
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan’y. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    LENA RUDERSHAUER v. FRED PAGELS.
    
      Appeal — Failure to perfect in time — Action on appeal bond—
    
    Where in an action on an appeal bond in a case appealed from a_J. P. to the common pleas, the petition fails to state that the transcript from the J. P. was duly filed in the common pleas and the other steps taken to perfect the appeal, such defect in the petition should be taken advantage of by demurrer. If this is noted done, it may be shown by evidence at the trial that the necesssary steps to perfect the appeal were duly taken, and judgment on the bond rendered accordingly.
    
      Same — Failure to perfect appedl — Cause to be remanded—
    Appeal case from a J. P. if dismissed for failure to comply with sec. 6586, Rev. Stat.,in filing transcript in time,Case is to be remanded to the J. P. to be proceeded with as if no appeal had been taken.
   Smith, J.

We are of the opinion that if the evidence in this case had shown that the defendant in error, Pagels, after the dismissal of the appeal taken by the defendants, Fischer and others, in the original action brought by Pagels against them before the justice of the peace,on the ground that it was not filed in time, that failed to comply with the provisions of sec. 6586, Rev. Stats.,and to have a transcript docketed,and the other steps therein pointed out taken, that he was not entitled, on the authority of Gimperling v. Hanes, 40 Ohio St., 114, to a judgment in this case against the plaintiff in error, Rudershauer. But the question was not fairly presented by the record before us. ’ It is true that-the petition filed by Pagels against the surety, did not allege that these steps had been taken, but there was no demurrer filed to his petition, and if the evidence had shown that such steps had been taken, the court would have been authorized to hold the surety liable on her appeal bond.

It may be that the question was sought to be raised on the motion of the defendant below, interposed at the close of the evidence for the plaintiff, in effect asking for a judgment in hér favor. But tbe difficulty on this point is, that it is apparent that we have not before us in tbe bill of exceptions all of the evidence offered by the plaintiffs. The docket of the justice of the peace in the original case, was offered in evidence, and read A copy of this is not given. It might have shown that under sec. 6589, on the dismissal’ of the appeal by the common pleas, a transcript had been filed by Pagels after the appeal was dismissed, and the case remanded to the justice to be proceeded with as if no appeal had been taken.

Keam & Keam, Attorneys for Plaintiff in Error.

Burch, Johnson & Holmes, Attorneys for Defendant in Error.

In addition to this the same and additional facts may have been shown by the two affidavits offered in evidence by the defendant herself, and which are not made part of the bill of exceptions.

We therefore, with some reluctance, feel compelled to affirm the judgment.  