Schenley v. Kauth

• Decision Date: 01 July 1953
• Docket Number: No. 33318,33318
• Citation: 113 N.E.2d 625,160 Ohio St. 109,51 O.O. 30
• Parties: , 51 O.O. 30 SCHENLEY v. KAUTH.
• Court: Ohio Supreme Court

Page 109

160 Ohio St. 109

113 N.E.2d 625, 51 O.O. 30

SCHENLEY v. KAUTH.

No. 33318.

Supreme Court of Ohio.

July 1, 1953.

Syllabus by the Court.

1. A court of record speaks only through its journal and not by oral pronouncement or mere written minute or memorandum.

2. By the provision of Section 12223-7, General Code, 'that, when a motion for a new trial is filed by either party within ten days after a journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization, then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for a new trial,' the filing of a journal entry overruling or sustaining the motion for a new trial is essential to start the running of the period of time, therein prescribed, within which an appeal may be perfected.

3. A written unsigned 'finding' by the court disposing of a motion for a new trial, filed with the clerk, entered on the appearance docket as such 'finding,' and not journalized is not a compliance with the provision of Section 12223-7, General Code, requiring 'the entry of an order' overruling or sustaining such motion.

This cause originated in the Court of Common Pleas of Summit County.

The plaintiff, Mabel St. Clair Schenley, seeks damages from the defendant, Florence I. Kauth, for a breach of contract for the sale of certain land.

The cause was tried to a jury and resulted in a verdict for the plaintiff.

The transcript of the docket and journal entries recites, inter alia, the following:

'January 14, 1952. Verdict for plaintiff filed. * * *

'January 16, 1952. In conformity to the verdict rendered by the jury in this action on the 14th day of January, 1952, in favor of the plaintiff for the sum of $1,687.50, it is ordered that the plaintiff recover of the defendant the sum of $1,687.50 and her costs incurred herein for which judgment is hereby rendered. Defendant excepts.

'January 16, 1952. Certificate of judgment filed with clerk of Summit county, Ohio.

'January 17, 1952. Motion for new trial filed.

'* * *

'March 11, 1952. Finding, Wanamaker, J., filed.

'April 1, 1952. January 1952 term continued to April 1952 term.

'June 6, 1952. This cause this day came on to be heard upon the motion of the defendant filed herein for an order for new trial. The court, upon due consideration of the facts and evidence finds that a new trial should not be had, and that said motion should be overruled. It is therefore hereby ordered, adjudged and decreed that the motion heretofore filed in this matter for an order for new trial be and the same is hereby overruled.

'June 10, 1952. Notice of appeal filed.'

On October 22, 1952, the Court of Appeals sustained a motion of the plaintiff to dismiss the defendant's appeal on questions of law, for reason that the 'notice of appeal was not filed within the time prescribed by Section 12223-7 of the General Code.'

The cause is in this court for review following allowance of a motion to certify the record of the Court of Appeals.

Sal Germano and James A. Rondy, Akron, for appellant.

Charles D. Evans and Paul E. Weimer, Akron, for appellee.

MATTHIAS, Judge.

Concisely stated, the question presented is: Does the time for appeal from the Court of Common Pleas to the Court of Appeals begin to run from the time of the 'finding' of the trial court overruling the motion for a new trial entered on the appearance docket, or from the time such order is put in the form of a journal entry approved by the court and duly filed in the office of the clerk of courts?

The rule is well established in this state that a court of record speaks only through its journal and not by oral pronouncement or a mere minute or memorandum. State ex rel. Industrial Commission v. Day, Judge, 136 Ohio St. 477, 26 N.E.2d 1014.

Section 12223-7, General Code, provides in part as follows:

'After the journal entry of the final order, judgment or decree, has been approved by the court in writing and filed with the clerk for journalization, or after the entry of other matter for review, the period of time within which the appeal shall be perfected, unless otherwise provided by law, is as follows:

'1. In appeals to the supreme court, to courts of appeals or from municipal courts and from probate courts to courts of common pleas,, within twenty (20) days.

'Provided, that, when a motion for a new trial is filed by either par...