Modern Brotherhood v. Nyiry. 751]; Cincinnati Polyclinic v. Balch, 92 Ohio St. 415 [111 N. E. 159]. In the opinion in the last named case, the court, at page 418, says: "Sec. 6, Art. IV, as amended, confers upon the courts of appeals jurisdiction to review, affirm, modify, or reverse all judginents of the courts of common pleas. There is no authority on the part of the legislature to limit the jurisdiction of the courts of appeals to any particular class of judgments. It cannot add to or take from the appellate jurisdiction of the courts of appeals now conferred by the constitution." However, it is urged that the right of a second reversal is governed by Sec. 11577 G. C. as amended, upon the ground that the same is procedural. This might perhaps be claimed at a time when the jurisdiction of this court was prescribed by statute. But not so, after the jurisdiction of this court was fixed by a vote of the people of Ohio in 1912, in the form of an amendment of Art. IV, Sec. 6. It is to be presumed that in so changing the jurisdiction of this court from a statutory to a constitutional source, a real change was intended. An intended change from the amended statute of 1908 may be conjectured. The language of the constitution now is: "The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law." It will be noticed that the language is "the judgments." Is the judgment following a second trial of a cause any less a judgment than the one following the first trial of a cause? If the legislature may declare that the jurisdiction of this court is diminished to the extent of denying the right to review a second judgment on the weight of the evidence on the ground that it is procedural, then are we not obliged to look to the statutes as well as to the constitution for our jurisdiction? May the legislature make two classes of judgments, those following a first trial and those following a second trial, and then say you may reverse the Cuyahoga County Appeals. first class but not the second? If so, then it may deny the right to reverse for error in the exclusion of evidence a second time. Or, it may deny the right to reverse a case a second time for error in the charge. The Supreme Court of Ohio has denied to the legislature this authority in the language above quoted. When a petition in error shall be filed, when a bill of exceptions shall be presented and filed, what bond shall be given. what steps shall be taken to transfer a cause for review, are procedural matters. But when once transferred in compliance with prescribed rules, the right to entertain and consider the subject-matter is jurisdictional. If no method for prosecuting error from the judgments of the court of common pleas was provided, another question would be presented. But one is provided, and in the case at bar all necessary steps were taken to obtain a review, and a judgment of the court of common pleas is before us. The constitution says you may review the judg ment of the court of common pleas. The Supreme Court of Ohio said, in the language above quoted, you may review all judgments. In face of this authority, it is urged that power yet resides in the legislature, and a legislative enactment may be invoked to dispute our authority to review and reverse this kind of judgment,--this kind of judgment is in a class by itself. We are not unmindful of the case of Mahoning Valley Ry. . Santoro, 93 Ohio St. 53. If the syllabus states the law of the case, it is silent upon the subject of the right of a court of appeals to reverse a case a second time upon the weight of the evidence. However, the opinion by a majority of the court deals with the subject. So far as the language of this case is concerned, the case of Columbus Street Ry. v. Pace. supra, was not considered, referred to nor disapproved. The dissenting opinion by Judges Newman and Jones held that Sec. 11577 G. C. has no reference to courts of appeals; that the right of reversal is jurisdictional and not procedural; that the court of appeals now obtains its jurisdiction from the constitution, where formerly it was granted by statute, and that so far as said section may be claimed to be applicable to the courts of appeals, the same is in conflict with the constitution. So that we hold that this court has jurisdiction to reverse Modern Brotherhood v. Nyiry. the same case a second time on the weight of the evidence against the same party, for the following reasons: 1. Said section is a part of the chapter relating to the trial court, and in the absence of express words or of words creating the inference, said section has no application to courts of appeals. 2. That the right of reversal is granted to the court of appeals by the constitution, is jurisdictional and not procedural. and if said section may be said to apply to this court to that extent it is in conflict with the Constitution. We are supported in this opinion and we derive our authority for it from the case of Columbus Street Ry. v. Pace, supra, in which judgment all members of the court concurred; also Cincinnati Polyclinic v. Balch, supra. Also by the dissenting opinion of Judges Newman and Jones in the case of Mahoning Valley Ry. v. Santoro, supra. Our opinion in this matter is opposed by the majority opinion in the case of Mahoning Valley Ry. v. Santoro, supra, in which case, however, the syllabus is silent in respect to the subject-matter under consideration. In this unsettled state of the law as to what our jurisdiction is and what our right is in respect to reversing the same case a second time upon the weight of the evidence, we adhere to the opinion that we have jurisdiction to do so, and the judgment of the lower court is reversed and the cause remanded at the costs of the defendant in error. Grant and Carpenter, JJ., concur. Hamilton County Appeals. LIMITATIONS MASTER AND SERVANT. *CHARLES OMIN V. BALTIMORE & O. S. W. Ry. Federal Employers' Liability Two Years' Period for Bringing Sult Imposes Condition to Bringing Suit not Limitation. The requirement of the federal employers' liability act, conferring the right to bring an action for damages by an injured employe, that suit must be brought within two years, is a condition limiting a liability not otherwise than by such act existing and not in the nature of a statute of limitations. Hence, the right to proceed under such act is lost by lapse of the two years' period, notwithstanding the servant was induced to postpone bringing action by the master's offering and servant's accepting temporary employment of a character suited to the injured servant's condition and the subsequent refusal of the master to continue the employment after the two years' period had been tolled. error. ERROR. Bettinger, Schmitt & Kreis, for plaintiff in error. Harmon, Colston, Goldsmith & Hoadly, for defendant in GORMAN, J. This proceeding in error is brought to reverse a judgment of the common pleas court wherein an instructed verdict was returned in favor of the defendant. The action was one to recover damages for personal injuries said to have been received by the plaintiff February 17, 1912, while employed by the defendant company as a freight truckman. The defendant by answer denied generally all the allegations of negligence set out in the petition. In a second defense it alleged that at the time of the accident Omin was employed by it in commerce among the several states, and that the action was not brought within two years from the date on which it occurred that being the time limit for the commencement of actions under the federal employers' liability act. By way of reply to this second defense plaintiff alleged *Motion to certify record overruled, Omin v. Railway, 62 Bull. 308; affirming, Omin v. Railway, 27 Dec. 494. Omin v. Railway. that immediately after leaving the hospital where he was confined on account of his injuries, he threatened to institute suit to recover damages for his injuries, and that thereupon the defendant promised and agreed that if he would not bring suit it would provide him with such employment as his physical condition would warrant and would take care of him as long as he was disabled; that pursuant thereto the defendant did employ him in the office of its depot master until July 17, 1914, but that ever since said date although the disability of the plaintiff on account of his injuries still existed the defendant refused to give him employment or to take care of him as it had agreed to do, and that by reason thereof defendant is estopped from pleading said statute. At the close of the plaintiff's testimony the trial court, as above stated, instructed the jury to return a verdict for the defendant, among other reasons, because the plaintiff had failed to bring his action within two years from the time his injuries occurred. Several errors are complained of by plaintiff in error, but we deem it unnecessary to pass upon any other question than that of whether or not the action was brought in time. Under the federal employers' liability act, Sec. 8662 U. S. Rev. Stat. (Sec. 6, U. S. Comp. St., 1913), passed April 22, 1908, it is provided that "no action shall be maintained under the statute unless commenced within two years from the day the cause of action accrued." The plaintiff seeks to avoid the effect of this statute by pleading the conduct of the defendant in giving him employment upon the condition that he forebore to bring suit. But it has been held in several well-considered cases that the statute just cited confers right to which is attached a condition that it be enforced within the stated period-two years. The act creates a liability where none existed theretofore, and it takes away defenses which were formerly available. Coupled with the enlargement of the liability of carriers is the limitation that no action shall be maintained under the act unless commenced within two years from the time the cause of action |