Mosey v. Hiestand

34 N.E.2d 210, 138 Ohio St. 249, 138 Ohio St. (N.S.) 249

• Court: Ohio Supreme Court
• Decided: May 14, 1941
• Docket: 28360 and 28482
• Status: Published

Opinion

By the Court.

These causes were argued on the same date and involve the same question.

In each, the Court of Appeals refused to permit the notice of appeal to be amended by correcting the date of the rendition of the judgment. In cause No. 28360, the notice of appeal recited that the final order appealed from was made on February 9, 1940, instead of the correct date which was January 3, 1940.

In'cause No. 28482, the notice of appeal gave the date of the rendition of the judgment as March 10, 1940, instead of the correct date which was June 18, 1940.

In the case of Couk v. Ocean Accident & Guarantee Corp., ante, 110, the notice of appeal stated erroneously that the judgment had been rendered on the 13th day of November instead of the 14th day of November. The Court of Appeals permitted the notice to be amended. This court, in affirming the judgment of the appellate court, held that that court had power to make the amendment under and by virtue of Section 12223-5, General Code. In the opinion, Judge Bettman used this language: “The type of error in the present notice of appeal, we hold to be subject to correction by amendment permitted ‘in the furtherance of justice for good cause shown.’ ”

In each of the present cases the Court of Appeals refused leave to amend and dismissed the appeal. At that time the practice had not been settled by the decision.in the Couk case which removes the doubt as to correct procedure.

For error in refusing the amendments and in dismissing the appeals, in each case the judgment of the Court of Appeals is reversed and the cause remanded to the appellate court for further proceedings not inconsistent with this opinion.

Judgments reversed and causes remanded.

Weygandt, C. J., Turner, Williams, Hart, Zimmerman and Bettman, JJ., concur. Matthias, J., not participating.