
    Marshall et al. v. Bender.
    (Decided March 18, 1935.)
    
      Mr. Alfred 8. Leuthold, for plaintiffs in error.
    
      Mr. Calvin E. Knisely, for defendant in error.
   Guernsey, J.

This is an error proceeding from an order of the Court of Common Pleas overruling a motion and application of plaintiffs below for leave to file a petition, and dismissing the plaintiffs’ appeal, from a justice of the peace court of Auburn township, for want of jurisdiction, and adjudging the costs against the plaintiffs below entered June 23,1934. The plaintiffs in error were plaintiffs and the defendant in error was defendant in the Common Pleas Court and they-will be hereinafter referred to in the relation they appeared in that court.

On November 13, 1933, the plaintiffs by the consideration of a justice of the peace of Auburn township, Crawford County, Ohio, recovered judgment against the defendant for board and room alleged to have been furnished by plaintiffs to defendant and her minor son, at the request of defendant, in the sum of $150.

The defendant perfected an appeal from the judgment, in and to the Common Pleas Court December 6, 1933.

The plaintiffs failed to file their petition in the Common Pleas Court within the rule day prescribed in Section 10398, General Code, and on April 7, 1934, the defendant filed her motion in writing to dismiss the action of the plaintiffs, on the ground that the plaintiffs had failed to file their petition within the statutory time, and that by reason thereof the Common Pleas Court had no longer any jurisdiction over the action.

On April 16,1934, the plaintiffs filed their motion for leave to plead, and this motion and the motion to dismiss were heard at the same time and on May 31, 1934, an order was entered dismissing the petition and cause.

Motion for a rehearing and to set aside the judgment of dismissal was filed by plaintiffs, which was granted under date of June 18, and entered under date of June 23,1934, and the cause was then heard on plaintiffs ’ application for leave to plead, and the order entered from which this proceeding in error is prosecuted.

As shown by the bill of exceptions, the plaintiffs, who at the hearing were represented by counsel different from the counsel who had represented them in justice court, to sustain their motion for leave to plead, introduced in evidence the affidavit of Earl Marshall, one of the plaintiffs, to the effect that shortly after the case was appealed by the defendant, the attorney who had represented the plaintiffs on the trial of the case in justice court, informed the affiant that plaintiffs should not settle with defendant and that he would take care of the case on appeal; that the plaintiffs have no knowledge of the practice required or what pleadings have to be filed when a case is appealed, and that when the affiant read that the case was assigned for May 4, 1934, he met his attorney and asked him what he had done about the case, and that the attorney replied that he had done nothing, and that upon further conversation with him affiant learned that he was not attending to the case and did not intend to look after the case for trial on May 4, and that a few days thereafter he learned that defendant had filed a motion to dismiss.

The plaintiffs also introduced in evidence a- duly executed petition stating causes of action of plaintiffs against defendant identical with the causes of action stated in the bill of particulars in justice court. No further evidence was offered by either party.

It is contended by the plaintiffs that the order from which the error proceeding is prosecuted is erroneous for the reasons:

1. That the court had jurisdiction to grant plaintiffs leave to plead.

2. That the order refusing such leave and dismissing the appeal at plaintiffs’ costs constituted an abuse of discretion.

With reference to the first contention. It was held in the case of Parker v. Height, 14 C. C., 548, 7 C. D., 609, followed in the case of The K. B. Co. v. Dixon, 19 C. C. (N. S.), 196, 32 C. D., 426, that Section 11347, General Code, granting to the Common Pleas Court authority to extend the time for filing any pleading applies to cases in such court on appeal from judgments of justices of the peace, and following these cases we hold that the court in the instant case had jurisdiction to grant the plaintiffs leave to plead subsequent to the rule day fixed by Section 10398 above referred to.

In considering the second contention it is necessary to bear in mind the rule of construction provided in Section 10214, General Code, as applicable to Part Third of the General Code of which Section 11347 is a part, which reads as follows:

“Sec. 10214. The provisions of part third and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice. The rule of the common law, that statutes in derogation thereof must be strictly construed has no application to such part; but this section shall not be so construed as to require a liberal construction of provisions affecting personal liberty, relating to amercement, or of a penal nature.”

Applying this rule of construction to the provisions of Section 11347 it is clear that the purpose of the section was to preserve to parties the right to litigate their differences, and that such right is not to be arbitrarily denied them:

The evidence introduced on behalf of the plaintiffs in the instant cáse, tends to prove that the plaintiffs had a meritorious claim against the defendant, and that through no fault on their part the petition setting forth such claim was not filed within rule, and that after they ascertained the facts they proceeded with reasonable diligence to employ other counsel and secure the necessary leave to file their petition. This evidence is uncontroverted, and under the circumstances, applying the rule above mentioned, we are of the opinion that the trial court abused its discretion in refusing such leave and dismissing the appeal.

For the reasons mentioned, the judgment of the Common Pleas Court will be reversed at the costs of defendant in error, and the cause remanded with instructions to that court to sustain such application for leave to plead and to overrule the application to dismiss.

Judgment reversed.

Klinger, P. J., and Crow, J., concur.  