Loewenstein v. Rheinstrom Bros.

8 Ohio N.P. 235

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1901
• Status: Published

Opinion

Dempsey, J.;

Smith, J. ;and Murphy, J. concur.

On May ^ó, 1900, Rheinstrom Bros, recovered at special term a judgment against Jennie Steinau and Daniel Loewenstein jointly for the sum of $993.57, with interest thereon from April 2, 1900; to this judgment Daniel Loewenstein, alone excepted. On August 15, igoo, Daniel Loewenstein filed in tne general term his petition in error to reverse the aforesaid judgment. Rheinstrom Bros., the plaintiffs in the cause below, were alone made defendants in error, and were duly served on August 17, 190. On the 26th of September, 1900, Rheinstrom Bros, filed their motion in this court to dismiss said petition in error, for the reason that the said Jennie Steinau. one of the parties below, is not made a party to said petition in error, and as a consequence this court is without jurisdiction to entertain such petition. On October 6, 1900, Jennie Steinau entered her appearance to the petition in error herein and consented to be made a party thereto. On October 9, 1900, an amended petition in error was filed setting forth certain facts as to the nature of the judgment against said Jennie Steinau. On the same day a motion was filed to make Jennie Steinau a party defendant in error because she had been omitted by mistake and inadvertence. On October 12, 1900, kneinstrom Bros, filed their motion to strike from the files the amended petition in error for various reasons therein set forth. These various motions are now before us for decision.

D. Thew Wright, Jr., for Loewenstein; Jacob Shroder for Rheinstrom Bros.

The limitation for filing petitions in error is four months from the date of the j udgment or order complained of.

In Smetters v. Rainey, 14 O. S., 278, it was settled that all the parties to a joint judgment are necessary parties to a petition in error by one of them. And while it was held that in cases of omission of parties amendment might be allowed, it was further held that such omitted parties must be brought in within the period allowed for filing petitions in error; otherwise the reviewing court would have no jurisdiction. Smetters v. Rainey has been severely criticized in three subsequent cases, but it has never been overruled.

In Abair v. Bank, 3 C. C., 290, in an exhaustive opinion by Scribner, J., all of the cases up to that time are collected, analized and reviewed and the conclusion reached that Smetters v. Rainey was still law in Ohio.

In 1877, in the case of Burke v. Taylor, 43 O. S., 444, and subsequent to Judge Scribner’s decision, Smetters v. Rainey was again distinctly approved and followed.

In view of this line of authority we feel that we have no independent judgment on this question and that we are bound by the rule as laid down in Smetters v. Rainey. As a consequence it follows that the motions of Rheinstrom Bros, to dismiss the petition in error and to strike the amended petition in error from the files must be granted. The motion to make Jennie Steinau a party defendant in error must necessarily be denied.