
    KAPTUR v KAPTUR et
    Ohio Appeals, 6th Dist, Lucas Co
    No 2997.
    Decided Dec 17, 1934
    Mrs. Eva Eppstein Shaw, Toledo, for plaintiff in error.
    Frazier Reams, Prosecuting Attorney, Toledo, and Paul W. Alexander, Assistant Prosecuting Attorney, Toledo, for defendant in error.
   OPINION

By LLOYD, J.

Her petition seems to state varying causes of action, with the propriety of which, however, we are not concerned. The only question confronting this court is whether the petition states a cause of action against Kinne, the justice of the peace.

If the allegations of the petition are true, then the affidavit in question clearly contained no charge of the commission of a criminal offense by any one. For all that it shows, the Dorr Street premises, as well as the property alleged to have been taken by her, may both have been her property and by the testimony taken at the hearing before Kinne, he was advised of all the facts and was bound to know that no crime had been committed by Mrs. Kaptur. On the alleged state of facts kinne had no authority to issue a warrant of arrest or to bind Mrs. Kaptur over to the grand' jury.

Truesdell v Combs, 33 Oh St, 186;

Truman v Walton, 59 Oh St, 517;

Brinkman v Drolesbaugh, 97 Oh St, 171, 180.

In Brown v State, 18 C.C., N.S., 198, at page 199, it is said:

“Justices of the peace have but limited jurisdiction, which is, not presumed but must affirmatively appear and can arise only on compliance with the conditions by law prescribed. And a warrant issued and proceedings had, in any case before a justice upon an affidavit which, if all true, alleges no offense, are without jurisdiction, unless, indeed, the defect is capable of being supplied by amendment, in such manner as to relate back and cure such want of jurisdiction.”

In view of the foregoing authorities we have no choice but to reverse the judgment of the Court of Common Pleas and remand the cause to that court with directions to overrule the demurrer and for further proceedings according to law.

Reversed and remanded.

OVERMYlER, J, concurs.

RICHARDS, J, not participating.  