ON APPLICATION FOR REHEARING
Decided Jan 20, 1938
By THE COURTThis cause is now before the court upon the application of the appellant for a rehearing on the matters heretofore submitted.
Appellant cites four grounds upon which he bases the application.
As stated in our opinion,
“The sole matter' before us, is whether or not the Court of Common Pleas erred in dismissing the appeal of ’Haynes for want of prosecution. This is largely a discretion*435ary matter with the court and we have no way to determine whether or not the Court of Common Pleas abused this discretion.”
This statement clearly points to the one matter considered by this court in its determination whether or not the court below erred in dismissing the appeal for want oi prosecution.
We do not think that any of the grounds for rehearing have any reference to the matter so determined.
As to the first ground, there being no bill of exceptions, we cannot tell whether it is contrary to the facts and it certainly is not contrary to law.
As to the second ground, the question as to whether or not a bond is required is controlled by §10501-59 GC. The omission of such bond is not authorized by the mere fact that the party appealing is acting in a fiduciary capacity. The appeal must be “in the interest of his trust” and such a showing under that statute, must first be made to the court before the appeal can be allowed without bond. In the instant case the appeal was against the interests of the trust-. See Brown, Assignee v Wallace, 66 Oh St 57.
The third ground is that the court was misinformed as to the withdrawal of such application for fees.
The transcript shows that on July 3, 1936, Russell J. Haynes filed an application for the allowance of $250.00 stating in such application, “said guardian relates that compensation in the sum of $250.00 would be just and reasonable for his services rendered, said sum including statutorial allowances to him as such guardian.”
On September 9, 1.936, the docket discloses the following entry:
“This day came Russell j. Haynes and also came attorney for guardian, and by agreement the former- application herein for fees same was to be dismissed. It is ordered that the said application be and the same is hereby dismissed.”
The item of $250.00 fees of attorney and guardian appears in what is designated as the first and final account to which exceptions were filed and sustained by the court on October 9, 1936.
The fourth ground asserted seems to us to have no merit. Application for rehearing denied.
BARNES, PJ, HORNBECK and GEIGER, JJ, concur.