State, Ex Rel. Merrill v. Moore

This cause is submitted on motion of plaintiff, appellee herein, to dismiss the appeal on the ground that defendant, appellant herein, has failed to comply with Rule VII of this court.

This is an appeal on questions of law. The action originally was a bastardy proceeding. The defendant was found to be the reputed father of the child. The order of the court under date of May 24, 1947, in part provided that the defendant pay to the complainant, Joy B. Merrill, the sum of $5 per week until further order of the court. On motion of the complainant to require the defendant to show cause why he should not be held in contempt of court for failure to make the support payments, the court on December 18, 1947, found the defendant guilty of contempt of court and pronounced sentence. From this judgment this appeal was taken.

Does Rule VII of this court control? If Rule VII applies, the motion to dismiss is properly filed and must be sustained since defendant failed to file his assignments of error and brief within fifty days after filing notice of intention to appeal.

Rule VII applies only to an appeal in a civil action. It has no application to an appeal in a criminal proceeding. State v.Jarcho, 65 Ohio App. 417, 421, 30 N.E.2d 444. Is this a civil or criminal proceeding? While bastardy proceedings possess the attributes of both criminal and civil proceedings, they are essentially civil. In 5 Ohio Jurisprudence, 543, Section 5, is found this statement:

"Bastardy proceedings are partly of a civil and partly of a criminal nature, partaking of both, and in fact not strictly either. The Ohio courts, while designating bastardy proceedings as ``quasi criminal,' are inclined to place them in a civil category. In fact, a provision of the Code of 1853 specifically excepted the mode of proceeding in bastardy from the operation of the Code, which was exclusively a Code of Civil Procedure, and the Supreme Court has stated that, by thus recognizing the necessity of such special exception to accomplish that end, the Code recognizes the essential character of bastardy as a civil proceeding. This provision has reference to proceedings under the Bastardy Act strictly, and not to proceedings to review them on error. This being true, the courts have applied various provisions of the Code of Civil Procedure to such actions.

"It has been held that the prosecution of a bastardy case rests in control of the Code of Civil Procedure, as in ordinary civil cases, except where limited by the statutes, the limitations having reference to the public interests. It may be stated generally, then, that bastardy proceedings are controlled by the Code of Civil Procedure."

See State, ex rel. Pennington, v. Barger, 74 Ohio App. 58,57 N.E.2d 815, and cases therein cited.

Is the contempt charge in the instant case a civil or criminal proceeding? Contempt charges may be either civil or criminal. A discussion of this subject is found in 9 Ohio Jurisprudence, 20, Section 5, in which it is stated that:

"Criminal contempts are those which are committed in the presence of the court and disturb its administration of justice either physically and directly, as by disorderly misconduct, or morally and indirectly by bringing the administration of justice into public disgrace. Criminal contempts are all acts committed against the majesty of the law, or against the court as an agency of the government, and, in which, therefore, the whole people are concerned."

On page 22 of the same work it is stated that:

"Civil contempt has been defined as that which exists in failing to do something ordered to be done by the court in a civil action for the benefit of the opposing party therein. In other words, civil contempts are those instituted to preserve and enforce the rights of private persons, — they are civil, remedial and coercive, whereas a commitment for a criminal contempt is punitive."

Applying those tests to the record in this case, we conclude that this action was one of a civil nature and Rule VII controls the time within which assignments of error and brief of the defendant-appellant are required to be filed.

This court has consistently ruled that where the appellant fails to file assignments of error and brief within fifty (50) days after the filing of notice of intention to appeal, a motion to dismiss the appeal will be sustained. Section 12223-21, General Code; Anderson v. Industrial Commission, 135 Ohio St. 77, 19 N.E.2d 509; Fulkerson v. Roxanna Canning Co., 26 Ohio Law Abs., 607; Tucker v. Fergus, 30 Ohio Law Abs., 508; Lair v.Lair, 33 Ohio Law Abs., 544, 35 N.E.2d 850; Parrett v.Parrett, 42 Ohio Law Abs., 413, 60 N.E.2d 736.

Motion to dismiss the appeal is sustained.

Motion sustained.

WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.