In Re Yoder

Ohio Court of Appeals

In Re Yoder

62 N.E.2d 925, 76 Ohio App. 390, 43 Ohio Law. Abs. 542, 32 Ohio Op. 109, 1945 Ohio App. LEXIS 511

CourtOhio Court of Appeals

DecidedJanuary 26, 1945

Docket638

StatusPublished

This text of 62 N.E.2d 925 (In Re Yoder) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Yoder, 62 N.E.2d 925, 76 Ohio App. 390, 43 Ohio Law. Abs. 542, 32 Ohio Op. 109, 1945 Ohio App. LEXIS 511 (Ohio Ct. App. 1945).

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Opinions

A motion has been filed to dismiss the appeal from the Juvenile Court for two reasons:

(1) The suit is not one in chancery and therefore not appealable as a chancery case.

(2) The grandparents have no appealable interest in the matter.

The appeal, in our opinion, is not from a judgment entered in a cause cognizable in chancery before the enactment of the Code of Civil Procedure. The action below was instituted and prosecuted under the Juvenile Court Code which is exclusively statutory. The custodial order was incidental to the statutory determination under the act that the children were dependent children. The order was not made in such an equitable suit involving the custody of children as was recognized as a case in chancery in Varsey v. Varsey, 25 C.C. (N.S.), 229, 26 C.D., 385, nor does the order bear analogy to the inherent right of the courts in divorce cases to determine custody, as discussed in the opinion in the cited case.

Therefore the appeal on questions of law and fact will be dismissed and the case is retained as an appeal *Page 391 on questions of law. Thirty days after the filing of the entry journalizing this decision will be given appellants within which to have a bill of exceptions prepared and settled in the trial court.

Counsel for appellee discuss the jurisdiction of this court to consider an appeal on questions of law from an adjudication of the delinquency of minor children, but this is not made the subject of the motion. Nor could it be because the notice of the present appeal is as upon questions of law and fact and as to such an appeal there is no doubt that this court has constitutional jurisdiction. However, inasmuch as it has now been determined that the cause may not proceed as upon appeal on questions of law and fact, if appellee desires to urge the question of jurisdiction to entertain the appeal on questions of law, it should be raised before appellants have been put to the effort and expense of securing a bill of exceptions.

The second branch of the motion will be overruled. We cannot upon the transcript of docket and journal entries and the charge now filed in this court determine as a matter of law that the appellants do not have such an interest in the subject matter of the judgment as to preclude their perfection and prosecution of the appeal.

Motion sustained in part and overruled in part.

HORNBECK and GEIGER, JJ., concur.

BARNES, P.J., not participating.

ON APPLICATION for rehearing.

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A motion has been filed to dismiss the appeal from the Juvenile Court for two reasons:

(1) The suit is not one in chancery and therefore not appealable as a chancery case.

(2) The grandparents have no appealable interest in the matter.

The appeal, in our opinion, is not from a judgment entered in a cause cognizable in chancery before the enactment of the Code of Civil Procedure. The action below was instituted and prosecuted under the Juvenile Court Code which is exclusively statutory. The custodial order was incidental to the statutory determination under the act that the children were dependent children. The order was not made in such an equitable suit involving the custody of children as was recognized as a case in chancery in Varsey v. Varsey, 25 C.C. (N.S.), 229, 26 C.D., 385, nor does the order bear analogy to the inherent right of the courts in divorce cases to determine custody, as discussed in the opinion in the cited case.

Therefore the appeal on questions of law and fact will be dismissed and the case is retained as an appeal *Page 391 on questions of law. Thirty days after the filing of the entry journalizing this decision will be given appellants within which to have a bill of exceptions prepared and settled in the trial court.

Counsel for appellee discuss the jurisdiction of this court to consider an appeal on questions of law from an adjudication of the delinquency of minor children, but this is not made the subject of the motion. Nor could it be because the notice of the present appeal is as upon questions of law and fact and as to such an appeal there is no doubt that this court has constitutional jurisdiction. However, inasmuch as it has now been determined that the cause may not proceed as upon appeal on questions of law and fact, if appellee desires to urge the question of jurisdiction to entertain the appeal on questions of law, it should be raised before appellants have been put to the effort and expense of securing a bill of exceptions.

The second branch of the motion will be overruled. We cannot upon the transcript of docket and journal entries and the charge now filed in this court determine as a matter of law that the appellants do not have such an interest in the subject matter of the judgment as to preclude their perfection and prosecution of the appeal.

Motion sustained in part and overruled in part.

HORNBECK and GEIGER, JJ., concur.

BARNES, P.J., not participating.

ON APPLICATION for rehearing.

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Bluebook (online)

62 N.E.2d 925, 76 Ohio App. 390, 43 Ohio Law. Abs. 542, 32 Ohio Op. 109, 1945 Ohio App. LEXIS 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-yoder-ohioctapp-1945.