Parker v. Sampson

13 Ohio C.C. 660

• Court: Ohio Circuit Courts
• Decided: January 15, 1895
• Status: Published

Opinion

Sentley, J.

This is a motion to dismiss appeal m the case of Sewell S. Parker v. Sarah E. Sampson. The motion is based upon the ground,first,that the case itself is not an appealable one; and secondly, that the steps provided by the statute for perfecting an appeal, were not followed. We think the motion is well taken, upon both grounds, being an action upon a note and mortgage and to recover a certain amount that the plaintiff claims to have paid for the defendant by way of taxes upon the premises. When the action was begun, the note itself, by its terms,was not due as to the principal. It was given, I think, in 1892, and by its terms ran three years; but the interest was payable semi-annually and an action would arise in favor of the holder of the note for each installment of interest as it became due and was unpaid. There was a provision in the mortgage that in case the taxes upon the premises were not paid as they became due, or in case any installments of interest upon the note were not paid as they fell due, the holder of the note and mortgage might proceed to collect the entire indebtedness.

The petition alleges that the taxes had not been paid as provided; that several installments of interest upon the note had become due and were unpaid, and the prayer was that personal judgment for the full amount of the note and the interest and also for the money that had been advanced to pay the taxes might be rendered. Personal judgment was rendered for the amount advanced hy the plaintiff for taxes and for the full amount of the note, and an order to foreclose the mortgage was entered.

It may be that under the authorities, the amount of the personal judgment was too large. It is not necessary for us to decide that. There are authorities which would indicate that it was too large, namely — that the personal liability upon the note must be determined by the terms of the note itself, and that the provision in the mortgage that the whole indebtedness should become due upon default in paying the interest and taxes, was simply a provision affecting the foreclosure of the mortgage, and not giving a legal claim fox’ personal judgment for the full amount of the note.

However that may be, the plaintiff was entitled to a personal judgment for some amount. He had a judgment for too large an amount, possxbiy, but he was entitled at least to a persoxxal judgment for some amount and foreclosure of the mortgage.

Under the authorities, which I need not take time to call attention to now, beginning with the case of Ladd v. James, in the 10 Ohio St. we conclude that this presents a case that is not appealable.

As to the other matter: The judgment was rendered and decree entered on the 14th of February. The notice that the party would appeal the case to this court was exxtered upon the Í9th of March. The appeal bond was in fact given some time, I think, after the middle of May. It is true, the party, after the rendition of the judgment, filed a motion for a new trial,and that was continued along and not disposed of until perhaps in May; but we think that does not extend the time of notice for the appeal, or for the giving of a bond for the appeal.

Under the statute as it now stands — the statuteof 1892, the notice must be entered upon the records within three days from the time of the entering of the decree and a bond must be filled within thirty days from the renditioxi of the decree, or the entering of the decree. Neither of these statutory requirements having beexx complied with, the appeal will be dismissed.