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acknowledging a trial court's inherent power with respect to its orders and docket
Summary of this case from State ex rel. Haley v. DavisOpinion
No. 86-952
Decided April 15, 1987.
Civil procedure — Appellate procedure — Dismissal of case for want of prosecution — Vacation of dismissal and reinstatement of case not final appealable order.
APPEAL from the Court of Appeals for Erie County.
Plaintiffs-appellants, Todd C. and Diane S. Horman, on or about March 1, 1983, filed a complaint alleging they received injuries in a rear-end automobile collision. The plaintiffs failed to comply with an order requiring that trial testimony be recorded on videotape and the trial court, on November 10, 1983, dismissed the case without prejudice for want of prosecution.
On November 23, 1983, plaintiffs refiled but once again failed to comply with an order that trial testimony be videotaped. On August 22, 1984, the trial court dismissed the case for want of prosecution but did not include the words "without prejudice" in the order. No notice under Civ. R. 41 was given to plaintiffs' counsel prior to the dismissal.
On August 27, 1984, plaintiffs filed a motion to vacate the August 22 order. This motion did not specify whether it was filed under Civ. R. 60(A) or (B). On September 4, 1984, the trial court granted plaintiffs' motion to vacate the order of dismissal and reinstated the case on its docket.
Defendants appealed. The court of appeals elected, sua sponte, to treat plaintiffs' motion to vacate as a Civ. R. 60(B) motion and found that the trial court improperly vacated its order of dismissal because the requirements of Rule 60(B) were not met. The judgment of the trial court was reversed and vacated. Citing App. R. 12(B), the court of appeals itself then denied plaintiffs' motion to vacate and affirmed the dismissal for want of prosecution. The case was remanded to the trial court for entry of judgment as specified.
On May 3, 1985, plaintiffs filed a motion under Civ. R. 60(A) to amend the trial court's order of August 22, 1984 to read "dismissal without prejudice," claiming such language was inadvertently omitted by the trial court. On May 16, the trial court granted this motion.
On appeal, the court of appeals reversed, holding that it was error to grant plaintiffs' Rule 60(A) motion.
The cause is before this court upon the allowance of a motion to certify the record.
Murray Murray Co., L.P.A., W. Patrick Murray and William H. Bartle, for appellants.
Buckingham, Holzapfel, Zeiher, Waldock Schell Co., L.P.A., and Kevin J. Zeiher, for appellee David L. Veverka.
Flynn, Py Kruse Co., L.P.A., and Charles W. Waterfield, for appellee Alan R. Robinson.
Manahan, Pietrykowski Bamman, William F. Pietrykowski and Bernard M. Striegel, Jr., for appellee Thomas L. Corogin.
The issue presented is whether a court of appeals has jurisdiction to review the decision of a trial court to vacate a dismissal for want of prosecution and to reinstate a case on its docket.
Here it seems clear that the trial judge did not intend his dismissal of August 22, 1984 to be with prejudice. The trial judge had not, as required by Civ. R. 41(B), given notice to plaintiffs' counsel prior to issuing that order. The order of vacation came within two weeks of the dismissal and specified that the case be reinstated on the court's docket.
It has long been settled that, during a term of court, a trial court has inherent discretion with respect to its orders. In Niles v. Parks (1892), 49 Ohio St. 370, 371, 34 N.E. 735, 736, it was held: "The court of common pleas had complete control over its own orders during the term at which they were entered, and might set aside the sale and entry of confirmation, at its discretion." See, also, Huntington McIntyre v. W.M. Finch Co. (1854), 3 Ohio St. 445; Knox County Bank v. Doty (1859), 9 Ohio St. 506; Huber Mfg. Co. v. Sweny (1897), 57 Ohio St. 169, 48 N.E. 879; Wagner v. Long (1937), 133 Ohio St. 41, 10 O.O. 11, 11 N.E.2d 247.
The trial court's inherent power with respect to its docket has been modified by statute. R.C. 2505.02 defines a final order as "* * * an order vacating or setting aside a judgment and ordering a new trial."
The legislature has amended R.C. 2505.02, effective March 17, 1987. The definition of a "final order" as "* * * an order vacating or setting aside a judgment and ordering a new trial * * *" has been changed to "* * * an order that vacates or sets aside a judgment or grants a new trial * * *." (Emphasis added.) Whether an order vacating a judgment is, by this statutory change, made a final appealable order, is a question we need not address.
The order of the trial judge on September 4, 1984 is not equivalent to "ordering a new trial" since no trial in the case sub judice was ever held. Accordingly, the order of September 4, 1984 vacating the dismissal and reinstating the case to the trial court's docket remains within the trial court's inherent power and was not a final appealable order.
Inasmuch as we hold that the order of September 4, 1984 was not a final appealable order, the court of appeals lacked jurisdiction to undertake a review of that order and to mandate a dismissal of the case for want of prosecution.
Accordingly, we reverse the judgment of the court of appeals and order the cause reinstated on the docket of the Court of Common Pleas of Erie County.
Judgment reversed.
MOYER, C.J., SWEENEY, LOCHER, HILDEBRANDT, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
HILDEBRANDT, J., of the First Appellate District, sitting for HOLMES, J.