Opinion
No. 2023
Decided November 11, 1948.
Appeal — On questions of law and fact — Not available in action for money only — Case retained for appeal on questions of law — Refiling bill of exceptions prematurely filed.
1. An appeal on questions of law and fact does not lie in a civil action for the recovery of money only.
2. Where an appeal on questions of law and fact does not lie, the court will retain the case as an appeal on questions of law and grant appellant time within which to refile a bill of exceptions which has been filed prematurely and to file assignments of error and brief.
APPEAL: Court of Appeals for Montgomery county.
ON MOTION to dismiss.
Mr. C.J. Stoecklein, for appellee.
Mr. D.H. Wysong, for appellants.
This cause is submitted on motion of plaintiff, appellee herein, to dismiss the appeal on questions of law and fact. The only question involved is whether the Common Pleas Court of Montgomery county erred in affirming the judgment of the Municipal Court of Dayton, in a civil action for money only.
Obviously an appeal on questions of law and fact does not lie. The motion to dismiss the appeal on questions of law and fact is sustained. The case will be retained as an appeal on questions of law.
The record discloses that a bill of exceptions has been settled in the trial court and, also, has been filed prematurely in this court. The court allows defendants, appellants herein, ten days from the date of the entry journalizing this decision within which to refile the bill of exceptions in this court, and the same time is given within which to file their assignments of error and brief. The plaintiff is given ten days after the date of the filing of briefs by defendants within which to file an answer brief; and the defendants are given five days after the date of the filing of the answer brief within which to file a reply brief, should they desire to do so.
Counsel will draw the proper entry.
Judgment accordingly.
WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.