Epitomized Opinion

Published Only In Ohio Law Abstract

This was an action for money judgment brought in the Municipal Court of Akron by the Akron Prospect Co. against Housley. A demurrer was filed to the 'petition by the defendant, which was sustained on April 26, 1923. The plaintiff not desiring to plead further, filed a petition in error in the Common Pleas on April 28, 1923. The original papers, which showed the error complained of, were not filed until June 19, 1923, more than 30 days after the rendition of the judgment. A motion was filed by the defendant in the Common Pleas to dismiss the petition in error upon a ground that the original papers had not been filed within the statutory period.

This motion was overruled, but the Common Pleas sustained the demurrer. In sustaining the lower court on error, the Court of Appeals held:

1. Under 1579-524 GC. the law requires the plaintiff to file such original papers as are necessary to exhibit the error complained of, if not with the petition in error, at least within the period of limitation fixed for prosecuting errors from Municipal Court to Common pleas, which is thirty days after rendition of judgment complained of. A bill of exceptions is an original paper, 63 OS. 101.

2. As the original papers were -available for filing, and there was no showing or claim that the plaintnff used due diligence, nor that the failure to file said original papers was in any manner due to the fault of anyone other than the plaintiff, and the question as to the ruling on demurrer was not brought into the record until after the expiration of the time fixed by law in which the court could take jurisdiction of that question, the Comm'on Pleas was not vested with discretion to consider or not consider such original papers.