
    Neth, Exr., v. Neth et al.
    (Decided May 2, 1935.)
    
      Mr. L. E. Speer, for plaintiff in error.
    
      
      Mr. Chester Graham, Mr. D. H. Wysong and Mr. W. S. Rhotehamel, for defendants in error.
   Barnes, J.

The above entitled canse is now being determined on motion of defendants to dismiss proceedings in error on the following grounds:

(1) That said court had no jurisdiction of the person of said defendants in error.

(2) That the provisions of the statute with reference to the time within which proceedings in error can be filed have not been complied with.

At an earlier term of the Court of Common Pleas of Montgomery county, Ohio, there was duly tried and determined an action to set aside the will of George J. Neth, deceased.

It was determined by the verdict of the jury that the paper writing in question was not the last will and testament of the decedent. Motion for new trial was interposed, overruled and final judgment entered upon the verdict.

At a subsequent term, but within the statutory period, one of the proponents filed a petition for new trial on the ground of newly discovered evidence.

On August 25, 1934, after hearing, the trial court by duly journalised order denied the petition for new trial, to which finding plaintiff excepted. On August 28, 1934, motion for new trial was filed, which motion was overruled December 5, 1934.

Petition in error was filed in this court January 31, 1935, which was within 70 days following the overruling of motion for new trial, but was not within the statutory period following the judgment entry of August 25, 1934, denying petition for new trial.

The major question for determination in this court is whether the prescribed period of 70 days within which proceedings in error may be filed dates from August 25, 1934, or December 5, 1934.

Section 12270, General Code, reads as follows:

“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; or in case the person entitled to such proceedings is an infant, a person of unsound mind, or imprisoned, within seventy days exclusive of the time of such disability.”

If the overruling o' notion for new trial was a judgment or final order, then the proceeding in this court was filed within time; if not a final judgment or order then same is not filed within time and the motion to dismiss must be allowed.

The Supreme Court in the case of Young v. Shallenberger, 53 Ohio St., 291, 41 N. E., 518, paragraph four of the syllabus, makes the following announcement: “The overruling of a motion for a new trial is not a final order to which error can be prosecuted.”

And in the case of Wells, Jr., v. Wells, 105 Ohio St., 471, 138 N. E., 71, it is held in the third paragraph of the syllabus:

“A motion for a new trial affects the time when the limitation begins to run only in those cases where the motion for a new trial prevents the entry of a judgment.”

Section 11599, General Code, specifies the class of cases and circumstances under which judgment may not be entered until the expiration of three days for filing motion for new trial, or if motion is, filed within three days then the final judgment follows the adjudication on motion for new trial:

“When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless the verdict is special, or the court orders the case to be reserved for future argument or consideration immediately after the time for the filing of a motion for a new trial if it has not been filed. When a motion for a new trial is filed, then such judgment shall be entered only when the court has sustained such verdict by overruling the motion. Upon such overruling it shall immediately be entered.” (Italics ours.)

Prior to the amendment of the above quoted section of the Code it was the duty of the clerk of courts to enter judgment immediately upon the return of the verdict. The statutory provision for filing motion for new trial was in substance the same as the present provisions. The Supreme Court in the case of Young v. Shallenberger, supra, had under consideration the identical question involved in this case. It was there held that the time for filing proceedings in error would be calculated from the date of entering judgment, and not from date of overruling motion for new trial. It was urged in that case that a party might be deprived of his remedy on error by the court declining or omitting to pass on the motion until the expiration of the time allowed after the rendition of the judgment for commencing the proceedings. Judge Williams, rendering the decision, makes the following comment at page 302:

“It is not to be presumed that the court will disregard its duty, or fail to dispose of the motion at any time when requested by the party; and if he, by consent or inattention, permit the time to expire, he can not complain of the consequences of his own act or omission. The right to prosecute error exists only when conferred by statute; and- the remedy, to be effective, must be pursued in the time and mode provided. 4 The statute has declared, in explicit terms, that ‘no proceeding to reverse a judgment shall be commenced unless within six months after the rendition of the judgment,’ and the court is powerless to enlarge its terms, if it desired to do so. The time begins to run from the day of the rendition of the judgment. Robin son v. Orr, 16 Ohio St., 284; Bowen v. Bowen, 36 Ohio St., 312.”

The same principle is announced in the case of Dowty v. Pepple, 58 Ohio St., 395, 50 N. E., 923.

The case of Weaver v. Columbus, Shawnee & Hocking Valley Ry. Co., 55 Ohio St., 491, 45 N. E., 717, has been cited in support of the contention that the period of time within which bill of exceptions may be taken should be computed from the day motion for new trial was overruled. The second proposition of the syllabus would seem to support the contention, but an examination of Section 5301, Revised Statutes, as amended March 22, 1892, 89 Ohio Laws, 124, in force when the bill of exceptions, which was the subject of the controversy in that case was taken, will render understandable the reason for the court’s announcement. Section 5301, as then enacted, is quoted in the opinion, at page 493:

“Sec. 5301. When the decision is not entered on the record or the grounds of the objection do not sufficiently appear in the entry, or the exception is to a decision of the court on a motion to direct a non-suit, or to arrest the testimony from the jury, or for a new trial for misdirection by the court to the jury, or because the verdict, or if a jury is waived, the finding of the court is against the law and the evidence, or in the admission or rejection of evidence, the party excepting must reduce his exceptions to writing and present the same to the trial judge or judges for allowance within fifty days after overruling of the motion for a new trial, or the decision of the court where a motion for a new trial is not necessary.” (Italics ours.)

In the cases thus far cited actions at law were under consideration, but the rule requiring motion for new trial in order to bring certain errors before the court is requisite in equity cases as well as in actions at law. Section 11578, General Code, by its express language necessarily includes both actions at law and actions in equity. The Supreme Court in very early decisions laid down this principle and the rule has never been changed. Turner, by Gdn., v. Turner, 17 Ohio St., 449; Spangler v. Brown, 26 Ohio St., 389.

However, the amendment in 1902 of Section 5326, Revised Statutes, now Section 11599, General Code, only delayed entering of judgment in actions at law. This entire subject is discussed in the case of Boedker v. Warren E. Richards Co., 124 Ohio St., 12, 176 N. E., 660. Chief Justice Marshall on page 19 refers to the rule as it applies to actions at law both before and after the amendment of 1902 and then calls attention to two cases decided by the Supreme Court in 1922. Craig v. Welply, 104 Ohio St., 312, 136 N. E., 143; Wells, Jr., v. Wells, supra. We quote the following from same page:

“Neither of those cases was triable by a jury. There was no intervention of a verdict. The court in each instance was at liberty to enter the decree immediately upon the termination of the cause.”

Keeping in mind that Section 11599, as amended in 1902, in so far as it limited entering judgment, only applied to cases at law, we very readily can distinguish the rule when considering other forms of action. The case of Craig v. Welply, supra, was an equitable proceeding and therein the court had under, consideration the time within which error proceedings must be commenced. Paragraph two of the syllabus reads :

“The limitation of time provided by Section 12270, General Code, within which proceedings to reverse, vacate or modify a judgment shall be commenced, begins to run from the date of the judgment sought to be reversed and not from the overruling of a motion for a new trial in the cause.”

In the case of Wells, Jr., v. Wells, supra, the court again had under consideration the time within which proceedings in error should be filed. This was a divorce action, and in the first paragraph of the syllabus the court specifically holds that Section 12270, General Code, is applicable. The third paragraph of the syllabus reads as follows:

“A motion for a new trial affects the time when the limitation begins to run only in those cases where the motion for a new trial prevents the entry of a judgment.”

The proceeding in the instant case was summary in its character. The procedure is prescribed by statute. It is a new action seeking a new trial in another case. The petition alleged all the statutory requirements. It was triable to. the court and not to a jury. The trial court heard the cause and his determination was against the petitioner. This finding was made the basis of a journal entry, complete under its language as a final judgment.

The motion for new trial which was to be filed within three days, while requisite for a review on the question of the weight of the evidence, would not have the effect of tolling the statute for filing proceedings in error. We can appreciate very fully the embarrassment that might arise in the event the trial court failed to rule on the motion for new trial promptly, but the answer to this is in the language of Judge Williams, as above quoted, from the case of Young v. Shallenberger, supra.

We doubt very much if this anomalous situation would arise if counsel and the trial court come to a full realization that the entering of the judgment starts the running of the statute as affecting review. There are many practical methods available, and undoubtedly the trial court would lend its aid in the solution. If the motion for new trial is mere form there certainly should be no delay in overruling. If counsel representing the losing party earnestly thinks that the trial court should give further consideration to the cause, it is probable that arrangements for a rehearing might be made before filing journal entry, although in the finality the journal entry should be filed before motion for new trial.

If no practical method can be found, and review is desired, the petition must be filed within the statutory time after the entry of final judgment. There might be a situation where the trial court by inadvertence or inexcusable delay would hold the motion for new trial until after proceedings in error are instituted in the reviewing court, and then might sustain the motion and grant a new hearing. It would then be necessary to dismiss the proceedings in error.

This situation may not be ideal, but so stands the law. The petition in error will be dismissed at costs of plaintiff in error.

Petition in error dismissed.

Ktjnkle, P. J., and Hornbeck, J., concur.  