160 N.E.2d 358 | Ohio Ct. App. | 1958
Appellee moves to dismiss the appeal on the ground that the notice thereof was not filed within the time provided by law.
On February 7, 1957, the court made the following entry on its trial docket:
"February 7, parties present with counsel. Jury waived; stenographer ordered. Trial had. Finding in favor of plaintiffs and against defendants and damages assessed at one hundred *496 dollars ($100) and costs. Judgment on findings. (Signed) Judge Macelwane."
On the same day, the docket entry was recorded on the journal by the clerk. Counsel for the parties were unaware of the journalization by the clerk and after an extended period of negotiations they approved a formal journal entry which was signed by the court and filed on October 28, 1957.
Notice of appeal was filed on October 31, 1957, designating the judgment entered October 28, 1957.
With respect to journal entries, the Rules of the Court of Common Pleas provide in part as follows:
"10-(a) If no direction appears in the docket entry as to journalization, the clerk shall journalize each docket entry as a matter of course. Upon request the clerk shall provide to counsel copies of such entries on the journal.
"10-(b) Where the docket entry provides: `See journal entry,' counsel for the prevailing party or parties shall within three (3) days thereafter prepare and submit a proper journal entry to opposing counsel who shall approve or reject and return the same within two days after its receipt."
Section
"When a trial by jury has been had and a verdict rendered, unless the court orders the case reserved for future argument or consideration, a journal entry of judgment in conformity to the verdict shall be approved by the court in writing and filed with the clerk for journalization."
The rendition of a judgment is the judicial act of the court, but the entry of judgment on the journal is purely a ministerial act, whether performed by the clerk under the direction of the court or pursuant to statute or rule of court, or by a judge acting as clerk of his own court. Hocking Valley Ry. Co. v.Cluster Coal Feed Co.,
Section
"When a trial by jury has been had, judgment must be *497 rendered by the clerk in conformity to the verdict, unless it is special, or the court orders the case to be reserved for future argument or consideration."
Section 382 of the Code became Section 5326 of the Revised Statutes.
In construing the provisions of Section 5326, Revised Statutes, the Supreme Court held that a judgment entered by the clerk was regular and valid although entered before the expiration of the statutory time for the filing of a motion for a new trial and that under Section 6723, Revised Statutes, a proceeding in error must be commenced within six months from the time of entry of the judgment by the clerk; if commenced thereafter, the petition must be dismissed because the court acquires no jurisdiction of the proceeding. Young v.Shallenberger (1895),
After the decisions in the Young and Dowty cases, in 1902, the General Assembly enacted a substantial amendment of Section 5326, Revised Statutes (95 Ohio Laws, 351), reading as follows:
"That when a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless the verdict is special, or the court order the case to be reserved for future argument or consideration immediately after the time allowed by law for the filing of a motion for a new trial if such motion has not been filed; if a motion for a new trial has been filed then such judgment shall be entered only when the court has sustained such verdict by the overruling of such motion for a new trial and shall upon such overruling of said motion be then immediately entered."
The provisions of the 1902 enactment were carried into Section 11599, General Code (1910), in substantially the same form, except the provisions were divided into three sentences.
Under the statute prior to 1902, it was the duty of the clerk to enter the judgment upon a verdict immediately, unless further *498
argument or consideration was reserved by the court. But after the 1902 amendment, the clerk had no power to enter a judgment until after the time had expired for the filing of a motion for a new trial or after such motion was overruled. Throughout its history, the statute has referred to the entry upon a verdict in a trial by jury. In Craig v. Welply (1922),
In Shelley v. State (1930),
"1. Where an action at law is submitted to the court, trial by jury being waived by the parties, the finding of the court is the equivalent of a verdict of a jury and is to be governed by all statutes relating to verdicts.
"2. Under the provisions of Section 11599, General Code (Section 5326, Revised Statutes, as amended in 1902, 95 Ohio Laws, 351) an entry of judgment in a suit at law before the expiration of the three-day period within which a motion for a *499 new trial may be filed, is ineffective to start the running of the limitation for filing a petition in error.
"3. In the event a motion for a new trial is in fact filed within three days after the entry of the judgment, the limitation within which a petition in error may be filed runs from the entry of the judgment upon the overruling of such motion for a new trial."
In the Boedker case the motion for a new trial was filed within two days after the entry of the decision of the judge upon the journal, was considered by the court, and was overruled and judgment re-entered a year later. In the instant case, no motion for a new trial was filed. Although the Boedker case can be distinguished from the instant case upon the facts presented therein, the first paragraph of the syllabus states in no uncertain terms that the finding of the court without the intervention of a jury is equivalent to a verdict of a jury, and that the provisions of Section 11599, General Code, prevent the running of the limitation of time for proceedings in error.
The Boedker case has been uniformly followed and applied by the Courts of Appeals. Columbus Ry., Power Light Co. v. C. C. Furniture, Warehouse Auction Co.,
In the Boedker case, the court refers to two other cases having been reviewed by the court, "but they were equity cases and the statutes relating to verdicts can therefore have no application." The court also said:
"In 1922 this court decided the case of Craig v. Welply,
The Craig and Wells cases were approved and followed a year later in Heigel v. Heigel (1932),
Section 11599, General Code, therefore, purported to have no application to chancery or other actions wherein a trial by jury was not required, but in Von Gunten v. New Justice Coal *501 Co. (1947),
"If an application for a new trial is necessary in a chancery case, and that question has been answered in the affirmative in the case of Cullen v. Schmit, supra [
In In re Estate of Lowry (1942),
The Boedker and Lowry cases are somewhat inconsistent withHnizdil v. White Motor Co. (1949),
"Thus, the argument of defendant, based on the Boedker case, when pursued in the light of the Von Gunten case, leads to the conclusion that each of the following should be regarded as equivalents in construing the language quoted from Section 6 of Article IV of the Constitution:
"1. The verdict of a jury.
"2. The finding of the court where a jury was waived.
"3. The decision of a court in a chancery case.
"The absurdity of such a conclusion should demonstrate the fallacy of the argument." *502
Since the Boedker and Lowry cases were decided, the Code of Civil Procedure has been materially altered.
In 1945, Section 11578, General Code, was amended (121 Ohio Laws, 367) to provide that an application for a new trial must be made within ten days after the journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization. Section 11599, General Code, was amended to provide that "When a trial by jury has been had, a journal entry of judgment in conformity to the verdict shall be approved by the court in writing and filed with the clerk for journalization unless the court orders the case to be reserved for future argument or consideration." 121 Ohio Laws, 367. The provisions of former Section 11599, General Code, with respect to entry of judgment by the clerk and prohibiting such entry pending determination of a motion for a new trial were eliminated. Since amended Section 11578, General Code, required that the motion for a new trial be filed after judgment rather than within three days after a verdict or decision, there was no reason to delay entry of judgment upon a verdict or decision except upon reservation by the court.
In 1947, Section 11599, General Code, was again amended by providing that "When a trial by jury has been had and a verdict rendered, unless a motion for judgment notwithstanding the verdict shall have been filed, or the court orders the case reserved * * * a journal entry of judgment in conformity to the verdict shall be approved by the court in writing and filed with the clerk for journalization." 122 Ohio Laws, 686. This amendment was carried into Section
It is to be observed that the traditional practice authorizing the clerk to journalize verdicts as provided in Section 382 of the Code of Civil Procedure, Section 5326, Revised Statutes, and Section 11599, General Code, was abandoned in 1945, except as now provided in Section
It may be contended that a docket entry in any case, jury or otherwise, constitutes a written "direction" to the clerk by the court authorizing journalization by the clerk upon such direction, but the provisions of Section
In several sections amended by the 1945 act, reference is made to a journal entry approved by the court in writing and filed with the clerk for journalization — Sections 11578, 11599 and the first and third paragraphs of Section 12223-7, General Code. The same phrase is carried in Sections
Since we are bound to follow the principle announced in theBoedker and Lowry cases, we are constrained to hold in the instant case, notwithstanding there was no trial and verdict by a jury, that the clerk was not authorized to journalize the finding and decision of the court in an action at law tried without a jury. We recognize that the provisions of Rule 10 are salutary in the interest of expediting the business of the court and relieving *504
the judge from the performance of a ministerial function, but we are compelled to hold that the provisions of Rule 10-(a) are in conflict with the express provisions of Section
Notwithstanding the foregoing observations, the journalization, although contrary to Section
It is axiomatic that a court which has rendered a judgment may open, vacate, or modify it during the term at which it was rendered, in the exercise of sound discretion. Tims v. HollandFurnace Co.,
The motion to dismiss the appeal from the judgment entered *505 October 28, 1957, is overruled and the judgment is reversed and the cause remanded to the Common Pleas Court without prejudice to the right of the plaintiff-appellant to file a petition to vacate the judgment of February 7, 1957.
Judgment accordingly.
DEEDS and SMITH, JJ., concur.
To the writer, the contention that Rule 10 makes no provision for notice to the parties upon journalization by the court or by the clerk, is untenable. It is conceded by counsel that the February 7, 1957, entry was published in the Legal News. Upon the submission of a case to the court for decision, it is the duty of counsel to keep in touch with the proceeding in the interest of protecting the rights of his client incident to filing motion for new trial, etc.