Industrial Commission v. Musselli

• Decision Date: 01 February 1921
• Docket Number: 16521
• Citation: 130 N.E. 32,102 Ohio St. 10
• Parties: The Industrial Commission Of Ohio v. Musselli.
• Court: Ohio Supreme Court

130 N.E. 32

102 Ohio St. 10

The Industrial Commission Of Ohio v. Musselli.

No. 16521

Supreme Court of Ohio

February 1, 1921

New trial - Time for filing motion - Section 11578, General Code - "Decision" construed - Date of judgment entry governs - Oral announcement date not controlling.

1. The term "decision," found in Section 11578, General Code, is used in that section in the sense of judgment. The court speaks through its journals and a judgment is not rendered until it is reduced to a journal entry.

2. Said section is a remedial statute and by Section 10214, General Code, it is made the duty of the court to give it a liberal construction, "in order to promote its object, and assist the parties in obtaining justice."

3. Where an oral announcement of a decision upon the issues involved has been made by a trial judge and thereafter a judgment entry has been signed by him and the entry received and filed on the same day by the clerk, a motion for a new trial, filed within three days after such receipt and filing was a compliance with Section 11578, General Code; it was filed within three days after the decision or judgment was rendered.

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The Industrial Commission having denied defendant in error's right to participate in the insurance fund, upon the ground that she was not a dependent, the latter filed her petition in the common pleas court by way of statutory appeal, asking for judgment and award of compensation under the Workmen's Compensation Law. Issue was joined and the cause submitted to the court, which found in favor of the defendant in error.

At this stage arose the controversial points which led to the prosecution of error to the court of ap- peals and finally to this court. The judgment entry awarding compensation and fixing attorney, fees bears date April 21 1919. The commission's motion for a new trial bears date April 29, 1919. Afterwards, the defendant commission asked to correct the record to show that the judgment entry though marked filed as of April 21, 1919, was in fact received and filed by the clerk on April 29, 1919.

The record shows the following undisputed facts:

The cause was submitted to and heard by the court; on April 21 1919, the court announced orally his findings and conclusion, finding the exact amount of the award; the amount of counsel fees was not then fixed by the court; the court at the time of his oral announcement directed counsel to prepare the journal entry; the record does not disclose when or by whom the journal entry was drawn, but it was not furnished by counsel until April 29, 1919, when it was signed by the judge, and, on the same day, received and filed by the clerk.

On the motion of defendant to correct the record the trial court made the following entry:

"This cause being heard on the motion of the defendant requesting the court to correct its record in this case, so as to show the exact date of filing and entering the judgment entry, and the court being fully advised by evidence offered on this date finds that this cause was heard on its merits on the twenty-first day of April, 1919, and that the court on said day rendered judgment orally in favor of the plaintiff and instructed counsel for both parties to prepare the journal entry; that said journal entry was prepared and submitted to the court on the twenty-ninth day of April, 1919, and ordered by him to be entered on the journal of said court as of the twenty-first day of April, 1919, the date on which said judgment was so rendered by the court, and said entry was not entered on said journal until after the twenty-ninth day of April, 1919. To which finding of the court the defendant, by its attorney, excepts."

Because of the foregoing, the trial court overruled a motion for a new trial. Upon the prosecution of error to the court of appeals, that court made the following entry:

"The court being fully advised in the premises and upon an examination of the record the court finds that the final judgment of the Court of Common Pleas was made and entered upon the journal of said court in this case on the twenty-first day of April, 1919, and that a motion for a new trial was not made and filed until April 29, 1919. By reason thereof this court is without jurisdiction in the premises. And it is hereby ordered and adjudged by the court that the bill of exceptions filed in this case be, and the same is hereby stricken from the files and the petition in error is hereby dismissed. To all of which plaintiff in error excepts."

Error is now prosecuted to this court, seeking a reversal of the lower courts.

Mr. John G. Price, attorney general; Mr. R. R. Zurmehly and Mr. George C. Snyder, prosecuting attorney, for plaintiff in error.

Messrs. Paxton, Warrington & Seasongood, for defendant in error.

JONES, J.

The provisions of the statute applicable to the filing of a motion for a new trial are as follows (Section 11578, General Code): "The application must be made within three days after the verdict or decision is rendered."

It is evident from an examination of the entries of the lower courts that those courts entertained the view that the motion for a new trial filed April 29, 1919, was filed too late within the purview of the quoted section, although filed on the same day that the journal entry was prepared and submitted to the court and on the same day the clerk received and filed it. It is also evident that the lower courts held that the oral pronouncement of a decision by the trial judge upon the issues made it incumbent upon the defeated party to file his motion for a new trial within three days after such pronouncement. From an inspection of the entry of the common pleas court it is evident that that court regarded the word "decision," found in Section 11578, General Code as synonymous with "judgment;" for the entry recites that "the court on said day rendered judgment orally in favor of the plaintiff."

The concession made by the court in its journal entry that its decision was a judgment is undoubtedly correct and has been heretofore approved by this court. It was so treated by Spear, Judge, in Buckeye Pipe Line Co. v. Fee, 62 Ohio St 543, 555, where the same words were construed in connection with an application for a new trial. There the code (Section 5305, Revised Statutes, now Section 11576, General Code) required that the motion should state that the decision was not sustained by sufficient evidence; however, the motion stated that the judgment was not sustained by sufficient evidence, and in construing that section the learned judge said: "What is a decision as here expressed? * * * It would seem that the act called here a decision is intended to embrace the last act of the court; in other words, the judgment. * * * It is true that in an abstract sense there is a...