Kauder v. Kauder
| Decision Date | 19 June 1974 |
| Docket Number | No. 73-807,73-807 |
| Parties | , 67 O.O.2d 333 KAURDER, Appellee, v. KAUDER, a. k. a. Gilberg, Appellant. |
| Court | Ohio Supreme Court |
Aronoff, Rosen & Lerner Co. L. P. A., and William J. Ennis, Cincinnati, for appellee.
Cors, Hair & Hartsock, Louis J. Schneider, Jr., and James R. Marlow, Cincinnati, for appellant.
Appellant contends that the 30-day period within which she could appeal the court's entry of February 21, 1973, pursuant to App.R. 4(A), was suspended by the subsequent reconsideration given by the court to the referee's report. She further asserts that that reconsideration was the equivalent of a new trial, and hence that the journal entry of April 10, 1973, from which she purports to appeal, was itself a final appealable order.
We are unable to agree with appellant. In addition to establishing the 30-day period for appeal, App.R. 4(A) provides the exclusive means by which the running of that time may be suspended. The operation of the rule may be tolled by either the filing of a motion for judgment notwithstanding the verdict, pursuant to Civ.R. 50(B), or the filing of a motion for a new trial under Civ.R. 59. Appellant's 'motion for reconsideration' manifestly is neither. *
Appellant's attempt to equate that motion with a motion for a new trial is of to avail, nor is her argument that the de novo nature of the court's reconsideration transformed the motion which trigged it into a motion for a new trial. App.R. 4(A) is precise in its requirements, and appellant's possible reliance to her detriment upon an informal local practice, although unfortunate, cannot alter the operation of that Rule. Her failure to conform to App.R. 4(A) rendered null the 'reconsideration' and the resulting journal entry of April 10, 1973, and the Court of Appeals properly granted the motion to dismiss the appeal.
Judgment affirmed.
* If anything, it is a motion for relief from judgment pursuant to Civ.R. 60(B). In specific terms, Rule 60(B) provides: 'A motion (filed hereunder) * * * does not affect the finality of a judgment or suspend its operation.' Thus, a Civ.R. 60(B) motion, by whatever name, does not toll the time in which an appeal can be filed.
To continue reading
Request your trial
-
North Royalton Ed. Ass'n v. North Royalton Bd. of Ed.
...procedural issue raised by appellee's to dismiss made after the argument on the merits in this court and after Kauder v. Kauder (1974), 38 Ohio St.2d 265, 313 N.E.2d 797, was decided by the Supreme Court of Ohio. That case establishes the principle that a motion for reconsideration is not t......
-
Colley v. Bazell
...is not tolled by either the filing of a Civ.R. 60(B) motion for relief from judgment or a motion to reconsider. Kauder v. Kauder (1974), 38 Ohio St.2d 265, 213 N.E.2d 797; William W. Bond, Jr. & Assoc. v. Airway Development Corp. (1978), 54 Ohio St.2d 363, 377 N.E.2d 988. Moreover, a motion......
-
Plymale v. Donnelly
...fiction created by counsel, which has transcended into a confusing, clumsy and "informal local practice." See Kauder [v. Kauder (1974), 38 Ohio St.2d 265, 313 N.E.2d 797], supra, and Kent, Odds & Ends, 49 Cleve. Bar J. Pitts v. Ohio Dep't of Transp., 67 Ohio St.2d 378, 423 N.E.2d 1105, 1107......
-
In Re: Pamela K. Smith v. Board of Health
... ... that a motion for relief from judgment does not affect the ... finality of the judgment or suspend its operation. Kauder ... v. Kauder (1974), 38 Ohio St.2d 265 (a motion that was ... filed within the time for appeal construed as a Civ.R. 60(B) ... ...