Cincinnati, H.&D. Ry. Co. v. Bailey

• Citation: 70 Ohio St. 88,70 N.E. 900
• Court: United States State Supreme Court of Ohio
• Decision Date: 12 April 1904
• Parties: CINCINNATI, H. & D. RY. CO. v. BAILEY.

70 Ohio St. 88
70 N.E. 900

CINCINNATI, H. & D. RY. CO.
v.
BAILEY.

Supreme Court of Ohio.

April 12, 1904.

Error to Circuit Court, Putnam County.

Action by John P. Bailey against the Cincinnati, Hamilton & Dayton Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

In the court of common pleas the defendant in error instituted an action against the railway company, and, upon the trial of the issues of fact joined, recovered a judgment against it. The company, within the time limited by the statute, took proper steps to have a bill of exceptions made a part of the record, and filed its petition in error in the circuit court for the reversal of the judgment of the court of common pleas for errors specifically assigned. By mistake and inadvertence the petition in error was not signed at the bottom thereof by the company, its counsel, or any one representing it. There was, however, indorsed upon it the following waiver of process and entry of appearance: ‘I, the defendant in error, hereby waive the issuing and service of process, and enter my appearance in the above-entitled cause in the circuit court of Putnam county, Ohio. John P. Bailey, defendant in error. May 17, 1902.’ Thereupon, after the expiration of the time limited for filing the petition in error, the defendant in error filed a motion ‘to strike from the files of the court the paper styled a ‘petition in error.” The company thereupon filed a motion for leave to amend its petition in error by subscribing the same, and with its motion filed an affidavit by its counsel who had charge of the preparation and filing of the petition in error, showing that by mere mistake and inadvertence the waiver of summons had been obtained upon what was intended to be an office copy, and that it had been filed instead of the petition which had been signed. These motions came on for hearing in the circuit court, and on October 29, 1902, that court overruled the motion of the company for leave to amend the petition in error by signing it, and sustained the motion to strike it from the files. The rulings upon these motions are here assigned as grounds for reversing the judgment of the circuit court.

Syllabus by the Court

1. Section 5114, Rev. St. 1892, providing for the amendment of ‘any pleading, process or proceeding,’ is applicable to proceedings in error; and, if a petition in error has been filed within the time limited for that purpose, the plaintiff and his counsel having, by mistake, omitted to...