ERROR. TO CONVICTION OF ILLEGAL SALE OF LIQUOR.

Court of Appeals for Wood County.

#### Philip Moorey v. State of Ohio.

Decided, May 7, 1917.

*Intoxicating Liquors—Petition in Error Must be Filed by Leave in Court of Appeals—Where Review is Sought of Conviction of Sale of Liquor in Dry Territory—Construction of the Words “When a Reviewing Court is Not in Session.”*

1. By virtue of the requirements of Section 13246, G. C., one who has • been convicted before a mayor for a violation of the law pro- . hibiting the sale of intoxicating liquors in a city, which judgment has been affirmed by the common pleas court, before filing a petition in error in the court of appeals must obtain leave of that court after good cause shown therefor and within the time limited in said section. '

2. In computing the time within which the same must be filed the language of the statute "when a reviewing court is not in session” means, not in session in the county in which the litigation is pending, unless the court has fixed some other county of the appellate ■ district for the hearing of such cases, and-the court of appeals is not to be' deemed in session in the county in which the litigation is pending simply because the term of court therein has been formally held open.

3. If an examination of the entire record of a case coming within that statute clearly discloses that the judgments of the lower courts are right, leave to file a petition in error will be refused.

*Edward Beverstoclc*and *A. B. Campbell,*for plaintiff in error.

*William B. James,*City Solicitor, contra;

Richards, J.

Error to the court of common pleas.

Philip Moorey was convicted before S. W. Bowman, mayor of the city of Bowling Green, on a charge of selling and furnishing intoxicating liquor to one John Goodman, in violation of Section 13232, General Code, known as the Beal local option law, and sentenced to pay a fine of $200. He prosecuted error to the court of common pleas where the judgment of conviction was affirmed on December 27, 1916.

*479•- On the day the judgment was affirmed he filed a petition in error in the court of appeals to secure a reversal thereof, hut this petition in error was filed without leave being granted therefor, as required by Section 13246, General Code. On the 23d -day of April, 1917, the plaintiff in error, through his counsel, notified the defendant in error that he would apply to the court of appeals at the court house in the city of Bowling Green on Monday, April 30, 1917, at nine o’clock A. m., or as soon thereafter as counsel could be heard, for leave to refile the petition in error for the reason that the same had been filed without leave of court.

The state strenuously resists the application for leave to file ■a petition in error, or to refile the one which has already been filed, basing the objection on the ground that the right to file the same is barred by the terms of the statute last cited, and on the -further ground that, even if the application is within time, the conviction ánd the affirmance thereof were required by the evidence and, therefore, that no good cause has been shown for granting the application.

The court, when these matters came on for hearing, informed •counsel that it would hear the application for leave to file or '-•réfile the petition in error and at the same time would hear arguments upon the merits of the case and determine the whole ' controversy at one time.

■ By reason of the provisions of Section 13246, General Code, no authority existed for filing a petition in error until the court of’ appeals, after good cause shown therefor, had granted leave to file the same. We will, however, treat the application as one for leave to file a petition in error. The statute cited provides that such petition in error must be filed on or before thirty days after the judgment complained of, and that when the reviewing feourt is not in session within the time provided for, the motion for leave to file a petition in error and the petition in error may be filed with and heard by such reviewing court within ten days after it is in session. It is under this latter clause that plaintiff in error claims he is in time with this application.

‘The court of appeals began its regular session in Wood county on Monday, October-16,1916, continuing -in session in the city of *480Bowling Green throughout that week, and was not in session in Woo.d county from that time until April 30, 1917. The October term'of-court was, however, kept' open for the transaction of suehffurther business as might properly come before the court; Such-business being-transacted, by consent of . counsel, in Lucas county: where’ the court of. appeals during the greater portion of that time was in session.

The language of the statute, “when a reviewing court is not •in session;” means not in session in the county in which the litigation is pending, unless the court has fixed some other county of the appellate district for the hearing of such cases, and. the court is not in session, within the meaning of the statute, simply because the term of court has been formally held open’for-the purposes already stated. This view is confircped by the fact that the statute uses the expression “thirty court days,” •and certainly days when the court was engaged in the transaction of official business in Lucas county or elsewhere could not be counted as court days in' Wood county, the court not having fixed any county other than Wood for the hearing of cases ■pending therein.. The next term of the court of appeals in Wood county began on April 30, 1917, and the plaintiff -in- error makes this application on the first day of the term and is within the ■limitation prescribed- by statute in so doing.

The ease having been argued not only upon the application for'leave to file a petition in error, but upon the merits, we have read the entire record with a view to ascertaining whether the conviction was justified by the evidence. The bill pf exceptions contains at least the usual conflict found in cases of this character. It would be of no advantage to review this evidence. Suffice it to say that, after a careful examination, we are clearly of opinion that there was sufficient evidence to justify the mayor in finding the defendant guilty. Having reached this conclusion, it would be futile to permit the filing of the petition in error and then immediately enter a judgment of affirmance, and for these reasons we have determined that no good cause has been shown for granting leave to file the petition in error, and .the application for such leave will therefore be refused. .

Chittenden, J., and Kinkade, J., concur.