Opinion
No. 145
Decided January 19, 1949.
Appeal — On law and fact dismissed, and retained on law, when — Bill of exceptions, assignments of error and briefs — Time for filing — Rule VII of Courts of Appeals inapplicable, when.
1. Appeal on questions of law and fact will be dismissed on motion and retained as an appeal on questions of law where it appears that the action is not in chancery.
2. The court will order bill of exceptions, assignments of error and briefs to be filed in conformity to the Supplement to Rule VII.
3. While an appeal stands as an appeal on questions of law and fact a motion to dismiss the appeal on the ground that appellant failed to file briefs within fifty days after the filing of notice of appeal as provided in Rule VII will be overruled; Rule VII has no application to appeals on questions of law and fact.
APPEAL: Court of Appeals for Shelby county.
ON MOTION to dismiss.
Messrs. Pickrel, Schaeffer Ebeling and Messrs. Cummins Boller, for appellee.
Mr. Sidney G. Kusworm, Mr. D.F. Mills, Mr. Rodney R. Blake, Mr. Robert D. Touvelle and Messrs. Myers Myers, for appellants.
This cause is submitted on motion of plaintiff, appellee herein, to dismiss the appeal on questions of law and fact, and, also, to dismiss the appeal.
The court ordered the receivers to sell certain real estate in which the defendants, appellants herein, have an interest, "free and clear of dower interest of the defendant, Mary J. Anderson, in and to said real estate," and further ordered that the claim of Mary J. Anderson arising by dower interest "be transferred to the funds received by said receivers from the sale of said real estate with the same priority and effect as though they had attached to the original property." From that order this appeal was taken.
Clearly, this is not a chancery matter and a trial de novo may not be had. Eaton v. Robison, 47 Ohio App. 436, 192 N.E. 132.
The appeal on questions of law and fact will be dismissed. The court will retain the case for hearing on appeal on questions of law. Section 12223-22, General Code. Under Section 11564, General Code, the court is required to make an order respecting the filing of a bill of exceptions.
It is claimed in the brief of plaintiff that a bill of exceptions has been filed, although the transcript of the docket does not disclose it. If a bill has been filed in this court, an order is made to refile it in this court within three days from the date this entry is journalized. If the bill has not been filed, then the court orders such bill to be filed in conformity to Supplement to Rule VII effective January 1, 1949. In all events, the court orders assignments of error and briefs to be filed in conformity to Supplement to Rule VII.
The motion to dismiss the appeal on the ground that appellants failed to file their briefs within 50 days after filing notice of appeal as provided in Rule VII, is overruled. So long as this appeal stood as an appeal on questions of law and fact Rule VII had no application. Rule VII applies only to an appeal on questions of law.
Judgment accordingly.
WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.