Hoffman v. Knollman

• Decision Date: 22 March 1939
• Docket Number: 27316.
• Citation: 20 N.E.2d 221,135 Ohio St. 170
• Parties: HOFFMAN et al. v. KNOLLMAN et al.
• Court: Ohio Supreme Court

20 N.E.2d 221

135 Ohio St. 170

HOFFMAN et al. v. KNOLLMAN et al.

No. 27316.

Supreme Court of Ohio

March 22, 1939

Syllabus by the Court.

1. While an application for a new trial must be made at the term and within three days after the verdict is rendered unless the party applying is unavoidably prevented from filing such application within that time (Section 11578, General Code) it is not error to overrule a motion to strike a motion for new trial from the files on the ground that it was not filed within time, unless it affirmatively appears from the record that there was a failure to file within time.

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.

This action was filed in the Common Pleas Court of Fairfield county to contest the will of John C. Hoffman, deceased. The hearing of the case was concluded and a verdict rendered on Saturday evening, January 8, 1938, the jury returning a verdict to the effect that the paper writing purporting to be the last will and testament of the decedent was not in fact his last will and testament. The October 1937, term of court for the county of Fairfield ended at nine o'clock Monday morning, January 10, 1938, and at that time the January, 1938, term of court began. The verdict of the jury was entered for record on January 10, 1938, and the defendants filed a motion for new trial on the same date, but the record is silent as to the hour of recording the verdict and of filing the motion for new trial.

Between the entry of filing the verdict on January 8 and the entry of filing the motion for new trial on January 10, there appears on the appearance docket, without date, the words: 'October term A. D. 1937 continued.' On January 14, 1938, the plaintiffs filed a motion to strike the motion for new trial from the files on the ground that it was not filed within the term at which the verdict was rendered. The trial court heard the motion to strike and overruled the same. On the same day the court heard defendant's motion for new trial, sustained the same, vacated the verdict and granted a new trial. The plaintiffs filed assignments of error in the Court of Appeals, complaining that the trial court had overruled the motion to strike defendants' motion for new trial from the files, but had sustained defendants' motion for new trial. Thereupon, the defendants filed a motion in the Court of Appeals to dismiss the appeal for the reason that no final order or judgment had been made or entered by the Common Pleas Court from which the appeal could be taken to the Court of Appeals. The Court of Appeals sustained this motion and dismissed the appeal.

This case is now in this court for final review of the record by reason of the allowance of a motion to certify.

J. W. Deffenbaugh, W. C. Miller, and J. H. Fultz, all of Lancaster, for appellants.

C. A. Radcliffe and Harry Kilburger, both of Lancaster, for appellees.

HART Judge.

There are two procedural questions raised by the record in this case: (1) Did the Common Pleas Court err in overruling plaintiffs' motion to strike defendants' motion for new trial from the files on the ground that the motion was not seasonably made, and, (2) did the Court of Appeals err in sustaining defendants' motion to dismiss the appeal, on the ground that vacating the verdict of the jury by the Common Pleas Court on motion for new trial is not a judgment or final order from which an appeal may be taken? These questions will be discussed in the order named.

Section 11578, General Code, provides as follows:

'The application for a new trial must be made at the term the verdict, report, or decision is rendered * * *. The application must be made within three days after the verdict or decision is rendered, unless the [the party applying] is unavoidably prevented from filing it within such time.'

The verdict of the jury in this case was rendered in favor of plaintiffs on Saturday, January 8, and the motion for new trial was made on Monday, January 10. The plaintiffs claim that while the motion was filed within the three-day limitation, it was not filed until the afternoon of January 10 and, therefore, after the expiration of the October, 1937, term, which expired at nine o'clock on that day. There is testimony to that effect, in support of the motion to strike, attached as an appendix to the brief of the plaintiffs, but this is not certified as a part of the record and, therefore, must be disregarded.

The transcript of the record shows an entry without date, but between the notation of the filing of the verdict on January 8 and the notation of the filing of a motion for new trial on January 10, in the following words: 'October term A. D. 1937 continued.' Furthermore, since it was within the power of the Common Pleas Court, under Section 1536, General Code, to extend the October, 1937, term in accordance with the record notation on the docket, and since the record is silent as to when the term actually closed, this court cannot assume that the motion for new trial was not filed within the term. This conclusion is supported by the fact that the Common Pleas Court, on February 9, following, considered the motion to strike, overruling the same, and at the same time granted the motion for new trial, which in effect amounted to an extension of the term. The extension of the term was a matter within the authority and discretion of the court, and in the absence of any other record it will be presumed that the court acted within its jurisdiction and authority in overruling the motion to strike and sustaining the motion for a new trial. Every presumption will be indulged to afford a party the benefit of the remedial and procedural statutory provisions clearly and obviously intended.

Under the circumstances of this case, this court is of opinion that the Common Pleas Court did not err in overruling plaintiffs' motion to strike defendants' motion for new trial from the files, and in considering and ruling upon defendants' motion for new trial.

The second question raised in this case relates to the jurisdiction of the Court of Appeals to review the record on appeal from the Common Pleas Court, based upon the action of the latter court in granting a motion for new trial.

It must be remembered that the Court of Appeals acquires its jurisdiction directly and solely from Section 6, Article IV of the Constitution (Bayes v. Midland Casualty Co., 92 Ohio St. 303, 110 N.E. 751; Cincinnati Polyclinic v. Balch, 92 Ohio St. 415, 111 N.E. 159), and that there is no legislative authority to enlarge that jurisdiction. Thompson v. Redington, 92 Ohio St. 101, 110 N.E. 652, Ann.Cas.1918A, 1161; Cincinnati Polyclinic v. Balch, supra; Wagner v. Armstrong, 93 Ohio St. 443, 113 N.E. 397; Haas v. Mutual Life Ins. Co. of New York, 95 Ohio St. 137, 115 N.E. 1020; Marleau v. Marleau, 95 Ohio St. 162, 115 N.E. 1009; Robinson v. Wagner, Guardian, 95 Ohio St. 300, 116 N.E. 514; Thompson v. Denton, 95 Ohio St. 333, 116 N.E. 452; State ex rel. Emery-Thompson Machinery & Supply Co. v. Jones, 96 Ohio St. 506, 118 N.E. 115; Hollowell, Ex'x, v. Schraden, 96 Ohio St. 599, 118 N.E. 1083; State ex rel. D'Alton v. Ritchie, 97 Ohio St. 41, 119 N.E. 124; United Distillers Co. v. Zeisler, 97 Ohio St. 62, 119 N.E. 139; Complete Building Show Co. v. Albertson, 99 Ohio St. 11, 121 N.E. 817; West v. West, 100 Ohio St. 33, 124 N.E. 888; Barnes v. Christy, 102 Ohio St. 160, 131 N.E. 352; Russell, Adm'r, v. Fourth National Bank, 102 Ohio St. 248, 131 N.E. 726; Craig v. Welply, 104 Ohio St. 312, 136 N.E. 143; In re Hawke, 107 Ohio St. 341, 140 N.E. 583; Commonwealth Oil Co. v. Turk, 118 Ohio St. 273, 160 N.E. 856; Werner v. Rowley, 129 Ohio St. 15, 193 N.E. 623; Eastman v. State, 131 Ohio St. 1, 1 N.E.2d 140.

Prior to January 1, 1913, the jurisdiction of the Circuit Court was fixed by Section 6, Article IV of the Constitution, in the following language:

'The circuit court shall have like original jurisdiction with the supreme court, and such appellate jurisdiction as may be provided by law.' (Italics ours.)

Prior to January 1, 1913, that jurisdiction was provided by Section 12247, General Code, formerly Section 6709, Revised Statutes and was as follows: 'A judgment rendered or final order made by a court of common pleas or by the superior court of Cincinnati, or by a judge of either of such courts, may be reversed, vacated, or modified, by the circuit court having jurisdiction in the county wherein the common pleas or superior court is located, for errors appearing on the record.' (Italics ours.) Section 11582, General Code, then and now in force, defined 'judgment' to be 'the final determination of the rights of the parties in action'; and Section 12258, General Code, then and thereafter in force to January 1, 1936, defined a 'final order' as being: 'An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, and an order affecting a substantial right...