
    Savoccol v. Dietrich.
    (Decided December 8, 1930.)
    
      Mr. John L. Weisend, for plaintiff in error.
    
      Mr. Nathcm S erst am, for defendant in error.
   Weygandt, J.

Plaintiff in error, Anna Savoccol, is in this court complaining of error in the trial of this case, in which judgment was rendered against her in the municipal court of the city of Cleveland. She states in her brief that the single error upon which she asks a reversal of the trial court is the refusal of that court to comply with her request to state in writing the conclusions of fact found separately from the conclusions of law, in conformity with the provisions of Section 11470 of the General Code.

Defendant in error, Joseph C. Dietrich, admits that the courts of this state have repeatedly construed this statute to be mandatory, rather than merely directory, but contends that the request of plaintiff in error was made too late.

The material entries shown on the transcript are as follows:

“Jan. 29, 1930: To Court: Case called; parties in court; trial had; Court finds for the plaintiff and assesses his damages at $90.65 as against Anna Savoccol. Motion of defendant Edward Savoccol for a finding in his favor granted.
“Jan. 31, 1930: Motion for separate findings of fact and law filed.
“Feb. 21,1930: To Court: Motion by defendant for a new trial in this cause is heard and overruled, to which ruling defendant excepts. Wherefore it is considered that plaintiff recover of defendant said sum of $90.65 and also his costs of suit. Judgment is rendered against defendant Anna Savoccol for her costs herein.
“Mar. 24, 1930: To Court: Motion for separate findings of fact and law denied. Defendant excepts.”

During argument in this court counsel for both parties stated that apparently there are no reported Ohio cases bearing upon the question they present, unless it be the case of Strauss v. Friedman, 2 Ohio App., 11. The discussion in that case is very helpful, as is that found in the following cases: City of Toledo v. Barnes, 1 N. P., 188, 2 O. D., N. P., 590; Graver v. Guardian Trust Co., 29 Ohio App., 233, 163 N. E., 502; Skillicorn v. McCormick, 29 O. L. R., 356.

But it is unnecessary for this court to decide whether the request of plaintiff in error was seasonably made, inasmuch as the provision's of Section 11470 have no application in this case.

Section 1579-19, paragraph 5, General Code, the Municipal Court Act of the City of Cleveland (106 Ohio Laws, 276), confers upon the judges of the municipal court the power to adopt rules of procedure.

Paragraph 6 of the same section reads: “Where no special provision is made in this act, or by rule of court, the provisions of title four, part third, of the General Code shall apply to the practice and procedure of the municipal court; but this section shall not be construed to abridge the powers of the judges in respect thereto granted by this act.”

Municipal Court Rule No. 2, in effect at the time the instant case was tried, provides, in part:

“All civil actions in this court are hereby divided into the following classes: * * '*
“Second Class Cases — (1) All actions for the recovery of money only, whether in contract or tort, wherein the amount sought to be recovered does not exceed one hundred dollars exclusive of interest and costs.”

Then, in Municipal Court Rule No. 24, we find the following: “In second class cases the provision of the Ohio Code governing the practice and procedure in the Court of Justice of the Peace so far as the same may be applicable to the Municipal Court and consistent with the act creating the same and not inconsistent with the rules otherwise adopted, shall be held to apply to and govern the proceedings in said Municipal Court.”

We are also mindful of Section 10490, General Code, which reads: “The provisions of title four, part third, of the statutes, in their nature applicable to proceedings before justices, and in respect of which no special provision is made in this title shall apply thereto.”

But, as indicated by Judge Sullivan in the case of Skillicorn v. McCormick, supra, we know of no authority holding that the provisions of Section 11470 are applicable to proceedings in the court of justices of the peace. In the prayer of his statement of claim, defendant in error asked judgment in the sum of $90.65. Therefore, his was a case of the second class and triable under the rules of procedure provided for courts of justices of the peace.

In view of the foregoing, the judgment of the trial court must be affirmed.

Judgment affirmed.

Vickery, P. J., and Levine, J., concur.  