
    Ricketts v. Allen.
    
      Supreme Court—Dismissals—Petition in error filed as of right —Constitutional questions of due process and equal protection not involved—Party’s errors and omissions resulted in denial of relief—Failure to take advantage of statutes affording complete protection of rights—Injunction against collection of judgment.
    
    (No. 20775
    Decided November 2, 1927.)
    Error to the Court of Appeals of Montgomery county.
    This is a proceeding to reverse the Court of Appeals of Montgomery county. The petition in this cause is filed in this court as a matter of right, the plaintiff in error claiming a constitutional question.
    The case originated in the court of common pleas, wherein Ricketts sought to enjoin the collection of a certain judgment theretofore obtained against him in the court of common pleas of Montgomery county by one Victoria Shields Allen in an action for breach of promise of marriage. The history of the case indicates that the trial resulted in favor of said Victoria Shields Allen by the recovery of a verdict of $5,750. It was sought to review the record of this case in the Court of Appeals, but in that court the petition in error was dismissed for the reason that summons in error was not served upon the defendant in error or her counsel within the statutory time, that court holding that it had no jurisdiction. This judgment was affirmed by this court.
    
      It is now sought, by an original action in equity to permanently enjoin the collection of said judgment, it being claimed that the same is void because of the failure of the trial judge to vacate the bench upon an affidavit of prejudice being filed; second, for fraud in obtaining the judgment; and, third, because the same is based upon perjured testimony; by reason of which plaintiff in error was denied due process of law and equal protection of the law as guaranteed to him by the state and federal Constitutions.
    In the court of common pleas a demurrer was filed to the amended petition, which demurrer was sustained, and, the plaintiff not desiring to plead further, an appeal was prosecuted to the Court of Appeals. In that court a demurrer to the amended petition was sustained, to which plaintiff excepted, and a temporary restraining order was granted in order to allow Ricketts to file his petition as a matter of right in this court, seeking to review and reverse the action of the courts below.
    
      Mr. L. B. Mcllhenny, for plaintiff in error.
    
      Messrs. Marshall & Harlan, for defendant in error.
   By the Court.

The plaintiff in error claims that he has been deprived of due process' of law and equal protection of the law, and that, therefore, a constitutional question is presented entitling him to file his petition in error in this court ás a matter of right.

An examination of the record, including the amended petition filed in the court of common pleas, shows that the statutory provisions, if taken advantage of by plaintiff in error, would have afforded complete protection of his rights. Deniál of relief from the result of his own errors' and omissions does not present a constitutional question. The petition in error is therefore dismissed.

Petition in error dismissed.

Marshall, C. J., Day, Allen, Kinkade and Matthias, JJ., concur.

Robinson and Jones, JJ., not participating.  