Dissenting Opinion, per JONES, J.

argued by the prevailing party. That is the latter clause of proposition 3 of the syllabus, which applied the limitations of Section 11577, General Code, "to all other cases, until said statute shall be repealed." It is unfortunate that this clause found its way into the syllabus. In his brief, prevailing counsel made no pretense for its justification, but stood on his claim that his suit should "proceed to judgment" as a pending case under the old law. This exemplifies the folly whereby the adoption of an unnecessary clause in a syllabus compels us to follow it as a precedent in a later case where the question is squarely presented and argued by counsel.

I dissented from that clause of the syllabus because I thought that the clause quoted limited the appellate power of the court of appeals, and that Section 11577 was jurisdictional and not procedural. And attention was called to the fact that to hold such section procedural would authorize the legislature to shackle the jurisdiction of the courts of appeals.

Where appellate jurisdiction is expressly conferred by the constitution upon a court it is clear that the "legislature can neither abolish the right, nor unreasonably restrict its exercise." 2 Ruling Case Law, 29; Martin v. Simpkins, 20 Col., 438; St. Louis & Southeastern Ry. Co. v. Lux, 63 Ill., 523; Schlattweiler v. County of St. Clair, 63 Ill., 449, and Chattanooga v. Keith, 115 Tenn., 588.

Where appellate jurisdiction has thus been conferred the sole power of the legislature is to provide

Dissenting Opinion, per JONES, J.

the mode or method of exercising such jurisdiction. For example, while the legislature may not deprive the appellate court of its right of review, it may provide the time and method when such review may be exercised; and, while it may not prevent the appellate court from reviewing the error of the trial court, it may regulate by statute the mode and manner of review. If the legislature cannot enlarge the original jurisdiction of the court of appeals, when such enlargement is not expressly denied by the constitution (Kent et al. v. Mahaffy et al., 2 Ohio St., 498), a fortiori it follows that it cannot limit appellate jurisdiction which has been expressly given that court by the constitution.

The most plausible argument advanced by counsel for defendant in error is this. They say in substance: "You admit the jurisdiction of the common pleas court is fixed by law; you must necessarily admit that the right of a second trial, including the grounds for a motion for a new trial, is purely statutory; therefore, the legislature may curtail the right of a second trial, the filing of a motion for a new trial, or the grounds upon which such motion shall be made; and if the legislature may do this what would there be left for review and what error could the trial court make?"

I would grant this contention were it not for the change made in the constitution by the Amendment of 1912. Prior to this amendment the appellate jurisdiction of the common pleas, district, circuit and supreme courts was only such as was provided by law. Under such provisions of the old constitution the legislature had, no doubt, the

Dissenting Opinion, per Jones, J.

right to restrict or regulate the appellate jurisdiction of either of such courts. Under those provisions the general assembly had the constitutional right to pass Section 11577, General Code, curtailing the jurisdiction of the appellate court by limiting its right of reversal on the weight of the evidence to a single time.

But it is argued, let it be assumed that the legislature, acting within its constitutional power, divests the common pleas court of all jurisdiction to grant a second trial, in that event what would become of the power to review? It would seem the answer is clear. By Section 1, Article IV of the Constitution, the judicial power of the state is vested in the supreme court, the courts of appeals and other courts of record, and by Sections 2 and 6 of the same article appellate jurisdiction is given to the supreme court and the court of appeals.

I cannot conceive the legislature ever attempting to divest the higher courts of the state wholly of their appellate jurisdiction. If such an anomaly should occur, I have no doubt but that these higher courts would resume their old-time inherent appellate procedure and again employ writs of error or certiorari, of which we had ample evidence in the earlier reports of this state, when the legislature failed to adopt a code of civil procedure in error. It is true that by Section 12282, General Code, writs of error and certiorari were abolished, but that section still contains the provision that "courts may compel transcripts of the proceedings, containing the judgment or final order sought to be reversed, to be furnished, completed, or perfected, as heretofore they could do under such writs."

Statement of the Case.

There is ample authority for the principle that where a superior court has been given constitutional appellate jurisdiction, and no provisions for review have been provided by statute, the higher courts may have recourse to writs of error or certiorari.

For the reasons stated the judgment of the court of appeals should be reversed and the case remanded to that court for further proceedings according to law.

ARNOFF ET AL. V. CHASE ET AL.

Covenants - Building restriction-"One house only" clause Four-story apartment prohibited, when - Construction of contracts-Extrinsic aids to interpretation.

(No. 16367- Decided June 17, 1920.)

ERROR to the Court of Appeals of Cuyahoga county.

This action was tried in the court of appeals on appeal from the court of common pleas. The plaintiffs below, defendants in error here, are the owners of lot 188 in what is known as "C. L. Newell's Lake Front Allotment," in Lakewood, Ohio. Upon this lot plaintiffs had built their home, in reliance upon a covenant contained in the deed to them from Newell, who had laid out the subdivision, and in reliance upon an identical restriction in all other deeds to lots in the subdivision.

At the time of commencement of this suit plaintiffs in error, Sadie Arnoff and The Clair

Statement of the Case.

Doan Building & Construction Company, under a land contract entered into between Sadie Arnoff and the Newells, had agreed to purchase two lots, Nos. 189 and 190, immediately adjoining the property of defendants in error, which contract contained the building restriction referred to, providing in part as follows:

"Said party of the second part, her heirs and assigns hereby agree not to erect or cause to be erected any building or structure or part thereof, on said lots within 40 feet of the north line of said lot, * * * no house to be erected under a cost of Three Thousand ($3000.00) Dollars

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and no shingle roof to be used; one house only on each lot; all lots are sold for residence purposes only *

*

The amended petition sought to have defendants Sadie Arnoff and The Clair-Doan Building & Construction Company restrained from carrying out their declared purpose of erecting a four-story apartment house designed to contain thirty-six apartments, substantially covering lots 189 and 190. The amended petition alleged:

"Said general scheme of improvement [of the Lake Front Allotment] and all said deeds further provided that one house only shall be erected on each lot, meaning thereby that only one single private residence should be erected on each lot, and all parties interested in said allotment have construed said restrictive covenants to mean that only one single private residence or dwelling house should be erected upon each sublot therein, and all purchasers * have complied with said.