decreed that the appeals herein on questions of law and fact be dismissed and the cause is retained for determination of the appeal on questions of law." (Emphasis added.)

Certainly, this order indicates affirmatively that the Court of Appeals has not made a "final determination of the rights of the parties."

Likewise, the language of rule 24 of this court affirmatively indicates that the appeal provided for therein is from an order which does not represent a "final determination of the rights of the parties." That rule reads:

"Where an appeal has been taken to the Court of Appeals on questions of law and fact and the Court of Appeals enters an order holding that that court does not have appellate jurisdiction to hear the case on questions of law and fact and retains the case on question of law, any appeal from such order shall be on condition that a motion to certify the record be allowed by this court leaving the appeal on questions of law in the Court of Appeals pending the decision in this court." (Emphasis added.)

Likewise, the statutes providing for an appeal to the Court of Appeals do not recognize orders such as that appealed from in the instant case as orders which involve a "final determination of the rights of the parties." This is apparent from a consideration of the following provisions of the Appellate Procedure Act:

Section 12223-1, General Code. "1. The word ` appeal' as used in this act shall be construed to mean all proceedings whereby one court reviews or retries a cause determined by another court * * *."

Section 12223-4, General Code. " The appeal shall be deemed perfected when written notice of appeal shall be filed with the lower court * * *. After being duly perfected, no appeal shall be dismissed without notice to the appellant, and no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional."

Section 12223-5, General Code. "The notice of appeal shall designate the order, judgment, or decree appealed from and whether the appeal shall be on questions of law or questions of law and fact. * * * The failure to designate the type of hearing upon appeal shall not be jurisdictional and the notice of appeal may be amended by the appellate court in the furtherance of justice for good cause shown."

Section 12223-22, General Code. "* * * (2) Whenever an appeal on questions of law and fact is taken in a case in which it is determined by the appellate court that the appellant is not permitted to retry the facts, the appeal shall not be dismissed, but it shall stand for hearing on appeal on questions of law." (Emphasis in above quotations added.)

It is apparent that a single appellate proceeding is contemplated. Loos v. Wheeling Lake Erie Ry. Co., 134 Ohio St. 321, 16 N.E.2d 467. See also Section 12223-46, General Code, specifically abolishing writs of error to reverse, vacate or modify judgments or final orders. If the Court of Appeals determines that such appeal should not be heard as an appeal on questions of law and fact, it is expressly provided that "the appeal shall not be dismissed, but it shall stand for hearing on appeal on questions of law." The only effect of such a determination is to prevent the introduction of further evidence and to prevent the substitution by the Court of Appeals of its judgment on the facts for the judgment of the court appealed from. The Court of Appeals must still render a decision after a hearing; and that decision may obviously be in favor of the party who sought and was denied a hearing on law and fact. If, in a trial before the Common Pleas Court, that court made a ruling during the trial with respect to the burden of proof and the admission of certain evidence, it would not be contended that there could be an appeal from such a ruling before the trial was completed, although such a ruling might be of as much importance to the parties as would be a ruling on an appeal with respect to whether the case was to be heard on law and fact.

As hereinbefore suggested, the appellant in an appeal on questions of law and fact may never be prejudiced by an order of the Court of Appeals determining that he should not be permitted to retry the facts and that his appeal should stand for hearing on questions of law. Unless and until the Court of Appeals decides against him on his appeal on questions of law, the appellant cannot be prejudiced by the refusal to permit him to retry the facts. If the Court of Appeals does render an order deciding against the appellant, after hearing his appeal on questions of law, the appellant can then assign as error, in an appeal from that final order and judgment, the refusal of the Court of Appeals to permit him to retry the facts. See Schottenstein v. Newburger, 148 Ohio St. 71, 72 N.E.2d 903.

In support of their contention that the order appealed from in the instant case is a judgment within the meaning of the constitutional provisions hereinbefore quoted, appellants have cited Union Trust Co. v. Lessovitz, 122 Ohio St. 406, 171 N.E. 849. As a reading of that case will disclose, it was decided before the Appellate Procedure Act became effective on January 1, 1936. At the time of its decision, it was necessary for a party, who desired an appeal on questions of law and fact but was not certain that his case was a chancery case, to file an appeal in the Court of Appeals and also a petition in error in that court. As a result, he had two separate cases pending in the Court of Appeals. If the Court of Appeals decided that the case was not a chancery case, it dismissed the appeal. That was the end of that one of his two pending proceedings in the Court of Appeals. Consequently, that judgment of dismissal clearly represented a "judgment" which was a final order.

Before the Appellate Procedure Act became effective, this court apparently recognized that, under Section 6 of Article IV of the Constitution as then in force, the Court of Appeals had "appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the Courts of Common Pleas * * * and other courts of record within the district as may be provided by law."

These constitutional provisions gave a litigant a right to appeal in a chancery case. Hence, no statute could take away that right. When a Court of Appeals made an order determining that an appellant had no right of appeal, such order necessarily involved, to use the words of Section 2 of Article IV of the Constitution, the "appellate jurisdiction" of the Supreme Court "in all cases involving questions arising under the Constitution * * * of this state." It was undoubtedly for such reasons that this court promulgated rule 24 in its original form, giving an appeal as a matter of right to this court from such an order, and provided that it was to be effective on January 1, 1936, the date on which the Appellate Procedure Act was to become effective.

Effective January 1, 1945, the last-quoted provisions of Section 6 of Article IV of the Constitution were replaced by the present provisions, giving the Court of Appeals only "such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of * * * courts of record inferior to the Court of Appeals within the district."

That section as amended in 1944 also provided:

"All laws now in force, not inconsistent herewith, shall continue in force until amended or repealed * * *."

Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St. 221, 70 N.E.2d 649, merely represents a holding that this last-quoted portion of Section 6 of Article IV of the Constitution meant what it said. The appellate procedure statutes in force at the time of its adoption certainly provided for an appeal that would include a retrial of the facts by the Court of Appeals.

Thereafter, however, there was obviously no constitutional right to a retrial of the facts in the Court of Appeals and this court recognized that in 1952 when, by amendment of rule 24, it made allowance of a motion to certify the record a prerequisite to review pursuant to that rule. However, except possibly in In re Estate of Stafford, 146 Ohio St. 253, 65 N.E.2d 701, no litigant has apparently heretofore contended that, since the 1944 amendment of Section 6 of Article IV of the Constitution, an order such as that for which review is provided in rule 24 was not a "judgment" within the meaning of Section 2 of Article IV of the Constitution; and this court has not passed upon that question. In that case it was stated in the opinion by Turner, J., on page 259:

"Assuming that this appeal is properly before this court (which a minority of the judges question) the sole question to be decided in this case is whether the proceeding instituted in the Probate Court is a chancery case.

"All procedural questions are to be determined under the provisions of the Ohio Constitution and laws in effect on May 9, 1942, the date when this phase of the proceeding was instituted in the Probate Court of Cuyahoga County. Section 6 of Article IV of the Constitution in force at that time conferred upon Courts of Appeals `appellate jurisdiction in the trial of chancery cases.'

"The amendment of Section 6 of Article IV adopted on November 7, 1944, and effective January 1, 1945, provides:

"`* * * all cases, actions, or proceedings pending before or in any * * * tribunal, or court on the first day of January, 1945, shall be heard, tried, and reviewed in the same manner and by the same procedure as is now authorized by law.'"

Unlike the proceedings in the Stafford case, the instant action was instituted after January 1, 1945.

It is obvious that this court cannot, by the ex parte promulgation of a rule of court, extend its jurisdiction to review what is done by the Court of Appeals beyond that conferred upon it by the Constitution and by legislation enacted pursuant to authority vested by the Constitution in the General Assembly. No such authority has been vested by the Constitution in this court.

For the foregoing reasons, it is my opinion that this court cannot at this time review the order of the Court of Appeals appealed from, without disregarding its obligation to follow the provisions of the Constitution.

MATTHIAS and STEWART, JJ., concur in the foregoing dissenting opinion.