
    Layer Guardian, v. Schaber, Administrator.
    
      Notice of appeal — Common pleas to circuit court — Sections 5227 and 5228, Revised Statutes.
    
    1. als from the court of common pleas to the circuit court, are to be taken as provided for in sections 5227 and 5228, Revised Statutes, as to notice of appeal, and not as provided in section 6408, of said statutes.
    2. The notice of appeal must be entered on the records within three days after the judgment or order is entered on the journal.
    (Decided December 14, 1897)
    Error to the Circuit Court of Crawford county.
    The action in the court of common pleas, was one in which an appeal would lie to the circuit court. The plaintiff in error, plaintiff below, recovered a decree against the defendant in error, and at the close of the judgment entry, appears the following : ‘ ‘Thereupon came the defendant, and declared
    his intention to- appeal this cause to the circuit court.”
    In the circuit court, the plaintiff in error made a motion to dismiss the appeal, upon the following grounds:
    
      “First — Said appeal has not been perfected as required by law.
    
      Second — The appellant has not given any appeal bond.
    
      
      Third— The appellant has not given written notice to the court, as required by law, of. his intention to appeal said cause.
    
      Fov/rth — The appellant did not, within three days after the judgment was entered herein in the court below, enter on the records of said court notice of his intention to appeal.”
    The circuit court overruled the motion, to which exceptions were taken; and in the further proceedings, judgment was rendered in favor of the defendant below. Thereupon plaintiff below filed his petition in this court seeking to reverse the judgment of the circuit court.
    
      Edward Vollrath, for plaintiff in error.
    The circuit court erred in overruling the motion of the plaintiff to dismiss the appeal. Revised Statutes, sections 5227, 5228, 6408.
    The appellant in this case was acting in a fiduciary capacity; he gave no appeal bond, and gave no written notice of his intention to appeal. The record discloses neither bond nor notice. Hence we maintain the appeal was never perfected and should have been dismissed. The court cannot appeal the case for the appellant. The written notice alone dispenses with the bond, under the above section — in the absence of a bond, a written' notice must be given, and in absence of such written notice, a bond must be given. The statute must mean this or it means nothing. Absence of bond will vitiate the appeal. Steinbarger's Admtrs. v. Steinbarger, 19 Ohio, 106; Thomas, Admtr., v. Moore, 52 Ohio St., 200; 29 Ohio St., 155.
    When a statute gives a right, which did not exist at common law, and at the same time points out a specific method by which the right can be asserted, that method must be strictly pursued. Cole v. Muscatine, 14 Iowa, 296; Moore v. White, 45 Mo., 206; Green v. Bailet, 3 N. H., 33; Wait’s Acts and Def.’s, volume 2, page 109.
    The law allowing appeals must be followed; and if the law is not followed the appeal is not perfected. Bradford v. Watts, Wright, 495.
    Finley, Beer & Bennett and J. C. Tobias, for defendant in error.
    If' the defendant is the duly appointed and qualified administrator of WilliamPfleiderer, late of said county of Crawford, then he has given bond as required by section 5996, Revised Statutes.
    Having given bond in his trust capacity he was not required to give bond and security to perfect an appeal of his case from the court of common pleas to the circuit court. Section 5228, volume 89, O. L., 148. The appellant was not required by law to give written notice to the court of common pleas of his intention to appeal his cause to the circuit court. Section 5227, volume 89, O. L., 148.
    Appeals by a party in a trust capacity, under section 6408, shall be allowed upon written notice to the court of his intention to appeal within the time limited for giving bond.
    The method of appealing from the court of common pleas to the circuit court at the present time does not differ materially from the practice in vogue ever since 1831. Then appeals were allowed from the common pleas to the Supreme Court upon notice entered on the journal of the court of common pleas, at the judgment term, of the intention to appeal, and the filing of an appeal bond within thirty days after close of the term. 29 O. L., 78.
    
      Then, as now. administrators who had given bond in this state could prosecute appeals without giving bond. 29 O. L., 241-2. Roberts, Executor, v. Wheeler, Wright’s Reports, 697.
    If the defendant gave notice, the presumption is he gave rhe notice required by law.
    To say he did not give notice is to contradict the record.
    The circuit court found that the motion to dismiss the appeal was not well taken.
    . No bill of exceptions was allowed showing what evidence was offered to sustain or against sustaining the motion to dismiss the appeal. A revisory court never presumes that an inferior tribunal has erred. The presumption is that it has not. Until the contrary is shown by the record every court is presumed to have acted and decided correctly. Wagers v. Dickey, 17 Ohio, 440; Mathis v. McCord, Wright’s Rep., 647; Bethel v. Woodworth, 11 Ohio St., 397, and 27 Ohio St., 598.
   By the Court:

The defendant in error, was sued as administrator, and the petition averred that he was the duly appointed and qualified administrator of the estate in question. Being such administrator, and having given bond as required by law, and appealing in the interest of the trust, it is con-' ceded that it was not necessary to give an appeal bond in order to perfect his appeal from the court of common pleas to the circuit court. But it is urged by the plaintiff in error, that, in order to perfect such appeal, he must give written notice to the court of his intention to appeal, within the time limited for giving bond, as provided in section 6408, Revised Statutes. The defendant in error claims that section 6408 applies only to appeals from probate courts, and that appeals from the court of • common pleas to the circuit court are provided for by sections 5227 and 5228, Revised Statutes.

The written notice of an intention to appeal under section 6408, is to be given “within the time limited for giving bond,” which is twenty days,

■ while the notice provided for in section 5227, must be entered on the records within three days after the judgment shall be entered. Both sections can. therefore not apply to the same appeals. Clearly, section 5227 applies to appeals from the court of common pleas to the circuit court, and section 6408, applies to appeals from the probate court to the court of common pleas, and it may also apply to appeals from other inferior courts or tribunals.

Said section 5227, provides that: “A party desiring to appeal his cause to the circuit court, shall, within three days after the judgment or order is entered, enter on the records notice of such intention.” This means that the notice of appeal must be given within three days after the judgment or order is entered on the journal. In this case, the notice of appeal appears at the close of the journal entry, and was therefore given at the time the judgment was entered without waiting three days. The notice is sufficient in form and substance, and was entered on the records within the time provided by the above section, and therefore, the circuit court did not err in overruling the motion to dismiss the appeal.

Judgment affirmed.  