Ozias v. Renner

This cause is submitted on motion of C.B. Renner, Harry E. Moots and Alma Moots, defendants, appellees herein, for an order dismissing the appeal for the reason and upon the ground that the judgment appealed from is not appealable on questions of law and fact and for the further reason that the appeal bond was not conditioned in accordance with the order of the Probate Court and was not approved by such court. The appeal is by the plaintiff, Clifford W. Ozias, a devisee, is designated as one on questions of law and fact and is from an order of the Probate Court of Preble county, Ohio, approving the sale of certain real estate. The plaintiff filed an application to set aside the sale to the defendants for the reason that the sale price was wholly inadequate. That application was denied and the sale of the property to the defendants was approved by the court. The order appealed from is not one rendered upon the issues raised by the pleadings. It is merely an order confirming a sale of real estate.

Decisive of this question is the case of Eaton v. Robison,47 Ohio App. 436, 192 N.E. 132, wherein the syllabus is as follows:

"1. The appealability of a case is determined by the pleadings, and the judgment appealed from must be one rendered upon the issues raised by the pleadings.

"2. An order confirming a receiver's sale and distributing the proceeds thereof in a chancery case is not such a judgment as will support an appeal."

The first branch of the motion is well taken, and the appeal on questions of law and fact will not be allowed. However, the case will be heard as an appeal on questions of law.

Section 11564, General Code, provides that whenever an appeal on questions of law and fact cannot be heard and no bill of exceptions has been filed in the cause a time will be fixed, not to exceed 30 days, for the preparation and settling of the bill of exceptions. In accordance with that section, we will grant a period of 30 days within which the plaintiff may prepare and settle a bill of exceptions. If and when a bill of exceptions is filed, the usual time will be granted to the parties for filing briefs.

As to the second branch of the motion which questions the sufficiency of the bond, since the appeal is allowable only on questions of law, any question as to the deficiency in the bond is immaterial.

This court held, in the case of Van Almsick v. Van Almsick, 31 Ohio Law Abs., 396, as follows:

"Under Section 12223-22, G.C., a motion to dismiss an appeal for failure to file a bond will be denied and the appeal allowed to stand for hearing on questions of law."

This branch of the motion is accordingly overruled.

Judgment accordingly.

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