Opinion
No. 73-1210
Decided September 20, 1973.
Appeal — From order of administrative agency — Notice of appeal — R. C. 119.12 — Not timely filed, when.
The term "file," as used in R. C. 119.12, means actual receipt of the notice of appeal by the agency.
Mr. Lynn M. Kelley, for plaintiff-appellant.
Mr. Robert C. Paxton, II, assistant attorney general, for defendant-appellee.
On August 2, 1972, the Bureau of Motor Vehicles mailed a letter to Rex L. Boomershine, the appellant herein, advising him that he had become subject to the Ohio Financial Responsibility Law, Ohio Revised Code, Sections 4509.01 to 4509.99 inclusive, in that he had been involved in an accident and had failed to report the accident and to indicate whether he had liability insurance in effect at the time of the accident.
The appellant was informed, under section C of said letter, of his opportunity to request a hearing within thirty days from the date of mailing of said letter. It appears that the appellant failed to request such a hearing.
On June 14, 1973, an order of suspension was mailed by the Bureau of Motor Vehicles to the appellant.
On June 29, 1973, the appellant filed his notice of appeal in this court. Said notice of appeal was mailed to the Bureau of Motor Vehicles and was filed there on July 5, 1973, twenty-one days after the order of suspension was mailed. On July 24, 1973, the Bureau of Motor Vehicles moved this court to dismiss this appeal on the grounds that the appellant failed to timely file his notice of appeal.
Section 119.12, Ohio Revised Code, which sets out the procedure for appealing administrative orders, provides in part:
"Any party desiring to appeal shall file a notice of appeal 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 sction." (Emphasis added.)
The failure to file the notice of appeal within the time limits specified by R. C. 119.12, supra, is a jurisdictional defect and requires a dismissal by the court. In Zier v. Bureau of Unemployment Compensation (1949), 151 Ohio St. 123, at 125, the Ohio Supreme Court stated:
"* * * No one would contend that a notice of appeal need not be filed within the time fixed by statute. Compliance with a requirement that a notice of appeal shall be filed within the time specified in order to invoke jurisdiction, is no more essential than that the notice be filed at the place designated and that it be such in content as the statute requires. * * *"
In Bureau of Motor Vehicles v. McEntush, Civil No. 11910 (First Appellate District of Ohio, May 30, 1972), it was stated:
"Section 119.12 of the Ohio Revised Code provides that a notice of appeal must be filed within fifteen days after the mailing of the notice of the agency's order. Such filing requirements are mandatory and a condition precedent to invoke the jurisdiction of the reviewing court."
The term "file" as used in Section 119.12, supra, means actual receipt of the notice of appeal by the agency. Fulton v. State, ex rel. General Motors Corp. (1936), 130 Ohio St. 494; Jennings v. Curry, Registrar, Bureau of Motor Vehicles, Civil No. 32432 (Eighth Appellate District of Ohio, June 28, 1973).
It appearing to the court that the order of suspension which is the subject of this appeal was mailed on June 14, 1973, and further, that appellant's notice of appeal was not filed with the Bureau of Motor Vehicles until July 5, 1973, therefore the appeal by the appellant has not been filed within the fifteen-day period prescribed by Section 119.12, supra.
Accordingly, since the appeal of the appellant has not been timely filed, the motion to dismiss filed by the Bureau of Motor Vehicles is sustained.
Motion to dismiss sustained.