Millies v. Millies

• Decision Date: 07 June 1976
• Docket Number: No. 75-936,75-936
• Citation: 47 Ohio St.2d 43,1 O.O.3d 26,350 N.E.2d 675
• Parties: , 1 O.O.3d 26 MILLES, Appellant, v. MILLES, Appellee.
• Court: Ohio Supreme Court

Page 43

47 Ohio St.2d 43

350 N.E.2d 675, 1 O.O.3d 26

MILLES, Appellant, v. MILLES, Appellee.

No. 75-936.

Supreme Court of Ohio.

June 7, 1976.

Bannon, Howland, McCurdy, Dever & Mearan, William L. Howland, Portsmouth, and John T. Rittenour, Piketon for appellant.

Frederick C. O'Grady, Dayton, for appellee.

PER CURIAM.

The question of what is or is not a judgment entry from which an appeal will lie, and from which an appeal must be filed in timely fashion, is frequently litigated. Civ.R. 58 ¹ was intended to resolve 'the old, old question of when is a judgment a judgment.' 11 Wright and Miller, Federal Practice and Procedure: Civil, Section 2781, citing Cedar Creek Oil & Gas Co. v. Fidelity Cas. Co. (C.A. 9, 1956), 238 F.2d 298. However, '(t)here are no hard and fast rules for determining what is a judgment; past cases have set certain boundaries and announced generalizations, but essentially every case must be determined from its own facts.' Associated Press v. Taft-Ingalls Crop. (C.A. 6, 1963), 323 F.2d 114, 115.

For this reason, it is difficult to resolve what is here represented as a conflict between two judgments, for the facts of the cases certified differ markedly. Shore v. Chester, supra, was not appealed to this court. We therefore do not pass upon the correctness of its holding. ²

Unlike Shore, the case before us concerns an equivocal order not readily identifiable as a judgment entry, but rather one arguably intended by the trial judge as an announcement of his decision denying the appellant's motions for new trial and for judgment.

Prior to a 1963 amendment to Federal Rule of Civil Procedure 58, which now requires a judgment to be entered by separate document, cases of this type were decided by determining whether the trial judge had clearly declared his intention to enter a final decision in the matter before him. Kaplan, Amendments of the Federal Rule of Civil Procedure, 1961-1963(II), 77 Harvard Law Review 801, at page 831.

For example, in United States v. F. & M. Schaefer Brewing Co. (1958), 356 U.S. 227, 78 S.Ct. 674, 2 L.E.2d 721, the fact that the trial judge, when later presented with a formal journal entry, had signed it, was deemed significant by the United States Supreme Court in determining the trial judge's intention, and finding the formal order appealable.

In Healy v. Pennsylvania R. Co. (C.A. 3, 1950), 181 F.2d 934, the court, while holding that a memorandum opinion which concluded by stating '(t)he motions * * * are denied' was not a judgment, suggested that a memorandum or opinion could do double duty and serve as a judgment if it included a sufficiently definitive formal statement. The court added that if this method was to be employed, it would be well to entitle the memorandum 'opinion and order,' so that no question of interpretation would arise.

Here, the trial court, in signing the formal journal entry on January 7, 1975, fecognized that the earlier order either was not intended to be a final disposition, or that it insufficiently contained notice of its finality.

We have examined that earlier order carefully, and find none of the usual indicia which demonstrate finality such that an immediate appeal would be required. Both the form of the order and the circumstances surrounding its issuance indicate that a more formal entry was to follow.

Therefore, the order of the Court Appeals dismissing the appeal is reversed.

Judgment reversed.

C. WILLIAM O'NEILL, C. J., and HERBERT, J. J. P. CORRIGAN, STERN and PAUL W. BROWN, JJ., concur.

CELEBREZZE and WILLIAM B. BROWN, JJ., dissent.

CELEBREZZE, Justice (dissenting).

This case was certified to this court as a 'conflict case' pursuant to Rule III, Rules of Practice of the Supreme Court. The journal entry of certification states:

'The court being fully advised in the premises find that the court in Shore v. Chester holds that an announcement of a decision cannot be the same document as the judgment entry, whereas in the present case we have held that the announcement of the decision may be the same doucument as the judgment entry.'

The majority opinion avers that since the facts in this case are 'markedly' different from those in Shore v. Chester (1974), 40 Ohio App.2d 412, 321 N.E.2d 614, they chose not to pass upon the 'correctness of its holding.' If that judgment of the...