Auditorium Realty Co. v. Hussman

BY THE COURT

The above entitled cause is now being determined on plaintiff’s motion to dismiss *728the appeal for the following reasons.

1. That the appeal has not been perfected as required by law.

2. That the court does not have jurisdiction in the premises.

The action originated in the Court of Common Pleas and on November 18, 1932, judgment was rendered for plaintiff.

Objection is raised that the appeal bond was not filed within the time prescribed by law.

Sec 13226 GC reads as follows:

“A party desiring to appeal his cause to the Court of Appeals within thirty days after the judgment or order is entered on the journal of the court, shall give an undertaking with sufficient surety, to be approved by the clerk of the court or a judge thereof, as hereinafter provided, and in such amount as is required or fixed by the provisions of §12229 GC.”

In the transcript of docket and journal entries notation is made that a bond was filed on December 27, 1932.

By a simple process of calculation it is obvious that this was more than thirty days after the rendering of the judgment in the Common Pleas Court.

Counsel representing the defendant asks this court to make a finding that in fact the appeal bond was given within the thirty days.

For the purpose of making up a record the defendant was permitted to present evidence in support of such claim.

Oral arguments were presented on the motion. Counsel for defendant cites §11572 (a) GC; Long v State of Ohio, 109 Oh St, 77; Tinker v Sauer, 105 Oh St, 135 and Barnes v Christy et, 102 Oh St, 160. In our judgment neither the section nor cases cited meet the question involved in the instant case.

Sec 11572(a) GC specifically refers to an omission in the bill of exceptions occurring through accident or error. In the case of Long v State, 109 Oh St, supra, the court-invoked the provision of said §11572 (a) GC and corrected the spelling of the name in the bill of exceptions. Case of Barnes v Christy, 102 Oh St, supra, and Tinker v Sauer, 105 Oh St, supra, both deal with amendments of a petition in a chancery case. The courts had under consideration §§12223 and 11363 GC and in effect held that amendments of pleadings were permitted in the appellate court.

In the instant case we have a question of jurisdiction. In order for this court to have jurisdiction the provisions of the law must be strictly complied with.

In the matter of the giving of the bond this court has no authority to inquire into or correct the file dates.

Parenthetically we might say that even if we did have jurisdiction to inquire into or order the correction of the time of filing the bond that the facts in the instant case do not support the claim that the bond was filed within the thirty day period. The signing of the bond in blank and leaving it with the clerk of courts is not a compliance of the statute. There certainly could be no binding obligation on the signers of the bond until it was filled out. It seems to be conceded that this was done on December 27, 1932. December 27th was after the expiration of the thirty days within which the bond must have been given.

The motion of plaintiff to dismiss the defendant’s appeal will be sustained.

Entry may be drawn accordingly.

HORNBECK, PJ, KUNKLE and BARNE3, JJ, concur.