State v. Marshall

Ohio Court of Appeals

State v. Marshall

31 Ohio Law. Abs. 382

CourtOhio Court of Appeals

DecidedFebruary 2, 1940

DocketNo. 3024

StatusPublished

Cited by2 cases

This text of 31 Ohio Law. Abs. 382 (State v. Marshall) 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.

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State v. Marshall, 31 Ohio Law. Abs. 382 (Ohio Ct. App. 1940).

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OPINION

BY THE COURT:

This is an appeal from a judgment of the Common Pleas Court affirming the conviction of appellant in the Municipal Court of the City of Columbus [384]*384of the offense of driving an automobile upon U. S. Route 40 in Franklin County, Ohio, while in an intoxicated condition or under the influence of alcohol.

There are four errors assigned.

At the outset we are met with a jurisdictional question which is determinative of the appeal. The transcript of docket and journal entries discloses that the judgment entry in the Common Pleas Court is dated February 6, 1939. The notice of appeal from the judgment is dated February 4, 1939. Thus the notice of appeal is dated two days before the final judgment was entered to which the appeal is directed. It is obvious that there has been no proper notice of appeal to any judgment and that this court is without jurisdiction to entertain the appeal. Anything that we might say respecting the merits of the errors assigned would be without authority or legal effect inasmuch as we lack the jurisdiction to entertain the case.

We release this opinion so that counsel may have the benefit of the basis therefor and if the record is incorrect it should be corrected. If, inadvertently, the date on the notice is not in accord with the actual time that it was filed, this matter should be brought to the attention of the proper authority and correction made, if permissible. If any correction is to be made it may be suggested on application foi rehearing. If not, the appeal will be dismissed.

HORNBECK, PJ., GEIGER & BARNES, JJ., concur.

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OPINION

BY THE COURT:

This is an appeal from a judgment of the Common Pleas Court affirming the conviction of appellant in the Municipal Court of the City of Columbus [384]*384of the offense of driving an automobile upon U. S. Route 40 in Franklin County, Ohio, while in an intoxicated condition or under the influence of alcohol.

There are four errors assigned.

At the outset we are met with a jurisdictional question which is determinative of the appeal. The transcript of docket and journal entries discloses that the judgment entry in the Common Pleas Court is dated February 6, 1939. The notice of appeal from the judgment is dated February 4, 1939. Thus the notice of appeal is dated two days before the final judgment was entered to which the appeal is directed. It is obvious that there has been no proper notice of appeal to any judgment and that this court is without jurisdiction to entertain the appeal. Anything that we might say respecting the merits of the errors assigned would be without authority or legal effect inasmuch as we lack the jurisdiction to entertain the case.

We release this opinion so that counsel may have the benefit of the basis therefor and if the record is incorrect it should be corrected. If, inadvertently, the date on the notice is not in accord with the actual time that it was filed, this matter should be brought to the attention of the proper authority and correction made, if permissible. If any correction is to be made it may be suggested on application foi rehearing. If not, the appeal will be dismissed.

HORNBECK, PJ., GEIGER & BARNES, JJ., concur.

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31 Ohio Law. Abs. 382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marshall-ohioctapp-1940.

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