In Re Estate of Wuichet

This case is in this court on motion of appellee, Mary W. Blum, for an order dismissing the appeal because it was not perfected within the period allowed by law.

In the brief of counsel for the movant is set forth the salient facts from which arises the question raised by the motion. From this it appears that the cause in the trial court was submitted on an agreed statement of facts on November 1, 1939. Thereafter, on December 12, 1939, there was filed that which is headed "finding entry." An examination of this entry is convincing that it is properly designated as it does no more than to make a finding by the court of the respective interests of those affected by the decision in the case. On December 15, 1939, there was filed a motion for rehearing and for new trial. This set forth but one ground, namely, that the finding and opinion of the court is not sustained by sufficient evidence and is contrary to law. Thereafter, on the 19th of December 1939, a judgment entry was spread upon the record wherein the motion of the executor for rehearing and for a new trial was overruled, journalizing the former findings and carrying them into final judgment. On January 6, 1940, the executor of the estate of Flora K. Wuichet, deceased, filed his notice of appeal in the trial court.

It is the basis of the motion to dismiss, that the notice of appeal was not given according to the provisions of the Appellate Procedure Act, in that it was not filed within twenty days after the date of the overruling of the motion for new trial.

Our attention is directed to Section 12223-7, General Code, and to several recent cases, namely, State, ex rel. Longman v. Welsh,133 Ohio St. 244, 13 N.E.2d 119; First Natl. Bank of Canton v. Kittoe Boiler Tank Co., 62 Ohio App. 411,24 N.E.2d 458; State, ex rel. Squire, Supt. of Banks, v.Winch,62 Ohio App. 161, 23 N.E.2d 642.

Suffice to say that we considered and discussed all of these cases in Anderson v. Local Union, 29 Ohio Law Abs., 364. Neither in this nor any of the cited cases was the question presented the same as here but went to the proposition whether in a chancery suit a motion for new trial after judgment was necessary or proper. In State, ex rel. Longman, v. Welsh, supra, the judgment had been entered after the sustaining of the demurrer. In the other cited cases and in Anderson v. Local Union, supra, motions for new trial were filed after judgment, assigning as grounds therefor that the judgments were manifestly against the weight of the evidence. We held that a motion for new trial was proper and necessary and that the limitation as to time within which a notice of appeal could be given began as of the date of the overruling of the motion. This is in accord with the decision in State, ex rel. Squire, v. Winch, supra, and contra to the decision in First Natl. Bank of Canton v. Kittoe Boiler Tank Co., supra. Without further observation on this question we refer counsel to the opinion in Anderson v. Local Union, supra.

The motion in this case may be decided upon the express terms of the controlling Section 12223-7, General Code, which, insofar as pertinent, reads:

"Provided, that, when a motion for new trial is duly filed by either party within three days after the verdict or decision then the time of perfecting the appeal shall not begin to run until the entry of the order overruling * * * the motion for newtrial." (Italics ours.)

So that, if it be conceded that the motion for new trial was duly filed in this case, then the limitation upon the notice of appeal did not begin to run until after the entry overruling the motion for new trial. On the other hand, if the motion for new trial was not duly filed then the earliest date when the right to file the notice of appeal began was when the judgment entry was filed. Inasmuch as the entry overruling the motion for new trial and granting judgment was filed as of the same date, there can be no doubt that this was the time when the right to file the notice of appeal began and the notice, being filed within twenty days thereafter, meets the requirements of the statute.

Counsel for appellant in this case have adopted very proper procedure in the filing of entries pursuant to the decision of the trial judge. First, there is filed a finding entry which does not have the effect of causing the statute to run against it as to the time within which the notice of appeal shall be given because it is neither a judgment nor a final order. Then is filed the motion for new trial or application for rehearing. There is, of course, the recurring question whether a motion for new trial is appropriate in a chancery case. Finally, after the motion for new trial has been disposed of, the judgment entry is spread upon the record which clearly in this case is the earliest date when the right of appeal arises and the earliest time when the period begins to run within which the notice of appeal must be filed.

Whether, in a chancery case, the filing of a motion for new trial after the judgment has been entered tolls the beginning of the period in which the appeal may be perfected until after the entry overruling the motion for new trial has not yet been decided by our Supreme Court.

The motion will be overruled.

Motion overruled.

GEIGER and BARNES, JJ., concur.