
    Kizner v. Buckeye Union Casualty Co. (Two cases.) Simmons v. Buckeye Union Casualty Co.
    (Decided May 29, 1933.)
    
      Messrs. Bolsinger <& Bolsinger, for plaintiffs in error.
    
      Messrs. Beebe, Borsch & Murphy, for defendant in error.
   Hamilton, P. J.

These three cases involve the same question of law and are considered together. They originated in the municipal court of the city of Cincinnati. On error proceedings to the court of common pleas that court sustained motions to dismiss the petitions in error for the reason that in each case the petition in error had not been filed within the seventy-day limitation from the date of judgment, as required by the statute (Section 12270, General Code). The question here is: Was the court of common pleas correct in dismissing the petitions in error?

The three cases were filed in the municipal court November, 1931. After several continuances the cases came on for trial, and the record discloses the following:

“2/6/32. Minute 1028. Case called. Parties in court. Trial had. Judgment that defendant go hence without day and recover of plaintiff its costs of suit, to all of which plaintiff excepts.

‘ ‘ 2/8/32. Motion for new trial filed.

“3/12/32. This cause coming on for hearing upon the motion for a new trial, said motion is hereby overruled, and judgment rendered in favor of defendant, Buckeye Union Casualty Co. in the sum of $- and costs to all of which plaintiff excepts.”

As heretofore stated, error, was prosecuted in the three cases to the court of common pleas.

The petition in error was filed .May 10, 1932, which was fifty-nine days from the judgment entry in which the motion for a new trial was overruled, and more than seventy days from the judgment entry of the municipal court of February 6, 1932. The court of common pleas on considering the error proceedings must have calculated the time from the judgment entry of February 6, 1932, instead of from the date of the entry overruling the motion for a new trial, March 12, 1932.

It is the law that in an action at law the motion for a new trial, filed in time, suspends the prior finding of the court, and no judgment can be entered until the motion for a new trial is disposed of. See Boedker v. Warren E. Richards Co., 124 Ohio St., 12, 176 N. E., 660. So that in these cases a motion for a new trial was filed, and the time did not begin to run from the day of the fir.st judgment, February 6, 1932. We have quoted the judgment entry of the municipal court, entered March 12, 1932, which is the final judgment after the overruling of the motion for a new trial, in which judgment is rendered for the defendant and for the costs.

It is contended that since under the law the cases under consideration were triable by the court unless a jury was demanded, the decision in Boedker v. Richards, supra, does not determine the question here. In the opinion in the Boedker case, the Chief Justice states: “Whether the principle declared in the instant case applies to cases not triable to a jury is neither considered nor decided.” The fact remains that the instant case was triable to a jury if a jury had been requested. With the right present to demand a jury, the failure to so demand can be considered in no other light than a waiver of a jury. Moreover, in addition to the statutory provision, the reason for the rule is apparent. It is the law that to review the weight of the evidence a motion for a new trial is required. The petition in error must raise this question in order to have it considered by a reviewing court. We therefore have the situation that if the decision on the motion for a new trial was withheld more than seventy days from the first judgment entered, the plaintiff would be barred from having a review on the weight of the evidence, since the petition in error must be filed within seventy days from the date of the judgment complained of. This was the serious question in the Boedker v. Richards case. The fact that the party failed to demand a jury does not take away the character of the case — as being triable to a jury.

The petitions in error were filed fifty-nine days after the entering of the judgment, and were, therefore, filed in time. •

The court of common pleas should have considered the questions of error made by the petitions in error. The motions to dismiss the petitions in error should have been overruled.

For error in sustaining the motions to dismiss the petitions in error, the judgments of the court of common pleas are reversed, with instructions to reinstate the petitions in error, and to consider the questions of error raised by tbe petition's in error and the bills of exceptions, and for further proceedings according to law.

Judgments reversed and causes remanded.

Cushing and Ross, JJ., concur.  