153 N.E.2d 165 | Ohio Ct. App. | 1958
Leola Elizabeth Laws, doing business as Subway Grill, 76 South Second Street, Newark, Ohio, the appellant herein, is the holder of two permits issued by the Department of Liquor Control for use in connection with her grill. One of them, Class D-1 (Section
On February 9, 1957, appellant's grill was visited by two investigators of the Department of Liquor Control, and, as a result, two charges were filed against appellant, the first charging her with knowingly and willfully allowing prostitutes to loiter and solicit business on her permit premises and the second *234 charging that on the same date a female employee of the appellant solicited from a customer a drink for said employee.
The two charges were heard by the Board of Liquor Control, three witnesses testifying for the prosecution, and three, including the appellant, testifying for the defense. At the conclusion of the hearing, the board found appellant guilty on both charges and revoked both permits.
An appeal was taken to the Common Pleas Court of Franklin County, and, on October 9, 1957, Judge Marshall of the Common Pleas Court rendered a decision affirming the order of the liquor board. A journal entry affirming the liquor board's order based upon the above decision was filed November 18, 1957.
Two notices of appeal were filed. On October 18, 1957, a notice of appeal was filed containing the following language:
"Now comes the defendant-appellant, Leola Elizabeth Laws, and gives notice of appeal to the Court of Appeals of this county from a judgment rendered by the Court of Common Pleas in the above entitled case on the 9th of October, 1957.
"Said appeal is on question of law."
The above notice of appeal was filed nine days after the decision of the court below and approximately thirty days before the filing of the journal entry making that decision effective.
On December 5, 1957, appellant filed a second notice of appeal, which contains the following language:
"Now comes the defendant-appellant, Leola Elizabeth Laws, and gives notice of appeal to the Court of Appeals of this county from a judgment rendered by the Court of Common Pleas in the above entitled case on the 9th day of October, 1957.
"Said appeal is on question of law."
The first notice of appeal, dated October 18, 1957, bears the caption at the top, "In the Court of Appeals of Franklin County, Ohio," but the file indicates that it was filed with the Common Pleas Court of Franklin County, while the second notice of appeal, originally headed in the same manner, has been corrected to indicate Court of Common Pleas, and appears to have been filed in that court.
The notice of appeal of October 18, 1957, was accompanied by a precipe directing the Clerk of Common Pleas Court to *235 "place papers and file with the Court of Appeals and a transcript of documents and journal entries together with such original papers as are necessary to exhibit errors captioned in the above-entitled case."
A precipe containing a similar request accompanied the notice of appeal of December 5, 1957. Apparently the first precipe had not been complied with, as otherwise the journal entry dated November 18, 1957, would, of necessity, be left out of the file when it arrived in the Court of Appeals.
No further action appears to have been taken after December 5, 1957, by either party until 120 days later when, on April 4, 1958, counsel for appellee filed the following motion to dismiss:
"Now comes the appellee, Board of Liquor Control of the State of Ohio, and moves this court for an order dismissing this appeal for the reason that appellant has failed to comply with Rule VII of this court."
Reference is made to former Rule VII of this court for the reason that such numbering and form were in effect prior to the most recent amendment of the rules of this court, effective January 1, 1958. Appellee filed a memorandum in support of the motion, and appellant filed what was entitled "contra memorandum," consisting of eight lines admitting that the brief had not been filed and stating that "it was a complete oversight," but contending "we do not believe it fair to dismiss this appeal, since upon notice, appellant's brief was filed and the cause is now ready for hearing." The latter memorandum was filed April 14, 1958, and on April 11, 1958, a four and one-half page brief, containing two assignments of error, was filed.
The provisions of Section
"Appeals taken on questions of law shall be heard uponassignments of error filed in the cause or set out in the briefsof the appellant before hearing. Errors not specifically pointed out in the record and separately argued by brief may be disregarded, but the court may consider and decide errors which are not assigned or specified. Failure to file such briefs andassignments of error within the time prescribed by the courtrules is cause for dismissal of such appeal. * * *" (Emphasis added.) *236
In 3 Ohio Jurisprudence (2d), 487, Appellate Review, Section 572, it is said in part as follows:
"Rule VII of the Court of Appeals provides that unless otherwise ordered by the court or a judge thereof, briefs shall be filed as follows: Counsel for appellant shall, within fifty days after filing notice of appeal on law only, file with the clerk his brief * * *.
"* * * it is now settled by a specific decision of the Supreme Court, on a case certified on ground of conflict, affirming decisions of other Courts of Appeals, that the brief of the appellant must, under Rule VII, be filed within fifty days from the time of the filing of the notice of the appeal in the lower court, regardless of whether such notice is filed before or on the final day of the twenty days allowed for its filing. * * *"
Cited in support of the above is Anderson v. IndustrialCommission,
As before pointed out, fifty days after December 5, 1957, would expire on January 24, 1958, while the motion of appellee was not filed until seventy days thereafter, or on April 4, 1958, as above pointed out.
But even if this were not true, the motion to dismiss would have to be sustained upon another more compelling ground affecting the jurisdiction of this court. The first notice of appeal, dated October 18, 1957, refers to "a judgment rendered by the Court of Common Pleas in the above entitled case on the 9th of October, 1957."
We have searched the record with care and are unable to find any judgment of the court whatsoever on that date affecting any right of appellant. True, on October 9th there was a decision handed down by the Common Pleas Court of Franklin County, but a decision is not a judgment or a final order from which an appeal may be taken. The judgment or final order in this case was not made until one month later, on November 18, *237 1957, when the journal entry was filed, incorporating the decision and ruling of the court below.
The second notice of appeal was filed December 5, 1957, and seeks to appeal from "a judgment rendered by the Court of Common Pleas in the above-entitled case on the 9th day of October, 1957." This has the same infirmity as the earlier notice of appeal. There was no final judgment or order of the court below on or near that date but only a decision of the trial court, which, as we have said, is not a final order and is not appealable.
To summarize, the appellant was seventy days late with her brief and assignment of errors when the motion to dismiss was filed and seventy-seven days late when the brief actually was filed. No reason or justification was offered except merely the statement that "it was a complete oversight." In addition, an appeal is attempted on what clearly and unmistakably is not a final order.
For the reasons above set forth, the motion to dismiss is well taken and must be sustained.
Motion sustained.
PETREE, P. J., and MILLER, J., concur.
