
    No. 11794.
    Brenner, Justice of the Peace, v. The State, ex rel. Christman.
    Decided December 22, 1910.
    Error to Circuit Court of Cuyahoga county.
    
      Mr. Hermann Preusser, for plaintiff in error.
    
      Mr. M. P. Mooney, for defendant in error.
   On rehearing. Judgment reversed and petition dismissed. Grounds stated in journal entry.

This cause came on for rehearing, was argued by counsel and submitted to the court. On consideration whereof, it is ordered and adjudged by this court that the judgment of affirmance heretofore entered herein be and the same is hereby vacated and set aside. . And it is now, upon rehearing, ordered and adjudged by this court that the judgment of the circuit court be and the same hereby is reversed, for the reasons that it does not affirmatively appear by the petition for mandamus filed by relator Anton Christman in this case, that relator ever tendered to Charles Brenner, as Justice of the Peace, a sufficient statutory undertaking for appeal, as required by Section 6584, Revised Statutes, and hence said petition does not state facts sufficient to entitle relator to the relief asked, and for the further reason that it not being made to appear in this case that any sufficient undertaking for appeal was tendered to Charles Brenner, Justice of the Peace, within ten days from the time of the rendition of the judgment in the justice’s court, as required by law, the circuit court, in this case, was without authority by a mmc pro tunc entry to compel the justice by mandamus to accept and certify an undertaking for appeal after the expiration of the time within which such undertaking was required by law to be given. And this court proceeding to render the judgment which the circuit court should have rendered, it is considered and adjudged that the petition for mandamus filed by the relator Anton Christman be and the same hereby is dismissed.

Summers, C. J., Crew, Davis, Shauck and Price, JJ., concur.  