City of Columbus v. Youngquist

• Decision Date: 19 December 1972
• Citation: 294 N.E.2d 910,33 Ohio App.2d 317
• Parties: , 62 O.O.2d 456 CITY OF COLUMBUS, Appellant, v. YOUNGQUIST, Appellee.
• Court: Ohio Court of Appeals

Page 317

33 Ohio App.2d 317

294 N.E.2d 910, 62 O.O.2d 456

CITY OF COLUMBUS, Appellant, v. YOUNGQUIST, Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Dec. 19, 1972.

Syllabus by the Court

1. Where a motion to dismiss an affidavit in a misdemeanor case, made pursuant to R.C. 2937.04, raises the issues that could be asserted against an indictment by a motion to quash, or a plea in abatement, or a demurrer, the prosecutor may institute proceedings to review a judgment sustaining such motion.

2. The provisions of R.C. 2945.68, requiring the permission of the Court of Appeals before a bill of exceptions may be filed, are procedural in nature and are inconsistent with, and superseded by the Rules of Appellate Procedure.

James J. Hughes, Jr., City Atty., Robert A. Bell, and John L. Francis, Columbus, for appellant.

Means, Bichimer & Burkholder Co., L. P. A., and Nicholas A. Pittner, Columbus, for appellee.

PER CURIAM.

This matter is before the court upon the application of plaintiff for leave to appeal, the motion of defendant for leave to intervene, and the motion of plaintiff for leave to file its brief on the merits.

The action was commenced in the Franklin County Municipal Court by the filing of affidavits charging defendant with violations of Section 3241.04, Columbus City Code. Defendant filed a motion to dismiss the affidavits filed against him and it was sustained by the trial court on September 6, 1972. Plaintiff filed a notice of appeal to this court on October 2, 1972. At the same time, plaintiff also filed a notice of intent to seek leave to file a bill of exceptions in this court pursuant to R.C. 2945.68. On October 5, 1972, plaintiff filed such an application in this court.

Defendant contends that the plaintiff has no right of appeal since the prosecution in a criminal case may appeal only where the judgment of the trial court decides a motion to quash, a plea in abatement, a demurrer, or a motion in arrest of judgment. This is the essential effect of the holdings in Euclid v. Heaton (1968), 15 Ohio St.2d 65, 238 N.E.2d 790, and State v. Collins (1970), 24 Ohio St.2d 107, 265 N.E.2d 261.

However, the 4th paragraph of the syllabus in Heaton also refers to 'the equivalent thereof,' which phrase does not appear in R.C. 2945.70. In Collins the opinion indicates that such language in the syllabus of Heaton does not 'expand the scope of prosecution appeals beyond the four categories enumerated in R.C. 2945.70.'

Reference to R.C. 2937.04 gives meaning to the phrase 'or the equivalent thereof' used in the Heaton syllabus. That statute provides that a defendant in a misdemeanor case prosecuted by affidavit 'may then raise, by motion to dismiss the affidavit or complaint, any exception thereto which could be asserted against an indictment or information by motion to quash, plea in abatement, or demurrer.' Thus, a motion to dismiss in a misdemeanor case prosecuted by affidavit is, by statute, made the equivalent of a motion to quash, a plea in abatement, or a demurrer within the contemplation of R.C. 2945.70 and the fourth paragraph of the syllabus of Heaton. It was so held in State v. Seta (1968), 16 Ohio App.2d 97, 242 N.E.2d 349. The first paragraph of the syllabus of that case states:

'A motion to dismiss an affidavit is the equivalent of a motion to quash, a plea in abatement or a demurrer and comes within the exception reserved by City of Euclid v. Heaton, 15 Ohio St.2d 65, 238 N.E.2d 790.'

The judgment sought to be appealed from is a final order as defined by R.C. 2505.02 since it determines the action and prevents a judgment in favor of plaintiff by dismissing the action.

R.C. 2505.03 provides that 'Every final order, judgment, or decree of a court * * * may be reviewed as provided in sections 2505.04 to 2505.45, inclusive, of the Revised Code, unless otherwise provided by law * * *.' Since R.C. 2945.70 is consistent with the judgment here being reviewed on appeal, it is not otherwise provided by law. Cf. State v. Collins (1970), 24 Ohio St.2d 107, 265 N.E.2d 261.

In Toledo v. Crews (1963), 174 Ohio St. 253, 188 N.E.2d 592, it was held that 'there is no right of appeal in a criminal case involving a charge of violation of a municipal ordinance except from a judgment of conviction.' That holding was predicated upon R.C. 1901.30 which, as it then read, did not provide for such an appeal pursuant to R.C. 2945.65 to 2945.70. Since the Crews decision, R.C. 1901.30 has been amended to specifically provide for appeals pursuant to R.C. 2945.65 to 2945.70. Accordingly, the Crews case is no longer controlling.

The procedural issue presented is whether plaintiff need seek leave from this court to prosecute this appeal. The new Ohio Rules of Appellate Procedure generally provide the procedure to be followed in appeals to this court and take precedence over all statutes inconsistent...