
    Nichols v. The State of Ohio.
    
      Prosecuting attorney may waive issuance of summons — And enter appearance of state, when — Criminal law — Petition in error.
    
    A prosecuting attorney may effectively waive the issuance and service of summons in error and enter the appearance of the state by a proper endorsement for that purpose upon a petition in error filed for the reversal of a conviction for crime or misdemeanor.
    (No. 8687
    Decided January 17, 1905.)
    Error to the Circuit Court of Wyandot county.
    Nichols was tried, convictecl and sentenced for. a misdemeanor in the mayor’s court of the village of Nevada. He prosecuted error upon the record in the court of common pleas. No summons was issued, but by endorsement upon the petition in error signed by the prosecuting attorney in his official character, issuance and service of summons were waived and the appearance of the State as defendant in error was entered. In the court of common pleas the cause was heard without objection on account of the manner in which the appearance of the State as a party had been effected, and the judgment was affirmed.
    Nichols then prosecuted error to the circuit court. That court being of the opinion .that the prosecuting attorney was without authority to waive summons in error and to enter the appearance of the State, and that the court of common pleas was, therefore, without jurisdiction to render a judgment on the merits of the case, reversed the judgment which the court of common pleas had rendered and dismissed the petition in error which had been filed in that court.
    
      Messrs. Finley & Gallinger, attorneys for plaintiff in error.
    The object of a summons in error is to notify the prosecuting attorney for the state of Ohio, of the proceeding in error to the end that he may defend the State of Ohio, and if he waives service upon him, and enters his appearance for the State, and appears and defends the State, how can he be heard to say afterward, in another court, that the court below to which he submitted the case (without objection as to jurisdiction), had no jurisdiction because notice was not served on him, notwithstanding his written waiver of such notice?
    The prosecuting attorney has waived summons in error and entered his appearance in this court the same as he did in common pleas court. Can it be said that this court cannot review the judgment of the circuit court because of the want of service of a summons in error on the prosecuting attorney? This court has settled that question. King v. Penn, 43 Ohio St., 57; Railway Co. v. Marra, 26 Ohio St., 185; Bowen v. Bowen, 36 Ohio St., 315; secs. 6713 and 6714, Rev. Stat.
    Section 7304 provides for the taking-of a bill of exceptions, the same as in civil cases, and section 7306a gives authority to the circuit court to reverse a conviction, of any crime or misdemeanor, but makes no provision how the case is to get into the circuit court.
    Section 7356 provides that in any criminal case including a conviction for a violation of an ordinance, etc., may be reviewed on error by the common pleas court.
    Section 7357 provides for the furnishing of a transcript.
    Section 7358 provides for the filing of a petition in error, and section 7359 provides for the issue and service of a summons, to be served on the prosecuting attorney, so that it will appear that substantially, proceedings in error in criminal cases are the same as in civil cases.
    If the statute in proceedings in criminal cases differs from' that of civil cases, which we contend it does not, we claim nevertheless that the state of Ohio, if it is willing,, by its prosecuting attorney to enter its appearance as a party defendant in error, and save the useless formality of having the prosecutor served with a summons, it can do so, and that having done so and having furthermore appeared in common pleas court and argued and submitted the case, without objection to jurisdiction, and furthermore appeared in circuit court and argued and submitted the case, without objection to jurisdiction, that it is estopped to now raise the question that it was not served with a summons, and we maintain that we are supported in this contention by the following cases: Hammond v. Hammond, 21 Ohio St., 620; Fee v. Big Band Iron Co., 13 Ohio St., 563; Evans v. Iles, 7 Ohio St., 234; Railway v. Wick, 35 Ohio St., 252.
    
      In this connection note that the journal record in both courts shows that the defendant in error by its attorney appeared and argued the case and submitted it to the court without objecting to jurisdiction, especially it did so in common pleas court. We say that by appearing and submitting the case to the common pleas court it waived all question as to the jurisdiction of the common pleas court to hear and determine the case.
    We contend further that if the decision of the common pleas court was erroneous for want of jurisdiction, it was an absolute nullity and that error to the circuit court would in like manner be a nullity and would not confer jurisdiction upon the circuit court, and that therefore the circuit court, if that were true, was without jurisdiction in the premises, yet it took jurisdiction and decided that the common pleas court had no jurisdiction, and rendered judgment for costs against plaintiff in error.
    Defendant in error submitted no brief.
   Shauck, J.

By the judgment of the circuit court the summons appears to be unduly exalted and its function perverted. It is but a warning to the defendant to appear on the date named, the result of his failure to appear being that the court will proceed in the determination of his rights as though he were actually present. It is in no proper sense a writ to coerce his actual appearance. It is not an exercise of the jurisdiction of the court, but -a notification preliminary to its exercise. Although the issuance of the summons may be required by statute it is not necessary if it appears from the record that the purpose of notification, which the summons is ¡intended to accomplish, is effected otherwise. This appears in all the numerous cases in which it has been held that although no summons has been issued the court has jurisdiction of the persons of all who according to the record have appeared and contested the merits of the case. Since it appears from the record in the present case that the issuance and service of summons were waived by the officer who is expressly authorized to receive service of summons, every consideration of reason appears to be satisfied.

It is true that section 7359 of the Revised Statutes, which relates to proceedings in error in criminal cases, provides for the issuance of a summons in error upon the filing of the petition in error and a precipe. But the terms of the section show that, like the summons in an original action or the summons in error in a civil proceeding, it has no purpose beyond that which the endorsement of the prosecuting attorney shows to have been accomplished in the present case. The analogy between the provisions relating to the institution of proceedings in error and those relating to the institution of an original action are top familiar to the bar of the state to call for discussion. When the proper relations of means to ends are observed it seems quite clear that the court of common pleas had jurisdiction to affirm or reverse the judgment below. ' The circuit court having erroneously concluded that the court of common pleas was without jurisdiction, and having itself for that reason failed to consider the merits of the case, its judgment will be reversed and the case will be remanded to that court for further proceedings..

Spear, C. J., Davis, Price, Crew and Summers3 JJ., concur.  