Hamilton County Appeals.

The law is correctly, though somewhat imperfectly, stated in this portion of the charge. It is manifest, therefore, that the court below having in mind the principle here enunciated refused to permit Mr. Evans to answer the question above quoted as to whether he had ever authorized Mr. Humphreys to collect the principal sum of the note.

We think there was no error to the prejudice of the plaintiff in error here in any of the matters complained of in counsel's brief.

The jury, under proper instructions from the court found that Mr. Vaughan in paying the money to Humphreys regarded Mr. Humphreys as the agent of the payee and as fully authorized to receive the money.

We think it was only natural for a man of Vaughan's inexperience to be induced so as to believe and so to look upon Mr. Humphreys, from all the facts and circumstances in this case, and from the conduct of Mr. Evans himself. His silence for five years, and especially for the last three years when the note was overdue, would naturally tend to make Vaughan believe that the entire matter was in the hands of Mr. Humphreys with whom alone he had transacted the business so far.

We do not say that Vaughan was free from any carelessness and negligence. It was his duty as a careful man to have held the payment of the principal of the note until credit was given thereon in his presence or until when final payment was made the note was surrendered to him, but it seems that the implicit confidence which Mr. Evans placed in Mr. Humphreys, who was a stranger to Vaughan, inspired a feeling of security and confidence in the latter.

The jury must have found, as before stated, that of the two innocent parties the negligence of Evans more directly contributed to the loss, and that therefore under the well settled doctrine of law he must be made to suffer.

Judgment affirmed.

Jones, O. B., J., concurs.

Swing, J., dissenting.

Evans v. Vaughan.

There is no evidence in the case that shows that Evans ever constituted Humphreys his agent to receive payment of this note, and there is no evidence that tends to show that Evans in any way represented to Vaughan that he was so authorized, and the judgment therefore is not sustained by the evidence.

COURTS-DIVORCE AND ALIMONY.

[Sandusky (6th) Court of Appeals, October 15, 1915.]

Richards, Chittenden and Kinkade, JJ.

CLEVELAND PROT. ORPHAN ASYLUM ET AL. V. HAZEL TAYLOR SOULE.

1. Juvenile Court Statute does not Supersede Divorce Statutes as to Disposition of Dependent Children.

Sections 1647, 1648 and 8031 G. C., conferring on juvenile courts authority to determine cases involving delinquent, neglected and dependent children, does not supersede Sec. 11987 G. C. empowering common pleas courts to make orders for the disposition, care and maintenance of children of parents involved in divorce proceedings.

2. Common Pleas has Continuing Jurisdiction in Divorce as to Custody of Children to the Exclusion of the Juvenile Court.

A court of common pleas, having made an order concerning the disposition of a minor child of parents involved in divorce proceedings, has continuing jurisdiction of such child, precluding a juvenile court from taking independent jurisdiction thereof, if the best interests of the child demand a change of custody the proper procedure is by application to the common pleas court to modify its former order.

3. Court Having First Jurisdiction Retains it.

The principle, that the court first obtaining jurisdiction of a subject-matter retains exclusive jurisdiction and authority until final disposition, applies to jurisdiction of a dependent child, concerning which a common pleas court has made an order for the custody in divorce proceedings, and a juvenile court has no authority to make an order for the disposition of such child.

ERROR.

Sandusky County Appeals.

W. J. Mead, for plaintiffs in error.

Kinney, O'Farrell & Rimelspach and E. C. Sayles, for defendant in error.

RICHARDS, J.

This is a proceeding in habeas corpus brought in the court of common pleas to recover the custody of a child about eleven years of age. The court of common pleas granted the writ and error is prosecuted to that judgment. The case raises a very interesting question of jurisdiction as between the probate court and the common pleas court. No disputed matters of fact arise in the case. The important facts to be considered in determining the questions raised are simply, that in a divorce action pending between the father and mother of the child, the custody of the child had been awarded to the mother in the court of common pleas of this county on December 26, 1913. In pursuance of this decree of the common pleas court, the mother took and retained possession of the child. In May, 1914, proceedings were instituted in the probate court, acting as a juvenile court in this county, in which it was charged that the child was a dependent child by reason of the fact that it had not proper parental care and that its home was, by reason of neglect and depravity on the part of its parents, an unfit place for the child. On the trial in the juvenile court that court found and adjudged that the child was a dependent of about the age of eleven years, and that she was a ward of the court, and the court ordered that her custody be committed to the Cleveland Protestant Orphan Asylum, to be there cared for and educated until the further order of the court.

The authority vested by statute in the court of common pleas in an action for divorce is contained in Sec. 11987 G. C., and empowers that court to make such order for the disposition, care and maintenance of the child, as is just. The order which was made in the court of common pleas antedates the order in the juvenile court and was made in direct conformity with the language of the statute. It is said, however, that the

Orphan Asylum v. Soule.

juvenile court law supersedes the order and decree made in the court of common pleas. The juvenile court proceeded under and by virtue of the authority contained in Secs. 1647, 1648 and 8031 G. C. These sections confer ample authority upon the juvenile court to consider and determine cases involving questions of delinquent, neglected or dependent children. The latter Sec. 8031 G. C., provides, in substance, that, when a parent, through vagrancy, negligence or misconduct, is unable to support a minor child or neglects so to do, or habitually illtreats such child, the probate court may issue a summons requiring the parent to appear and answer the complaint and if the court finds the complaint to be true and that it is for the best interests of the child to be taken from the parent, it may make an order to that effect and direct the placing of the child in a suitable orphan asylum or children's home or with some other benevolent society. We do not, however, understand that these sections operate to supersede the authority conferred on courts of common pleas to make proper orders for the disposition, care and maintenance of the children of parents involved in a divorce action before that court. It has long been held that the jurisdiction of the court of common pleas over the children of parents so involved is a continuing jurisdiction, and that the child becomes the ward of the court. This child was a ward of the court of common pleas prior to and at the time the proceedings were brought in the juvenile court. We think that the statutes conferring authority on any court in such matters must be read as limited to children not already provided for by some other court having first obtained jurisdiction. Hoffman v. Hoffman, 15 Ohio St. 427; Rogers v. Rogers, 51 Ohio St. 1 [36 N. E. Rep. 310].

A similar question has been before the Supreme Court on two recent occasions, the first being Crist, In re, 89 Ohio St. 33. In that case the probate court had appointed a guardian of the child after the decree awarding the custody of the child had been entered in the court of common pleas, and it was held that the child had become the ward of the court of common pleas and that the jurisdiction over its custody was a continu

Sandusky County Appeals.

ing jurisdiction and could not be affected by the subsequent appointment of a guardian in the probate court.

The question was again before the Supreme Court in the Children's Home of Marion Co. v. Fetter, 90 Ohio St. 110. In that case a delinquent child had become a ward of the juvenile court and had been committed to an institution under provisions of the General Code relating to that court. Thereafter proceedings in habeas corpus were brought by a parent of the child and it was held that the order of the juvenile court was effective and controlling and that the court assuming to take subsequent jurisdiction was without authority. This is but another enunciation of a principle of law that has been recognized from time immemorial, that the court first obtaining jurisdiction of the subject-matter retains exclusive jurisdiction and authority until final disposition, free from interference by any other tribunal. Of course, this principle has nothing to do with the question of convictions of minors for violations of any criminal statute. To hold differently than in accordance with the rule above stated would permit a defeated litigant, seeking the custody of a minor child in the common pleas court, to go immediately to the juvenile court and there relitigate the question just determined in the common pleas court. It would be doing violence to all known rules of procedure to assume that the general assembly intended by the passage of the juvenile law to confer authority on the juvenile court to relitigate matters already determined in another court, particularly in view of the fact that the orders as to the custody of children are continuing orders.

We see no reason why the order in the court of common pleas granting the custody of the child to the mother could not be modified in that court if conditions had so changed as to render such modification proper.

We call attention of counsel to the language of the Supreme Court in the closing paragraph of the opinion in Bower v. Bower, 90 Ohio St. 172. In that case the Supreme Court sustained the appealability of an order of the common pleas court determining the eare, custody and maintenance of minor