Cleveland Animal Protective League v. Staniforth ( 1930 )

This cause is here on appeal from the common pleas court of Cuyahoga county, and the question to be decided is whether this court can entertain jurisdiction of the so-called appeal, and, in order to determine that question, it is necessary for us to turn to the record in order to ascertain whether there has been a final order. In other words, it is necessary to seek to determine whether the case is still pending in common pleas court for final determination, or whether it has been appealed here as a case in and of itself, or merely as a part of a case, because it is well established in Ohio that only the case itself can be appealed, and that no part of the case is subject to a hearing de novo in the court of review, where the record as in the instant case does not appear to justify it.

We find from the record that an injunction was sought, and a demurrer filed thereto, and that the court on motion of the plaintiff, and for good cause shown, ordered that an undertaking be given in the sum of $500 with sureties to the approval of the clerk, and that an injunction was allowed thereon to issue against the defendant from maintaining on his building at 4326 Turney Road the following sign:

"We have the most INCOMPETENT INEFFICIENT COUNTY COMMISSIONERS in this or any other County in Sl State!

"And these same Commissioners employ the so-called DOG CATCHING animal league THIEVES, the same so-called Animal MONEY ONLY League!"

The restraining order extended to the use of any language of a similar nature, an exception was taken, and then and thereupon notice of appeal was had and the bond fixed at $100.

The only other items appearing on the transcript are the items of June 17, 1929, where the undertaking was given by the National Surety Company, and, on the same date, notice of motion was returned, indorsed that on June 13, 1929, it had been served on the defendant Staniforth. On June 18th the appeal bond by defendant with respect to the procedure in the Court of Appeals was filed in the sum of $100, with Mrs. V. Wilson as surety.

Thus it appears that only part of the case is appealed, and the case for final determination is still pending in common pleas court, and therefore the nature of the case is such that the lower court might finally determine the case, as claimed by the petitioner. In other words a judgment might be rendered in his favor had the appeal from the mere interlocutory order not been taken. Thus we have the anomaly of the same case appearing in the common pleas court and in the Court of Appeals, with no prevention by way of procedure for the common pleas court to determine the case finally upon its merits.

This question has arisen a great many times, and the holding in Ohio is that in a record like the one at bar the appeal is only as to a part of the case, not as to the whole of the case, and that this is a procedure not warranted by the process of law.

In the case of Forest City Investment Co. v. Haas, 110 Ohio St. 188, 143 N.E. 549, with reference to the appointment of a receiver, where the same principle as in the instant case was under consideration, it will be seen that the third paragraph of the syllabus is that a judgment appointing a receiver may be reviewed by the Court of Appeals on error, but not on appeal, and in reasoning the case the court, on page 194 of 110 Ohio State,143 N.E. 549, 551, speaks as follows, and we think it applies to the case at bar: "While it may be conceded that a trial occurred in the common pleas court upon the application for the appointment of a receiver, it was not a trial of any ``case,' within the purview of the constitutional section. The proceeding relating to the appointment of a receiver was incidental to the action or case made by the parties; not only was this proceeding ancillary to the case, but its sole purpose was to conserve the property for the interested litigants until the issues in the case were finally determined. With its termination the officer's functions ceased. The order made was provisional and was simply an order made in a case. Giving, therefore, the provision of the amended Constitution its ordinary and usual meaning, we are unable to conceive how the proceeding for the appointment of a receiver can be held to be a chancerycase. That order, though a final one, cannot be reviewed by the Court of Appeals by way of appeal."

Hence there is only one conclusion to reach, and that is that the petition of appellant be dismissed, which is accordingly done, and an entry may be drawn to that effect.

Petition dismissed.

VICKERY, P.J., and LEVINE, J., concur.