
    WINTERS NATIONAL BANK & TRUST COMPANY v GRETHER
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 1666.
    Decided Feb 4, 1941
    Froug & Froug, Dayton, for plaintiffappellee, for the motion.
    Gus W. Byttner, Dayton, for defendant-appellant, contra the motion.
   OPINION

BY THE COURT:

Submitted on motion of appellee to dismiss the appeal of appellant for the reason that she has failed to file assignments of error and brief within the time provided by the rules of this Court.

Notice of appeal was filed of date September 16, 1940. The briefs of appellant bear the filing stamp of the Court of Appeals of Montgomery County of date November 5, 1940. This latter date is the fiftieth day from the date of the filing of the notice of appeal and such filing is within the time fixed by Rule VII of the Rules of Practice of the Courts of Appeals of Ohio.

We also find, among the papers in the case, an affidavit of Gus W. Byttner, counsel for appellant, to effect that he filed the brief of appellant in the instant case in the office of the Clerk of Courts of Montgomery County on November 5, 1940, the hour not being fixed. It is further stated in the affidavit that the office of the Clerk of Courts was closed during the usual hours due to the fact that said day was election day. Affiant further states that copy of the brief was left with John J. Froug of counsel for appellee.

In the situation thus presented, the rule is observed both in letter and spirit.

The motion will be overruled.

HORNBECK, PJ., GEIGER & BARNES, JJ., concur.  