# Buckeye Union Casualty Co. v. Braden > Ohio Court of Appeals · May 10, 1962 · 116 Ohio App. 348 URL: https://www.frixlaw.com/law-library/cases/9814170 ## Case - **Full name:** The Buckeye Union Casualty Co., Appellee, v. Braden Et Al., Appellants - **Court:** Ohio Court of Appeals - **Decided:** May 10, 1962 - **Citations:** 116 Ohio App. 348; 22 Ohio Op. 2d 190; 188 N.E.2d 300; 1962 Ohio App. LEXIS 663 - **Precedential status:** Published - **Opinion:** Opinion of the court by Eadcliee - **Judges:** Eadcliee, Badclixe, Radcliee, Collier, Brown, Colliee, Colliek, Buown - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9814170 ## Opinion text Eadcliee, J. This cause was submitted on (a) motion by appellee to dismiss the appeal on questions of law; (b) motion by appellants to take additional testimony in their appeal on questions of law and fact; and (c) the merits. In this writing we will dispose of only questions (a) and (b). Since January 1,1945, the effective date of the latest amendment to Section 6, Article IY of the Constitution of Ohio, grave doubt has existed in the minds of many members of the bench and bar that the Courts of Appeals of Ohio, have jurisdiction in appeals on questions of law and fact, or that such form of appeal even exists. The question has been too long ignored by both the Courts of Appeals of Ohio and the legal profession and we feel it our duty to raise it in this cause in such a manner that the Supreme Court of Ohio may pass directly upon it in all its aspects and ramifications. There is no plausible excuse to include all the law applicable to this question in an opinion, as it is available in much clearer and more concise form than would result from my inept efforts in this opinion. This proposition is best set forth in Skeel’s Ohio Appellate Law, 1961 Cumulative Service, 88 et seq., Section 200-1, and in an article by Judge Lee E. Skeel in 12 Western Eeserve Law Eeview, at page 645. As in all controversy there is another side to the coin, and all there is to be said therefor was well expressed by the late Judge James E. O’Connell, Court of Appeals of Ohio, First Appellate District. This may be found in 14 Ohio Opinions (2d), 352. In addition to the foregoing authority there is another factor supporting our position that we no longer have jurisdiction in appeals on questions of law and fact, and that is that *350 the original reason and need for snch appeal no longer exist. This reason and need expired on October 9,1883, with the amending of Section 6, Article IV of the Constitution (80 Ohio Laws, 382), at which time the Circuit Court was created to replace the District Court as the intermediate appellate court of this state. This abolished all possibility of appeal coram nobis. After that amendment date it was impossible for a judge to preside in an equity case on the trial level and then sit as one of three judges reviewing the same case on appeal. The danger of this possibility of appeal coram nobis (appeal to one’s self) was the reason for creation of the distinction between appeal and error proceedings. The reason being so long dead, surely the rule, born of such reason, should be laid to rest after seventy-nine years of zombi existence. We always regret adding to the labor of lawyers by raising an issue which, as we said earlier has been too long ignored and which they ignored, but it is certainly in this cause. In fact, this is a perfect situation in which to raise such a question as both the appellants and appellee herein are represented by very able and diligent members of our profession. It follows from what we have said that the motion to dismiss the appeal on questions of law should be, and hereby is, overruled. The motion to take additional testimony is overruled and, sua sponte, we dismiss the appeal on questions of law and fact. Nothing we have said herein applies to the merits of this cause. Parties whose interests are prejudiced or are aggrieved hereby, as defined in Ohio Contract Carriers Association, Inc., v. Public Utilities Commission, 140 Ohio St., 160 , may proceed as he or they deem best. This court will continue its work on the merits of this cause in the appeal on questions of law, the only matter now before us. Judgment accordingly. CollieR and Brown, JJ., concur. (Decided June 20, 1962.) On Motion to certify record. Badclixe, P. J. This cause came on for hearing on appellant’s motion to certify the record to the Supreme Court of *351 Ohio on the ground that the judgment of this court in dismissing the appeal on questions of law and fact herein is in conflict with judgments of other Courts of Appeals in other districts. The motion is denied for two reasons: 1. Our order of dismissal of the appeal on questions of law and fact is not a final order from which an appeal may be taken. Humphrys v. Putnam, 172 Ohio St., 456 . Before a conflict may exist there must be two final orders or judgments from each of which an appeal could be taken. Humphrys v. Putnam, supra, and State v. Sheppard, 97 Ohio App., 493 , at page 497. 2. There would be no conflict between our order, if it were a final order, and the judgments of the other Courts of Appeals in the cases cited in appellant’s motion, as the jurisdictional question was either not at issue or not decided. Motion denied. Colliee and Brown, JJ., concur. (Decided November 1, 1962.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9814170. Public record. Not legal advice.