Graham v. Green

OPINION By LEVINE, J. The sole question presented to us on the motion to dismiss appeal is the ground set forth in the motion, namely, that the appellant failed to file an appeal bond as required by §12223-6, GC. It is contended by defendant, appellee, that the appellant having chosen to appeal on questions of law and fact he thereby became obligated under the statute to file an appeal bond and that the failure to file such appeal bond nullifies the notice of appeal; in other words that no appeal whatsoever was perfected to this court. The plaintiff, appellant, refers this court to §12223-22, GC, under title, “Appeals on Questions of Law and Fact” which reads as follows: “2. Whenever an appeal on questions of law and fact is taken in a case in which it is determined by the Appellate Court that the appellant is not permitted to retry the facts, the appeal shall not be dismissed, but it shall stand for hearing on appeal on questions of law.” The construction given by appellant to this section is; if for any reason the appeal on law and fact is not perfected, that the appeal nevertheless stands for hearing as an appeal on questions of law; that if, after notice on questions of law and fact is filed, the appellant fails to file an appeal bond, the only consequence would be that the appellant will not be permitted to retry the facts but since under the statute it still stands for hearing as an appeal on questions of law, that the appellant may still have a review as under the old error proceedings. In several matters of a similar nature which have come to our attention, we sustained this latter view and we therefore hold that since the notice of appeal on questions of law and fact was filed in time, that the failure to file a bond has but one legal consequence, namely, the appellant will not be permitted to retry the facts as a de novo trial, but that under the clear language of the statute the case still stands as an appeal on questions of law which require a review by this, court as under the old error proceedings. The view herein expressed is, in our opinion, in conformity with a liberal construction of the new appellate procedure act and in accordance with the spirit thereof. TERRELL, J, concurs. LIEGHLEY, PJ, dissents.