Stoffregen v. Biederman

Hamilton Circuit Court

Stoffregen v. Biederman

3 Ohio Cir. Dec. 347

DecidedJanuary 15, 1892

StatusPublished

This text of 3 Ohio Cir. Dec. 347 (Stoffregen v. Biederman) is published on Counsel Stack Legal Research, covering Hamilton Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stoffregen v. Biederman, 3 Ohio Cir. Dec. 347 (Ohio Super. Ct. 1892).

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Opinion

COX, J.

This case originated in a magistrate’s court, where $60.00 was claimed, ana a verdict returned by a jury for $15.50 and judgment rendered thereon. In the court of common pleas, to which an appeal was taken, it was claimed that the case was not appealable, and. affidavits were submitted, alleging that before the jury was impaneled an amended bill of particulars was filed, claiming only $19.50 damages. Counter-affidavits were submitted, whereupon the trial judge held that the amount in controversy was below $20.00, and, trial having, been had in the magistrate’s court before a jury, an appeal could not be taken. The appeal was therefore dismissed, and judgment given for plaintiff for $15.50 and his costs.

The proceedings in the court of common pleas were clearly erroneous.

1. The transcript showed that it was an appealable case — a demand for' $60.00. The court of common pleas had no authority to hear evidence outside-the transcript .to prove that an amended bill of particulars had been filed in the magistrate’s court. If such an amendment were made, it should have appeared' in the magistrate’s transcript; or, if omitted there, plaintiff could, under an ordej of court, have filed a correct transcript. Yapel, 656; Wood v. Newkirk, 15 O. S. 295; Smith v. Bd. of Education, 27 O. S. 44; Edwards v. McClurg, 39 O. S. 53. The court of common pleas erred, therefore, in dismissing the appeal.

2. The court below having found the case not appealable, had no jurisdiction further. If it were not appealable, all the court could do, would be to dismiss the appeal for want of jurisdiction, leaving the judgment before the magistrate to stand. The court of common pleas could not render judgment for any amount. State v. Brewster, 44 O. S. 249.

Upon suggestion of counsel that after the entry of judgment in the court of common pleas, an execution had been issued and the money paid by defendant under protest, the-proper entry in the circuit court would be an order of restitu[348]*348remanded. But the court held that the only entry it could make from the papers in the case would be, that the judgment of the court of common pleas be reversed, and that plaintiff in' error be restored to all things he has lost by reason of the erroneous judgment of the court, and that a mandate issue to that court to carry the judgment into effect, and there the application for a writ of restitution should be made. Stone Co. v. Kraft, 31 O. S. 289.

J. W. O’Hara, for plaintiff in error. C. L. Lundy, for defendant in error.

Judgment accordingly.

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COX, J.

This case originated in a magistrate’s court, where $60.00 was claimed, ana a verdict returned by a jury for $15.50 and judgment rendered thereon. In the court of common pleas, to which an appeal was taken, it was claimed that the case was not appealable, and. affidavits were submitted, alleging that before the jury was impaneled an amended bill of particulars was filed, claiming only $19.50 damages. Counter-affidavits were submitted, whereupon the trial judge held that the amount in controversy was below $20.00, and, trial having, been had in the magistrate’s court before a jury, an appeal could not be taken. The appeal was therefore dismissed, and judgment given for plaintiff for $15.50 and his costs.

The proceedings in the court of common pleas were clearly erroneous.

1. The transcript showed that it was an appealable case — a demand for' $60.00. The court of common pleas had no authority to hear evidence outside-the transcript .to prove that an amended bill of particulars had been filed in the magistrate’s court. If such an amendment were made, it should have appeared' in the magistrate’s transcript; or, if omitted there, plaintiff could, under an ordej of court, have filed a correct transcript. Yapel, 656; Wood v. Newkirk, 15 O. S. 295; Smith v. Bd. of Education, 27 O. S. 44; Edwards v. McClurg, 39 O. S. 53. The court of common pleas erred, therefore, in dismissing the appeal.

2. The court below having found the case not appealable, had no jurisdiction further. If it were not appealable, all the court could do, would be to dismiss the appeal for want of jurisdiction, leaving the judgment before the magistrate to stand. The court of common pleas could not render judgment for any amount. State v. Brewster, 44 O. S. 249.

Upon suggestion of counsel that after the entry of judgment in the court of common pleas, an execution had been issued and the money paid by defendant under protest, the-proper entry in the circuit court would be an order of restitu[348]*348remanded. But the court held that the only entry it could make from the papers in the case would be, that the judgment of the court of common pleas be reversed, and that plaintiff in' error be restored to all things he has lost by reason of the erroneous judgment of the court, and that a mandate issue to that court to carry the judgment into effect, and there the application for a writ of restitution should be made. Stone Co. v. Kraft, 31 O. S. 289.

J. W. O’Hara, for plaintiff in error. C. L. Lundy, for defendant in error.

Judgment accordingly.

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3 Ohio Cir. Dec. 347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stoffregen-v-biederman-ohcircthamilton-1892.