Voight v. Southern Ohio Sav. Bank & Trust Co. ( 1941 )

OPINION

BY THE COURT:

This cause comes before the court upon the appellee’s motion to dismiss the appeal for failure to comply with Rule 7 of the Court, and'upon the appellant’s motion for an order extending the time in which to file assignment of errors and briefs.

The record shows that the judgment appealed from was entered July 3rd, 1941, after a trial to the court, without a jury, at which - evidence was introduced, and the judgment was based on this evidence, but there is no bill containing the evidence.

We are advised by counsel that no bill of exceptions was filed in. the trial court within the time required by law and that,. therefore, this appeal could1 be considered only on the record without such a bill.

The notice of- appeal was filed on July 9th, 1941.

The transcript of the docket and journal entries and the original papers were filed in this court on July 21st, 1941.

No assignment of errors or briefs were .filed in this court during the fifty days allowed by Rule 7, or any request of any sort made for an extension of the time for filing.

On October 10th, 1941, 91 days after the filing of the notice of appeal, the appellant without' leave of court, filed an assignment of errors with the clerk, and on October 23rd, 1941, without leave, filed briefs with the clerk.

The appellee’s motion to dismiss and the appellant’s motion to extend time to file were filed thereafter.

In view of the long delay in filing assignment of errors and briefs, without any sound excuse therefor, and then filing them without leave of court, we are of the opinion that the circumstances require that effect be given to the failure to comply in accordance with the rule.

Accordingly, the motion for leave to extend the time to file is overruled and the motion to dismiss is sustained.

MATTHEWS, PJ., HAMILTON & ROSS, JJ., concur.