Opinion, per JOHNSON, J. nor to render final judgment except in case of a finding of controlling facts by the trial court, or they are conceded, but this court being further of opinion that the reversal of the judgment of the court of common pleas as shown by the judgment entry of the circuit court, should be treated by this court as a reversal upon the weight of the evidence. "It is considered and adjudged that the judgment of the circuit court be and the same is modified in this to-wit: As to the finding of facts and final judgment thereon, the same is reversed; as to the reversal of the judgment of the court of common pleas the same is affirmed, and the cause is remanded to the Court of Common Pleas." In Minnear v. Holloway, 56 Ohio St., 148, it is held: "Where the controlling facts in a civil action are conceded by the parties in their pleadings or evidence, or both combined, without conflict as to any material fact, so that the error of the court lies in the application of the law to such facts, a higher court after reversing the judgment for such error of law, may proceed and render such judgment as the court below should have rendered upon such facts, or remand the cause to the court below for such judgment." In Cavey, Admx., v. Iliff et al., 84 Ohio St., 456, the circuit court reversed the judgment of the common pleas court on the ground that it erred in overruling the motion of the defendants at the conclusion of the evidence to arrest the case from the jury and enter final judgment in the case. This court reversed the final judgment and remanded the cause for a new trial. The entry was as follows: Opinion, per JOHNSON, J. "This court, finding from the record that the judgment of the circuit court is in effect an adjudication that the judgment of the court of common pleas is against the weight of the evidence, the judgment of reversal is affirmed. But this court being of opinion that the cause should be submitted to a jury, the final judgment rendered by the circuit court is hereby reversed." This holding was approved in Stugard, Admr., v. P., C., C. & St. L. Ry. Co., 92 Ohio St., 318, 323. To the same effect are Hickman v. Ohio State Life Ins. Co., 92 Ohio St., 87; Gay, Exrx., v. Davey, 47 Ohio St., 396; Stivers v. Borden, 20 Ohio St., 232; Miller v. J. T. Sullivan & Co., 26 Ohio St., 639, and Vignola v. N. Y. Cent. Rd. Co., ante, 194. As above stated the court of appeals in the error cases held that the stock ledger was inadmissible in evidence, and on the hearing of the case on appeal the court followed that holding. In the view we take of the case it is not necessary to determine that question, and no opinion is expressed concerning it here. In that posture of the case the vital and decisive issue was that of laches. All the circumstances connected with the transactions and relations between the parties, the attitude of the decedent and the bank toward the stock during a long period of time, and all of the other facts shown by the evidence, disclosed a variety of circumstances from which it was the duty of the trial court to find the ultimate conclusions of fact. And it was the duty of the court of appeals on error to pass upon the weight of the evidence in support of that conclusion, as well as upon errors of law. Opinion, per JOHNSON, J. The court of appeals itself in the error proceeding seems to have also had this view. In its opinion filed in the case, after stating that counsel for plaintiff in error had asked the court to render final judgment, the court says: "This court is of the opinion that it is the duty of the court below upon the hearing of the evidence, to enter such a judgment as the evidence warrants; and this will probably involve the question of an accounting, and evidence may have to be taken upon that branch of the case. Evidence may also have to be taken as to the value of this stock as of the time it was alleged to have been converted, or at the time of the trial. Evidence may also have to be taken as to other questions which we do not now perhaps foresee; and for this reason we deem it proper to reverse this judgment and remand the cause to the superior court for such proceedings as are authorized by law." This court overruled a motion for the certification of the record in the error proceeding. The reason does not appear, but from the above portion of the opinion of the court of appeals it will be seen that this court may have then, as now, considered that the cause should be and would be heard on its merits in the trial court. In 15 Ruling Case Law, at Section 327, it is said: "While it is well settled that a judgment cannot be questioned collaterally for an error committed in the exercise of jurisdiction, the rule is equally well established that a judgment may be attacked in a collateral proceeding for error in assuming jurisdiction. Even where a court has jurisdiction over Opinion, per JOHNSON, J. the parties and the subject matter, yet if it makes a decree which is not within the powers granted to it by the law of its organization, its decree is void." In State, ex rel. Sheets, v. Toledo Home Telephone Co., 72 Ohio St., 60, it was held that "In a proceeding instituted in the probate court by a telephone company, under the provisions of section 3461, Revised Statutes, which authorize and require the court to direct in what mode such telephone company may construct its lines along the streets, alleys and other public ways of a city or village, the court has no jurisdiction, as a part of its order, to prescribe or determine the rates to be charged citizens of the municipality for the use of the telephones, and so much of the order as undertakes to determine such rates is void for want of jurisdiction," and "In an action in quo warranto to oust the telephone company from the use of the streets, alleys and other public ways in the mode directed by the probate court, on the ground that such company has established rates for the use of its telephones exceeding those prescribed by the court, on the application of the company, the latter is not estopped from questioning and denying the jurisdiction of that court to prescribe the former or any rates.' And see Scobey v. Gano, 35 Ohio St., 550, and Spoors v. Coen, 44 Ohio St., 497. In United States, to the use of Wilson, v. Walker, 109 U. S., 258, it is said at page 266: "The court was therefore without power to direct the payment of the money to the administrator de bonis non. Although a court may have jurisdiction over the parties and the subject-matter, yet if it makes a de Opinion, per JOHNSON, J. cree which is not within the powers granted to it by the law of its organization, its decree is void." In Standard Oil Co. of Indiana v. Missouri, on Information of Hadley, Atty. General, 224 U. S., 270, it is said, at page 281: "Though the court may possess jurisdiction of a cause, of the subjectmatter, and of the parties, it is still limited in its modes or procedure, and in the extent and character of its judgments.' But it is urged that the decision of the court of appeals in the error case became the law of the case and binding on the parties as such. Many authorities are cited in the briefs of counsel touching this question, and it is contended by the plaintiff in error that a prior decision is conclusive upon a subsequent appeal of a case in the same court, even if it is erroneous, and that propositions of law once decided there are not open for reconsideration in that court. In the first place it must be observed that this rule presumes that the court which made the prior decision must have had jurisdiction to make it, and that, if so, even though erroneous, it would be followed in the later proceedings in the case before that court. In Messenger v. Anderson, 225 U. S., 436, the general rule now prevailing is well stated, viz: "In the absence of statute, the phrase 'law of the case,' as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to open what has been decidednot a limit to their power." See King v. West Virginia, 216 U. S., 92; Remington v. Central Pacific |