The plaintiffs, appellants, Charles H. Parker and others, by their application recite that they filed notice of their intention to appeal on questions of law and fact from a "decision" of the Common Pleas Court of Montgomery county against them and in favor of appellee, William Hilt; that they failed to give bond within the time prescribed by law and are desirous of prosecuting their appeal as an appeal on questions of law. The motion of the appellee is to strike the application of the appellants from the files for the following reasons:
1. The application is not executed by the proposed *Page 63 appellants, but is signed by an alleged attorney or agent.
2. The application was not filed within the time stipulated for perfecting an appeal, as prescribed by statute.
3. The notice of appeal upon which the application is predicated was and is defective, in this, that it was executed and filed by an agent without authority, and without a contract of employment.
4. The alleged notice of appeal proposes an appeal upon law and fact, and no bond has been given or filed with the clerk of courts; nor has any application been made to the trial court to fix the bond within the time prescribed by statute.
5. The bill of exceptions, bond and assignment of errors of the alleged appellant were not filed within the time limit fixed by Rule 7 of the rules of this court, or as required by the statutes of this state on error proceedings, as more than seventy days have elapsed since the filing of the decree and the alleged notice of appeal.
The first and third branches of this motion challenge the authority of counsel, who makes the application on behalf of the appellants to act for them either as attorney or agent. We have considered these branches of the motion upon oral presentation of counsel, and upon affidavit and letter supporting the same.
We would hesitate to hold that counsel who now prosecutes the appeal was not authorized, when assisting appellants in the trial court, to give notice of appeal when a judgment of the trial court was entered against the appellants. This very proper precautionary measure having been taken, the cause is in this court, and unless and until the appellants apprise this court that counsel who purports to act for them is not so authorized we would not so hold. If counsel appearing for the appellants does not represent them *Page 64 they have the right on their own motion to come into this court and dismiss the appeal. If it is their purpose or desire so to do, we assume that they would make it known to the court. The first and third branches of the motion must, therefore, be overruled.
The motion of the appellants, and the second, fourth and fifth branches of the motion of appellee, raise the same question, namely, whether the purported appeal of appellants is in this court for any purpose. The facts in this case, so far as necessary to exemplify the questions raised, are that a judgment was entered in Common Pleas Court against the appellants. Within the time prescribed by Section 12223-4, General Code, notice of appeal was duly filed with the trial court. No appeal bond was given as provided in Section 12223-6, General Code. The cause is one which is appealable on questions of law and fact.
It is the claim of appellants that in the situation presented, this court is required under Section 12223-22 (2), General Code, to consider that the cause stands for appeal on questions of law, and thereupon, under Section 11564, General Code, to fix a time for the preparation and settlement of a bill of exceptions. It is the claim of the appellee that by virtue of Section 12223-6, General Code, no bond having been given on appeal, the appeal is not effective for any purpose.
The question presented requires a consideration of several of the sections of the new appellate code. We feel safe in starting with the proposition that the underlying purpose of the new appellate code is to simplify the procedure whereby a party against whom an order or judgment has been entered may have a review of that judgment or order in an upper court. The desideratum of the act is to assure a litigant that having observed certain jurisdictional requirements his case will be reviewed on appeal; the type of appeal designated in the notice or the failure to designate the *Page 65 kind of appeal does not control in any sense the requisites to be met to effectuate the appeal. This purpose is reflected in Section 12223-4, General Code, which provides:
"The appeal shall be deemed perfected when written notice of appeal shall be filed with the lower court, tribunal, officer or commission * * *. After being duly perfected, no appeal shall be dismissed without notice to the appellant, and no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional."
This language is as plain as it can be stated that the one and sole requisite to the accomplishment of the transfer of the case to an upper court for review is the giving of written notice of appeal within the time provided in Section 12223-7, General Code, which in the instant case is twenty days after the judgment.
Section 12223-6, General Code, provides:
"Except as provided in Section 12223-12, [the section relieving named fiduciaries from the necessity of giving the bond] no appeal shall be effective as an appeal upon questions of law and fact unless and until the order, judgment, or decree appealed from is superseded by a bond in the amount and with the conditions as hereinafter provided, and unless the said bond be filed at the time the notice of appeal is required to be filed."
Does the language of this section overcome that portion of Section 12223-4, General Code, which provides that no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional. We are of opinion that it does not.
The effect of a failure to give the bond is to render the appeal ineffective as an appeal on questions of law and fact. That is to say, that if no bond is given within the time required, such failure renders inoperative any possibility of having the appeal proceed *Page 66 as upon questions of law and fact. If such interpretation is not given then the requisite that a bond be given is tantamount to a jurisdictional requirement.
Further light can be gleaned as to the proper interpretation of these two sections, in their relation to each other, from some of the subsequent provisions of the act. Sections 12223-22 provides:
"Appeals on questions of law and fact may be taken: (1) From any court, tribunal, commission, or officer to any court of record as may be provided by law.
"(2) Whenever an appeal on questions of law and fact is taken in a case in which it is determined by the appellate court that the appellant is not permitted to retry the facts, the appealshall not be dismissed, but it shall stand for hearing on appeal on questions of law." (Italics ours.)
It will be noted that if the appellate court determines that the appellant is not permitted to retry the facts, the appeal shall not be dismissed.
It may be urged with some force that the determination in contemplation of the section is that which is made when all the requisites of an appeal on law and fact have been observed, but because the court cannot find that it is such a case as was cognizable in chancery at common law, and, therefore, not appealable on law and fact, it cannot be so heard. Such a construction, however, would preclude any review on law only where no bond had been given, which type of review could have been assured without bond had the appellant designated his appeal as one on questions of law, or had made no designation in his notice of appeal. When an appellant has failed to give the bond required to make effective his appeal on questions of law and fact he has thereby made the determination of the appellate court certain to the effect that the appellant is not permitted to retry the facts, and he is remanded *Page 67 to his appeal on questions of law only. It has, however, been urged that this interpretation of the section will result in unusual and unnecessary delay. Obviously it is true that some delay will be caused by such construction, and the only manner in which such delay can be kept to a minimum is for counsel for the appellee to act promptly by appropriate motion as soon as it appears that the appellant has not given the bond. The court also can be helpful in expediting the hearing of appeals by promptly assigning for hearing motions to require determination that the appellant be not permitted to retry the facts, and to fix a time for the preparation and settlement of a bill of exceptions.
The amendment and addendum to Section 11564, General Code, is mandatory in terms, as follows:
"Provided, whenever an appeal is taken on questions of law and fact and the Court of Appeals determines that the case cannot be heard upon the facts and no bill of exceptions has been filed in the cause, that the Court of Appeals shall fix the time, not to exceed thirty days, for the preparation and settlement of a bill of exceptions."
This amendment is in accord with the spirit of the new Appellate Procedure Act, namely, to assure a litigant a review of his cause if the jurisdictional requisite as to notice has been observed. We, therefore, determine as we have heretofore held, that the giving of a bond under Section 12223-6, General Code, is not a jurisdictional requirement, and, though it renders the attempted appeal on questions of law and fact ineffective, it does not prevent the prosecution of an appeal on questions of law.
This opinion is probably unnecessary because the Court of Appeals of Cuyahoga county, in Graham v. Green, 55 Ohio App. 169, came to the same conclusion here reached on the question presented, and the Supreme *Page 68 Court on March 24, 1937, overruled a motion to certify. However, this action of the Supreme Court was taken after this opinion had been dictated, and we, therefore, release it, as it may be helpful to the profession of this jurisdiction.
It is urged in the memorandum of counsel for appellee thatGraham v. Green, supra, may differ from the instant case in that it did not appear that the appeal which was there under consideration was properly one of law and fact. This position is not tenable because it clearly appears early in the dissenting opinion of Judge Lieghley that the petition prayed for an accounting and equitable relief.
The motion of the appellee will be overruled in all of its branches; the motion of appellant will be sustained; the entry may recite that the court has determined that the appellant is not permitted to retry the facts; that the appeal shall stand for hearing on appeal on questions of law, and that as no bill of exceptions has been filed in the cause the appellant will be given thirty days within which to have a bill of exceptions prepared and settled.
Decree accordingly.
BARNES, P.J., concurs.
GEIGER, J., concurs in overruling the first and third branches of appellee's motion.