INTRODUCTION.

SECTION 1. WHERE JUDICIAL POWER VESTED BY THE CONSTITUTION.

By the Constitution,1 the judicial power of the State of Ohio, both as to matters of law and equity, is vested in a Supreme Court, in Courts of Common Pleas, in Justices of the Peace, and in such other courts as the Legislature may, from time to time, establish.

SEC. II. THE COURT IN BANK.

1. How constituted.

This court is composed of the four judges of the Supreme Court, any three of whom constitute a quorum.2 This is not regarded as a new court, but as a special session of the Supreme Court.

2. Jurisdiction.

The Court in Bank does not exercise original jurisdiction, but when any important question arises before the Supreme Court, on the circuit, in any pro

(1) Const. Art. 3, §1.

(2) Stat. 219, §2.

Court in Bank-General rules of Practice.

ceeding at law or in equity, such question may, at the discretion of the court, be reserved for final decision in Bank.3 If the judges upon the circuit are divided in opinion upon any question, such question, on motion of either party, may be reserved for decision in Bank. They also revise the final judgments of the Supreme Court upon writ of error.5

They cannot, as such court, enforce their own judgment or decree; but their decision is reduced to writing and transmitted to the clerk of the Supreme Court of the county in which the question was reserved, who enters the same on the journal of the Supreme Court; and such proceedings are thereupon had, as if the decision had been made in the county.6

3. Routine of business, and general rules of practice.

The arguments of counsel are generally made in writing, but the court may, nevertheless, require oral arguments of all questions reserved, &c., in cases where counsel are present and in attendance upon the court. In all cases in which both parties, or their counsel, request it, the court must hear oral arguments.8

The court, in general, meets only each morning of the term, to deliver opinions, the residue of the time of the judges being occupied at chambers, in reading written arguments, examining cases, and drawing up written opinions.9 When oral arguments are heard, the court are required to sit, in open session, at the court house.10

When a cause is reserved on the circuit for decision in Bank, the facts material for its decision must be drawn up in writing, approved by the court, filed with the papers, and transmitted to the Court in Bank. The counsel excepting to the opinion of the court should draw up the papers. If, however, the question to be submitted has arisen on the pleadings, or in suits in chancery, such statement is unnecessary, as the whole appears in the record and papers.11

In motions for new trial, &c., on points reserved for the Court in Bank, the points not stated in the motion, or not reserved, are not open for discussion.12

(3) Stat. 220, §4.

(4) Id. ib.

(5) Stat. 690, §153.

(6) Stat. 220, §9.

(7) Stat. 220, §6. (8) Id. ib.

(9) It may be well here to state, that at chambers, the Judges, after examining a case together, and determining upon the point upon which it is to be decided, leave it for one of their number to draw up their opinion for the Reports. In writing out the opinion, of course

many matters appear in the opinion, as arguments and dicta, which the court itself did not decide, and are, therefore, to be considered as the opinion of the Judge who writes out the opinion. The point which the court decides appears in the margin or syllabus of the report; and hence the marginal note in the report sometimes appears a little different from the opinion. See 9 Ohio Rep. 168, 170. (10) Stat. 220, §7. (11) 4 Ohio 5.

(12) 8 Ohio 507; 6 Ohio 71, 144.

Court in Bank-General rules of Practice.

Upon a decision in Bank, a motion for a rehearing can be entertained only at the same term, in the same court.13

The rules of practice of this court will best show the mode in which its business is transacted, and will be here inserted for ready reference in the subsequent pages of this work:

1. When a question shall arise, in the Supreme Court of a county, which shall be reserved for decision at the session to be holden by all the Judges, at Columbus, a memorandum thereof shall be made on the minutes; and an entry shall also be made that the suit is continued for consideration and decision at Columbus.

2. In all cases thus reserved and continued, the court shall direct what papers on file shall be copied, and what original papers shall be sent to Columbus, if either party make application for such direction; but if no such application be made, the original papers shall be sent.

3. At any time after the first day of November, the clerk shall deliver the papers of the cause, sealed up, to the counsel of either party who may first apply for the same;14 taking his written receipt and agreement to deliver such papers to the court, sitting at Columbus.

4. When judgment is rendered, or an order or decree made in a cause, by the court, sitting at Columbus, the clerk of the Supreme Court of Franklin county shall enter such judgment, order or decree, on the minutes, and shall make a transcript thereof, under the seal of the Supreme Court; which transcript, with the papers brought up in the cause, shall be delivered, sealed up, to the attorney of the party who shall apply for the same, taking his written receipt, and agreement to deliver the whole to the clerk of the Supreme Court, from whence the suit was brought.

5. The personal application of the counsel, for papers in the cause, shall not be necessary, if he send his written order, and receipt and agreement, required by the foregoing rules.

6. The clerk of the Supreme Court, of the proper county, upon receiving back the transcript and papers, shall deliver up the receipt given for the same, and shall immediately copy into his minutes of the proceedings of the Supreme Court, the transcript aforesaid; and all subsequent proceedings in the cause shall be the same as if the judgment, order or decree had been entered during the sitting of the court in the proper county.

7. Where the question reserved may have been argued in the proper county, the Court will, nevertheless, receive written arguments from either party, in all cases where notice is given to the opposite party, that a written argument will be presented.

8. All arguments shall be opened and concluded in a regular and proper order. The counsel, having the affirmative, shall furnish to the opposite counsel

(13) 7 Ohio (Part 1,) 267.

(14) Modified by Rule 13.

Court in Bank-General rules of Practice.

a note of the points made and authorities cited, with an abstract of the argument; after receiving which, a like note of points and authorities, with an abstract of the argument in answer, shall be furnished to the affirmative counsel. The counsel having the affirmative, shall furnish the opposite counsel with the notes and abstract aforesaid, at least ten days before the sitting of the court, in all cases where the question shall have been reserved twenty days before the commencement of the said session.

9. Where, after the examination of written arguments, the court are not satisfied, they will direct an argument at bar upon any particular point.

10. When any suit, continued for consideration and decision at Columbus, upon a question reserved, shall not be brought up to said court by either party, it shall stand continued to the next term of the Supreme Court, in the proper county, and shall be proceeded in at such next term as other causes continued to that term.

11. If the order made in any cause, by the court at Columbus, be not final, but leave the cause to be further proceeded in before final judgment, it shall stand for such further proceedings to be had at the next term in the proper county, and shall be prepared for trial in the same manner with other causes.

12. The clerk's and sheriff's fees for services performed in attendance upon the session of the court at Columbus, shall be the same as for similar services performed at the sitting of the court in the county, to be taxed in the same manner in the bill of costs.

13. That in all cases reserved for consideration and decision at the special session, more than thirty days before the first day of the session, it shall be the duty of the party holding the affirmative, to cause the record, exhibits, and depositions, if any, and a transcript of the points relied on, to be filed with the clerk at Columbus, on the day preceding the first day of the session, on the penalty of the payment of all the costs that may have accrued from the commencement of the suit.

14. That in all cases where oral arguments are heard in this court, the counsel, holding the affirmative, shall, before the arguments are commenced, furnish cach of the judges with an abstract of the case, and a brief of the points and authorities relied upon, printed, or written in a legible hand; and the opposing counsel shall furnish like briefs of the points and authorities relied upon on the negative.

15. In all cases reserved for decision at the Court in Bank, the counsel holding the affirmative in the matter to be heard, shall, before the cause is called on, furnish each member of the court with an abstract of the case, containing the substance of the pleadings, facts and documents on which the parties rely, and the points of law and facts intended to be presented in the argument; which abstract shall be legibly written or printed.

16. Where counsel claim the privilege of making oral arguments in any cause in Bank, they shall file, with the papers in the cause, notice of such in