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Opinion of the Court.

recently become Democratic. The visitors could find but little in the files of the paper to support a conversion, and would not be satisfied with an affidavit of the publisher that the paper was of Democratic politics. They hesitated to believe that political complexion could be put on and off like an article of personal raiment. But this was not the only objection to payment, for it appears on page 90, and other pages of the record, that the principal ground of objection was the absence of authority to engage the plaintiff to make the publications. When asked about the circulation of her paper, the plaintiff declined to give the information, and there is little if anything to show that it was a paper of general circulation in that city.

As we read the record, the plaintiff at one time thought that an independent paper was opposite in politics to the Republican organ. When this was disputed, chameleon like, a chance had come over it, and it was then Democratic. The interviews and other facts attending the presentation and discussion of these printing bills show that the plaintiff had no contract with anyone-certainly with no one authorized to represent the city.

It is to be feared, that when the paper acquired the proper politics, she concluded that the law requiring publication in two papers of opposite politics was her sole reliance and that she regarded the duty of the city to be mandatory with reference to her newspaper, contract or no contract. In this she made a mistake, for it cannot be within the power of anyone to thus force his services upon

Syllabus.

the city and compel it to pay for what it never agreed to pay.

Taking the petition and the evidence, we are of opinion that the trial court correctly ruled, and that the circuit court did not err in affirming its judgment.

Judgment affirmed.

CREW, C. J., SUMMERS, Davis and SHAUCK, JJ.,

concur.

WINTERS V. RUFF.

Default judgment in favor of plaintiff-Before justice of peace

Action appealed to common pleas court-Cannot be appealed to circuit court, when-Section 5226, Revised StatutesRule of appealsJurisdiction of common pleas court.

A judgment having been rendered by default in favor of the

plaintiff in an action before a justice of the peace to recover on account of the breach of written contract, and the action having been appealed to the court of common pleas and there determined, the cause cannot be appealed to the circuit court for a trial de novo under Section 5226, Revised Statutes, which authorizes such appeal only in an action within the original jurisdiction of the court of common pleas, although the only defense made in the court of common pleas was that of a mutual mistake in the instrument upon which the plaintiff counted.

(No. 11195—Decided December 21, 1909.)

Error to the Circuit Court of Fairfield county.

Statement of the Case.

Ruff broughi suit against Winters before a justice of the peace for the recovery of a sum of money within the jurisdiction of the justice. The defendant not appearing, the justice rendered judgment against him for the amount claimed. Winters appealed the cause to the court of common pleas. Ruff's petition in the court of common pleas set forth a cause of action for rent accruing under a lease for gas and oil on lands which Winters had conveyed to him, the sum sued for being the rent ending May 26, 1902, which had been paid to the defendant May 26, 1901, and which by the contract of sale, as it was expressed, was payable to Ruff.

Winters answered alleging that by the contract by which he sold and conveyed the premises to Ruff he was to reserve and retain the rent for said year, but that by the mutual mistake of the parties, and the mistake of the scrivener who drew the deed embracing said contract, the reservation to him was of the rent for the year ending May 26, 1901. He therefore prayed for the reformation of the instrument and for the dismissal of the plaintiff's petition. The plaintiff replying, denied the allegations of the answer respecting mistake. On a trial of the issues in the court of common pleas it was found that a mistake had not intervened, and there being no other defense, judgment was rendered for the plaintiff. The defendant thereupon gave notice of his intention to appeal the cause to the circuit court and he gave the bond required for that purpose. In the circuit court the plaintiff's motion to dismiss the appeal

Argument for Plaintiff in Error.

was sustained, and the order of dismissal is assigned here as error.

Mr. C. W. McCleery, for plaintiff in error.

The whole difficulty is in determining whether the common pleas court had original jurisdiction of the cause tried, within the meaning of the statute; or whether it had jurisdiction by appeal, and therefore not original, but appellate jurisdiction.

In the one case the defendant had the right of appeal, and in the other case he had no such right. Publishing Co. v. Curtis, 7 N. P., 202; Woolever v. Stewart, 36 Ohio St., 146; Strauss v. Adams et al., 4 N. P., 109.

Though the justice of the peace has no jurisdiction of the cause of action appealed from, if the subject matter of the action was within the original jurisdiction of the appellate court, and the parties without objection to the jurisdiction, joined issues and went to trial, they waived the objection. Wood v. O'Farrall & Gabrielle, 19 Ohio St., 427; Thomas v. Pennrich, 28 Ohio St., 55; O'Neal v. Blessing, 34 Ohio St., 33; Van Dyke v. Rule, 49 Ohio St., 530; Harrington v. Heath, 15 Ohio, 483; Bisher v. Richards, 9 Ohio St., 495.

Appeal lies where controversy arises upon crosspetition. Reformation of deed: Massie v. Stradford, 17 Ohio St., 597; Sheeful v. Murty, 30 Ohio St., 50. Accounting between partners: Black, Recr., v. Boyd, 50 Ohio St., 46; Barnd v. Albertson, 51 Ohio St., 569. Equitable claim made in the answer which extinguishes claim of plaintiff: Taylor v. Leith, 26 Ohio St., 427; Buckner v. Maer, 26 Ohio St., 514; Rankin v. Hannan, 37 Ohio St., 113.

Opinion of the Court.

Mr. W. T. McClenaghan, for defendant in error, submitted no brief.

SHAUCK, J. On behalf of the plaintiff :n error it is claimed that the right to appeal the cause to the circuit court from the judgment of the court of common pleas for a trial de novo is conferred by Section 5226, Revised Statutes, which, it is admitted, confers the right only in cases which were within the original jurisdiction of the court of common pleas. The view presented on behalf of the plaintiff in error is that, although the cause in fact was taken into the court of common pleas by appeal from the judgment of the justice of the peace, it was there tried and cetermined by consent of the plaintiff upon an issue which could not have been determined by the justice of the peace, because mistake is not cognizable at law, and the justice is without jurisdiction to award equitable relief. In that view of the case it would have been the right of Winters, when sued before a justice of the peace in an action to which he had an equitable defense not available there, to institute a suit in the court of common pleas for the reformation of the instrument, and to obtain an order of that court staying the prosecution of the suit before the justice, because of the inadequacy of his jurisdiction to the final determination of the rights of the parties. The granting of such relief would have been within the duty of the court of common pleas to exercise its equitable jurisdiction in all cases where legal remedies are inadequate to the protection of rights of a juridical character. Sloane v. Clauss, 64 Ohio St., 125. Winters did not choose

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