
    Kaptur v. Kaptur et al.
    (Decided December 17, 1934.)
    
      Mrs. Eva Epstein Shaw, for plaintiff in error.
    
      Mr. Frazier Reams, prosecuting attorney, and Mr. Paul W. Alexander, for defendant in error, Isaac B. Kinne.
   Lloyb, J.

In the petition filed by Sophia E. Kaptur in the Court of Common Pleas of Lucas county on July 12, 1934, against Stephen Kaptur and Isaac B. Kinne, she alleged in substance that at the times mentioned in the petition she resided with her husband and five children at 3023 Dorr street, Adams township, Lucas county, Ohio; that Stephen Kaptur, defendant in error, was her brother-in-law and Isaac B. Kinne was a justice of the peace; that on June 15, 1934, Stephen Kaptur, by affidavit filed with Kinne, charged:

“That she had broken into, wilfully, unlawfully and maliciously the premises at 3023 Dorr street, Toledo, Ohio, and taken valuable papers, keys and a gun valued at $100.00”, and that Kinne knew that 3023 Dorr street was her home and that the personal property referred to in the affidavit was the property of her husband, and that with this knowledge Kinne issued a warrant for her arrest, charging her with the alleged breaking into the premises and taking the property described in the affidavit.

The petition further charged that on the evening of the same day Mrs. Kaptur, in the custody of two deputy sheriffs, was taken to Kinne’s office, where a hearing was had, the undisputed evidence there produced being that 3023 Dorr street was her home, and that all of the property referred to in the affidavit was the property of her husband; that thereupon she was, by Kinne, at the instigation of Kaptur, bound over to the grand jury of Lucas county under a bond of $300, and was imprisoned in the county jail for three days and two nights, until released, the grand jury thereafter returning no indictment against her. The foregoing statement is not the literal language of the allegations contained in the petition, but, liberally construed, is in effect what is therein sought to be alleged. She pleads special as well as general damages and asks for a judgment against both Kinne and Stephen Kaptur.

Kinne filed a general demurrer to the petition, which was sustained by the Court of Common Pleas, followed by dismissal of the petition. Mrs. Kaptur wants this judgment reversed.

Her petition seems to state several varying causes of action, with the propriety of which, however, we are not concerned. The only question confronting this court is whether the petition states a cause of action against Kinne, the justice of the peace.

If the allegations of the petition are true then the affidavit in question clearly contained no charge of the commission of a criminal offense by any one. For all that it shows, the Dorr street premises, as well as the property alleged to have been taken by her, may both have been her property, and by the testimony taken at the hearing before Kinne he was advised of all the facts and was bound to know that no crime had been committed by Mrs. Kaptur. On the alleged state of facts Kinne had no authority to issue a warrant of arrest or to bind Mrs. Kaptur over to the grand jury. Truesdell v. Combs, 33 Ohio St., 186; Truman v. Walton, 59 Ohio St., 517, 53 N. E., 57; Brinkman v. Drolesbaugh, 97 Ohio St., 171, 180, 119 N. E., 451, L. R. A., 1918F, 1132.

In Brown v. State, 18 C. C. (N. S.), 198, at page 199, 32 C. D., 685, it is said:

“Justices of the peace have but limited jurisdiction, which is not presumed but must affirmatively appear, and can arise only on compliance with the conditions by law prescribed. And a warrant issued and proceedings had, in any case before a justice, upon an affidavit which, if all true, alleges no offense, are without jurisdiction, unless, indeed, the defect is capable of being supplied by amendment, in such manner as to relate back and cure such want of jurisdiction. ’ ’

In view of the foregoing authorities we have no choice but to reverse the judgment of the Court- of Common Pleas and remand the cause to that court with directions to overrule the demurrer and for further proceedings according to law.

Judgment reversed and 'cause remanded.

Overmyer, J., concurs.

Richards, J., not participating.  