Bonham v. Mills , 39 Ohio St. (N.S.) 534 ( 1883 )

By the Court.

In an action of forcible detainer before Yeoman, a justice of the peace, in ease of Mills against Bonham, a summons was issued April 5, 1879, returnable April 8, requiring Bonham to appear April 9. On April 9, Bonham appeared and demanded a jury, but the justice overruled the demand on the ground that Bonham had waived the right by failing to make demand on April 8. Exception. Judgment for Mills ; affirmed in the court of common pleas ■and district court.

Reliance was placed in the courts below on a remark of ■Judge Swan, that “ it would seem, from the provisions of the .statute, that the demand for a jury must be made upon the return day of the summons.” Swan’s Tr. (11th ed.) 552. But upon examination of that which precedes and follows the remark, read in the light of former statutes, we are led to the conclusion that he did not intend to deny the right to demand a jury on the appearance day. The court erred in holding that Bonham was too late with the demand. The opinion of Doyle, J., in Hill v. Hollister, 5 Week. L. Bull. 757, is in accordance with this view.

Judgment of the district court, court of common pleas and justice of the peace reversed, and cause remanded for further proceedings.