Nat. Foundation & Eng. Co. v. Toledo , 1923 Ohio Misc. LEXIS 2043 ( 1923 )

CHITTENDEN, J.:

Epitomized Opinion

Plaintiff company brought an action in the common pleas court of Lucas County to recover balance due on a contract for the construction of a bridge in Toledo. By agreement of the parties, the cause was submitted to three referees. After the referees arrived at a conclusion in favor of plaintiff company, they forwarded their report to the clerk of court. They directed the clerk to file the report on July 7, 1922, but the clerfk filed it on June 28th. Both parties were notified that they had three days from July 7, 1922, to file their 'motions. Within three days from the latter date a motion for re-hearing was filed by the city. The motion was directed to the court rather than the referees. A motion was then filed by the plaintiff to confirm' the report of thé referee and for judgment. A re-hearing was ordered by the court and plaintiff’s motion was overruled. Plaintiff prosecuted error claiming that as the motion for a new trial or re-hearing was not addressed to the referees as required, and the error was fatal. The Court of Appeals held:

1. While the motion should have been addressed to the referees rather than the court, a failure to do so was a mere inadvertance and was no ground for a refusal by the referee to hear the motion.

2. As the court’s refusal to hear plaintiff’s motion for a confirmation of the referees’ report was based on the fact that the motion was out of order, rather than that plaintiff was not entitled to the order sought, it was not a-final order from which error could be prosecuted.

Appeal dismissed.