Opinion
No. 3977
Decided January 9, 1947.
Appeal — Notice of appeal — Prematurely filed, when.
A notice of appeal filed after the filing of the judgment entry and a motion for new trial, but before the overruling of the motion, is prematurely filed and will be stricken.
APPEAL: Court of Appeals for Franklin county.
ON MOTION to strike.
Mr. Joseph M. Harter and Mr. David M. Postlewaite, for the motion.
M r. David T. Keating, contra.
This cause is submitted on motion by the appellee to strike the so-called notice of appeal, filed on December 14, 1946, from the files for the reason that such document is a nullity as it was not filed within 20 days after the rendition of the judgment of the Common Pleas Court of Franklin county, such judgment being rendered on November 15, 1946.
An examination of the transcript discloses that on November 15, 1946, the judgment entry was filed, on November 23, 1946, a motion for a new trial was filed and on December 18, 1946, the motion for new trial was overruled.
Having been filed before the overruling of the motion for new trial, the notice of appeal was prematurely filed. Section 12223-7, General Code, provides that when a motion for 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, the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial.
The motion will be sustained, not for the reasons indicated therein, but for the reasons above stated.
Motion sustained.
HORNBECK, P.J., WISEMAN and MILLER, JJ., concur.