
    The Cleveland and Mahoning Valley Railway et al. v. Wick.
    1. The limitation for filing petitions in error, prescribed in section 12 of the-Act of April 23, 1872 (69 Ohio L. 88), applies as well to proceedings instituted by the land-owner under section 21 of the act as to proceedings instituted by the corporation.
    2. The proceedings in the probate court under said act can be reviewed by the court of common pleas, only when the petition in error is filed within thirty days from the rendition of the final judgment in the probate court. Railroad Co. v. Hopkins, 19 Ohio St. 279, approved and followed.
    3. Whether a petition in error was filed in time or not is to be determined! from the record ;* and no plea is required setting up the lapse of time as-a bar to the proceeding.
    4. On error, the record under review can not be contradicted. If it is incorrect, application should be made to the court whose record it is for its correction, and when the correction has been made the corrected record should be brought before the reviewing court, by proper proceedings, before the case in error is determined,
    fi. Under said act, the court of common pleas, on petition in error to reverse the judgment of the probate court, is not authorized, on affirming the judgment, to render a judgment in personam against the corporation for the amount adjudged against it in the probate court.
    Error to the Court of Common Pleas of Mahoning ■county, reserved in the district court.
    The original proceeding was instituted by Henry Wick, in the Probate Court of Mahoning county, against the Cleveland and Mahoning Yalley Railway Company and the Atlantic and Great Western Railroad Company, under ■section 21 of the act. of April 28, 1872, prescribing the mode of assessment aud collection of compensation to the owners of private property appropriated by and to the use of corporations. 69 Ohio L. 88.
    The plaintiffs in error having failed to institute proceedings, the defendant in error, Wick, on the 3d day of March, 1873, filed his petition in the probate court, in ac■cordanee with the provisions of said section.
    On the 29th day of July, 1873, the cause was submitted to the jury, and a verdict returned. Thereupon the defendants filed a motion for a new trial, specifying the grounds upon which the new trial was asked. The record then proceeds as follows :
    “ Which motion is overruled by the court, and the court having carefully examined said proceedings and verdict, and finding them in all respects legal and correct, do approve and confirm the same; it is therefore ordered, adjudged, and decreed by the court, that said defendants pay into court, within thirty days from the date hereof, for the use of said Henry Wick, said sum of seven thousand dollars, the amount of such verdict, and also that they pay the costs of this proceeding, to be taxed.
    “And that upon such payment within the time herein prescribed, they hold said property and premises for the purposes for which the same are sought to be appropriated by this proceeding, and that upon failure on the part of said defendants to pay said sum within the time herein prescribed, that execution issue to collect the same as upon judgments at law.
    “ To all of which findings, verdict, confirmation, judgment, and rulings of the court thereon, said defendants by counsel except, and ask the court to sign and seal a bill of exceptions, which is accordingly done in open court. And thereupon, on the 29th day of July, in the year aforesaid, .said defendants filed their bill of exceptions herein, which said bill of exceptions follow in these words and figures, to wit-:” ...
    The transcript of the proceedings in the cause in the probate court was duly authenticated by the probate judge, and was filed by the plaintiffs in error with the petition in error, in the court of common pleas, as an authenticated transcript of the record of the proceeding in the •cause upon which the judgment was sought to be reversed.
    A petition in error was filed in the court of common ■pleas to reverse the judgment of the probate court. The transcript of the proceedings had in the court of common pleas, shows that the petition in error was filed in that •court on the 24th day of September, 1873, and that the cause was continued until the January term, 1876, when the following judgment was rendered:
    “ This cause came on for hearing on the petition of plaintiff, and the record of proceedings and judgment of the probate court attached and error assigned and was argued by counsel, on consideration whereof the court are of opinion aud find that, in said proceedings of the probate court, there is no. error as alleged, and hereby confirm rsaid judgment and proceedings of the probate court. And the court order and adjudge that said plaintiffs pay said •defendant Wick, the amount found and adjudged in his favor by said probate court, to wit: the sum of seven thou.sand dollars, with interest from August 29, 1873, and that the above plaintiffs pay the costs of this proceeding to be taxed.”
    The present petition in error was filed by the plaintiffs in «error in the district court to reverse the judgment of the court of common pleas. With this petition in error was filed an authenticated transcript of the proceedings in the court, of common pleas, showing the foregoing facts: and also the-transcript of the proceedings in the prohate court.
    In the district court the case was reserved for decision by this court.
    
      S. Burke, for plaintiffs in error.
    
      F. F. Hutchins, for defendant in error.
   White, J.

The first question arising on this case is,, whether the petition in error to reverse the judgment of the probate court was filed in the court of common pleas within the time limited by the statute.

The proceedings were had under the act of April 23, 1872. 69 Ohio L. 88. Section 12 of the act is a follows: “ All proceedings herein provided for in the probate court, shall be open to exceptions, in the same manner that exceptions are or may be taken in civil suits in the court of common pleas; and either party may file their petition in error in the court of common pleas of the proper county, within thirty days from the rendition of the final judg-. ment in the probate court, and thereupon the proceedings-in error shall be proceeded in, in all respects, as is now provided by law in like cases.” . . .

It appears, from the transcript of the record of the probate court, filed with the petition in error in the court of common pleas, that the final judgment was rendered in the probate court on July 29, 1873; and from the transcript of the proceedings in error, in the court of common pleas,, it appears that the petition in error was not filed until the 24th day of September following, being more than thirty days after the rendition of the judgment.

The right to file a petition in error, to review the action of the probate court in the class of cases provided for in the act, is not derived from the code of civil procedure, but from the 12th section of the act already quoted; and, in giving the right, the section prescribes the time within which it may be exercised, namely, “ within thirty days-from the rendition of the final judgment.”

This question was determined in the case of The Little Miami Railroad Co. v. Hopkins, 19 Ohio St. 279. That case arose under the act of April 6, 1865 (S. & S. 114), supplementary to the act providing for compensation to the owners of private property appropriated to corporations,, passed April 30, 1852. S. & C. 311.

The supplementary act of April 6, 1865, in so far as relates to the present question, is the same as section 21 of the act of April 23, 1872, under which the proceedings in .this case were had in the probate court. The limitation found applicable in that case was the limitation of fifteen days, prescribed in section 9 of the original act; and it was held that the proceedings in the probate court, in cases under the statute like the present, can be reviewed by the-court of common pleas only when the petition in error is filed for that purpose within fifteen days from the rendition of the judgment in the probate court.

No distinction can be made between the operation of section 9 of the original act, under consideration in that case, and section 12 of the act of April 23, 1872, except that by the last-named section the time for filing a petition in error is extended to thirty days.

It is claimed, on behalf of the plaintiffs in error, that as-the objection that the petition in error was not filed in time, is not set up by plea, it can not be made available on the record before us. This claim is founded in a misconception of the nature of the objection. The authority of a court to review, on error, the judgments of an inferior court, is derived solely from the statute, and the time prescribed for the exercise of the power operates as a qualification or limitation of the power itself, and it can only be exercised within the time prescribed. It was upon this ground that the case of the Little Miami, Railroad Co. v. Hopkins, supra, was decided. There was no plea in that case setting up the lapse of time, as a bar to the prosecution of the petition in error; but the objection was sustained solely on the ground that it appeared, from the record, that the prescribed time, after the rendition of the judgment, had elapsed before the filing of the petition in error. The decision in the case of the Schooner Marinda v. Dowlin, 4 Ohio St. 500, was made upon the same ground; and this case was followed in Tibbitts v. Stearns, decided at the December term, 1878, a case not reported. The last two cases were stricken from the docket on motion.

The position taken by the plaintiffs in error is sought to be supported by Robinson v. Orr, 16 Ohio St. 285, and by Railway Co. v. Mara, 26 Ohio St. 185. But neither of these cases is applicable to the present question. In both the. cases, the petitions in error were filed in time. The question in each case was whether the appearance of the defendant in error had been effected. It was found in the first case that it had not been, and the petition was dismissed. In the second case, it was found that the defendant had voluntarily appeared and answered to the merits, and that such an appearance, by relation, had the same effect as if a summons had been duly issued and served. '

The claim asserted by the plaintiffs in error that whether the petition in error was filed in the court of common pleas within thirty days from the rendition of the judgment in the probate court, is a question of fact which may, on error, be put in issue and tried ujaon testimony, is without foundation.

■ In proceedings iu error the record must speak for itself, and it can not be contradicted. If it is incorrect, the proper course is to apply to the court, whose record it is, for the proper correction, and when the correction has been made, to bring the corrected record before the reviewing court, by the proper proceeding, before the case in error is determined.

In the case of the Little Miami Railroad Co. v. Hopkins, supra, the court held that the judgment of the court of common pleas, affirming the judgment of the probate court, was nugatory, and did not prejudice the plaintiff in error; and the petition in error was dismissed.

In the present case, a judgment in personam was rendered in the common pleas against the plaintiffs in error, for the amount of the verdict with interest, and for the-costs. On this judgment execution may be issued ; and we can not, therefore, say that the plaintiffs in error may not be prejudiced thereby, although the judgment may be unauthorized and void. The judgment of the court of common pleas will, therefore, be reversed, and the cause remanded to that court for dismissal; or, in case of the suggestion of a diminution-of the record, for such further proceedings as may be authorized by law.  