7 Ohio Law. Abs. 570 | Ohio Ct. App. | 1929
It appears from the record that, after a total loss by fire, the plaintiff delivered
The deprivation of knowledge by one party to the contract as to the terms of the same is not the basis or foundation for waiver; because of the proposition of law that, in the absence of fraud, each party to an instrument of writing is equally charged with knowledge of the terms of the instrument which they execute.
That parties to an insurance contract may provide a limitation within which suit must be commenced, providing the same is not unreasonable, is the settled law of Ohio, as laid down in Appel vs. Cooper Insurance Co., 76 OS. 52, and upon the doctrine that an Insurance Company can commit no act which is a waiver of that knowledge which the other contracting party is presumed by law to possess, we also find support in the reading of the opinion in that case, as well as in Stradley vs. Hartford Insurance Company, 21 N. P. N. S. 286, and many other authorities, all of which are to the effect that a provision in an insurance policy duly delivered and accepted fixing a period in which suit must be commenced, is legal and binding, upon the parties.
In the ultimate analysis of the issue under discussion, it seems to us clear that there was no error of a prejudicial nature in the ruling of the court in sustaining the motion for judgment in favor of the defendant Insurance Company, on the amended petition and the opening statement of counsel, and rendering judgment as a matter of law for the defendant.
It is asserted that we have no jurisdiction for the reason that these proceedings in error to reverse the judgment below were in violation of 12270 GC., which provides that 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. The judgment was rendered May 17th, 1928.
The record herein shows that the plaintiff did not file his bill of exceptions until July 19th, 1928 which was over forty days after the judgment, and the petition in error and transcript were not filed until August 16th, 1928, a period of ninety-one days after the entry of the judgment, notwithstanding the statutory time of seventy days after the entry of the judgment provided for in 12270 GC.
In the case of Young vs. Shallenberger, 53 OS. 291, we find authority for declaring that, under the record, this court is without jurisdiction, by reason of the non-compliance with the section of the Code above quoted.
In the case of Craig vs. Welply, 104 OS. 312, our Supreme Court held that the time begins to run from the date of the judgment sought to be reversed, and not from the overruling of the motion for a new trial in the case, and we find the same reasoning in the well known case of Wells vs. Wells, 105 OS. 471, where the court again holds that the seventy days begin to run from the date of the entry of the decree and not from the date of the overruling of the motion for a new trial.
In the case ,at bar it is argued by able counsel for the plaintiff that the entry of judgment for the defendant was made prior to the filing of a motion for a new trial and that, therefore, the judgment was invalid, because the plaintiff had the statutory time, subsequent to the entry of the judgment for filing a motion for a new trial, to have the same sustained or overruled, but as we view the question, the court below was determining a question of pure law arising from the amended petition and the opening statement, and the motion was not for a directed verdict, but for a judgment arising from these two propositions in favor of the defendant.
These being our views, the motion to dismiss the petition in error is sustained, and an entry may be made accordingly.