Parker v. Ingle

OPINION HORNBECK, J. The plaintiffs, appellants, by their application recite that they filed notice of their intention to appeal on questions of law and fact from a “decision” of Common Pleas Court against them and in fav- or of appellee, William Hilt, that they failed to give bond within the time prescribed by law and are desirous of prosecuting their appeal as an appeal on questions of law. The motion of the appellee is to strike the application of the appellants from the files for the following reasons : 1. The said application is not executed by the proposed appellants, but is signed by an alleged attorney or agent. 2. Said application was not filed within the time stipulated for perfecting an appeal as prescribed by statute. 3. The notice of appeal upon which said application is predicated was and is defective, in this, that it was executed and filed by an agent without authority and without a contract of employment. 4. Said alleged notice of appeal proposes an appeal upon law and fact and no bond has been given or filed with the Clerk of Courts, nor has any application been made to the trial court to fix said bond within the time prescribed by statute. 5. The Bill of Exceptions, Bond and Assignment of Errors of the alleged appellant were not filed within the time limit fixed by Rule 7 of the rules of this court, or as required by the statutes of this state on error proceedings, as more than seventy days have elapsed since the filing of th'e decree and said alleged notice of appeal. The first and third branches of this motion challenge the capacity of counsel, who makes the application on behalf of the appellants to act for them either as attorney or agent. We have considered these branches of the motion upon oral presentation of counsel and upon affidavit and letter supporting the same. *520 *519 We would hesitate to hold that counsel who now prosecutes the appeal was not authorized, when assisting appellants in the trial court, to give notice of appeal *520 when a judgment of the trial court was entered against the appellants. This very proper precautionary measure having been taken, the cause is in this court ■ and unless and until the appellants apprise this court that counsel who purports to act for them is not so authorized, we would not so hold. If counsel appearing for the appellants does not represent them they have the right on their own motion to come into this court and dismiss the appeal. If it is their purpose or desire so to do, we assume that they would make it known to the court. The first - and third branches of the motion must therefore, be overruled. The motion of the appellants and the second, fourth and fifth branches of the motion of appellee raise the same question, namely, whether or not the purported appeal of appellants is in this court for any purpose. The facts in this case so far as are necessary to exemplify the questions raised are that a judgment was entered in Common Pleas Court against the appellants. Within the time prescribed by §12223-4 GC notice of appeal was duly filed with the trial court. No appeal bond was given as provided in §12223-6 GC. The cause is one which is appealable on questions of law and fact. It is the claim of appellants that in the situation presented this court is required under §12223-22(2) GC to consider that the' cause stands for appeal on questions of law and thereupon, under §11564 GC, to fix a time for the preparation and settlement of a Bill of Exceptions. It is the claim of the appellee that by virtue of §12223-6 GC no bond having been given on appeal, the appeal is not effective for any purpose. The question presented requires a consideration of several of the.sections of the New Appellate Code. We feel safe in starting with the proposition that the underlying purpose of the New Appellate Code is to simplify the procedure whereby a party against whom an order or judgment has been entered may have a review of that judgment or order in an upper court. The desideratum of the act is to assure a litigant that having observed certain jurisdictional requirements his case will be reviewed on appeal, the type of appeal designated in the notice or the failure to designate the kind of appeal not controlling in any sense the requisites to be met to effectuate the appeal. This purpose is reflected in §12223-4 GC which provides: “The appeal shall be deemed perfected when written notice of appeal shall be filed with the lower court, tribunal, officer or commission * * * After being duly perfected, no appeal shall be dismissed without notice to the appellant, and no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional.” This language is as plain as it can be stated that the one and sole requisite to the accomplishment of thetransfer of the case to an upper court for review is the giving of written notice of appeal within the time provided in §12223-7 GC, which in the instant case is twenty days after the judgment. Sec 12223-6 GC provides: “Except as. provided in §12223-12 GC (the section relieving named fiduciaries from the necessity of giving the bond) no appeal shall be effective as an appeal upon questions of law and fact unless and until the order, judgment or decree appealed from is superseded by a bond in the amount and with the conditions as hereinafter provided and unless the said bond be filed at the time the notice of appeal is required to be filed.” Does the language of this section overcome that portion of §12223-4 GC which provides that no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional. We are of opinion that it does not. The effect of a failure to give the bond is to render the appeal ineffective as an appeal on questions of law and fact. That is to say, that if no bond is given within the time required, such failure renders inoperative any possibility of having the appeal proceed as upon questions of law and fact. If such interpretation is not given then the requisite that a bond be given is tantamount to a jurisdictional requirement. Further light can be gleaned as to the proper interpretation of these two sections in their relation to each other from some of the subsequent provisions of the act. §12223-22 GC provides: *521 “Appeals on questions of law and fact may be taken: (1) Prom any court, tribunal, commission or officer to any Court of record as may be provided by law. (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.” (Emphasis ours) It will be noted that if the Appellate Court determines that the appellant is not permitted to retry the facts, the appeal shall not be dismissed. It may be urged with some force that the determination in contemplation of the section is that which is made when all the requisites of an appeal on law and fact have been observed but because the court cannot find that it is such a case as was cognizable in chancery at common law and, therefore, not appealable on law and fact it cannot be so heard. Such a construction, however, would preclude any review on law only where no bond had been given, which type of review could have been assured without bond had the appellant designated his appeal as one on questions of law or had made no designation in his notice of appeal. When an appellant has failed to give the bond required to make effective his appeal on questions of law and fact he has thereby made the determination of the Appellate Court certain to effect that the appellant is not permitted to retry the facts and he is remanded to his appeal on questions of law only. It has, however, been urged that this interpretation of the section will result in unusual and unnecessary delay. Obviously, it is true that some delay will be- caused by such construction and the only manner in which such delay can be kept to a minimum is for counsel for the appellee to act promptly by appropriate motion as soon as it appears that the appellant has not given the bond. The court also can be helpful in expediting the hearing of appeals by promptly assigning for hearing motions to require determination that the appellant is not permitted to retry the facts and to fix a time for the preparation and settlement of a bill of exceptions. The amendment and addendum to §11564 GC is mandatory in terms, as follows: “Provided, whenever an appeal is taken on questions of law and fact and the Court of Appeals determines that the case cannot be heard upon the facts and 'no Bill of Exceptions has been filed in the cause, that the Court of Appeals shall fix the time, not to exceed thirty days, for the preparation and settlement of the Bill of Exceptions.” This amendment is in. accord with the spirit of the new Appellate Procedural Act, namely, to assure a litigant a review of this cause if the jurisdictional requisite as to notice has been observed. We, therefore, determine as we have heretofore held, that the giving of a bond under §12223-6 GC is not a jurisdictional requirement and though it renders the attempted appeal on questions of law and fact ineffective, it does not prevent the prosecution of an appeal on questions of law. This opinion is probably unnecessary because the Court of Appeals of Cuyahoga County, in Graham v Green, O L Rep March 1, 1937, at page 477, 23 Abs 330, came to the same conclusion here reached on the question presented and the Supreme Court has refused a motion to certify, Ohio L Rep, March 29, 1937, p 12. However, this action of the Supreme Court was taken after this opinion had been dictated and we, therefore, release it as it may be helpful to the profession in this jurisdiction. It is urged in the memorandum of counsel for appellee that Graham v Green, supra, may differ from the instant case in that it did not appear that the appeal which was there under consideration was properly one of law and fact. This' position is not tenable because it clearly appears early in the dissenting opinion of Judge Leighley that the petition prayed for an accounting and equitable relief. The motion of the appellee will be overruled in all of its branches, the motion of appellant will be sustained; the entry may'! recite that the court -has determined that the appellant is not permitted to retry the facts and that the appeal shall stand for hearing on appeal on questions of law and and that as no bill of exceptions has been filed in the cause the appellant will be given thirty days within which to have a. bill of exceptions prepared and settled. *522 (BARNES, PJ, .concurs). (GEIGER, J, concurs in overruling the first and third branches of Appellee’s motion)