
    EAGLESON, Admr. v McKEE et
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 3140.
    Decided March 8, 1940.
    
      Addison, Isaly & Addison, Columbus, for appellee and for the motion.
    C. Eugene Smith, Columbus, for Wm. S. McKee, appellant, and contra the motion.
   OPINION

BY THE COURT:

Submitted on motion of appellee to dismiss the appeal for the reason that the notice states that the appeal is on questions of law and fact, and no bond has been given in the trial court. The original papers have not been filed in this Court and although more than forty days have elapsed since the overruling of the motion for new trial no bill of exceptions has been filed in the trial court or in this court.

Counsel for William S. McKee seeks to justify the failure to observe the pro-visions of the statutes by reason of the fact that he filed a praecipe in the Court below ordering the bill of exceptions. This is not sufficient reason for failure to observe express statutory requirements. It is the obligation of counsel to see that transcript of docket and journal entries is prepared and filed, and where the time is running against a party within which the bill of exceptions must be filed under §11564 this Court has no power to tpll the statute.

However, the situation here presented has occurred many times since the enactment of the new appellate code and we have adopted a uniform procedure to meet it.

The appeal on questions of law and fact was not perfected because no bond was given, and therefore it becomes obvious that it may not proceed as on questions of law and fact. If a bond had been given and the case had come to this Court as an appeal on questions of law and fact we would have another question which is raised by the brief' of counsel for appellee, namely, whether or not appeal on questions of law and fact could be prosecuted from the judgment.

It is the policy of the appellate act, §12223-4 GC, and we have in many instances held, that there is but one jurisdictional requisite to an appeal and that is observance of §12223-7 GC. The section which prescribes the action to be taken here is §12223-22 (2) GC.

We therefore now determine that this appeal may not be retried upon the facts and that it shall stand for hearing as an appeal on questions of law, and we now fix the time for preparation of bill of exceptions as thirty days from the entry journalizing this opinion.

Loos v Wheeling & L. E. R. Co., 134 Oh St 321; Graham v Green, 55 Oh Ap 169; Stevely v Stoll, 57 Oh Ap 401.

Counsel for appellant should see that all further requisites of procedure are observed.

The motion to dismiss the appeal will be overruled.

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