Charles v. Fawley

• Decision Date: 01 November 1904
• Docket Number: 8454
• Citation: 71 Ohio St. 50,72 N.E. 294
• Parties: Charles v. Fawley Et Al.
• Court: Ohio Supreme Court

72 N.E. 294

71 Ohio St. 50

Charles v. Fawley Et Al.

No. 8454

Supreme Court of Ohio

November 1, 1904

Judgments and orders may be entered nunc pro tunc, when - Petition in error for reversal may be filed in Supreme Court, when - Act to amend requirement in appeal relates to remedy, when - Section 79, Revised Statutes - Court procedure - Effect of amendment of statute upon pending action.

1. Judgments and orders may be entered nunc pro tunc in furtherance of justice only, and when an order dismissing an appeal is so entered by the circuit court, a petition in error for its reversal may be filed in the Supreme Court at any time within four months from the date of its actual entry.

2. An act to amend the statutory requirement respecting notice of an intention to appeal from the judgment of the court of common pleas to the circuit court, with a view to a trial de novo, relates to the remedy, and, unless the amending act expressly provides otherwise, a party may, under favor of section 79, Revised Statutes, give such notice in the mode prescribed by the statute in force at the commencement of the original action.

Suit was brought by one of the parties in the court of common pleas of Highland county, June 14, 1901, for the partition of real estate. On October 13, 1902, a final judgment was rendered in the case and the plaintiff in error, being dissatisfied therewith, entered upon the journal of the court of common pleas notice of his intention to appeal to the circuit court. The amount of the appeal bond was fixed, and the bond was executed. On November 19, 1902, the defendants in error filed in the circuit court a motion for the dismissal of the appeal upon the ground that the appellant had not filed a written notice of his intention to take such appeal. On April 22, 1903, the circuit court entered an order as of November 19, 1902, sustaining such motion and dismissing the appeal. The present petition in error was filed in this court on May 22, 1903, for the reversal of the order of dismissal.

Mr. H M. Huggins and Mr. L. R. Duckwall, for plaintiff in error cited and commented upon the following authorities:

2 Bouv. Law Dic., 247; Neracker Sprinkling Co. v. Eureka Co., 4 Circ Dec., 493; 8 C. C. R., 516; Insurance Co. v. Myers, 59 Ohio St. 335; Hays v. Olentangy Co., 24 O. C. C., 354; secs. 79, 5227, 6707, Rev. Stat.; 95 O. L., 66.

Mr. J F. Wilson, for defendant in error, cited and commented upon the following authorities:

Railway Co. v. Thurstin, 44 Ohio St. 525; Young, Treas. v. Pennsylvania Co., 46 Ohio St. 558; Senff v. Pyle, 46 Ohio St. 102; Landon v. Reid, 10 Ohio 202; Dial v. Holter, 6 Ohio St. 228; Young v. Shallenberger, 53 Ohio St. 291; Cincinnati v. Steadman, 53 Ohio St. 312; Dowty v. Pepple, 58 Ohio St. 395; Coe v. Erb, 59 Ohio St. 262; Miller v. Albright, 5 Circ. Dec., 585; 12 C. C. R., 534; 1 Freeman on Judgments, sec. 56; Neracker Sprinkling Co. v. Eureka Co., 4 Circ. Dec., 493; 8 C. C. R., 516; Hays v. Olentangy Co., 24 O. C. C., 354; Insurance Co. v. Myers, 59 Ohio St. 335; Westerman v. Westerman, 25 Ohio St. 507; Rouse v. Chappell, 26 Ohio St. 306; Browne, Assignee, v. Wallace, 66 Ohio St. 57; secs. 5223, 5227, 6710, Rev. Stat.; 67 O. L., 113.

SHAUCK J.

We do not inquire whether the circuit court may, for any purpose, enter an order of this character nunc pro tunc. Orders may always be so entered in furtherance of justice, and it may be assumed that for some purposes the order in the present case might operate from the earlier date. We have only to inquire whether the appellant's right to prosecute error for the reversal of that order was thereby defeated, his petition in error having been filed in this court for that purpose within four months of the date when the order was actually entered by the circuit court, but not within four months of the date when, by its terms, it was to operate. In support of the conclusion that it was so defeated it is urged that the statute limiting the time within which petitions in error may be filed began to run not on April 22, 1903, when the order was actually entered, but on November 19, 1902, when, by its terms, it was to take effect. We are urged to adopt this view although the circuit court is a court of record, and although it is imperatively required that the transcript of its record to be filed here with the petition in error must contain the order or judgment whose reversal is sought. Since the right to prosecute error did not accrue until the order became a matter of record, the sum of the contention for the defendants in error is that, an order which may be entered nunc pro tunc only in furtherance of justice, has the effect to defeat the right to prosecute a proceeding in error which is expressly conferred by the statute.

The petition in error having been filed within four months after the entry of the order whose reversal is sought, we have to inquire whether the circuit court properly dismissed the appeal. By its terms the order of dismissal appears to have been made because the appellant had not, within three days after entry of the final judgment in the court of common pleas, filed a written notice of his intention to appeal, in accordance...