
    FRENCH v FRIESINGER, Exrx.
    Ohio Appeals, 2nd Dist, Montgomery Co.
    No. 1577.
    Decided Jan. 4, 1940.
    Joseph W. Sharts, Dayton, for plaintiff-appellant and for the motion.
    Nolan, Beigel & Mahrt, Dayton, for defendant-appellee contra the motion.
   OPINION

By HORNBECK, PJ.

Submitted on motion of appellant to open default and permit him to file his assignment of errors and brief and bill of exceptions.

An examination of the transcript and docket entries discloses that the appeal was taken on questions of law and fact and bond duly given. So that the appeal has been perfected on law and fact but it appears that such a type of appeal is incorrect and we now determine under §12223-22 GC that the appellant is not permitted to re-try the facts and the cause will proceed as an appeal on questions of law.

Appellant will be given 30 days after the entry journalizing this order to have biH of exceptions prepared, settled and filed in this court. Briefs will then be filed under rule.

GEIGER & BARNES, JJ., concur.  