#### The State, ex rel. Ehmann, *v.*Schneider, Judge.

(No. 6629

Decided February 4, 1946.)

*Mr. Eli Q.*Frankenstein, for relator.

*Judge Louis J. Schneider, in propria persona.*

By the Court.

In this action originating in this court, the relator seeks a writ of prohibition restraining the respondent from vacating a judgment entered by him at a prior term of the Court of Common Pleas of Hamilton county.

No answer has been filed, but the respondent appeared personally and stated he had concluded that he had exceeded his jurisdiction in entering the judgment, and, for that reason, would, on his own motion, vacate it unless prohibited by this court. He submitted the matter to this court for its decision.

Prom the positions and representations of relator and respondent, it appears that the relator was a co-plaintiff in action No. A-93079 on the docket of the Court of Common Pleas of Hamilton county, in which various parties were made defendants, including Ruth E. Ramsey, as trustee under the last will and testament of Caroline Ehmann, deceased. He prayed for a declaratory judgment as to the rights of the parties under the trust created by the will of Caroline Ehman, deceased, whose estate was administered in the Probate Court of Hamilton county, Ohio, and for affirmative relief based on the declared rights.

*28Under the terms of the trust, Ruth E. Ramsey, trustee, was directed to hold and manage certain real estate for the benefit of plaintiff and another during their lifetime. It was not clearly disclosed what is to be done with the trust corpus thereafter, *but*there was provision for a future-estate — perhaps, however, not a trust estate.

In the Common Pleas Court it was alleged and proven that it was impossible to administer the trust corpus at a profit; that as a result the beneficiaries of the trust were receiving no income therefrom and charges against the corpus were accumulating for taxes, insur-. anee premiums, and interest and principal requirements on a mortgage loan placed thereon by the testatrix; that the property was being allowed to fall into disrepair for lack of funds to make repairs; and that as a result the property was depreciating in value and the parties were threatened with foreclosure proceedings.

The affirmative relief prayed for was that authorized by Section 11925 *et seq.,*General Code, known as the “disentailing statute.”

On September 4, 1945, the court, entered a decree authorizing the trustee to sell the real estate forming the corpus of the trust estate at not less than the appraised value, and thereafter the trustee entered into a contract to sell the real estate for a sum in excess of the appraised value.

On December 3, 1945, which was at a subsequent term of court, the respondent having concluded that he had exceeded his jurisdiction, notified the relator’s attorney that it was his intention to set aside and vacate the judgment.

We assume that, if the judgment was void for want of jurisdiction, it would be within the jurisdiction of the court entering such a void judgment, to journalize *29its invalidity by an appropriate entry, without being moved to do so by any one. Certainly, this court would not prohibit the journalization of a correct legal conclusion. We also assume that mere error in'the entering of the judgment would not justify setting it aside on the court’s own motion at a subsequent term.

That brings us to the crucial question in this case, which is: Did the Common Pleas Court have jurisdiction?

It is suggested that by virtue of Section 10501-53, General Code, the Probate Court is given exclusive jurisdiction over testamentary trusts and their administration by fiduciaries. By that section, the Probate Court is given jurisdiction, *inter alia,*to construe wills, to render declaratory judgments and to direct and control the conduct of fiduciaries and settle their accounts. That section then provides that “such jurisdiction shall be exclusive in the Probate Court unless otherwise provided by law”; and that “the Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

In *Unger*v. *Wolfe,*134 Ohio St., 69, 15 N. E. (2d), 955, the Supreme Court held:

“Under the provisions of Section 10501-53, General Code, the Court of Probate has exclusive jurisdiction as to- the allowance of fees to an attorney for his services in the unsuccessful prosecution of an application for the removal of the guardian of an incompetent.”

Accordingly, the Supreme Court held that the Com-, mon Pleas Court had no jurisdiction of an action in *quantum meruit*by the attorney against the incompetent and his guardian, notwithstanding the provisions of Section 11215, General Code, conferring jurisdiction on the Common Pleas Court “in all civil cases” with *30a certain limitation unimportant here. In reaching that conclusion, the court said, at pages *74*and 75:

“The difficulty with this contention of the plaintiffs is that Section 11215 is an old and general statute while Section 10501-53 is recent and special. Therefore under the canons of statutory construction the latter must take precedence over the former. It is difficult to escape the effect of specific provisions that ‘such jurisdiction shall be exclusive in the Probate Court unless otherwise provided by law’ and that ‘the Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or. denied by statute.’ The application for the removal of the guardian was properly before the.Probate Court. The request was denied. Since the court concededly was charged with the responsibility of continued control over the guardian, the ward and his estate, and since any fees allowed the ward’s attorneys must come from the estate, this matter therefore would seem to be peculiarly within the province of that tribunal. Furthermore that is the court in which a substantial part of the attorneys’ services were performed.

“It is the view of this court that the recent, special statute relating to the jurisdiction of the Probate Court must be accepted as decisive of the question here presented. ’ ’

See, also, *Gregg*v. *Kent,*27 Ohio Law Abs., 628, and *Morehead*v. *Central Trust Co.,*54 Ohio App., 9, 5 N. E. (2d), 932.

Were Section 11215, General Code, the only basis for jurisdiction of the Common Pleas Court, we would consider *Unger*v. *Wolfe, supra,*as conclusive against the jurisdiction of that court. But in that case the court took pains to point out that Section 11215, General Code, was both old and general, and, for that rea*31son, must yield to Section 10501-53, General Code, which is both new and special.

It is, of course, a matter of legislative intent. What is meant by the phrase, “unless otherwise provided by law?” The court held that a provision conferring jurisdiction generally upon another court wa's not a provision conferring jurisdiction over the specific matters listed in Section 10501-53, General Code, as within the exclusive jurisdiction of the Probate Court. But where the specific subject matter by express provision is placed within the jurisdiction of another court, can it be said that it has not been “otherwise provided bylaw?” We think not. To so hold would require us to declare that the specific statute had been repealed— and would drive us to the conclusion that in all cases embraced within Section 10501-53, General Code, the jurisdiction of the Probate Court was exclusive, which would render the phrase, “unless otherwise provided by law, ’ ’ totally inoperative as a limitation.

Now we find that by- Section 11925, General Code (the “disentailing statute”), jurisdiction is expressly conferred upon the Common Pleas Court in this special class of cases, and by subsequent sections the procedure whereby such jurisdiction should be exercised is set forth in considerable detail. It is a special statute conferring jurisdiction over a specific subject upon a specific court — and in express terms. It would seem to come clearly within the class referred to by the use of the words, “unless otherwise provided .by law. ’ ’

For purposes of interpretation of legislative enactments, enactments have long been classed as either general or special, and given different effect upon other enactments dependent as they are found to fall in one class or the other. While not entirely applicable, it serves some purpose to keep this distinction in mind. *32On this subject, it is said in 37 Ohio Jurisprudence, 408:

“The special statute, in many cases, remains wholly unaffected by the later general act. Indeed, the presumption is that the special is intended to remain in force as an exception to the general act. In order to work a repeal by implication, the inconsistency between the general and special provisions must be manifest and irreconcilable.”

If Section 10501-53, General Code, is a special statute, Section 11925 *et seq.,*General Code, are equally so, and in fact confer jurisdiction in greater detail upon the Court of Common Pleas to authorize sales of real estate in which there are life estates, estates tail or conditional, or qualified estates, and this power is expressly made to extend to real estate held in trust created by will.

For these reasons, we hold that Section 11925 *et seq.,*General Code, are still operative to confer jurisdiction upon the Common Pleas Court.

We, therefore, hold that the respondent was without authority to vacate the judgment entered at a prior term except in the manner and on the grounds set forth in the statutes, and was without authority to vacate it upon his own motion.

A writ may issue as prayed for.

*■Writ allotoed.*

Hildebrant, P. J., Matthews and Boss, JJ., concur in the opinion and judgment.