136 N.E.2d 444 | Ohio Ct. App. | 1955
The plaintiffs have filed a petition seeking to invoke the original jurisdiction of this court in an action for a declaratory judgment. In their petition, the plaintiffs ask for a judicial construction and interpretation of Sections
The original jurisdiction of the Courts of Appeals of Ohio is conferred by Section 6, Article IV of the Constitution, as amended, effective January 1, 1945, which reads in part as follows:
"The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and such jurisdiction as may be provided by law *305 to review, affirm, modify, set aside, or reverse judgments or final orders of boards * * *."
Section
"In addition to the original jurisdiction conferred by Section
The statute on declaratory judgments is found in Section
"Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect. Such declaration has the effect of a final judgment or decree."
The Uniform Declaratory Judgments Act is a remedial act and does not change any substantive rights of the parties or enlarge the jurisdiction of the courts over subject matter and parties. As stated by Borchard on Declaratory Judgments (2 Ed.), 231:
"The language used in the uniform act and embodied by implication in the other acts was designed to indicate that regular jurisdiction of courts over parties and subject-matter was not intended to be altered, and that only a `new' procedural device or vehicle of relief was afforded."
Courts may grant such relief only in cases otherwise within their jurisdiction to pass upon.
It will be observed that an action for a declaratory judgment is not included in Section 6, Article IV of the Constitution, which prescribes the original jurisdiction of the Courts of Appeals in quo warranto, mandamus, habeas corpus, prohibition and procedendo. Any attempt by legislative enactment to expand or enlarge the jurisdiction of the courts, which is prescribed and limited by the Constitution, would certainly be held unconstitutional. No decision has been cited and we have been unable to find any case where the jurisdiction of the Courts *306
of Appeals of Ohio to grant a declaratory judgment has been determined. However, the Supreme Court of Ohio has expressly announced that that court does not render declaratory judgments.Schick v. City of Cincinnati,
"Under its original jurisdiction conferred by the Constitution, the Court of Appeals has no right to entertain declaratory judgment actions."
And, Borchard on Declaratory Judgments (2 Ed.), 253, says:
"Only courts of original jurisdiction, including sometimes special tribunals, are granted power to render declaratory judgments. * * * Hence it is clear that courts of appeal should not in the first instance be requested to issue a declaratory judgment not demanded below * * *."
Section
"All orders, judgments and decrees under Sections
That statutory provision for appeal of actions for declaratory judgments clearly indicates that it was never the intention of the Legislature to permit original actions of this kind to be filed in an appellate court. See, also, 16 American Jurisprudence, 324, Section 52.
On the authorities above cited and for the reasons herein stated, our conclusion is that this court has no jurisdiction to entertain an original action filed in this court for a declaratory judgment; that such jurisdiction is not conferred either by the Constitution or by statutes, and, therefore, the defendants' motion to dismiss plaintiffs' petition must be, and hereby is, sustained.
Motion sustained.
McCURDY, P. J., and GILLEN, J., concur. *307