Nickerson v. Nickerson ( 1949 )

This cause is submitted on motion of defendant Margaret Nickerson, appellee herein, to dismiss the appeal or affirm the judgment on the ground that no bill of exceptions, assignments of error or brief had been filed by plaintiff, appellant herein.

Notice of intention to appeal on questions of law was filed on October 27, 1948. The failure to file a bill of exceptions within the time prescribed by law does not necessarily require the dismissal of the appeal. If the errors complained of appear on the face of the record a bill of exceptions would not be required. There being no assignments of error, the court can not determine whether a bill of exceptions is required. The motion will be overruled on that ground.

The filing of assignments of error and brief is controlled by Rule VII which requires the appellant to file the same within 50 days after filing notice of appeal. No good cause has been shown for failure to file assignments of error and brief within the required time.

This court has consistently held that the failure of the appellant to file assignments of error and brief within the time required by Rule VII is ground for dismissal of the appeal.Anderson v. Indus. Comm., 135 Ohio St. 77, 19 N.E.2d 509;Peck v. County Commrs., 28 Ohio Law Abs., 702; Seifer v. Indus.Comm., 29 Ohio Law Abs., 52; Brown, Gdn., v. Brown, 35 Ohio Law Abs., 527, 42 N.E.2d 456; State, ex rel. Merrill, v. Moore, 52 Ohio Law Abs., 301, 82 N.E.2d 765.

The motion to dismiss the appeal on the latter ground is sustained.

Motion sustained.

MILLER, P.J., HORNBECK and WISEMAN, JJ., concur.