Rocca v. Rosenstiel , 20 Ohio App. 367 ( 1925 )

The original action in forcible entry and detainer was brought by G.W. Rosenstiel, as plaintiff, against Anna Rocca, defendant, in the municipal court of Cincinnati. Plaintiff recovered judgment, which was entered on June 19, 1924. On July 30, 1924, a petition in error, transcript of the docket and journal entries, original papers, and bill of exceptions, were filed in the court of common pleas. On motion, the court of common pleas struck the petition in error from the files, on the ground that the same was not filed by leave of court, and a judgment dismissing the proceedings was entered. To reverse this judgment, error is prosecuted here.

The only question raised is as to the necessity of obtaining leave to file a petition in error in the court of common pleas, in a case of forcible entry and detainer heard in the municipal court. If leave was not necessary, the court was in error in dismissing the petition in error on the motion.

The municipal court of Cincinnati is given jurisdiction to hear and determine such cases by Section 1558-6, General Code:

"The municipal court * * * shall have ordinary civil jurisdiction within the limits of said city of Cincinnati in the following cases: 1. In all actions and proceedings of which the justices of peace have or may be given jurisdiction. * * *

"4. All actions in forcible entry or detainer."

Section 1558-26, General Code, provides: "Proceedings in error may be taken to the court of common pleas of Hamilton county, from a final judgment or order of the municipal court of Cincinnati in the same manner and under the same conditions as provided by law for proceedings in error from the court of common pleas to the court of appeals, of Hamilton county * * *."

Sections 12247 and 12259, General Code, provide how cases may be taken on error from the court of common pleas to the Court of Appeals. Leave is not required by the above provisions, and, unless there is some other special provision in the Code requiring plaintiff in error to obtain leave to file a petition in error in the court of common pleas, it may be filed under these sections as a matter of right.

Defendant in error contends that these general provisions were not intended to, and do not, take the place of special provisions relating solely to causes in forcible entry and detainer, and that the proceedings in error in such cases are governed by Section 10459, General Code, which is as follows:

"Exceptions to the opinion of the justice in cases under this chapter upon questions of law and evidence may be taken by either party, whether tried by jury or otherwise. But in proceedings to reverse, vacate or modify the judgment or final order in such cases, a petition in error may be filed in the common pleas, only by leave of such court, or a judge thereof, or in the absence of such judge from the county, by leave of the judge of the probate court therein, and upon notice of such application first given to the opposite party."

This provision is in chapter 13, title 2, part 3, of the Code, providing for actions in forcible entry and detainer, and it refers to actions instituted before a justice of the peace.

The cases of Carroll v. O'Conner, 25 Ohio St. 617, andRothwell v. Winterstein, 42 Ohio St. 249, cited by counsel for defendant in error, are cases involving error proceedings from a court of a justice of the peace, and hence such error proceedings were properly governed by Section 10459, General Code.

The Legislature, however, has not limited the filing of a petition in error in forcible entry and detainer cases tried in the municipal court to the method prescribed for proceedings in error from a justice of the peace, and hence, since there is no special statute limiting the right to review the action of the municipal court in such cases, we hold that the provisions of Sections 1558-26, 12247, and 12259, govern the procedure, and that the court of common pleas was in error in dismissing the petition in error herein.

The judgment will be reversed, and the cause will be remanded to the court of common pleas, with instructions to reinstate, and for further proceedings according to law.

Judgment reversed, and cause remanded.

HAMILTON and CUSHING, JJ., concur.