Opinion
No. 37576
Decided February 6, 1963.
Supreme Court — Affirmance — Judges equally divided — Workmen's compensation — Appeal to Common Pleas Court from denial of claim — Notice of appeal defective — Time for raising objection — Jurisdiction to entertain appeal.
APPEAL from the Court of Appeals for Mahoning County.
This cause originated with the filing by plaintiff of a claim for workmen's compensation. After the claimant's appeal had been denied by the Canton Regional Board of Review and the Industrial Commission had refused the appeal, plaintiff endeavored to appeal to the Common Pleas Court.
The case was tried in the Common Pleas Court where judgment was rendered for plaintiff on the verdict of a jury determining that plaintiff had a right to participate in the workmen's compensation fund. Thereafter, a motion for a new trial was overruled. No appeal to the Court of Appeals was taken from that judgment, and the time for such an appeal expired.
Thereafter, defendant filed a motion to vacate the judgment for the reason that the court was "without jurisdiction of the subject matter of the action." This is the first time that any question had been raised as to any defect in plaintiff's notice of appeal. Plaintiff's notice of appeal was defective in that it designated the decision of the Industrial Commission instead of the decision of the Regional Board as the decision appealed from. See Parker v. Young, Admr. (1961), 172 Ohio St. 464, 178 N.E.2d 798.
The Common Pleas Court overruled that motion. On appeal to the Court of Appeals, that court held that the Common Pleas Court "ought to have granted" the motion and rendered final judgment for defendant.
The cause is now before this court on appeal from that judgment of the Court of Appeals, pursuant to allowance of plaintiff's motion to certify the record.
Messrs. Traxler Malkoff, for appellant.
Messrs. Manchester, Bennett, Powers Ullman and Mr. Paul J. Fleming, for appellee.
Three members of the court (Taft, C.J., and Herbert and Gibson, JJ.) are of the opinion that the judgment should be reversed on authority of Mantho v. Board of Liquor Control (1954), 162 Ohio St. 37, 120 N.E.2d 730. Three members of the court (Zimmerman, Matthias and O'Neill, JJ.) are of the opinion that the Mantho case is not controlling because here the court was without jurisdiction of the subject matter and a motion to vacate the judgment for plaintiff was filed within the term at which that judgment was rendered, and it was an abuse of the Common Pleas Court's discretion to refuse to grant such a motion after the decision of this court in Parker v. Young, Admr., supra ( 172 Ohio St. 464), had been called to its attention.
The court being equally divided, Section 2 of Article IV of the Constitution requires that the judgment be affirmed.
Judgment affirmed.
GRIFFITH, J., not participating.