
    Borntrager v. Richards.
    (Decided March 10, 1930.)
    
      Mr. Wm. Thorndyhe, for plaintiff in error.
    
      Mr. Edw. H. Moeller, Jr., for defendant in error.
   Hamilton, J.

This case originated in the court of the justice of the peace of Springfield township, Hamilton county, Ohio.

Richards brought an action against Borntrager for damages growing out of an automobile collision. The justice of the peace heard the case on April 11, 1929, and, upon consideration, entered judgment in favor of Richards against Borntrager. Borntrager gave notice of appeal and executed his bond on appeal, and was supplied by the justice of the peace with a certified transcript of the proceedings. He was furnished this transcript on April 15, 1929. He did not file the transcript in the court of common pleas until May 17, 1929, which was more than 30 days after the judgment. The appellee, thereupon, moved to dismiss the appeal, which motion was granted. The appeal was dismissed, and the cause was remanded to the court of the justice of the peace.

Borntrager prosecutes error to this court, claiming that the granting of the motion to dismiss the appeal was premature, in that by virtue of Section 10388, General Code, such judgment could not' be entered until the succeeding term after the expiration of the 30-day limitation. This requires a consideration of Section 10388, General Code, which provides:

“If the appellant fails to deliver the transcript and other papers, if any, to the clerk and have his appeal docketed, on or before the thirtieth day from the rendition of the judgment appealed from, the appellee at the term of the court next after the expiration of such thirty days, may file a transcript of the proceedings and judgment, and on his motion the cause shall be docketed. On his application also, the court is required either to enter a judgment in his favor similar to that entered by the justice and for all costs accrued in such court, and award execution thereon; or, with the consent of the appellee, it may dismiss the appeal at the cost of the appellant, and remand the cause to the justice to be proceeded in as if no appeal had been taken.”

The first part of this section gives the appellee the right to have the case docketed at the term of court next after the expiration of the thirty days. This right is secured to him in order to hold the sureties on the appeal bond, and by so doing he could have judgment on the appeal, thereby holding the sureties on the appeal bond.

Under the latter part of the section, namely, “or, with the consent of the appellee, it [the court] may dismiss the appeal at the cost of the appellant, and remand the cause to the justice to be proceeded in as if no appeal had been taken,” an additional proceeding is provided.' If this proceeding is invoked, and the appeal dismissed, the sureties would be released. It is therefore optional with the appellee to have the case docketed and the cause heard at a subsequent term in order to hold the sureties on the appeal bond, or to give his consent, as provided in the latter part of the section above quoted, and have the cause dismissed and remanded to the justice as if no appeal had been taken. Whereupon, he would be entitled to have execution issue against the judgment debtor.

In the case under consideration, the appellee, by motion to dismiss, consented to the dismissal of the appeal, on which the court acted and dismissed the appeal, remanding the cause to the justice to be proceeded in as if no- appeal had been taken.

There is no error in this proceeding, and the judgment is affirmed.

Judgment affirmed.

Cushing, P. J., and Boss, J., concur.  