
    ERROR.
    [Cuyahoga Circuit Court,
    June 21, 1901.]
    Caldwell, Hale and Marvin, JJ.
    E. C. Terry v. State of Ohio.
    Statutes Must be Strictly Followed in Error.
    A proceeding in error is a statutory remedy and it is essential, in order to give jurisdiction to a reviewing court, that the requirements of the statute be strictly complied with. Therefore, the police court of Cleveland being made a court of record by Sec. 1785, Rev. Stat., a bill of exceptions therefrom containing only the motion for a new trial, the information, warrant and affidavit filed therein, with no certificate of journal entries or transcript does rot present a record sufficient to give jurisdiction to review the proceedings below, particularly where the statute is not complied with in attaching the bill of exceptions to the petition in error, and no papers are attached to the bill of exceptions.
    Heard on Error.
    
      John O. Winship, for plaintiff.
    
      Prosecuting Attorney, for defendant.
   Caldwell, J.

The case arose in the police court and was there tried, and taken on a bill of exceptions to the court of common pleas where the judgment in the lower court was affirmed and petition in error is prosecuted in this court, and various errors are assigned as cause for having the lower courts reversed.

The first question that arises upon the record in this case is whether we have any jurisdiction.

There is filed in this court a bill of exceptions. The first thing in that bill is a motion for a new trial; the second is the information, and the third is the warant, the fourth is the affidavit. These papers were filed in the original action, and, when the bill of exceptions was taken from the police court, they were attached to the bill, and these papers with the bill of exceptions were all that we find among the papers in the case and all that have been filed in the higher courts.

The bill of exceptions purports to contain all the testimony in the case, and certain errors are alleged which are made to appear from the bill of exceptions. One error complained of is that the verdict was against the weight of the evidence; another is, that the party was deprived of a trial by jury, contrary to law.

If we have jurisdiction in this matter, it will be necessary to examine these errors. But the first question is, whether there is, in this court, any record of the court that first tried the case. We find nothing that purports to show there was filed in the court of common pleas a certificate of journal entries of any kind as required by the statutes of the state.

Section 1785, Rev. Stat., declares the police court of this county or of this city to be the court of record.

Section 5334 provides what shall go into that record:

“ The record shall be made up from the petition, the process, the return, pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court; but if items of an account, or copies of papers attached to the pleadings, are voluminous, the court may order the record to be made by abbreviating the same or inserting a pertinent description thereof, or by omitting them entirely.”

Section 4964 provides that:

“ The provisions prescribing the duties of clerks of the court of common pleas shall, so far as they are applicable, apply to the clerks of other courts of record.”

Section 5228 provides:

“ A party in any trust capacity, who has given bond in this state with sureties according to law, shall not be required to give bond and security to perfect an appeal; and in such case, the clerk of the common pleas court, at the expiration of thirty days from the entering of such judgment or order upon the journal of the court, shall, if not otherwise directed, make a transcript, which together with the papers and pleadings filed in the case, he shall transmit to the clerk of the circuit court as in other cases of appeal.”

Section 5235 provides:

“ When an appeal is taken and bond given, the judgment is thereby suspended, unless some part of the final judgment appealed from be an injunction, in which case such injunction shall not be suspended, except by order of the circuit court, or two judges thereof, on reasonable notice to the adverse party ; and the clerk of the common pleas court shall forthwith make an authenticated transcript of the docket and journal entries and of the final judgment in the cause appealed ; which transcript, together with the original papers and pleadings, he shall deliver at the office of the clerk of the circuit court, on or before the first day of the term thereof next after the appeal is perfected; and either party may require a full record to be made of the case in the court below, at his own costs.”

A similar provision is made for a transcript in cases taken on error from the common pleas court to the circuit court.

These sections are referred to because a former section referred to makes them applicable to the police court, that, being by statute, a court of record.

Section 7857 provides:

“ On application by or.on behalf of the accused to any officer whose duty it is to make a record or docket entries in any such case, and tender of the proper fee, such officer shall make and deliver to the accused or his counsel a complete certified transcript of the record, omitting, if so requested, any bill or bills of exceptions; or if the prosecution was before a court or tribunal in which a complete record is not made, a certified transcript of the judgment and all entries in the case, and on receipt of a copy of a summons as hereinafter mentioned, shall forward to the clerk of the court the original papers in the case.”

Section 7358 provides:

“The proceedings to review any such judgment shall be by petition in error, to which shall be attached such transcript, and also any original papers received by the clerk, except that in cases of felony it shall not be necessary to include in the transcript of the record any bill of exceptions, but the original bill of exceptions may be attached in lieu of the transcript of the record thereof. And the court in which the review is sought may, by summary process, compel a more complete record to be furnished, and such original papers to be forwarded.”

Section 7356 provides in what courts final orders in criminal cases are to be reviewed.

In this case we find no transcript at all, nor anything that will answer the requirements of these sections of the statute. There is not even a bill of exceptions attached to the petition in error, nor are there any papers attached to the petition in error.

The only papers found in the case, from the trial court, are those I have named as attached to the bill of exceptions, and neither they nor the bill are attached to the petition in error.

Proceeding in error is a statutory remedy, purely so, and the requirements of the statute, in order to give jurisdiction to a reviewing court, must be strictly complied with ; but this question has been repeatedly determined in this state, both in the Supreme Court and in the circuit courts.

One case is Brown v. State, 1 Circ. Dec., 402 (2 R., 129), another Johnson v. State, 2 Circ. Dec., 687 (4 R., 524), and another Champion v. State, 6 Circ. Dec., 82 (9 R., 315); and, in those opinions will be found cited decisions from the Supreme Court. And we are satisfied from this review of the statutes and the decisions of the state, that the common pleas court was justified in affirming the judgment from the police court on the ground that there was no record such as is required by the law before that court; and, if the judgment is right for any good reason, it. should not be disturbed.

We hold that there is no record in this case that will warrant us in examining the questions that are presented.

However, we have looked through the record, and, if it was proper for us to decide, we would be justified in holding that the application for a jury trial was made after the case had really been commenced, and was not made in due time, and that the evidence is not so clearly against the verdict that we would be warranted in reversing it; and, in fact, we find no error in the record that is before us, such as it is, that would warrant us in disturbing the verdict.

However, we do not undertake to adjudicate upon these questions because, owing to the state of the record, w,e have no jurisdiction in the matter.

The judgment of the court below is affirmed.  