McDonald v. Ketchum

• Decision Date: 26 November 1895
• Parties: McDONALD et al. v. KETCHUM.
• Court: Ohio Supreme Court

42 N.E. 322

53 Ohio St. 519

McDONALD et al. v. KETCHUM.

Supreme Court of Ohio.

November 26, 1895

Error to circuit court, Perry county.

From a judgment in an action between McDonald and others and one Ketchum, McDonald and others bring error. Reversed.

Syllabus by the Court

Where a petition in error has been filed and a summons issued within the time limited for the commencement of proceedings in error, and the service of the summons is made before the return day of the writ, the proceeding is commenced in proper time, though such service be not made until after the expiration of the period prescribed for commencing a proceeding in error.

Donahue, Spencer & Donahue, for plaintiffs in error.

L. A Tussing, for defendant in error.

PER CURIAM.

On the 15th day of December, 1891, a petition in error was filed in the circuit court to reverse a judgment of the court of common pleas, rendered on the 22d day of June, 1891. A summons in error was issued on the same day the petition was filed, but not served on the defendant in error until the 28th day of January, 1892, which was more than six months after the rendition of the judgment; and the circuit court ordered the case stricken from its docket for want of jurisdiction, for the reason that the service was not made within the time limited for the commencement of the proceeding in error, though the petition in error was filed and the summons issued within that period, and the service was made within the return day named in the writ. This was error. A proceeding in error may be commenced at any time within six months after the rendition of the judgment or the making of the final order complained of (Rev. St. § 6723); and that section 4987 furnishes the rule by analogy, for determining when such a proceeding shall be deemed commenced has been several times decided by this court (Robinson v. Orr, 16 Ohio St. 285; Buckingham v. Bank, 21 Ohio St. 131; Bowen v. Bowen, 36 Ohio St. 312; Moore v Chittenden, 39 Ohio St. 563). Under that section, an action is to be deemed commenced at the date of the summons which is served on a defendant, or one of several defendants who are united in interest. So that, by analogy, a proceeding in error must be deemed commenced when the petition in error has been filed, and a summons issued which, during the life of the writ, is served on the defendant in error; and therefore, the proceeding in error is commenced in time...