Opinion
No. 69-792
Decided February 3, 1971.
Appeal — Perfected, how — R.C. 2505.04 — Notice of appeal a nullity, when — Where filed during time "appeal shall not be taken" — R.C. 2505.07 — Motion to amend filed in appellate court, invalid, when — Not filed in trial court.
APPEAL from the Court of Appeals for Lucas County.
The Common Pleas Court of Lucas County granted the defendant's motion for a directed verdict at the close of the plaintiff's case in the trial court.
The plaintiff filed a motion for a new trial. Before an order of the Common Pleas Court overruling the motion for a new trial was journalized, the plaintiff prematurely filed a notice of appeal on August 7, 1969. The order of the Common Pleas Court overruling the appellant's motion for a new trial was not journalized until August 25, 1969.
In the Court of Appeals, on September 8, 1969, the appellant filed a motion to amend his notice of appeal. The only amendment mentioned in that motion was to strike from appellant's notice of appeal the words "and fact" in the last sentence of the first paragraph of the notice of appeal. The motion to amend read further: "By such motion, plaintiff desires to restrict his appeal to questions of law solely."
The appellee filed a motion in the Court of Appeals to dismiss the appeal filed by the appellant. The Court of Appeals denied the motion to amend the notice of appeal, granted the appellee's motion, and dismissed the appeal on the ground that "This court lacks jurisdiction to consider this appeal."
This cause is before this court as an appeal as of right and pursuant to the allowance of a motion to certify the record.
Mr. George R. Royer, for appellant.
Mr. H. William Bamman, for appellee.
R.C. 2505.07 specifically provides:
"After the journal entry of a final order, judgment, or decree has been approved by the court in writing and filed with the clerk for journalization, * * * the period of time within which the appeal shall be perfected, unless otherwise provided by law, is as follows:
"(A) Appeals * * * to Courts of Appeals * * * shall be perfected within twenty days.
"When a motion for a new trial * * * is filed * * * then the time of perfecting the appeal does not begin to run, and an appeal shall not be taken, until the entry of the order overruling or sustaining * * * the motion for a new trial * * * shall have been filed." (Emphasis added.)
In this case the purported notice of appeal was defective and a nullity because it was filed during a period of time when, under the provisions of R.C. 2505.07, quoted above, "an appeal shall not be taken."
The appellant concedes that the purported notice of appeal filed in the Common Pleas Court was a nullity. He contends, however, that his "Notice to Amend Notice of Appeal," filed in the Court of Appeals, is a sufficient and valid notice of appeal, notwithstanding the fact that it was filed to amend an admittedly defective notice of appeal, which was a nullity.
The motion to amend, which was filed in the Court of Appeals within the period of time when a notice of appeal could have been properly filed, can not in and of itself, or in conjunction with the void notice of appeal, serve as a valid notice of appeal because it does not comply with the jurisdictional requirement of R.C. 2505.04 that "an appeal is perfected when written notice of appeal is filed with the lower court * * *." (Emphasis added.)
The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, DUNCAN, GUERNSEY, STERN and LEACH, JJ., concur.
SCHNEIDER, J., concurs in the judgment only.
GUERNSEY, J., of the Third Appellate District, sitting for CORRIGAN, J.
In my opinion, the reasoning of the court is hypertechnical. In view of the fact, however, that the appellant concedes that the purported notice of appeal which he filed in the Court of Common Pleas was a nullity, I concur in the judgment.