This cause comes on to be heard upon the motion filed on September 30, 1958, by the plaintiff, appellee herein, which reads as follows:
"Now comes the plaintiff-appellee and moves the court for an order dismissing the within-styled appeal."
The order appealed from by the defendant, appellant herein, was filed in the Common Pleas Court, Division of Domestic Relations, on September 3, 1958. The order of the trial court overruled the motion of the defendant, appellant herein, to change the custody of the minor child of the parties. The entry contained additional orders with reference to visitation rights and certain costs. The appellee contends that the appeal should be dismissed because of the failure of the appellant to properly perfect his appeal by filing an appeal bond as provided for by Section 3109.07, Revised Code.
Chapter 3109 of the Revised Code bears the heading "Infants." Section 3109.01 deals with a definition of the age of majority. Section 3109.02 makes certain exceptions for veterans *Page 517 as to their right to contract. Section 3109.03 deals with the right of parent to custody. Section 3109.04 provides for court decision as to custody as between parents. Section 3109.05 deals with the support of children. Section 3109.06 deals with the certification by any court other than a Juvenile Court respecting the care, custody, and support of a child under eighteen years of age to a Juvenile Court for further proceedings, and makes other provisions relative to custody. The last section in the chapter is Section 3109.07, which reads as follows:
"An appeal to a higher court may be had upon the appellant's giving bond, with one good surety, to the adverse party, approved by the court from whose decree the appeal is taken, in a sum to be determined by it, but not less than accrued costs and a fair estimate of accruing costs. The court before whom such appeal is heard may decree the costs of the proceeding against either party, or divide them in any proportion."
In Volz v. Volz, 167 Ohio St. 141, 146 N.E.2d 734, the Supreme Court, in paragraph four of the syllabus, held as follows:
"4. The word `appeal' as used in Section 8005-7, General Code, and Section 3109.07, Revised Code, has the meaning specified in subdivision (A) of Section 2505.01, Revised Code."
Section 2505.01 (A), Revised Code, which is referred to, is, in part, as follows:
"(A) `Appeal' means all proceedings whereby one court reviews or retries a cause determined by another court, an administrative officer, tribunal, or commission."
Since appeal, as defined by Section 2505.01 (A), Revised Code, includes a review of the case as well as a retrial of the case, we feel bound to follow the majority opinion in Volz v.Volz, supra (167 Ohio St. 141), respecting the manner in which one may appeal under the chapter on infants, which includes Sections 3109.03 to 3109.07. Since the Supreme Court, in that opinion, held that Section 3109.07, Revised Code, made the giving of a bond a condition of the right of appeal, and the time within which the appeal must be perfected will necessarily be as specified in Section 2505.07, Revised Code, we conclude that the appeal herein should be dismissed for the reason that it was not perfected within the time provided for by Section 2505.07, *Page 518 Revised Code. While the notice of appeal from a judgment of September 3, 1958, was filed on September 18, 1958, and amended on September 19, 1958, yet no bond was fixed by the trial court as required by law or filed until September 30, 1958.
On this question of fixing bond, in Gregg v. Mitchell,99 Ohio App. 350, 133 N.E.2d 645, paragraph three of the syllabus, we find the following:
"3. Section 3109.07, Revised Code, which provides, interalia, that `an appeal to a higher court may be had upon the appellant's giving bond * * * approved by the court from whose decree the appeal is taken, in a sum to be determined by it,' prescribes the only method by which an appeal may be effected from an order fixing the custody of a child."
While ordinarily the notice of appeal is the act which is jurisdictional, Volz v. Volz, supra (167 Ohio St. 141), holds otherwise in this particular type of appeal.
The motion of the appellee to dismiss the appeal is, therefore, sustained; and in this particular case, although amended to an appeal on questions of law and fact, it will not be retained on questions of law.
Since the decision in Volz v. Volz, supra, is clear and controlling upon this court, the application for oral hearing on this motion is denied.
Motion sustained.
BRYANT and MILLER, JJ., concur. *Page 519