Ahlgrim & Son v. Wolf

This cause comes before the court upon the defendant's motion to dismiss the appeal for failure of the plaintiff to give the bond required by Section 11866, General Code, upon an appeal from an order of the Common Pleas Court, discharging an attachment.

This action originated in the Municipal Court of Cincinnati. That court discharged the attachment and the plaintiff, within the time fixed by that court, filed notice of appeal to the Common Pleas Court and gave a bond conditioned according to Section 11866, General Code.

The Common Pleas Court affirmed the order of the Municipal Court discharging the attachment. Notice of appeal to this court was then filed within the time allowed, but no additional bond was filed until after such allotted period had elapsed and this bond was filed in the Common Pleas Court.

The motion to dismiss this appeal, therefore, raises the question of whether the giving of a bond under Section 11866, General Code, is required in order to give this court jurisdiction to review a judgment of the Court of Common Pleas affirming an order of the Municipal Court of Cincinnati, discharging an attachment.

That such a bond was required prior to the Appellate Procedure Act of 1936, in order to give the Common Pleas Court jurisdiction to review the order of the Municipal Court of Cincinnati, we think clearly resulted from the operation of Section 1558-26, General Code, making the appellate procedure from the Common Pleas Court applicable to appeals to that court. Had this action originated in the Common Pleas Court and had it discharged this attachment prior to January 1, 1936, the effective date of the Appellate Procedure Act, it would have been necessary to give the bond required by Section 11866, General Code, in order to confer jurisdiction upon this court, to review that order. That being true, Section 1558-26, General Code, would have imposed the same condition upon an appellant from the Municipal Court of Cincinnati.

But Sections 11865 and 11866 were amended and reenacted as a part of the Appellate Procedure Act of 1936 (116 Ohio Laws, 104). As amended, they read in part as follows:

Section 11865. "When an order discharging an order of attachment is made, and a party affected thereby excepts thereto, the court or judge shall fix the number of days, not to exceed thirty, in which such party may file his * * * appeal, and during which it shall be filed and the attached property held by the sheriff or other officer."

Section 11866. "The party who * * * appeals must give a bond to the adverse party, with surety to be approved by the clerk of the * * * Court of Appeals, in double the amount of the appraised value of the property attached * * *."

Now the General Assembly would not have provided for the approval of the bond by the clerk of the Court of Appeals had it intended to impose the giving of a bond as a jurisdictional act. This is made certain by Section 12223-4, General Code, by which it enacted that: "The appeal shall be deemed perfected when written notice of appeal shall be filed with the lower court" and that "no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional."

We, therefore, hold that while failure to give the bond required by Section 11866, General Code, when ordered by the Court of Appeals, would be ground for dismissal, the court has jurisdiction upon filing of the notice of appeal in the Common Pleas Court.

What we have said applies to cases in which the appeal is from an order of the Common Pleas Court discharging an attachment. In the case at bar the attachment was discharged by the Municipal Court of Cincinnati, and not by the Common Pleas Court. All the latter court did was to find that no error had been committed, and, for that reason, affirmed the order. The requirement of Section 11866, General Code, has no application to such a judgment of the Common Pleas Court.

For these reasons, the motion to dismiss the appeal is overruled.

Motion Overruled.

HAMILTON, P.J., and ROSS, J., concur.

ON THE MERITS.