
    Critchfield v. Robinson. Critchfield v. Minier et al.
    
      Proceedings when judgment of justice reversed — Common pleas court retains case as on appeal, when — Section 6733, Revised Statutes.
    
    When the court of common pleas reverses a judgment of a justice of the peace upon a ground other than a want of jurisdiction, ■ it properly, under Section 6733, Revised Statutes, retains the case for trial as upon appeal, and until judgment is rendered upon such trial a proceeding in error in the circuit court is premature.
    (Nos. 10898-10899
    Decided May 18, 1909.)
    Error to the Circuit Court of Ottawa County.
    The defendants in error brought separate actions before a justice of the peace against the plaintiff in error to recover possession of quantities of wheat described in their bills of particulars. Critchfield interposed -an objection to the jurisdiction of the justice which was overruled. The causes proceeded to trial and Critchfield interposed objections to the competency of evidence offered by the plaintiffs and these were overruled. The trials resulted in judgments for the plaintiffs. Critchfield thereupon filed petitions in error in the court of common pleas to obtain a reversal of the judgments of the justice. In the court of common pleas those judgments were reversed for error in the admission of evidence, the common pleas court then ordering that the causes be there retained for retrial according to law. Without awaiting a retrial of the causes in the court of common pleas, the original plaintiffs filed petitions in error in the circuit court where judgments were entered reversing the judgments of-the court of common pleas and affirming those of the justice of the peace.
    
      Mr. Wade H. Ellis; Mr. W. EL Miller and Mr. Smith W. Bennett, for plaintiff in error.
    
      Mr. William Gordon, for defendants in error.
    The cases were argued orally on behalf of the plaintiff in error by Mr. Clarence D. Laylin.
    
   By the Court.

The jurisdiction in error of the circuit court is conferred by Section 6709, Revised Statutes. The section defines and limits that jurisdiction by the provision that “A judgment rendered or final order made by any court of common pleas, or a judge thereof, may be reversed, vacated or modified by the circuit court,” etc. The court of common pleas in these cases had not rendered judgements because it had not determined the rights of the parties. Nor had it made a final order in the cases. The orders which- it made did not prevent judgments but expressly retained the cases for retrial and judgment. Its action in that behalf was strictly in pursuance of the provisions of Section 6733, Revised Statutes, that “When the proceedings of a justice of the peace áre taken on error to the court of common pleas, in manner aforesaid, and the judgment of such justice is reversed or set aside, the court shall render judgment of reversal, and for the costs that have áccrued up to that time, in favor of the plaintiff in error, and award execution therefor; and the cause, except when the reversal is because the justice had no jurisdiction of the plaintiff in error, or of the subject of the action, shall be retained by the court for trial and' final judgment, as in cases of appeal.”

These provisions of the statute regard the substantial consideration, obviously overlooked by the circuit court, that a review of the judgments of reversal entered by the court of common pleas may be quite unnecessary, for its judgment upon the retrial which it ordered may be as favorable to the original plaintiffs as were those of the justice of the peace.

The judgments of the circuit court will be reversed, the petitions in error in that court will be dismissed, and the causes will be remanded to the court of common pleas for trial according to its orders.

Judgments reversed.

Crew, C. J., Summers, Spear, Davis and Spiauck, JJ., concur.  