41 N.E.2d 742 | Ohio Ct. App. | 1939
The only matter now before this court is a motion to dismiss the appeal for the reason that the notice of appeal was not filed "within the time allowed by law."
From the record it appears that the cause, one for damages, had an unusual procedural history. A trial *416 to a jury was had. At the close of all of the evidence, defendant's motion for a directed verdict was overruled, the jury was charged and it deliberated, but, being unable to agree, it was discharged September 15, 1939. September 16th, the court, of its own motion, entered the following order:
"Coming now to pass on defendant's motion, made at the close of the evidence, the court does now what it should have done before, and dismisses the petition of plaintiff. Exceptions. See entry."
That day the plaintiff filed a motion for a new trial.
On September 19th the court caused a journal entry to be filed granting the motion to direct a verdict, entered judgment for defendant and dismissed the petition at plaintiff's cost. The next day plaintiff filed another motion for a new trial.
On November 8th, the court overruled both motions for a new trial and, without vacating the judgment of September 19th, again entered judgment for the defendant and dismissed plaintiff's petition at her cost.
On November 8, 1939, plaintiff filed a notice of appeal on questions of law from the orders and judgments entered September 16th and 19th and November 8th.
The time of perfecting an appeal is fixed by Section 12223-7, General Code, as twenty days "after the order, judgment * * *." That section concludes:
"Provided, that, when a motion for new trial is duly filed by either party within three days after the verdict or decision then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial."
The sole question is: Was a motion for a new trial "duly filed"? If it was, the twenty-day period began to run from November 8th; if not, from September *417 19th, and the "appeal was not perfected within the time allowed by law" and must be dismissed.
"A new trial is a reexamination, in the same court, of an issueof fact, after a verdict by a jury, * * * or a decision by the court." Section 11575, General Code. (Italics ours.) Application for it must be made by written motion (Section 11579, General Code), and, with some exceptions "within three days after the verdict or decision is rendered." Section 11578, General Code. "When a trial by jury has been had," judgment is entered by the clerk "after the time for the filing of a motion for a new trial" and if one is filed, not until it is overruled. Section 11599, General Code. (Italics ours.)
There was a "trial by jury" of "an issue of fact." The court did no more by its order of September 16th and the entry of the 19th, than either direct a verdict for the defendant, or arrest the evidence from the jury and enter final judgment for the defendant, and the statutes relating to verdicts apply. Boedker
v. Warren E. Richards Co.,
In Weaver v. Columbus, Shawnee Hocking Valley Ry. Co.,
"Where, however, the party excepting chooses to avail himself of the right granted by Sections 5305, 5307 and 5308, Revised Statutes [now Sections 11575, 11576, 11578 and 11579, General Code], to include the ground of error in a motion for a new trial, he resubmits the question, and the error should be regarded as arising out of the action of the court in overruling the motion for a new trial.
"This construction of the sections of the statute *418 is necessary, or the party excepting in many instances will be debarred from the exercise of the valuable privilege by the provisions of Sections 5305, 5307 and 5308, Revised Statutes, of a rehearing of the question in the trial court under circumstances more favorable to its deliberate consideration than attended the first investigation."
This case was followed by a predecessor of this court inRafferty v. Toledo Traction Co., 19 C.C., 288, 10 C.D., 347; affirmed
Defendant cites State, ex rel. Longman, v. Welsh,
It is clearly pointed out in State, ex rel. Squire, Supt., v.Winch,
Reason and authority require the overruling of the motion to dismiss this appeal.
Motion overruled.
OVERMYER and LLOYD, JJ., concur.