Ebert v. Ebert

BY THE COURT

Counsel for defendants in error have filed and submitted to this court a motion in which they ask, First, that the proceedings in error be dismissed for the reason that Rule No. 8 has not been complied with in respect to the filing of briefs. Second, that the plaintiff in error be required to secure the costs herein for the reason that the plaintiff in error is a non-resident of Franklin County, Ohio, residing' in Baltimore, Maryland. The motion also asks that plaintiff in error be required to give a stay bond.

The brief of counsel for plaintiff in error was not filed within the time prescribed by Rule 8 but was filed before our attention was called to this motion. The record shows that the brief of counsel for plaintiff in error and also the brief of counsel for defendant in error are on file and the case is therefore ready for hearing at such time as the court may assign the same. Under the circumstances this branch of the motion may be overruled.

As to the second branch of the motion we find the affidavit of counsel for defendants in error to the effect that plaintiff in error is a non-resident of the state of Ohio. We find nothing in the record contradicting this affidavit and therefore assume that the facts stated in the affidavit are conceded to be true. §11614 GC provides for the giving of security for costs by a non-resident. We think this provision of the statute should be complied with. The clerk advises us that the costs already incurred, together with the probable costs in this court would amount to about $110.00. He further advises us that there has been deposited as security for costs the sum of $25.00. The plaintiff in error will, therefore, be required to give additional security for costs in the sum of $100.00 within fifteen days from this date. Failing so to do the case may be dismissed at costs of plaintiff in error.

We know of no provision by which we can require a stay bond to be given.

HORNBECK, PJ, KUNKLE and BARNES, JJ, concur.