
    (Second Circuit — Franklin County, O., Circuit Court —
    Jan. Term, 1895.)
    Before Stewart, Shauck: and Shearer, JJ.
    Gabriel Mone v. James W. Pope.
    Although a notice to q'uit premises may be served while the tenant is lawfully in possession, the day designated for that purpose must be at or after the expiration of the term.
    Error to the Court of Common Pleas of Franklin County.
    On the 20th of February, 1894, Pope gave notice to Mone who was his tenant, to quit the premises “on or before the 15th day of March, 1894.” On March 12, 1894, he gave him notice to quit “ within three days after the service of the notice.” On the 16th day of March he filed his complaint against him, and on the 26th day of March he recovered a verdict with an order of the justice for the possession of the premises. These proceedings were reversed in the court of common pleas on the 14th day of April, 1894.
    April 14, 1894, without serving any other notice, he filed another complaint in which he alleges that said Mone “ hath ever since the first day of April, 1894, and doth still unlawfully and forcibly detain ” from him the premises in question. On this complaint, and proof of the notice of March 12,1894, he recovered a verdict and an order for the possession of the premises. On a petition in error by Mone, the order and proceedings were affirmed by the court of common pleas. The petition is for the reversal of that judgment of affirmance.
   Shauck, J.

The provision of the statute, section 6601, is that a judgment under chapter 9, title 3, “ shall not be a bar to any after action brought by either party.” But to the bringing of such “ after action ” the provisions of section 6602 apply as to an original action, and a party desiring to bring such action must give the notice which the section provides.

It is settled in Leutzer v. Herchelrode, 20 Ohio St. 334, that during the term for which the tenant rightfully holds there may be given the notice mentioned in section 6602 to quit on or before the day named in the notice, that day being at least three days after the service of the notice, and at or after the expiration of the term,. The day designated in the notice in this case occurred while the tenant was entitled to continue, in possession under the terms of the lease. It was, therefore, a notice with which it was not his duty to comply. In the legal view it was no notice.

The statute of Nebraska is identical with ours upon this subject, and in construing it the Supreme Court of that state in Connell v. Chambers, 22 Neb. 302, say : In order to give effect to the statute * * * we must hold that the notice must, either in direct terms, or by clear and unmistakable implication, point out a day upon which the tenant is required to quit, which day must be at or after the termination of the lease.”

Samuel L. Black, for plaintiff in error.

Walter B. Page, contra.

Judgment reversed.  