DocketNumber： No. 4093
Citation Numbers： 53 Ohio Law. Abs. 223, 85 N.E.2d 403, 1948 Ohio App. LEXIS 945
Judges： Hornbeck, Miller, Wiseman
Filed Date： 1/14/1948
Status： Precedential
Modified Date： 11/12/2024
OPINION
Submitted on motion by the plaintiff-appellee-for an order dismissing the appeal for the reason that Rule VII of this Court has not been complied with by the defendant-appellant in that no assignments of error or briefs have been filed in
The record discloses that the assignments of error and briefs have not been filed in accordance with Rule VII. However, counsel for the appellant has filed an affidavit in which he sets forth the fact that the rule was not complied with because of the illness of Milton L. Farber, one of counsel who signed the notice of appeal. We have carefully examined this affidavit and conclude that the illness set forth constitutes good cause for noncompliance with the rule. The appellee is contending that since the notice of appeal was signed by Milton L. Farber and Samuel L. Zuravsky, that his co-counsel is charged with the duty also of complying with the rule. However, another affidavit is on file which sets forth- the fact that Milton L. Farber had no c'o-counsel in this appeal; that Zuravsky was co-counsel in the Court below, but that he was not further employed for the purpose of prosecuting this proceeding; that his name was signed to the notice of appeal by Milton L. Farber not knowing that he was not to continue as co-counsel.
We therefore conclude that Milton L. Farber has been sole counsel in the case since the filing of the notice of appeal. A similar state of facts arose in this Court in the case of Shank v Union Central, 36 Abs. 265, wherein it was held:
“A motion to dismiss an appeal on the ground that brief, bill of exceptions, and assignments of error have not been filed within the time allowed after filing notice of appeal will be overruled where counsel for appellant shows that about the time he filed notice of appeal his wife was taken ill suddenly and remained so for the period during which Rule 7 operated, and no other counsel was associated with him except for the specific purpose of presenting the case to the jury.”
The motion is therefore overruled and the appellant is granted leave to comply with Rule VII at or before the time of the filing of the entry journalizing this opinon.