Opinion
No. 38170
Decided March 25, 1964.
Appeal — Court of Appeals — Appeal on questions of law and fact — No appeal bond filed — Appeal to stand for hearing on questions of law.
APPEAL from the Court of Appeals for Trumbull County.
This action was instituted in the Court of Common Pleas by Job and another, seeking equitable relief by way of injunction. The court sustained defendants' motion to dismiss the petition for want of evidence to warrant the relief sought and rendered judgment for the defendants.
On appeal to the Court of Appeals, that court sustained defendants' motion to dismiss the appeal for failure of plaintiffs to comply with "statutory requirements" relative to procedure on appeal.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. Richard Sternberg, for appellants.
Messrs. Guarnieri Secrest, for appellees.
Defendants contend that the Court of Appeals was correct in dismissing the appeal for failure of plaintiffs to file timely notice of appeal therein. The record discloses that notice of appeal was filed in the Common Pleas Court 19 days after a motion for new trial was overruled. This was the only jurisdictional step required.
Defendants contend that plaintiffs failed to file their motion for new trial in the Common Pleas Court within the statutory time of ten days. The tenth day was Sunday. The notice was filed on the following day.
Defendants further contend that plaintiffs failed to file an appeal bond as required by Section 2505.06, Revised Code. The Court of Appeals was in error in dismissing the appeal and in not retaining it for hearing on appeal on questions of law. Bauer v. Grinstead, 142 Ohio St. 56.
The judgment of the Court of Appeals is reversed and the cause is remanded to that court for further proceedings according to law.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.
MATTHIAS, J., not participating.