Summary
holding that "in determining the intent of the General Assembly, this court must be guided by the ordinary meaning of the words which the General Assembly used at the time that it used them"
Summary of this case from In re WeatherspoonOpinion
No. 35191
Decided December 18, 1957.
Appeal — Adherence to statutory conditions essential — Special statutory requirements — Appeal from particular kind of order — Statutory construction — Intent of General Assembly determined, how — "Appeal" construed — Section 3109.07, Revised Code — Bond condition precedent to appeal — Care, custody or support of infants.
1. Where a statute confers the right of appeal, adherence to the conditions imposed thereby is essential to the enjoyment of that right of appeal.
2. Where a special statute, such as Section 3109.07, Revised Code, specifies requirements for an appeal from a particular kind of order, such statute must be complied with on an appeal from such an order
3. In determining the intent of the General Assembly, a court must be guided by the ordinary meaning of the words which the General Assembly used at the time that it used them unless the General Assembly expressed an intention that a different meaning should be given to those words.
4. The word "appeal" as used in Section 8005-7, General Code, and Section 3109.07, Revised Code, has the meaning specified in subdivision (A) of Section 2505.01, Revised Code.
5. The giving of the bond specified in Section 3109.07, Revised Code, is a condition precedent to an appeal of the kind provided for therein.
CERTIFIED by the Court of Appeals for Hamilton County.
These proceedings originated in 1952 with the filing in the Common Pleas Court of Hamilton County of a petition for divorce, custody of minor child and other relief. The Common Pleas Court in a divorce decree in 1954 awarded custody of the minor child to the husband. The wife in 1957 filed a motion to modify that decree with regard to the custody of the child. The wife thereafter filed a notice of appeal "on questions of law and fact" from an order of the Common Pleas Court denying that motion. No bond, of the kind specified in either Section 3109.07 or 2505.06, Revised Code, was given or filed.
The provisions of the Revised Code, so far as pertinent, are as follows:
Sections 3109.03 and 3109.04. "When husband and wife * * * are divorced, and the question as to the * * * custody * * * of their offspring is brought before a court * * * the court shall decide which * * * shall have the * * * custody * * * of the offspring * * *."
Section 3109.06. "In any case where a court * * * has made an award of custody * * * of minor children, the jurisdiction of such court * * * shall continue for all purposes during the minority of such children, and the court, upon * * * the motion of either parent * * * may proceed to make further disposition of the case in the best interests of the children * * *."
Section 3109.07. "An appeal to a higher court may be had upon the appellant's giving bond, with one good surety, to the adverse party, approved by the court from whose decree the appeal is taken, in a sum to be determined by it * * *."
Section 2505.01. "As used in the Revised Code:
"(A) `Appeal' means all proceedings whereby one court reviews or retries a cause determined by another court * * *.
"(B) `Appeal on questions of law' means a review of a cause upon questions of law including the weight and sufficiency of the evidence.
"(C) `Appeal on questions of law and fact' means a rehearing and retrial of a cause upon the law and the facts and is the same as an `appeal on questions of fact.'"
Section 2505.03. "Every final order, judgment, or decree of a court * * * may be reviewed as provided in Sections 2505.04 to 2505.45, inclusive * * * unless otherwise provided by law * * *."
Section 2505.04. "An appeal is perfected when written notice of appeal is filed with the lower court * * *. After being perfected, no appeal shall be dismissed without notice to the appellant, and no step required to be taken subsequent to the perfection of the appeal is jurisdictional."
Section 2505.06. "* * * no appeal shall be effective as an appeal upon questions of law and fact until the order, judgment, or decree appealed from is superseded by a bond in the amount and with the conditions provided in Sections 2505.09 and 2505.14 * * * and unless such bond is filed at the time the notice of appeal is required to be filed."
Section 2505.07. "After the journal entry of a * * * decree * * * the period of time within which the appeal shall be perfected * * * is as follows:
"(A) Appeals * * * to Courts of Appeals * * * shall be perfected within 20 days."
Section 2505.23. "Whenever an appeal on questions of law and fact is taken in a case in which it is determined by the appellate court that the appellant is not permitted to retry the facts, the appeal shall not be dismissed, but it shall stand for hearing on appeal on questions of law."
The Court of Appeals made an order dismissing the appeal "for failure * * * to comply with the provisions of Section 3109.07 of the Revised Code, requiring a bond." Thereafter the Court of Appeals certified the cause to this court on the ground that its decision conflicted with a decision of the Court of Appeals for Lucas County in Bachtel v. Bachtel, 97 Ohio App. 521, 127 N.E.2d 761, which also conflicted with a decision of the Court of Appeals for Scioto County in Gregg v. Mitchell, 99 Ohio App. 350, 133 N.E.2d 645.
Mr. John A. Thornburn, for appellee.
Mr. Albert Spievack and Mr. Edward K. Halaby, for appellant.
Ordinarily, where there is an appeal on questions of law and fact to the Court of Appeals from a judgment of the Common Pleas Court and no appeal bond is filed (see Section 2505.06, Revised Code), the appeal should not be dismissed but should stand for hearing as an appeal on questions of law. See Sections 2505.03 and 2505.23, Revised Code, and Bauer v. Grinsted, 142 Ohio St. 56, 50 N.E.2d 334. However, although Section 2505.03, Revised Code, states that "every * * * decree * * * may be reviewed as provided in Sections 2505.04 to 2505.45, inclusive, of the Revised Code," it also states that this may be done "unless otherwise provided by law." The Court of Appeals apparently determined that the review in the instant case should not be merely as provided in Sections 2505.04 to 2505.45, Revised Code, which are the general statutes relating to appeals, because it is "otherwise provided by law" in Section 3109.07, Revised Code, which is a specific statute relating to appeals from decrees of the kind sought to be reviewed in the instant case.
Section 3109.07, Revised Code, does provide, with respect to the kind of decree sought to be reviewed in the instant case, that "an appeal * * * may be had upon the appellant's giving bond" as described in that section, thereby indicating a legislative intent to require such bond as a condition precedent to an appeal from such a decree.
This court has often held that, where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to enjoyment of that right of appeal. American Restaurant Lunch Co. v. Glander, Tax Commr., 147 Ohio St. 147, 70 N.E.2d 93; Zier v. Bureau of Unemployment Compensation, 151 Ohio St. 123, 84 N.E.2d 746; American Culvert-Fabricating Co. v. Glander, Tax Commr., 158 Ohio St. 351, 109 N.E.2d 475; Kent Provision Co., Inc., v. Peck, Tax Commr., 159 Ohio St. 84, 110 N.E.2d 776; City of Marion v. Public Utilities Commission, 161 Ohio St. 276, 119 N.E.2d 67; Queen City Valves, Inc., v. Peck, Tax Commr., 161 Ohio St. 579, 120 N.E.2d 310; Lee Jewelry Co., Inc., v. Bowers, Tax Commr., 162 Ohio St. 567, 124 N.E.2d 415; Zephyr Room, Inc., v. Bowers, Tax Commr., 164 Ohio St. 287, 130 N.E.2d 362.
It has also held that, where a special statute specifies requirements for an appeal from a particular kind of order, such statute must be complied with on an appeal from such an order, and, in the absence of compliance with the requirements of such special statute, a mere compliance with the general statutes relating to appeals will not be sufficient on an appeal from such an order. Saslaw v. Weiss, 133 Ohio St. 496, 14 N.E.2d 930; Wertz, a Minor, v. Hunter, a Minor, 144 Ohio St. 18, 21, 56 N.E.2d 245. See In re Mahoning Valley Sanitary District, 161 Ohio St. 259 119 N.E.2d 61. See also Section 1.12, Revised Code.
It is argued in effect that the word "appeal" as found in Section 3109.07, Revised Code, should be interpreted as describing what is now referred to in the general statutes relative to appeals as an appeal on questions of law and fact (see subdivision (C) of Section 2505.01, Revised Code, which was formerly subdivision 3 of Section 12223-1, General Code); that, if so interpreted, then the requirement of a bond would be similar to the requirement of a bond in those general statutes (Section 2505.06, Revised Code); and that, by reason of the provisions of Section 2505.23, Revised Code, the appeal in the instant case should "stand for hearing * * * on questions of law." In contending for such an interpretation of the word "appeal" in Section 3109.07, Revised Code (formerly Section 8005-7, General Code), it is pointed out that the words of that section were obviously taken from former Section 8035, General Code, which was a recodification of Section 3140-1, Revised Statutes, which had been enacted in 1893 (90 Ohio Laws, 186) at a time when the word "appeal" meant only the kind of appeal now defined as an appeal on questions of law and fact.
Section 8005-7, General Code (now Section 3109.07, Revised Code), was enacted in 1951 as a part of a "recodification, renumbering and revision of the laws * * * pertaining to domestic relations." (124 Ohio Laws, 178.) That act did purport to repeal Section 8035, General Code, although, in 1919, that statute had in effect been declared void as in conflict with Section 6, Article IV of the Constitution, as in force from 1912 to 1945. West v. West, 100 Ohio St. 33, 124 N.E. 888. However, apart from that repeal, the General Assembly said nothing when in 1951 it enacted Section 8005-7, General Code, to indicate that it intended to give an 1893 or pre-1912 meaning to the word "appeal" as used in that statute. There was no provision in the bill enacting that section such as found in Section 1.24, Revised Code. Obviously, in 1951, the word "appeal" would ordinarily mean "all proceedings whereby one court reviews or retries a cause determined by another court." Subdivision (A) of Section 2505.01, Revised Code (formerly subdivision 1 of Section 12223-1, General Code).
It may be that the General Assembly did what it did not intend to do when it enacted Section 8005-7, General Code, and subsequently recodified it as Section 3109.07, Revised Code. However, in determining the intent of the General Assembly, this court must be guided by the ordinary meaning of the words which the General Assembly used at the time that it used them. In our opinion, it would represent legislation by this court if we should give the word "appeal" as used by the General Assembly in its 1951 enactment a different meaning from its ordinary meaning in 1951, where the General Assembly expressed no intention that such a different meaning should be given.
It is further argued in effect that, since Section 3109.07, Revised Code, does not provide the manner of review or fix the time in which the bond provided for therein must be filed, the general statutes relative to appeals should be followed rather than Section 3109.07. Although the latter statute does specify how an appeal "may be had," i.e., "upon the appellant's giving bond" as therein specified, it does not specify the time within which that must be done. In our opinion, this does not prevent the operation of the requirements of that statute as to "giving bond" as a condition of the right to appeal. The review on appeal is to be "as provided in" the general statutes relative to appeal "unless otherwise provided by law." Section 2505.03, Revised Code. It has been otherwise provided to some extent by Section 3109.07, Revised Code, and the requirements of that statute must be met where they are applicable, as they are in the instant case. The time within which the appeal must "be perfected" will necessarily be as specified in Section 2505.07, Revised Code, since it is "not otherwise provided by law."
Judgment affirmed.
STEWART, BELL and MATTHIAS, JJ., concur.
WEYGANDT, C.J., ZIMMERMAN and HERBERT, JJ., dissent.
The majority opinion recites briefly the history of former Section 8035, General Code (originally passed in 1893 as Section 3140-1, Revised Statutes), and its invalidation by the decision of this court in the West case, its subsequent repeal in 1951 and re-enactment as Section 8005-7, General Code (see 124 Ohio Laws, 178, 196), and recodification as Section 3109.07, Revised Code.
That opinion concedes that this section is not comprehensive. It provides no manner of review or any period within which a notice of appeal must be filed, nor does it even fix a time for furnishing a bond. Admittedly, resort must be had to other provisions of the Appellate Procedure Act to implement an appeal such as the one under consideration here."
The conclusion is then reached that the word, "appeal," as used by the General Assembly in its 1951 enactment, did not have a pre-1912 meaning but rather a 1951 meaning, with which conclusion the minority are in accord. Nevertheless, the majority view is based on the reincarnated, incomplete and indefinite statute instead of the clear specific provisions of the Appellate Procedure Act.
Paragraph four of the syllabus, while giving to the word, "appeal," the meaning specified in subdivision (A) of Section 2505.01, Revised Code, does not go further and classify such an appeal as falling under either subdivision (B) or (C).
In Section 3109.07, Revised Code, no mention is made of either an appeal on questions of law or an appeal on questions of law and fact. Although not specifically stated, the import of the majority opinion would seem to be that the General Assembly in its 1951 enactment did not intend this appeal to be one on questions of law and fact, but rather on questions of law alone.
Certainly, if we reject, as we do, the pre-1912 meaning of the word, "appeal," and accept a 1951 meaning, reading into Section 3109.07 certain of the provisions of the Appellate Procedure Act in order to implement an appeal such as the one under consideration here, we cannot disregard the provisions of Section 2505.23, Revised Code, requiring that "whenever an appeal on questions of law and fact is taken in a case in which it is determined by the appellate court that the appellant is not permitted to retry the facts, the appeal shall not be dismissed, but it shall stand for hearing on appeal on questions of law."
No bond being required for an appeal on questions of law, failure to file a bond in the instant case should not be held fatal.
The confusing result of the decision arrived at here is that proceedings involving the custody of children following a divorce will be the only type of ordinary civil action requiring a bond for an appeal on questions of law alone.
WEYGANDT, C.J., and ZIMMERMAN, J., concur in the foregoing dissenting opinion.