Opinion
No. 74-CI-016
Decided August 12, 1974.
Motor vehicles — Financial responsibility law — Suspension of license — Appeal — R. C. 119.12 — Not timely filed, when — Notice received by agency after 15th day.
The timely filing of the notice of appeal with the court does not comply with the provisions of R. C. 119.12 for the purpose of establishing jurisdiction to hear an appeal from the order of the Bureau of Motor Vehicles suspending the appellant's driving privileges and right of registration of a motor vehicle; the statute requires that the notice must be filed with the agency whose order is appealed from within 15 days after the mailing of the notice of the agency's order and that the notice of appeal actually must be received by said bureau not later than the 15th day.
Mr. Gordon E. Bolt, pro se.
This is an appeal by the plaintiff-appellant under R. C. 119.12 from an order of the defendant-appellee dated January 17, 1974, suspending the driver's privileges and right of registration of a motor vehicle of the appellant, Gordon E. Bolt.
This cause was set for hearing on July 2, 1974, pursuant to notice in writing given by this court on June 19, 1974, to the plaintiff-appellant personally, he having no attorney in this cause, and to the attorney for the defendant-appellee herein. Plaintiff-appellant did not appear in person at said hearing but submitted his position to the court in writing in the form of letters. Defendant-appellee waived oral hearing and argument herein and submitted the defendant-appellee's position on his pleadings and briefs and the record filed by the defendant-appellee herein.
The court upon consideration of the evidence presented herein and the briefs of counsel for the defendant-appellee, finds the facts herein to be as follows. A judgment was rendered against the plaintiff-appellant herein in the 72nd Judicial District Court in Port Huron, Michigan on June 21, 1972, as the result of an accident which occurred on November 9, 1971; said judgment was in the amount of $660 plus $14 court costs, for a total judgment of $674; said judgment was rendered by default against the plaintiff-appellant herein; a certification of said judgment from the state of Michigan was made by the attorney for the judgment creditor duly certified by said District Court in the state of Michigan to the Bureau of Motor Vehicles of the state of Ohio accompanied by a certification that said judgment had not been paid or the damages from the accident out of which it arose being settled; said notice of suspension by the defendant-appellee herein is dated and was sent January 17, 1974, and was received by the plaintiff-appellant on January 19, 1974; plaintiff-appellant's appeal was filed in this court on February 1, 1974, and a copy of a notice of appeal to this court was mailed by plaintiff-appellant by certified letter to the defendant-appellee on February 1, 1974. Said notice of appeal was received by the defendant-appellee on February 7, 1974; plaintiff-appellant was further advised by the defendant-appellee by letter dated February 5, 1974, that his driver's and registration privileges could not be reinstated until he had submitted evidence that the judgment rendered against him in Michigan had been satisfied, arrangements made for its satisfaction, or discharged in bankruptcy; he was also advised by said letter of February 5, 1974 of the defendant-appellee that he must file evidence of financial responsibility with the bureau in the form of a certificate of insurance or by financial responsibility bond as required by law.
The record in this case was filed in this court by the defendant-appellee on February 15, 1974, as required by R. C. 119.12.
The court further finds from the letter of plaintiff-appellant dated June 30, 1974, that his insurance had lapsed prior to the time of the accident on which the judgment was rendered in the state of Michigan; that he does now have insurance but no evidence was presented by him that he had filed proof of financial responsibility through insurance with the defendant-appellee up to the time of this hearing.
The defendant-appellee herein, to-wit: The Bureau of Motor Vehicles of the state of Ohio, contends that the court has no jurisdiction in this appeal for the reason that the plaintiff-appellant failed to file his notice of appeal with the Bureau of Motor Vehicles within fifteen (15) days of the mailing to him of the notice of suspension. Said defendant-appellee also asserts that even if this court does have jurisdiction and finds that said appeal was timely filed, that said order of the Bureau of Motor Vehicles is supported by reliable, probative and substantial evidence pursuant to R. C. 119.12, and is, therefore, in accordance with law and, therefore, said appeal should be dismissed on its merits on the facts shown in this case.
Considering first the contention of the defendant-appellee that this court is without jurisdiction to decide this appeal because the plaintiff-appellant failed to file his notice of appeal with the defendant-appellee, Bureau of Motor Vehicles within the time required by R. C. 119.12. The court finds that said section provides as follows:
"Any party desiring to appeal shall file a notice of appeal with the agency setting forth the order appealed from and the grounds of his appeal. A copy of such notice of appeal shall also be filed by appellant with the court. Unless otherwise provided by law relating to a particular agency, such notices of appeal shall be filed within fifteen days after the mailing of the notice of the agency's order as provided in this section."
This court can find no provision of law in the Revised Code of Ohio relating to the conduct of the Bureau of Motor Vehicles in suspending a driver's privileges and license plate privileges that would override or change the provisions of R. C. 119.12 above-quoted. Therefore, the plaintiff-appellant is bound by the provisions of said section. The court further finds that the notice of suspension was mailed to the plaintiff-appellant on January 17, 1974, and that pursuant to said section the 15 days allowed by law to file a notice of appeal with said Bureau of Motor Vehicles expired on February 1, 1974. If the court construed this section to grant the plaintiff-appellant 15 days from the date of receipt of said notice of suspension, the 15 days would expire on Sunday, February 3, 1974, which would in fact give the plaintiff-appellant until Monday, February 4, 1974, as the 15-day period in which to file his notice of appeal with said Bureau of Motor Vehicles. The record herein as shown by the facts stated above shows that said notice of appeal was not received by said Bureau of Motor Vehicles Safety Responsibility Division until February 7, 1974, at 7:26 A. M. Said evidence also shows that the notice of appeal was filed in this court on the first day of February, 1974, by plaintiff-appellant and that the plaintiff-appellant mailed said notice on February 1, 1974. The court finds as a matter of law that plaintiff-appellant has not filed his appeal within the time required by law with the Bureau of Motor Vehicles for the reason that the notice of appeal was not actually received by said defendant-appellee on or before February 1, 1974. The filing of the notice of appeal with the court dos not comply with the provisions of R. C. 119.12 for the purpose of establishing jurisdiction to hear this appeal on the merits in this court. The statute requires that the notice must be filed with the agency whose order is appealed from within the 15-day period and that it must actually be received by said bureau not later than the 15th day. In this case before the court said notice was not mailed until the 15th day and, therefore, could not have been received by said bureau within said 15-day period unless it was personally delivered to said bureau on that date. The facts in this case show it was not in fact received until February 7, 1974, through the course of certified mail of the United States mails. Said notice was, therefore, seven days late. Even if the court granted to this plaintiff-appellant the extra three days from the date of receipt of said notice of suspension, which the statute does not permit, the plaintiff-appellant was still three days late in the filing of his notice of appeal with the defendant-appellee, Bureau of Motor Vehicles herein. This decision of this court is specifically supported by Jennings v. Curry, Registrar, Bureau of Motor Vehicles, Civil No. 32432, Eighth Appellate District of Ohio, decided June 28, 1973, which held that filing of the notice of appeal in the Common Pleas Court on the 15th day and depositing the same in the mail on that same day with receipt by the Bureau of Motor Vehicles occurring after the 15th day fails to create jurisdiction of the Common Pleas Court to hear such appeal on the merits. Said Eighth District Court of Appeals held that notice of appeal is timely filed only upon actual receipt of such notice by the administrative agency within the time specified by statute. ( Fulton v. State, ex rel. General Motors Corp., 130 Ohio St. 494. ) The Appellate and Supreme Courts of the state of Ohio have specifically held that compliance with the mandatory provision relating to appeal time on notices of appeal must be complied with to give the court appealed to jurisdiction to hear an appeal on the merits. See Zier v. Bureau of Unemployment Compensation (1949), 151 Ohio St. 123; Hart v. Bd. of Liquor Control (1953), 96 Ohio App. 128; Arndt v. Scott (1955), 72 Ohio Law Abs. 189; Ahrns v. Bd. of Tax Appeals (1970), 22 Ohio App.2d 179; Knoll v. Dudley (1969), 20 Ohio App.2d 339; Bureau of Motor Vehicles v. McEntush, Civil No. 11910, First Appellate District of Ohio, decided May 30, 1972; United States v. Lombardo (1916), 241 U.S. 73 at 76, 60 L. Ed. 897.
Considering the weight of authority found in these cases and the binding effect thereof on this court, this court finds that said appeal of the plaintiff-appellant herein, Gordon E. Bolt, was not filed within the time required by law and that this court therefore does not have jurisdiction to decide this appeal on the merits thereof and it is therefore ordered that said appeal be and the same is hereby dismissed for want of jurisdiction herein.
Appeal dismissed.