Darby v. Tiffany , 2 Ohio Law. Abs. 631 ( 1924 )

Condensed Statement

This case came before the Supreme Court on a motion to certify. Salvail brought an action tq foreclose a mortgage upon certain real estate located in Toledo, and for mar-shalling of liens. The Peoples State Savings Bank filed a cross-petition for the foreclosure. Tiffany also filed a cross-petition for the foreclosure of a mortgage. Helmreich filed a cross-petition in Which she alleged that one Fox was is owner of the premises and that, in 1918, he gave her a note and mortgage for a loan of $6,000, and that in 1919 Fox sold and conveyed all of his right, title and interest in and to said premises to Tiffany, subject to said mortgage.

Helmreich asked for a court order that she has a lien for $6,000 and that this lien was prior to any interest claimed by Tiffany and subject only to the liens of Salvail and the Bank. The court entered judgment in favor of Helmreich for $6,000 but dismissed the cross-petition insofar as the pjrayed relief against Tiffany. This judgment was entered March 31, 1924. An appeal bond dated March 4 for $200 was filed. Tiffany moved the Court of Appeals to dismiss the appeal of Helmreich upon the grounds that it had not been properly perfected, that no porper bond had been filed and that the Court of Appeals was without jurisdiction. The Court of Appeals granted this motion, whereupon Helmreich filed a motion to certify in this court. The questions presented to the Supreme Court for adjudication are:

1. Whether the Court of Appeals has jurisdiction to hear a ease upon appeal perfected by a defendant asking for foreclose e and deficiency judgment in an action for foreclosure and marshalling of liens.

2. Whether the Court of Appeals may dismiss an appeal merely because the appeal bond shows upon its face to have been served before the entering of the final judgment.