Rabold v. Rabold

23 Ohio Law. Abs. 126, 1936 Ohio Misc. LEXIS 964

Opinion

OPINION

By THE COURT

The above entitled cause is now being determined on motion of plaintiff seeking an order of dismissal for the claimed reason that appellant has failed to file briefs within time provided for by Rule VIII of the Court of Appeals. As a second ground, claim is made that the action was not appealable.

In the court below, the plaintiff’s action was one for partition. The case proceeded to the point where the trial court on October 22, 1935 entered a decree of partition and appointed commissioners to make partition of the premises. This was the order appealed from. It is very definitely determined by the Supreme Court of this state that an action in partition is one in chancery and therefore appealable. We refer to the case of Wagner v Armstrong, 93 Oh St, 443. Also Johnson et v Deaton et, 105 Oh St, 285.

Being an appealable action and the appeal being perfected, the cause thereby will be tried de novo in our court.

Rule VIII fixing the time for filing briefs does not apply to appeal actions.

When the case is heard de novo it may present different facts than in the court below and thereby it follows that briefs are not required to be filed until after the case is submitted on its facts.

The motion to dismiss will be overruled.

Exceptions will be allowed.

BARNES, PJ, HORNBECK and BODEY, JJ, concur.