Bertold J. Pembaur, M.D. v. Leis

• Decision Date: 27 June 1981
• Docket Number: 81-LW-3060,C-800293
• Parties: BERTOLD J. PEMBAUR, M.D., Plaintiff-Appellant, v. SIMON L. LEIS, JR., and WILLIAM WHALEN and RUSSELL JACKSON and RUSSELL F. HEAVRIN and RALPH SHARP and JENNIE FERGUSON and CHARLES ROBINSON and DENNIS NELSON, Defendants-Appellees.
• Court: Ohio Court of Appeals

BERTOLD J. PEMBAUR, M.D., Plaintiff-Appellant, v. SIMON L. LEIS, JR., and WILLIAM WHALEN and RUSSELL JACKSON and RUSSELL F. HEAVRIN and RALPH SHARP and JENNIE FERGUSON and CHARLES ROBINSON and DENNIS NELSON, Defendants-Appellees.

No. C-800293.

81-LW-3060 (1st)

Court of Appeals of Ohio, First District, Hamilton

June 27, 1981

DECISION AND ENTRY ON MOTION TO DISMISS.

PER CURIAM.

This cause came on to be heard on the state's Motion to Dismiss in which the state asserts two reasons for dismissal: that the Notice of Appeal was not timely filed because although it was filed within thirty days after the final order appealed from, it was filed more than twenty days thereafter; and that the record of proceedings was not timely filed, because it was one day late.

Being fully informed and after due consideration, the Court finds that the Motion to Dismiss is not well taken. First, the provisions of App. R. 4(A) that allow thirty days from the date of entry of the order appealed from for the filing of a notice of appeal do not abridge, enlarge or modify any substantive right but set forth the procedure to implement a statutory right of appeal. They were properly promulgated under the constitutional grant of authority to the Supreme Court found in Section 5(B), Article IV, Ohio Constitution. State v. Waller (1976), 47 Ohio St. 2d 52, 57, 351 N.E.2d 195, 198; Krause v. State (1972), 31 Ohio St. 2d 132, 145, 285 N.E.2d 736, 744, appeal dismissed (1972), 409 U.S. 1052, rehearing denied (1973), 410 U.S. 918. See City of Columbus v. Youngquist (10th Dist. 1972), 33 Ohio App. 2d 317, 294 N.E. 2d 910. Thus the thirty-day period allowed by App. R. 4(A) supersedes and prevails over the twenty-day period allowed by R.C. 2505.07(A), and the instant Notice of Appeal was timely filed. Second, the one-day delay in filing the record of proceedings is, in our judgment, de minimus under the circumstances and procedural posture of this cause.

Therefore, the Motion to Dismiss is hereby overruled.

BLACK, P. J., KEEFE and DOAN, JJ.