Bettman v. Kuerze , 117 Ohio St. 225 ( 1927 )

By the Court.

This cause was heard in ..this court on a motion to dismiss on the ground that the court had no jurisdiction. This cause comes from the Court of Appeals of Hamilton county, but no motion to certify was filed. Plaintiffs in error filed a petition in error as of right, claiming that the cause originated in the Court of Appeals. The controversy originated in the court of common pleas, but plaintiffs in error sought to intervene in the Court of Appeals, and asked leave of the Court of Appeals to file their cross-petition setting up claim of attorney’s lien on a fund. The Court of Appeals refused leave to file the cross-petition, and no cross-petition was in fact filed by authority of the Court of Appeals in that court. Neither was any summons issued upon the cross-petition to bring other parties before the court to have deter- mi nation of the issues tendered by the cross-petition. If leave had been given to file the cross-petition, it could be said that this present cause sought to be instituted by plaintiffs in error originated in the Court of Appeals. No such leave, having been given, the cause not only did not originate in that court, but has never originated in any court.

We express no opinion upon the merits of the controversy, but hold that, the cause not having originated in the Court of Appeals, it could not be brought to this court on error under claim of right.

Motion sustained.

Marshall, C. J., Day, Allen, Kinkade and Robinson, JJ., concur. Jones, J., concurs in the judgment.