Deniel v. StateDeniel v. State
Motion for leave to file petition in error to review the refusal of the- court of common pleas to permit a petition in error to be filed in the same cаse and motion to strike off that motion.
Deniel was convicted before a magistrаte of violation of the law against the sale of intoxicating liquors. He made application to thé court of common pleas for leave to file a pеtition in error to review the proceedings and judgment of the magistrate, which leavе was refused. Application was made to this court for leave to file a petition in error to review that refusal, and motion made to strike off the motion for leave.
We had supposed that the question of granting leave in such a case was sеttled by the Supreme Court in the case of Village of Canfield v. Probst, 71 O. S., 42, the syllabus of which is as follows:
11 Where one who has been tried and convicted before a mayor of a municipal corporation for violatiоn of an ordinance, applied*276 under Section 1752, Revised Statutes, to the court of common pleas, or a judge thereof, for leave to file a petition in error to review the proceedings and judgment of the mayor, and the court or judge, tо whom the application is made refuses to grant leave to file the petitiоn in error, such refusal is not reviewable on error in the circuit court.”
Now, it is urged that there is a distinction between this ease, which is a prosecution for violation of the liquor law, and a prosecution for violation of the village ordinance, but the Supreme Court does not put the decision in the Canfield case upon any such distinction -as is urged by counsel. In this case application was to be made to the court. In thе Canfield case it might have been made to the coqrt or a judge thereof, but what may the court review? Section 6707, Revised Statutes, provides :
“An order affecting a substantiаl right in an action, when such order in effect determines the action and prevents а judgment, and an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, is a final order which may be vacated, modified or reversed as provided in this title.”
Now, the Supreme Cоurt in the Canfield ease say that there was no action pending, simply an application for leave to file, and it could not be claimed that it was an order madе in an action, and they say:
“The application for leave to file a pеtition in error, can not be dignified by the name of a proceeding, special or otherwise. The term ‘special proceeding’ is sometimes defined as a proceeding in a court which was not, under the common law and equity practice, еither an action at law or a suit in chancery. The term is used in code states in cоntradistinction to ‘action.’ The defendant in error sought to institute a proceeding. Hе could do so' only upon leave of the common pleas court or a judge thereof. The asking leave is not a special proceeding and does nоt become such until the door of the court is opened for its entrance. ’ ’
Now, it would seem that this reasoning applies with equal force .to proceedings under thе liquor law, which provides that
See also the case of Walder v. State of Ohio, 82 O. S., 452, wherе the Supreme Court applied the reasoning in the Canfield ease to.a case for violation of the law prohibiting the sale of intoxicating- liquors. There is a further rеason that under the new Constitution the jurisdiction of the court of appeals is expressly limited as follows:
“The court of appeals shall have original jurisdiction’in quo wаrranto, mandamus, habeas corpus, prohibition and procedendo, and aрpellate jurisdiction in the trial of chancery eases, and to review, affirm, modify оr reverse the judgments of the court of common pleas.”
As we have already found, there was no judgment of the court of common pleas in this case, so that there was nothing for this court to modify or reverse. The motion to strike off the motion for leave to file a petition in error will be sustained and the motion stricken off.-