Price Bros. v. Walters

[443] OPINION By THE COURT: Submitted on motion of defendants-appellants, Ella Rabinowitz and Hyman Rabin, to dismiss appeal of defendant-appellant, William H. Phillippi, for failure to file assignments of error and briefs within the time prescribed by Rule VII. Defendant-appellant, William H. Phillippi, gave notice of appeal upon questions of law on July 22, 1950. On May 22, 1951 assignments of error were filed, and on May 26, 1951, the motion to dismiss was filed. On June 1, 1951' appellant, Phillippi, filed a motion for leave to file briefs. This Court has consistently ruled that where the appellant fails to file assignments of error and briefs within fifty days after filing of notice of intention to appeal on questions of law a motion to dismiss the appeal will be sustained unless good cause be shown for non-compliance with the rule. See Anderson v. Industrial Commission, 135 Oh St 77, 19 N. E. (2d) 509; State ex rel. Merrill v. Moore, 83 Oh Ap 525, 82 N. E. (2d) 323; Brown, Gdn., v. Brown, 35 Abs 527, 42 N. E. 456; Seifer v. Industrial Commission, 29 Abs 52; Peck v. County Commissioners, 28 Abs 702. The appellant has not shown good cause for non-compliance with the rule. Any factual development in the trial in this Court on another appeal on law and fact taken by another appellant in this case which may support the claim of Phillippi is not “good cause” for failure to comply with the rule. Furthermore, the question raised by the appellant, Phillippi, is factual and no bill of exceptions has been filed. Motion to dismiss will be sustained and motion for leave to file briefs will be overruled. So ordered. HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.