Harding v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co.

25 Ohio C.C. Dec. 617 | Ohio Ct. App. | 1914

Swing, J.; Jones, E. H., and Jones, O. B., JJ., concurring.

This is an action from the court of common pleas, brought in this court on the 4th of March, 1914. It was heard in this court on motion to strike the petition from the files, for the reason that it was not brought within the time limited by the statute for the filing of petitions in error. Trial was had in the court of common pleas on the 21st day of October, 1913. A verdict was rendered for defendant on October 23, 1913, and judgment entered on the verdict November 17, 1913.

On April 28, 1913, the legislature amended Section 12270, General Code, so as to read as follows:

“No proceedings to reverse, vacate or modify a judgment or final order shall be commenced unless within seventy days after the entry of the judgment or final order complained of; or in case the person entitled to such proceedings is an infant, a person of unsound mind, or imprisoned, within seventy days exclusive of the time of such disability.”

The section before it was amended provided four months as the time within which such action might be brought. The question presented to us therefore is whether the old or the amended section applies.

The present law applies by the force of the words of the statute, unless Section 26 of the general provisions of the statutes exempts it from the operation of the amended law. This section reads as follows:

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings; unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

The law of April 28, 1913, by force of law went into effect August 8,1913, ninety days from May 9, 1913, the date of approval. The action of Emma E. Harding against the railway company was pending at the time of the passage of the act, and of course was pending in the court of common pleas at the time the law went into effect. Whether or not this action is saved by this general provision of the code must be determined.

The action pending in this court was pending in the court of common pleas when the act of April 28, 1913, went into effect.

The supreme court, in the case of Charles v. Fawley et al., 71 Ohio St., 50, at page 54 in the opinion of the court, speaking of proceedings in error, said:

“Such proceedings recognize the termination of the original case. To institute them it is required that a petition in error be filed in the reviewing court, and to acquire jurisdiction of the person of the adverse party there must be the issuance and service of summons; whereas, the steps necessary to effect an appeal are taken in the court having jurisdiction of the original action and the adversary party is bound thereby without summons. An obvious analogy is found in the doctrine of lis pen-dens where the distinction between appeals and proceedings in error, in this respect, is recognized. The property which is the subject of a suit is bound by its event not only while the case is pending in the court of first resort, but also while it is pending in a court to which it may be taken by appeal; but where a review of the judgment is sought by proceedings in error, the suit is regarded as ended by the judgment of the court of first resort. This distinction was recognized in Heirs of Ludlow v. Kidd’s Exrs., 3 Ohio, 541, where Sherman, J., speaks of an appeal as a proceeding in the original cause, and concludes that its effect is to continue the cause and suspend the decree of the inferior tribunal until the judgment of the tribunal to which the appeal is taken.”

Mr. Geo. W. Harding, for plaintiff in error. Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendant in error.

We have carefully gone over the cases cited by counsel in argument, as well as others that we have found in the supreme court and circuit courts, especially the case of Hays v. Olentangy Park Co., 1 C. C., N. S., 101, and the case of McAlpin v. Clark, 1 N. P., 195, and have arrived at the conclusion that the proceeding in error is an independent action, and that the statute limiting the time in which such proceeding may be brought to seventy days applies in a case where a judgment was rendered after that law went into effect and which judgment is sought to be reversed in a proceeding in error, which is the case here, this action in this court having been brought 107 days after the rendition of the judgment in the court below. The judgment of the court of common pleas was rendered after the law of 1913 went into effect, and it must apply.

We think the motion was well taken, and the petition is therefore stricken from the docket.

Motion to dismiss sustained.