Jenkins v. Nichols

Ohio Court of Appeals

Jenkins v. Nichols

173 N.E. 47, 36 Ohio App. 267, 8 Ohio Law. Abs. 115, 1930 Ohio App. LEXIS 581

CourtOhio Court of Appeals

DecidedJanuary 27, 1930

DocketNo 2283

StatusPublished

Cited by1 cases

This text of 173 N.E. 47 (Jenkins v. Nichols) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jenkins v. Nichols, 173 N.E. 47, 36 Ohio App. 267, 8 Ohio Law. Abs. 115, 1930 Ohio App. LEXIS 581 (Ohio Ct. App. 1930).

Pincite

Opinion

WILLIAMS, J.

Section 10280 GC provides as follows: (Here follows quotation)

.Under the provisions of 1579-296 GC, subdivision 6, which is a part of the act establishing the municipal court in the City of Toledo, 10280 GC and other provisions relating to practice and procedure in the justice’s courts not inconsistent are made applicable to such municipal court. *116 Section 1579-310 GC provides for giving of an appeal bond in the municipal court of Toledo, but there is nothing therein inconsistent with the provisions of 10280 GC. Section 10279 GC provides that on appeal from a justice’s court, the attachment shall continue in force and be determined in the court of common pleas.

In view of the fact that there was a personal service upon the defendant and that upon trial judgment was entered in favor of the defendant against the plaintiffs on the cross-petition, the plaintiffs had a right to appeal from the judgment without regard to the attachment and as the-appeal bond was in double the amount of the judgment and costs as required by statute it was effective to appeal the cause so' far as that cause related to the issues made upon the pleadings and the only course within the jurisdiction of the court pf common pleas was to order the discharge of the attachment and release of the property attached upon failure to file the new appeal bond. As on appeal, the attachment remained in force, the appellants had no right to have it continue in force Without giving the new bond as ordered; but as the giving of bond with a penalty twice the appraised value of the attached property related only to the right to have the attachment remain in force, the order of. the court should have been that, upon failure to give such new bond, the attachment would be discharged and the attached property released.

The court erred in ordering the appeal dismissed upon failure to give the new appeal bond. For such error the judgment of. the court below will be reversed and the cause remanded for further proceedings according to law.

Lloyd and Richards, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

WILLIAMS, J.

Section 10280 GC provides as follows: (Here follows quotation)

.Under the provisions of 1579-296 GC, subdivision 6, which is a part of the act establishing the municipal court in the City of Toledo, 10280 GC and other provisions relating to practice and procedure in the justice’s courts not inconsistent are made applicable to such municipal court. *116 Section 1579-310 GC provides for giving of an appeal bond in the municipal court of Toledo, but there is nothing therein inconsistent with the provisions of 10280 GC. Section 10279 GC provides that on appeal from a justice’s court, the attachment shall continue in force and be determined in the court of common pleas.

In view of the fact that there was a personal service upon the defendant and that upon trial judgment was entered in favor of the defendant against the plaintiffs on the cross-petition, the plaintiffs had a right to appeal from the judgment without regard to the attachment and as the-appeal bond was in double the amount of the judgment and costs as required by statute it was effective to appeal the cause so' far as that cause related to the issues made upon the pleadings and the only course within the jurisdiction of the court pf common pleas was to order the discharge of the attachment and release of the property attached upon failure to file the new appeal bond. As on appeal, the attachment remained in force, the appellants had no right to have it continue in force Without giving the new bond as ordered; but as the giving of bond with a penalty twice the appraised value of the attached property related only to the right to have the attachment remain in force, the order of. the court should have been that, upon failure to give such new bond, the attachment would be discharged and the attached property released.

The court erred in ordering the appeal dismissed upon failure to give the new appeal bond. For such error the judgment of. the court below will be reversed and the cause remanded for further proceedings according to law.

Lloyd and Richards, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

173 N.E. 47, 36 Ohio App. 267, 8 Ohio Law. Abs. 115, 1930 Ohio App. LEXIS 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-nichols-ohioctapp-1930.

Opinion

Related

Cite This Page — Counsel Stack