
    Bless, d. b. a. Capitol Drugs, Appellant, v. Bowers, Tax Commr., Appellee.
    (No. 5742
    Decided February 25, 1959.)
    
      Mr. Albert Leshy, for appellant.
    
      Mr. Mark McElroy, attorney general, for appellee.
   Bryant, J.

This cause is before this court on appeal from the Board of Tax Appeals of William Bless, d. b. a. Capitol Drugs, appellant, herein called Mr. Bless, from a deficiency sales tax assessment and penalty. As originally made, such assessment was as follows: Sales tax assessment, $1,687.35; fifteen per cent penalty, $253.10, making a total of $1,940.45.

Upon rehearing before the Tax Commissioner, it was found that the tax auditors had made a mistake of $8,000 in a credit due Mr. Bless, and the figures were revised downward as follows: sales tax assessment, $1,223.40; penalty, $122.34 (if paid in thirty days), making a total of $1,345.74, but if not paid in thirty days, penalty would be $183.51, totalling $1,406.91.

Mr. Bless objected to the penalty, but to no avail, and he then appealed to the Board of Tax Appeals which summarily affirmed the order and assessment including the penalty as made by the Tax Commissioner.

On July 24,1957, Mr. Bless filed his notice of appeal to this court, which in part is as follows:

“The plaintiff hereby gives notice of appeal to the Court of Appeals, Franklin County, Ohio, from a judgment rendered by the Board of Tax Appeals, state of Ohio on the above entitled cause on the 27th day of June, 1957. Said appeal is on question of law and fact.” (Emphasis added.)

On August 23, 1957, upon demand of Mr. Bless, the Board of Tax Appeals filed in this court a transcript of the record of the proceedings before the board and also before the Tax Commissioner.

On January 10, 1959, counsel for the Tax Commissioner filed a motion to dismiss for want of prosecution, contending that except for the notice of appeal of July 24, 1957, and the filing of the transcript on August 23, 1957, no steps had been taken by or on behalf of Mr. Bless. Proof of service of the above motion by mailing on January 8,1959, to counsel of record for Mr. Bless has been filed.

More than five weeks have passed since the filing of the motion to dismiss. We note that this is described as an appeal “on questions of law and fact.” It is not within the ten classes of cases described in Section 2501.02, Revised Code (126 Ohio Laws, 56), and hence can not be more than an appeal on questions of law.

We shall treat the motion to dismiss in this case as a motion to reduce the appeal from one on questions of law and fact to an appeal on questions of law only, and, as such, the motion is sustained and the appeal is accordingly reduced. Rule V D of the Rules of the Courts of Appeals, entitled “Reduction of an Appeal on Questions of Law and Pact to One on Questions of Law Only, ’ ’ provides as follows:

“Whenever an appeal on questions of law and fact is reduced to an appeal on questions of law, the court shall forthwith make an order fixing the time, not exceeding thirty (30) days, for the presentation and filing of a bill of exceptions in the trial court (Section 2321.05, Revised Code). If a bill of exceptions has been filed, it shall be refiled as of the date of the entry reducing the appeal to one on questions of law. Assignments of error and briefs shall thereafter be filed within the time prescribed by Rule VII A (2).”

Accordingly the document, in this case described as the bill of exceptions, shall be refiled in accordance with the above rule, and the assignment of errors and briefs shall be filed by appellant in compliance with Rule VII A (2).

Many months have passed by without any action on the part of the appellant and it may be that such appeal has been abandoned. Tbe passage of tbe time called for by tbe rule will so indicate.

Judgment accordingly.

Miller, J., concurs.

Dueey, J., not participating.  