
    UTZ, Plaintiff-Appellant v. RUTMANN, et, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery • County.
    No. 1796.
    Decided June 5, 1944.
    D. H. Wysong, Dayton, for plaintiff-appellant.
    Estabrook, Finn & McKee, Dayton, for defendant-appellee, Richard S. Rutmann.
   OPINION

BY THE COURT:

The above entitled cause is now being determined on defendant, Rutmann’s motion to dismiss the appeal on law and fact for the reason that appellant has failed to file an appeal bond and no Bill of Exceptions or brief have been filed.

The legal question involved has been presented to us innumerable times since the passage of what we - still term the “New Procedural Act”.

We have no difficulty in determining that the case was not one in chancery and hence an appeal on law and fact is improper. The relief sought was a money judgment' and counsel should have had no difficulty in determining the' proper type of appeal.

On motions of this character we have a well defined procedure and such has been approved by the Supreme Court of Ohio, so that in this case we follow our adopted precedents.

We determine that the cause may not be heard as an appeal upon law and fact, but following §12223-22, Subdivision 2 GC we do not dismiss, but determine that the action will stand for hearing as an appeal on questions of law.

We further refer to §11564 GC wherein it is provided that whenever an appeal on questions of law and fact can not be heard and no Bill of Exceptions has been filed in the cause a time will be fixed not to exceed thirty days for the preparation and settling of a Bill of Exceptions. In accordance with this section, we make the requisite finding and grant a period of thirty days within which appellant may have prepared and settled a Bill of Exceptions. Of course, the allowance of a Bill of Exceptions depends upon the prerequisite that appellant takes all the initial steps by way of motion for a new trial, etc., which entitles them to a Bill of Exceptions..

We will hold the case as an appeal on law:

If and when a Bill of Exceptions has been filed, the usual time is granted to the parties for filing briefs. Entry may be drawn accordingly. Costs in this court will be adjudged against the appellant.

BARNES, P. J., HORNBECK and GEIGER, JJ. concur..  