Anderson v. Richards

• Citation: 179 N.E.2d 918,173 Ohio St. 50,18 O.O.2d 252
• Decision Date: 24 January 1962
• Docket Number: Nos. 36965-36968,s. 36965-36968
• Parties: , 96 A.L.R.2d 307, 18 O.O.2d 252 ANDERSON et al., Appellees, v. RICHARDS, Appellant (four cases).
• Court: United States State Supreme Court of Ohio

Page 50

173 Ohio St. 50

179 N.E.2d 918, 96 A.L.R.2d 307, 18 O.O.2d 252

ANDERSON et al., Appellees, v. RICHARDS, Appellant (four cases).

Nos. 36965-36968.

Supreme Court of Ohio.

Jan. 24, 1962.

Syllabus by the Court

1. Where an appeal to the Court of Appeals is perfected under Section 2505.07, Revised Code, and such appeal is dismissed by the Court of Appeals for want of prosecution, such dismissal is a bar to a subsequent appeal, where such subsequent appeal is not predicated on newly discovered evidence or newly discovered grounds for a new trial as provided in Sections 2321.19 and 2321.21, Revised Code.

2. Where, at the conclusion of a trial, a motion for judgment notwithstanding the verdict and a motion for new trial under Section 2323.181, Revised Code, are made, the ruling upon each motion is appealable, but there is one appeal in the cause itself, and errors predicated on each ruling must be presented in the same appeal. (Jolley v. Martin Brothers Box Co., 158 Ohio St. 416, 109 N.E.2d 652, overruled.)

Plaintiffs Helen Anderson and her husband, Carl J. Anderson, appellees herein and herein referred to as plaintiffs, instituted suits in the Common Pleas Court for personal injuries to the wife. The suits were consolidated and will be referred to herein in the singular, a trial was had, and a jury verdict was returned for the defendant, Wilbur M. Richards, appellant herein and herein referred to as defendant. The jury verdict was returned May 22, 1959, and judgment was rendered on the verdict and a journal entry filed on September 4, 1959. Plaintiffs filed a notice of appeal, within the 20-day time limit prescribed by Section 2505.07, Revised Code, on September 24, 1959, and also a motion for new trial, but not within the ten-day time limit prescribed by Section 2321.19, Revised Code. Plaintiffs did nothing more regarding their appeal, and on April 14, 1960, the Court of Appeals dismissed plaintiffs' appeal for want of prosecution.

On June 13, 1960, the trial judge granted leave under Section 2321.19, Revised Code, to plaintiffs to file after time a motion for new trial. On the same date, and motion for new trial was overruled and plaintiffs perfected a second appeal to the Court of Appeals. Defendant's motion to dismiss the appeal was overruled, and the Court of Appeals in this second appeal reversed the judgment, finding that the verdict of the jury and the judgment of the trial court were manifestly against the weight of the evidence.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Cubbon & Rice, Toledo, for appellees.

Marshall, Melhorn, Bloch & Belt and Wilbur C. Jacobs, Toledo, for appellant.

MATTHIAS, Judge.

The issue in this cause is whether the dismissal of an appeal by the Court of Appeals, which dismissal is based on want of prosecution, constitutes a bar to a second appeal in the same cause, where the second appeal is made after the trial judge entertained a motion for a new trial filed not within time.

This situation arose when the trial judge granted plaintiffs leave to file the aftertime motion for new trial, on the ground that plaintiffs were unavoidably prevented from filing the motion within the statutory time prescribed by Section 2321.19, Revised Code, due to inaction by their attorney.

This question is not an easy one, and its solution requires inquiry into the statutes and judicial principles the application of which will be just to the parties and workable in practice.

Section 2321.19, Revised Code, states:

'The application for a new trial must be made within ten days after the journal entry of a final order, judgment, or decree has been approved by the trial court in writing and filed with the clerk of the court for journalization, except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence discover and produce at the trial. If a party was unavoidably prevented from filing an application for a new trial within such time, the court may in the interest of justice extend the time.'

Here the trial judge granted leave to plaintiffs to file their after-time motion, by the device of a nunc pro tunc entry relating back and thus extending the time for the motion for the new trial. We will not go into the propriety of such action for the cause had, by the time this occurred, already been finally determined if the first dismissal by the Court of Appeals is a bar to the second appeal.

Plaintiffs originally filed a notice of appeal within the time limit set out in Section 2505.07, Revised Code. This perfected the appeal, but plaintiffs did nothing more to prosecute their appeal in the Court of Appeals, and thereafter that court dismissed the appeal. It is this dismissal with which we are concerned. Does it bar plaintiffs from prosecuting a second appeal?

It is perhaps wise to point out here that this cause differs from one where newly discovered evidence or newly discovered grounds for new trial are properly presented to the trial court after an appeal has been taken. In such a case, it is plain that the judgment of the Court of Appeals should not be conclusive as to the new evidence or newly discovered grounds for new trial which were not before the court in the first appeal. See Krieger's Cleaners & Dyers, Inc. v. Benner, 123 Ohio St. 482, 175 N.E. 857, and Townley, Admr. v. A. C. Miller Co., 139 Ohio St. 153, 38 N.E.2d 578, 139 A.L.R. 332.

Plaintiffs' original appeal was properly before the Court of Appeals from September 24, 1959, to April 14, 1960, a period of nearly seven months. It is not unreasonable to suggest that plaintiffs during that time could have sought other counsel or could have demanded more interest on the part of their trial counsel. Plaintiffs during that time had a complete opportunity to prosecute their appeal.

Now what is the effect of their lack of diligence and the resulting dismissal by the Court of Appeals? Paragraph four of the syllabus in the case of Pollock v. Cohen, 32 Ohio St. 514, states:

'Where a case is brought a second time on the same record, by petition in error, all questions on such record will be deemed settled by the first adjudication. This rule extends not only to questions actually presented, but to all questions existing on the record that might have been presented for adjudication in the first petition in error. In such case the second petition in error should be dismissed.' (Emphasis added.)

See, also, paragraph two of the syllabus in Charles A. Burton, Inc. v. Durkee, 162 Ohio St. 433, 123 N.E.2d 432; paragraph one of the syllabus in State ex rel. Ohio Water Service Co. v. Mahoning Valley Sanitary District, 169 Ohio St. 31, 157 N.E.2d 116; and Atcherly v. Dickinson, 34 Ohio St. 537.

The reasoning in such cases is that a party should have his day in court, and that that day should conclude the matter. A party is bound then to present his entire cause and he is foreclosed from later attempting to reopen the cause as to issues which were or could have been presented. The first unreversed judgment is conclusive.

It is argued that, since the Court...