Pendleton v. Sharp

62 N.E.2d 641, 76 Ohio App. 343, 44 Ohio Law. Abs. 255, 32 Ohio Op. 84, 1945 Ohio App. LEXIS 574

• Court: Ohio Court of Appeals
• Decided: July 6, 1945
• Docket: 3818
• Status: Published

Opinion

OPINION

BY THE COURT:

An entry has been tendered by the plaintiff-appellant dismissing her appeal. There is no cross-appeal.

Counsel for appellees objects to the journal entry because it is a general dismissal. He asserts that he has no objection to dismissing the issue drawn on the petition and answer thereto, but that by the type of appeal his clients have the right to have issues adjudicated which they brought into the case by affirmative pleading.

The appeal is noted as upon questions of law and fact which, it is agreed, brings the cause up in its entirety for trial. However, the act which makes effective and completes the appeal is the notice which in this case has been filed by the plaintiff. She being responsible for the appeal may choose whether or not she will insist upon pursuing it to trial and judgment in this Court. If that be done, of course all matters raised by the pleadings could and would properly be determined here. However, the assurance to the defendants that they would have their original questions litigated depends altogether on whether- or not the plaintiff elects to pursue her remedy.

The question is one of first impression in this Court; as relates to appeals on questions of law it has been decided at least twice in this state, once by this Court in the fourth syllabus in Miller v Star Company, 57 Oh Ap 485, and by the Court of Appeals for Knox County in the third syllabus of State v Green, 55 Oh Ap 239. We recognize the difference in .the procedure between the type of appeal there under consideration and an appeal on questions of law and fact which is the type of appeal perfected in the instant cause, but the controlling principle is substantially the same.

There is no suggested showing in this Court that the appellee will be unreasonably or unfairly prejudiced by the dismissal as in Phillips v The Provident Life and Trust Co., et al., 17 O. C. C. N. S. 298.

We find no - decision in Ohio by our Supreme Court on the identical question here presented. Outside of Ohio there is contrariety of opinion. The cases most nearly in point and .supporting our position are Hood v Marshall, (N. H.), 45 Atl., 574; Simpson v Gafney, (N. H.), 30 Atl., 1120; Marvel v. Craft, (Neb.), 219 N. W. 242.

We are of the opinion that the appellant may properly dismiss the appeal in this cause in its entirety and that the defendants-appellees may not prevent it.

The tendered entry will be approved and exceptions saved to defendants-appellees.

HORNBECK, P. J., GEIGER and MILLER, JJ., concur.