O'Leary v. Burnett

Ohio Court of Appeals

O'Leary v. Burnett

93 N.E.2d 733, 87 Ohio App. 73, 42 Ohio Op. 302, 1949 Ohio App. LEXIS 590

CourtOhio Court of Appeals

DecidedJuly 16, 1949

Docket2040

StatusPublished

This text of 93 N.E.2d 733 (O'Leary v. Burnett) 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

O'Leary v. Burnett, 93 N.E.2d 733, 87 Ohio App. 73, 42 Ohio Op. 302, 1949 Ohio App. LEXIS 590 (Ohio Ct. App. 1949).

Pincite

Opinion

By the Court.

This cause is submitted on motion to strike tbe bill of exceptions from tbe files and to dismiss tbe appeal for tbe reason that tbe bill of exceptions was not filed witbin tbe time provided by law and former order of tbis court.

Tbe record shows that on March 15, 1949, tbe appeal on questions of law and fact was dismissed and the appeal retained on questions of law. Tbe court ordered that defendant-appellants be permitted to file their bill of exceptions witbin 30 days from tbe date tbe entry was journalized. Tbe bill of exceptions was filed in tbe trial court within tbe 30-day period, to wit, on April 11, 1949. Witbin ten days after the bill of exceptions was settled in tbe trial court, it was filed in tbis court in compliance with tbe provisions of Supplement to Rule VII of tbe Courts of Appeals. Thus it appears that tbe former order and rule of court have been complied with, and that tbe motion is not well taken.

Moreover, the appeal may not be dismissed on tbe ground that there is no bill of exceptions on file where it appears that a bill of exceptions would not be required to exemplify all tbe errors assigned.

Motion overruled.

Miller, P. J., 'Hornreck and Wiseman, JJ., concur.

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By the Court.

This cause is submitted on motion to strike tbe bill of exceptions from tbe files and to dismiss tbe appeal for tbe reason that tbe bill of exceptions was not filed witbin tbe time provided by law and former order of tbis court.

Tbe record shows that on March 15, 1949, tbe appeal on questions of law and fact was dismissed and the appeal retained on questions of law. Tbe court ordered that defendant-appellants be permitted to file their bill of exceptions witbin 30 days from tbe date tbe entry was journalized. Tbe bill of exceptions was filed in tbe trial court within tbe 30-day period, to wit, on April 11, 1949. Witbin ten days after the bill of exceptions was settled in tbe trial court, it was filed in tbis court in compliance with tbe provisions of Supplement to Rule VII of tbe Courts of Appeals. Thus it appears that tbe former order and rule of court have been complied with, and that tbe motion is not well taken.

Moreover, the appeal may not be dismissed on tbe ground that there is no bill of exceptions on file where it appears that a bill of exceptions would not be required to exemplify all tbe errors assigned.

Motion overruled.

Miller, P. J., 'Hornreck and Wiseman, JJ., concur.

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Bluebook (online)

93 N.E.2d 733, 87 Ohio App. 73, 42 Ohio Op. 302, 1949 Ohio App. LEXIS 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oleary-v-burnett-ohioctapp-1949.