Epitomized Opinion

The original action in the Akron Municipal Court, resulted in a judgment for Kosmalski against Hannig, for recovery of real estate commission. Hannig appealed to the Summit Common Pleas. The clerk of the Municipal Court, however, failed to deliver the statement of claim and other original papers of the case in that court, to the clerk of the Common Pleas. When the cause came on for trial, the failure to transmit pleadings of counsel was called to the attention of the trial judge, each attorney claiming it was the duty of the other to see that the clerk of the Municipal Court performed his duty. Counsel for Kos-malski objected to going on with the case and asked for a directed verdict in his favor. Counsel for Hannig moved the court for a directed verdict also. The trial judge treated both motions as a waiver of a jury and entered judgment for Hannig.

Error was prosecuted and Kosmalski claims that the Common Pleas was in error in rendering judgment for Hannig, as th.e Municipal Court clerk had failed to transmit said papers to the Common Pleas, within 30 days after judgment had been rendered in the Municipal Court. The Court of Appeals held:

It was error for the trial court to proceed with trial, for the pleadings were not transmitted to the Common Pleas as provided by law. Judgment reversed and cause remanded for new trial.