
    Rothwell v. Winterstein.
    1. The refusal of the court of common pleas to allow a petition in error in a forcible detainer proceeding is not reviewable in the district court on a petition in error.
    2. The district court has no jurisdiction to review the judgment of a justice of the peace rendered in a forcible detainer case.
    3. A court without jurisdiction has no power to render judgment for costs.
    MotioN for leave to file a petition in error to the District Court of Butler county.
    The original action was a proceeding before a justice of the peace, by Mrs. Winterstein against Abraham Rothwell and wife, under chapter nine, title three, of Revised Statutes, for the unlawful and forcible detention of a house and lot situated in the city of Hamilton in said county. Upon the trial of the case, judgment was rendered in favor of the plaintiff and an order of restitution was issued,
    It appears from the record that Mrs. Winterstein was a married woman and the owner in her sole and separate right of the premises in controversy, but neither of these facts appeared in the complaint.
    To reverse this judgment the defendants made application to the court of common pleas of Butler county for leave to file a petition in error, and assigned for error, 1. That the plaintiff had no legal capacity to sue. 2. That the'complaint did not show that the premises in dispute were her sole and separate property, and that the justice erred in overruling a motion to dismiss the action for these reasons. 3. That the justice erred in rendering judgment against them for all the costs made in the case.
    Upon the hearing of this application the court refused leave to file a petition in error.
    Thereupon a petition in error was filed in the district court of Hamilton county by Rothwell and wife to reverse the judgment of the justice of the peace, and also to reverse the ruling and refusal of the court of common pleas in refusing leave to file a petition in error.
    
      In the district court a motion was made by Anna L. Win-terstein, defendant in error, to dismiss the petition in error therein, for want of jurisdiction. This motion the district court sustained and rendered judgment in favor of defendant in error, against the plaintiffs in error, for her costs therein taxed at $16.37.
    Leave is now sought to file a petition in error in this court to reverse the judgment of the courts below.
    
      J. G. MoKenny, for the motion.
    Morey, Andrews & Morey, contra.
   McIlvaine, J.

The action of forcible entry and detainer is special and statutory, and is regulated by chapter 9, title 3, of Revised Statutes, whereby original jurisdiction is given to justices of the peace, and section 6601 provides, “Judgments either before the justice or in the court of common pleas, under this chapter, shall not be a bar to any after action brought by either party.”

Such being the limited effect of the judgment, authority to review the same is also limited, and section 6610 provides : but in proceeding to reverse, vacate or modify the judgment or final order of the justice made in such cases, a petition in error can be filed in the court of common pleas only by leave of said court,” etc. A refusal by the court of common pleas to allow a petition in error to be filed in said court, is not reviewable on error such refusal not being a judgment in a case pending in said court.

And in Carroll v. O'Conner, 25 Ohio St. 617, it was held that an application is not authorized to be made to the supreme court to reverse directly the proceedings of a justice in forcible entry and detention, or of forcible detention only, notwithstanding leave to file a petition in error in the common pleas may have been refused. The same rule applies to the district court, hence the district court in the case before us was without jurisdiction to review either, the refusal of the court of common pleas to allow a petition in error, or the judgment of the justice of the peace, and, being without jurisdiction, its judgment in favor of the defendant-in error for costs was erroneus.

For this reason the motion for leave to file a petition in error in this court is granted, and, all the judges concurrings the judgment of the district court as to costs is reversed.

Motion granted and judgment reversed.  