
    Moore v. Boyer
    1. Where an award of arbitrators is filed in the court of common pleas, exceptions thereto overruled, and judgment upon the award under Rev. Stat. §§ 5608, 5612, the case is not appealable to the district court under Rev. Stats. § 5226.
    2. While a court reversing a judgment for the reason that the court below had no jurisdiction, must render judgment for costs on error, a court dismissing a cause for want of jurisdiction has no power to render such judgment for costs.
    MotioN for leave to file a petition in error to reverse the judgment of the District Court of Muskingum county.
    Boyer claimed there was an indebtedness to him from Moore for services rendered from 1872 to 1879, and for money received' by Moore from the sale of lands. The parties being unable to agree .as to the state of their accounts, entered into bonds, on October 13, 1881, for the submission of the matters in controversy to the arbitrament of persons therein named. On November 3,1881, the arbitrators made their award, finding due from Moore to Boyer $809.51, and costs. This award was filed in the court of common pleas of Muskingum county, on January 7, 1882, as authorized by the terms of the bonds, and at the second term (May, 1882), Moore having excepted to the award on the various grounds specified in the statute for which an award may be set aside, the court overruled the exceptions and rendered judgment against Moore for the amount of the award. Moore appealed to the district court, which court, at the September term, 1882, dismissed the appeal for want of jurisdiction, and now he moves this court for leave to file a petition in error to reverse the order dismissing the appeal.
    
      T. J. Taylor and E. E. Evans, for the motion.
    
      W. M. Townsend, contra.
   By the Court.

Arbitration is a special proceeding ” under Rev. Stats, vol. 2, pp. 1179, 1181; but that is not decisive of the question whether a judgment upon an award is ap-pealable. Where the award is filed in the court of common pleas, exceptions thereto are overruled, and judgment is rendered in pursuance of Rev. Stats. §§ 5608-5612, the case is not appealable under Rev. Stats. § 5226, that section only authorizing an appeal in a “ civil action.” Whether an appeal would lie where the award is set aside under Rev. Stats. §5611, and an issue is made by the pleadings which the parties are not entitled to have tried by a jury, and judgment is rendered by the court on such issue — queere.

The judgment for costs on dismissing the appeal was erroneous. While a court reversing a judgment for the reason that the court below had no jurisdiction, must render judgment for costs on error (Burke v. Jackson, 22 Ohio St. 268), a court dismissing a cause for want of jurisdiction has no power to render such judgment for costs. Norton v. McLeary, 8 Ohio St. 205.

Leave granted to file petition in error, judgment reversed , as to costs in the district court and affirmed in all other respects.  