Cooke v. New York, Chicago & St. Louis Railroad

Ohio Court of Appeals

Cooke v. New York, Chicago & St. Louis Railroad

77 N.E.2d 861, 81 Ohio App. 124, 49 Ohio Law. Abs. 635

CourtOhio Court of Appeals

DecidedApril 8, 1947

Docket6776

StatusPublished

This text of 77 N.E.2d 861 (Cooke v. New York, Chicago & St. Louis Railroad) 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

Cooke v. New York, Chicago & St. Louis Railroad, 77 N.E.2d 861, 81 Ohio App. 124, 49 Ohio Law. Abs. 635 (Ohio Ct. App. 1947).

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OPINION

By HILDEBRANT, J.

To a petition in an action filed September 16, 1946, defendant interposed a motion to quash the summons and service thereon. On November 9, 1946, entry sustaining the motion and quashing the summons was entered on the journal of the •court. Within 10 days thereafter, plaintiff filed an application for rehearing on defendant’s motion to quash. On January 16, 1947, entry overruling the application for a rehearing on defendant’s motion to quash was entered on the journal of the court.

The notice of appeal herein is as follows:

“Jimmie R. Cooke, by his attorneys, plaintiff in the above entitled action, and herein designated as Appellant, hereby files in this Court, notice of his intention to appeal from the order of said Court in the above entitled action, wherein, on the 16th day of January, 1947, this Court overruled the application of said appellant for Rehearing on Motion to Quash .Service of Summons and in favor of The New York, Chicago & St. Louis Railroad Company, defendant in the above entitled" action and herein designated1 as appellee.

“Said appeal to be made on questions of law.”

The cause is now before this Court on motion to dismiss' the appeal, as not being from a final order.

Treating the application for rehearing as equivalent to a motion for a new trial, under existing §12223-7 GC, it serves *637 only to toll the statute with reference to the time within which the appeal shall be perfected, and on the authority of Chandler & Co. v Southern Pacific Co., 104 Oh St 188, is not a final order upon which to predicate an appeal in the absence of an abuse of discretion, which is not claimed in this case. See, also: Morrison v Baker, Exr., 42 Abs 349.

Further, .the notice of appeal is specifically directed to the order of January 16, 1947, so that this Court may not under the guise of amendment, permitted by §12223-5 GC, substitute an order of a different date as being within the intention of the notice of appeal. Malone v Industrial Commission, 66 Oh Ap 505; Williams v Braun, et al., 65 Oh Ap 451.

The motion to dismiss the appeal is, therefore, sustained and the same is dismissed, and the cause remanded.

MATTHEWS, PJ, and HILDEBRANT, J, concur in Syllabus, Opinion and Judgment.

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OPINION

By HILDEBRANT, J.

To a petition in an action filed September 16, 1946, defendant interposed a motion to quash the summons and service thereon. On November 9, 1946, entry sustaining the motion and quashing the summons was entered on the journal of the •court. Within 10 days thereafter, plaintiff filed an application for rehearing on defendant’s motion to quash. On January 16, 1947, entry overruling the application for a rehearing on defendant’s motion to quash was entered on the journal of the court.

The notice of appeal herein is as follows:

“Jimmie R. Cooke, by his attorneys, plaintiff in the above entitled action, and herein designated as Appellant, hereby files in this Court, notice of his intention to appeal from the order of said Court in the above entitled action, wherein, on the 16th day of January, 1947, this Court overruled the application of said appellant for Rehearing on Motion to Quash .Service of Summons and in favor of The New York, Chicago & St. Louis Railroad Company, defendant in the above entitled" action and herein designated1 as appellee.

“Said appeal to be made on questions of law.”

The cause is now before this Court on motion to dismiss' the appeal, as not being from a final order.

Treating the application for rehearing as equivalent to a motion for a new trial, under existing §12223-7 GC, it serves *637 only to toll the statute with reference to the time within which the appeal shall be perfected, and on the authority of Chandler & Co. v Southern Pacific Co., 104 Oh St 188, is not a final order upon which to predicate an appeal in the absence of an abuse of discretion, which is not claimed in this case. See, also: Morrison v Baker, Exr., 42 Abs 349.

Further, .the notice of appeal is specifically directed to the order of January 16, 1947, so that this Court may not under the guise of amendment, permitted by §12223-5 GC, substitute an order of a different date as being within the intention of the notice of appeal. Malone v Industrial Commission, 66 Oh Ap 505; Williams v Braun, et al., 65 Oh Ap 451.

The motion to dismiss the appeal is, therefore, sustained and the same is dismissed, and the cause remanded.

MATTHEWS, PJ, and HILDEBRANT, J, concur in Syllabus, Opinion and Judgment.

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77 N.E.2d 861, 81 Ohio App. 124, 49 Ohio Law. Abs. 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooke-v-new-york-chicago-st-louis-railroad-ohioctapp-1947.

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