
    The M. J. Rose Co. v. Ross.
    
      Error proceedings — Seventy-day limitation — Section 12270, General Code — Second judgment entered without vacating first judgment — Limitation runs from date of first judgment.
    
    Where a valid judgment has been entered upon a verdict and the same judgment has been re-entered at a later date without vacating the first judgment, the date of said first judgment is the date from which to compute the 70-day limitation period provided in Section 12270, General Code; and if the petition in error is not filed within that period the Court of Appeals is without jurisdiction.
    (Decided November 2, 1926.)
    Error: Court of Appeals for Summit county.
    On Motion to dismiss.
    
      Mr. Carl M. Myers, for plaintiff in error.
    
      Messrs. Lahrmer & Hadley, for defendant in error.
   Washburn, J.

Elmer P. Ross, who was plaintiff in the court below, sued the M. J. Rose Company and recovered a judgment for $900, and the case is here on error proceedings brought by the latter.

The record discloses that the verdict was returned on May 5, 1926; that the Rose Company filed a motion for a new trial on May 7, 1926; that on June 14, 1926, an entry was prepared by attorneys for Ross, rendering judgment on the verdict, without mentioning the motion for a new trial which had been filed; that the entry was submitted to the attorney for the Rose Company, and after the attorneys for both, parties had O.K.’d the same, the attorney for the Rose Company noting an exception, it was submitted to the trial court and approved by the court; and that the entry was then filed with the clerk. The record further discloses that an execution to collect said judgment was issued to the sheriff on August 25, 1926, but what became of that execution does not appear.

It further appears that on September 7, 1926, the attorney for the Rose Company prepared an entry overruling the motion for a new trial and again entering judgment on the verdict, which entry was submitted to attorneys for Ross, and after the same was O.K. ’d by attorneys for both parties, the attorneys for Ross noting an exception, was submitted to the court and approved, and then filed with the clerk and duly spread upon the journal.

On September 23, 1926, the attorney for the Rose Company filed a petition in error in this court, which petition in error was filed in time if the statute began to run from the date of the judgment of September 7, but was not in time if the statute began to run from the date of the judgment entered June 14, 1926.

Attorneys for Ross have filed a motion in this court to dismiss the petition in error because the same was not filed within 70 days after the entry of the judgment.

With the exception of one matter which will hereinafter be referred to, the situation presented by this record is identically the same as was the situation presented in the case of Wyant v. Russell, 109 Ohio St., 167, 142 N. E., 144. In that case the motion for a new trial, which had been filed in time, was overruled, and judgment was entered upon the verdict on May 29, 1922. On July 7, 1922, an entry was made vacating the order overruling the motion for a new trial, and granting a rehearing of the motion for a new trial, hut that entry did not vacate the judgment that had theretofore been entered. As a part of the same entry of July 7, the court again overruled the motion for a new trial and entered another judgment upon the verdict. The plaintiff then filed his petition in error in the Court of Appeals on September 14, 1922, which was in time if the date of the judgment was July 7, but not in time if the date of the judgment was May 29.

Thus it appears that after the first order overruling the motion for a new trial was vacated, it left the record showing a verdict and a motion for a new trial duly filed, and a judgment on the verdict without overruling the motion for a new trial, and then a second judgment was entered. As has been said, that is the exact situation we have in the case at bar. In that case it was held that the “plaintiff in error was, on the date he filed his petition in error in the Court of Appeals, barred by Section 12270, General Code, from beginning a proceeding in that court to vacate the judgment of the court of common pleas.”

To the same effect is the case of Craig v. Welply, 104 Ohio St., 312, 136 N. E., 143. That was an equity case, and a decree in favor of plaintiff was entered on the journal on June 11, 1920. On the following day, June 12, 1920, the defendants filed a motion for a new trial. On June 25, 1920, the motion for a new trial was overruled and the decree and judgment of June 11, 1920, were reentered. (This latter fact does not appear in the report of the case, but is shown in the certificate of journal entries in the case, to which we have had access.) The petition in error was filed August 21, 1920 — in time if the date of the judgment was June 25, but too late if the date of the judgment was June 11. A motion was filed to dismiss the proceedings because the petition in error had not been filed within the statutory time of 70 days after the entry of the final decree, and that motion was sustained by the Court of Appeals. The judgment of the Court of Appeals was affirmed by the Supreme Court. Craig v. Welply, 104 Ohio St., 312, 136 N. E., 143. See, also, Young v. Shallenberger, 53 Ohio St., 291, 41 N. E., 518.

The decisions of the Supreme Court in the cases of Wyant v. Russell and Craig v. Welply, supra, dispose of the case at bar unless the other matter hereinbefore referred to justifies us in making a different ruling in the case at bar. That other matter is that in the case at bar it is claimed that by virtue of the provisions of Section 11599, General Code, the first judgment that was rendered on the verdict — that is, the entry of judgment without overruling the motion for a new trial — was unauthorized, and null and void. That section provides that where no motion for a new trial is filed within the three days, the clerk, without any action on the part of the court, shall enter a judgment upon the verdict, and then provides that: “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.”

It will be noted that in the case at bar the clerk did not enter the judgment on the verdict that was entered while the motion for a new trial was pending, but that such judgment was rendered by the court and with the approval of the attorneys for both sides. The .court had jurisdiction of the subject-matter and the parties, and if such judgment ought not to have been entered at that time it was simply an erroneous judgment, but not a void judgment, and the error of the court in entering the judgment at that time, if it was an error, could be corrected only by filing a petition in error within the time prescribed by statute after the erroneous judgment was entered. This proceeding in error is not filed in time to authorize this court to correct the error of the common pleas court, if it was an error, in rendering a judgment on the verdict without expressly disposing of the motion for a new trial which was pending, and therefore that judgment must stand.

There was but a single action in the court below, and when the first judgment was entered that action was ended, and if plaintiff in error desired to prosecute error proceedings from that action he was required to do so within 70 -days from such ending of the action. The motion for a new trial was an application to the court to reconsider its judgment. Error lies to the judgment, but not to the decision on the motion, and a re-entry of the judgment after the action was ended was not, for the purposes now being considered, a judgment in the action from which error could be prosecuted.

We are of the opinion, and hold, that where a valid judgment has been entered upon a verdict and the same judgment has been re-entered at a later date without vacating the first judgment, the date of the first judgment is the date from which to compute the 70-day limitation period provided in Section 12270, General Code, and;if the petition in. error is not filed within that period the Court of Appeals is without jurisdiction.

It has been suggested that the part of Section 11599, General Code, quoted above, was not intended to curtail the power of the court to enter judgment, but is simply a part of a section having to do with the duties of the clerk; but we do not find it necessary in this case to pass upon that question.

Our conclusion is that the case at bar is clearly ruled by Craig v. Welply and Wyant v. Russell, supra, and that the petition in error in this case was not filed in time, and therefore the motion will be granted striking it from the files.

Motion to dismiss allotued.

Pardee, P. J., and Funk, J., concur.  