Opinion
No. 5862
Decided June 10, 1958.
Appeal — Dismissal — Failure to file bill of exceptions, assignments of error and brief — Rule VII, Courts of Appeals — Applicability to party acting as own attorney.
A party, acting as his own attorney in an appeal to the Court of Appeals on questions of law, must comply with the requirements of Rule VII of the Courts of Appeals as to filing a bill of exceptions, assignment of errors and brief, and, upon failure to do so, the appellee's motion to dismiss the appeal will be sustained.
APPEAL: Court of Appeals for Franklin County.
Mr. Harry A. Dawson and Mrs. Ruby L. Dawson, in propria persona. Mr. Stanton G. Darling, for appellee Pauline Homes, Inc.
Messrs. Wright, Harlor, Purpus, Morris Arnold, for appellee Lawyers Title Insurance Corporation.
This action was begun in the Municipal Court of Columbus. It arose with the purchase of a house and lot by Harry A. and Ruby L. Dawson, plaintiffs, appellants herein, from the Pauline Homes, Inc., one of two defendant-appellees.
The petition alleged certain warranties and representations as to full compliance with regulations of the Federal Housing Administration and the breach thereof. It alleged also certain other claimed wrongful acts and concluded with a prayer for two thousand dollars damages.
It appears that the Dawsons were represented by an attorney at law who prepared the petition and conducted the trial on their behalf. At the conclusion of plaintiffs' evidence the trial court, on motion of defendants, gave judgment in favor of the defendants at the costs of the plaintiffs.
It appears that the Dawsons became dissatisfied with the services rendered by this and another attorney employed by them and that there was a termination of their employment. The Dawsons then undertook carrying on the litigation, acting as their own attorneys. This they have the unquestioned right to do.
As before stated, the judgment of the trial court was against the Dawsons. It is quite clear that the Dawsons wished this court to review and reverse the judgment of the court below. It is clear also that they have failed to take steps which will permit this court to review that judgment. The so-called notice of appeal, filed November 19, 1957, contains no statement whatever as to what judgment or final order of the court below is the subject of the appeal, nor is there any reference to any date on which such judgment or final order was entered.
On the contrary, the Dawsons flatly stated in said document: "Plaintiffs find no court error in the proceedings of the trial of said case * * *." This is followed by a statement that the attorney they employed "presented said case erroneously" and that "extenuating circumstances has obstructed justice." There is no amplification as to what the extenuating circumstances were.
The immediate question pending before this court arises under a motion filed by Lawyers Title Insurance Corporation to dismiss the appeal upon the following two grounds: (1) That the Dawsons failed to file a bill of exceptions or assign errors apparent on the record, and (2) that the Dawsons have failed to file their assignment of errors and briefs within the time provided by law. The Dawsons relate the difficulties they have had with counsel they have employed, which is to be regretted.
Unfortunately for them, this does not lessen their obligation to file a bill of exceptions where questions are sought to be raised with respect to the evidence. Nor does it lessen their obligation to file an adequate notice of appeal setting forth the judgment or final order appealed from. This was not done by the Dawsons.
They were also under a duty to file an assignment of errors and supporting brief containing the arguments in support of their claims and any authorities they might have.
Under this court's former Rule VII A (1) — effective until January 1, 1958 — the bill of exceptions was required to be filed in the trial court not later than forty days after the perfecting of the appeal by the filing of a notice of appeal, etc. This rule also sets forth the steps which follow, including the filing of a bill of exceptions with the clerk of this court.
Later provisions in the same rule require the filing of an assignment of errors and briefs at the same time the bill of exceptions is filed with the clerk of this court. The fact is that, as this opinion is being written, approximately one hundred ninety days have elapsed since the filing of the notice of appeal.
For the reasons above set forth, the motion to dismiss is well taken as to both of the grounds therein set forth. Said motion will, therefore, be sustained and the appeal will be dismissed at the costs of the appellants.
Appeal dismissed.
PETREE, P. J., and MILLER, J., concur.