Green v. Acacia Mut. Life Ins. Co.

• Court: Ohio Supreme Court
• Writing for the Court: STEWART; WEYGANDT; ZIMMERMAN; HART; MATTHIAS
• Citation: Green v. Acacia Mut. Life Ins. Co., 100 N.E.2d 211, 156 Ohio St. 1 (Ohio 1951)
• Decision Date: 27 June 1951
• Docket Number: No. 32339,32339
• Parties: , 45 O.O. 32 GREEN v. ACACIA MUT. LIFE INS. CO.

Page 1

156 Ohio St. 1

100 N.E.2d 211, 45 O.O. 32

GREEN v. ACACIA MUT. LIFE INS. CO.

No. 32339.

Supreme Court of Ohio.

June 27, 1951.

Syllabus by the Court.

1. The amendment of Section 6, Article IV of the Constitution of Ohio, adopted November 7, 1944, and effective January 1, 1945, is the sole source of jurisdiction of the Court of Appeals and such jurisdiction can not be enlarged by the General Assembly. The latter may legislate as to the jurisdiction of the Court of Appeals to review, affirm, modify, set aside or reverse final orders or judgments of boards, commissions, officers, tribunals or courts of record inferior to the Court of Appeals, but it has no authority to confer on the Court of Appeals jurisdiction to review any orders which do not constitute final orders or judgments.

2. Where a judgment is entered upon the verdict of a jury, under Section 11599, General Code, and within ten days thereafter a motion for a new trial is made under Section 11578, General Code, the judgment is under the control of the trial court until it passes upon the motion for new trial.

3. Where the trial court grants a motion for a new trial, the judgment entered upon a verdict is set aside and is no longer in existence.

4. An order granting a new trial upon motion made in accordance with Section 11578, General Code, is not a final determination of the rights of the parties and does not constitute a judgment of final order, the General Assembly has no power or authority to provide for an appeal from such order, and Section 12223-2, General Code, providing that 'an order vacating or setting aside a judgment and ordering a new trial, is a final order,' is in conflict with Section 6, Article IV of the Ohio Constitution.

On March 18, 1948, Consetta P. Green, hereinafter designated plaintiff, brought an action in the Common Pleas Court of Hamilton County against Acacia Mutual Life Insurance Company, hereinafter designated defendant, upon a policy of insurance on the life of her husband, George C. Green, in which policy plaintiff was named beneficiary. The policy had been delivered to George C. Green upon payment of a premium on October 17, 1947.

George C. Green died October 31, 1947, while such policy was in effect.

Defendant filed an answer in which it alleged that decedent in his application for the policy claimed to be in good health, whereas he was not, in giving false answers with reference to his physical condition; and that defendant relied on such answers.

Defendant tendered to plaintiff the amount of the premium paid for the policy, with interest.

After trial, plaintiff filed a reply to defendant's answer nunc pro tunc.

The jury returned a verdict in favor of plaintiff for the full amount of the policy, with interest, whereupon defendant filed a motion for a judgment notwithstanding the verdict. The motion was overruled and judgment was entered by the trial court upon the verdict.

Within ten days thereafter defendant filed a motion for a new trial, which was granted by the trial court by an order reading as follows:

'This cause being heard on defendant's motion to set aside the verdict and judgment herein and to grant a new trial, was argued by counsel and submitted to the court; on consideration whereof the court, having been requested by plaintiff to state the grounds of the finding, finds said motion well taken on the grounds that there is newsly discovered evidence material for the defendant and because the verdict and judgment are manifestly against the weight of the evidence, and that the motion should be sustained.

'It is, therefore, ordered that the verdict and the judgment entered herein be, and the same are hereby set aside and vacated and a new trial of the cause is granted.

'To all of which the plaintiff, by her counsel, excepts.'

From that order the plaintiff appealed to the Court of Appeals of Hamilton County, and the defendant filed a cross-appeal from the order of the trial court overruling its motion for judgment notwithstanding the verdict.

The Court of Appeals dismissed both the appeal and cross-appeal and in reference to the former found 'no abuse of discretion on the part of the Court of Common Pleas in vacating and setting aside the judgment and granting the motion for a new trial and that said appeal not being predicated upon a final order is not reviewable by this court and should be dismissed.'

The judges of the Court of Appeals, finding its judgment in conflict with the judgment of the Court of Appeals of the Eighth Appellate District, in the case of Haffner v. Schmeidl, 87 Ohio App. 143, 77, 90 N.E.2d 700, certified the record to the Supreme Court for review and final determination.

Walter K. Sibbald, Cincinnati, for appellant.

Marble & Vordenberg, Cincinnati, for appellee.

STEWART, Judge.

Although the briefs of plaintiff and defendant contain extensive arguments pro and con as to the justification of the trial court in setting aside the judgment and the verdict, in view of the conclusion at which we have arrived we do not reach that question.

We address ourselves only to the action of the Court of Appeals in dismissing plaintiff's appeal on the ground that it was not predicated upon a final order, and, therefore, did not lie.

Prior to the adoption of the amendments of 1912, the Ohio Constitution delegated to the General Assembly exclusive authority to confer appellate jurisdiction on the Circuit Court, the predecessor of the present Court of Appeals, by providing that such court should have 'such [appellate] jurisdiction as may be provided by law'. Const. art. 4, § 6.

The constitutional amendment of 1912 created the Courts of Appeals and provided that they should have 'appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law'. Const. art. 4, § 6.

In the case of Cincinnati Polyclinic v. Balch, 92 Ohio St. 415, 111 N.E. 159, this court decided that the Court of Appeals acquired its appellate jurisdiction by the last above-quoted constitutional provision and that the General Assembly had no power either to enlarge or to limit that jurisdiction. That doctrine has been uniformly approved by this court since that time.

Although the 1912 amendment gave Courts of Appeals jurisdiction to review judgments, the term, judgments, was given a broad meaning by this court.

In Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St. 188, 135 N.E. 620, the first paragraph of the syllabus reads: 'Such interpretation must be given a provision of the Constitution as will promote the object of the people in adopting it, and narrow and technical definitions of particular words should be avoided. In obedience to this rule the term 'judgments' appearing in section 6, article IV, of the Constitution as amended in 1912, is used in its broad and generally accepted meaning and not in that restricted meaning formerly given it by the Legislature in section 11582, General Code. The term comprehends all decrees and final orders rendered by a court of competent jurisdiction, and which determine the rights of parties affected thereby.'

Thus, under the constitutional amendment of 1912, the Courts of Appeals had the jurisdiction to review judgments, including all decrees and final orders and the General Assembly had no power to enlarge or limit the jurisdiction of the court.

In a long line of cases beginning with Conord v. Runnels, 23 Ohio St. 601, and running through Hoffman v. Knollman, 135 Ohio St. 170, 20 N.E.2d 221, this court held that the setting aside of a general verdict of a jury and the granting of a motion for a new trial does not constitute a final order and cannot be reviewed by an appellate court unless there is an abuse of discretion by the trial court in granting such motion.

In 1937, the General Assembly passed an amendment to Section 12223-2, General Code, 117 Ohio Laws, 615, effective August 23, 1937, providing: 'vacating or setting aside a general verdict of a jury and ordering a new trial, is a final order'.

In the Hoffman case, where that statute was under consideration, it is stated in the syllabus:

'2. An order of a trial court setting aside a general verdict of a jury and granting a new trial is not a final determination of the rights of the parties and is not, therefore, a judgment or final order reviewable by the Court of Appeals, unless it clearly appears that the trial court has abused its discretion in granting such order.

'3. The jurisdiction of the Court of Appeals is conferred by Section 6, Article IV of the Constitution, and cannot be enlarged or curtailed by legislative action.

'4. The amendment of Section 12223-2, General Code (117 Ohio Laws, 615), effective August 23, 1937, providing that 'vacating or setting aside a general verdict of a jury and ordering a new trial, is a final order,' would, if given effect, enlarge the jurisdiction of the Court of Appeals, and is, therefore, in conflict with Section 6, Article IV of the Constitution.'

On November 7, 1944, an amendment of Section 6, Article IV of the Constitution, was adopted by the people, effective January 1, 1945. It provided, inter alia:

'The courts of appeals shall have * * * such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the court of appeals within the district * * *.'

After the effective date of that amendment, the General Assembly amended Section 11575, General Code, to read as follows: 'A new trial is a re-examination, in the same court, of the issues, after a final order, judgment of decree by the court.'

The General Assembly, at the same time it amended Section 11575, amended Section 11578 to read as follows: 'The application for a new trial must...