54 N.E.2d 952 | Ohio | 1944
The first question to be determined is whether the bill of exceptions in this case was filed in the Common Pleas Court by the defendant within the time required by law. The Court of Appeals found it was so filed, and overruled a motion to strike.
The pertinent part of Section 11564, General Code, reads as follows:
"When * * * the verdict, or if a jury is waived, the findingof the court is against the law and the evidence, * * * the party excepting must reduce his objections to writing, and file them in the cause, not later than forty (40) days after the overruling of the motion for new trial, or the decision of the court, when a motion for new trial is not filed." (Italics ours.)
The terms "decision" and "judgment" have been used interchangeably in opinions by this court (IndustrialCommission v. Musselli,
But regardless as to which of these terms is used in the statute or as to what significance is to be given to each of them, before the action of the court described by any of such terms becomes effective, it must be reduced to writing and officially filed or recorded. The specific question in this case is whether the bill of exceptions was filed not later than 40 days after the "decision" of the trial court, which, in turn, depends upon the answer to the question as to when the "decision" of the court was made. It seems almost axiomatic that if time is to be computed from the decision of the court, such decision must be made a matter of record as the basis of such computation. In this case the notation of the court was entered upon the judge's desk calendar or trial docket January 4, 1943, but it was not entered on the appearance docket or filed for journalization prior to January 19, 1943.
The clerk of the Court of Common Pleas is required by law to keep: (1) An appearance docket; (2) a trial docket and printed duplicates thereof for the use of the court and its officers; (3) a journal; (4) a record; and (5) an execution docket. Section 2878, General Code.
Section 11381, General Code, provides that "the clerk shall make a trial docket at least twelve days before the first day of each term, and the cases shall be set for particular days, in the order in which they stand on the appearance docket." The trial docket, often called the court calendar, is a book containing a list of the titles of all pending actions in numerical *289
order for the convenience of the court, its officers and counsel interested in the litigations. It is often used as a memorandum or desk calendar by each individual judge. But it is not a part of the court record. See Harvey v. Brown,
Ofttimes, as in this case, the court makes a finding coupled with a judgment and the entry is a combination of finding and judgment. Whether, in such case the action of the court be regarded as a "decision" or "judgment," it is not rendered until it is reduced to writing and filed with the clerk for journalization.
The case of Wright, Judge, v. State, ex rel. Eastman,
The bill of exceptions in the instant case was therefore filed within 40 days after the "decision" of the court as required by law.
The next subject of inquiry is whether the plaintiff gave notice to the defendant of his injury, as required by the insurance policy. The Court of Appeals, without opinion, one judge dissenting, reversed the judgment of the Common Pleas Court and rendered final judgment for the defendant, appellee herein, "for error of law in that plaintiff failed to comply with provisions of policy with respect to notice."
The provision requiring written notice of claim within 20 days is a valid and binding requirement and is of the essence of the contract. Travelers' Ins. Co. v. Myers Co.,
The petition makes no claim of waiver or estoppel as to notice, with the result that plaintiff was required, in the absence of proof that such notice was reasonably impossible or was given as soon as reasonably possible, to prove that notice was given within 20 days of his injury as a prerequisite to his right to recover. Home Ins. Co. v. Lindsey,
Even if he had claimed a waiver of notice the undisputed facts would not support such a claim. He clearly *291
suffered a definite injury and was attended and treated by physicians and surgeons regularly after his accident, yet he did not give any notice of claim until more than three months had expired. The plaintiff, under such circumstances, could not claim under the saving provision of the policy to the effect "that notice was given as soon as was reasonably possible."Wilcox v. Metropolitan Life Ins. Co.,
The Court of Appeals did not err in its reversal of the judgment of the Common Pleas Court and in rendering final judgment. The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS and TURNER, JJ., concur.
BELL, J., dissents. *292