Error proceedings — Dismissal — Summons not issued within statutory period.
A petition in error will be dismissed where summons in error is inadvertently not issued until the statutory period has expired, although the petition in error and precipe for summons are filed within the seventy-day limitation.
BY THE COURT.
On September 20, 1934, a judgment was entered in the Court of Common Pleas in favor of the defendant in error, Katherine Lenczycki, on a general verdict. On November 28, 1934, the plaintiff in error, John Zakrzewski, filed a petition in error in this court to reverse the judgment of the Court of Common Pleas. On the petition in error was a precipe directed to the Clerk of Courts requesting the issuance of summons in error for the defendant in error. Through some inadvertence, the summons in error was not issued and delivered to the sheriff until December 1, 1934, and service thereof was made some two or three days later.
The defendant in error, without entering her appearance, files what she terms an answer to the petition in error, alleging in substance the aforesaid facts and asking that the petition in error be dismissed for the reason that the proceedings in error were not commenced within the statutory time therefor.
Considering this answer as a motion, and the evidence submitted thereon showing that the facts are as above stated, it follows that the petition in error must be dismissed at the costs of the plaintiff in error. McLarren v. Myers, Admr., 87 Ohio St. 88, 100 N.E. 121.
Petition in error dismissed.
RICHARDS, OVERMYER and LLOYD, JJ., concur.