Miller v. Albright

12 Ohio C.C. 533

• Court: Ohio Circuit Courts
• Decided: October 15, 1896
• Status: Published

Opinion

Day, J.

The only question raised and urged by counsel for the plaintiff in error, is as to the sufficiency of the notice of appeal. Was is given in time, and in the manner provided by law; so that the statutory requirements were complied with and an appeal perfected? Jn this respect the statutory provision is, Sec. 5227, Revised Statutes: “A person desiring to appeal his cause to the circuit court shall, within three days after the judgment or order is entered, enter on the records notice of such intention, etc.” Whether or not the notice of intention to appeal was sufficient in point of manner and time of entering on the record, depends upon the proper interpretation of the words of the section: “A party shall enter on the record notice of his intention within three days after the judgment or order is entered.” What is entering a judgment,, and what acts must a party perform to accomplish the entry of his .notice of intention to appeal on the record? As to the first proposition there is some confusion; the rendition, of a judgment and fhe entry, thereof being sometimes regarded as the same act. But this is not true at all, as the two acts are essentially different. The court renders judgment; i. e., gives judgment; but it does not enter judgment. The entry of a judgment is a clerical or ministerial act, and, by provision of law, is required to be done by the clerk of the court, and consists, of writing or recording it in the journal. In Black on Judgments, page 106, the rule is clearly stated as follows:

“The rendition of a judgment is the judicial act of the court pronouncing the sentence of the law upon the facts in controversy, as ascertained by the pleadings and the verdict. The entry of a judgment is a ministerial act, which consists in spreading upon the record a statement of the final conclusion reached by the court in the matter, thus furnishing external, incontestable evidence of the sentence given, and designed to stand as a perpetual memorial of its action. ”

If this interpretation is correct, then the act of recording the judgment on the journal of the court, by the clerk, is entering it, and a notice of intention to appeal is in time, under the provision of section 5227, Revised Statutes, if entered on the record within three days after the judgment is entered or recorded.

The party desiring to appeal his cause to the circuit court must enter on the record notice of his intention, says the section. It certainly was not the intention of the law making power, in formulating this section, to require the performance of an impracticable or impossible thing; and inasmuch as a party has no possession or control of the record, and cannot porperly perform the physical act of writing his notice of intention to appeal therein, it seems apparent such strictness of construction is not intended, but that liberal and reasonable interpretation is required, to the end that the remedial provision be not defeated or rendered unavailable. What, then, must a party do — what acts must be performed to accomplish the statutory requirement of entering his notice on the record? All a party can do, with propriety, is to formulate a statement; i.e., prepare an entry, showing notice of intention to appeal his case to the circuit court, and deliver it to the clerk of the court and request its entry on the record. This being done, it becomes the official duty of the clerk to enter it on the proper record, and in contemplation of law it is so entered, at least for all purposes of appeal. And this is so, notwithstanding the clerk, from any cause, may omit or refuse to spread it on the record for a time, and until required to do so by an order of the court, made on motion and hearing for that purpose. These observations apply as well to the entry of the judgment or decree rendered in the cause. In either case, when an entry is formulated, and given to the custodian of the record, with a request to enter on the proper record, it is, in law, for purposes of appeal, entered of record. In such case the party has done all he can do; all that is, by law, required of him in that rebpect, and if he has also complied with the other requirements of the section by giving a proper bond within the time limited, an appeal has been accomplished.

Snook & Wilcox, for Plaintiff in Error. H. C. Glenn, for Defendant in Error.

On the facts, as made to appear by the bill of exceptions, we are unable to discover that error has intervened to the prejudice of the plaintiff in error, and the judgment is affirmed.