Columbus v. Balzan, No. 3520

No. 3520 | Ohio Ct. App. | Nov 4, 1942

OPINION

By HORNBECK, J.

This is an appeal from a judgment of the Common Pleas Court dismissing the appeal of appellant to that court from the Municipal-Court. The entry of dismissal recites the filing of the motion of the appellee, the City of Columbus, to dismiss the appeal and that it is sustained. The ground of the motion was the failure of appellant to file his assignment of errors.

The brief of the appellant in this court is devoted exclusively, to the question whether or not in the instant case the motion for new trial filed more than three days after judgment should have" been entertained by the trial judge. The question thus briefed may have been decisive in the trial court but was not determined by the order from which the appeal to this court is prosecuted. The record discloses that neither assignments of error or briefs were, filed by the appellant with the transcript in the Common Pleas Court, or at any time prior to decision on the motion to dismiss. Section 13459-3 GC provides:

“The brief of the appellant shall be filed with the transcript and shall contain the assignments of error relied on in such appeal.”

We have heretofore held in two cases, State v Jarcho, 65 Oh Ap, 417, and State v Smith, 33 Ohio Law. Abs. 612" court="Ohio Ct. App." date_filed="1941-01-28" href="https://app.midpage.ai/document/state-ex-rel-mayer-v-lloyd-6747458?utm_source=webapp" opinion_id="6747458">33 Abs 612, that the quoted portion of the statute is a mandatory requirement. Judge Clifford, therefore, acted clearly in conformity with the law of this jurisdiction in dismissing the appeal.

Judgment affirmed.

GEIGER, PJ., and BARNES, J„ concur.