Gahren, Dodge & Maltby v. Parkersburg National Bank

Opinion op the Court by

Chiep Justice Hobson—

Overruling motion.

Tbe briefs for both the parties on the merits having been filed, this appeal was regularly submitted on the call of the docket on September 26, 1913. Pending the submission, appellee has entered a motion that appellant, Gahren, Dodge & Maltby be required to execute bond for cost; this motion having been entered on October 28,1913.

The judgment of this court relates to the date of the submission, and after the submission of the appeal on the merits, no dilatory plea can be entertained. We have often held that a motion to dismiss the appeal for informality or because it was not taken in time,- cannot be heard unless made before submission. The same rule must of necessity apply to a motion for bond for cost. Wheelin v. Kirtley, Hardin 540.

In addition to this, one of the appellants is a resident of the State, and has the right to prosecute the appeal without executing a bond for cost. The rule is that a bond for cost will not be required where one of the appellants is a resident of the State, and another is a nonresident; the reason being that the resident has the right to prosecute his appeal and to join such parties as co-appellants as may be proper, and if he could not do this, confusion and injustice to him might result. The statute only applies where a bond for costs may be required of -all the appellants properly joined as such.

Motion overruled.