Summary
noting that a court speaks through its judgment entries
Summary of this case from State v. HessOpinion
No. 22662
Decided May 13, 1931.
Parties — New or substituted parties must secure leave and have record made — Court speaks by its journal — Appeal without giving bond, limited to actual parties — Section 12227, General Code — Insufficient that party a person directly affected — Section 12224, General Code — Receivers.
1. A court speaks by its journal, and orderly procedure requires that parties seeking to assert rights in a pending case, or persons seeking to be substituted as parties therein, must first secure leave of court before they can be made parties or be substituted for parties already before the court, and proper record made thereof.
2. One seeking to appeal from a judgment of the common pleas court to the Court of Appeals, without giving bond or security to perfect such appeal as provided in Section 12227, General Code, must be a party to such action, either originally or become such by leave of court, or by substitution, or in some manner provided by law; that he is "a person directly affected," as provided in former Section 12224, General Code, is not sufficient.
ERROR to the Court of Appeal of Franklin county.
This case comes into this court from the Court of Appeals of Franklin county. In the court of common pleas on August 20, 1924, George B. Pierce brought an action against the International Telephone Company, being case No. 99027, asking a money judgment for services rendered the company while its agent in the sale of its capital stock. On April 10, 1926, the telephone company filed its second amended cross-petition, whereby it sought an accounting and a judgment in its favor for any balance that might be found due.
The matter was referred to a master commissioner for the purpose of taking testimony. August 20, 1924, receivers were appointed for the telephone company, and on September 18, 1924, they were discharged.
The matter was heard by the court without the intervention of a jury, and on June 2, 1930, judgment was awarded the plaintiff, Pierce, in the sum of $5,735, with interest at 6 per cent. from May 1, 1924.
On May 28, 1930, in a separate and distinct action begun by one Adam G. Innis against the International Telephone Company, being cause No. 126203 in the common pleas court of Franklin county, a receiver was appointed for the defendant company, in the person of Franklin M. Fountain. The receiver gave bond as required by law, and on June 20, 1930, the attorney for the receiver notified the clerk of the common pleas court, by letter, that he intended to appeal the Pierce case, being No. 99027; that he had been authorized so to do by the common pleas court, calling the clerk's attention to Section 12227, General Code, with reference to a party appealing in a trust capacity without being required to give bond. The receiver was not made a party in case No. 99027, nor were any of the contents of the letter above referred to brought upon the journal of the court.
A bill of exceptions was prepared, duly signed by the trial judge, and filed in the Court of Appeals.
On June 21st a transcript of the docket and journal entries, together with seventy original papers, was filed in the Court of Appeals, pursuant to the letter of the attorneys for the receiver, dated June 20th. The number of this case on the docket of the Court of Appeals was 1940. Two error cases against the same defendant in error, growing out of the same case (No. 99027), were filed, one by Fountain, receiver, and one by the International Telephone Company, the numbers being 1946 and 1947, respectively, neither of which cases has been heard.
On September 30, 1930, the plaintiff in the original action, George B. Pierce, filed a motion to dismiss the appeal, in the following terms, to wit: "Now comes the plaintiff herein and moves the court for an order dismissing the appeal taken in this case from the common pleas court of Franklin county, Ohio, to this court for the reason that no appeal bond was given within thirty days after entering of judgment by said lower court, as required by the laws of the state of Ohio."
On October 16, 1930, this motion was sustained by the Court of Appeals, and an application for a rehearing was denied. Plaintiff in error, claiming a constitutional question, filed his petition in error in this court as of right. A motion to dismiss the case was overruled, and the matter is now before this court for review.
Messrs. Huggins Liggett, for plaintiff in error.
Messrs. Williams Nash and Mr. Will J. Hays, for defendant in error.
The sole question for determination is whether the Court of Appeals erred in dismissing the appeal of plaintiff in error for the reason that he was not a party to the instant case, to wit, case No. 99027 in the court of common pleas of Franklin county.
In considering the motion to dismiss the Court of Appeals had before it only a transcript of the docket and journal entries and the original papers filed in case No. 99027. There was no record presented to the Court of Appeals that Franklin M. Fountain had ever been appointed receiver for the International Telephone Company, or that he had been authorized by the court as such receiver to perfect an appeal in case No. 99027, or that such receiver had been substituted for the International Telephone Company as a party, or that he was made party on his own motion or otherwise. The nearest that any of such facts appear in the record is by the journal entry filed August 9, 1930, overruling motion for a new trial and entering judgment in favor of the plaintiff, George B. Pierce, for $5,735, "with interest thereon at the rate of six per cent per annum from the first day of May, 1924, together with his costs therein expended, to which ruling of the court in entering up judgment as aforesaid, in favor of said plaintiff, George B. Pierce, and against said defendant, The International Telephone Company and said receiver, Adam G. Innis, the said defendant, The International Telephone Company, and said receiver, Franklin M. Fountain, at the time excepted and still except thereto, and on the first day of July, A.D. 1930, filed this, their joint and several bill of exceptions."
However, the foregoing journal entry is not applicable in the present instance, for the reason that the same was filed on the allowance of the bill of exceptions, which bill of exceptions pertained to the error case filed in the Court of Appeals and growing out of the same matter; and a bill of exceptions is not necessary in an appeal case, which is the character of case under review. The judgment controlling in this matter is that of June 18th, journalizing the judgment of June 2, 1930. This journal entry recites:
"It is therefore ordered and adjudged by the court that the plaintiff, George B. Pierce, recover from the defendant, The International Telephone Company, the sum of five thousand seven hundred thirty-five ($5735.00) dollars, with interest thereon at the rate of 6% per annum from the first day of May, 1924; and that plaintiff recover his costs herein expended taxed at $__________, to all of which rulings, orders and judgments of the court the defendant, The International Telephone Company, excepts."
It is to be noted that the receiver notes no exception to the judgment of the court, and is not a party to such journal entry. In the brief of counsel for plaintiff in error, reliance is placed upon these recitals in the journal entry of August 9th. The bill of exceptions was subsequent to the judgment, and is not a part of the judgment. It cannot add to the judgment. Its only purpose is the recital of the judgment for the purpose of an error proceeding. It has no place in the appeal case.
The fact that the clerk of the common pleas court was notified by letter by the attorneys of plaintiff in error that he intended to appeal cause No. 99027, and calling the attention of the clerk to Section 12227, General Code, by the terms of which a party appealing in a fiduciary capacity, who has given bond, is not required to give an appeal bond, is not sufficient; for a court speaks by its journals. Industrial Commission v. Musselli, 102 Ohio St. 10, 130 N.E. 32. The orderly procedure of courts requires that new parties or persons seeking to be substituted as parties in pending actions must first secure leave of court before they can be made parties or be substituted for parties already before the court.
Much is claimed by plaintiff in error because of the language of Section 12224: "An appeal may be taken * * * by a party or other person directly affected; * * *" it being urged that such section is applicable in the premises as a "pending action." This section was declared unconstitutional in Wagner v. Armstrong, 93 Ohio St. 443, 113 N.E. 397. Plaintiff in error contends, however, that such section is not unconstitutional as to who may appeal. The contention of plaintiff in error, as set forth in his brief, is:
"A reasonable interpretation of General Code 12227 should include 'or other person directly affected.' The word 'party' in the context should not be limited to parties to the action if General Code 12224 at the present time has any legal effect. Therefore, if General Code 12224 still has any legal effect, then it would naturally follow that a person who comes within the purview of 'a person directly affected' and who is in a trust capacity, and who has already given bond as such, would not have to give an appeal bond to perfect an appeal."
Even conceding that the receiver was a "person directly affected," before appealing without bond it was his duty either to be made party or to have himself substituted, as provided by statute. The Legislature may regulate the mode and method of appeal; it may provide who may and who may not be required to give bond. It has said, in Section 12227, General Code: "A party in any trust capacity * * * who has given bond," shall not be required to give bond and security to perfect an appeal. It has not so said as to a "person directly affected."
Since Section 12224, General Code, was declared unconstitutional in Wagner v. Armstrong, supra, decided in 1916, and was repealed in 113 Ohio Laws, 685, effective July 26, 1929, it would seem that, if the Legislature had desired to exempt from giving bond upon appeal "persons directly affected," it would have so provided, in addition to the class mentioned in Section 12227. Not having so said at the time of the repeal, we cannot escape the conclusion that the Legislature meant to confine that privilege to a "party," because a "person directly affected" might become such by being made a party or by substitution.
The record of the court of common pleas, certified to the Court of Appeals, disclosing no authority for the receiver to appeal, nor any action taken by the court of common pleas substituting the receiver for the International Telephone Company, nor any court record making the receiver a party to the case then sought to be appealed, to wit, No. 99027, we reach the conclusion that the Court of Appeals did not err in dismissing the appeal on the ground that the receiver was not at any time made a party to the action of record, either by substitution, leave, or otherwise — a necessary requisite to obtaining the benefits of Section 12227, General Code.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, MATTHIAS, KINKADE and ROBINSON, JJ., concur.
ALLEN, J., not participating.