In dissenting from the conclusion of the majority, I hereby express my reasons therefor:
The Municipal Court of Cleveland is given full power to make its own rules governing practice and procedure by the statute hereby quoted:
Section 1579-19, subsection 5. "To expedite the business and promote the ends of justice the judges may *Page 394 from time to time adopt, publish, and revise rules relating to matters of practice and procedure, service and return of writs or process, classify the causes of action in the court and prescribe with reference to each class the degree of particularity with which a cause of action, set-off, counterclaim, or defense shall be set up."
By this provision the judges have power to classify the causes of action in the court. Under this power the judges of the Municipal Court have classified the causes of action therein into first and second class cases. Under this power they have classified replevin actions, regardless of the amount of the appraisal of the property involved, as second class cases. They have also provided by Rule 24 that second class cases shall be governed by the procedure in the courts of justices of the peace. This rule applies to all replevin actions. According to the practice and procedure in the court of justices of the peace it is not required that the justice make a separate finding of facts and law. Therefore, in any replevin actions tried in the Municipal Court of Cleveland, regardless of the amount of the value of the chattels involved, if the practice and procedure of the justice of the peace court applies, it is not required of the judge of the Municipal Court to make a special finding of fact and law even though it is requested by one of the litigants. To hold otherwise would be to limit the power conferred upon the judges of the Municipal Court under Section 1579-19, subsection 5. It is my opinion that this reviewing court has no right to limit the application of this section.
Section 1579-19, subsection 6, as quoted in the majority opinion, provides that where no special provision is made in the act or rule of court the provisions of the Code of Civil Procedure shall apply. This section also provides that it shall not be construed to *Page 395 abridge the powers of the judges in respect thereto granted by this act. Clearly, the judges of the Municipal Court have been given plenary powers to classify cases and to adopt rules of procedure pertaining to the respective classes of cases. This they have done by making a "special provision" by "rule of court" governing replevin actions. Therefore, the provisions of the Code of Civil Procedure should not apply to replevin actions in the Municipal Court of Cleveland.
The effect of the majority opinion is to decide that the Legislature did not mean what it said when it granted to the Municipal Court judges the power to classify cases and make rules of procedure pertaining thereto. By their conclusion the majority have made their own rule of classification of replevin cases, which is, apparently, that replevin actions wherein the value of the chattels in controversy is over $300 shall be first class cases, and, where $300 or less is in controversy, shall be second class cases. The Court of Appeals has thereby assumed in effect to enact a rule for the Municipal Court. I do not believe it has the power to so legislate. There is no vice in the classification of cases adopted by the Municipal Court. There are no vested rights in rules of procedure. The Legislature could change the rules of procedure pertaining to replevin actions so that all replevin actions would be governed by the justice of peace procedure. The Legislature can and did give the Municipal Court judges the power to do likewise. The Municipal Court judges have exercised this power properly.
Rule 24 consists of two parts, one is positive, and provides what practice and procedure prevails in the Municipal Court in second class cases; the other is negative in that it designates when such practice and procedure shall not apply.
A restatement of this rule might enable one to more *Page 396 clearly visualize the real meaning by comparison. Thus restated:
"Rule 24. In second class cases, the provisions of the Ohio Code governing the practice and procedure in the courts of Justices of the Peace, shall not apply when
"1. When they are not applicable to the Municipal Court, or
"2. When they are inconsistent with the act creating the same, or
"3. When they are inconsistent with the rules otherwise adopted.
"In all other instances said provisions shall apply."
Thus the court has made special provision by rule of court for the procedure pertaining to replevin actions. It then follows that Section 1579-19, subsection 6, would not apply, because it only applies "when no special provision is made."
The negative features of Rule 24 would only come into action when it was sought to apply some rule of justice court procedure in a municipal court, a rule that had no proper application or was inconsistent with the act creating the court or other rules adopted by the court.
In the present case no such rule is brought into question. It is not attempted to apply any inconsistent rule of procedure to this replevin action. On the contrary, the majority of this court is requiring the application of a rule of procedure that was not intended by the judges of the Municipal Court and cannot be encompassed either within Section 1579-19, subsection 5, General Code, or within Rule 24. *Page 397