Darby v. Tiffany

2 Ohio Law. Abs. 647

• Court: Ohio Court of Appeals
• Decided: July 7, 1924
• Docket: No. 1437
• Status: Published

Opinion

CHITTENDEN, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Salvail brought an action to foreclose a mortgage upon certain real estate located in Toledo, Ohio, and for marshalling of liens. The Peoples State Savings Bank filed a cross-petition for the foreclosure. Tiffany also filed a cross-petition for the foreclosure of a mortgage. Helmreich filed a cross-petition in which she alleged that one Fox was the owner of the premises and that in 1918 gave her a note and mortgage for a loan of $6,000, and that in 1919 Fox sold and conveyed all of his rgiht, title and interest in and to said premises to Tiffiany subject to said mortgage.

Helmreich asked' for a court order that she has a lien for $6,000 and that this lien was prior to any interest claimed by Tiffany and subject only to the liens of Salvail and the bank. The court entered judgment in favor of Helmreich for $6,000 but dismissed the cross-petition insofar as prayed relief against Tiffany. This judgment was entered March 31, 1924. An appeal bond dated March 4 for $200 was filed. Tiffany moved the Court of Appeals to dismiss the appeal of Helmreich upon the grounds that said appeal had not been properly perfected, that no proper bond had been filed and that the Court of Appeals was without jurisdiction. In granting the motion to dismiss, the Court of Appeals held:

1. The Court of Appeals has no jurisdiction to hear a case on appeal because the cross-petition asks for a money judgment.'

2. As the appeal bond showed on its face to have been signed before the entry of the final judgment, the bond was not proper or ■a resquisite bond as provided by 12229 GC.