
    No. 335
    COLONIAL-TAYLOR IMP. CO v. BARNETTet
    No. 19003
    Supreme Court
    Motion to direct Cuyahoga Appeals to certify. Dock.
    March 7, 1925,
    3 Abs. 162.
    997. REAL ESTATE—1. Is forcible entry and detainer an “action to recover real property”, within meaning of 1579 GC, par. 10, sub-sec. 6?
    2. Did the municipal court have jurisdiction of the action?
    Attorneys—James Metzenbaum and Edward E. Lurie, for Improvement Co.; Ulmer & Berne, for Barnett; all of Cleveland
   The Colonial-Taylor Improvement Co. brought a forcible entry and detainer action, in the Municipal Court of Cleveland, designed to recover the possession of certain real estate owned by it Harry Barnett and Joseph Harris were in possession of the premises. After filing this action in the Municipal Court, Barnett filed a petition in the Cuyahoga Common Pleas, asking that the Improvement Co. be enjoined from prosecuting its action, because he had certain equitable defences which the Municipal Court did not have jurisdiction to entertain. The Common Pleas granted a restraining order, holding the action in forcible entry and detainer.

The Improvement Co. filed a demurrer on the grounds that the Common Pleas did not have jurisdiction of the subject matter of the action, and that Barnett’s petition did not set forth a cause of action in equity.

The demurrer was overruled, and the company not desiring to plead farther, judgment was rendered for Barnett and the restraining order was made permanent. Error proceedings were instituted and perfected and the Court of Appeals, in affirming the judgment of the Common Pleas held:

That actions for recovery of real property do not include forcible entry and detainer; on the theory that forcible entry and detainer actions are summary proceedings and not “actions for the recovery of real property within the purview of the statute.”

The Improvement Co. have filed the case in the Supreme Court and contends that forcible entry and detainer is not a summary proceeding, merely because the relief given is usually prompt; the promptness of the relief cannot change the character of the action.  