Opinion
No. 2017
Decided October 12, 1948.
Appeal — On questions of law and fact — Not available in action for money only — Dismissed for failure to file appeal bond — Case retained for appeal on questions of law — Time allowed for filing bill of exceptions, etc.
1. In appeal on questions of law and fact, where appellant fails to file an appeal bond as required by Section 12223-6, General Code, the appeal on questions of law and fact will be dismissed.
2. An appeal on questions of law and fact does not lie in a civil action for the recovery of money only.
3. Where an appeal on questions of law and fact is dismissed, the court will retain the case as an appeal on questions of law, and grant time to appellant within which to prepare and settle a bill of exceptions and file assignments of error and brief.
APPEAL: Court of Appeals for Montgomery county.
ON MOTION to dismiss.
Messrs. Pickrel, Schaeffer Ebeling, for appellant.
Messrs. Harshman Young, for appellee.
This cause is submitted on motion of defendant, appellee herein, to dismiss the appeal on questions of law and fact on the ground that plaintiff, appellant herein, has not filed an appeal bond as required by Section 12223-6, General Code, and on the additional ground that the matter is not appealable on questions of law and fact.
The record shows that the appeal bond which is required to be filed under the provisions of Section 12223-6, General Code, in order to perfect an appeal on questions of law and fact has not been filed.
The action is one at law for the recovery of money only, and not an action in chancery.
The motion to dismiss the appeal upon questions of law and fact is hereby sustained on both grounds. Under the provisions of Section 12223-22, General Code, whenever an appeal on questions of law and fact is dismissed, the case shall stand for hearing on appeal on questions of law.
The plaintiff is granted 30 days within which to prepare, settle, and file a bill of exceptions, and, also, file assignments of error and brief. Section 11564, General Code.
An entry may be drawn accordingly.
Judgment accordingly.
WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.