
    The Columbus Railway, Power & Light Co. v. The C. & Z. Furniture, Warehouse & Auction Co.
    
      (Decided October 4, 1932.)
    
      Messrs. Henderson, Burr, Randall $ Porter, for plaintiff in error.
    
      Mr. W. W. Metcalf, for defendant in error.
    
      Mr. Arthur L. Rowe, amicus curies.
    
   Hornbeck, J.

The facts necessary to a consideration of the question presented in this case are these:

Defendant in error instituted its action for money against the plaintiff in error in the municipal court of the city of Columbus. No jury being demanded the cause came on for trial to the judge, resulting in a finding or verdict in favor of defendant in error, of date October 18, 1929. This action of the court was entered on what is known as the “half-sheet,” “Judgment for plaintiff for $196.85 int. and costs.” The next day, October 19, 1929, the plaintiff in error filed its motion for a new trial. October 25, 1929, the plaintiff in error filed an appeal bond with the clerk of the municipal court. Thereafter, on October 30, 1929, the motion for a new trial was overruled. The defendant in error filed a motion in the court of common pleas to dismiss the appeal proceedings on the ground that the appeal bond given before a judgment was properly entered in the municipal court was premature. This motion was sustained and the appeal dismissed. From this action of the court of common pleas this proceeding in error is prosecuted.

There is but one material, controverted, legal question, namely, Was there a judgment of the municipal court at the time plaintiff in error filed its appeal bond? If so, the action of the common pleas court in dismissing the appeal was erroneous. If not, it was correct.

It is fundamental, and is a statutory provision, that an appeal from the municipal court must be prosecuted from a final judgment. Section 1558-75a, General Code, provides: “In all cases not otherwise specially provided by law, either party may appeal from the final judgment of the municipal court to the court of common pleas of Franklin county.”

And Section 1558-75e, General Code, provides: “The party appealing must, within ten days from the rendition of the judgment, enter into an undertaking to the adverse party with at least one good and sufficient surety * # *.”

The municipal court, acting within its statutory power to promulgate rules and regulations, adopting the theory that Section 1558-77, General Code, controlled its procedural powers, formulated this rule, being No. 34: “In all cases at law, tried to the court without the intervention of a jury, the court shall make a finding for the plaintiff or the defendant, as the case may be, and judgment shall be entered upon such finding by the clerk in accordance with the provisions of Section 11599 of the General Code, as in cases in which a verdict is rendered by a jury.”

Section 1558-77, General Code, in part, provides: * ‘ The laws governing the court of common pleas as to security for costs, motions for new trials, vacation or modification of judgment, before and after terms, * * * shall be held to apply, so far as applicable, to the municipal court.”

Section 11599, General Code, relating specially to procedure in common pleas court, provides: “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 snch judgment shall be entered only when the court has sustained such verdict by overruling’ the motion. Upon such overruling it shall immediately be entered.”

It will be noted that this section begins by providing that “When a trial by jury has been had, judgment must be entered” as thereinafter provided.

The Supreme Court, in Boedker v. Warren E. Richards Co., 124 Ohio St., 12, 176 N. E., 660, has said that this section applies to a trial had in common pleas court in a law case wherein the jury was waived and the cause presented to the judge alone, and it further held that under the last part of this section, which is mandatory, no judgment shall be entered “when a motion for a new trial is filed” unless the court sustains such verdict by overruling the motion. Construing the statute, the Supreme Court said in the Boedher case that there could be no final judgment entered prior to three days after the finding or verdict of the trial court, and that an attempt to render judgment prior to such time was ineffective. Thus we are required to say that, if Section 11599, General Code, is the procedure which the municipal court is required to follow, there was no judgment in the instant case prior to the overruling of the motion for a new trial, and, as the appeal bond was attempted to be perfected upon the action taken prior to the overruling of the motion, it was premature and unauthorized. Wilson v. Holeman, 2 Ohio, 253.

It is asserted by counsel for plaintiff in error and counsel amicus curice that Section 1558-59, General Code, and particularly paragraph 5 thereof, requires the municipal court in entering judgments to follow the procedure outlined for justices of the peace. That part of the section relied upon is as follows: “The laws relating to practice and procedure in actions before justices of the peace and police courts defining the rights and obligations of parties and prescribing the powers and duties of officers thereof, shall apply to like proceedings in the municipal court in so far as consistent with the provisions of this act and of other laws relating to said municipal court.”

And, as further defining the obligations of the justice of the peace, we are referred to Section 10378, General Code, which provides: “Upon a verdict the justice must immediately render judgment accordingly. When the trial is by the justice, judgment must be entered immediately after the close of the trial, if the defendant has been arrested or his property attached. In other cases, it shall be entered either at the close of the trial, or if the justice then desires further time to consider, on or by the fourth day thereafter, both days inclusive.”

It may be observed that the proceedings for new trial in the justice of the peace court, and the grounds therefor, are different than are provided in the common pleas court.

Section 10352, General Code, controlling the subject of “new trial” in the justice’s court, provides: “The justice before whom a cause has been tried, on motion, and being satisfied that the verdict was obtained by fraud, partiality or undue means, at any time within four days after the entering of judgment, may grant a new trial.”

Here the motion for a new trial is not contemplated until after judgment has been entered, pursuant to Section 10378, General Code, but in the' common pleas court a new trial could not be granted in the situation and upon the grounds presented in the instant case after judgment rendered.

As Section 1558-77, General Code, expressly provides that the laws governing the court of common pleas as to motions for new trials shall be held to apply, so far as consistent with the act, to the municipal court, we would have an incongruity if we attempted to restrict the municipal court to the procedure for new trials as relates to the justices of the peace. It is evident, in view of Section 1558-77, General Code, that the Legislature could not have intended the municipal court to be restricted to justice of the peace procedure, as to the granting of new trials.

The Municipal Court Act of Columbus, and similar acts throughout the state, all disclose a purpose to grant wider and more extended jurisdiction to these courts than is vested in justice of the peace courts. It is a well-recognized rule of statutory interpretation that, where general terms or expressions in one statute are inconsistent with more specific or particular provisions in another statute, the particular provisions must govern unless the statutes, as a whole, clearly show a contrary intention. 59 Corpus Juris, 1000; State, ex rel. Elliott Co., v. Connar, Supt. of Dept. of Pub. Works, 123 Ohio St., 310, 175 N. E., 200. That part of Section 1558-59, General Code, relating to the practice and procedure in the courts of the justice of the peace in taking cases to the municipal court of Columbus, is general in its terms. Section 1558-77, General Code, is specific, in that it provides that the laws governing the court of common pleas as to motions for new trials shall be held to apply, so far as applicable, to the municipal court. The procedure as to new trials in the common pleas court is applicable to the municipal court, and without such provision the municipal court would be hampered and restricted in effectuating the judicial work which it was created to perform. If we rightly interpret the jurisdiction of the municipal court respecting its entering of judgments and its passing on motions for a new trial to be the same as provided in the common pleas court, we have a systematic and consistent procedure. We are convinced that such is the meaning and intent of the law. Thus the action of the municipal court respecting its power to enter a judgment when a motion for new trial is pending, after verdict or finding, is controlled by Section 11599, General Code. This having been interpreted by the Supreme Court in the Boedker case, we are required to hold that the action of the common pleas court in dismissing the pretended appeal of plaintiff in error was correct, and must be affirmed.

Judgment affirmed.

Allread, P. J., and Kunkle, J., concur.  