164 N.E.2d 595 | Ohio Ct. App. | 1959
This is an appeal on questions of law from an order of the Common Pleas Court of Montgomery County vacating a prior order dismissing the case for want of prosecution. *193
Plaintiff's action was an appeal from an order of the Industrial Commission of Ohio denying his claim to benefits for an alleged injury. The petition was filed on April 5, 1954. The defendant filed an answer on April 21, 1954, which was in the nature of a general denial. Nothing was done in the matter and no papers were filed in the cause until April 2, 1957, on which date an entry was filed which reads as follows: "This case is dismissed at plaintiff's cost for want of prosecution. No record, judgment and execution awarded and costs." It appears that the court acted sua sponte in dismissing the action.
On February 28, 1958, an entry vacating the dismissal entry was filed which reads as follows: "Upon application of the plaintiff, by his attorney, and upon good cause shown, the entry of April 2nd, 1957, dismissing this action for want of prosecution, is hereby vacated and set aside and this cause is reinstated on the docket and ordered assigned for trial."
Counsel for plaintiff practices law in Columbus, Ohio. Counsel for both plaintiff and defendant in their briefs have made certain representations to this court as to certain factual matters which are not controlling and which we cannot consider inasmuch as they do not appear of record. We can consider only matters of record.
Both counsel have briefed the questions presented in light of the statutory provisions applicable to ordinary civil actions. Although not determinative, we first discuss the Code sections applicable to ordinary civil actions, inasmuch as counsel have approached the questions involved from this viewpoint.
The defendant contends that there has not been a compliance with the provisions of Section
"For mistake, neglect, or omission of the clerk, orirregularity in obtaining a judgment or order." (Emphasis ours.)
Under Section
Section
"An action may be dismissed without prejudice to a future action;
"(A) By the plaintiff, before its final submission to the jury, or to the court, when the trial is by the court;
"(B) By the court, when the plaintiff fails to appear at the trial;
"(C) By the court, for the want of necessary parties;
"(D) By the court, on the application of some of the defendants, when there are others whom the plaintiff fails to prosecute with diligence;
"(E) By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action;
"(F) By the plaintiff, in vacation, on payment of costs.
"The clerk shall forthwith make an entry thereof on the journal, whereupon the dismissal shall take effect. This section does not apply to an appeal on questions of law, or a case in which a counterclaim has been filed.
"In all other cases the decision must be on the merits, upon the trial of the action."
It will be observed that the record does not show that the action was dismissed upon any of the grounds mentioned in the above section. If none of the enumerated grounds are shown to exist, the action can be dismissed only under this section upon the trial of the action, as stated in the last paragraph.
Section
"The court may dismiss a petition with costs in favor of one or more defendants in case of unreasonable neglect on the part ofthe plaintiff to serve the summons on other defendants, or toproceed in the cause against the defendants served." (Emphasis ours.)
In the entry of dismissal dated April 2, 1957, it is stated that the case is dismissed "for want of prosecution." The provisions of Section
However, we do not classify this action as an ordinary civil action for the reason that sections of the Code, other than those above cited, apply. If the dismissal order was an invalid order, the court very properly vacated such order, and no error was committed. We consider whether the dismissal order was a valid order. Section 1465-90, General Code, under which this appeal was taken, required the court to certify the finding of the court or verdict of the jury to the Industrial Commission, and provided further:
"No such certificate shall be placed upon the record of judgments until such certificate has been submitted to the Attorney General and no entry except an entry setting forth thetrial of the case and the verdict of the jury shall be placedupon the record of the court until such entry has been sosubmitted." (Emphasis ours.)
The record does not show a compliance with the provisions of that section.
In Roma v. Industrial Commission,
"To defeat the right of this claimant under these circumstances otherwise than on the merits of the controversy would be entirely out of accord with the principles and objects sought to be attained by the Workmen's Compensation Act."
The rationale of this statement is that the action instituted by the claimant may not be dismissed without a hearing first had. The Workmen's Compensation Act must be construed liberally in favor of the claimant. After a careful consideration of the provisions of the Act, we are of the opinion that the action of the claimant instituted in the Court of Common Pleas may not be dismissed without a hearing and without notice, which was done in the case at bar.
In support of the view we take in this case, we cite the *196
opinion of the Court of Appeals of the Tenth Appellate District, in Contris v. Board of Liquor Control,
"* * * the court, or the jury, under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in such fund upon the evidence contained in such record and no other evidence * * *."
The statute contemplates a hearing. The order dismissing the action without a hearing and without notice to the claimant was an invalid order. No error was committed in vacating such order. We find no assignment of error well made.
Judgment affirmed.
HORNBECK, P. J., and CRAWFORD, J., concur. *197