must be exercised in good faith and in the in- Mandamus will not lie to control the judi- PER CURIAM. This day this cause came | neglected child is a judicial discretion which on to be heard upon the petition of the relator, the joint answer of Charles W. Walters and the Cleveland Stone Company, the reply of relator thereto, and the evidence, and was argued by counsel. And the court, being fully advised in the premises, find that a railway corporation has been organized under the laws of Ohio to take over and operate as a common carrier that portion of the tracks formerly owned by the Marietta, Columbus & Cleveland Railroad company lying between Vincent, Ohio, and Moore's Junction, Ohio, in accordance with the prayer and demand of relator's petition, and that for that reason all questions touching the right or authority of said defendants or either of them to operate that portion of said railroad as an industrial branch is eliminated from the consideration of this court in this case. And the court further find, in reference to the further allegations in relator's petition, that it has no jurisdiction, in an action in quo warranto, to grant relief by way of injunction, other than as incident to and necessary for the enforcement of the provisions of sections 12303 and 12304, General Code, authorizing an action in quo warranto, and that the further averments of said petition do not bring this cause within the provisions of elther of said sections, and that the sole and only relief sought in plaintiff's petition is an injunction restraining acts not corporate in their character, and that this court has no original jurisdiction in an action where injunction is the sole relief prayed for, and not merely incident to a suit in quo warranto. The court further find that the nonanswering defendants, Robert Grant and Harris Bros., are mere nominal defendants, and for the reasons aforesaid the petition of relator is dismissed, and defendants discharged without day. Writ denied. NEWMAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. NICHOLS, C. J., and WANAMAKER, J., dissent. (96 Ohio St. 581) STATE ex rel. TAILFORD v. BRISTLINE, (Supreme Court of Ohio. May 29, 1917.) (Syllabus by Editorial Staff.) 1. INFANTS 16-JUVENILE DELINQUENT JURISDICTION OF JUVENILE COURT. Where a delinquent child has become the ward of the juvenile court, and has been committed to an institution under the provisions of the statutes relating to juvenile courts, the jurisdiction of the juvenile court over such child is a continuing jurisdiction, and it may vacate or modify its original order, or make further orders as may seem proper. 2. INFANTS 16-JUVENILE DELINQUENTSDISCRETION OF JUVENILE COURT. The discretion of the juvenile court as to the care, custody, and control of a delinquent or Where a juvenile court entered an order finding certain children to be neglected and to an institution upon an affidavit charging such abandoned by their mother and committed them facts and that the residence of the mother was unknown, her petition in that court asking the opening and vacation of the order on the grounds could have been ascertained, and that she had that the affidavit was false, that her residence no notice of the proceedings, and that the evidence therein was a fraud upon the court and upon herself, and alleging an unavoidable misfortune preventing her appearance, stated sufficient facts, either as a petition or a motion, to require the court to hear and determine the truth of such averments and to make a proper order. Mandamus by the State, on relation of one Tailford, against one Bristline, Judge. Demurrer to petition overruled, and peremptory writ allowed. Ben W. Johnson, of Toledo, for relatrix. Earl K. Solether, of Bowling Green, for respondent. PER CURIAM. [1] Where a delinquent or neglected child has become the ward of the juvenile court and has been committed to an institution, under the provisions of the General Code relating to juvenile courts, the jurisdiction of the juvenile court over such child is a continuing jurisdiction, and it has authority to vacate its original order or modify the same, or make such further and additional orders in relation thereto as to it may seem just and proper. [2] The discretion of the juvenile court in relation to the care, custody, and control of a delinquent or neglected child is a judicial discretion that must be exercised in good faith, and in the interest of the child, upon evidence introduced in the usual and ordinary course of the administration of justice. [3] Mandamus will not lie to control judicial discretion or the judicial determination of an issue by an inferior court, but it will lie to compel the exercise of such discretion and the exercise of judicial functions conferred by law upon such inferior tribunals. [4] Where an order has been made and entered by a juvenile court, finding that certain children are neglected and abandoned by their mother, and committing their custody to an institution named in the sections of the General Code relating to juvenile courts, upon an affidavit filed in that court charging in substance that the minor chil For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Charles A. J. Walker, of Cincinnati, for plaintiff in error. H. P. Karch, of Cincinnati, for defendant in error. .PER CURIAM. brought action against the defendant in erThe plaintiff in error ror in the municipal court of the city of Cincinnati to recover the sum of $280, claimed to be due upon certain promissory notes executed and delivered to it by the defendant in dren named therein are dependent and neg-reversed by the court of common pleas, and lected children, that their mother has de-on appeal there was judgment in the Court serted and abandoned them and is an unfit of Appeals reversing the judgment of the person to have the care and custody of them, court of common pleas and affirming that of and that the residence of the mother is un- the municipal court, and plaintiff brings erknown, a petition filed in that court by the ror. Affirmed. mother, after such order has been entered, asking the court to open up and vacate the same, averring in substance that the affidavit was false, that affiant knew at the time he filed such affidavit or with reasonable diligence could have discovered her residence, that she had no notice of such proceeding, that she had not abandoned and deserted her minor children, that the affidavit and the proceedings had thereunder and the evidence offered in support thereof were false and a fraud upon the court and in fraud of petitioner's rights, that the order was irregularly obtained, and that the petitioner, the mother, had no notice of such proceedings whatever, and by unavoidable casualty and misfortune and without any fault or want of diligence on her part was prevented from appearing in court and defending her parental rights and vindicating herself against the charges made in the affidavit, and from having an opportunity to be heard in the proceedings, states facts sufficient, either as a petition or motion, to invoke the jurisdiction of the court to hear and determine the truth of these averments. It is the duty of the court making such order and in which the petition is filed, to hear the same upon evidence, and to make such or der and judgment in the premises as to it seems just and proper. The demurrer to the petition is overruled, and, the respondent not desiring to plead further, a peremptory writ is allowed, as prayed for in the petition of relatrix. Peremptory writ allowed. NICHOLS, C. J., and JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. (97 Ohio St. 62) UNITED DISTILLERS CO. v. ZEISLER. (No. 15639.) (Supreme Court of Ohio. Dec. 11, 1917.) (Syllabus by Editorial Staff.) COURTS 240-COURT OF APPEALS DICTION. -JURIS Under Const. art. 4, § 6, authorizing the Court of Appeals to review, examine, modify, or reverse the judgments of the court of common pleas, superior courts, and other courts of record, the Court of Appeals has jurisdiction upon a proceeding in error from the court of common pleas in a case which originated in the municipal court of the city of Cincinnati. Error to Court of Appeals, Hamilton County. Action by the United Distillers Company against one Zeisler, with counterclaim by defendant. Judgment for defendant in the municipal court in the city of Cincinnati was error. here, as a defense, alleged a failure of conThe defendant below, defendant in error sideration, and set up a counterclaim against the plaintiff. Judgment was rendered thereprosecuted to the court of common pleas of on in favor of the defendant. Error was Hamilton county, which reversed the judgings in error the Court of Appeals reversed ment of the municipal court. Upon proceedthe judgment of the court of common pleas and aturmed that of the municipal court. The sole question presented here is whether the Court of Appeals has jurisdiction upon a proceeding in error from the court of common pleas in a case which originated in the municipal court of the city of Cincinnati. This court held in the case of Cincinnati Polyclinic v. Balch, 92 Ohio St. 415, 111 N. E. 159, that the jurisdiction of the Court of Appeals is conferred by the Constitution, and that the Legislature has no power whatever risdiction of that court. Such jurisdiction is either to enlarge or limit the appellate juconferred by section 6 of article 4 of the Constitution, and the Court of Appeals is thereby authorized "to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record." Under this provision every judgment of the court of common pleas, regardless of where the action originated, is reviewable by the Court of Ap peals. Such jurisdiction is not affected nor is the right of a party aggrieved by the judgment of the common pleas to have that judgment reviewed by the Court of Appeals abridged, by reason of the fact that the municipal court of Cincinnati, wherein the case originated, is also a court of record by the specific terms of the act creating it. It follows that the Court of Appeals had jurisdiction to review the judgment of the common pleas court in this case, and its judgment is therefore affirmed. Judgment affirmed. NICHOLS, C. J., and WANAMAKER, NEWMAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 140 (97 Ohio St. 67) might sustain if it were finally decided that BERKEY FARMERS' MUT. TELEPHONE the injunction ought not to have been grantCO. et al. v. SYLVANIA HOME TELEPHONE CO. et al. (No. 15645.) (Supreme Court of Ohio. Dec. 11, 1917.) In such an action, in the absence of fraud and collusion, the defendants are concluded by the judgment in the injunction proceeding, and cannot reopen the questions which were the subject-matter of that proceeding. ed. It was alleged that the injunction proceeding had been heard in the common pleas court, and it had been decided by that court that the injunction ought not to have been granted, and the same was vacated and dissolved, and that upon an appeal being taken the Court of Appeals on February 20, 1914, made the same finding and vacated and dissolved the injunction. Plaintiffs in error in their second amended petition set out a statement of the various items of expense incurred by them and the damages they had sustained by the granting of the injunction, and there was a prayer for judgment in the sum of $851.60. Defendants in error in their answer admitted that the Sylvania Home Tele. phone Company had obtained an injunction against plaintiffs in error, that they had exe 3. APPEAL AND ERROR 712-COURT OF AP-cuted an undertaking, and that the Court of PEALS SCOPE OF REVIEW-STATUTE. Appeals had dismissed the petition and dissolved the injunction. They denied each and every other allegation contained in the second amended petition. The case was tried The Court of Appeals, in reviewing a judgment of a common pleas court, is confined to a consideration of the record presented to it, and cannot, under the provisions of section 11364, General Code, consider matters wholly outside the record, for the purpose of determining to a jury, and resulted in a verdict for plainwhether or not substantial justice has been done tiffs in error in the amount claimed, with to the party complaining. Error to Court of Appeals, Lucas County. Action for damages, founded upon an injunction bond, by the Berkey Farmers' Mutual Telephone Company and others against the Sylvania Home Telephone Company and others. There was a judgment of the Court of Appeals, reversing the judgment of the common pleas court for plaintiffs, and rendering a final judgment in favor of defendants, and on plaintiffs' application it was directed to certify its record to the Supreme Court. Judgment of the Court of Appeals reversed, and judgment of the common pleas court affirmed. interest. A motion for a new trial was over- Marshall & Fraser and Thad. S. Powell, NEWMAN, J. In the answer filed by the This case originated in the common pleas defendants in error in the court of common court of Lucas county. It was an action for pleas it was admitted that an injunction had damages founded upon an injunction bond. been granted in favor of the Sylvania Home Plaintiff's in error, in their second amended Telephone Company, that a bond had been petition, alleged that on December 16, 1913, executed, and that the petition for the inthe Sylvania Home Telephone Company, one junction had been dismissed and the injuncof the defendants in error here, brought an tion dissolved by the Court of Appeals. The action in the common pleas court of Lucas common pleas court took the position that county, and, on that date, obtained an injunc- the only question in the case was as to the tion against plaintiffs in error, enjoining extent to which plaintiffs in error had been them from carrying on any portion of the injured by reason of the issuance of the inwork in the erection of a telephone plant of junction. The court of appeals in reversing the Berkey Farmers' Mutual Telephone Com-the judgment of the common pleas court, and pany and from erecting pole lines and from in rendering final judgment in favor of deoperating a telephone system or furnishing fendants in error here, made the following telephone service to any patrons in Richfield and Sylvania townships, Lucas county, Ohio; that on the same day the Sylvania Home Telephone Company, with the other defendants in error here as sureties, executed an undertaking whereby they became bound unto plaintiffs in error in the sum of $1,000, being the amount fixed by the court to secure to plaintiffs in error all damages they finding: "The court finds that there is error apparent upon the record in the proceedings of said court of common pleas to the prejudice of the plaintiffs in error, in that on the pleadings and record no legal foundation can exist upon which the judgment for damages entered in favor of defendants in error in this action can rest, and that substantial justice was not accomplished in the entry of a judgment for defendants in error, and in that substantial justice under the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes provisions of section 11364 can only be ac-1625; Swan v. Timmons, 81 Ind. 243; Ancomplished by a final judgment in favor of plain-drews v. Glenville Woolen Co., 50 N. Y. 282; tiffs in error.' Fullerton v. Pool, 9 Wyo. 9, 59 Pac. 431. The reason for holding that no legal foundation existed upon which the judgment for damages in the action on the injunction bond could rest is not given in the journal entry. But in its opinion the Court of Appeals says that in view of the judgment of the Supreme Court in Ashley Tri-County Mutl. Tel. Co. v. New Ashley Tel. Co., 92 Ohio St. 336, 110 N. E. 959, decided July 2, 1915, the plaintiff in the injunction suit, the Sylvania Home Telephone Company, one of the defendants in error here, was entitled to an injunction and that its order made in 1914 dissolving the injunction was erroneous. The Court of Ap peals in effect set aside and vacated the judgment rendered by it in a separate and distinct proceeding had two years before, and permitted the defendants in error to relitigate the question of the right to the injunction. We may assume for the purposes of this case, that the same questions were presented in the Ashley Case, supra, as were presented in the injunction proceeding in which the bond sued on in the instant case was given, that both cases called for a construction of the same section of the General Code, and that the Court of Appeals had placed a construction upon that section in 1914 different from that placed upon it by this court more than a year afterwards. Would these facts, had they been properly a part of the record in the case for review, have warranted a reversal of the judgment and a rendition of final judgment in favor of the defendants in error? [1, 2] Under the provisions of the statutory bond upon which the action before us here was founded, the defendants in error obligated themselves in the sum of $1,000 to pay plaintiffs in error the damages they might sustain by reason of the injunction in the action, if it were finally decided that the injunction ought not to have been granted. As we have seen, it was admitted by the answer that the injunction had been issued, that the bond had been given, and that the injunction had been dissolved by the Court of Appeals. It seems to be well settled that the dissolution of an injunction is conclusive that it was wrongfully issued. We do not know upon what theory the Court of Appeals could reopen the questions which were the subject-matter of the injunction suit, and, two years after the injunction had been dissolved, make inquiry as to whether or not the injunction was properly issued. The common pleas court was correct in limiting the inquiry by the jury to the amount of damages sustained by plaintiffs in error on account of the wrongful issuance of the ininjunction. Cummings, Kenney & Co. v. Mugge, 94 Ill. 186; Landis v. Wolf, 206 Ill. 392, 69 N. E. 103; Dowling v. Polack, 18 Cal. In the case before us the principal and sureties on the injunction bond were made parties defendant. The language used by Owen, J., in Braiden v. Mercer, 44 Ohio St. 339, 343, 7 N. E. 155, 158, is pertinent here: "An undertaking in an injunction proceeding is conditioned to secure the party enjoined the damages he may sustain if it be finally decided that the injunction ought not to have been granted. It has never been supposed that the sureties in an action against them could be heard to say that they were strangers to the injunction proceeding and that the decision of the court that the injunction ought not to have been granted should be disregarded and that question again litigated." In other words, the rights and liabilities of the parties to the injunction bond, the obligees on the one hand and the principal and sureties on the other, were fixed when it was finally determined that the injunction ought not to have been granted. The effect of the holding of the Court of Appeals was that a subsequent decision rendered by the Supreme Court in a like injunction suit between different litigants vacated and set aside the judgment rendered by the Court of Appeals, thereby annulling the established rights of plaintiffs in error and relieving the defendants in error of all liability on the injunction bond. In State ex rel. Sylvania Home Tel. Co. v. Richards et al., 94 Ohio St. 287, 114 N. E. 263, decided May 29, 1916, one of the defendants in error here, the Sylvania Home Telephone Company, applied to this court for a writ of mandamus to compel the Court of Appeals of Lucas county to certify the record in the injunction proceeding to this court, its application being based upon the ground that the judgment of that Court of Appeals was in conflict with judgments pronounced upon the same question by the Courts of Appeals of Delaware and Morrow Counties. The judgment of the Court of Appeals of Delaware County was the judgment affirmed by this court in the Ashley Case, supra, and was affirmed before the application for the writ of mandamus was filed. The writ was denied for the reason stated in the second proposition of the syllabus. It is said in the opinion, at page 295 of 94 Ohio St. at page 265 of 114 N. E.: "It must be kept in mind that in each case the jurisdiction of the courts is invoked to adjudicate the rights of the parties in that particular controversy; and when a judgment has been rendered in due course by a court of final jurisdiction the parties should not be left in doubt as to its finality or be led to speculate on the possibility that a different court in a controversy between different parties may afterwards differently decide the legal questions involved. frequently happens that a court of last resort overrules a reported decision formerly made by ing operated to open afresh the controversy disit, but no one would contend that the overrulposed of in the overruled case." It 142 119 NORTHEASTERN REPORTER It is equally true that where a Court of Appeals renders a judgment, and subsequently the Supreme Court in a case between other litigants involving the same question renders a different judgment, the Court of Appeals cannot open up the judgment in the case decided by it and have relitigated a matter that had been finally disposed of. In Michael v. American Nat. Bank, 84 Ohio St. 370, 95 N. E. 905, 38 L. R. A. (N. S.) 220, it was held that where a cause has proceeded to trial and final judgment, a court of equity will not vacate or open up the judgment and grant a new trial of the same issue determined in the former hearing, in the absence of fraud or undue advantage by the prevailing party. No claim is made here that there was fraud or undue advantage, and if a court of equity cannot interfere, as was held in the Michael Case, it certainly cannot be seriously contended that in an action at law for damages on an injunction bond there is any authority for opening up the judgment rendered in the proceeding where the injunction bond was given. [3] In the journal entry in the Court of Appeals it is recited that: not accomplished "Substantial justice was in the entry of a judgment for defendants in error and in that substantial justice under the provisions of section 11364 can only be accomplished by a final judgment in favor of plaintiffs in error." We are at a loss to see how the provisions of that section can be extended to cover a It is provided case such as we have here. in that section that in case the reviewing court shall determine and certify in its opinlon substantial justice has not been done to the party complaining as shown by the record such reviewing court shall proceed as proIvided in section 12272, General Code, which section authorizes a reviewing court to render such judgment as the court below should have rendered, or remand the cause to that court for such judgment. But it is to be noted that the absence of substantial justice must be shown by the record, and this presupposes It certhat the record discloses some error. tainly was not contemplated that a reviewing court might reverse a judgment or render final judgment in a case where the record itself was free from error. The only issue that was, and the only issue that could have been, submitted to the jury in the instant case was as to the amount of damages sustained by The matters upon which plaintiffs in error. the Court of Appeals based its judgment of reversal and final judgment, as we have endeavored to show, would not warrant such action on the part of the court even though such matters were presented by the record. As a matter of fact, they were not so presented, and the Court of Appeals is confined to a consideration of the record before it and cannot consider matters outside of it and enter a judgment of reversal or final But, finally, it was suggested by counsel for defendants in error that, if this court should decide that the Court of Appeals did not have the right to enter final judgment, then that court should be directed to reverse the judgment on account of the several alleged errors which they set out in their brief and which were admittedly complained of by them in the Court of Appeals and presumably found not to have been well taken. We cannot agree with counsel that the admission of the evidence of which they complain and the so-called misconduct of the trial court warrant a reversal of the judgment of the common pleas court. Judgment of the Court of Appeals reversed, and that of the common pleas court affirmed. (Syllabus by the Court.) 1. LANDLORD AND TENANT 34(4) AGREEMENT FOR FUTURE TENANCY-REPUDIATION. A parol agreement made by a landlord and tenant in possession under an existing lease, prior to the expiration of such lease, for a tenancy in futuro from and after the original term, may be repudiated by either party before the thereunder. same has been validated by possession taken PAROL 2. LANDLORD AND TENANT 34(5) AGREEMENT FOR FUTURE TENANCY-REPUDIATION-NOTICE. Notice by the landlord to the tenant, after the parol agreement has been made, that he desires possession of the premises at a time prior to the time fixed for the tenancy by the parol agreement, is a repudiation of such an agreement. Error to Court of Appeals, Cuyahoga County. Suit by the Garfield Realty Company against the Buschman Company, with countThere was a judgerclaim by defendant. ment of the Court of Appeals, affirming a judgment of the municipal court in favor of the plaintiff and against the counterclaim, and, on application of plaintiff in error, the Court of Appeals was directed to certify its record to the Supreme Court. Judgment affirmed. This case originated in the municipal court of Cleveland. In its statement of claim defendant in error alleged that on or about August 1, 1913, it leased, in writing, to plaintiff in error, a certain storeroom in what is known as the Anisfield Building, in the city For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |