Opinion
No. 29943
Decided December 20, 1944.
Courts — Journal records action — Appeal — Dismissal by Supreme Court — Rights of appellants not adjudicated by judgment of Court of Appeals.
1. A court of record speaks only through its journal. (Paragraph 1 of the syllabus in the case of State, ex rel. Industrial Commission, v. Day, Judge, 136 Ohio St. 477, approved and followed.)
2. An appeal to the Supreme Court from a judgment of a Court of Appeals will be dismissed when such judgment does not by its terms adjudicate the rights and interests of the appellants.
APPEAL from the Court of Appeals of Cuyahoga county.
This case dates from December of 1935, when the then Superintendent of Banks of the state of Ohio, in charge of liquidating the defunct The Guardian Trust Company of Cleveland, filed a petition in the Court of Common Pleas of Cuyahoga county against the company and such of its directors as had served in that capacity during designated periods of time, charging them with varied acts of misconduct, mismanagement and unlawful practices in directing the affairs of the bank, and asking that the court ascertain and determine the extent of the loss occasioned by the alleged wrongful conduct of each defendant and that judgment be entered against each defendant for the amount found due, with interest at six per cent from the date each of such losses occurred.
There were two classes of directors involved — those who had been such over a ten-year period preceding February 1933, and those who had served as directors but a part of that time. The present appeal is by the latter class, now composed of some 21 persons.
The petition was met by numerous motions on the part of different defendants asking that plaintiff be required to state separately and number causes of action, to make allegations of the petition definite and certain, and to strike allegations from the petition.
Most of these motions were sustained. Three amended petitions were filed and each, upon motion, was ordered stricken from the files for the stated reason that plaintiff had not complied with the order of the court in framing his charges. The third amended petition was so stricken on October 31, 1942, and leave was given to file a fourth amended petition by January 15, 1943.
On January 8, 1943, plaintiff, relying on Section 11312, General Code, interposed a motion requesting that the action be severed as to the part-period directors and that he be allowed to proceed against them separately without the necessity for further service of summons. Such motion was heard upon oral argument in the early part of January 1943, at which time counsel for plaintiff expressed the desire to file an amended petition against the full-period directors alone. He stated further, in substance, that the overruling of the motion might result in relieving many of the directors from liability, by reason of the operation of the statute of limitations.
The motion for severance was overruled on January 14, 1943, whereupon counsel for plaintiff notified the court that an amended petition would not be filed against the part-period directors. We here note that an appeal was taken to the Court of Appeals from the order denying severance, which was dismissed on the ground that it did not constitute a final order from which an appeal would lie. This court overruled a motion to certify the record.
On January 14, 1943, a fourth amended petition was filed containing allegations affecting the full-period directors only. They moved, among other things, that such petition be stricken from the files because it did not conform to the previous orders of the court, and that the action be dismissed, which motions were sustained on March 3, 1943.
Five days thereafter the superintendent filed a notice of appeal on questions of law in the Court of Common Pleas, appealing from "a judgment and final order rendered and made by the Court of Common Pleas in the above entitled cause on the third day of March, 1943."
In his assignment of errors, plaintiff claimed as errors the dismissal of the fourth amended petition by the entry of March 3, 1943; the overruling of the motion for severance on January 14, 1943, and the sustaining of the motions to strike the third amended petition from the files on October 31, 1942. The two latter grounds were allegedly advanced upon authority of Grimm v. Modest, 135 Ohio St. 275, 20 N.E.2d 527.
According to its judgment entry, the Court of Appeals reversed the judgment of the trial court for error in sustaining the motions to strike the fourth amended petition from the files and in dismissing the cause, and remanded the case for further proceedings.
From the briefs and oral arguments of counsel we are advised that immediately following the filing of the entry of reversal, plaintiff filed an amendment to his fourth amended petition in the Court of Common Pleas, naming and charging the appellants herein with mismanagement of the bank's affairs, and that just prior to March 3, 1944, plaintiff filed new, separate actions against most of the appellants in the Court of Common Pleas.
The case is now in this court pursuant to the allowance of the motion to certify the record.
Mr. Thomas J. Herbert, attorney general, Messrs. Davis Young and Messrs. Krueger, Gorman Davis, for appellee.
Messrs. Andrews, Hadden Putnam and Mr. Edwin A. Howe, for appellant, D.R. Hanna, Jr.
Messrs. Boyd, Brooks Wickham and Mr. E.D. McCurdy, for appellant, William A. Daley.
Messrs. Jones, Day, Cockley Reavis, Mr. George B. Young, Mr. P.J. Mulligan and Mr. Frank C. Heath, for appellant, William G. Mather.
Messrs. McKeehan, Merrick, Arter Stewart, Mr. George Wm. Cottrell and Mr. Ashley M. Van Duzer, for appellants, Charles K. Arter and Randolph Eide.
Messrs. Maurer, Bolton Mierke, for appellants George G. Marshall, and George G. Marshall and others, executors of the estate of Wentworth G. Marshall.
Mr. W. Edmund Peters, for appellant, George H. Bowman.
Mr. Henry H. Pleasant, for appellant, Selden E. Kline.
Messrs. Squire, Sanders Dempsey, Mr. Harry J. Crawford and Mr. Frank Harrison, for appellants, Kermode F. Gill and others, and for Warren Bicknell, Jr., and others, executors of the estate of Warren Bicknell, and Mary B. Pomerene, executrix of the estate of Atlee Pomerene.
Messrs. Thompson, Hine Flory and Mr. R.F. Bingham, for appellants, Robert H. Bishop, Jr., and Orville W. Prescott.
As has already been indicated, this appeal is prosecuted solely by part-period directors of The Guardian Trust Company who were included in the original petition and in three amended petitions. subsequently filed.
Appellants contend (1) that the action was voluntarily dismissed as to them on January 14, 1943, when the fourth amended petition was filed and they were not included therein; (2) that a contrary holding by the Court of Appeals deprived them of their property without due process of law, in contravention of their constitutional rights; (3) that the judgment entered in the Court of Common Pleas on March 3, 1943, striking the fourth amended petition from the files and dismissing the action was not reviewable as to them; and (4) that no appeal was perfected as to them.
At the outset we are met by the question — can the contentions made be reached and decided on the record before us?
Section 12223-5, General Code, provides:
"The notice of appeal shall designate the order, judgment, or decree appealed from and whether the appeal shall be on questions of law or questions of law and fact. * * *"
We note that the superintendent appealed on questions of law and, in the notice, limited his appeal to the "judgment and final order rendered and made by the Court of Common Pleas in the above entitled cause, on the third day of March, 1943." The "judgment and final order" referred to struck the fourth amended petition from the files and dismissed the action.
In its journal entry of February 16, 1944, the Court of Appeals stated:
"* * * the judgment of the said Court of Common Pleas is reversed, because said court on March 3, 1943, erred in sustaining motion of defendants [the full-period directors] to strike the fourth amended petition from the files, and in striking the fourth amended petition from the files, and in dismissing said action, and this cause is remanded to said Court of Common Pleas for further proceedings according to law. * * *"
The fact, as asserted by counsel, that immediately following the judgment of reversal the superintendent filed an amendment to his fourth amended petition in the Court of Common Pleas, charging the appellants herein with mismanagement of the bank's affairs, is not properly a part of the record before us.
No principle is better established in Ohio than that a court of record speaks only through its journal. State, ex rel. Industrial Commission, v. Day, Judge, 136 Ohio St. 477, 26 N.E.2d 1014; Brown, Admx., v. L.A. Wells Construction Co., 143 Ohio St. 580, 583, 56 N.E.2d 451, 453.
True, the Court of Appeals did say in its written opinion that appellants had not been dismissed from the action; that they were carried forward on the superintendent's appeal; and that the court below did not err in refusing to order a severance. However, that opinion does not constitute an order or judgment and forms no part of the record. State, ex rel. Sherwood, v. Hoffman, Judge, 95 Ohio St. 144,117 N.E. 10; 11 Ohio Jurisprudence, 758, Section 109; 4 Corpus Juris Secundum, 1209, Section 734.
Confining ourselves to the judgment entry of the Court of Appeals, as we must, we find that such court adjudged solely that it was error on the part of the lower court to strike the fourth amended petition from the files and dismiss the action. Since appellants were excluded from such amended petition and were consequently not affected thereby, they are not presently in a position to ask this court to decide the questions they pose in their assignments of errors.
Upon the record then, the only action this court can take is to dismiss the appeal.
Appeal dismissed.
WEYGANDT, C.J., MATTHIAS, HART, BELL, WILLIAMS and TURNER, JJ., concur.