Opinion
No. 34566
Decided December 28, 1955.
Motion to vacate judgment — Power to strike from files — Duplicate of former motion to correct record — Appeal on questions of law and fact — Whole cause transferred to reviewing court — Jurisdiction of lower court terminated — Correction of bill of exceptions — Section 2321.14, Revised Code — Scope of statute — Mandamus.
IN MANDAMUS.
The relator, in its petition in mandamus, filed originally in this court, alleges in substance the following:
The Court of Common Pleas rendered a judgment against relator herein in a case in which one Mayborn is plaintiff and relator and The William M. Bushnell Plumbing Heating Company are defendants. Relator gave notice of appeal on questions of law and fact and obtained a transcript of the evidence and record from the court stenographer who mistakenly labeled it as a bill of exceptions, and the same was filed by the relator in the Court of Appeals 53 days after the entry overruling relator's motion for new trial. Objections to the bill of exceptions were filed, one being that the bill was not filed within the time prescribed by Section 2321.05, Revised Code. The trial judge, who is respondent in the instant case, acting upon the objections, corrected the bill by effacing the words, "bill of exceptions," where it appeared at various places in the printed form, substituting therefor the term, "transcript" or "transcript of the evidence," and returned it to the clerk. However, the clerk of courts placed on the record the usual form of entry designating the transcript as a bill of exceptions.
An appeal was taken to the Court of Appeals on questions of law and fact, and upon a hearing de novo the transcript was used as evidence. No objection was taken to the jurisdiction of the court. Judgment was rendered for relator, and Mayborn appealed to the Supreme Court. His motion to certify was allowed and the cause is now pending.
In the Supreme Court, Mayborn contended that the Court of Appeals had no jurisdiction because there was a bill of exceptions before it and not a transcript, and that the bill of exceptions was filed after the deadline for filing bills of exceptions in appeals on questions of law only.
Relator secured a remand of the record without a remand of the cause for the purpose of correcting the record to show that the matter allowed by respondent was a transcript and not a bill of exceptions. Respondent denied the motion to correct the record. An appeal from that ruling is now pending in the Court of Appeals.
Thereupon, the relator filed a motion in the trial court, seeking the vacation of the judgment wherein the clerk of courts placed language noting the allowance of a bill of exceptions, claiming the judgment was obtained by mistake, neglect or omission of the clerk, or irregularity. This motion was stricken from the files on the grounds that the term within which this matter should have been applied for has long since passed; that the motion is practically a duplicate of a former motion, an appeal from the ruling on which is now pending in the Court of Appeals; and that the appeal from the final judgment is pending in the Supreme Court.
Relator states that it is the duty of the Court of Common Pleas to hear motions such as the one just stricken and prays for a writ directing the respondent judge to cause this motion to be assigned for hearing before himself or some other judge having jurisdiction.
Respondent demurred to the petition, for the reason that the petition does not state a cause of action.
Messrs. Evans, Gentithes, Meermans, McKay Atkinson, for relator.
Mr. G.H. Birrell, for respondent.
The trial court was not in error in striking from the files the motion "to vacate the judgment," a repetitious matter the court had previously passed on. White v. Calhoun, 83 Ohio St. 401, 94 N.E. 743; Thomas v. Kalbfus, Recr., 97 Ohio St. 232, 119 N.E. 412; and Butterick Publishing Co. v. Smith, 112 Ohio St. 73, 146 N.E. 898.
The motion to vacate is practically a duplicate of the former motion to correct the record, which motion the trial court overruled and an appeal from the ruling thereon was taken to the Court of Appeals. The entire cause in which the motion "to vacate the judgment" was filed was removed to the Court of Appeals on appeal on questions of law and fact and is now pending in the Supreme Court on appeal.
Where a cause is appealed to the Court of Appeals on questions of law and fact, it no longer remains in the lower court. The whole cause is transferred to the appellate court for trial de novo. The jurisdiction of the lower court is terminated, and it loses all power to do anything in the cause. Barnes v. Christy, 102 Ohio St. 160, 131 N.E. 352; McCormick v. McCormick, 124 Ohio St. 440, 179 N.E. 286.
Relator bases its right to have the entry corrected on Section 2321.14, Revised Code, which provides: "When justice requires it, upon notice to all parties, an omission in a bill of exceptions, occurring through accident or error, may be corrected by the reviewing court, or it may be remanded to the trial court for such correction."
The matter complained of by relator is an entry "the Clerk of the Court of Common Pleas caused to be entered on the journal of said court." Since the journal is no part of the bill of exceptions, authority to correct it by remand to the trial court is not granted by the above-quoted section.
As relator's petition does not state a cause of action, the demurrer is sustained and a writ is denied.
Demurrer sustained and writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART and BELL, JJ., concur.
TAFT, J., concurs in the judgment.