GOLDMAN v. HARRISON

No. 32773.

156 Ohio St. 403 (1951)

GOLDMAN, APPELLEE, v. L. B. HARRISON (CLUB), APPELLANT, ET AL.

Supreme Court of Ohio.

Decided December 19, 1951.


Attorney(s) appearing for the Case

Mr. Robert A. Goldman, for appellee Jerome Goldman.

Messrs. Graydon, Read & Ritchey and Mr. Robert L. Black, Jr., for appellant.

Mr. C. Watson Hover, prosecuting attorney, and Mr. Francis Schwegmann, for appellee George Guckenberger, Auditor.


Per Curiam.

On June 5, 1951, a decision of the Board of Tax Appeals in the instant case was entered on its journal. Within 30 days, a notice of appeal from that decision was filed by appellant. Thereafter, within 20 days after the filing of that notice of appeal, but more than 30 days after the decision of the Board of Tax Appeals, a notice of cross-appeal from that decision was filed by appellee in this court.

Rule II, Section 1 (C) of this court provides:

"A notice of cross-appeal may be filed in this court by an adverse party within 20 days after copy of notice of appeal is filed in this court."

The cause is now before the court on a motion to dismiss the cross-appeal.

This court has only, to use the words of Section 2, Article IV of the Constitution, "such revisory jurisdiction of the proceedings of administrative officers as may be conferred by law."

The only jurisdiction so conferred by law with respect to the Board of Tax Appeals is conferred by Section 5611-2, General Code, which requires that the appeals therein provided for "shall be taken within thirty days after the date of the entry of the decision of the Board of Tax Appeals * * * by the filing by appellant of a notice of appeal." Where such notice of appeal is not filed within such thirty-day period, the appeal will be dismissed because jurisdiction to revise the proceedings of the Board of Tax Appeals has been "conferred by law" upon this court only where such notice of appeal has been filed within that time. See, for example, Oliver v. Evatt, Tax Commr., 144 Ohio St. 231, 58 N.E.2d 381; Lutz v. Evatt, Tax Commr., 144 Ohio St. 341, 635, 58 N.E.2d 955.

There are no statutory provisions for any notice of so-called cross-appeal. One who desires to have this court review a decision of the Board of Tax Appeals must, therefore, comply with the statutory provisions relative to appeals from the Board of Tax Appeals.

To hold, that any rule of this court may authorize a cross-appeal from a decision of the Board of Tax Appeals, would be the equivalent of holding that this court has the power and authority to confer upon itself "by law" a revisory jurisdiction of the proceedings of the Board of Tax Appeals. Nothing in the Constitution vests any such legislative power in this court. On the contrary, the legislative power of the state is vested in the General Assembly. See Constitution, Section 1, Article II.

This court may make rules "with respect to the procedure in the Supreme Court not inconsistent with the laws of the state" (Section 12223-47, General Code), but it may not make rules enlarging its jurisdiction to hear cases beyond that which the Constitution gives it or beyond that given it by laws passed by the General Assembly pursuant to constitutional authority.

Cross-appeal dismissed.

ZIMMERMAN, STEWART, MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.

WEYGANDT, C. J., dissenting. The motion to dismiss the cross-appeal is filed on the theory that there is no provision therefor in Section 5611-2, General Code.

That section concededly is silent as to cross-appeals.

But does this fact constitute the entire story?

In Section 12223-47, General Code, appears the following provision:

"The Supreme Court may make and publish rules with respect to the procedure in the Supreme Court not inconsistent with the laws of the state."

Pursuant to this authorization and in conflict with no statutory provision, this court has promulgated Rule II, Section 1(C), as follows:

"A notice of cross-appeal may be filed in this court by an adverse party within twenty days after copy of notice of appeal is filed in this court."

The cross-appellant admittedly has complied with the requirement of this rule by filing his notice of cross-appeal within twenty days after copy of the notice of appeal was filed in this court.

Hence, it would seem that the motion to dismiss the cross-appeal should be overruled and that in fairness the court should consider the case in its entirety on both the appeal and the cross-appeal. Otherwise, if the appellant should wait until the statutory thirtieth day to file his appeal, the cross-appellant would have no additional time in which to file his cross-appeal after learning of the appeal.


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