DISMISSAL ON APPEAL FOR DEPARTURE FROM ORIGINAL CAUSE OF ACTION.

Court of Appeals for Holmes County.

#### R. L. Marquis v. The Millersburg, Wooster and Orrville Telephone Company.

Decided, March 14, 1922.

*Departure*— Cause *of Action before a Magistrate*— So *Changed on Appeal as to Take it Out of the Magistrate’s Jurisdiction*— Duty *of Trial Court in such a Case.*

Where an action is brought before a justice of the peace against a telephone company for $145 as rental of land upon which the company was maintaining poles, and upon appeal to the common pleas court the claim was stated to be $300 as damages for land alleged to have been appropriated, the action of that court in dismissing the petition and giving judgment for the defendant was not only justified, but it would have been the duty of the trial court to have taken said action on its own motion had counsel for the defendant not challenged the jurisdiction.

*G.*W. *Sharp*aucl *Mel Marquis*for plaintiff in error.

*Ojiarles B. Ga/ry,*contra.

Houck, J.

The parties here stand in the same position as to each other as they stood in the court below. The plaintiff commenced an action in the court of a justice of the peace of Prairie township, Holmes county, Ohio, and the bill of particulars alleged and set forth that the defendant was indebted to plaintiff for land rental for the use of certain lands upon which defendant had erected telephone poles, and prayed judgment against the defendant in the sum of $145 with interest.

The cause was tried in said justice court and judgment rendered for the defendant, whereupon plaintiff appealed said cause to the common pleas court of Holmes county. A petition was filed in said common pleas court and summons issued *474thereon. The parties prayed for judgment in the sum of $300, claimed to be due plaintiff by reason of the appropriation of certain lands described in said petition, by defendant, and used by the said defendant for its telephone poles.

The prayer in said petition, in the common :pleas court reads as follows:

> “Said defendant is, a corporation organized under the laws of West Virginia, operating a telephone company, and says that said company forcibly took possession of said lands hereinbefore described, without any authority in law, and have refused compensation in damages, and have refused to condemn said lands for the erection of said, poles and wires thereon, and now refuse to condemn the same, to the damage of the plaintiff in the sum of $300, for which she asks judgment, interest, and costs.”

• Counsel for defendant challenged said petition in writing filed in said common pleas court, upon the ground that there was a departure from the cause of action stated in the bill of particulars, and that stated in the petition. We have examined the paper writing filed by counsel for defendant and in our judgment it savors not only of a demurrer but of a motion, and we therefore treat it as such.

The trial judge in the common pleas court sustained the contention of counsel for the defendant and dismissed said petition of plaintiff and entered a judgment in favor of defendant. Question: Did the trial judge commit prejudicial error in dismissing said petition of plaintiff?

An inspection of the bill of-particulars in the court of the justice of the peace and the petition filed in the common pleas court discloses the fact that they were of a different character and nature, setting forth different causes of action and grounds for recovery.

Before the justice of the peace, the action was for rental, but that set out in the petition filed in the common pleas court was for damages for property alleged to have been appropriated. Hence it will be seen that there was a clear departure *475from the cause of action in the justice court and the cause of action in the common pleas court.

A departure in pleading is the statement of matter in a subsequent pleading as a cause of action or defense which is not pursuant to or does not savor of the previous pleading of the same party.

Therefore an inspection of the allegations contained in the Jill of particulars and the ones set out in the petition filed in the common pleas court clearly show a departure, or, in other words, a new and different cause of action is set out in the petition filed in the common pleas court from that contained in the bill of particulars filed in the court of the justice of the peace.

We are of the opinion that the Supreme Court of Ohio has fully .determined the question here raised and we need but cite counsel to the case of *Van Dyke*v. *Rule,*49 O. S., page 530, where the following rule of law is laid down in the second syllabus :

> “Where an action, begun before a justice of the peace, is appealed to the' court of common pleas, the latter court has no power to substitute, by amendment, another cause of action not within the jurisdiction of the justice of the peace, though it is within the original jurisdiction of the court of common pleas, unless the defendant consents to the substitution, or waives his right to object to the action of the court.”

Further discussion of the question here raised seems to us unnecessary; and it follows from what we have already said that we find no prejudicial error in the record now before us .for review.

We are further .of the opinion that even though counsel for defendant had not challenged the jurisdiction of the court in the premises, yet upon an inspection of the record presented in the -common pleas court, it would have been the duty of the trial judge upon his own motion to have stricken the petition of plaintiff from the files upon the grounds that there was" a *476departure in the cáuse of action set out in the petition of plaintiff in the common pleas court from that contained in the bill of particulars in the justice court, and for the further reason that' the justice of the peace -had no jurisdiction over the subject matter- set out in- the petition of plaintiff filed in the common pleas court.

Finding no prejudicial error in the record the judgment of the common pleas court must be affirmed.

Shields, J., and Patterson, J., concur.