O'Connor v. Graff ( 1959 )

I cannot agree with my colleagues in their conclusion in this case.

In the above case, a motion to dismiss the appeal is presented to this court. In a separate action, a petition for the vacation of a judgment of the Court of Common Pleas of Hamilton County was denied by that court.

The plaintiff, appellant herein, was defendant in a divorce action wherein a judgment was rendered against him in favor of defendant, appellee herein. It is claimed that that judgment is void for want of proper service; the merits of the case are not before us.

The sole question for decision in this court at present is, whether a judgment adverse to a plaintiff seeking the vacation of a judgment, after term, is a final order, as defined by Section2325.01 et seq., of the Revised Code, and is appealable.

In the case at bar, the transcript indicates the following: Judgment Entry for defendant on November 4, 1958; on November 12, 1958, motion for new trial filed; motion for new trial overruled on December 8, 1958; notice of appeal filed December 29, 1958.

In my opinion, a petition after term to vacate a judgment rendered at a previous term was not intended by the Legislature as a substitute for a motion for a new trial; nor does it toll the time within which a notice of appeal must be filed. The judgment rendered on November 4, 1958, is the real judgment complained of; the notice of appeal filed on December 29, 1958, is too late. This being so, this court is without jurisdiction to hear the appeal on its merits.

On authority of Gynn v. Gynn, 106 Ohio App. 132,148 N.E.2d 78, the motion to dismiss should be granted. In the Gynncase, the Supreme Court of Ohio overruled a motion to certify and dismissed the appeal as of right, 168 Ohio St. 164. Subsequently, in this same Gynn case, a writ of certiorari was denied by the Supreme Court of the United States.