Ledeox v. Marchetti

OPINION

By THE COURT

The above-entitled cause is now being determined on plaintiff-appellee’s motion to dismiss the appeal for the reason that it appears upon the face of the transcript and papers filed that they are determinable only on a consideration of the facts and that no bill of exceptions has been filed as required by law.

The action orginated in the Municipal Court, and thereafter was appealed to the Common Pleas Court. Motion to dismiss in the Common Pleas Court was sustained upon the identical grounds now presented to us.

Procedurally, it would be improper to dismiss but under the state of the record we have no alternative than to affirm the judgment of the trial court.

It clearly appears that what appellant claims to be a bill of exceptions was not filed within the statutory time. The section cited by appellant fixing fifty days for preparing and filing of bill of exceptions was repealed many years before the institution of this action, and hence has no application. If important, we would have difficulty in determining the document to be a bill of exceptions. It clearly appears that a bill of exceptions presenting the facts would be essential to a determination of the claimed errors. Under the situation we have no alternative but to say that the judgment of the Court will be affirmed and plaintiff’s appeal dismissed.

Costs in this Court will be adjudged against the appellant.

BARNES, P. J., and HORNBECK, J., concur. GEIGER, J., not participating.