Opinion
No. 29395
Decided July 14, 1943.
Mandamus — Action at law — "Judgment" defined — Entry constitutes judgment, when — Appeal — Time for filing new trial motion — Section 11578, General Code — "Decision rendered," when — Evidence not reviewable, when — Filing notice of appeal only necessary jurisdictional step, when.
1. A proceeding in mandamus is an action at law in cases where it is the appropriate remedy. ( State, ex rel. Cope, v. Cooper, Gov., 121 Ohio St. 519, approved and followed.)
2. A judgment is the final determination of a court of competent jurisdiction upon matters submitted to it.
3. In a proceeding in mandamus, after service of summons upon respondents and allowance of an alternative writ, where relator upon hearing offers evidence to sustain the allegations of his petition and full opportunity has been granted respondents to be heard and thereafter an entry is made which determines all questions presented, such entry constitutes a judgment.
4. In an action at law where the issues of fact are submitted to the court, the time for filing a motion for a new trial, under Section 11578, General Code, begins when the court renders its decision upon the facts.
5. A "decision is rendered." within the meaning of Section 11578, General Code, when there is filed with the clerk for journalization a finding which determines the issues submitted. ( In re Estate of Lowry, 140 Ohio St. 223, approved and followed.)
6. Where an appeal is taken in an action at law in which the issues of fact were submitted to the court, an appellate court is without jurisdiction to consider the weight or sufficiency of the evidence unless a motion for new trial had been filed in the trial court in conformity with the provisions of Section 11578, General Code. ( Cullen v. Schmit, 137 Ohio St. 479, approved and followed.)
7. The filing of notice of appeal, in the court from which the appeal is taken, within the time prescribed by law, is the only jurisdictional step necessary to perfect an appeal and where such notice is not filed within such time the reviewing court is without jurisdiction to consider the appeal.
APPEAL from the Court of Appeals of Columbiana county.
This case originated in the Court of Appeals of Columbiana county. Relator, appellee here, filed an action against respondents, appellants here, for a writ of mandamus to compel respondents to allow relator to participate in the police relief fund of the city of East Liverpool, Ohio, as a pensioner, in accordance with the rules and regulations of the board of trustees of such fund. Summons was issued and served upon respondents. Later an alternative writ was issued on March 22, 1940.
No answer was filed by respondents.
The cause came on for hearing on December 8, 1941, at which time all parties were present by counsel, and relator offered evidence tending to support the allegations of his petition. At the conclusion of testimony offered by relator, respondents made a motion to dismiss the petition. Respondents offered no evidence.
The cause was taken under submission by the court and both parties filed briefs.
Thereafter on January 24, 1942, the court made the following entry:
"Motion to dismiss action overruled. Peremptory writ of mandamus allowed and defendant ordered to grant relator the right to participate in the police relief fund of the city of East Liverpool, Ohio, as a pensioner in accordance with the rules and regulations of the board of trustees of such fund."
No motion for a new trial was filed within three days after the entry of January 24, 1942; no notice of appeal was filed within twenty days; the entry was never vacated or set aside although a further hearing was had on April 27, 1942; and upon that date the court made a second entry as follows:
"Peremptory writ of mandamus allowed and defendants ordered to grant relator the right to participate in the police relief fund of the city of East Liverpool, Ohio, as a pensioner in accordance with the rules and regulations of the board of trustees of such fund. Exceptions."
On May 4, 1942, a motion for a new trial was filed. On September 23, 1942, the motion for a new trial was overruled and a third journal entry was placed on record styled "Judgment on finding." This third entry disposed of the issues in the same manner as the first two entries.
No motion for a new trial was ever filed after the entry of September 23, 1942.
On October 23, 1942, a notice of appeal was filed.
This is a sufficient statement of facts to disclose the crucial question, the answer to which is dispositive of this appeal.
Mr. G. Jay Clark and Mr. Charles Boyd, for appellee.
Messrs. Brookes Lynch, for appellants.
The record squarely presents the question of the jurisdiction of this court to entertain this appeal. More concretely stated the jurisdictional question is: Did the respondents file a motion for a new trial or give notice of appeal after judgment, within the time limited by law? If not then there is no basis for the appeal and the cause should be dismissed for want of jurisdiction.
The authority for a proceeding in mandamus is statutory. Sections 12283 to Section 12302, both inclusive, General Code.
In the case of State, ex rel. Cope, v. Cooper, Gov., 121 Ohio St. 519, 169 N.E. 701, paragraph one of the syllabus reads as follows:
"A writ of mandamus does not issue in virtue of any prerogative power, and in modern practice a proceeding in mandamus is an action at law in cases where it is the appropriate remedy, and where there is no plain and adequate remedy in the ordinary course of law." (Italics ours.)
It being settled that a proceeding in mandamus is an action at law the procedural steps to perfect an appeal upon questions of law must be taken as provided for by the statutes which relate to appeals on questions of law in civil actions.
The first question which calls for our consideration is when was the judgment entered in the Court of Appeals? It should be kept in mind that the court made three entries, to wit, January 24, 1942, April 27, 1942, and September 23, 1942.
Was the first entry dated January 24, 1942, a judgment?
Freeman on Judgments (5 Ed.), at page 3, Section 2, defines the word "judgment" as follows:
" 'The conclusion of law in a particular case announced by the court'; 'the final consideration and determination of a court of competent jurisdiction upon the matters submitted to it.' "
2 Bouvier's Law Dictionary, (3 Rev.), 1718, says:
"The decision or sentence of the law, given by the court of justice or other competent tribunal, as the result of proceedings instituted therein for the redress of an injury."
Many other definitions to the same effect may be found.
In Peter v. Parkinson, Treas., 83 Ohio St. 36, 93 N.E. 197, Judge Crew, at page 47, uses this language:
"A judgment is the judicial determination or sentence of a court rendered in a cause within its jurisdiction."
The entry of January 24, 1942, disposed of every question presented by the parties; it overruled respondents' motion to dismiss; granted the prayer of relator's petition; and finally disposed of the cause.
A final judgment is one which determines the merits of the case and makes an end to it.
Measured by every test found in the adjudicated cases or in the definitions found in the text books we think this entry was a final judgment.
Section 11604, General Code, provides for recording of judgments and orders as follows:
"All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action. The entry must be written into the journal as soon as the entry is filed with the clerk or directed by the court and shall be journalized as of the date of the filing of said entry or of the written direction by the court."
This entry was journalized as provided in Section 11604, General Code, on the date ordered by the court and counsel for both parties were promptly notified thereof.
No motion to vacate the entry and for a new trial was made within three days after January 24, 1942; no notice of appeal was given within twenty days thereafter; that judgment stands unmodified and unreversed and the Court of Appeals was without jurisdiction to conduct any hearing subsequent thereto.
Section 11578, General Code, reads in part:
"* * * The application [for a new trial] must be made within three days after the verdict or decision is rendered, unless he [applicant] is unavoidably prevented from filing it within such time." (Italics ours.)
That this section of the General Code is mandatory is so well settled and thoroughly understood as to make unnecessary the citation of authority.
No claim is or could be made that respondents were unavoidably prevented from filing a motion for a new trial within the time prescribed by law.
By virtue of Section 12223-4, General Code, the only jurisdictional step now necessary to an appeal on questions of law is the filing of a notice of appeal. Loos v. Wheeling Lake Erie Ry. Co., 134 Ohio St. 321, 16 N.E.2d 467; Damar Realty Co. v. City of Cleveland, 140 Ohio St. 432, 45 N.E.2d 209; Bauer v. Grinstead, 142 Ohio St. 56.
Section 12223-7, General Code, provides the time for perfecting appeal, and reads in part:
"The period of time after the entry of the order, judgment, decree, or other matter for review within which the appeal shall be perfected, unless otherwise provided by law, is as follows:
"1. In appeals to the Supreme Court * * * within twenty (20) days.
"Provided, that, when a motion for a new trial is duly filed by either party within three days after the verdict or decision then the time of perfecting the appeal shall not begin to run until the entry of the order overruling * * * the motion for new trial."
No motion for a new trial or no notice of appeal having been filed within the respective times allowed by law, this court is without jurisdiction to hear and determine this appeal.
It would be of no avail to appellees if it could be held that the entry of April 27, or September 23, 1942, was the judgment, for the reason that the motion for a new trial was filed seven days after the entry dated April 27, 1942, and no notice of appeal was filed within twenty days; as to the entry of September 23, 1942, no motion for a new trial was ever filed and the notice of appeal was filed thirty days thereafter.
This court is therefore without jurisdiction and the appeal should be and hereby is dismissed.
Appeal dismissed.
WEYGANDT, C.J., MATTHIAS, HART and ZIMMERMAN, JJ., concur.
TURNER, J., concurs in the syllabus but dissents from the judgment.
WILLIAMS, J., not participating.