This was an action for money only filed in the Court of Common Pleas of Butler county. The case was tried to the court without a jury. On July 25, 1938, the court entered its judgment in favor of the plaintiff against Owen Cramer and dismissed the other two defendants. On the same day a motion for a new trial was filed and on the same day overruled. No judgment or final order was made in the entry overruling the motion for new trial or thereafter. On the same day the plaintiff gave notice of appeal on law and fact from the judgment. No bond was given.
Motion to dismiss the appeal has been made.
The motion must be granted: First, because there is no final order for the court to review (Boedker v. Warren E. Richards Co.,124 Ohio St. 12, *Page 359 176 N.E. 660); second, because the action considered is one at law (it is not a chancery case and not appealable on law and fact); third, because, no bond having been given, no appeal on law and fact was taken, effected, or perfected.
Section 12223-6, General Code, provides that no appeal on law and fact shall be effective as an appeal upon questions of law and fact unless and until a bond is given.
More definite, distinct, and unambiguous language could not have been used to announce the intention of the Legislature that, unless a bond was given, there was no appeal on law and fact.
This section further imposes a limitation upon the time for filing such bond identical with that of the notice of appeal.
Furthermore, the case, aside from the absence of any final order, cannot be considered as an appeal upon law alone, since it was admitted in open court that a bill of exceptions is necessary to develop the assignments of error upon which reliance is placed, and no bill of exceptions was filed in the Common Pleas Court within forty days from the overruling of the motion for new trial, as is required by Section 11564, General Code.
The case cannot be remanded for a bill of exceptions under the provisions of Section 11564, General Code, because no appeal on law and fact was taken. It is manifest that the bond is a jurisdictional requisite, first, because it is required, as previously noted, to make an appeal on law and fact effective, and, second, because in Section 12223-4, General Code, it is stated that "no step required to be taken subsequent to theperfection of the appeal shall be deemed to be jurisdictional." It will be noted that the giving of the bond under the language used can not be a step subsequent as it is necessarily coincident with the perfecting *Page 360 of the appeal on law and fact. The remand for a bill of exceptions is predicated upon — is based entirely upon — the fact that an appeal on law and fact has been taken, perfected, and effected.
The language of Section 12223-4, General Code, that the appeal shall be deemed to be perfected when written notice of appeal shall be filed with the lower court, cannot be said to control all interpretation and construction of the entire Appellate code in total disregard of every other section. The sections were enacted as one code. They must be read and construed together. To say that the notice of appeal alone is jurisdictional in a law and fact case is to render the language of the other sections noted completely valueless and of no effect.
The language of section 12223-4, General Code, evidently applies to appeals on law only, and its effect is modified in appeals on law and fact by sections appropriate to such latter appeals.
This is a reasonable construction of the entire code. To permit an appellant in such a case as this — manifestly one of law — to file merely a notice of appeal without a suggestion of a bond, and then after months have elapsed request the court for a remand for a bill is to put an iniquitous premium upon vexatious delay and to produce an injustice which the code was designed to prevent.
For the reasons given, the motion to dismiss is granted.
Appeal dismissed.
HAMILTON, J., concurs.