Wainscott v. Young

This is an appeal on questions of law from an order of the Common Pleas Court, overruling a motion to vacate a final decree and for new trial, in a partition proceeding.

The action was pending on October 11, 1945.

The decree mentioned in the notice of appeal is designated as a judgment entered March 8, 1947, "overruling the motion for a new trial and entering judgment for the defendant."

Reference to the transcript of docket and journal entries develops that on June 3, 1946, the court made a finding in favor of defendant. No motion for new trial was filed to such finding which was entered on the journal.

"Section 11578, General Code, providing that the application for a new trial must be filed within three days after the verdict or decision is rendered, is applicable to actions pending October 11, 1945, and not Section 11578, General Code, as amended effective on that date, which provides that `the application for a new trial must be made within ten days after the journal entry of a final order, judgment or decree.'" Paragraph two of the syllabus in Von Gunten v. New Justice Coal Co., 147 Ohio St. 511, 72 N.E.2d 253.

On July 1, 1946, the court entered a final decree dismissing the petition at plaintiff's costs.

No notice of appeal was ever filed directed to that decree.

On July 3, 1946, plaintiff made a request for findings of fact and conclusions of law. Such motion was not seasonably made.Bittmann v. Bittmann, 129 Ohio St. 123, 194 N.E. 8; Levick v.Bonnell, 137 Ohio St. 453, 30 N.E.2d 808; Nimon v. Klein,43 Ohio App. 314, 183 N.E. 189; 39 Ohio Jurisprudence, 1201, Section 455; State, ex rel. Kerns, v. Beightler, Dir., 38 Ohio Law Abs., 615, 51 N.E.2d 213.

On the same day, July 3, 1946, the plaintiff filed a motion to set aside the judgment and for a new trial. That motion was ineffective as a motion for a new trial or to toll the time for filing notice of appeal from the final decree of July 1, 1946, afinding of the court having been entered on the journal on June 3, 1946. Section 12223-7, General Code, as it existed before the amendment effective October 11, 1945, provided only two reference points from which the 20 days for filing notice of appeal begins to run, i.e., (1) the final judgment and (2) the overruling or sustaining of the motion for new trial.

Such motion must be duly filed and effective as applied to the finding or judgment.

On October 30, 1946, an amended request for findings of fact and conclusions of law was filed. This request also was not seasonably made.

On March 7, 1947, the court entered findings of fact and conclusions of law. No motion for new trial was filed to such findings. On March 7, 1947, leave was given to file exceptions to such findings and conclusions, and exceptions were filed and overruled on the same day.

On March 8, 1947, an entry was made by the court overruling the motion to set aside the judgment and for a new trial. The court in that entry again ordered the petition dismissed at plaintiff's costs.

Notice of appeal was filed to that last judgment, on March 21, 1947, almost nine months after final decree in this proceeding.

The final decree of July 1, 1946, was never vacated or set aside. The repetition in the entry of March 8, 1947, of a dismissal of plaintiff's petition at his costs was mere surplusage as to the overruling of his motion to vacate the judgment. See Frankenstein v. Behrendt, 60 Ohio App. 403,21 N.E.2d 678.

It is to be noted also that the final decree, entered on July 1, 1946, was in the July 1946 term of the Common Pleas Court of Hamilton county (See Rules of Common Pleas Court, I, 5), and that, although the ineffective motion for new trial and the motion to vacate were filed at the same term, the order overruling same was made in the January term of the following year, March 8, 1947. Had the court granted the motion to vacate the former final decree, it would have done so after the term in which such final decree was entered, and could have done so only for the reasons and in the manner prescribed in Section 11631 etseq., General Code.

Such motion to vacate and for new trial, as far as the record shows, was not predicated upon any ground found in the statutes, other than that applicable to motions for new trial. (Section 11576, General Code.)

This court, therefore, will dismiss this appeal on questions of law, for the reasons that no notice of appeal was filed within 20 days after the final decree in the action, and that the judgment from which the appeal is taken, that is, the judgment of March 8, 1947, was not a final order under the practice applicable at the time the action was originally instituted.

Appeal dismissed.

MATTHEWS, P.J., ROSS and HILDEBRANT, JJ., concur in the syllabus, opinion and judgment.