The opinion
ON MOTION FOR REHEARING .
Decided Aug 12, 1933
BY THE COURT
Submitted on motion of defendant for rehearing. For the reasons stated in our opinion, sustaining the motion to dismiss the appeal, the motion for rehearing will be overruled.
West v West, 100 Oh St, 33, is the last pronouncement of the Supreme Court on the question presented on the motion. In our judgment it is determinative against the claim of the defendant that he has a right to appeal. If the Supreme Court is in error it is the court to correct the error. If we are in error determining the scope and effect of the decision in West v West, supra, the Supreme Court will set us right;.
Discussing the West case the author of Ohio Jurisprudence, 14 O. Jur., 547, says:
“The Court of Appeals does not’ have jurisdiction to review by appeal an order for the care, custody, or support of minor children, made in a proceeding for divorce or alimony. This results from the fact that such proceedings are not regarded as chancery proceedings, within the meaning of Par. 6 of Article 4 of the Ohio Constitution, which restricts the appellate jurisdiction of the Court of Appeals to chancery cases.”
Varsey v Varsey, 25 O.C.C. (N.S.), 229 cited by defendant is authority for appeal in cases involving the care, custody or maintenance of minor children prior to the Ohio Constitution of 1912.
Bower v Bower, 90 Oh St, 172, also cited, was decided in the Supreme Court in 1914, but the question arose in the trial court prior to the Constitution of 1912. The decree of divorce was granted April 2, 1909.
HORNBECK, PJ, KUNKLE and BARNES, JJ, concur.