Green v. Colvin

OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal for failure to file bill of exceptions within 40 days from the date of the overruling of the motion for a new trial as required by §11564 GC. The notice of appeal designates the same as being on both law and law and fact. The motion will be overruled for the following reasons:

(1) A bill of exceptions may not be necessary to exemplify the errors complained of, no assignment of errors being filed. If it is not, there is no need for one to be filed.

(2) An appeal on law and fact requires a trial de novo and there is no need for a bill of exceptions.

We note that the action is one for damages, which is not a chancery case; therefore an appeal on law and fact may not be maintained. The Court on its own motion will dismiss the law and fact appeal and as required by §11564 and §12223-22 GC, retain the same for determination on questions of law only. The appellant will be granted leave to perfect said appeal in accordance with Supplement to Rule VII of this Court.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.