
    CONFLICT OF JURISDICTION — ERROR—NEW TRIAL.
    [Miami (2nd) Circuit Court,
    April 5, 1904.]
    Sullivan, Wilson and Dustin, JJ.
    Willliam Oberer v. State of Ohio.
    1. Revised Statutes 6454 (Last. 10031) Giving Probate Court Jurisdiction Concurrent with Common Pleas in Certain Counties, Constitutional.
    Revised Statutes 6454 (Dan. 10031) giving jurisdiction to the probate court in certain counties concurrent witb that of the common pleas court, is not unconstitutional as special legislation, and a conviction and judgment under the Beal law in the probate court will be sustained.
    
      2. Appeal Lies to Common Pleas Court from Probate Court in Counties Affected by Rev. Stat. 6454 (Lan. 10031).
    Appeal lies to the common pleas court from the probate court on a conviction under the Beal law in counties where the probate court has concurrent jurisdiction in certain cases with the common pleas. The appeal need not be prosecuted directly to the circuit court.
    3. Absence op Stenographer in Probate Court in Criminal Trial not Reversible Error unless Form allí Objected to at the Time.
    In a criminal trial before a probate court where defendant simply protests at the absence of a stenographer but does not make demand for one, nor ask a continuance on account of said absence, nor take exception to being forced to trial under the circumstances, he is not prejudiced.
    •4. Motion for New Trial — Holiday Counts as One op the Three Days unless the Last.
    In the three days allowed for filing a motion for a new trial, a holiday counts unless it is the last day.
    5. No Indictment Necessary in Probate Court under Rev. Stat. 6454 (Lan. 10032) and Affidavit before Magistrate is Effective Throughout.
    An indictment is not necessary in the probate court under Rev. Stat. 6454 (Lan. 10032) and the information need not be sworn to as the affidavit before the magistrate on the preliminary hearing is effective throughout the proceedings.
    <5. That tiie Place was “not a Drug Store” Sufficiently States the Exception under the Statute for Keeping Open on Sunday — Information Containing Two Charges, Sufficient nr One Properly Stated Although the Other is wot.
    An information charging two offenses in violation of Rev. Stat. 4364-20 (Lan. 7259), one keeping a place open on Sunday, the other selling intoxicating liquor on Sunday, is sufficient as to the former charge if it states that the place was “not a drug store,” and this will sustain a conviction under that charge of the information although the exception as to selling, viz., that the accused was “not a regular druggist,” is not properly stated. The latter charge becomes mere surplusage.
    7. Under Rev. Stat. 7327 (Lan. 11082) Probate Court may Commit until Fine and Costs are Paid.
    Revised Statutes 7327 (Lan. 11082) authorizes a commitment by the probate court until fine and costs are paid, but any possible objection thereto is waived by payment.
    [Syllabus approved by the court.]
    ErROr to Miami common pleas court.
    R. J. Smith, for plaintiff in error.
    A. B. Campbell and W. H. Gilbert, for defendant in error.
   DUSTIN, J.

Plaintiff in error was tried before tbe probate court for keeping open a saloon on Sunday, in violation of Rev. Stat. 4364-20 (Lan. 7259), known as tbe Beal law. He was found guilty and fined $100 and costs, which amount was paid for him by bis attorney, who forthwith prosecuted error to the common pleas court. The ■ common pleas court affirmed the judgment of the probate court, and the case is here on pro-eeeding in error to reverse the judgment of the common pleas. The points relied upon are:

First. That the law giving jurisdiction to the probate court of Miami county (Rev. Stat. 6454; Lan. 10031), is unconstitutional because special legislation and in violation of Sec. 26, Art. 2 of the constitution-of Ohio..

This point, we think, is not well taken, because See. 8, Art. 4 of the constitution, provides that)

“The probate court shall have jurisdiction in probate and testamentary matters * * * and such other jurisdiction in any county or counties, as may be provided by law.”

Within the limits of this authority, the legislature has conferred upon the probate court in certain counties, including Miami, “concurrent jurisdiction with the court of common pleas in all misdemeanors and all proceedings to prevent crime.” The offense here charged is certainly a misdemeanor.

But it is urged that even if the probate court has jurisdiction it is concurrent with the common pleas, and the common pleas therefore has no appellate jurisdiction, because “courts have no power to interfere with the judgment and decrees of other courts of concurrent jurisdiction,” arguing that error must, therefore, be prosecuted directly to the circuit court, which would give the circuit court of this county jurisdiction different from that conferred in other counties. N

This point is not-well taken because, while it is true that of courts having concurrent jurisdiction, the one first obtaining jurisdiction of the parties retains it without interference by the other, yet the rank of courts and the right of appeal is regulated by statute, and Rev. Stat. 6708 (Lan. 10298), gives the common pleas court the right to review the action of the probate court. It would hardly be contended that because a magistrate’s court and the common pleas have concurrent jurisdiction in certain cases involving not more than $300, the judgment of said magistrate could not, in such eases,, be reviewed in the common pleas.

Again, it is claimed that the plaintiff in error was fefused the services of a stenographer in the trial before the probate court, which deprived him of obtaining an accurate record of the proceedings and the means of prosecuting error thereon. The affidavit offered with reference to that matter is contradicted by the bill of exceptions, but taking the affidavit of plaintiff’s attorney, as though uncontradicted,'a'case oi prejudicial error is not made out, because it appears that- an inquiry only was made as to whether a stenographer would be present. There was no demand made for a stenographer, and no continuance asked on account of his or her absence, and no exceptions taken to being forced to trial under such circumstances. Plaintiff simply submitted, with a protest, to the situation and proceeded to trial. '

Strictly speaking, however, we cannot consider this matter before-us. The motion for a new trial was not filed in time. The trial was on November 24, 1903. The motion for a new trial was filed November 28. An affidavit was filed by defendant’s attorney setting up that the twenty-sixth was a national holiday, and that on the twenty-seventh he was engaged in another trial, and on account of illness in affiant’s family he-was prevented from filing the motion. This is not- a sufficient excuse. A holiday counts unless it is the last day, and the excuse does not apply to all three days allowed by the statute.

Another error claimed is, that no indictment was returned, and the-information was not sworn to. Indictment is not necessary under Rev. Stat. 6455 (Lan. 10032), and there is no requirement that the information be sworn to. Of course in original proceedings in criminal matters (other than by indictment) there must be an affidavit upon which to-found a warrant. And that was the case here. In the preliminary proceedings before the mayor’s court there was an affidavit, and that was-sufficient to carry the matter all the way through.

Again, it is urged that the information was insufficient to charge the offense defined in Rev. Stat. 4364-20 (Lan. 7259), because it does not properly negative the exception and set forth that the accused was “not a regular druggist.” That exception applies only to the clause with reference to the sale of intoxicating liquors, and not to the offense of beeping open on Sunday a place where intoxicating liquors are usually sold. Thq information contains matters with reference to two charges, one of keeping open a place, etc., and the other of selling, etc. The first, charge is sufficiently stated because it negatives the exception by stating that the said room was “not a drug store.” The second charge does-not state that the accused is not a regular druggist, and is defective. The latter charge, therefore, being insufficient, may be considered as-surplusage, and the accused is deemed to have been convicted of the offense properly charged.

Lastly, it is claimed that the judgment of the probate court is erroneous in that it provides for the commitment of the plaintiff in error to jail until fine and costs are paid. Revised Statutes 7327 (Lan. 11082), authorizes such a sentence, but if not, it was waived by payment.

The judgment, therefore, of the common pleas court will be affirmed.

Sullivan and Wilson, JJ., concur.  