JURISDICTION IN AN ACTION TO-MODIFY AN ORDER FOR ALIMONY.

Court of Appeals for Licking County,

#### George Graff v. Louisa Graff.

Decided, March Term, 1917.

*Divorce and Alimony—Allowance of Alimony Made on Appeal to the Old Circuit Court—Is Within the Jurisdiction of the Court of Appeals, When—Such an Allowance Must he Considered as Alimony and Not a Division of Property, When.*

1. The constitutional amendment creating the courts of appeals clothed them with jurisdiction, not only over active cases . which were *446pending in the circuit courts on January 1, 1913, but also with any continuing jurisdiction which the said courts had over judgments theretofore rendered by them; and the fact that alimony cases are not now appealable in nowise affects the jurisdiction of a court of appeals over a case properly appealed to the circuit court and now coming on for consideration by the court of appeals as the successor of the circuit court.

2. In an action to modify the allowance made to a divorced wife and in the absence of anything in the petition to indicate that the divorce was granted to the plaintiff on the aggression of the wife, the court is bound to assume that the allowance was in the nature of alimony and therefore subject to the continuing jurisdiction of the ■court, rather than that it was in the nature of a division of the property under the provisions of Section 11993. But regardless of whether the judgment was technically one for alimony or otherwise, the fact that it directed the payment of a specified amount per month to the wife during her life or until further order of court creates a continuing jurisdiction, which in the present case is now in the court of appeals.

3. An order for payment of alimony to a divorced wife of a specified sum each month during her life or until further order of court, is not abated by the death of the former husband.

*Stasel é Cornell*and *Flory & Flory,*for plaintiff.

*Kibler & Kibler, Fitzgibbon, Montgomery de Blach*ancl *Phil. B. Smythe,*contra.

Allread, J.

Elizabeth Mary Graff, executrix of the last will and testament of George Graff, deceased, seeks by a petition filed in this court to vacate or modify a judgment rendered by the circuit court on appeal at the March term, .1900, ordering the plaintiff, George Graff, now deceased, to pay as alimony for the support of said Louisa Graff the sum of $25 per month during her natural life or until the further order of said court.

The defendant first objects to the jurisdiction of the court of appeals. It is contended that final judgment having been rendered in the circuit court when the amendment providing for the court of appeals became effective, that this court is without jurisdiction to disturb the original judgment.

The judicial amendment creating the court of appeals provides that:

*447“The court of appeals shall continue the work of the respective circuit courts and all pending cases and proceedings in the circuit court shall proceed to judgment and be determined by the respective courts of appeals, * * * and the circuit courts shall be merged into, and their work continued by, the court of appeals. ’ ’

The first clause treats of the work of the circuit court and the disposition of pending cases and proceedings, in the conjunctive. The new court was to continue the work of the circuit court as well as to dispose of pending cases.

The draftsman of this section, with a view evidently of securing a broad interpretation, added the second paragraph above quoted. By such paragraph the circuit courts were not in a legal sense abolished, but were merged into the courts of appeals. The court of appeals, therefore, represents the circuit court not only as to active cases pending on January 1st, 1913, but as to all jurisdiction which the circuit court had over judgments theretofore entered.

This we think is the reasonable and natural interpretation of the terms employed in the constitutional amendment and is in line with the decision in the case of *State, ex rel Chittenden,*v. *Harmon, Governor,*87 O. S., 364. The fact that alimony cases are not now appealable does not affect the jurisdiction of the court of appeals over a case properly appealed to the circuit court and coming up for consideration by the court of appeals as successor of the circuit court.

It is next contended that the judgment of the circuit court in 1900 was not one for alimony, but was for a division of the property under Section 11993, General Code, and, therefore, not subject to the continuing jurisdiction of the court in which the judgment was rendered. Counsel for defendant cite the case of *Hassaurck*v. *Markbreit, Administrator,*68 O. S., 554.

Counsel for plaintiff cite the case of *Ulney*v. *Watts,*43 O. S., 499. There will probably be no conflict between the Hassaurek case and the case of *Ulney*v. *Watts*when the exact judgment sought to be modified comes before the court. The case of *Ulney*v. *Watts*was disposed of on demurrer to the petition, where*448in it was alleged that the judgment was one for alimony and there was nothing in the petition to indicate that it was not a judgment for alimony. That is the condition of the present case when we consider only the petition. It does not appear in the petition that the divorce was granted to the plaintiff upon the aggression of the wife, and consequently the court will have to assume at this stage that the judgment is what the plaintiff claims, to-wit, a judgment for alimony and subject to the continuing jurisdiction of the court. Furthermore, the original judgment directing the payment of $25 per month to the defendant during her life or until the further order of the court, amounts, by implication, to a reservation of the jurisdiction of the court over the original judgment. Independent, therefore, of the question whether the judgment of 1900 was technically a judgment for alimony, the court would have continuing jurisdiction under the reservation in the entry.

It is next contended by the administratrix ,of the plaintiff that the fact of plaintiff’s death alone terminated the liability of his estate. We can not, however, agree with that contention.

The former judgment expressly provides that the payments shall continue during the life of the defendant or until the further order of the court. Until, therefore, the administratrix obtains an order from the court modifying the former judgment, the liability of the estate to pay the amount provided for remains.

The court has, therefore, reached the opinion that the case should proceed to trial upon the evidence.

ITouck, J., concurs.