Opinion
No. 21783
Decided August 14, 1950.
New trial — Defined — Section 11575, General Code — Appeal — Time for filing extended, when — Filing motion for new trial, involving issues of fact and law — Transcript of proceedings not incomplete, when — Excluding argument and rulings on incidental motions — Common Pleas Court without appellate jurisdiction, when — Record of Probate Court hearing taken and transcript available.
1. Prior to the amendment of Section 11575, General Code, on October 11, 1945, a new trial was confined to a re-examination of an issue of fact, but the section as amended contemplates a re-examination of issues of law as well as of fact.
2. A motion for a new trial having been duly filed relating to the determination of a motion to dismiss an appeal from the Probate Court to the Common Pleas Court, which motion to dismiss involved the determination of issues of fact and law, extends the time of appeal to the Court of Appeals for a period of twenty days after the entry of an order overruling the motion for new trial.
3. During a hearing in a judicial proceeding, if counsel desires to have matters other than testimony taken down by a reporter, it is incumbent upon counsel to demand it, and the failure of a transcript of the proceedings to include argument of counsel and rulings upon incidental motions during a hearing does not make the record on appeal incomplete.
4. When it appears upon a motion to dismiss an appeal from the Probate Court to the Common Pleas Court that a record of the hearing in the Probate Court was taken by direction of the court and that a transcript thereof was available upon request, the Common Pleas Court is without jurisdiction to determine the appeal and the motion to dismiss should be sustained.
APPEAL: Court of Appeals for Cuyahoga county.
Mr. Frank X. Schaut and Messrs. Bravo Bernstein, for appellee.
Mr. William H. Luther, Mr. Lester Yoder and Mr. Albert D. Nesbitt, for appellants.
This is an appeal from an order of the Common Pleas Court dismissing defendants' appeal on questions of law and fact from a judgment entered by the Probate Court on the ground that the Common Pleas Court did not have jurisdiction of the appeal because a record was taken of the proceedings in the Probate Court.
The motion to dismiss the appeal was heard upon evidence and the order dismissing it was journalized on November 29, 1949. On December 6, 1949, defendants filed a motion for new trial which was overruled January 6, 1950. Notice of appeal to this court was filed January 16, 1950.
Plaintiff, appellee, moved to dismiss the appeal herein on the ground that the notice of appeal was filed more than twenty days after the entry dismissing the appeal below and that defendants' motion for new trial was ineffective to extend the time for appeal.
The motion for a new trial was filed within ten days after the entry of a final order. Section 12223-7, General Code.
Section 11575, General Code, as amended October 11, 1945, defines a new trial as a re-examination in the same court of the issues after a final order, judgment or decree by the court. Prior to its amendment, a new trial was confined to a re-examination of an issue of fact but the section as amended contemplated a re-examination of issues of law as well as of fact. In support of the motion to dismiss, plaintiff cites Kromer v. Kear, 86 Ohio App. 309, 55 Ohio Law Abs., 385, 90 N.E.2d 422, and McKee v. Clark, 55 Ohio Law Abs., 496, 90 N.E.2d 584, which hold that there is no provision in the Code for the filing of a motion for new trial in an appellate court after a determination of an appeal on questions of law only.
In the instant case, the motion to dismiss below was determined upon issues of fact and law and the motion for a new trial was duly filed and thereafter overruled by the court. Having been filed, the time for appeal from the final order did not begin to run until the entry of the order overruling the motion for new trial. The motion to dismiss the appeal herein is therefore overruled.
Upon the merits of the appeal, the Common Pleas Court upon the evidence found that a record of the hearing in the Probate Court was taken by direction of the court and that a transcript thereof was available upon request. This finding was amply supported by the evidence.
Section 10501-56, General Code, provides for an appeal from the Probate Court to the Court of Appeals, but provides further that "if, for any reason, a record has not been taken at the hearing of any matter before the Probate Court so that a bill of exceptions or a complete record may be prepared as provided by law in Courts of Common Pleas, then an appeal on questions of law and fact may be taken to the Court of Common Pleas * * *."
The evidence tending to show that a stenographic report was not taken of the argument of counsel and rulings on motions could not make the record incomplete. If counsel desire to have matters other than testimony taken down, it is their duty to demand it.
Upon the evidence adduced upon the hearing of the motion to dismiss, the Common Pleas Court did not have jurisdiction of the appeal, and its order dismissing same is affirmed.
Judgment affirmed.
HUNSICKER, P. J., and DOYLE, J., concur.
FESS, J., of the Sixth Appellate District, and HUNSICKER and DOYLE, JJ., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.