
    ERROR — PLEADING.
    [Cuyahoga (8th) Circuit Court,
    May 20, 1907.]
    Marvin and Henry, JJ.
    (Winch, J., not sitting.)
    
      R. T. Price, et al. v. John S. Hathaway.
    Petition in Error Must be Filed Within Four Months of Judgment Rendition not Overruling New Trial.
    A petition in error the parties having waived a jury and submitted their cause to the court, must he filed within four months from the rendition of the judgment and not from the overruling of the motion for a new trial.
    Error.
    
      C. L. Gates and Smith, Taft & Arter, for plaintiffs in error.
    
      James F. FJilson, for defendant in error.
    
      
       Affirmed, no op,, Price v. Hathaway, 79 O. S. 478.
    
   HENRY, J.

The petition in error in this canse was filed after the expiration of four months from the rendition of the judgment, but within four months from the overruling of -the motion for a new trial. In the trial of the action below the parties waived a jury and submitted their cause to the decision of the court. Section 5326 R. S. (Sec. 11599 G. C.) has no application, therefore, so as to postpone the rendition of the judgment until after the overruling of the motion for a new trial. That section provides, “that when a trial by a jury has been had,” this procedure is proper. Here there was no trial by jury, nor can it be said that when the right of trial by jury is waived there is anything analogous to a verdict as distinguished from a judgment to be rendered by the court. Section 5326 R. S. can not apply by analogy to the case before us. The petition in error having been filed too late is therefore dismissed for want of jurisdiction.

Marvin, J.. concurs.  