Opinion
No. 4022
Decided October 3, 1947.
Appeal — On questions of law and fact — No appeal bond given — Appeal stands as one on law — Reviewing court to fix time for perfecting bill of exceptions.
1. When an appeal is taken on questions of law and fact, but no appeal bond is given as required by Section 12223-6, General Code, the appeal is ineffective as an appeal on questions of law and fact, but stands for hearing as an appeal on questions of law.
2. When an appeal on questions of law and fact is ineffective and the case is retained as an appeal on questions of law, and no bill of exceptions has been filed, the reviewing court is required under the provisions of Section 11564, General Code, to fix a time for the preparation and settlement of a bill of exceptions, which shall not exceed 30 days.
APPEAL: Court of Appeals for Franklin county.
Mr. Horace S. Kerr, for appellee.
Mr. B.N. Murray, for appellant.
This is an appeal from a judgment of the Common Pleas Court of Franklin county in which the plaintiff was granted a decree of divorce from the defendant and an order was made respecting a division of property.
The notice of appeal states that the appeal is on "question of law and fact." No appeal bond was given as required by Section 12223-6, General Code. Because of the failure to give an appeal bond as required by that section, the appeal is ineffective as an appeal on questions of law and fact. The appeal is not dismissed but stands for hearing as an appeal on questions of law.
No bill of exceptions has been filed. When an appeal on questions of law and fact is ineffective and the case is retained as an appeal on questions of law, and no bill of exceptions has been filed, the reviewing court is required under the provisions of Section 11564, General Code, to fix a time for the preparation and settlement of a bill of exceptions, which shall not exceed 30 days. Loos v. Wheeling Lake Erie Ry Co., 134 Ohio St. 321, 16 N.E.2d 467; Parker v. Ingle, 56 Ohio App. 62, 10 N.E.2d 166; Olsen v. Watson, 42 Ohio Law Abs., 411, 60 N.E.2d 621; Krause v. Henry, 30 Ohio Law Abs., 386, 20 O.O., 351, 35 N.E.2d 169.
The court orders this case to stand as an appeal on questions of law and grants to defendant 30 days after the filing of the entry journalizing this decision within which to prepare and settle a bill of exceptions.
Judgment accordingly.
WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.