Flandermeyer v. Fishel

Plaintiff filed a petition in error in tbe common pleas court to reverse tbe judgment of a justice of tbe peace in a forcible detainer action, but neglected to serve defendants with process on said petition in error. Tbe common pleas court, because of tbe lack of service of summons on tbe petition in error, dismissed it. Thereupon plaintiff filed petition in error in tbis court to reverse tbe judgment of tbe common pleas court, and tbe sole question bere is whether or not an entry of appearance was in fact made by defendants in tbe court below.

There is some little discrepancy between tbe transcript from' the common pleas court and the bill of exceptions from that court, but we have considered all tbe facts shown by both.

1. It is claimed by plaintiff that defendants’ attorney appeared in tbe court below, objected to tbe size of tbe bond given by plaintiff, and because of tbe appearance and objection, tbe court increased tbe bond from $200 to $2,000.

The bill of exceptions, as to tbis matter, shows that a petition in error being filed in tbe common pleas court without its *12consent or notice to defendants, defendants’ attorney saw the judge presiding in Room 1 of said court and asked him if he thought it was right and legal to allow the petition to be filed without notice. The attorney says that he was a little mad and the judge said if he did not like what had been done he could file a motion to strike the petition from the files. The attorney says he made no application to have the bond increased but did complain about the insufficiency of the bond. The judge corroborates this statement and says that he did increase the bond from $200 to $2,000; explaining this action, he says:

“Either Mr. Hart or Mr. Canfield (plaintiff’s attorneys) came to me and objected rather vigorously to the action taken, and among other things., complained about the size of the bond.

“Q. What did he say? A. Well, he complained about its insufficiency, said it was not large enough to protect his clients, and I thereupon increased the bond.”

The increase was made by adding a cipher to the original entry of $200 on the docket. There was no new entry made. We do not consider this action of the attorney in talking to the judge in the general manner indicated, constituted an appearance for the defendants in the action. The record fails to show any application by said attorney for an increased bond. It fails to show any action by the court on any such application. What was done by the judge in increasing the bond was done upon his own motion.

2. It appears that defendant filed a motion to strike the petition in error from the files for the reason that said petition was not filed in said court within the time authorized by the statutes. The motion reads that the defendants “enter their appearance for the sole purpose of making this motion and for no other purpose. ’ ’ It was the proper manner in which to make the point without making a general appearance.

No authorities need be cited on this point.

This motion was overruled. Thereafter the entry overruling said motion was vacated and set aside and the transcript shows the following:

“November 16, 1903. To court. The defendants in error have leave on their own application to amend their motion to *13strike the petition in error from the files, by interlining tbe words ‘and action commenced within four months from time the judgment was rendered. ’ ’ ’

The interlineation was made and the motion as amended was granted.

It is claimed that the application to amend the motion constituted a general appearance in the case. We think not.

The application was solely regarding the motion and made under it. It affected no other proceeding in the case. The proviso in the motion inheres in the application to amend it and preserves to defendants all such exemptions as they were entitled under the original motion.

We find no error in the judgment of the common pleas court and it is affirmed.