
    BARANCO, Admr, Etc v McClelland, Probate Judge
    Ohio Appeals, 2nd Dist, Franklin Co
    No 2448.
    Decided Aug 1, 1934
    Howard H. Gillard, Columbus, for plaintiff in error.
    Carrington T. Marshall, Columbus, Amicus Curiae.
    MONTGOMERY, J, (5th Dist) sitting by designation. ' • "
   OPINION

By BARNES, J.

It should require no citation of authority in determining that the court, adjudicating a question before it, is not a proper party defendant on. proceedings in error.

Under such a situation there can be no cause pending anywhere.

It is true that where a court is attempting to act without jurisdiction proceedings may be brought in the nature of a writ in prohibition, but such was not the procedure in the instant case.

Under the situation, this court will sua sponte dismiss the proceedings.

We fui’ther ascertain from the file that even if the proper parties were in court the same order would be made for the reason that there was a failure to file transcript of docket and journal entries in the court below within the time prescribed by law. This was a jurisdictional defect and could not be cured by an attempted filing at a later date.

For the reasons announced, the petition in error is dismissed.

HORNBECK, PJ, and MONTGOMERY, J, concur.  