
    Dowty v. Pepple et al.
    
      Proceedings in error — Time of commencement — Section 6728, Revised Statutes.
    
    The six months within which error proceedings may be commenced under section 6723, Revised Statutes, begins to run from the date of the judgment sought to be reversed, and not from the overruling of the motion for new trial. Nor is the case different although the reason for delay in passing upon the motion for a new trial was that the trial judge was a non-resident of the county and absent therefrom until after the expiration of the six months.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Darke county.
    
      Williams c& Krichenberger and Allread <& Teegarden, for plaintiff in error.
    The errors relied upon were stated in the motion for a new trial, and without action on that motion the errors upon which he relied could not be assigned or made the subject of an action in error; besides he could not assume in advance that the motion would be overruled.
    The plaintiff in error did not consent to the delay or failure to pass upon the motion for a new trial. He was not negligent. He could not have the motion heard. There was no judge in the county who could decide his motion. The trial judge was constantly absent from the county until within six days of six months from the rendition of the judgment. It was impossible to have a bill of exceptions presented and allowed in time to file a petition in error, within six months from the original judgment.
    
      We think the authority of Young v. Shallenberger, 53 Ohio St., 291, ought not to be extended to a case where the* motion for a new trial cannot be passed upon in time to prevent the expiration of six months from the original judgment, and thereby absolutely deprive a party of his right to prosecute error.
    
      Martin B. Trainor and M. M. Cole, for defendants in error, P. H. and O. L. Rhynard.
    The sole question before the court is whether the circuit court had any jurisdiction over the ease, the petition in error having been filed in said court more than six months from the rendition of the judgment. The judgment was rendered November 27, 1894; the bill of exceptions was filed in the common pleas court on July 8, 1895, and in the circuit court on July 19, 1895; and the petition in error in the circuit court was filed July 19,1895; hence it is very apparent that the case of Young v. Shallenberger et at., 53 Ohio St., 291, applies. The right to prosecute error exists only when conferred by statute; and the remedy to be effective, must be pursued in the time and mode provided. The statute has declared, in explicit terms, that “no proceeding to reverse a judgment shall be commenced unless within six months after the rendition of the judgment,” and the court is powerless to enlarge its terms, if it desired to do so. The time begins to'run from the day of the rendition of the judgment. Robinson v. Orr, 16 Ohio St., 284; Bowen v. Bowen, 36 Ohio St., 312; Griffith et 
      
      al. v. Murphy, 54 Ohio St., 613; Sheets v. Huberty, 54 Ohio St., 632. In a recent case of Meingartner et al. v. McLean, before the Supreme Court, 38 Bull., 182, an attempt was made to excuse the delay by the negligence of the clerk to file the petition in error and precipe and to issue summons in time, though the petition in error and precipe were given him within the time; yet it did not avail. The time is fixed by law, and to allow any exception would destroy the usefulness of the rule itself.
   By the Court:

In the circuit court a motion by defendants in error to dismiss the petition in error because it was not filed in that court until after the expiration of six months from the rendition of the judgment of the court of common pleas to which error was prosecuted, was sustained, and this is the only error assigned by the petition in error in this court.

That the petition in error was not filed in the circuit court until more than six months had elapsed, is conceded, but it is urged as a ground for reversal that the case was tried in the common pleas, without the intervention of a jury, by a nonresident judge; that a motion for a new trial was heard and submitted to that judge within a few days after the rendition of the judgment, but by reason of the continued absence of the judge from the county of Darke, the motion was not passed upon until after the expiration of six months from the rendition of the judgment of the common pleas.

The allegation of the petition in error, even if it were supported by the record, is not sufficient to take the case out of the operation of section 6723, Revised Statutes. As held in Young v. Shallenberger, 53 Ohio St., 291: “The statute has declared in explicit terms, that no proceeding to reverse a judgment shall he commenced unless within six months after the rendition of the judgment, and. the court is powerless to enlarge its terms, if it desired to do so.”

Judgment affirmed.  