This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, in which that court reversed the judgment of the Municipal Court of Cincinnati.
The Court of Common Pleas found that the Municipal Court had abused its discretion in refusing to reopen a case after it had been submitted to the court.
The plaintiff sought to recover against the defendant upon an open account which had been, according to the plaintiff, kept alive by a payment within the period of the statute of limitations.
The defendant answered setting up a discharge in bankruptcy.
The plaintiff replied, alleging want of knowledge of *Page 185 the discharge, that he was not given "ten days' notice by mail to his address of any examination of the bankrupt, or of any meetings of creditors, and that he did not have thirty days' notice of any application for the discharge in bankruptcy of the said defendant."
At the trial, the plaintiff proved his claim and the defendant proved the discharge. Whereupon, the record shows the following circumstances to have occurred, at the conclusion of the defendant's evidence:
"Mr. Falk: That's all.
"Mr. Baker: That's all. That's our case, your Honor, please. (Witness excused.)
"Mr. Falk: We ask for judgment, if your Honor please.
"The Court: All I have before me is the fact that there was a bill incurred, there was a payment made in 19 — this year, of $20, which if that payment hadn't been made the statute of limitations would have applied against that claim; there was a discharge in bankruptcy in 1936, I must take this discharge for what it is worth. I think I will have to give judgment for the defendant on this.
"Mr. Falk: All right, if your Honor please, how do you know that this debt was listed in this?
"The Court: I don't know; he was discharged from all debts.
"Mr. Falk: Discharged from all debts that he has listed in his bankruptcy schedule. * * *
"Mr. Falk: If your Honor please, I will ask to reopen the case. If your Honor really insists upon us proving his burden then I will ask to reopen the case for that purpose.
"The Court: Have you any objection to that?
"Mr. Baker: I do object because what he is —
"The Court: I am just asking you the question. I doubt that I have the right at this time, Mr. Falk, to reopen it. Personally I don't want to foreclose anybody *Page 186 but I think by expressing myself I have foreclosed myself from this particular case.
"Mr. Baker: What Mr. Falk is trying to do is to attack the judgment collaterally.
"Mr. Falk: We are not attacking a judgment, we are attacking the defense which this man has set up, which he has not asserted on the stand.
"The Court: My ruling is based upon this: There is evidence that there was a payment on this account, which, if there hadn't been any bankruptcy would have revived it; there has been a proof of bankruptcy and I think that proof of bankruptcy discharge is enough, unless it is shown that this is not a claim that was properly discharged. I may be wrong, but I think it's incumbent upon you, and on account of having indicated at this particular time I think I am prevented, although I would like to, to permit you to reopen the case. It may be reopened probably in another way, I mean before me, but I mean at this stage of the proceedings I don't think I can. If you can show me that I can, why I will be glad to.
"Mr. Falk: If your Honor please, in the interest of justice a case may always be reopened at any time while the parties are still here.
"The Court: No, there is a case to the effect when the court has indicated his judgment, I have more than indicated in this particular case, why then it's too late.
"Mr. Falk: If your Honor please, there is no jury here and for three days it's merely a verdict; at the present time, until the motion for a new trial has been ruled upon it doesn't become a judgment.
"The Court: I will have to grant judgment for the defendant at this particular stage.
"Mr. Falk: Note an exception."
Now, on September 16, 1940, the court upon its journal entered judgment for the defendant. On September 18, 1940, motion for new trial was filed by the plaintiff. Under Boedker v. Richards Co.,124 Ohio St. 12, *Page 187 176 N.E. 660, the effect of this judgment was to cause it to become the equivalent of a verdict of a jury.
In this motion for new trial the plaintiff advanced only the following claims of error: (1) The verdict was against the weight of the evidence; (2) the verdict was not sustained by the evidence; (3) the verdict was contrary to law; and (4) the court erred in admitting evidence offered by the defendant.
It will be noted that no claim is made because of the exclusion of evidence of the plaintiff, or that he was prevented from proceeding with his case in reply.
On September 18, 1940, the plaintiff also filed a motion which he entitled "Motion of Plaintiff, William A. Bauer, for JudgmentNon Obstante Veredicto." The motion was just that — for judgment notwithstanding the verdict. This motion is of no consequence in considering the questions presented.
On September 21, the court on its journal entered final judgment for the defendant in accordance with its finding, overruling the motion for a new trial.
On September 24, 1940, some eight days after the first finding of the court, the plaintiff filed what he called an amended motion for new trial and a motion for rehearing on his motion for new trial, both of which were overruled in an entry of the court, properly journalized, the plaintiff writing upon the bottom of such entry a statement that he gave notice of appeal. This latter act does not comply with the statute. Section 12223-5, General Code. Non constat Capital Loan Savings Co. v. Biery, 134 Ohio St. 333, 16 N.E.2d 450, which is at present binding upon this court. Such practice will open the door to fraud and mischance, in that it is perfectly possible to write in the notice of appeal after counsel for the prevailing party has endorsed the entry.
The statute is clear in requiring that the notice of appeal be "filed." Endorsing a notice on the entry is *Page 188 not filing it. The judgment is not filed — it is entered upon the journal.
In the amended motion, which is valueless to add any new ground, and not filed within three days from the finding, the plaintiff does, for the first time, tender as a new ground for his motion, that the court erred in refusing to admit evidence offered on behalf of plaintiff.
In the first place, the record discloses no offer of evidence. There was a claim by the plaintiff that he had a right to reopen the case and offer evidence upon the question of listing of debts, but what this evidence would have been, or whether it would have changed the result does not appear.
In the second place, final judgment had been entered, and the motions were out of order except possibly as applications for rehearing.
The court could have reopened the case. It could have set aside its judgment, but the record does not disclose any element present which would justify a finding that the court abused its discretion in not doing so. The court used its discretion, but can it be said that its position indicated "an unreasonable, arbitrary or unconscionable attitude"?
This is the definition of abuse of discretion, as set out in the second paragraph of the syllabus in the case of Steiner v.Custer, 137 Ohio St. 448, 31 N.E.2d 855.
The court was in error as to its power to reopen the case, but it cannot be said that the record affirmatively shows that the trial court committed error, prejudicial to the rights of the plaintiff in not reopening the case.
The judgment of the Court of Common Pleas should be reversed and that of the Municipal Court of Cincinnati, affirmed. *Page 189