
    Nimon v. Klein.
    (Decided May 9, 1932.)
    
      Mr. Samuel Saxe, for plaintiff in error.
    
      Mr. Nicholas Klein, for defendant in error.
   Hamilton, J.

Nicholas Klein, defendant in error here, brought suit in the municipal court of Cincinnati against Morris. Nimon, plaintiff in error here, on an account for legal services. Klein procured a judgment. Nimon prosecuted error to the court of common pleas, which court affirmed the judgment of the municipal court. From that judgment of affirmance Nimon prosecutes error to this court.

The only ground of error urged here is that the municipal court erred in overruling an application for separate findings of fact and conclusions of law.

There is no hill of exceptions, but apparently none is needed to raise the point. The record discloses the following action by the trial court and the dates which are important:

December 30, 1930. “Case called, parties in court. Trial had. Judgment for plaintiff for $84.00 and also costs of suit.”

January 2, 1931. “Motion for a separate finding of law and fact filed.”

January 2, 1931. “Motion to set aside judgment and for a new trial filed.”

January 10, 1931. “Motion for separate finding of fact and law overruled. Exceptions.”

January 10, 1931. “On motion of Klein, the motion for a new trial was stricken from the files, on the ground that the same was not filed according to law.”

As above stated, the error complained of is the overruling of the trial court of the motion for a separate finding of fact and law. It is the law that, where such a request is properly made, it is mandatory upon the trial court to make separate findings of fact and conclusions of law. In this case, however, judgment was entered on December 30, 1930, which was the October term of that court, as created by statute, Section 1558-19, General Code, which fixes the terms of the municipal court of Cincinnati at three months each, beginning, respectively, on the 1st of January, April, July and October of each year. The motion for a new trial was not filed until the January term. Section 11578, General Code, provides:

“The application for a new trial must be made at the term the verdict * * * is rendered,” etc.

The motion for a new trial, therefore, was not filed in time, and was properly stricken from the files.

We therefore have the situation of an application for separate findings of fact and law with reference to a final judgment rendered at a preceding term, a judgment over which the trial court had lost jurisdiction.

While Section 11470, General Code, which provides for a separate finding, does not in terms put a limitation as to the time in which to make the application, a fair construction is that the request should be made prior to final judgment in the case. Had the motion been filed within time, the judgment would have been but a finding, and not a final judgment. In the absence of such motion — and as above stated there is no such motion, it having been properly stricken from the files — the judgment rendered at the October term was a finality. The request for separate findings of fact and conclusions of law came too late.

The judgment of the court of common pleas, affirming the judgment of the municipal court, is affirmed.

Judgment affirmed.

Ross, P. J., and Cushing, J., concur.  