Kincaid v. Dawson

OPINION By THE COURT. Submitted upon motion of W. H. Sandusky, appellee, seeking an order to dismiss the appeal for the following reasons: [441] 1. The appeal herein is on an order quieting the title of this appellee in and to real estate and the notice recites the appeal is on law and fact, while no appeal bond was signed and filed at the time notice of appeal was filed as required by §12223-6 GC. 2. No precipe for transcript of docket and journal entries was filed when notice of appeal was filed as reqquired by §12223-8 GC. The first branch of the motion is well taken as the giving of an appeal bond is a requisite necessary to perfect the appeal on law and fact. Sec. 12223-6 GC. However, the appeal will be retained on questions of law as provided by §12223-22 GC. The’ appellee urges that no questions of law are involved in this appeal, but this cannot be determined until the assignments of error have been filed. The appellant will be given the time allowed under supplemental Rule VII of this Court for the filing of bill of exceptions, assignments of error and brief. The second branch of the motion will be overruled as the failure to file a precipe for the transcript of docket and journal entries is not ground for dismissing the appeal. See General Schuyler Fire Insurance Co. v. Shustick, 34 Abs 498. MILLER, PJ, .HORNBECK and WISEMAN, JJ, concur. ON MOTION SEEKING AN ORDER No. 4308. Decided September 13, 1949. By THE COURT. Submitted on motion by the defendant-appellant B. N. Murray, seeking an order striking from the files the brief of the appellee for the reason that the same was not filed in accordance with Rule VII of this Court. This rule has never been strictly enforced by this Court where no injury has been suffered by the appellant by reason of the delay. Upon the facts presented and in the exercise of our discretion the motion will be overruled. MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.