Summary
In Schenley v. Kauth (1953), 160 Ohio St. 109 [51 O.O. 30], this court considered G.C. 12223-7, the predecessor to R.C. 2505.07.
Summary of this case from State, ex Rel. Hanley v. RobertsOpinion
No. 33318
Decided July 1, 1953.
Appeal — Time for perfecting begins to run, when — Motion for new trial filed — Filing of journal entry disposing of motion, essential — Unsigned "finding" disposing of motion, not journalized — Not "entry of an order" — Section 12223-7, General Code — Court of record — Speaks only through journal.
1. A court of record speaks only through its journal and not by oral pronouncement or mere written minute or memorandum.
2. By the provision of Section 12223-7, General Code, "that, when a motion for a new trial is filed by either party within ten days after a journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization, then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for a new trial," the filing of a journal entry overruling or sustaining the motion for a new trial is essential to start the running of the period of time, therein prescribed, within which an appeal may be perfected.
3. A written unsigned "finding" by the court disposing of a motion for a new trial, filed with the clerk, entered on the appearance docket as such "finding," and not journalized is not a compliance with the provision of Section 12223-7, General Code, requiring "the entry of an order" overruling or sustaining such motion.
APPEAL from the Court of Appeals for Summit county.
This cause originated in the Court of Common Pleas of Summit County.
The plaintiff, Mabel St. Clair Schenley, seeks damages from the defendant, Florence I. Kauth, for a breach of contract for the sale of certain land.
The cause was tried to a jury and resulted in a verdict for the plaintiff.
The transcript of the docket and journal entries recites, inter alia, the following:
"January 14, 1952. Verdict for plaintiff filed. * * *
"January 16, 1952. In conformity to the verdict rendered by the jury in this action on the 14th day of January, 1952, in favor of the plaintiff for the sum of $1,687.50, it is ordered that the plaintiff recover of the defendant the sum of $1,687.50 and her costs incurred herein for which judgment is hereby rendered. Defendant excepts.
"January 16, 1952. Certificate of judgment filed with clerk of Summit county, Ohio.
"January 17, 1952. Motion for new trial filed.
"* * *
"March 11, 1952. Finding, Wanamaker, J., filed.
"April 1, 1952. January 1952 term continued to April 1952 term.
"June 6, 1952. This cause this day came on to be heard upon the motion of the defendant filed herein for an order for new trial. The court, upon due consideration of the facts and evidence finds that a new trial should not be had, and that said motion should be overruled. It is therefore hereby ordered, adjudged and decreed that the motion heretofore filed in this matter for an order for new trial be and the same is hereby overruled.
"June 10, 1952. Notice of appeal filed."
On October 22, 1952, the Court of Appeals sustained a motion of the plaintiff to dismiss the defendant's appeal on questions of law, for the reason that the "notice of appeal was not filed within the time prescribed by Section 12223-7 of the General Code."
The cause is in this court for review following allowance of a motion to certify the record of the Court of Appeals.
Mr. Charles D. Evans and Mr. Paul E. Weimer, for appellee.
Mr. Sal Germano and Mr. James A. Rondy, for appellant.
Concisely stated, the question presented is: Does the time for appeal from the Court of Common Pleas to the Court of Appeals begin to run from the time of the "finding" of the trial court overruling the motion for a new trial entered on the appearance docket, or from the time such order is put in the form of a journal entry approved by the court and duly filed in the office of the clerk of courts?
The rule is well established in this state that a court of record speaks only through its journal and not by oral pronouncement or a mere minute or memorandum. State, ex rel. Industrial Commission, v. Day, Judge, 136 Ohio St. 477, 26 N.E.2d 1014.
Section 12223-7, General Code, provides in part as follows:
"After the journal entry of the final order, judgment or decree, has been approved by the court in writing and filed with the clerk for journalization, or after the entry of other matter for review, the period of time within which the appeal shall be perfected, unless otherwise provided by law, is as follows;
"1. In appeals to the Supreme Court, to Courts of Appeals or from Municipal Courts and from Probate Courts to Courts of Common Pleas, within twenty (20) days.
"Provided, that, when a motion for a new trial is filed by either party within ten days after a journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization, then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial."
Under Section 12223-7, General Code, as now in effect, the decision by the trial court overruling or granting a motion for a new trial is made subsequent to the entering of judgment on the verdict of the jury. Prior to the amendment of this section in 1945, the decision of a motion for a new trial preceded the entry of judgment, and the practice generally, if not universally, followed was to incorporate the decision of such motion with the verdict of the jury in a journal entry of judgment in the cause. Under the statute as now in effect, the "entry of the order" overruling or sustaining the motion for a new trial starts the running of the appeal time and necessarily must be definite and must be journalized. It is not the "order" but the "entry" of the order that initiates the period within which an appeal may be taken.
This rule has been in operation in this state for many years and is based upon the fact that under the Constitution of Ohio only judgments and final orders are appealable. An order merely overruling a motion for a new trial is not reviewable unless at that time a judgment is also rendered and entered. See 2 Ohio Jurisprudence, 204 et seq., Section 106.
It must be assumed that the General Assembly intended that Section 12223-7, General Code, would not only prescribe the time within which an appeal may be prosecuted from the decision of the court overruling the motion for a new trial, but also provide for the rendition of the judgment or order which the Court of Appeals, under the Constitution and statute, can properly review. It seems clear that, when the words, "the entry of the order overruling or sustaining the motion for a new trial," were used in that section, they were intended to mean the filing with the clerk of a final order or judgment in the form of a journal entry, in accordance with the requirement therefor in the Appellate Procedure Act.
It might be noted that the ruling on a motion for a new trial may result in the vacation of a judgment and termination of liens acquired thereunder and it seems obvious that such result can not be accomplished otherwise than by the entry of a judgment or final order in accord with the statute.
It follows that the Court of Appeals was in error in dismissing the appeal herein. Its judgment is, therefore, reversed and the cause remanded to that court for further proceedings in accordance herewith.
Judgment reversed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART. ZIMMERMAN and STEWART, JJ., concur.