
    No. 795
    DeWITT v. SCHWEITZER
    Ohio Appeals, 5th Dist., Stark Co.
    No. 854.
    Decided Oct. 17, 1927.
    First Publication of this Opinion.
    Judges Richards, Williams and Hloyd, of the 6th Dist., sitting.
    841. NEW TRIAL — 941. Practice and Procedure — Period, within which proceedings in error must be brought, runs from date of judgment and not from ‘date of overruling motion for new trial. '
    Error to Municipal Court.
    Affirmed by Common Pleas.
    Error to Common Pleas.
    Judgment reversed.
    Lynch, Day, Fimple, Pontius & Lynch, Canton, for DeWitt.
    Grau & Miller, Canton, for Schweitzer.
   FULL TEXT.

RICHARDS, J.

This proceeding in error grows out of an action brought in the municipal court of the city of Canton by Dr. J. P. DeWitt against Edward Schweitzer to recover on an account for medical sei vices. In that court the defendant filed an answer and cross petition setting up a claim for damages for malpractice. The action was tried to a jury and resulted in a verdict and judgment on the cross petition in favor of Schweitzer in the amount of $1,000. Proceedings in error were brought in the court of common pleas, which court, upon consideration, affirmed the judgment and this court is now asked to reverse both judgments for numerous reasons set forth in the petition in error.

The record discloses that the verdict in the municipal court was returned on November 17, 1926, and a judgment rendered thereon the same day, the entry being in the following language:

“Verdict of jury rendered in favor of defendant for $1,000.00. Judgment for defendant versus plaintiff for $1,000.00 and costs.”

A motion for a new trial was filed in the municipal court on November 19, 1926, and was disposed of by that court on December 30, 1926, the entry being in the following language:

“Motion for new trial overruled. Judgment for defendant v. Plaintiff $1,000.00 and costs stands.”

The petition in error to reverse the judgment was filed in the court of common pleas on March 4, 1927. This is 107 days from the judgment of November 17, 1926, and 64 days from the date of overruling the motion for new trial and the entry that the judgment already rendeied “stands.” Of course the 70 days withm which proceedings in error must be brought begin to run from the date of the judgment and not from the date of overruling the motion for a new trial, and the first judgment, never having been set aside, is the one from which the time Umust be computed and the plaintiff in error was therefore barred by Section 12270, General Code.

Wyant v. Russell, 109 Ohio St., 167, 169; Craig, et al. v. Welply, et al., 104 Ohio St., 312; Wells, Jr., v. Wells, 105 Ohio St., 471.

For the reasons given the judgment of the court of common pleas will be reversed and the petition in error in that court will be dismissed and the cause remanded for execution.

(Williams and Lloyd, JJ., concur.)  