Worpel v. Board of Liquor Control

OPINION By THE COURT. Submitted on motion of the appellee seeking an order dismissing the appeal for failure to comply with Rule' VII of this Court. Decided July 11, 1951. The record'discloses that the notice of appeal on questions of law only was filed on the 29th day of July, 1950; that the appellant’s assignment of errors and brief were filed on January 2, 1951. It will be noted that there was a failure of compliance, but which the appellant seeks to justify by the filing of an affidavit showing that he has been in bad health and was therefore not able to comply with the rule. The affidavit sets forth that the affiant, Samuel O. Siegel, was confined to a hospital in the early part of October for observation after continuous ill health prior thereto; that he tried the case in the Court below and was familiar with the entire matter. The record discloses that affiant had associate counsel, so the matter of the illness of one of same cannot constitute good cause for the failure to comply. The proper procedure would have been, under such circumstances, for one of counsel to have made an application for an extension of time, which this Court has always been liberal in granting. A computation of time for the filing discloses that the same expired on September 17, 1950, while the affiant did not go to the hospital until the early part of October. Therefore the appellant was in default prior to the affiant’s entry to the hospital. The fact that prior thereto the affiant had been in bad health certainly is not definite and certain as to his physical and mental capacity. Since January, 1935, this Court has adhered to a strict compliance with the rule. See Maher v. Thomas, 23 Abs 146; Keating v. Keating, 49 Abs 575, affirmed in 148 Oh St 671; Costlo v. Strum, 54 Abs 284. The appeal will not be dismissed, but the judgment will be affirmed, as we deem this to be the proper procedure. HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.