Reports of Cases Argued and Determined in the Supreme Court of Ohio

9780217753081: Reports of Cases Argued and Determined in the Supreme Court of Ohio

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated.1916 Excerpt: ... Opinion, per Nichols, C. J. From these authorities the doctrine may be safely laid down that a case concededly chancery in its nature and calling for an equitable remedy will continue so, in spite of the fact that the law may have formally adopted the offspring of chancery. In short, once a chancery case, always a chancery case, at least for jurisdictional purposes. It is the law of Ohio, as established by the case of Feuchter v. Key I et al., 48 Ohio St., 357, and City of Zanesville v. Fannan, 53 Ohio St., 605, that where a new remedy is given by statute for a right of action existing independent of it, without expressly excluding any former remedy, the statutory remedy is cumulative merely. Applying this doctrine to the instant case, the conclusion is inevitable that the creation of statutory partition proceedings, even though the remedy be fully as adequate as the remedy provided by chancery, does not oust the old remedy, but is merely cumulative, for it will not be claimed that the partition statutes of Ohio expressly exclude the then existing equitable remedy. The term "chancery" is not to be found in our present statute law, nor is it to be found in the Constitution of 1851, but it is not unknown to the Constitution of 1802. Section 2, Article III of the original Constitution provides: "The supreme court shall consist of three judges, any two of whom shall be a quorum. They shall have original and appellate jurisdiction, both in common law and chancerv, in such cases as shall be directed by law." Opinion, per Nichols, C. J. We find the term again in Section 3 of Article III, which provides for the formation of courts of common pleas and. contains the provision that such court shall have common-law and chancery jurisdiction in all such cases as shall b...

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