Acme Mortgage & Investment Co. v. Bachelor

74 N.E.2d 111, 79 Ohio App. 417, 49 Ohio Law. Abs. 415, 35 Ohio Op. 181, 1947 Ohio App. LEXIS 698

Opinion

OPINION

By THE COURT:

Submitted on motion of the plaintiff-appellee for an order dismissing the appeal of defendants-appellants, on the ground that (1) the appellants have failed to file briefs or assignments of error as provided by Rule VII., (2) because of an insufficient or inadequate appeal bond and (3) for want of pros-secution.

In the Notice of Appeal it is stated that “said appeal is on questions of law and fact.” Rule VII, controls appeals on questions of law, and has no application to appeals on questions of law and fact.

In the Entry fixing the appeal bond there is a recital that the appellants had deposited One Hundred and Nineteen ($119.00) Dollars with the Clerk of Courts and the Court thereupon fixed the appeál bond at One Hundred ($100.00) Dollars. The record shows that in addition to the One Hundred and Nineteen ($119.00) Dollars, which had already been deposited, the appellants complied with the order of the Court and deposited an additional One Hundred ($100.00) Dollars. If it is contended that this bond is insufficient, plaintiff-appellee should file a motion under §12223-16 GC. On the state of the record the Court cannot ordej a dismissal of the appeal.

The Notice of Appeal having been filed December 13, 1946, and Rule VII. not being applicable, it does not appear that there has been a want of prosecution which would justify a dismissal.

Accordingly the motion to dismiss the appeal will be overruled.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.