Bailey v. Neale

Ohio Court of Appeals

Bailey v. Neale

49 N.E.2d 103, 37 Ohio Law. Abs. 603, 1940 Ohio App. LEXIS 1113

CourtOhio Court of Appeals

DecidedOctober 24, 1940

DocketNo. 3313

StatusPublished

Cited by1 cases

This text of 49 N.E.2d 103 (Bailey v. Neale) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bailey v. Neale, 49 N.E.2d 103, 37 Ohio Law. Abs. 603, 1940 Ohio App. LEXIS 1113 (Ohio Ct. App. 1940).

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Opinion

OPINION

By STEVENS, J.

In the trial court an action to marshal liens was filed, and on April 6, 1940, after trial to the court, an entry of judgment determining the priority of liens and ordering their payment, was spread upon the journal. On April 9, 1940, a motion for a new trial was duly filed.

On April 25, 1940, a notice of appeal on questions of law and fact was filed, and on May 7, 1940, the motion for a new trial was overruled by the Court of Common. Pleas.

A motion to dismiss the appeal in this court has been filed, alleging as the ground therefor that this court is without jurisdiction to hear the appeal because it was prematurely filed.

An almost identical situation was presented to the Court of Appeals of the First District, in the case of The Liberal Savings & Loan Co. v The Frankel Realty Co., et al., 46 Oh Ap 97. It was there decided that if the judgment entered in an equity action was a final judgment, and a motion for a new trial was filed, and thereafter, but before a ruling was had upon the motion for a new trial, an appeal on questions of law and [604]*604fact was duly filed, such appeal constituted a waiver or withdrawal eo instante of the motion for a new trial. A motion to dismiss the appeal for lack of jurisdiction was in that case overruled.

That case seems to us to be decisive of the motion herein.

The motion to dismiss will be overruled.

WASHBURN, PJ., & DOYLE, J., concur.

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OPINION

By STEVENS, J.

In the trial court an action to marshal liens was filed, and on April 6, 1940, after trial to the court, an entry of judgment determining the priority of liens and ordering their payment, was spread upon the journal. On April 9, 1940, a motion for a new trial was duly filed.

On April 25, 1940, a notice of appeal on questions of law and fact was filed, and on May 7, 1940, the motion for a new trial was overruled by the Court of Common. Pleas.

A motion to dismiss the appeal in this court has been filed, alleging as the ground therefor that this court is without jurisdiction to hear the appeal because it was prematurely filed.

An almost identical situation was presented to the Court of Appeals of the First District, in the case of The Liberal Savings & Loan Co. v The Frankel Realty Co., et al., 46 Oh Ap 97. It was there decided that if the judgment entered in an equity action was a final judgment, and a motion for a new trial was filed, and thereafter, but before a ruling was had upon the motion for a new trial, an appeal on questions of law and [604]*604fact was duly filed, such appeal constituted a waiver or withdrawal eo instante of the motion for a new trial. A motion to dismiss the appeal for lack of jurisdiction was in that case overruled.

That case seems to us to be decisive of the motion herein.

The motion to dismiss will be overruled.

WASHBURN, PJ., & DOYLE, J., concur.

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Bluebook (online)

49 N.E.2d 103, 37 Ohio Law. Abs. 603, 1940 Ohio App. LEXIS 1113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-neale-ohioctapp-1940.

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