Opinion
No. 36288
Decided May 25, 1960.
Appeal — Judgment of trial court suspended and later reinstated — Appeal from such judgment during period of suspension — No final order at time of appeal and appeal a nullity.
APPEAL from the Court of Appeals for Franklin County.
In the Court of Common Pleas the plaintiff instituted this action on November 9, 1954, to recover money lost by her husband in gambling games conducted by the defendants.
One defendant filed four interrogatories for the plaintiff to answer.
To these interrogatories the plaintiff filed a demurrer.
This demurrer was overruled.
On November 24, 1958, the action was dismissed on the ground that the plaintiff had failed to file answers to the interrogatories within the required statutory period of 30 days.
Two days later on November 26, 1958, the dismissal entry was suspended.
On December 8, the court announced a decision, but it was not journalized until December 15, 1958, when the suspension entry of November 26, 1958, was vacated and the dismissal entry of November 24, 1958, was reinstated.
However, on December 12, 1958, the plaintiff had filed a purported notice of appeal from the dismissal entry of November 24, 1958.
On the attempted appeal to the Court of Appeals on questions of law, that court entered a reversal of the dismissal entry of November 24, 1958, on the ground that the trial court abused its discretion in dismissing the action.
The cause is in this court for a review by reason of the allowance of the defendants' motion to certify the record.
Mr. Mitchel D. Cohen and Mr. Ralph Shapiro, for appellee.
Mr. Donald S. McNamara and Mr. Keith McNamara, for appellants.
An examination of the record discloses that on December 12, 1958, when the plaintiff filed her notice of appeal, the dismissal entry of November 24, 1958, was still in a state of uncertain and indefinite suspension, and there was no final order from which an appeal could be perfected. Hence, the notice of appeal was a nullity and accomplished nothing.
The only final entry in the Court of Common Pleas was that of December 15, 1958, and no notice of appeal from that entry ever was filed although that entry bears the notation that the defendant's attorney previously served plaintiff's attorney with the original of such entry on December 9, 1958, with a request of approval and return; and it bears the further notation that it was not approved, amended or otherwise returned. Hence, the Court of Appeals was without jurisdiction to review the matter since the only final order in the Court of Common Pleas, namely, that of December 15, 1958, was not before it.
It is not necessary, therefore, to review the question of abuse of discretion by the Court of Common Pleas. The attempted reversal of the judgment of that court by the Court of Appeals must be reversed.
The fatal question of jurisdiction of the subject matter is, of course, one that may be raised initially at any time in any court, as was done during the oral arguments in this case.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, WISEMAN, HERBERT and PECK, JJ., concur.
WISEMAN, J., of the Second Appellate District, sitting by designation in the place and stead of MATTHIAS, J., pursuant to Section 2, Article IV of the Constitution.