
    E. L. Rice & Co. v. Pike.
    
      Error proceedings — Service of summons — Waiver in one court cannot be changed to another, when — Consent to changing waiver, necessary — Signer’s knowledge of intended use, not consent.
    
    1. A written waiver of service of summons in one court, under Section 12280, General Code, may not be changed to a waiver of such process in another court without the consent of the party waiving.
    2. The mere fact that the party obtaining such waiver, to the knowledge of the party signing the waiver, intended such waiver to apply to and be used in such other court, there being no other elements of estoppel, does not justify a finding of consent to such change.
    (Decided November 15, 1926.)
    Error: Court of Appeals for Summit county.
    On Motion'to dismiss.
    
      
      Messrs. Burch, Bacon, Denlinger & Seilcel, for plaintiff in error.
    
      Mr. Irwin D. Allen, for defendant in error.
   Washburn, J.

This is a proceeding in error, and is before the court on a motion by defendant in error to dismiss the petition in error on the ground that this court is without jurisdiction to hear and determine the case; the specific claim being that no summons in error was served upon defendant in error, and that he did not waive the issue and service of a summons and enter his appearance. The facts in reference to this matter are not in dispute, and are made known to the court by affidavits and statements of counsel. They are simply these:

A judgment was rendered against the plaintiff in error in the court below. Attorneys for plaintiff in error in due time prepared a petition in error, which was entitled “In the Court of Common Pleas.” It also contained in the caption a reference to the number of the case in common pleas court, being No. 54487.

On the bottom of the petition in error there was the following waiver, there being no new caption:

“Defendant in error hereby waives the issuance and service of summons in error in the above-entitled case, and hereby enters his appearance herein.”

The attorney for plaintiff in error presented that petition to the attorney for the defendant in error, who signed said waiver, and at that time the attorney for plaintiff in error talked about taking the case to the Court of Appeals. He left with the attorney for defendant in error a copy of said petition in error. The attorney for defendant in error noticed, either at the time he signed the paper, or a few moments later, when he looked over the copy left with him, that it purported to be a petition in error in the court of common pleas.

The attorney for plaintiff in error filed the petition in error in the court of common pleas, where it was duly docketed. A few days later, discovering his mistake, he went to the clerk’s office, and, without any permission being given by the common pleas court, withdrew the petition in error from the common pleas files, amended the same by striking-out in the caption the words “In the Court of Common Pleas,” and the number of the case, and inserting the. words “In the Court of Appeals.” On the back of the petition in error the same changes were made in the notations, except that the number was not erased, and the common pleas court filing mark was crossed out. That petition in error was then filed in the Court of Appeals. No summons was issued thereon, and the attorney for the defendant in error had no knowledge that the same was filed in the Court of Appeals until after the expiration of the time within which a petition in error could be filed, and, as soon as he learned of the fact that the petition in error had been filed in the Court of Appeals, he filed the motion which is now before the court, in which he limited his appearance for the purposes of the motion only, disclaimed any intention of entering his appearance, and asked that the petition in error be dismissed because of there being no summons in error or waiver of the same.

It should be noted that there is no basis for a claim that the defendant in error entered his appearance by the filing of any pleading, or by any proceeding taken by him in this court, and that the only waiver that can be claimed is based upon the signing of the petition in error under the circumstances hereinbefore indicated.

This is not a case where a pleading entitled in one court is filed in another court, where it was intended to be entitled and filed; it is a case of waiver and entry of appearance. The attorney signing same did not know that it had been changed and filed in the Court of Appeals until he was served with a copy of the brief of plaintiff in error, which he acknowledged receipt of, and then promptly filed this motion attacking the jurisdiction of this court.

The attorney for defendant in error did not in any way mislead attorney for plaintiff in error. Such brief of plaintiff in error was due, under the rules of this court, on March 1, 1926, and was not filed until October 27, 1926, long after the 70-day period for filing the petition in error, and we have held that acknowledging receipt of brief after such 70-day period is not an entry of appearance.

Section 12260, General Code, provides that “the defendant in error, or his attorney, may waive in writing, the issue or service of the summons.” We regard it as settled that a waiver of summons before the petition in error is filed, as is claimed in this case, must be in writing, and therefore, in the absence of facts creating an estoppel, if the attorney for the defendant in error had signed no writing there would have been no waiver, so that the determining question in this matter is as to whether or not the signing of the waiver on the petition in error entitled “In the Court of Common Pleas” was a written waiver of the issue and service of summons in the Court of Appeals.

Section 11304, General Code, provides that “every pleading must contain the name of the court” in which the action is brought. The waiver reads that the defendant in error “hereby enters his appearance herein.” Where? “In the court of common pleas. ’ ’ It was actually filed therein; it served its purported purpose. Whether by mistake or not, the defendant in error entered his appearance in the common pleas court the same as if he had been summoned therein. Of course, if he had been summoned in that court, the Court of Appeals would not have acquired jurisdiction by withdrawing the papers from the common pleas court and filing same in the Court of Appeals. The waiver, having been used to effect the appearance of the defendant in error in the common pleas court, according to the purpose expressed therein, could not thereafter, without the consent of the party waiving, be used to effect a purpose not therein expressed.

The petition in error, when presented to and signed by the attorney for the defendant in error, was not a petition in error in the Court of Appeals, and could not thereafter be changed to a petition in error in the Court of Appeals without the consent of the attorney signing the same, even though the attorney for the defendant in error did not notice at the time of signing that it was entitled “In the Court of Common Pleas.” Under the statute, the waiver must be in writing, and the writing is controlling, and cannot be changed after it is signed without the consent of the party signing the same. It was incumbent upon the attorneys for plaintiff in error to obtain such waiver as they desired, and, after their mistake was discovered, there was ample time in which to obtain the consent of the attorney for the defendant in error to a change of the waiver which was actually signed, and then, if that was not granted, to acquire jurisdiction by the issue and service of a summons. In the absence of any element of estoppel, the defendant in error could have revoked his waiver at any time before the same was filed in court, and, if the written waiver signed by him was changed in any way, he was entitled to be consulted in reference thereto.

The affidavits filed in this case disclose that although the petition in error was stamped filed in the court of common pleas and in the Court of Appeals on the same day, it was not in fact so filed. It was filed in the court of common pleas on February 23, 1926, and some time within a week thereafter the clerk permitted the change to be made, and then filed same in the Court of Appeals — not on the day it was so changed; but the .records of the court were interlined so as to show that it was filed on February 23d, and to do so it was necessary to give it a Court of Appeals number of “1149%.” This was all done without any order of any court. While these changes were made in the utmost good faith, and at a time when there was ample time in which to bring the action in the Court of Appeals, and therefore no harm was done or advantage taken of any party, we feel it our duty to suggest that the records of the court should always speak the truth, and that changes therein should only be made upon the order of the court authorizing the same.

The motion of the defendant in error is granted, and the petition in error is dismissed at the costs of plaintiff in error.

Motion to dismiss allowed.

Pardee, P. J.', and Punk, J., concur.  