Mossholder v. Wiggins

32 Ohio Law. Abs. 365, 1940 Ohio App. LEXIS 1142

Opinion

OPINION

BY THE COURT:

Submitted on motion of “Plaintiff”, “for an order dismissing the appeal in this case and an entry of judgment upon the cross-petition of L. M. Wiggins for Fawn Mossholder, et.”

As we interpret the motion, it is to dismiss the cross-petition of Defendant L. M. Wiggins for failure to file answer-brief in this court within the time provided by Rule VII of the Court of Appeals of Ohio.

Rule VII has application only to appeals on questions of law. The notice of appeal in this case is given on questions of law and fact, and a bond has been posted to assure that the appeal will be in conformity to the notice.

Appellants have filed a brief in this court, but there has been no stipulation as to the evidence upon which the case would be submitted, nor has there been any request for the appointment of a Master Commissioner or to take testimony in this court. Inasmuch as the appeal is on questions of law and fact, it comes into this court for trial de novo. The brief of Plaintiff-Appellant assigns errors and argues the case as though it was brought into this court as an appeal on questions of law.

It will be necessary before the case is submitted that some steps be taken to prepare and present the facts upon which this court is asked to render its judgment.

The motion to dismiss will be overruled.

HORNBECK, PJ., GEIGER & BARNES, JJ., concur.