Opinion
No. 21270
Decided December 19, 1928.
Error proceedings — Petition in error filed on seventieth day, within limitation — One defendant dismissed within seventy days, and others six months before.
ERROR to the Court of Appeals of Cuyahoga county.
Mr. Tobias Miller, in propria persona. Mr. Henry Du Lawrence and Miss Lillian M. Westropp, for defendants in error.
This cause comes to this court on error from the Court of Appeals of Cuyahoga county, and the entry of judgment in the Court of Appeals recites: "The petition in error is dismissed for the reason that the same was not filed in time according to statute."
An examination of the transcript of the docket and journal entries in the trial court discloses that on December 14, 1926, a demurrer to Miller's petition, filed by certain defendants, was sustained, and those defendants were dismissed from the case and judgment entered in their favor; and, further, that on July 26, 1927, the demurrer filed by the defendant Henry Du Lawrence was sustained and the said Henry Du Lawrence was dismissed from the case and judgment entered in his favor. The petition in error was filed in the Court of Appeals on October 4, 1927, which filing was on the seventieth day from the entry of final judgment in favor of the defendant Henry Du Lawrence. The Court of Appeals was therefore in error in dismissing the petition in error on the ground that it was not filed within the time limited by the statutes. The judgment of the Court of Appeals is therefore reversed, and the cause remanded to the Court of Appeals for consideration and decision upon the merits.
Judgment reversed.
MARSHALL, C.J., DAY, ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.