Peck v. County Commissioners

OPINION

By BARNES, J.

The above-entitled cause is now being determined on defendant-appellee’s motion to dismiss plaintiff’s appeal, for the reason that the briefs of the appellant were not filed within fifty days from the date of filing of notice of appeal, as provided in, Rule VII of the Court of Appeals.

For approximately three years this court has required strict compliance with Rule VII as to the filing of briefs within the time prescribed, unless for good cause shown time is extended. Counsel for appellant contra motion of the appellee recognize the rule and requisite of strict compliance.

It is the claim of appellant that the briefs were filed within ame, and so the determination of the motion turns on this sole question.

It is conceded that the briefs were not filed within fifty days after filing notice of intention to appeal, and argue that the fifty days „ should date from the expiration of the twenty days given xor filing notice of appeal and not from the actual date of filing. If the theory of tppsiianis be followed, the briefs would Be filed m time.

We had previously decided this, identical question in the case of Anderson v Industrial Commission, Case No. 2853, Court of Appeals, Franklin County, Ohio, (28 Abs 634)) and dismissed the petition. Our decision was in conflict with the case of Gusweiler v Riverview Apartments, Inc., et (22 Abs 242), 7 OO, p. l, and by reason therof the Anderson case was certified to the Supreme Court. Following the suggestion of counsel, we have held the instant case pending the decision of the Supreme Court m the Anderson case, supra. In today’s issue of the Onio Bar (February 20, 1939), 135 Oh St 77, appears the report and decision of the Supreme Court, m which our decision is affirmed.

Following the rule of stare decisis, the motion of appellee in tne instant ea<=e to dismiss for failure to file briefs in time prescribed by the rules, must be sustained, and costs adjudged against the appellant.

HORNBECK, PJ, and GEIGER, J, concur.