
    Hubbard, Treasurer, v. Topliff.
    
      County treasurer ts not “a party in any trust capacity” — Must give bond on appeal — Sections 5227 and 5228 Revised Statutes.
    
    A ®ounty treasurer is not “a party in any trust capacity” within the meaning of section 5228, Revised Statutes, and he cannot appeal from the court of common pleas to the circuit court without giving an undertaking as required by section 5227, Revised Statutes.
    (Decided June 6, 1899.)
    Error to the Circuit Court of Cuyahoga county.
    The defendant in error, Isaac N. Topliff, commenced an action in the court of common pleas against the county treasurer, seeking to enjoin the collection of certain taxes averred to have been illegally assessed against him. The judgment of the court was in favor of the plaintiff below, defendant in error here.
    Thereupon the treasurer gave notice of appeal to the circuit court, but gave, no appeal bond, claiming that as he was a county officer who had given an official bond and was appealing in the interest of his trust as such officer, he was not required to file an appeal bond in order to perfect his appeal. The original papers, together with certified copies of the docket and journal entries, were duly filed in the circuit court, and in that court a motion was filed to dismiss the appeal upon the ground that the appellant had filed no appeal bond.
    The motion was sustained and the appeal dismissed, to which the treasurer, by his counsel, excepted, and caused to be allowed and signed a bill of exceptions containing a copy of the official bond of the county treasurer, which bond is in the usual form as required by statute.
    Thereupon the county treasurer filed his petition in error in this court, seeking to reverse the judgment of the circuit court in dismissing said appeal.'
    
      P. H. Kaiser, for plaintiff in error.
    
      Boynton & Horr, for defendant in error.
   By the Court.

Appeals from the court of common pleas to the circuit court are controlled by sections 5227 and 5228, Revised Statutes, and not by section 6408.

Said section 5228 reads as follows: “A party in any trust capacity, who has given bond in this state with sureties according to law, shall not be required to give bond and security to perfect an appeal; and in such case the clerk of the common pleas court, at the expiration of thirty days from the entering of such judgment or order upon the journal of the court, shall, if not otherwise directed, make a transcript, which, together with the papers and pleadings filed in the cause he shall transmit to the clerk of the circuit court as in other cases of appeal. ’ ’

• Before the revision of the statutes in 1880, the right of appeal from a court of common pleas without bond was limited to executors, administrators and guardians, and by that revision the right of appeal without bond was given to “a party in any trust capacity.” An executor, administrator, guardian, assignee or trustee clearly acts in a trust capacity, while a treasurer, auditor, sheriff and other public officers act in an official capacity, and had it been the intention of the general assembly to extend the statute to appeals taken by officers, that intention would have been clearly expressed in the statute. We therefore hold that in order to perfect an appeal from the court of common pleas to the circuit court by a public officer it is necessary that an appeal bond be given as provided in section 5227, Revised Statutes.

Judgment affi/rmed.  