Wade v. Smith , 81 Ohio Law. Abs. 321 ( 1958 )

OPINION

By PETREE, PJ.

Motion to dismiss was filed by plaintiffs, appellees herein. The motion reads as follows:

“Now come plaintiffs-appellees and move the Court for an order dismissing the appeal of defendants-appellants for failing to perfect their appeal within rule as required by law.”

Appellees urge that because nothing was done by defendants, appellants herein, to comply with Rule V of this court, the a” dismissed and not retained on questions of law. Volz v. Volz, 167 Oh St 141, is cited in support of that contention.

We cannot go so far. Volz v. Volz, supra, was based upon a case where an appeal was under §3109.07 R. C., and not under the general appeal sections, §§2505.04 to 2505.45 R. C.

In the instant case, we hold that the motion should be sustained in so far as the law and fact appeal is concerned; but since the appeal is general, the general statutes apply.

In Volz v. Volz, supra, the first paragraph of the opinion, found at the bottom of Page 143, contains the following language:

“Ordinarily, where there is an appeal on questions of law and fact to the Court of Appeals from a judgment of the Common Pleas Court and no appeal bond is filed (see §2505.06 R. C.), the Appeal should not be dismissed but should stand for hearing as an appeal on questions of law. See §§2505.03 and 2505.23 R. C., and Bauer v. Grinsted, 142 Oh St 56, 50 N. E. (2d), 334. However, although §2505.03 R. C., states that ‘every * * * decree * * * may be reviewed as provided in §§2505.04 to 2505.45 inclusive, R. C.,’ it also states that this may be done ‘unless otherwise provided by law.’ The Court of Appeals apparently determined that the review in the instant case should not be merely as provided in §§2505.04 to 2505.45 R. C., which are the general statutes relating to appeals, because it is ‘otherwise provided by iaw’ in §3109.07 R. C., which is a specific statute relatirig to appeals from decrees of the kind sought to be reviewed in the instant case.”

The motion to dismiss will be sustained as an appeal on law and fact and retained on questions of law. Assignments of error and appellants’ brief may be filed within thirty days from entry.

Motion sustained as limited above.

BRYANT and MILLER, JJ, concur.