Trustees v. McClannahan et al. TRUSTEES v. MCCLANNAHAN ET AL. Appeal from interlocutory order—Does not transfer case to appellate court for trial of issues–Jurisdiction of appellate courtDismissal of plaintiff's action in common pleas court leaves nothing for appellate court. 1. An appeal from an interlocutory order of the court of common pleas, or a judge thereof, dissolving a provisional injunction allowed in an action, does not transfer the case to the appellate court for trial of the issues joined by the pleadings; the jurisdiction of the appellate court, on such appeal, is limited to the hearing and decision of the motion to dissolve, although the ultimate relief demanded in the action is a permanent injunction of like purport with the provisional one which was dissolved. 2. Where, after such appeal, the plaintiff dismisses his action in the court of common pleas, the provisional injunction and motion to dissolve go with it, and nothing remains for the appellate court to hear and determine. (Decided October 29, 1895.) ERROR to the Circuit Court of Vinton county. J. M. McGillivray and J. W. Darby for plaintiffs in error. The jurisdiction of the circuit court, in so far as the cause of action attempted to be set forth in the petition-i. e., the restraining of an alleged wrongful or unauthorized act by the trustees of a township is concerned, is appellate and not original. Section 6, article 4, constitution; Logan Branch Bank, Ex parte 1 Ohio St., 432; Kent v. Mahaffey, 2 Ohio St., 498; Wheeler v. Lynn, 8 Ohio St., 393; State v. Baughman, 38 Ohio St., 455. The court of common pleas had sole original jurisdiction of the subject matter of the action. Section 4, article 4, constitution; section 456, Revised Statutes. 53 403 54 130 Trustees v. McClannahan et al. The court of common pleas having jurisdiction of the subject matter, acquired jurisdiction of the parties of plaintiffs by filing the petition and invoking the aid of the court, and of defendants by service of summons. Bolles v. Stockman, 42 Ohio St.. 445; Bouvier Law Dict., Titles Decree and Interlocutory. Interlocutory in law means that which decides, not the cause, but only settles some intervening matter relating to the cause. 11 Am. & Eng. Ency. of Law, 437. When no further action of the court is required, it is final; when it is retained for further action it is interlocutory. Teaff v. Hewitt, 1 Ohio St., 520. The injunction allowed in this cause was merely a preliminary or interlocutory order, made to preserve the matters in statu quo, until final trial. 1 Bouvier Law Dict., Tit. Injunction; 4 Field's Briefs, section 254; High on Injunctions, section 3. This identical question has never been passed upon in Ohio, so far as we have been able to discover. Hey v. Schooley, 7 Ohio, pt. 2, 49; R. R. Co. v. Hurd, 17 Ohio St., 145; Keys v. Williamson, 31 Ohio St., 564; High on Injunctions, section 1710; Rayle v. I. P. & C. Co., 40 Ind., 347; Grey v. Beldwin, 8 Black.. 164; Thompson v. Adams, 2 Ind., 151; 40 Ind., 348. This petition does not state grounds authorizing a decree; while no doubt the record should have been made, yet the validity of the acts of inferior tribunals such as township trustees, county commissioners and the like, do not depend upon the making up of their records, but may be shown by parol. King v. Renny, 4 Ohio, 79; Westenhaver v. Clive, 5 Ohio, 136; Radcliff v. Teeters, 27 Ohio St., 74; Allbright v. Payne, 43 Ohio St., 16. Trustees v. McClannahan et al. M. M. Cherry, for defendants in error. It is claimed by council for plaintiffs in error that three questions are presented in the record: 1st. Did the appeal carry the whole case to the circuit court? 2nd. Does the petition as amended state a cause of action? 3rd. Did the court err in overruling the motion of defendants for judgment in their favor at the close of plaintiffs' evidence. The appeal carried up the whole case. Keys v. Williamson, 31 Ohio St., 564; Johnson v. Vil lage of Avondale, 1 C. C. Rep., 231. A case involving the same facts between the same parties and seeking the same relief could not be in both courts at the same time. The appeal carried the parties, the pleadings and the case to the circuit court, and there was nothing remaining in the common pleas court but the record there made. To hold that less than the whole case was taken to the circuit court by the appeal, would result in dividing up the case, a thing that cannot be done where the sole relief sought, as in this case, is an injunction. Forgy et al. v. Railroad Co., 1 C. C. P., 419 and 420. We claim therefore that the whole case went to the circuit court by the appeal and that the finding of the circuit court is right. The petition states a good cause of action. Defendants were the trustees of Swan township. The petition sets up all the facts necessary to show that said trustees were acting illegally and were attempting to take the property of the tax payers of the township to pay for a site for a town hall and to pay for a building thereon without any right or authority so to do. Some authorities hold that where a record is, by statute required to be kept, the rule is even car Trustees v. McClannahan et al. ried so far as to exclude parol or other extrinsic evidence of the proceedings of such public bodies, where there has been no record made, or when there is a defect or omission in the record. Am. & Eng. Ency. of Law, vol. 20, 511, and numerous cases there cited. While in Ohio the record of inferior tribunals and public boards are more liberally construed, yet the rule there requires that enough should appear of record to show with reasonable certainty that the requirements of the law have been substantially complied with. Lewis et al. v. Laylin et al. 46 Ohio St., 663; Harding v. Trustees of New Haven Tp., 3 Ohio, 232. The plain inference is that questions of this character must not only appear of record but they can not be supplied or aided by parol. Fravert v. Kinfrock, 43 Ohio St., 335; 2 Ohio 253; 12 Ohio, St., 644. That the rule in Ohio is as contended for is clearly recognized in the following decisions which are in the nature of exceptions to the rule. Radcliff v. Teeters, 27 Ohio St., 66; Albright v. Payne, 43 Ohio St., 8; Dixon, v. Subdistrict, 3C. C. Rep., 517; Westerhaven v. Clive, 5 Ohio, 136; Reynolds et al. v. Schweinefus, 27 Ohio St., 321. WILLIAMS, J. Action was brought in the court of common pleas of Vinton county, by the defendants in error, resident taxpayers of Swan township in that county, against the trustees of the township, who are the plaintiffs in error here, to' enjoin the levy of a tax to pay for a site and the building of a township house, the borrowing of money in anticipation of the tax, and payment for the site and building out of the general fund of Trustees v. McClannahan et al. the township. The petition alleges, as the grounds of the injunction, that the trustees, who had already contracted for the site and the erection of the building at a cost of less than two thousand dollars, had not submitted the question of making the levy, to the electors of the township, at any election held therein, as required by section 1443, of the Revised Statutes; and, that there was no fund in the treasury of the township which could be used in payment for the building or site, when the contracts were made. The prayer of the petition is for a temporary injunction, and that on the final hearing the injunction be made perpetual. Upon the filing of the petition, an order was granted by a judge of the court in which the action was brought, enjoining the defendants as prayed for in the petition, until the further order of the court. Afterward, before the same judge, the defendants, on notice to the plaintiffs, moved for the dissolution of that injunction, for the reasons, as stated in the motion, that the allegations of the petition were insufficient to authorize it, and also that they were not true; which motion was sustained, and the injunction dissolved; and from the order of dissolution the plaintiffs appealed to the circuit court. After the appeal was perfected, the operation of the order of dissolution was suspended, by two judges of the circuit court, until the appeal could be heard; and, issues of fact having been made up by pleadings filed in the action in the court of common pleas-the answer controverting material allegations of the petition and alleging some new matter which was denied by reply, the cause was placed on the trial docket of that court for the ensuing term, when the defendants asked to have the cause set down for trial. The court granted |