Krause v. Henry

OPINION

By CROW, PJ.

This cause was heard on a motion to dismiss the appeal the notice of which appeal recites that it “is on questions of law and fact.” No bond has been given by appellant and the case is not a “chancery” one.

A similar case in all features excepting that a bill of exceptions had been filed in the trial court within the forty days limitation prescribed by §11564, GC, was before the Supreme Court of Ohio and is reported in 134 Oh St 321, where it is held that the appeal should not be dismissed but that it should stand as an appeal on questions of law especially in view of the provision in §11564, GC, which is held to be mandatory, that the court fix a time for preparation and settlement of a bill of exceptions if none has been filed.

The syllabus and reasoning of the opinion in its elucidation, makes it the duty of this court to overrule the motion to dismiss the appeal if not to order a bill of exceptions pursuant to the statutes twice above referred to.

We quote from the opinion at page 326 where it is said:

“We are forced to the conclusion that the only jurisdictional step in an appellate proceeding is the filing of notice of appeal. If that is complied with, even though no bond is filed, the appeal is not to be dismissed but it shall stand as an appeal on questions of law.”

By the words of §12223-4, GC, the “appeal shall be deemed perfected when written notice shall be filed.” The definition of “perfected” given by Webster’s International Dictionary, Second Edition, is “Brought to a state of perfection; completed”, and the language of §12223-6, GC, applicable to an appeal such as the one here is that “no appeal shall be effective as an appeal unless upon questions of law and fact” unless the judgment appealed from is superseded by a bond which is to be filed “at the time the notice of appeal is to be filed.” The dictionary mentioned defines the word “effective” to mean when used as a law term, “in actual operation.”

Plainly, “perfected” and “effective” are not employed in the pertinent statutes, in the same sense.

Under §12223-5, GC, the notice of an appeal need .not “designate the type of hearing upon appeal”, that is, it may omit any or all designation or it may recite one type or both types of hearing desired or mistakenly set forth the type of hearing appellant wishes; and “the notice of appeal may be amended by the appellate court”, no limitation of amendment as to kind or time being prescribed.

The jurisdiction of the Court of Appeals to try cases on appeal on questions of law and fact is limited by Art. IY, Sec. 6, Ohio Constitution, to “chancery cases.”

Sec. 11564, GC, provides that “Whenever an appeal is taken on questions of law and fact and the court of appeals determines that the case cannot be heard upon the facts and no bill of exceptions has been filed in the cause, the Court of Appeals shall fix the time not to exceed thirty days for the preparation and settlement of a bill of exceptions.” Axiomatically, an appeal has been “taken” when it has been "perfected”.

The statute is remedial and if ambiguous must be liberally interpreted to the end that appellant have one trial and one review of his case which it is the thoroughly established public policy of the state to vouchsafe every litigant.

The court having determined that the case cannot be heard upon the facts, not being a chaneery one, the mandatory duty rests upon it to fix the time for the preparation and settlement of a bill of exceptions, which is the period of twenty days from the date of filing the journal entry so ordering.

Persuaded as we are that our former dicisions contrary to the present holding, were erroneous, the same are hereby overruled. Had there not been a bill of exceptions in the case at 134 Oh St 321, the syllabus would be unquestionably authoritative here and an opinion would not be filed herein.

KLINGER, J., concurs.