In re Estate of Green ( 1941 )

OPINION

BY THE COURT:

The above entitled cause is now being determined on appellee’s motion to dismiss appeal on the claimed ground that the finding and judgment of the Probate Court on exceptions to inventory and appraisements is not appeal-able. In support of the motion appellee cites the following cases:

In Re: Estate of Chipman, 13 Oh Ap 186.

In Re: Estate of Gurnea, 111 Oh St 715.

Kosinski v Rochowiak, 40 Oh Ap 299.

The cited cases in their language are supporting of plaintiff’s motion but the difficulty is that under the new procedural act the term “appeal” has an entirely different meaning than it did at the time of the decisions in the cited cases.

Formerly, appeal was a chancery review and error was presented through petition in error. At the present time all reviews are referred to as appeals; a chancery appeal to our courts is defined as an appeal on questions of law and fact and an error case is defined as an appeal on questions of law. Appellant in the instant case erroneously stated the appeal on questions of law and fact instead of an appeal on law. Appellant was entitled to appeal from the judgment of the Probate Court to our court but only as an appeal on law. The courts of this state have universally held that an appeal erroneously designated as an appeal on law and fact will not be dismissed but will hold the case for determination as an appeal on questions of law and fix a time for a preparation and allowance of a bill of exceptions. We so hold in this case.

The motion to dismiss will be overruled. Thirty days will be given for preparation and allowance of the bill of exceptions.

GEIGER, PJ., BARNES, & HORNBECK, JJ., concur.