PROCEEDINGS IN ERROR.

[Wood Circuit Court,

March Term, 1898.]

Ring, Haynes and Parker, JJ.

#### Anna Marx v. Jacob Loo.

Proceedings in Error Dismissed upon Motion because Transcript oe Jovrnai, Entries was not Eided in Proper Time.

Where the petition in error together with a waiver of summons and the origiiiai papers including a bill of exceptions, were properly filed in the circuit court within six months from the rendition of the judgment sought to be reversed, the proceeding in error will not be dismissed upon a- motion because the transcript oí the journal entries in the case was not filed until three days after the expiration of the six months period of limitation. ■

King, J.

(orally.)

This is a motion to dismiss this proceeding in error, for the reason it was not commenced within six months from the date of the rendition of the judgment in the court of common pleas sought to be reversed. The judgment was rendered May 6, 1897. The petition in error was filed in this court October 23, 1897. Indorsed thereon was a waiver of the issuance and service of a summons in error signed by the attorney for the defendant in error. With the petition in error, and at the same *194time there was filed the original papers, being the pleadings, the summons and return of subpoenas and the original drafts of the journal entries and a bill of exceptions. This it will be seen, was within six months. On November 9, 1895, three days after the expiration of the period of six months, the plaintiff in error filed a transcript of the journal entries, and it is urged in support of the motion that all the papers required to be filed, must be filed within the period of six months, in order that the proceedings in error may be deemed to have been commenced. Our first impression was opposed to granting this motion. But we are cited by counsel to the case of Barton v. American National Bank, 8 Ohio Circ. Dec., 27, in which it is held that it is necessary to file with the petition in error, or. within six months from the rendition of the judgment, the transcript of the docket and journal entries, together with the original papers where a final record has not been made, and that if either of these requisites be omitted until the six months period has elapsed, the proceeding in "error is not commenced and must be dismissed on motion.

We have examined the question with some care, because of this decision. Section 6713, Rev. Stat., provides, in substance, that proceedings to reverse, vacate or modify a final order of any court, shall be, by petition in error, filed in the court having power to make such reversal, vacation or modification setting forth the errors complained of, that thereupon a summons shall issue and be served, as in the commencement of an action.

Section 6716, Rev. Stat., provides that the plaintiff in error shall file *with his petition,*either a transcript of the final record or a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of. •

' Section 6723, Rev. Stat., provides that no proceedings to reverse, vacate or modify a judgment or final order shall be commenced, unless within six months after the rendition of the judgment or the making of the final order complained of. And it is held in Ross v. Willet, 54 O. S., 150, that sec. 4987 and sec. 4988 of the code, are applicable by analogy to proceedings in error, to determine when or whether a proceeding in error has been commenced. This case refers to that of Robinson v. Orr, 16 O. S., 285, where it was held that that section which is now section 4987, was applicable, by analogy, to proceedings in error, and where no service of summons had been made upon a necessary defendant in error, and no attempt to serve him had been made within the time limited, that the proceeding must be dismissed. In other words, it was not sufficient to file the petition in error in the reviewing court, but that following section 4987, the action or proceeding should be deemed commenced at the date of the summons served upon the defendant in error. But in Ross v. Willet, *supra,*it is held, that sec. 4988, Rev. Stat., is also applicable, and that an attempt to commence an action, shall be deemed equivalent to the commencement thereof, when the party diligently endeavors to procure a service, but such attempt must be followed by a service within sixty days, and deciding that if the petition in error is filed within six months followed immediately by a diligent effort to procure service, which is followed by actual service within sixty days, even after the expiration of the six months period of limitation that the action will be deemed commenced, so that the liberal provisions of the code are applicable to proceedings in error, notwithstanding the decision of the court in, Burke v. Taylor, 45 O. S., 444, where it was *195held that the statutes authorizing proceedings in error should be strictly-construed. We then find that an attempt to commence a proceeding in error is equivalent to the commencement of one, when it is followed by an effort to procure service and an actual service of summons within sixty days even after the expiration of the limitation fixed' by the statute. So much is settled by the decision of the Supreme Court. Is it true then that when these are all accomplished within six months that the proceeding is still not commenced unless each and every paper required to be filed in the proceedings to advise the reviewing court of the nature of the error complained of, is also filed within six months ? The learned judge delivering the opinion in Barton v. American National *Bank,supra,*holds, that it is not necessary that these papers be actually filed at the same *fime*as the petition in error, evidently correctly construing and holding that sec. 6716, Rev. Stat., did not make that requirement. The requirement is that they shall be filed, and with the petition in error, yet not necessarily at the same time, and that only such papers must be filed as are necessary to exhibit the error complained of. Is it possible that if any of these be omitted, the proceeding is not commenced. We are unable to come to such a conclusion. The filing of the petition in error, the service of the summons in error, or in its stead the waiver of a summons in error, and that within the period named in the statute or within sixty days in a case governed by the case in the 54 O. S., commences the proceeding in error.

Now, then, if the record is not complete, it seems to us evident that the party who has not filed the necessary papers to exhibit the error complained of, has still a right to have the proceeding in error heard in the usual manner and determined. He also has a right, in our judgment, if the record is incomplete, to suggest a diminution of the record and the sending up of a more perfect record. The defendant in error may make the same suggestion or motion.

Going back to the Code of Civil Procedure again, we find in sec. 5085, that when an action is founded on a written instrument as evidence of indebtedness, a copy thereof must be attached and filed with the pleading. In the proceedings in error it is not necessary to attach these various papers. Under that section it is held in Calvin v. State, 12 O. S., 60-66, that the omission to attach or file with the petition such written instrument is not a ground of demurrer and must be taken advantage of by a motion to make more definite. In Larimore v. Wells, Adm., 29 O. S., 13, it is held that such copies of written instruments attached to and filed with the petition form no part of the pleading, and if omitted the sufficiency of reason given in the pleading for the omission to attach and file them is to be decided by the court and does not effect the merits of the action. We cite also the case of Stevenson v. Seymour, 7 Ohio Dec. Reprints, 453, the decision by the district court of Ross county, in which it was held that a failure to file .the original papers or transcript of the record with the petition in error is sufficient cause for dismissal, but is amendable. If it be amendable then where it has been complied with and the papers are already filed with the petition in error, certainly a motion to dismiss should be overruled. We conclude that the filing of these papers is but an incident to the commencement of.the proceeding and that the filing of them or the failure to file them will in no wise determine whether the proceeding is commenced, that that must be deter*196mined alone from the petition in error and the summons, if one is issued. This motion will therefore be overruled.

*Baldwin & Harrington*for motion.