Opinion
No. 36910
Decided June 14, 1961.
Appeal — Adherence to statutory conditions essential — Special statutory requirements — Appropriation of property by highway director — Appeal from finding of director — Section 5519.02, Revised Code.
CERTIFIED by the Court of Appeals for Wood County.
The Director of Highways, being unable to negotiate the purchase of certain real property for a highway improvement, instituted an appropriation proceeding as prescribed by Section 5519.01, Revised Code. The required resolution and finding were recorded in the director's journal, and a copy was filed with the clerk of courts and duly served on the landowners by personal service on June 1, 1960.
On July 21, 1960, the landowners filed in the Common Pleas Court a motion for an extension of time in which to file an appeal and a request for leave to file an appeal forthwith. The court granted the motion without a heating, and the landowners filed their appeal on the same day. A hearing on the preliminary issues was had on July 26, 1960, whereupon the court held the appeal to be properly perfected. The director filed a motion for an order dismissing the appeal for the reason that it was not perfected within the time limitation as required by law and for an order rescinding the previous order granting leave to appeal. The motion was overruled.
The Court of Appeals, on appeal, found that the judgment of the Common Pleas Court granting the landowners' motion for leave to file an appeal instanter beyond the statutory period for filing such appeal was error prejudicial to the director, reversed the judgment and remanded the cause with directions to dismiss the appeal.
The judges of the Court of Appeals, finding the judgment, upon which they had agreed, to be in conflict with the judgment of the Court of Appeals of another appellate district in the case of In re Appropriation for Highway Purposes, 104 Ohio App. 243, certified the record to this court for review and final determination.
Mr. Charles F. Kurfess, for appellant landowners.
Mr. Mark McElroy, attorney general, and Mr. Walter J. Krasniewski, for appellee Director of Highways.
Chapter 5519, Revised Code, establishes a special proceeding for the appropriation of property by the Director of Highways for highway purposes. Section 5519.02 is a special statute conferring the right to appeal from the findings of the director to the Common Pleas Court and controls over general statutes covering appellate procedure. It provides in part that, "if any owner of property appropriated by the Director of Highways is not satisfied with the amount of money as fixed by the director, such owner may, within 30 days after the service of said notice, or within 40 days after the date of publication, if service is made by publication, file a written petition, in duplicate, in the court, setting forth an intention to appeal." The statute prescribing the time limitation is a statute of limitation and is mandatory and jurisdictional.
"Where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred." American Restaurant Lunch Co. v. Glander, Tax Commr., 147 Ohio St. 147.
The appellant landowners did not file their petition of intention to appeal, or even their motion for extension of time in which to file an appeal, until long after the 30-day period for filing their petition of intention to appeal had expired. Therefore, the Court of Appeals was not in error in reversing the judgment of the trial court and remanding the cause with directions to dismiss the appeal.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL and RADCLIFF, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.