McMillen v. Watts

Ohio Court of Appeals

McMillen v. Watts

67 Ohio Law. Abs. 33

CourtOhio Court of Appeals

DecidedMay 29, 1950

DocketNo. 4405

StatusPublished

Cited by1 cases

This text of 67 Ohio Law. Abs. 33 (McMillen v. Watts) 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

McMillen v. Watts, 67 Ohio Law. Abs. 33 (Ohio Ct. App. 1950).

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Opinion

OPINION

By THE COURT.

Submitted on motion of the plaintiffs-appellees seeking an order dismissing the appeal on questions of law and fact and reducing the appeal to one on law only for the reason that no appeal bond has been filed within the time provided by law. The record supports the grounds set forth in the motion and the same will be sustained. The appellants will be permitted to file bill of exceptions, assignment of errors and brief in accordance with supplement to Rule VII of this Court.

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

ON MOTION TO DISMISS APPEAL

No. 4405.

Decided September 7, 1950.

The plaintiffs-appellees filed a motion to dismiss the appeal on questions of law and fact for the reason that no appeal bond has been filed in accordance with §12223-6 GC. The motion will be sustained and the case will be retained for determination on questions of law only. See §12223-22 GC.

The appellees have also filed a motion seeking an order requiring the appellants to file a supersedeas bond in order that their rights might be protected. This motion will be overruled, since execution may be issued when no bond is given. Sec. 12223-9 GC. A further motion is filed by the appellees seeking an order restraining the appellants from dumping garbage, refuse, trash, etc., upon the premises or permitting the same to be done. This motion will be overruled as there is an adequate remedy at law, to wit, enforcement of the judgment or a supersedeas bond.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur. Robert W. Newlon, Richard R. Price, Columbus, for plaintiffs-appellees. John F. Seidel, Warren E. Bigony, Columbus, for defendants-appellants.

This is a motion seeking an order dismissing the appeal on questions of law for failing to comply with Supplement to Rule VII of this Court.

The record discloses that on June 7, 1950, the appeal was reduced to one on law only, but no time was fixed in the judgment entry for the perfecting of the appeal, although the opinion of the Court stated that the appellant would be granted leave to perfect the appeal as provided by said court rule. The appellant refers to the case of Bussard v. Kennedy, 83 Oh Ap, 281, where it is said that under §11564 GC the Court is required to fix a time not exceeding 30 days for the preparation and settlement of a bill of exceptions. This requirement is met by our Court rule previously referred to.

The appeal will not be dismissed, but since there is nothing in the record for the Court to consider the judgment will be affirmed.

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

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OPINION

By THE COURT.

Submitted on motion of the plaintiffs-appellees seeking an order dismissing the appeal on questions of law and fact and reducing the appeal to one on law only for the reason that no appeal bond has been filed within the time provided by law. The record supports the grounds set forth in the motion and the same will be sustained. The appellants will be permitted to file bill of exceptions, assignment of errors and brief in accordance with supplement to Rule VII of this Court.

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

ON MOTION TO DISMISS APPEAL

No. 4405.

Decided September 7, 1950.

The plaintiffs-appellees filed a motion to dismiss the appeal on questions of law and fact for the reason that no appeal bond has been filed in accordance with §12223-6 GC. The motion will be sustained and the case will be retained for determination on questions of law only. See §12223-22 GC.

The appellees have also filed a motion seeking an order requiring the appellants to file a supersedeas bond in order that their rights might be protected. This motion will be overruled, since execution may be issued when no bond is given. Sec. 12223-9 GC. A further motion is filed by the appellees seeking an order restraining the appellants from dumping garbage, refuse, trash, etc., upon the premises or permitting the same to be done. This motion will be overruled as there is an adequate remedy at law, to wit, enforcement of the judgment or a supersedeas bond.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur. Robert W. Newlon, Richard R. Price, Columbus, for plaintiffs-appellees. John F. Seidel, Warren E. Bigony, Columbus, for defendants-appellants.

This is a motion seeking an order dismissing the appeal on questions of law for failing to comply with Supplement to Rule VII of this Court.

The record discloses that on June 7, 1950, the appeal was reduced to one on law only, but no time was fixed in the judgment entry for the perfecting of the appeal, although the opinion of the Court stated that the appellant would be granted leave to perfect the appeal as provided by said court rule. The appellant refers to the case of Bussard v. Kennedy, 83 Oh Ap, 281, where it is said that under §11564 GC the Court is required to fix a time not exceeding 30 days for the preparation and settlement of a bill of exceptions. This requirement is met by our Court rule previously referred to.

The appeal will not be dismissed, but since there is nothing in the record for the Court to consider the judgment will be affirmed.

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

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67 Ohio Law. Abs. 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmillen-v-watts-ohioctapp-1950.

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