Smith v. Kelley

6 Ohio Law. Abs. 75, 1927 Ohio Misc. LEXIS 1070

• Court: Ohio Court of Appeals
• Decided: June 20, 1927
• Docket: No. 3034
• Status: Published

Opinion

FULL TEXT.

HAMILTON, PJ.

The action is for partition of real estate.

Appellant claims that she and two other interests are entitled each to one-third of the rents of the property sought to be partitioned. (The property is a perpetual leasehold.) While the appellees claim the property is owned according to a decree of the Common Pleas Court, by the six interests represented by both appellants and appellees, each owning an undivided one-sixth part.

The record shows that the will of James S. Houston was admitted to probate March 6, 1871. That the administrator with the will annexed filed an action in the Court of Common Pleas to obtain construction of the will and other relief. That.Jn this action to construe' the will the Common Pleas Court, on December 28, 1871, entered a decree construing the will and finding the interests of the parties under the will. This decree of December 28, 1871, is pleaded as a bar to the claims of the appellant.

It is argued orally and in the brief that the action of the administrator was limited to an action for instruction and direction as to his duties in the administration of the personal estate; that the question of the construction of the will was not necessarily before the court, and, that, therefore, the decree has no binding effect in so far as it relates to the question involved here.

If the Court in the original decree did construe the will fixing the interests, that construction could only be defeated through want of jurisdiction of the court.

_ The rule is that a court of general jurisdiction, not limited territorially or in the amount of its jurisdiction, is competent to decide all questions of its own jurisdiction and having exercised that jurisdiction, its judgment is final and the valadity of its judgment cannot be thereafter attacked by the parties to that judgment or their privies. 34 Corpus Juris, 552, 936; Merritt v. Horne, 5 Ohio St. 307; Richards v. Skiff, et al. 8 Ohio St. 586.

The Common Pleas Court is one of general jurisdiction, competent to determine questions relating to that jurisdiction. Winemiller v. Laughlin, 51 Ohio St. 421.

The original decree construing the will is before the Court, attached to an agreed stipulation. _ The decree recites “that this is a proper action for the construction bf said will.” The decree further recites: “And the Court proceeding to give a construction of .the last will and testament of the said James S. Houston, deceased, do find, etc.” The decree proceeds to construe the will fixing all rights and interests thereunder, and decrees the interests in the rentals from the real estate in question to be divided into sixths in accordance with the claims of the appellees.

This decree, as heretofore stated, was entered December 28, 1871, since which time the administrator and the testamentary trustee and all parties in interest have acted thereunder, distributing and receiving their rents, in equal one-sixth parts.

Our conclusion is that the decree of December 28, 1871, is a bar to the claim of appellant and that her interest thereunder is an undivided one-sixth part of the realty sought to be partitioned.

A like decree to that entered below will be entered here, and the cause remanded to the Court of Common Pleas for further proceedings and execution of this judgment.

(Cushing and Buchwalter, JJ, concur.)