Village of Avon v. Popa
| Citation | 96 Ohio App. 147,121 N.E.2d 254,54 O.O. 226 |
| Parties | , 54 O.O. 226 VILLAGE OF AVON v. POPA. |
| Decision Date | 11 November 1953 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court.
1. Where, pursuant to conviction of the violation of a penal ordinance in the mayor's court of a village, a defendant has paid the fine and costs imposed by sentence, while consummating the various procedural steps requisite for appeal to the Court of Common Pleas, such payment of the penalty does not, as a matter of law, constitute an abandonment of the appeal, nor does a defendant, as a matter of law, waive his right to secure a review of the conviction.
2. Where there is some evidence from which an inference may be reasonably drawn that a fine was paid with the intent not to waive the right of appeal, an appeal otherwise properly effected should not be dismissed on the ground that the fine was paid.
3. Where a fine is paid during appeal, an inference may be drawn that the defendant paid to preserve his liberty, and not because he admits the justice of the conviction or acquiesces in it, or abandons his right for review.
Joseph Q. Petro, Elyria, for appellant.
A. H. West, village solicitor, Elyria, for appellee.
Chester Popa was convicted in the Mayor's Court of Avon, Ohio, of violating a penal zoning ordinance. It was charged by affidavit 'that * * * [he] established [a] business enterprise by opening a sand pit and disposed dirt and other substance from his properly for profit.' It is asserted that the defendant violated the ordinance through conduct of a business in a residence zone.
An appeal of the judgment of conviction to the Common Pleas Court of Lorain County was dismissed by that court 'upon the grounds that the voluntary payment of the fine waives the right to secure a review.' Appeal has been perfected to this court from the judgment of dismissal in the Court of Common Pleas, and we are now asked to review the propriety of the court's ruling in dismissing the appeal.
The Mayor's court docket shows the following:
January 17, 1953: Affidavit filed in the Mayor's Court setting forth facts claimed to constitute a violation of a municipal penal ordinance. Trial hearing set.
January 26, 1953, and subsequent dates: Indicating a trial in which the testimony of witness was received.
February 11, 1953: Defendant found guilty and fined fifty dollars and costs.
February 18, 1953: Motion for a new trial filed; motion for leave to file bill of exceptions filed; notice of appeal and a motion for stay of execution of sentence filed.
February 23, 1953: The defendant paid the fine and costs. The record, at the time of payment, shows no disposition of (1) the motion for a new trial, nor (2) the motion for stay of execution.
March 9, 1953: Motion for a new trial overruled and leave given defendant to file bill of exceptions.
In the transcript of docket and journal entries in the Court of Common Pleas appears the following:
April 9, 1953: Transcript of docket from the court of Mayor James B. Adams of Avon, Ohio, filed; motion for leave to appeal filed; notice of appeal filed; assignment of errors and brief of defendant-appellant filed; defendant's bill of exceptions filed.
April 17, 1953: Brief of appellee filed.
May 14, 1953: Amended transcript filed.
May 15, 1953: Motion of defendant for leave to appeal granted. Exceptions.
April term, 1953: '* * * 5/26/53, Jr. 135, page 200 to wit:
It appears probable that the Court of Common Pleas, in its judgment of dismissal, adopted the view of the author of 'Appellate Review' in 2 Ohio Jurisprudence, Revised, and the language of Judge Matthews in Village of Addyston v. Liddle, 54 Ohio App., 323, 6 N.E.2d 877. Section 128 of said 'Appellate Review' speaks as follows:
'* * *.
* * *'
It cannot be disputed but that the weight of authority in the jurisdictions where the question has arisen, supports the Ohio case noted above, and especially where payments have been voluntarily made. Various reasons are given by the courts, most of which may be found in the cases cited in the annotation 'Payment of fine, serving sentence, or discharge on habeas corpus, as waiver of right to review conviction' in State of Nevada v. Cohen, 45 Nev. 266, 201 P. 1027, 18 A.L.R. 867, and State of Indiana ex rel. Lopez v. Killigrew, 202 Ind. 397, 174 N.E. 808, 74 A.L.R. 638.
The members of this court, while recognizing the fact that the court which decided Village of Addyston v. Liddle, supra, followed the general...
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