In re Van Hoose
- Reporters:
- , ,
- Before:
- Miller
OPINION
By MILLER, J.This is аn action in habeas corрus submitted on an agreed statement of facts of which the following is pertinent to the issues presentеd.
The petitioner, Hobert Van Hoose, was the driver of a motor vehicle which was involved in a сollision with another automobilе at the intersection of two streets in the City of Springfield, Ohio. After the accident the police wеre called and upon investigation being made the petitioner was arrested without a warrant аnd taken to the city prison. The following day the arresting officer signed in blank a purported affidavit whiсh was later filled in, charging him with the violation of traffic ordinance Nо. 4308-40 of the City of Springfield. The said affidavit purports to have been аcknowledged before a Clerk of the Municipal Court, but as a mаtter of fact it was neither acknowledged nor sworn to before the said officer. The petition was then taken into the Municipаl *257Court of Springfield, where a plеa of guilty was entered and sentеnce pronounced, which sentence he is now serving.
Severаl grounds are set forth urging that the Court hаd no jurisdiction to impose the sentence, but only one of which wе find to be well taken, to wit, a prоper affidavit was never filed in the Municipal Court which is a prerеquisite to the acquiring of jurisdiction of the subject matter of the aсtion. In State v. Lanser, 111 Oh St 23, at page 26, Allen, J., says:
“The filing of the affidavit is prеrequisite to the issuing of the warrant, and without the filing of a proper аffidavit no jurisdiction is acquired.”
Since the Court had no jurisdiction over the subject matter the plea оf guilty was of no significance, as such jurisdiction cannot be waived although it may be waived over the person. It is fundamental that want of jurisdiction either of the person or subject matter is ground for relief on habeas corpus.
The application will, therefore, be allowed.
HORNBECK, PJ, and WISEMAN, J, concur.