
    STEBBINS v COMER
    Ohio Common Pleas, Montgomery Co
    No 74985.
    Decided May 9, 1933
    William S. Rhotehamel, Dayton, for motion.
    Earl C. Null, Dayton, contra.
   WHITE, J.

This case comes before the court on the motion of the defendant which was filed in this court April 24, 1933 and taken by the court as submitted at the call of the motion docket May 6, 1933.

The motion is to strike the plaintiff’s petition from the files herein for the three reasons contained in the motion. The facts in the ease as gathered from the file marks and memorandum of counsel, seem to be that the plaintiff brought his action in the Court of the Justice of the Peace, and judgment was rendered in behalf of the plaintiff and against the defendant by the justice. Defendant thereupon gave notice of appeal and perfected his appeal on September 16, 1932.

It appears that the plaintiff, Earl Stebbins, did not file his petition on appeal until April 13, 1933. An examination of the file reveals the fact that the defendant filed his answer February 6, .1933, under and by virtue of §10392 GC. On March 2, 1933, this court ordered plaintiff to file his reply to the answer of the defendant within one week. Nothing further was done and on April 7, 1933, an entry was filed by order of the court. An opportunity was given plaintiff to file his reply on or before the 15th of April, 1933. No reply was filed, but on April 13, 1933, the petition of the plaintiff was filed herein. It is the claim of the defendant that the petition for these reasons should be stricken from the files. The proceedings is one on appeal from the Court of the Justice of the Peace to this court. The proceedings is regulated by statute. The court has no power to extend the time for perfecting the appeal or filing pleadings in the case.

Sec 10398 GC provides that:

“The rule day for filing the petition in the Court of Common Pleas, in a case appealed there from a Justice of the Peace, shall be the third Saturday after the expiration of the time limited for filing the transcript; and subsequent pleadings shall be filed within such times thereafter as is provided for the filing thereof in cases commenced in that court after the return day of the summons.”

If this petition was not filed within that time, and as this court has no power to extend the time, the motion to strike the petition from the files is sustained.

An entry may be prepared accordingly.  