Cohen v. Goldberger

By the Court. The question presented upon motion to dismiss the petition in error, filed as of right, arises from the case of Morgenthaler v. Cohen, 103 Ohio St., 328, 132 N. E., 730, wherein this court affirmed a judgment theretofore rendered by the Court of Appeals of Hamilton county, in a suit brought for accounting of partnership funds. An issue was subsequently made in the Court of Appeals, wherein the conflicting claims of intervening petitioners were presented and determined by that court; the amount of the judgment having theretofore been paid by order of the Court of Appeals to the clerk thereof. This issue arose in the Court of Appeals, and, unless [244] a very narrow and restricted definition of the word “case” is applied, it must he held that this petition in error is filed here as a matter of right under the provisions of Section 2, Article IV, of the state Constitution, defining the jurisdiction of this court, wherein it is provided that “it shall have * * * appellate jurisdiction * * * in eases which originated in the Courts of Appeals.” So far as these contending parties are concerned, it is clear that this case originated in the Court of Appeals. It could not have originated elsewhere. A similar holding has heretofore been announced by this court in several cases, among which are Globe-Wernicke Co. v. Safe-Cabinet Co., 98 Ohio St., 447, 121 N. E., 901, and Board of Com’rs of Greene County v. Harshman, 101 Ohio St., 529, 130 N. E., 935, also reported in 102 Ohio St., 452, 132 N. E., 925, both of which cases involve contempt proceedings growing out of judgments in the Court of Appeals, which had come to that court from the court of common pleas. The action of the Court of Appeals sought to be reversed determines the rights of the parties to the controversy in and to the fund in question, and therefore was a final order. Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 135 N. E., 620. The motion to dismiss the petition in error is overruled. Motion overruled. Marshall, C. J., Jones, Matthias, Day and Allen, JJ., concur.