Damar Realty Co. v. City of Cleveland
| Decision Date | 25 November 1942 |
| Docket Number | 29128. |
| Citation | 140 Ohio St. 432,45 N.E.2d 209 |
| Parties | DAMAR REALTY CO. v. CITY OF CLEVELAND et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. The filing of a notice of appeal is the only jurisdictional step in an appeal from the Court of Common Pleas to the Court to Appeals.
2. After entry of judgment in an action in chancery an aggrieved party may appeal on questions of law or upon questions of law and fact by filing a notice of appeal as provided by statute.
3. Where in a chancery action notice of appeal on questions of law and fact is duly filed but no appeal bond is filed within the time provided, the appeal does not become effective as an appeal on questions of law and fact but is effective as an appeal on questions of law only.
The plaintiff, the Damar Realty Company, began an action in the Court of Common Pleas of Cuyahoga county, Ohio, against the city of Cleveland, John A.
Zangerle county auditor, and John J. Boyle, county treasurer of such county, seeking that title to certain realty in the city of Cleveland be quieted as against specified special assessments and that the record of assessments be cancelled and the defendants enjoined from attempting to enforce or collect the same.
Trial was had and on December 17, 1941, the trial court rendered judgment denying the injunction and dismissing plaintiff's petition at plaintiff's cost. On January 6, 1942, plaintiff filed a notice of appeal on questions of law and fact. On February 7, 1942, the court fixed an appeal bond in the sum of $200 but the transcript of docket and journal entries does not show that an appeal bond was ever filed.
On March 23, 1942, the Court of Appeals granted a motion dismissing the appeal, one judge dissenting. Thereupon, the judges of that court certified the record of the case to this court for review of the judgment as being in conflict with the judgment of the Court of Appeals of Clark county, Ohio in Kocher v. Ricketts, then pending in this court under No. 29076 .
Orville Smith and H. P. Fetterman, both of Cleveland, for appellant.
Thomas A. Burke, Jr., Director of Law, and Charles W. White, both of Cleveland, for appellee.
Was the Court of Appeals justified in dismissing the appeal for failure to file an appeal bond within the time required by statute?
Jurisdiction of the Court of Appeals is fixed by Section 6, Article IV of the Constitution, and under the power conferred a party aggrieved by a judgment of the Court of Common Pleas in a case in chancery has two remedies: (a) He may seek a trial de novo or (b) he may seek a review of the judgment, in which latter event the Court of Appeals may affirm, modify or reverse the judgment for alleged errors of the court below.
Though the constitutional jurisdiction of the Court of Appeals may not be altered by legislative enactment, the General Assembly has power to legislate with respect to the procedure. Wagner v. Armstrong, 93 Ohio St. 443, 113 N.E. 397; Barnes v. Christy, 102 Ohio St. 160, 131 N.E. 352. In the exercise of this power the General Assembly enacted the Appellate Procedure Act effective January 1, 1936, 116 Ohio Laws, 104.
The material sections relating to appeal of causes from the Court of Common Pleas to the Court of Appeals read thus:
Section 12223-1, General Code: '1. The word 'appeal' as used in this act shall be construed to mean all proceedings whereby one court reviews or retries a cause determined by another court, an administrative officer, tribunal, or commission.
'2. The (words) 'appeal on questions of law' shall be construed to mean a review of a cause upon questions of law including the weight and sufficiency of the evidence and shall include all the proceedings heretofore and otherwise designated in the General Code as proceedings in error.
'3. The (words) 'appeal on questions of law and fact' shall the construed to mean a rehearing and retrial of a cause upon the law and the facts and shall include all the proceedings heretofore and otherwise designated as an appeal, and shall be the same as may be designated by the phrase 'appeal on questions of fact."
Section 12223-4, General Code:
Section 12223-5, General Code: 'The notice of appeal shall designate the order, judgment, or decree appealed from and whether the appeal shall be on questions of law or questions of law and fact. * * *'
Section 12223-6, General Code: '* * * 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.'
To continue reading
Request your trial