
    WESTERN RESERVE MUTUAL-CASUALTY CO., Plaintiff-Appellee v HOLSTEIN et, Defendant-Appellant
    Ohio Appeals, 2nd District, Franklin County.
    No. 3487.
    Decided Oct. 8th, 1942.
    
      Wilbur E. Benoy, Columbus, for plaintiff-appellee.
    Hamilton & Kramer, Columbus, for defendant-appellant, Bruno Holstein.
   OPINION

By BARNES, J.

The above-entitled cause is now being determined as an error proceeding by reason of appeal of Bruno Holstein, defendant, on questions of lav; from the judgment of the Court of Common Pleas of Franklin County, Ohio.

The original action in the Common Pleas Court was one brought by plaintiff-appellee for a declaratory judgment asserting that the policy of insurance issued to defendant Clyde L. Hall on his application for insurance was inoperative because procured by fraud, and that the automobile which caused injuries was driven by said Hall while intoxicated, in violation of the policy conditions.

After a complete and full trial, the court entered a judgment declaring that The Western Reserve Mutual Casualty Company was under no obligation to defendant Clyde L. Hail, or to pay any judgment procured against him by reason of both:

1. Fraud in procurement;

2. Violation of the policy conditions.

The trial court filed his written opinion June 10, 1941, finding for plaintiff, The Western Reserve Mutual Casualty Company. Thereafter counsel for the Casualty Company, following the procedure outlined by our court in the case of In re Estate of Lowry, 66 Oh Ap, 437, prepared a finding entry, presented same to opposite counsel, which it approved, and then filed June 24, 1941. No motion for new trial being filed within three days from the filing date of the finding entry, final judgment was entered and journalized on July 2nd, 1941.

On July 2nd, 1941, the defendant, Bruno Holstein, filed a purported motion for new trial. On November 13, 1941, counsel for the Casualty Company filed a motion to strike the motion for new trial of defendant Holstein, for the reason that said motion was not filed within three days of the finding entry. After hearing, the trial court sustained the motion to strike.

This is the order from which Bruno Holstein prosecutes error.

The assignments of error were set forth in three separately stated and numbered specifications, as follows:

1. In sustaining the motion on January 30, 1942, to strike from the files the motion for new trial filed by the defendant in said court.

2. In failing, neglecting and refusing to grant to this defendant a hearing on his motion for new trial filed July 2, 1941.

3. Other errors plainly apparent on the record.

The brief of counsel for defendant-appellant definitely discloses that the sole and only error complained of is the action of the trial court in striking from the files defendant Holstein’s motion for a new trial. It may be noted that the motion for new trial was not filed within three days after the Vfiling of the written opinion of the trial judge or the filing of the ) finding entry. So that upon any [determination of the meaning of '“decision” as employed in §11578 GC the motion was not filed in time.

From appellant’s brief we are led to the conclusion that counsel recognize their position as contrary tO' our pronouncement made in the case of In re Estate of Lowry, 66 Oh Ap 437, but question the correctness of our decision in the Lowry case and, we assume, with the idea of seeking a review in the Supreme Court.

For a period of years our court were definitely committed to the principle pronounced in the Lowry case. We have made similar pronouncements in other cases and not infrequently announced from the bench that where a case was tried before a judge, (either a chancery case or a law case where jury was waived) the orderly procedure was to file a finding entry, which would have similar status to the verdict of a jury, and thereby would definitely fix the running of the three day period for filing motion for new trial, as fixed by §11578 GC.

Several years ago, in a Clark County ease, Cultice v DeMaro Realty Company, we were at first of the opinion, 16 Abs 396, that the language used in the section fixing the time for filing the motion for new trial was referable to the date of the decision. This was predicated upon the language of the section wherein it says:

“The application for new trial * * * must be made within three days after the verdict or decision is rendered * * *.”

On the application for rehearing calling our attention to the decision of the Supreme Court in at least two cases, we felt compelled to change our holding, 16 Abs 624. The import of these decisions of the Supreme Court, as we viewed it, very definitely determined that the word “decision” did not mean a written or oral opinion of the court, since courts speak only through their journals, and the word “decision” must be construed to mean judgment. It was following this Clark County case that we sought to formulate an orderly procedure through which litigants would be protected in seeking a review.

The leading case on this question was The Industrial Commission of Ohio v Musselli, 102 Oh St 10. The judgment in this case was by a divided court, Hough and Matthias dissenting. The first syllabus reads as follows:

“1. The term ‘decision’, found in §11578 GC, is used in that section in the sense of judgment. The court speaks through its journals and a judgment is not rendered until it is reduced to a journal entry.”

We find a similar pronouncement made by the Supreme Court in State, ex rel v Day, 136 Oh St 477, the first syllabus of which refers to and approves the case of Will v McCoy, 135 Oh St, 241. In the opinion at the bottom of page 479 and top of page 480 quotation is made from the opinion of Judge Jones in the case of The Industrial Commission v Musselli, supra.

In a very recent case decided by the Supreme Court, In re Estate of Lowry, 140 Oh St, 223, the Supreme Court very definitely altered its former views as to the meaning of the word “decision”, as used in §11578 GC, Syllabi 1 and 3 read as follows:

“1. Where an action at law is submitted to the court, trial by jury being waived by the parties, the finding of the court is the equivalent of a verdict of a jury and is to be governed by all statutes relating to verdicts. (Boedker v Warren E. Richards Co., 124 Oh St, 12, approved and followed; Industrial Commission v Musselli, 102 Oh St 10, modified.)
“2. In a case wherein trial by jury, was waived and the trial judge, after hearing, rendered a decision on the issues presented and thereafter overruled a motion for new trial, Which motion had been filed within three days after the finding and decision and prior to the entry of judgment in conformity therewith, a reviewing court is not precluded from considering the case upon the weight of the evidence, upon the ground that such motion for new trial was prematurely filed.”

Matthias, J., speaking for the court definitely bases his conclusion on the theory that “decision” does not necessarily mean judgment. On page 227 of the opinion we find the following:

“It must be conceded that some confusion has arisen in Ohio by reason of the announcement of this court in the case of Industrial Commission v Musselli, 102 Oh St 10, 130 N. E. 32, wherein it is stated that the term ‘decision’ is used in the sense of judgment. Subsequent decisions by this court, and particularly that in the Boedker case, supra, have had the effect of modifying the statement made in the Musselli case above referred to.”

Until this decision our court had been unable to construe the Boedker case as modifying the rule set out in the Musselli case.

The decision of the Supreme Court In re Estate of Lowry is the last pronouncement and must be followed.

• In line with the principles announced in the Lowry case it is very clearly and positively determined that the motion for new trial in the instant case was not filed in time, and further that the trial court committed no error in striking the purported motion from the file.

Ordinarily no extended opinion would be necessary in deciding this case, but we are doing so in order to give as much publicity as possible to the new rule adopted by. the Supreme Court so that litigants seeking a review may timely file their motion for new trial, where motion for new trial is necessary to prevent the errors complained of.

The judgment of the trial court will be affirmed, and costs in this court will be adjudged against the appellant.

GEIGER, FJ., & HORNBECK, J., concur.  