King v. Penn

• Decision Date: 10 March 1885
• Citation: 43 Ohio St. 57,1 N.E. 84
• Parties: KING v. PENN.
• Court: Ohio Supreme Court

43 Ohio St. 57

1 N.E. 84

KING

v.PENN.

Supreme Court of Ohio.

Filed March 10, 1885.

Motion to dismiss petition in error to district court, Brown county.

The judgment sought to be reversed was rendered September 5, 1882. On May 29, 1884, the plaintiff in error filed in this court his motion for leave to file a petition in error to reverse the judgment of the district court. At the same time, the petition in error, waiver of notice of the motion for leave, transcript of the record below, the original papers below, 10 printed copies each of the record and plaintiff's brief, were, by the plaintiff in error, deposited with the clerk, to be kept in his office. Each of these papers was indorsed by the clerk as filed of that date, except the petition in error, which the clerk promised the plaintiff in error, upon the latter's request, he would file in this court upon the granting leave therefor, and also docket the cause in this court. The defendant in error promised the plaintiff in error that he would waive a summons in error, and the latter supposed this had been done until after the expiration of and years from the rendition of the judgment of the district court.

Upon these promises the plaintiff relied, and supposed, as did also the defendant, that the petition in error had been duly filed in this court upon the granting of leave therefor, and that this cause had been duly docketed and was pending herein, until long after the expiration of two years from the rendition of the judgment below. The papers above mentioned have so remained in the clerk's office, in the same package, to the present time.

On June 10, 1884, the motion for leave to file petition in error was granted, but it was not by the clerk indorsed as filed until after two years from the rendition of the judgment below. On September 15, 1884, the defendant procured from the plaintiff a written acknowledgment of service of the former's brief, which, on September 25, 1884, he filed in this court, together with 10 printed copies of such brief. Each of these papers was indorsed ‘filed’ by the clerk, of the latter date. On December 17, 1884, the defendant filed in this court and in this case a writing, entitling the case, and proceeding: ‘The issuing and service of summons in error is hereby waived, and the appearance of defendant in error is hereby waived. W. W. YOUNG, Atty. for Defendant in Error.’ This paper was indorsed by the clerk, with his file-mark, of the date of its filing, and at the same time the petition in error herein was, for the first time, indorsed as filed with the file-mark of the clerk. The filing of the petition in error was not entered upon the appearance docket until December 17, 1884.

On January 27, 1884, defendant in error filed in this court a motion to dismiss the petition in error, for the alleged reasons: (1) that the petition in error was not filed in this court within two years from the rendition of the judgment complained of; and (2) that this cause was not docketed in this court within two years after the rendition of such judgment. These facts appear from the file of the case, the docket entries, and affidavits used upon the hearing of the motion.[Ohio St. 59]W. W. Young, for the motion.

Harrison, Olds & Marsh, contra.

OWEN, J.

The question involved in the motion before us is that of the jurisdiction of the court to entertain the proceeding in error, in which it is filed. Both parties supposed the proceeding had been duly commenced and was pending in this court, and proceeded with the preparation for the final hearing of it, the same, in all respects, as if it had been properly commenced and was actually pending. To hold this sufficient to invest this court with jurisdiction of the proceeding, without regard to the time of its commencement, would be to treat such proceeding as one in which the statute of limitations is waived, unless specially pleaded. The Revised Statutes (section 6723) provide that no proceeding to reverse a judgment shall be commenced, (except as to persons under disability,) [Ohio St. 60]unless within two years after the rendition of the judgment complained of. That the commencement of a proceeding in error, within the time prescribed by law, is essential to clothe the reviewing court with jurisdiction to hear and determine it, is too well settled to justify further discussion. The Marinda v. Dowlin, 4 Ohio St. 500;Little Miami R. Co. v. Hopkins, 19 Ohio St. 279;Railway Co. v. Wick, 35 Ohio St. 247;Piatt v. Sinton, Id. 282; Bowen v. Bowen, 36 Ohio St. 314.

It follows that the parties may not, by private agreement or consent, nor...