Union Sand & Supply Corp. v. Fairport Harbor

190 N.E.2d 36, 90 Ohio Law. Abs. 599, 1960 Ohio App. LEXIS 787

• Court: Ohio Court of Appeals
• Decided: February 11, 1960
• Docket: No. 638
• Status: Published

Opinion

Grirrith, P. J.

Motion of defendant-appellee to dismiss the appeal of plaintiff-appellant is overruled.

The paramount relief sought in this action is chancery in nature in that the plaintiff is seeking an injunction and testing the constitutionality of a village ordinance.

Rule V of the Rules of Practice of the Courts of Appeals lays out the pathway for procedure with respect to evidence, briefs and arguments.

In the instant case it appears that the notice of appeal was duly filed, accompanied by the requisite bond and praecipe, and the complaint is that the appellant has not complied with Sections 1, 2 and 3 of Rule V.

The Court of Appeals of the Seventh Appellate District considers these rules as procedural only and not mandatory in nature.

Clearly appellee is entitled to a reasonable time in which to brief its case after all the evidence is in.

It is incumbent upon the appellant to produce evidence either by way of stipulation in writing, by deposition, or by taking of testimony by a referee appointed by the court.

Failure on the part of the appellant so to do would constitute a valid reason for dismissal of appellant’s appeal on the grounds of failure to prosecute.

Such being the case it is not now necessary for the court to set a time within which appellee may file its brief.

Motion overruled.

Phillips and Donahue, JJ., concur.