Bosco v. City of Euclid

• Decision Date: 24 January 1974
• Citation: 67 O.O.2d 209,311 N.E.2d 870,38 Ohio App.2d 40
• Parties: , 67 O.O.2d 209 BOSCO, Appellee, v. CITY OF EUCLID et al., Appellants.
• Court: Ohio Court of Appeals

Page 40

38 Ohio App.2d 40

311 N.E.2d 870, 67 O.O.2d 209

BOSCO, Appellee, v. CITY OF EUCLID et al., Appellants.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 24, 1974.

Syllabus by the Court

1. Without the timely filing of a notice of appeal, the Court of Appeals is generally without jurisdiction to entertain an appeal in a civil case.

2. Civ.R. 60(B) may not be used as a substitute for a timely appeal as a means to circumvent App.R. 4(A) which establishes an appeal period of thirty days.

Phillip C. Barragate, Cleveland, for appellee.

Patrick R. Rocco, Euclid, for appellants.

DAY, Judge.

In disposing of this appeal, it is necessary to discuss a prior appeal. The plaintiff-appellee and defendant-appellants will be referred to as 'appellee' and 'appellants.' Such reference is especially desirable because the plaintiff is appellee in both appeals and the defendants are appellants in both.

Surface indications are that the current appeal involves a relatively simple procedural issue arising from a denial of a motion to vacate under Civ.R. 60(B) (1) and (5). ¹ Beneath the surface it is apparent that the motion was an effort to retrieve a chance for review of substantive issues lost when a previous appeal ² testing the decision of those issues was dismissed by this court for want of a timely notice of appeal. Appellee contends that the dismissal by this court was appealed to the Supreme Court of Ohio and appends to its brief a document purporting to be an entry from the Supreme Court of Ohio disposing of the appeal. However, that entry is not certified and neither it, nor the notice of appeal to which the entry is a purported response, can be located in the record. In any event the denial of the motion to vacate resulted in the present appeal. A more detailed recital of the background of the first appeal will clarify the somewhat tangled procedure that resulted in the present one.

I.

On February 24, 1972, plaintiff-appellee filed a complaint for declaratory judgment alleging that her deceased husband had a vested interest in sick-leave benefits in the City of Euclid Fire Department. The appellee contended that the appellants should pay the sick-leave benefits in cash as terminal leave payments when persons in the situation of her husband were separated from the Fire Department. The trial court rendered judgment for the appellee. The judgment was journalized on March 5, 1973.

On April 9, 1973, the appellants filed a notice of appeal from the March 5 judgment. A motion to dismiss was granted by this court on May 2, 1973, on the ground that the notice of appeal had not been filed with the trial court within thirty days of the entry (App.R. 4(A)). ³

On May 29, 1973, appellants filed a motion in the trial court to vacate judgment with a request for oral hearing. The appellants contended they had not received notice of entry of judgment from the trial court ⁴ and thus were entitled to relief under Civ.R. 60(B)(1) and (5).

On June 18, 1973, the trial court denied the motion to vacate without permitting an oral hearing. A notice of appeal from that denial was timely filed in the trial court, and the current appeal ensued.

II.

The appellants assign two errors:

'1. The Common Pleas Court erred in denying Defendant-Appellants a Motion to Vacate Judgment without granting a hearing to determine the validity of Defendants-Appellants claim.

'2. The Order of the Court of Common Pleas is contrary to law.'

The two assignments are encompassed by the same rationale and they are, therefore, treated together. In our view both assignments lack merit. We affirm.

III.

In their attack upon the decision below appellants rely upon Brenner v. Shore (1973), 34 Ohio App.2d 209, 297 N.E.2d 550. They might have taken some comfort as well from Matson v. Marks (1972), 32 Ohio App.2d 319, 291 N.E.2d 491, had their point with respect to the necessity of hearing been well taken. We do not reach (1) an analysis of those cases, (2) the issue whether the circumstances here required a hearing, nor (3) whether, if evidence was required in this case, the affidavit submitted by the appellants to the trial court was sufficient to satisfy whatever evidential requirements Brenner and Matson demand. For it is apparent on the facts of this case that the disposition of the earlier appeal interposes an insuperable impediment to the re-opening of this case on motion to vacate.

IV.

Failure to file a timely notice of appeal is jurisdictional generally subject to no exceptions in a civil case, ⁵ App.R. 3 and 4(A), without such timely filing the Court of Appeals is 'without jurisdiction' to entertain the appeal. (See State ex rel. Kotch v. DeGroh (1959), 168 Ohio St. 506, 507, 156 N.E.2d 465, interpreting R.C. 2505.07, the statute governing the time period for notice of appeal before App.R. 4(A).) None of the rare exceptions is applicable here.

The purpose of a strict rule is a salutary one. It requires litigants to be alert to insure an orderly and prompt processing of appeals. Under statutes predecessor to Civ.R. 60(B), the courts of this State have strictly enforced the policy of refusing to allow the amendment of final orders for the sole purpose of renewing the appeal period to rescue a litigant from his own lethargy or lack of vigilance in filing a timely notice of appeal:

'. . . The appellant seeks to do by indirection that which he cannot do directly. The time to appeal the judgment declaring that Raveca Marginean is not the widow and surviving spouse of the deceased has long since passed. Raveca Marginean now wants to again claim that she is the surviving spouse by a motion to vacate all proceedings taken in the probate of the will and matters arising therein. This she cannot do.' In re Estate of Marginean (1961), Ohio App., 176 N.E.2d 329, 330, 87 Ohio Law Abst. 314, 317.

Civ.R. 60(B) is derived from a comparable federal rule of civil procedure. A motion under that rule has been held to be no substitute for appeal, Demers v. Brown (Cir. 1965), 343 F.2d 427, Cert. denied (1965), 382 U.S. 818, 86 S.Ct. 40, 15 L.Ed.2d 64; cf. Antonopoulos v. Eisner (1972), 30 Ohio App.2d 187, 199, 284 N.E.2d 194.

The motion to vacate in the present case is no different in generic objective from the motions in Marginean and in Demers. The issue it raises responds to the rules established in those cases. A reversal of the order of the Court below will achieve nothing but a hearing on the question of vacation of a judgment which the circumstances would make it an abuse of discretion to grant. For it is apparent that were appellants' facts proven true on hearing, the principal consequence would be a fresh denial and a new period of thirty days within which to file a notice of appeal from that denial. The review of the substantive determination thus sought was appropriate in the first appeal but was forfeited by delay.

The appellants' objective is obvious. The only pertinent factual basis set out in the affidavit ⁶ to support the motion to vacate is a claimed...