Neale v. Board of Liquor Control

154 N.E.2d 661, 106 Ohio App. 333, 7 Ohio Op. 2d 80, 1958 Ohio App. LEXIS 808

• Court: Ohio Court of Appeals
• Decided: June 24, 1958
• Docket: 5956
• Status: Published

Opinion

Petree, P. J.

This cause comes on to be heard on a motion to dismiss which was filed by the appellee herein and which is as follows:

“Now comes the appellee, Board of Liquor Control, and moves this court for an order dismissing the appeal for the reason that the appeal is not taken from a final order.”

The decision of the Court of Common Pleas, rendered on April 12, 1958, and filed in said court on April 14, 1958, was not journalized by final entry until May 20, 1958. A notice of appeal was filed the next day, May 21, 1958. This notice of appeal concerned itself with the matters discussed in the decision and was not addressed to the journal entry.

In view of the fact that the notice of appeal was filed one day after the journal entry and the appellant has requested this court for leave to amend her notice of appeal in the event the position of the appellee is well taken, we feel constrained to permit the amendment of the notice of appeal so that it may be addressed to the matters contained in the journal entry.

We are a little at a loss to know why counsel took the trouble to appeal from a decision rather than from an entry and to quote most, if not all, of the decision in the notice of appeal. However, in view of the decision of the Supreme Court of Ohio in Mosey v. Hiestand, Trustee, 138 Ohio St., 249, 34 N. E. (2d), 210, we feel that the request to amend the notice of appeal should be granted.

The motion is overruled and leave is granted to amend the notice of appeal.

Motion overruled.

Miller, J., concurs. Bryant, J., not participating.