FAILURE TO ISSUE SUMMONS IN ERROR PROCEEDINGS IN A COURT OF APPEALS.

#### Mary Albertoni v. Hyman Shaffer, Barney Snyder and Yale Cohen.

Court of Appeals for Summit County.

Decided, December 10, 1921.

*Jurisdiction*— Construction *of the Seventy Days Limitation for Wiling JSrror Proceedings in Court of Appeals*— Not *an Ordinary Statute of Limitations, hut a Condition Requisite to Confering of Jurisdiction.*

1. In a proceeding in error to the court of appeals in which there has been a failure to obtain jurisdiction by causing summons to issue or by obtaining a waiver of summons from the defendant in error, the mere fact that the defendant in error, without being aware that .proceedings in error had not been “commenced,” filed a brief in the case in reply to a brief filed by the plaintiff in error after the limitation period for the *commencing*of such a proceeding had expired, does not prevent the defendant in error from thereafter filing a motion to dismiss for want of jurisdiction. Submission of such a motion, after the filing of a brief on the merits, does not under the circumstances work an estoppel against the defendant in error on the ground that such action constitutes trifling with the court.

2. The fact that jurisdiction of the courts of appeals is now conferred by the Constitution does not render Section 12270 — limiting the time for filing error proceedings in those courts to seventy days— a mere limitation on the remedy which, like an ordinary statute of limitations, is waived if not pleaded. On the contrary Section 12270, being in force with a settled and well-established construction at the time the new Constitution was adopted, became a condition attached to the exercise of jurisdiction, and no jurisdiction vests where a proceeding in error is not “commenced” within the seventy day period.

Musser, *Kimb&r <& Huffman,*for plaintiff in error.

*Stahl & Andree,*for defendant in error.

Washburn, P. J.

The court has reached the conclusion that the motion in this case should be granted, but the members of the court are not in entire accord as to the reasons for such action of the court. *246This opinion sets forth the reasons of one member of the court, and is in no manner binding on the other members of the court except as' to the result reached.

This controversy is before the court on a motion in which the defendants, “appearing solely for the purpose of this motion and for no other purpose/'’ ask the court to dismiss “the alleged petition in error” because the court is without “jurisdiction of this controversy or of the persons” of defendants.

The judgment below was entered on May 28, 1921. A petition in error and precipe for summons was filed in this court on June 29, 1921, but no summons was ever issued or served. It is, however, claimed that the defendants are estopped to deny the jurisdiction of this court, because on October 21, 1921, they filed a brief in this court on the merits of the controversy in answer to the brief of plaintiff in error, filed September 12, 1921.

The case was assigned in this court for trial on October 17, 1921, and after such assignment and before the day set for trial, the defendants on October 14, 1921, filed their said motion to dismiss.

There is no claim that the defendants promised to waive service of summons or were in any manner responsible for plaintiff’s failure to have summons issued and served within the period for the commencement of an action in this court, and at the time that defendants filed their brief, the seventy days limitation provided by G-. C. 12270 for the commencement of an action in this court had long since elapsed. General Code, Section 12270 provides that:

> “No proceedings to reverse, vacate or modify-a judgment or final order shall be commenced unless within seventy days after the entry of the judgment or final order complained of.”

An action is deemed commenced at the date of the summons which is served on the defendant. (General Code, Section 11231.)

> “A proceeding in error is *not*deemed *commenced,*within the meaning of Section 12270 of the Code, upon the mere filing of a petition in error in the proper court.” *Robinson*v. *Orr,*16 O. S., 285.

> “A proceeding in error to reverse, vacate or modify a judgment or final order, is not *commenced,*within the meaning of See*247tion 12270 of the Code, unless the petition in error is filed, and the appearance of the defendants in error effected by service of summons or otherwise.

> ‘ ‘ Where it appears from the record, that the petition in error has been filed, but service of summons has not been had, or the appearance of defendant otherwise'effected *“within the time prescribed by statute,*a motion to strike the case from the docket is a proper mode of proceedure, and will be sustained.” *Bowen*v. *Bowen,*36 O. S., 312.

In the above ease, the petition in error was filed within the" time prescribed by law as in the case at bar, but in neither case was there any summons issued or served within the period of limitátion.

The ease at bar differs from the above case of *Bowrn-*v. *Bowen,*only in one particular, and that is that in the case at bar, while the defendants did nothing whatever, *during the limitation period*to enter their appearance, they did file a brief after the limitation period and when it was too late for the plaintiff to “commence” an action against them. *

If the principles announced in the foregoing and those later cited are to govern, then at the time defendants filed their brief they could not by voluntary appearance confer jurisdiction upon the court to hear and determine a proceeding in error which had not been “commenced” and which, because of the limitation statute, could not then be ‘ ‘ commenced. ’’ *Scooner Marinda*v. *Dowlin,*4 O. S., 500; *Little Miami Ry. Co.*v. *Hopkins,*19 O. S., 279, *Railway Company*v. *Wide,*35 O. S., 247; *Piatt*v. *Sinton,*35 O. S., 282; *Bowen*v. *Bowen,*36 O. S., 314.

But this principle, which seems to be so firmly established in the jurisprudence of our state can not be invoked under certain circumstances.

It seems that even where there has been no service or appearance within the limitation period, still if the defendant appears after the time and has the case set for oral argument and after-wards partially argues the case on its merits, he will be estopped from objecting to the jurisdiction of the court, because, as is said, to permit him to do so would enable him to trifle with the court. *C. C. & C. R. R.*v. *Mara,*26 O. S., 185.

*248Or if he promises the other party to waive issue and service of summons and both proceed in the preparation of the case for final hearing upon the theory that such appearance has been made and in the belief that the proceeding has been duly commenced and is actually pending, he is •'estopped, after appearing and submitting the ease, either upon oral arguments or printed brief, to question the jurisdiction of the court, either of the parties or subject matter, upon the ground that no summons in error was ‘issued or served.” *King*v. *Penn.;*43 O. S., 57.

The question is, do the facts in the case at bar bring it within the principle of these cases so as to estop the defendants.

They did nothing during the limitation period and simply filed a brief after that time; they did not argue or submit the case on its merits; when served with a copy of a brief by plaintiff, not knowing that the ease was not ''‘commenced,” they filed an answer brief to comply with the rules of the court, and then before the date set for trial and before plaintiff had done anything further, defendants discovered the lack of jurisdiction and promptly filed their motion to dismiss,

I do not see wherein the defendants in any way trifled with the court or misled or even influenced in any particular the conduct of plaintiff; and therefore, if the authorities heretofore cited are to govern, defendants are not estopped from objecting to- the jurisdiction of the court. But it is said that the fact that the jurisdiction of the Court of Appeals is now conferred by the Constitution, instead of by statute as it was prior to 1912, renders obsolete the authorities hereinbefore cited, because the Constitution now grants jurisdiction of the subject matter and nothing is lacking except jurisdiction of the parties, which may be acquired as well by waiver afterwards as by service before the lapse of the period of limitation, The Constitution provides that the Courts of Appeals shall have jurisdiction “to review, affirm, modify, or reverse the judgments of the Court of Common Pleas, Superior Court and other courts of record within the district as may be provided by law.”

Construing this constitutional provision, it is settled that the jurisdiction of the Court of Appeals is conferred by the Consti*249tution, and that “the General Assembly has no power to enlarge or limit the jurisdiction conferred by the Constitution of the state, but may provide by law for the method of exercising that jurisdiction. ’ ’ *Cincinnati Polyclinic*v. *Balch,*92 O. S., 415.

The argument is that since the jurisdiction of the court is conferred by the Constitution, Section 12270, General Code, becomes a mere limitation on the remedy and is the same as the ordinary statute of limitation which is waived if not plead and in that sense does not affect the jurisdiction of the court.

Speaking for myself, I do not see how the amendment has in any way affected the question. The constitutional provision conferring the jurisdiction contains the clause “as may be provided by law,” and when the Legislature under that express power fixes the limitation, it seems to me that it is the same as if the limitation was in the Constitution itself, and that the jurisdiction granted and the condition imposed go together. The effect is the same as if the Constitutional provision was that the Court of Appeals should have jurisdiction to affirm, reverse or modify the judgments of inferior courts of record in such cases as may be commenced in the court of appeals within the period and in the manner fixed by the Legislature; and that the Legislature having exercised the power conferred by the Constitution and enacted General Code, Section 12-270, then one of the conditions attached to the exercise of the jurisdiction conferred by the Constitution, and the right to call it into exercise, is that the proceedings be instituted or commenced within seventy days. In that view of the matter, time is of the essence of the power and right, and lapse of time operates to extinguish both, rather than as a mere bar to a remedy.

The seventy day limitation is not wholly for the benefit of the defendant in error, but partly, upon considerations of public policyj to expedite the business of courts, discourage frivolous and vexatious litigation and prevent the evils incident to delay in finally fixing the rights of parties to litigation; and it might fairly be said that the subject matter of a- suit in error in the Court of Appeals is a complaint of error made within seventy days, and that when the seventy days has elapsed, there is no *250subject-matter to which the jurisdiction can attach. Therefore, if the proceeding is not commenced within the period of limitation, then the court has no jurisdiction, and jurisdiction can not be conferred by mere entry of appearance after the limitation period, although now as before, one may do that which estops him from denying the jurisdiction of the court. Now, as before the amendment to the Constitution, if one, after the limitation period without objection submits his case or otherwise conducts himself so as to trifle with the court or if he misleads the other party into not making service, and after the period of limitation does that which if done before the period would amount to an appearance, he will be estopped from objecting to the jurifediction of the court, but where there has been no trifling with the court and no misleading of the other party before or after the limitation period, the mere filing of an answering bri'ef after the expiration period will not estop the party filing such brief from objecting to the jurisdiction of the court if he does so before anything further is done in the case.

Moreover, there is this further consideration which seems to support the conclusion wc have reached in this case. 'Section 12270 was in force at the time the Constitution was amended in 1912 and it has not since then been amended except to shorten the period of limitations; it was in force then with a settled and well established construction, making it not an ordinary limitation statute that could be waived, but a condition attached to the exercise of jurisdiction. That being the situation, the constitutional amendment, in the schedule adopted as a part of the Constitution, expressly provided that “all laws then in force, not inconsistent therewith shall continue in force until amended or repealed;” and it would seem to follow that by adopting the Constitution including the schedule, the intention was not only that Section 12270 should remain in force, but that the settled construction given to it should continue.

The motion of defendants .is granted, and the proceedings are dismissed for want of jurisdiction to- hear the same.

Treash, J., and Pardee, J., concur in judgment.