
    Suttmiller, Appellee, v. Suttmiller, Appellant.
    (No. 2588
    Decided September 21, 1960.)
    
      Messrs. Baggott & Johnston, for appellee.
    
      Messrs. Beigel & Mahrt, for appellant.
   Per Curiam.

This cause is submitted on the motion of plaintiff, appellee herein, to dismiss the appeal for want of prosecution, because the bill of exceptions was not filed within forty days as required by Rule VII, A (1), (a), of the Rules of the Courts of Appeals (107 Ohio App.), and that the appellant failed to file assignments of error and brief within twenty days after filing the bill of exceptions, as required by Rule VII, A (2), (a), supra; and on the motion of appellee to dismiss the appeal on questions of law and fact.

The first motion of appellee was based on the assumption that the appeal is on questions of law. The record shows that the appeal was taken on questions of law and fact. The above cited rule has no application to an appeal on questions of law and fact.

The order appealed from is an order finding the defendant guilty of contempt of court, and overruling defendant’s motion for a separate finding of fact and law. Section 2501.02, Revised Code, designates the classes of cases in which an appeal may be taken on questions of law and fact. The order appealed from does not fall within any of the classes enumerated. An appeal on questions of law and fact is not properly taken. “Whenever an appeal on questions of law and fact is taken in a case in which it is determined by the appellate court that the appellant is not permitted to retry the facts, the appeal shall not he dismissed, but it shall stand for hearing on appeal on questions of law.” Section 2505.23, Revised Code. The court reduces the appeal to an appeal on questions of law. The bill of exceptions and assignments of error shall be filed or re-filed as provided in Rule V, (D), of the Rules of the Courts of Appeals.

An entry may be drawn overruling the motion to dismiss for failure to file the bill of exceptions- within the time required by law, ordering the appeal reduced to an appeal on questions of law, providing for filing the bill of exceptions and assignments of error and briefs as provided by Rule Y, (D), supra, also, overruling motion of appellant for an order allowing him to file a notice of what evidence taken in the trial court he elects to present.

Judgment accordingly.

Wiseman, P. J., Craweord and Kerns, JJ., concur.  