61 Ohio St. 2d 277 | Ohio | 1980
In this cause, we need only determine whether, under Civ. R. 60(B),
Assuming, arguendo, that an effective filing of a Civ. R. 41(A)(1)(a) notice of dismissal does not divest the trial court of jurisdiction, cf. American Cyanamid Co. v. McGhee (C.A. 5, 1963), 317 F. 2d 295, the trial court was nevertheless incompetent to grant plaintiff relief. Civ. R. 60(B) is restrictive in that it permits the court to grant relief only from certain “final judgments], order[s], or proceeding^].”
The judgment of the Court of Appeals is thus reversed and the cause remanded to the trial court with instructions that it
Judgment reversed and cause remanded.
In relevant part, Civ. R. 60(B) provides:
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons:”
Civ. R. 41(A) provides, in part:
“(1) ***[A]n action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial * * *. Unless otherwise stated in the notice of dismissal* * *, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court, an action based on or including the same claim.”
In relevant part, Civ. R. 41(B)(1) provides:
Pursuant to Civ. R. 41 (B)(3), the judge specified the Civ. R. 41 (B)(1) involuntary dismissal to be “without prejudice” and thus prevented it from having a res judicata effect.
The trial judge and both counsel assumed that while an involuntary dismissal without prejudice pursuant to Civ. R. 41(B)(1) would invoke the statute of limitations savings clause, R. C. 2305.19, plaintiff’s voluntary dismissal pursuant to Civ. R. 41(A)(1)(a) would not. See Beckner v. Stover (1969), 18 Ohio St. 2d 36.
Defendant does not dispute the court’s inherent power to determine its jurisdiction which herein includes, inter alia, the power to determine if the filing complied with Civ. R. 41(A)(1)(a).
“Since ‘judgment’ is defined [in Rule 54(a)] as including a decree and any order from which an appeal lies***; and since final judgment is normally appealable, * * *the words ‘order, or proceeding’ in 60(b) can usually add nothing to what is embraced within the term ‘judgment.’ ” 7 Moore’s Federal Practice (2 Ed. 1979) 341, at n. 9, Paragraph 60.27[1].
See, also, id., at page 220, Paragraph 60.18 [8].