Zook v. Dempsey

This matter is before the court on an appeal on questions of law from a judgment of the Municipal Court of the city of Columbus finding in favor of the plaintiff.

The matter on trial before the Municipal Court was presented on a petition in replevin and a cross-petition thereto. On April 10, 1944, the Municipal Court made a memorandum to the following effect:

"Case called; jury impaneled and sworn; witnesses sworn and testified; trial had and concluded; jury returned verdict finding right of property or possession of chattels described in petition to be in plaintiff at the time of the commencement of the action and assess to plaintiff as damages for wrongful detention thereof $250 * * *."

A motion was made to set aside the verdict for the reasons stated and for judgment non obstante veredicto.

On April 25, 1944, the Municipal Court made the following notation on its docket:

"Motion of defendant for judgment non obstante; motion for new trial overruled; final judgment entered as per verdict of jury April 10, 1944; draw entry accordingly."

The further notation was made under date of July 17, 1944:

"Entry filed * * *." The entry filed on July 17, 1944, is in the usual form overruling the motions for judgment non obstante and for new trial, and the court finds motions not well made and overrules the same, and "coming now to render final judgment as per the verdict of the jury it is ordered that the right of possession * * * is found to be in the plaintiff, * * * and it is ordered that a writ of replevin issue," etc.

The same entry was made in the case of the cross-petition of Harriett Dempsey. On the 19th of July 1944, notice of appeal was filed stating that the plaintiff would take notice of the intention of the defendants to appeal from the judgment of the Municipal Court rendered July 17, 1944, said appeal being on questions of law.

On September 10, 1944, plaintiff filed a motion in this court for an order dismissing the appeal filed by the defendants, for the reason that the appeal was not perfected. There is a short memorandum attached to the motion, which, after reciting the facts, states as a ground for dismissal: "This entry was not filed until on or about the 19th day of July. However, the final judgment was rendered on the 26th day of April, 1944, on the half-sheet of the Municipal Court and was the final judgment rendered therein."

No further argument is presented in support of the motion. There is the usual assignment of error.

Section 12223-7, General Code, provides for the time for perfecting an appeal. The question here presented is whether the entry of April 25, 1944, or that of July 17, 1944, was the final entry of the court below, from which notice of appeal was given.

On June 17, 1942, this court had occasion, in the case ofMesloh v. Home Furnace Co., 36 Ohio Law Abs., 531, 44 N.E.2d 379, to state the circumstances incident to the trial in the Municipal Court, and stated: "Examining the record in the Municipal Court we are unable to find any judgment entry. We do find this notation: * * *." The notation is quite similar to the memorandum made by the trial court in this case.

The court said in the case cited:

"This brief notation does not rise to the dignity of a judgment of a court, and we are tempted to send the case back on the ground that there was never any final entry in the Municipal Court and that, therefore, the Court of Common Pleas had no jurisdiction."

However, there is in the case at bar a correct final judgment entry under date of July 17, 1944. We are of the opinion that that entry was a final entry from which appeal might be taken, and the notice of appeal being given two days after the final entry of July 17th, and that appeal being perfected, we are of the opinion that the appeal was filed within proper time.

This court in Fifty West Broad, Inc., v. Poulson, 75 Ohio App. 194, 41 Ohio Law Abs., 212, had occasion to review at length the statutes controlling appeals, in which opinion are cited many pertinent cases.

The motion to dismiss the appeal is overruled.

This matter is submitted at this time solely upon the motion to dismiss and not on the merits, which branch of the case will be considered later by the court, after the same has been argued and briefed by both counsel.

Motion overruled.

HORNBECK and MONTGOMERY, JJ., concur.

MONTGOMERY, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.