Rice v. Burt

79 Ohio Law. Abs. 360 | Ohio Ct. App. | 1957

OPINION

Per CURIAM:

This motion comes before this court seeking an order against a surety on an appeal bond filed by the appellants, said motion seeking the assessment of damages under the provisions of §2505.20 R. C. The action came to this court on appeal on questions of law and fact from a judgment and decree entered in the Common Pleas Court of Cuyahoga County for defendants. Upon a trial de novo of the issues in this court, a decree was entered for the defendants, from which decree the plaintiffs appealed to the Supreme Court of Ohio. A stay of this court’s decree was ordered and a release of the funds attached for jurisdictional purposes was likewise stayed upon the plaintiffs having filed a supersedeas bond as provided by law. The Supreme Court on December 7, 1956, dismissed the plaintiffs’ motion to certify the record, and on January 14, 1957, returned its mandate to this court so that on that date the decree of this court became final and the defendants entitled to the funds attached. The defendants are therefore entitled to such damages as they have sustained by reason of their being deprived of the use of the money attached. They are not, however, entitled to attorney fees as claimed.

The court therefore enters a finding against said bond to the extent of the damages sustained and directs the parties to present evidence by affidavit or deposition as to the extent of damages. Upon failure to act on such order, the court will appoint a Special Master to take testimony for the purpose of fixing the damage.

Motion is granted as to damage for loss caused by attachment of money, but overruled as to attorney fees. Exceptions. Order see journal.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.