Mason v. Felix

9 Ohio N.P. (n.s.) 447

Opinion

Dickson, J.

This case was head on motion of plaintiff to dismiss appeal from justice of the peace for the reason that the transcript of the justice was not delivered to the clerk of this court in accord with Section 6585, Revised Statutes; that is, it was not delivered on or before the thirtieth day from the rendition of the judgment appealed from.

The judgment complained of was rendered April 2, 1909. The transcript was delivered to the clerk on May 3, 1909—the thirty-first day from the rendition of the judgment by the justice. The thirtieth day from the rendition of the judgment by the justice came on Sunday. Defendant claims that he was in time in accord with Section 4951 of the Revised Statutes and particularly that part of the section which provides: “And if the last (day) be on Sunday it shall be excluded. ’ ’

The court is of the opinion that this section does not apply to proceedings before or from the justice’s court. McLees et al v. Morrison, 29 O. S., 155, decided December, 1876, and followed in Kerr v. Keil, 60 O. S., 607, decided April 25, 1899, and after the revision of 1880.

Our Supreme Court having held in Brown, Assignee, v. Wallace, Assignee, 66 O. S., page 57, that the right of appeal exists only by virtue'of the statutes, and that the appellate court’s jurisdiction must be strictly acquired the plaintiff’s motion must be granted and the appeal to this court be dismissed.