King v. L. M. Southern Real Estate Co. , 116 Ohio St. 185 ( 1927 )

George C. Dissette, as receiver of the L. M. Southern Real Estate Improvement Company, the administrators of the estate of William M. Southern, deceased, the William M. Southern Realty Company, and Anna L. Southern have moved to quash the service of process upon the cross-petition in error filed in this cause by Paul R. Brown, as administrator de bonis non of the estate of L. M. Southern, deceased, on the ground that the court has no jurisdiction of the persons of said defendants upon said cross-petition. The real purport of the motion is to strike the cross-petition from the files, on the ground that the same was not filed within the statutory period of 70 days from the entry of the final judgment in the Court of Appeals. The final judgment was entered on June 1, 1926, and Brown, as administrator, did not file a motion to certify the cause to this court on the ground of public and great general interest, neither did he file any other proceedings seeking to have a review of that judgment until January 22, 1927, a period of nearly eight months after the entry of final judgment in the Court of Appeals. His cross-petition in error was filed on the theory that the entire cause was certified to this court upon motion of Kitty Southern King, the plaintiff in error, and that the entire cause was thereby transferred to this court for review.

The controlling feature of the case, as presented by the motion under consideration, is that the cross-petition in error seeks no relief against the plaintiff in error, but, on the contrary, the relief sought by the cross-petition in error pertains to the same alleged error complained of by Kitty Southern King, the plaintiff in error, and the relief is sought against the same judgment entered in the Court of Appeals, seeking final judgment in favor of said cross-petitioner in error.

It is apparent that this cross-petitioner had the same opportunity and the same period of time within which to file a motion to certify, and, upon allowance of such motion to certify, would have had the same period within which to file a petition in error against the judgment now under review, which would not have been a cross-petition, but a direct petition in error wherein said cross-petitioner might have prayed relief in his favor.

The statute which fixes 70 days as the limit of time for filing a petition in error therefore applies to Brown as administrator de bonis non, and this is not a mere statute of limitations, but, on the contrary, becomes a jurisdictional bar to filing a petition in error after the lapse of 70 days. The order in the Court of Appeals was a dismissal of Brown as administrator de bonis non, and any relief obtained by him would be against the defendants in error and not against the plaintiff in error. The nature of a cross-petition in error is discussed at length in the following cases: Mannix v. Purcell,46 Ohio St. 151, 19 N.E. 572, 2 L.R.A., 753, 15 Am. St. Rep., 562; Bundy v. Ophir Iron Co., 35 Ohio St. 80;Shinkle v. First National Bank of Ripley, 22 Ohio St. 516; and upon the principles declared in those cases the cross-petition in error must be stricken from the files.

Motion sustained.

MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.