
    BROWN, Estate of, In re: RESER, Appellant, v. MADDOX Exr., Appellee.
    Ohio Appeals, Second District, Fayette County.
    No. 290.
    Decided August 8, 1956.
    Richard P. Rankin, Phil D. Butler, Washington C. H., for appellant.
    Ray R. Maddox, Charles S. Hire, Washington C. H., for appellee.
   OPINION

By THE COURT:

Submitted on motions of appellee to dismiss the appeal on questions of law and fact and to dismiss the appeal on questions of law. The basis for the first motion is that the proceedings to which the appeal is directed is not a chancery case and therefore not appealable on questions of law and fact. The reason supporting the second motion is that no evidence was offered in the court below and therefore there is no bill of exceptions filed in the cause.

The first branch of the motion is well taken and must be sustained. This is true if the statute §2501.02 R. C. specifying judgments from which appeals may be taken on law' and fact or if the constitutional test is applied, namely, that such appeals may obtain only where the suit below is one that was cognizable in courts of chancery at common law.

The second branch of the motion will be overruled at this time because it cannot be said upon the transcript of docket and journal entries that no assignment of error may be asserted independent of a bill of exceptions. The order was made upon the theory that the trial judge had authority to pass upon some, if not all of the questions presented by the exceptions to the inventory and appraisement, but had the right to exercise his discretion as to such action and elected not to act and dismissed the exceptions without prejudice. It may be that some or all of the assignments of error to be presented on the appeal will be exemplified upon the record of the proceedings below as they come to this court.

The appeal on questions of law and fact will be dismissed but the appeal will be retained on questions of law, §2505.21 R. C., and appellant given 30 days after the entry journalizing this opinion within which to prepare and file assignments of error and briefs.

At the time that the files were forwarded to this court the brief of appellant was not included and the foregoing opinion was written before it was received. However, we have given full consideration to the subject matter of appellant’s brief and believe that the foregoing opinion correctly resolves the motions.

Appellant suggests that two of the grounds of §2501.02 R. C. have application to support the right of appeal on questions of law and fact. We do not agree. The principal relief sought here is the sustaining of exceptions to the inventory and appraisement in the estate of decedent and appellant elected to pursue this proceeding which is statutory. The fact that equitable principles would be applied in deciding the issues does not shape nor control the character of the appeal.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.  