Carter v. Johnson
Decision Date | 05 January 1978 |
Citation | 380 N.E.2d 758,55 Ohio App.2d 157 |
Parties | , 9 O.O.3d 323 CARTER, Appellee, v. JOHNSON, Supt., Appellant. |
Court | Ohio Court of Appeals |
Syllabus by the Court
1. As a civil action, a proceeding under R.C. 4735.12 is governed by the Ohio Rules of Civil Procedure, except where otherwise provided in the statutory scheme.
2. A judge speaks as the court only through the journal of the court.
Jerome Leiken and Emery S. Green, Cleveland, for appellee.
Gladys F. Burkhart, Columbus, for appellant.
The instant matter is an appeal by the defendant-appellant, John C. Johnson, Superintendent of the Real Estate Commission (hereinafter referred to as Superintendent), from a judgment entered against him on July 7, 1976.
On July 29, 1976, the Superintendent timely filed a notice of appeal and raised four assignments of error. The assignments of error are as follows:
1. The trial court erred in not permitting the superintendent of the Ohio Real Estate Commission to defend the subject action.
2. The trial court erred in not permitting the subject case to be heard.
3. The trial court erred in entering final judgment without ruling on appellant's motion to dismiss.
4. The trial court erred in failing to sustain appellant's motion to dismiss.
The relevant facts in the instant matter are as follows:
On February 24, 1976, the plaintiff-appellee (hereinafter referred to as plaintiff) filed an application in Cuyahoga County Common Pleas Court for an order directing the Superintendent to make payment out of the real estate recovery fund pursuant to R.C. 4735.12. Service by certified mail was obtained on the Superintendent on March 1, 1976.
On March 23, 1976, the Superintendent filed a motion to dismiss said application pursuant to Civil Rule 12(B)(6). On June 30, 1976, the plaintiff filed an affidavit in support of his application and also verified the truth of the allegations contained in said application.
On July 7, 1976, the trial court rendered judgment for plaintiff in the amount of Four Thousand and One Dollars and Fifty-Seven Cents ($4,001.57) and ordered the Superintendent to pay this amount from the real estate recovery fund.
Inasmuch as the first three assignments of error are so closely intertwined, they will be dealt with together.
As previously stated, the plaintiff filed an application for an order directing payment out of the real estate recovery fund in the amount of a judgment he had obtained against Sir/Rah Realty Company. The plaintiff filed said application pursuant to R.C. 4735.12(B), which provides as follows:
The plaintiff contends his application for recovery against the fund contained allegations meeting all of the requirements set forth in R.C. 4735.12(B)(1) through (7). The Superintendent, in his motion to dismiss said application and on appeal, disputes this contention and argues there has been no such compliance with the relevant statutory provisions.
A preliminary issue to the resolution of the instant matter is the applicability of the Ohio Rules of Civil Procedure to proceedings brought under R.C. 4735.12. We hold that, as a civil action, a proceeding under R.C. 4735.12 is governed by the Civil Rules, except where otherwise provided in the statutory scheme.
Civil Rule 1 provides the general scope of the rules their applicability, construction, and exceptions, in the following language relevant to the issue here:
As pointed out in the 1971 amended staff note to this rule:
(Emphasis added.)
The Superintendent's argument in support of the applicability of the Civil Rules to proceedings under R.C. 4735.12 is predicated upon the provisions of R.C. 4735.12(C). It states:
(Emphasis added.)
Obviously, the procedure contemplated by R.C. 4735.12 is a civil action and is, at least when the Superintendent elects to contest the application, adversary in nature.
We can discern no reason why the exception retained in Civil Rule 1(C)(7) should be held to apply to the adversary proceedings under R.C. 4735.12,...
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