
    In re Guardianship of Gausepohl.
    (Decided July 31, 1935.)
    
      
      Mr. L. M. Winget, for the exceptions.
    
      Mr. R. K. Forsyth, contra.
    
   Barnes, P. J.

The above entitled cause is now being determined on proceedings in error from the judgment of the Court of Common Pleas of Shelby County, Ohio. The cause originated in the Probate Court on exceptions to the first and final account of Joseph Gausepohl, as guardian of Rosa Gausepohl, a.ii incompetent.

The exceptions were overruled and thereupon the exceptor appealed to the Common Pleas Court.

On hearing in the Common Pleas Court cte novo the exceptions were overruled. The judgment of the Court of Common Pleas was filed and journalized on May 1, 1934, and, omitting the title, reads as follows:

“Now, to-wit, this first day of May, 1934, this matter came on for hearing on appeal from the Probate Court of this county on exceptions to the final account heretofore filed by the guardian herein; thereupon the hearing proceeded and the court having heard the testimony introduced by the exceptor, the exceptor rested. Thereupon it was moved that the exceptions be dismissed, and the court, after due consideration, sustained said motion, and the exceptions and appeal were dismissed, to which order and ruling of the court the exceptor excepts.”

Within three days the exceptor filed a motion for new trial, which was overruled on December 26, 1934. The entry overruling motion is in the following words:

“This cause came on to be heard on the motion for new trial filed by the appellant herein, and the court after due consideration thereof finds that said motion is not well taken and hereby overrules same, to which ruling of the court appellant by her attorney excepts,”

The petition in error in this court was filed January 26, 1935.

From the above it appears at once that this court has no jurisdiction to determine the cause for the reason that the petition in error was not filed within seventy days after the entry of judgment or final order complained of.

The time for filing petition in error is prescribed by Section 12270, General Code. The pertinent portion of this Section 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 * *

The Supreme Court has determined many, many times that the overruling of a motion for new trial is not a final order. Wells, Jr., v. Wells, 105 Ohio St., 471, 138 N. E., 71; Duncan v. State, ex rel. Williams, 119 Ohio St., 453-456-457, 164 N. E., 527; Boedker v. Richards Co., 124 Ohio St., 12, 176 N. E., 660; Heigel v. Heigel, 125 Ohio St., 638, 186 N. E., 99; Craig v. Welply, 104 Ohio St., 312, 136 N. E., 143.

See also 2 Ohio Jurisprudence, “Appeal and Error," 346, Section 300.

Section 11599 of the General Code has modified this rule so far as it applies to jury cases. This section reads as follows:

“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 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.)

In the case of Craig v. Welply, 104 Ohio St., 812, 136 N. E., 143, the Supreme Court announces that Section 11599, General Code, is not to be applied so as to change the rule that under Section 12270, General Code, the time within which proceedings to reverse, vacate or modify judgment shall be commenced begins to run from the date of judgment sought to be reversed, and not from the overruling of the motion for a new trial.

In the case of Boedker v. Warren E. Richards Co., 124 Ohio St., at page 12, 176 N. E., 660, the Supreme Court gave application to Section 11599, General Code, in an action at law where the jury was waived and the cause tried to the court.

The fact that the question of jurisdiction was not raised by motion to dismiss naturally raises the inquiry as to whether or not the entry of the clerk and the filing of answer brief waive the question of jurisdiction. The Supreme Court of Ohio has very definitely decided in the case of King v. Penn, 43 Ohio St., 57, 1 N. E., 84, that jurisdiction may not be waived. Paragraph 1 of the syllabus reads as follows:

“This court is without jurisdiction to hear and determine a proceeding in error which is not commenced within the time prescribed by statute after the rendition of the judgment complained of.”

Paragraph 2 of the syllabus reads:

“Parties to a proceeding in error can not, by private agreement or consent, nor by voluntary appearance (in the absence of facts which should estop them to deny the jurisdiction of the court), confer upon this court power to hear and determine such proceeding after the expiration of the time limited therefor.”

Also, in the case of Wells, Jr., v. Wells, 105 Ohio St., 471, 138 N. E., 71, in paragraphs 2 and 3 of the syllabus it is held:

“Parties to the action cannot by formal entry of appearance or by agreement extend the limitation of time provided in Section 12270, General Code.”

“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.”

On this same subject see 2 Ohio Jurisprudence, “Appeal and Error,” 341, Section 298, and 572, Section 525, and the notes thereunder.

The question has also been adjudicated that no plea or motion is necessary to raise the question of jurisdiction. The court sua sponte always looks to the question of jurisdiction. Cleveland & Mahoning Valley Ry. Co. v. Wick, 35 Ohio St., 247, paragraph 3 of the syllabus reads:

“Whether a petition in error was filed in time or not is to be determined from the record; and no plea is required setting up the lapse of time as a bar to the proceeding.”

Further, see D. & I. Rd. Co. v. Wahl et al., Bd. of County Commrs., 27 Ohio App., 9, paragraph 4 of the syllabus; also page 12 of the opinion. (160 N. E., 638.)

Evidently in the instant case counsel was laboring under the impression that the seventy days for filing his petition in error dated from the judgment of the court overruling motion for new trial. This is a common error, and we have previously had the question before us. In the case of Neth, Exr., v. Neth, post, 267, Montgomery county, opinion rendered May 2, 1935, we dismissed the petition in error because not filed within seventy days after rendition of judgment, although within the seventy days after overruling motion for new trial. We assembled the authorities and cited them in this Montgomery county case.

We know of no reason why the legislature in Section 11599, General Code, limited its modification of the former rule as construed by the courts to jury cases. In fact, we think it would be a very sane provision to make this section applicable to all causes where a motion for new trial is necessary in order to bring before a reviewing court the errors complained of. However, the court has no power to legislate; we must accept the law as we find it.

While not necessary or pertinent to the question here involved, we might make the voluntary explanation that the proper procedure where a motion for new trial is not determined within the seventy days after the entering of final judgment is to file the petition in error and all the original papers, together with transcript of docket and journal entries, except the bill of exceptions, which latter necessarily can not be filed until after the motion for new trial is passed upon. If, perchance, the motion for new trial is sustained, the petition in error must necessarily be dismissed. However, if overruled, the losing party, under the provisions of Section 11564, General Code, has forty days within which to file his bill of exceptions. Section 11572, General Code, makes provision for filing the bill of exceptions subsequent to the filing of the petition in error.

The case of Kelley, Admr., v. Hermann, 23 C. C. (N. S.), 156, 34 C. D., 176, involved this question, and therein the court held that the bill of exceptions, if filed in the Court of Common Pleas after the expiration of the seventy days, but within the time prescribed for preparing and filing bill of exceptions, must then be filed in the Court of Appeals on the same day.

In the case of Porter v. Rohrer, 95 Ohio St., 90, 115 N. E., 616, the Supreme Court in a very interesting opinion discusses at length this question, although raised under a different state of facts. From the reasoning therein it may be concluded that the rule announced in Kelley, Admr., v. Hermann, supra, is modified. However, an abundance of caution would suggest that the announcement in Kelley, Admr., v. Hermann be accepted and followed until the determination of the question is more clearly announced in the Supreme Court.

Under the state of the record we have no alternative except to dismiss the petition in error, since we have no jurisdiction to hear the cause. As heretofore stated, the lack of jurisdiction is due to the failure to file the petition in error within seventy days after the rendition of the judgment and final order.

Petition in error dismissed.

Hobnbeck, J., concurs. Bodey, J., while serving as a judge of the Common Pleas Court, heard and determined the case in the court below, and therefore does not participate in this hearing.  