Louisville & Nashville Railroad v. City of Cincinnati

10 Ohio N.P. (n.s.) 594, 1911 Ohio Misc. LEXIS 146

• Court: Hamilton County Court of Insolvency
• Decided: January 21, 1911
• Status: Published

Opinion

Warner, J.

Heard on motion of plaintiff for a separate finding of facts and law under Section 11470, General Code.

It is apparent that Section 11470, General Code, does not by force of its own provisions extend to actions or proceedings other than those found in title and containing the procedure in the courts of common pleas.

If said section applies to the preliminary hearing herein, it is only so by force of the provisions of Section 11212, General Code, which is as follows:

“Section 11212. The provisions of law governing civil proceedings in the court of common pleas, so far as applicable, shall govern like proceedings in the probate court wben there is no provision on the subject in this title.”

The limitation in this section to “like proceedings” must refer to the character, as well as the form of the proceedings to which reference is made. People v. Jackson, 8 Mich., 110, 112.

If the substance or character of the preliminary proceeding in this court is like that of any proceeding under the code of procedure it would be sufficient.

The circuit court of this county in Kittredge v. Miller, etc., 12 C. C., 128, 133, held that an application in the probate court by an attorney for an allowance of fees for services in an assigned estate, which was contested, was a proper case for a separate finding of facts and law. This case was in character and substance an action to recover for services rendered.

I think therefore that the provisions of said Section .11212 extend beyond those cases in which the probate court and common pleas court have concurrent jurisdiction.

The question upon this motion is therefore reduced to this: Was the preliminary hearing herein in character, substance, or form “like” any “civil proceeding” in the court of common pleas under title 4 of the General Code. I think not. The áttention of the court has not been called to any “civil proceeding” under that title or otherwise, in character, substance, or form, like this hearing, nor does the court know of any. Attention has been called to the fact that the court of common pleas has jurisdiction of appropriation proceedings by municipal corporations, but in such cases there is no provision of law for a preliminary hearing such as is required in this proceeding. The plaintiff therefore is not entitled to a separate finding of facts and law as a matter of right.

Motion denied.