(Orally.)
Robert G. Haight commenced an action on account to recover a small sum of about $40 before a justice of the peace on the 2d day of October, 1895. Such proceedings were had before the justice that a trial ensued on Nov. 11, 1895, resulting in a verdict for the defendant, from which the plaintiff appealed to the court of common pleas, and filed his transcript in that court on the 5th day of December, 1895, as appears by the file mark upon the back of the transcript. On the 10th day of December, 1896, the plaintiff below filed his petition in the court of common pleas, alleging in the petition that the action came into the court by an appeal from the docket of the justice, naming him. On the 1st day of March, 1897, the following entry was made upon the journal of the court, and is the only entry that there appears:
“At the term of court beginning on the 4th day of January, 1897, and on the 1st day of March, being the 48th day of said term, as appears by its journal of that day, were the following, viz:
“Robert G. Haight v. John Parker. 38, 806.
“Now comes the plaintiff by his attorney,' and the defendant being in default for answer and demurrer, the court find that the allegations of the petition are confessed by him to be true, and find that the defendant John Parker is indebted to the plaintiff in the sum of $53.48. It is therefore considered by the court that the said plaintiff have and recover from the said defendant the said sum of $53.48 and his costs herein expended, taxed at $-.
To that a petition in error is filed in this court, asking the circuit court to reverse that judgment.
P. H. Dowling, for Plaintiff in Error. Karl A. FlicMnger, for Defendant in Error.No motion for a new trial or proceedings to open np tbe judgment were taken in tbe court of common pleas. It is claimed tbat tbe court of common pleas bad no jurisdiction to render a judgment; that tbe case was not only in default as to tbe defendant but was in default as to tbe plaintiff, and tbe plaintiff could not file a petition at tbe time be did. Tbe statute fixes tbe rule days for pleadings in appeal eases as well as in other cases, and provides as to an appeal case that tbe petition shall be filed on or before tbe third Saturday after the expiration of 30 days from tbe rendition of judgment before tbe justice of tbe peace, and tbe answer on or before the fifth Saturday. However tbat may be, sec. 5098 provides tbat “tbe court or a judge thereof in vacation, may, for good cause shown, extend tbe time for filing any pleading, upon such terms as are just.” But in this case no application was made to tbe court to extend tbe time, but tbe case remained upon tbe docket of tbe court. Tbe appeal bad been perfected, and tbe court bad acquired jurisdiction of the parties. Either party had a right to appear in court and file bis pleading. Tbe defendant might either move to dismiss tbe appeal or file bis answer, asking for a judgment upon tbe answer, for failure of tbe plaintiff to file bis petition. But we think tbe power which rests in tbe court, given by tbe statute granting it tbe power to extend tbe time for filing any pleading, or to give leave at any time to file a pleading, is a power given to tbe court which may be exercised at any time and in any manner it pleases, unless objection be made at tbe time or subsequently, and exception taken to tbat order or rule. The court having power to grant leave to file a petition out of rule, it has power to take up and consider it when it is filed out of tbe rule, without making any order on tbat subject, and when it shall have done so, by rendering judgment; that judgment will be conclusive, unless some method is taken in the court to set it aside. Tbe statutes are ample on tbat subject, and we think tbat method should have been pursued by tbe defendant below. Sec. 5309 and Chap. 6, eommeneng with sec. 5354, confer an ample and complete remedy to tbe defendant, if be had good cause, to have had this judgment set aside, and an opportunity to answer to this petition; and we think from a reading of tbe statutes tbat be stñl has that remedy — that it is not too late to exercise it.
This judgment will therefore be affirmed, at tbe costs of tbe plaintiff in error.