Bennett v. Dayton Memorial Park & Cemetery Ass'n ( 1949 )

This case is here on motion of the defendant, appellee, The Winters National Bank Trust Company of Dayton, to dismiss the appeal of the defendant, appellant, George R. Walker, on questions of law and fact and to retain the appeal on questions of law only.

The action was one in chancery, which was instituted November 24, 1941. A referee was appointed who, after extended hearings, reported his findings of fact and conclusions of law, to which exceptions and motions for new trial were filed and overruled. The referee's report was confirmed in an entry by the Common Pleas Court, which was journalized on July 1, 1949. This was a final order from which an appeal could be taken. The appellant, George R. Walker, on July 20, 1949, filed his notice of appeal on questions of law and fact from the judgment entered July 1, 1949. However, no appeal bond was given as required by Section 12223-6, General Code.

The record further shows that on July 5, 1949, the appellant filed his application for rehearing and motion for new trial, which was overruled on July 20, 1949. Thereafter, on July 25, 1949, the appellant filed a notice of appeal on questions of law and fact from the final order entered on July 1, 1949, and from the entry overruling the application for rehearing and motion for new trial entered July 20, 1949. On July 25, 1949, an appeal bond in the sum of $1,000 was filed.

Inasmuch as this action was instituted in 1941, Sections 11578 and 12223-7, General Code, as amended October 11, 1945, have no application. The time within which a motion for new trial was required to be filed is controlled by Section 11578, General Code, as it existed prior to the amendment. Von Gunten v. New Justice Coal Co., 147 Ohio St. 511, 72 N.E.2d 253;Wainscott v. Young, 81 Ohio App. 21, 77 N.E.2d 102;Heiland v. Hildebrand, 81 Ohio App. 25, 70 N.E.2d 678.

Under Section 11575, General Code, prior to the amendment effective October 11, 1945, a motion for new trial was defined as follows: "A new trial is a re-examination, in the same court, of an issue of fact, after a verdict by a jury, a report of areferee or master, or a decision by the court." (Emphasis ours.) Under the provisions of Section 11479, General Code, the report of the referee stands as the decision of the court, subject to review, and judgment may be entered thereon as if the court had tried the action. Mennel Milling Co. v. Slosser, 140 Ohio St. 445, 45 N.E.2d 306; 35 Ohio Jurisprudence, 127, Section 44. In the instant case motions for new trial were properly filed before the referee which were overruled. The motion for new trial filed on July 5, 1949, was not "duly filed" and therefore had no legal force or effect and did not toll the statute with respect to the time within which notice of appeal was required to be filed. See Section 12223-7, General Code, prior to amendment effective October 11, 1945.

Since the motion for new trial which was filed on July 5, 1949, had no legal force or effect to toll the statute it follows that the notice of appeal given on July 25, 1949, from the order overruling the motion for new trial was not filed within time and, likewise, the bond filed on July 25, 1949, was not filed within time and has no legal force or effect. The appellant is required to rest his right to appeal on the notice of appeal given on July 20, 1949. However, the failure to give the appeal bond within time reduces the appeal to one on questions of law. Section 12223-22, General Code.

The Court will make no order with respect to the filing of a bill of exceptions, assignments of error or briefs until such time as counsel in this case have had an opportunity to confer with the court.

The motion to dismiss the appeal on questions of law and fact will be sustained. The appeal is ordered to stand as an appeal on questions of law.

Motion sustained.

MILLER, P. J., and HORNBECK, J., concur.