Murray v. Mahan , 81 Ohio St. (N.S.) 569 ( 1910 )

Judgment reversed. Grounds stated in journal entry.

This cause came on to be heard upon the transcript of the record of the circuit court of Trumbull county, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for error in affirming' the judgment of the court of common pleas.

The plaintiff in error, defendant in the action before the justice of the peace, entered into an undertaking in appeal, but failed to file the trail-script and other papers and to have his appeal docketed, thereupon the plaintiffs, appellees, filed in the court of common pleas the transcript of the proceedings and judgment of the justice of the peace and recovered a judgment in the court of common pleas, on error that judgment was affirmed in the circuit court, and in this court the judgment of the circuit court was affirmed in case No. 11598. The defendant in the action before the justice of the peace, after the giving of the undertaking in appeal, also filed a petition in error in the court of common pleas, and in that court the judgment of the justice of the peace was affirmed, and on error the circuit court affirmed the judgment of the court of common pleas and the petition in error in this case brings that judgment before this court for review. The appeal suspended the judgment of the justice of the peace and the judgment of the court of common pleas in the appealed case superseded the judgment of the justice of the peace and left no judgment from which error -could be prosecuted. In the error case, the common pleas court did not have jurisdiction to render a judgment of affirmance and the circuit court erred in affirming the judgment of the court of common pleas, and this court proceeding to render the judgment that the circuit court should have rendered:

It is ordered and adjudged that the judgment of the court of common pleas be, and the same hereby is, reversed, and the petition in error in that court dismissed.

Summers, C. J., Crew, Spear, Davis and Shauck, JJ., concur.