#### The New York Central Rd. Co. *v.*Francis.

*Court of appeals*— Jurisdiction—After *remandAng cause for further proceedings*— Supplemental *motion for new trial in common pleas court*— Method *and time for prosecuting error proceedings.*

Where, upon the application of the plaintiff in error in the Court of Appeals, that court remands the “cause” to the trial court, not merely for the purpose of correcting the record theretofore made in the trial court, hut for the purpose of a further hearing therein, whether upon a supplemental motion for a new trial or otherwise, the jurisdiction of such cause is then in the trial court, and the jurisdiction of the Court of Appeals can thereafter he invoked only hy the method and within the time prescribed hy statute.

(No. 17809

Decided March 11, 1924.)

Error to the Court of Appeals of Lucas county.

The issue upon which this case went to trial in the court of common pleas of Lucas county was made by the amended petition, the answer of the defendant thereto, and the amended reply.

The plaintiff seeks to recover damages for injuries he claims to have sustained while working as a car repairer in the yards of the defendant at Toledo. It is averred in the amended petition that his injury was caused by the action of an employe of the defendant using a sledge hammer in his employment carelessly and negligently, striking with a glancing blow a chisel then being held by the plaintiff for the purpose of cutting off a rivet or bolt connected with one of the defendant’s cars, in the process of being repaired. It is charged that the defendant was careless and negligent in *482employing the employe who wielded the sledge hammer, for the reason that he was habitually careless and incompetent, and at the time of the injury was partially intoxicated, all of vhieh was known or should have been known by the defendant; and that plaintiff did not know and had no means of knowing of the condition and incompetency and carelessness of such employe. It is further averred that at the time he sustained the injury the plaintiff and defendant were engaged in interstate commerce, that the car on which plaintiff was then working was a foreign car, being repaired at Toledo, and was in process of shipment from a point in the state of Michigan through the northern part of the state of Ohio to Chicago, 111., and after said repairs were made was so shipped, and was a car which was and had been used indiscriminately in shipping freight from one state to others.

The answer, after denying generally the averments of the amended petition, avers that, in so far as plaintiff suffered injury, the same was the result of his own negligence and fault, in that, while holding the chisel and awaiting the blow of the sledge hammer in the hands of his fellow workman, and after said blow had started, he moved his body and head into the course of said hammer, and near the chisel, and thus received the force of the blow; that the car in question was then engaged in commerce within the state, it having been hauled from a place in Michigan to Toledo and there unloaded, where it remained indefinitely, but later was loaded and used for other shipments. Defendant then, by proper averment, sets up the *483defense of the assumption of risk by plaintiff. The averments of the amended answer are denied by the amended reply.

In the trial of the case evidence was adduced upon the issues thus made, and upon the issue relative to interstate commerce there was introduced a portion of the former answer of the defendant, wherein it was averred that at the time of the alleged injuries to the plaintiff both plaintiff and defendant were engaged in interstate commerce; that said car upon which plaintiff was then working was a foreign car being repaired at Toledo, and was in process of shipment from Homer, in the state of Michigan, through Toledo interstate shipment to Chicago, in the state of Illinois.

Upon motion of the defendant, made at the close of the plaintiff’s case, a verdict was directed by the trial court against the plaintiff and in favor of the defendant, and thereafter judgment was rendered for the defendant, after the overruling of a motion for a new trial May 22, 1922. Error was prosecuted to the Court of Appeals ; the petition in error therein being filed May 29, 1922. Thereafter, on August 1, 1922, the plaintiff filed in the court of common pleas a supplemental motion for a new trial, and on October 23, 1922, during the January term of the Court of Appeals, that court made an order disclosed by the following entry:

“This cause is hereby remanded to the court of common pleas for such further proceedings, particularly with reference to the supplemental motion for new trial therein filed, as may be proper, to which order the said defendant in error excepts.”

*484Thereafter, on October 23, *1922,*the court of common pleas heard said supplemental motion, as a result whereof that court made the following order:

“On this 23d day of October, 1922, this case having been remanded by the Court of Appeals, came on for hearing upon the supplemental motion of the plaintiff for new trial, filed August 1, 1922, and was submitted to the court upon the argument of counsel and evidence adduced. Upon consideration thereof, the court overruled said motion, to which action of the court plaintiff duly excepted and is allowed the statutory time to prepare and file his bill of exceptions herein.”

Thereafter, on November 18, 1922, being in the October term of the Court of Appeals, the defendant in error, the New York Central Railroad Company, moved that court to dismiss the proceeding in error on the ground that it had no jurisdiction, because of the fact that the case had been remanded to the court of common pleas, or to affirm upon the ground that there was no record before the court upon which the cau-se could be reviewed. This motion was overruled, and thereafter that court reversed the judgment of the court of common pleas, on the ground that there was some evidence in the record tending to prove that plaintiff’s injury was received while he was employed in interstate commerce, by reason whereof said cause should have been submitted to the jury. Whereupon this proceeding in error was instituted in this court to reverse that judgment.

*Messrs. Doyle & Lewis*and *Mr. Robert*Newbegin, for plaintiff in error.

*485
      *Mr. Charles A. Thatcher*and *Mr. Chester A. Meck,*for defendant in, error.

Matthias, J.

The jurisdiction of the Court of Appeals to entertain the proceeding in error in this case and render judgment therein was duly challenged by counsel for the defendant in error in that court, and that is the primary question presented by the record.

Some four months after the petition in error was filed in the Court of Appeals, that court, upon application of counsel for plaintiff in error, remanded the cause to the court of common pleas, not for the purpose of making a correction in the record as to any fact which had occurred upon the trial, or with reference to the proceeding in any particular had before that court prior to the prosecution of error from that court to the Court of Appeals, but as the entry remanding the cause discloses, the “cause” was remanded to the court of common pleas for such further proceeding as may be proper. And thereafter a supplemental motion for a new trial was heard upon evidence and was overruled by the court of common pleas. During the subsequent term of the Court of Appeals a supplemental petition in error was filed, which was later dismissed by plaintiff in error.

The right of a party, upon discovering errors in the record in the trial court after the same has been transmitted and filed in the Court of Appeals, to have such errors duly corrected, likewise the authority of the Court of Appeals to transmit the record to the trial court for such purpose, is not questioned. That, however, *486has to do only with the matter of correcting the record of the proceedings theretofore had before the trial court; the judgment whereof is sought to be reversed by such proceedings in error. Here it clearly appears not only that the record was transmitted to the court of common pleas, but that, upon application of the plaintiff in error in the Court of Appeals, the “cause” was remanded to the court of common pleas, not for the purpose of merely correcting the record, but for the purpose of a further hearing in the trial court.

The proceeding in error to the Court of Appeals, it would seem, clearly recognized the determination of the original case in the court of common pleas. *Charles*v. *Fawley,*71 Ohio St., 50, 72 N. E., 294. But when the “cause” was remanded then the “cause” was again within the jurisdiction of the court of common pleas. Necessarily that court must have jurisdiction to allow or refuse the relief sought by the supplemental proceeding in that court, and evidently it was with that in view that the plaintiff in error procured an order of the Court of Appeals remanding the “causé” to the court of common pleas. It may be noted that this was during the same term of the common pleas court in which the judgment in that court had been rendered. But jurisdiction could not be in both courts at the same time. It would seem, therefore, that, after further proceedings in the latter court, the Court of Appeals could again obtain jurisdiction only through and by virtue of the methods provided by statute. Indeed, it appears that a supplemental petition in error was filed in the Court of Appeals at a term subsequent to that in which *487that court had remanded the “cause” to the court of common pleas, and long after the expiration of the time within which error could be prosecuted to reverse the judgment which the plaintiff in error seeks to have reversed. *Wells, Jr.,*v. *Wells,*105 Ohio St., 471, 138 N. E., 71,

That supplemental petition in error could not of itself serve as a basis of review of the judgment which was sought to be reversed, and in any event the supplemental petition in error was subsequently dismissed by plaintiff in error in the Court of Appeals.

It follows that the Court of Appeals did not have jurisdiction to render the judgment which it sought to render in this action, and, therefore, the motion challenging such jurisdiction should have been sustained.

*Judgment reversed.*

Marshall, C. J., Robinson, Jones and Day, JJ., concur.