
    No. 122
    YOUNGSTOWN GROCERY v. DAVIS BROS. FISHERIES
    Ohio Appeals, 7th Dist., Mahoning County
    Decided Nov. 2, 1923
    85. APPEAL — Second appeal by same party in same case, to cure statutory defects ini first appeal, held properly dismissed.
    Atorneys — J. M. Modarelli, for Youngstown Grocery Co.; W. W. Zimmerman, for Davis Bros. Fisheries.
   FARR, J.

Epitomized Opinion

First Publication of this Opinion

Davis Bros. Fisheries secured judgment against Youngstown Grocery Co. in the Youngstown Municipal Court. Thereafter Grocery Co. filed appeal bond in Mahoning Common Pleas. No transcript of the proceedings having been filed on motion of Fisheries, appeal was dismissed. Thereafter Grocery Co. had the judgment in the Municipal Court vacated, and a bond was filed together with bill of exceptions. A moFon was made to dismiss the appeal on the ground that two appeals could not. be perfected in the same cause. The second appeal was dismissed, and error is prosecuted on the ground that Common Pleas was without jurisdiction to dismiss the second appeal. In affirming the judgment the Court of Appeals held:

1. “When the appeal bond was given and filed in the Court of Common Pleas, the .appeal was effective but not completed by the filing of the transcript. To hold in this Ce.se that the second judgment was valid and effective and that an appeal might be taken from it would be to establish a precedent to the effect that where appeal is sought to be taken from the judgment from the lower court, and statutory requirements are not wholly met, and the appeal is dismissed, that an appellant may then go back to the court below, have his judgment set aside for an omission upon his part, such as a failure to file a transcript within the statutory period, and then perfect his appeal. Such proceedure would violate the rule that one cannot have two appeals in the same cause. Therefore the Grocery Co. could not go into the Municipal Court, have its first judgmlent set aside, a new judgment entered, renew its bond, and take a second appeal to the Court of Common Pleas.”  