Rice & Co. v. Pike
| Decision Date | 21 December 1927 |
| Citation | 117 Ohio St. 521,159 N.E. 90 |
| Parties | E. L. Rice & Co. v. Pike. |
| Court | Ohio Supreme Court |
Error proceedings - Service of summons - Written waiver in common pleas court not waiver in Court of Appeals - Section 12260, General Code - Changes in court record may be made only upon court's order - Appearance not entered by acceptance of notice of filing brief.
1. Under Section 12260, General code, a written waiver of service of summons in the court of common pleas does not constitute a written waiver of service of summons in the court of Appeals.
2. Changes in the record of a court may only be made upon order of the court.
3. Acceptance in writing of notice that a brief is filed or to be filed in a cause does not constitute an entry of appearance.
This case arises upon a petition in error filed to a judgment of the Court of Appeals of Summit county, dismissing the petition in error of the plaintiff in error filed to a judgment of the court of common pleas. Suit was originally brought in a justice's court to recover the purchase price of merchandise sold and delivered. Judgment was rendered in the justice's court for the defendant in error. Upon appeal being filed in the court of common pleas the case was tried in that court upon an agreed statement of facts, and judgment was renders in favor of the defendant and against the plaintiff. The journal entry embodying the final judgment of the court of common pleas was filed in the court of common pleas of Summit county on February 13, 1926. Counsel for the plaintiff then prepared a petition in error, with waiver of summons in error attached. By an oversight, this petition in error was entitled in the court of common pleas, and contained in the caption a reference to the number of the case in the court of common pleas, namely, No. 54487. At the bottom of the petition in error a waiver was attached, which read as follows:
"Defendant in error hereby waives the issuance and service of summons in error in the above-entitled case and hereby enters his appearance herein."
Prior to the time the petition in error was filed, counsel for plaintiff in error went to the office of the attorney for the defendant in error, submitted the petition in error to him and requested him to sign the waiver of summons in error which appeared at the bottom thereof, at the same time leaving a carbon copy of the papers. Counsel for defendant in error signed the Waiver of summons in error attached to the petition in error. Neither counsel for the plaintiff in error nor counsel for the defendant in error, at that time observed that the petition in error was erroneously entitled "In the Court of Common Pleas." The original petition in error upon which the waiver of summons in error had been signed Was then sent by another employe in the office of counsel for plaintiff in error to the Court of Appeals for filing. The petition in error was erroneously filed in the common pleas court. Counsel for plaintiff in error discovered this fact within several days when the notice of the filing appeared in the Legal News. There-upon counsel for plaintiff in error went to the filing clerk of the Court of Appeals, and explained what had happened. The common pleas court filing marks were crossed out, and Court of Appeals filing marks of the same date substituted, and the words "In the Court of Common Pleas" stricken out, and the words "In the Court of Appeals" substituted, and the Court of Appeals No. 1149 1/2 added in place of the common pleas court number. The petition in error was thus altered and renumbered within several days after February 23, 1926.
On November 6, 1926, the attorney for the defendant in error filed a motion to dismiss the petition in error. The Court of Appeals sustained this motion.
The case comes into this court upon allowance of motion to certify the record.
Messrs Burch, Bacon, Denlinger & Seikel, for plaintiff in error.
Mr. Irwin D. Allen, for defendant in error.
The plaintiff in error claims that the Court of Appeals erred in dismissing the petition in error in that court, upon the grounds: (1) That the motion of the defendant in error to dismiss the petition in error was not signed or verified by the defendant in error or his attorney; (2) that the motion did not raise the question of the sufficiency of the waiver of the summons in error; and (3) that the judgment was contrary to law.
The record does show that the motion of the defendant in error was not signed or verified by the defendant in error or his attorney. However, the record fails to show that this question was raised in the Court of Appeals, and hence the objection was waived by the plaintiff in error, and is overruled.
Does the motion raise the question of the sufficiency of the waiver of the summons? The motion reads as follows:
We think that the motion does raise the question of the sufficiency of the waiver, for it specifically states that no service of summons has been had oil the defendant in error. Now, if the waiver was sufficient, no service of summons was necessary; that is, if the waiver entitled in the court of common pleas constituted, under the circumstances set out in the record, a waiver of summons in the Court of Appeals, then it was not necessary that summons be served upon the defendant in error, and the motion to dismiss should have been overruled.
The motion was heard in the Court of Appeals upon certain affidavits. The affidavit of the deputy clerk of the common pleas court stated in substance that Lewis A. Seikel attorney for the plaintiff in error, after February 23, 1926, corrected the caption of the petition in error, and substituted the heading "Court of Appeals," at which time the petition in error was stamped and filed in the Court of Appeals as of February 23, 1926, and was duly filed therein and within the time required by law, and that some time thereafter the case was numbered No. 1149 1/2, and docketed on the...
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