Opinion
No. A-60738.
1938-05-17
WALLACE v. BERTKE.
John A. Scanlon, of Cincinnati, for the motion. Fred L. Hoffman, Jr., of Cincinnati, contra.
Action by Robert Wallace against Rosemary Bertke. From a judgment in favor of defendant rendered by Municipal Court, the plaintiff appeals and defendant moves to dismiss the appeal.
Motion granted.John A. Scanlon, of Cincinnati, for the motion. Fred L. Hoffman, Jr., of Cincinnati, contra.
RYAN, Judge.
It appears from the Transcript of Docket and Journal Entries that this cause was heard in the Municipal Court on December 2, 1937, and judgment being rendered for the defendant, plaintiff excepted. On December 4, 1937, plaintiff filed a motion for a new trial.
On December 11, 1937, an entry overruling the motion for a new trial and rendering judgment for the defendant was entered. To the Court's entry was appended the following:
‘Plaintiff hereby gives notice of Appeal to the Court of Common Pleas on questions of law and fact.’
On December 30, 1937, a Bill of Exceptions was filed by plaintiff.
On January 15, 1938, in what purports to be an entry endorsed by the Municipal Court, it is recited that
‘Plaintiff, Appellant, stipulates that the Notice of Appeal heretofore filed by the Plaintiff, Appellant, shall be considered as an appeal on questions of law only.’
On January 15, 1938, the Bill of Exceptions with all original papers filed, was transmitted to the Court of Common Pleas by the Clerk of the Municipal Court.
On March 23, 1938, appellee's motion to dismiss this appeal was filed.
The appellee contends that the appellant (plaintiff below) nener filed a sufficient Notice of Appeal.
General Code, Section 12223-6, provides:
‘Except as provided in Section 12223-12, no appeal shall be effective as an appeal upon questions of law and fact unless and until the order, judgment, or decree appealed from is superseded by a bond in the amount and with the conditions as hereinafter provided, and unless the said bond be filed at the time the notice of appeal is required to be filed.’
General Code, Section 12223-7, provides:
‘The period of time after the entry of the order, judgment, decree, or other matter for review within which the appeal shall be perfected, unless otherwise provided by law, is as follows:
‘1. In appeals to the supreme court, to courts of appeal, or from municipal courts and from probate courts to courts of common pleas, within twenty (20) days. Provided, that, when a motion for a new trial is duly filed by either party within three days after the verdict or decision then the time of perfecting the appeal shall not begin to run until the entry of the order overrulingor sustaining the motion for new trial.’
General Code, Section 12223-22, provides:
‘Appeals on questions of law and fact. Appeals on questions of law and fact may be taken: * * *
‘(2) Whenever an appeal on questions of law and fact is taken in a case in which it is determined by the appellate court that the appellant is not permitted to retry the facts, the appeal shall not be dismissed, but it shall stand for hearing on appeal on questions of law.’
On consideration of the above sections and the authorities referred to in the briefs of counsel, the Court is of the opinion that the mere noting on the journal of the court that a party gives notice of appeal does not obviate the necessity of filing such notice as required by the statute, and even if such notice could be considered as sufficient, then the appeal was not perfected within twenty days, by reason of the appellant's failure to file an appeal bond.
The Court is of the further opinion that the stipulation noted on the journal that the appeal be considered as an appeal on questions of law, more than twenty days after the overruling of the motion for a new trial, would be of no avail since the appeal had never been perfected.
See Hall v. Hall, 55 Ohio App. 67, Syl. 2 and 3, 8 N.E.2d 582:
‘2. Both a notice of appeal and a bond are required to perfect an appeal on questions of law and fact and, without the bond, no appeal is ‘taken’ within the meaning of Section 12223-22, General Code.
‘3. The appellate court is without jurisdiction of an appeal on questions of law and fact unless a bond is filed as required by Section 12223-6, General Code, nor does that court have power to treat such appeal as one on questions of law.’
The motion to dismiss the appeal herein will be granted.