Kuhn v. Industrial Commission

26 N.E.2d 592 | Ohio Ct. App. | 1939

This is an appeal from the Court of Common Pleas in an action appealed to that court from an order of the Industrial Commission made on rehearing, denying the application of the plaintiff for compensation out of the Workmen's Compensation Fund. It is, therefore, an action at law in which the issues of fact are triable to a jury. The record, however, shows that a jury was waived and the issues of fact submitted to the court without the intervention of a jury.

The cause was submitted to the court on February 14, 1939. On February 18, 1939, an entry entitled "Judgment finding plaintiff entitled to participate in the Workmen's Compensation Fund and ordering a certified copy sent to the Industrial Commission of Ohio" was spread upon the journal. On February 20, 1939, a motion for a new trial was filed. On March 10, 1939, a notice of intention to appeal was filed. On March 16, 1939, an entry was made overruling the motion for a new trial but not incorporating a judgment.

Under the decision of Boedker v. W.E. Richards Co., 124 Ohio St. 12, 176 N.E. 660, the entry of February 18th had only the legal effect of a finding of facts and the equivalent of the verdict of a jury. It was not in legal contemplation a judgment as the court had no jurisdiction at that stage to enter a judgment.

It will thus be seen that the notice of appeal was filed before a judgment had been rendered, and while a motion for a new trial was still pending.

To confer jurisdiction upon this court, it is necessary that the notice of appeal be filed within twenty days after, not before, the entry of the final order or judgment. Section 12223-7, General Code. This has not been done in this case, and the appeal must be dismissed for want of jurisdiction.

Appeal dismissed.

HAMILTON, P.J., MATTHEWS and ROSS, JJ., concur.