127 N.E.2d 50 | Ohio Ct. App. | 1954
This cause is submitted on motion of appellee for an order dismissing the appeal on questions of law and fact on two grounds, first, the action is not appealable on questions of law and fact, and, second, no proper appeal bond was filed as required by law.
The action was instituted requesting a declaration by the court as to the rights, duties and responsibilities of the respective parties with reference to a lease. A temporary restraining order was granted to prevent the defendant from erecting a building pending the final disposition of the action. The request for and the granting of the temporary restraining order did not convert the action into a chancery action. Wall v.Dayton Federation Co.,
The plaintiff, appellant herein, signed an appeal bond on January 13, 1954, more than 20 days after the judgment was entered. However, a motion for new trial was filed, which was overruled by entry filed January 19, 1954. On January 19, 1954, notice of appeal on questions of law and fact was filed, and on the same day the appeal bond was filed. The appeal is taken from the judgment and, also, from the order overruling the motion for new trial. A motion for new trial having been filed, the time within which to perfect an appeal did not begin to run until the entry overruling the motion for new trial was journalized. Section
In the case of Mullins v. Webb, supra, on page 354, the court cited a Nevada case, where the facts were similar to those in the instant case and said:
"In Paul v. Cragnaz,
Under the Ohio statute, the filing date of the bond is the vital factor in perfecting an appeal on questions of law and fact.
Defendants, appellees herein, contend that the bond is not a proper bond under the statute, as it was not approved by the trial judge or the clerk as required by Section
Section
"Except as provided in Section
Section
It will be observed that Section
The appeal bond mentioned in Section
This court has no power to permit the appellant to change, renew, amend or give a new bond in this case, since the time limit within which a proper bond may be filed has long since expired. See Mullins v. Webb, supra, at page 355, and Main v.Cummins Wild West Exhibition Co.,
The motion to dismiss the appeal on questions of law and fact is sustained on both grounds, and the the cause will stand as an appeal on questions of law. Appellant is granted leave to perfect the appeal on questions of law as provided in supplement to Rule VII.
Motion sustained.
WISEMAN, P. J., MILLER and HORNBECK, JJ., concur. *469