COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67513 FRANK MARTIN : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CIVIL SERVICE COMMISSION : OF BEDFORD HEIGHTS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-226291 JUDGMENT: REVERSED. JUDGMENT ENTERED FOR CIVIL SERVICE COMMISSION. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: ROBERT M. PHILLIPS (#0033079) Landskroner & Phillips Co., L.P.A. 75 Public Square, Suite 1040 Cleveland, Ohio 44113-1904 For Defendant-Appellant: CHARLES E. MERCHANT (#0012781) KATHARINE LANG BETTASSO (#0017947) 700 West St. Clair Avenue - Suite 210 Cleveland, Ohio 44113 - 2 - 2 SPELLACY, P.J.: The Civil Service Commission of the City of Bedford Heights ("Commission") appeals from the modification of its order discharging Frank Martin, a police officer, and raises three assignments of error: I. THE LOWER COURT ERRED IN OVERRULING APPELLANT'S MOTION TO DISMISS AS THE COURT LACKED SUBJECT MATTER JURISDICTION IN THAT APPELLANT FAILED TO FILE A SUPERSEDEAS BOND AT THE TIME THE APPEAL WAS REQUIRED TO BE FILED PURSUANT TO R.C. 2505.06. II. THE LOWER COURT ERRED BY DISMISSING THE ADMINISTRATIVE APPEAL SUBJECT TO THE SAVINGS STATUTE AND LACKED AUTHORITY TO REINSTATE THE APPEAL SUA SPONTE AFTER DISMISSAL BY THE COURT. III. THE LOWER COURT ABUSED ITS DISCRETION BY FINDING NO EVIDENCE, DIRECT OR CIRCUMSTANTIAL, TO SUPPORT THE POSITION OF THE CITY. I. After the Commission ordered his discharge, Martin appealed to the court of common pleas. The Commission responded by moving to dismiss based on Martin's failure to file a supersedeas bond. On July 14, 1992, the court of common pleas denied the Commission's motion to dismiss and, sua sponte, dismissed the appeal "w/o prejudice subject to the savings statute." On March 24, 1993, the court of common pleas entered a nunc pro tunc judgment vacating its July 14, 1992, dismissal and reinstating the appeal. After hearing the appeal, the court of common pleas modified the discharge to a one hundred day suspension. - 3 - 3 II. We address the Commission's second assignment of error first. In this assignment of error, the Commission contends the court of common pleas erred when it reinstated the appeal. We agree. The July 14, 1992, dismissal constituted a final appealable order. The language in the dismissal was inoperative. The dismissal of an appeal without prejudice is a non sequitur because an appeal, unlike an original action, is incapable of being refiled. McCann v. Lakewood (1994), 95 Ohio App.3d 226, 233. Similarly, the savings statute, R.C. 2305.19, is inapplicable to appeals. McCann, at 232-233. Further, the March 24, 1993, nunc pro tunc judgment was invalid. Courts have inherent authority to make their journals "speak the truth" by entering nunc pro tunc judgments reflecting the court's actual decision. State ex rel. Rogers v. Rankin (1950), 154 Ohio St. 23, 26; Garfield Hts. City School Dist. v. State Bd. of Edn. (1992), 85 Ohio App.3d 117, 123; Leaseway Distribution Centers, Inc. v. Ohio Dept. of Adm. Serv. (1988), 49 Ohio App.3d 99, 108; McKay v. McKay (1985), 24 Ohio App.3d 74, 75. Here, the nunc pro tunc judgment altered the actual decision made by the court of common pleas. Accordingly, the Commission's second assignment of error is well taken. - 4 - 4 III. Our resolution of the Commission's second assignment of error renders it unnecessary for us to address the Commission's first and third assignments of error. See App.R. 12(A)(1)(c). Judgment reversed and original order of the Commission reinstated. - 5 - 5 This cause is therefore reversed and judgment is entered for Civil Service Commission. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, J. AND DYKE, J., CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .