Layer v. Schaber

• Decision Date: 14 December 1897
• Citation: 57 Ohio St. 234,48 N.E. 939
• Parties: LAYER v. SCHABER.
• Court: Ohio Supreme Court

48 N.E. 939

57 Ohio St. 234

LAYER v. SCHABER.

Supreme Court of Ohio.

December 14, 1897

Error to circuit court, Crawford county.

Action by Frederick Layer, guardian, against John A. Schaber administrator. The action in the court of common pleas was one in which an appeal would lie to the circuit court. The plaintiff in error (plaintiff below) recovered a decree against the defendant in error, and at the close of the judgment entry appears the following: ‘Thereupon came the defendant, and declared his intention to appeal this cause to the circuit court.’ In the circuit court the plaintiff in error made a motion to dismiss the appeal upon the following grounds: ‘(1) Said appeal has not been perfected as required by law. (2) The appellant has not given any appeal bond. (3) The appellant has not given written notice to the court, as required by law, of his intention to appeal said cause. (4) The appellant did not, within three days after the judgment was entered herein in the court below, enter on the records of said court notice of his intention to appeal.’ The circuit court overruled the motion, to which exceptions were taken, and in the further proceedings judgment was rendered in favor of the defendant below. Thereupon plaintiff below filed his petition in this court, seeking to reverse the judgment of the circuit court. Affirmed.

Syllabus by the Court

1. Appeals from the court of common pleas to the circuit court are to be taken as provided for in sections 5227, 5228, Rev St., as to notice of appeal, and not as provided in section 6408 of said statutes.

2. The notice of appeal must be entered on the records within three days after the judgment or order is entered on the journal.

Edward Vollrath, for plaintiff in error.

Finley, Beer & Bennett and J. C. Tobias for defendant in error.

PER CURIAM.

The defendant in error was sued as administrator, and the petition averred that he was the duly appointed and qualified administrator of the estate in question. Being such administrator, and having given bond as required by law, and appealing in the interest of the trust it is conceded that it was not necessary to give an appeal bond in order to perfect his appeal from the court of common pleas to the circuit court. But it is urged by the plaintiff in error that, in order to perfect such appeal, he must give written notice to the court of his intention to appeal within the time limited for giving bond, as provided in section 6408, Rev. St. The defendant in error claims that section 6408 applies only to appeals from probate courts, and that appeals from the court of common pleas to the circuit court are provided for by sections 5227,...