
    KEMP, Plaintiff-Appellant, v FOSTER, ET, Defendants-Appellees.
    Ohio Appeals, Second District, Greene County.
    No. 500.
    Decided October 22nd, 1947.
    
      Harold E. Smock, Dayton, for plaintiff-appellant.
    Smith & Smith, Xenia, for defendants-appellees.
   OPINION

By THE COURT

This is an appeal on questions of law from an order by the Common Pleas Court of Greene County, Ohio, refusing the appellant leave to file error proceedings therein. The action arose in the court of the Justice of Peace of Bath Township, Greene County, Ohio, and was one in forcible entry and detainer. A jury trial was had and a verdict was returned in favor of the defendant and a judgment duly issued upon the verdict. This application was filed under §10459 GC which requires that in proceedings to reverse, vacate or modify a judgment or final order in actions of forcible entry and detainer, an appeal on questions of law may be filed in the Common Pleas Court only by leave of such court or a judge thereof or the judge of the Probate Court when the Judge of the Common Pleas Court is absent from the county. The error assigned is that the Common Pleas Court erred in not granting •leave to the appellant to prosecute error in the Common Pleas Court and that the Common Pleas Court erred in not vacating and reversing the judgment of the trial court.

We have been referred by counsel for the appellee to the case of Rothwell v Winterstein, 42 Oh St 249, which we think is controlling in this case., It was there held that the refusal of the Conuhon Pleas Court to allow a petition in error in a forcible detainer proceeding is not reviewable in the District Court for the reason that such refusal is not a judgment in a case pending in the Court of Common Pleas. See also 19 O. Jur. p. 196.

Since we have no jurisdiction to entertain this appeal the same is ordered dismissed and the case is ordered remanded for further proceedings according to law.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.  