Kelley v. Hermann ( 1914 )

Jones (E. H.), J.

I agree with my associates in the construction of Section 11572, General Code. I most reluctantly concur in the action of the court in striking the bill of exceptions from the files, and do so only because the question seems to have been settled in this state by the language of the court in deciding the case of Young v. Schallenberger, 53 O. S., 291, and by Dowty v. Pepple, 58 O. S., 395.

The construction which I think our statutes bear is discussed and expressly disapproved by Judge Williams on page 299, et seq., of the opinion in the former case. It will be noted that it was claimed by counsel for plaintiff in error in that case “that the judgment was prematurely entered, and for the purposes of the question here should be treated as rendered at the time of the overruling of the motion for new trial.” The Supreme Court found against this contention. At that time six months were allowed from the date of the judgment within which to file a petition in error and it is quite likely that situations such as this did not often arise.

But with the time reduced to seventy days they become less rare. Within two months this court has stricken from the files four bills of exceptions. In at least two instances the motions for new trial were still pending, and in one case it had not been argued, seventy days after the entering of the judgment. The motions for new trial in all of the cases, as in this, were filed under authority of Section 11576, General Code. That section is found in Chapter 5, Part 3, Title 4, Division 3 of the General Code. In this section and throughout the chapter where it is found, the motion for a new trial, such as was filed in this case, is described as a motion after ‘ ‘ a verdict by a jury, a report of a referee or master, or a decision by the court” (see Section 11575, General Code). This chapter bears the heading “New Trial.” Chapter 6 of Division 4, Part 3, Title 1 of the General Code, bears the heading “Other Relief after Judgment.” This is probably only important to show the construction placed upon these sections by the codifiers and the views they held which led to this collection and arrangement of the provisions of the code with reference to the re-submission of a case.

I think that the judgment by the court below in this case was entered prematurely. The section under which the motion for new trial was filed contemplates, and indeed expressly provides, that such motion must be filed after the decision, verdict or report.

The understanding which I have of this and the following sections is that the motion and the decision thereon must antedate the judgment. "When the Legislature provided that the motion should be made within three days after the decision, the intention was that it should be made before the judgment, and this is as clear to my mind as if the words “before judgment” were incorporated in the statute. A judgment entry made prior to the disposition of a motion for new trial is not void but is, with due respect to the opinion of the Supreme Court, prematurely entered. And for the purpose of this motion the judgment should be considered as having been entered at the time or after the motion for new trial was overruled.

Such a construction would obviate much of the difficulty and awkwardness in which attorneys and clients are placed by the unauthorized haste in which judgments are entered in cases like unto this. A situation in which a lawyer finds that he is required to prepare and file a petition in error and bill of exceptions while his motion for new trial is still pending, and before he can be sure he will have any complaint to urge in a reviewing court, certainly calls for new legislation or a new construction of that which we now have. I am of the opinion that no new legislation is necessary and that, if practicable, the matter should again be presented to the Supreme Court for consideration.