McGuire v. Ranney

49 Ohio St. (N.S.) 372

Opinion

By The Court:

The ground of the motion is that this court is without jurisdiction to hear and determine the proceeding in error, because more than six months have elapsed since the rendition of the judgment of the circuit court, and no service of process in error has been had.

Judgment of the circuit court was rendered September 22, 1891. Petition in error was filed December 22, 1891. Upon the petition is written a waiver of process and entry of appearance, without date, duly signed by the attorneys of record for the defendant in error in the action - below. This paper was, in fact, signed sometime prior to December 6, 1891. On this last named date the defendant in error deceased. No summons in error hás issued, nor is there service of any kind unless the waiver and acknowledgment of service by the attorneys of record in the original cause upon the petition prior to the decease of the defendant in error can have that effect.

We think it cannot. It would not be possible, in any manner, to bring a party into court prior to the filing of the petition. The waiver and appearance by counsel speaks, therefore, as of the date of the filing of the petition in error, December 22,1891. The decease of the defendant in error December 6, terminated the authority of the attorneys of record in the original case, and hence the entry of appearance on the petition in error is without legal effect.

No service having been made, therefore, within six months from the date of the judgment of the circuit court, this court is without jurisdiction, and the petition in error must be dismissed. Cisna's Adm'r v. Beach, 15 Ohio, 300.

Motion sustained.