
    Meyer v. Spiess.
    
      (Decided January 22, 1934.)
    
      Messrs. Closs S Gloss, for plaintiff imerror.
    
      Mr. Henry L. Kelsch, for defendant in error.
   Ross, J.

This case comes into this court on error from the Court of Common Pleas of Hamilton county.

Philip Spiess, defendant in error, filed suit against Julius Meyer, plaintiff in error, before a justice of the peace, and obtained judgment. The plaintiff in error gave notice of appeal and bond. The petition in the Court of Common Pleas of Hamilton county was not filed within the statutory time. An entry reciting that both parties waived a jury was endorsed by attorneys for the parties. Judgment in the Common Pleas Court was thereafter rendered in favor of the defendant in error, Spiess. Motion for a new trial was filed, but it was filed more than three days after rendition of the judgment. No bill of exceptions was filed or is presented here. No bond was given staying the judgment of the Court of Common Pleas, and suit was filed by the defendant in error on the bond given in the court of the justice of the peace. The judgment in the suit upon the bond was paid and satisfied by the bondsman.

Motion to dismiss the petition in error in this court is based upon tbe following grounds: First, no bond was given staying execution upon the judgment in the Common Pleas Court against plaintiff in error. This is ground for proceeding.to execution upon the judgment, but not ground for a dismissal of the petition in error. Second, it is claimed that the petition in error should be dismissed because no bill of exceptions has been filed. The Supreme Court has held this not a ground for such action. Townsend v. Harrison, 58 Ohio St., 398, 50 N. E., 985; State, ex rel. Porter, a Taxpayer, v. Clark, 112 Ohio St., 133, 135, 146 N. E., 815; Blair, Supt. of Banks, v. Union Savings Bank of Bryan, 119 Ohio St., 142, 162 N. E., 423; 2 Ohio Jurisprudence, 579, 580, and supplement.

While the case of Detroit, Toledo & Ironton Rd. Co. v. Blaum, 120 Ohio St., 612, 169 N. E., 297, throws some doubt upon the earlier ruling, we consider it the better practice to refuse to dismiss for the reason mentioned, especially when there are matters of error that can be raised without a bill of exceptions.

Third, it is claimed the case is now moot, the judgment having been satisfied by the surety. If there were presented properly a valid assignment of error to the judgment against the plaintiff in error, the fact that the surety had paid a judgment against him upon his bond would not render moot the original action, since the plaintiff in error would have a right to have such judgment set aside.

The motion to dismiss the petition in error is overruled.

Upon the merits it is claimed that the Court of Common Pleas had no jurisdiction to hear the appeal from the justice of the peace, the pleadings upon appeal from the justice’s court not having been filed in time. It has been frequently held that a failure to object by motion will prevent any claim upon such ground being asserted after judgment. 2 Ohio Jurisprudence, 562; Trumbull Savings & Loan Co. v. Saviers, 115 Ohio St., 403, 154 N. E., 317; Union Trust Co. v. Lessovitz, 122 Ohio St., 406, 171 N. E., 849. While the authorities noted refer to appeals from other courts than that of a justice of the peace, the analogy is present and the rule is obviously the same.

It is asserted that no authority was present in the attorneys for plaintiff in error to waive a jury. It is possible to waive a jury by conduct as well as by express stipulation. It appears that the plaintiff in error was represented by counsel, and that a trial without a jury was had. We are unable to tell what occurred in the court below, and, in the absence of a showing to the contrary, must give full effect to the journal entry of the court.

Questions of fact are also here involved. In the absence of a bill of exceptions we can not pass upon a dispute which tends to question the verity of the journal entry of the court. The same applies to the motion to vacate the judgment.

For the reasons stated, we find no prejudicial error in the case as presented, and affirm the judgment of the Court of Common Pleas.

Judgment affirmed.

Hamilton, P. J., and Cushing, J., concur.  