457 N.E.2d 937 | Ohio Ct. App. | 1983
Plaintiff, Ford Motor Company, filed a timely notice of appeal in the Cuyahoga County Court of Common Pleas from an adverse ruling of the Cleveland Regional Board of Review for Workers' Compensation pursuant to R.C.
No further action was taken by plaintiff or the claimant-defendant, Jerry Hamilton. On March 2, 1982, the court dismissed plaintiff's appeal apparently for want of prosecution pursuant to Civ. R. 41(B)(1).1 Plaintiff now appeals that dismissal citing two assignments of error. For reasons of clarity, we will treat the second assigned error first.
Under R.C.
The claimant-appellee failed to take this step in the case at bar. Thus, the plaintiff (appellant) did all that was required of it while the claimant (appellee) failed to proceed according to statute. Nevertheless, the court dismissed the case for plaintiff's want of prosecution under Civ. R. 41(B)(1). In short, the claimant who "failed to prosecute his action" was rewarded at the expense of the plaintiff that fulfilled its legal responsibility. Since there was no additional duty for plaintiff to perform after perfecting the appeal, we conclude that its appeal was erroneously dismissed. *18
Accordingly, appellant's second assignment of error is sustained.
The record shows that notice was sent to the proper parties when the appeal was perfected, but it is silent as to the notice of dismissal. Nowhere in the file is there any evidence that plaintiff was sent prior notice of the common pleas court's dismissal of its appeal as required by Civ. R. 41(B)(1). In light of this state of the record, the remaining assignment of error is sustained.
Judgment is reversed, the appeal is reinstated and the case is remanded.
Judgment reversed and case remanded.
JACKSON, P.J., and NAHRA, J., concur.
"Where the plaintiff fails to prosecute * * * the court * * * on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim."