
    McGLINCHEY et v SAWYER et
    Ohio Appeals, 2nd Dist, Franklin Co
    No 3134.
    Decided Dec 18, 1940
    ' John A. Connor, Columbus, for defendant-appellees, and for the motion.
    Floyd A. Johnston, Columbus, for plaintiffs-appellants, and contra the motion.
   OPINION

BY THE COURT:

Submitted on motion of date September 3, 1940, filed by the appellees in this case moving the Court to dismiss the appeal because appellants had failed and neglected to conform with Rule VII of this Court in that they have (1) failed to file any assignment of errors; and (2) failed to file any brief in this case.

At the time of the writing of this opinion no brief has been filed on behalf of plaintiff-appellants. An examination of the transcript of the docket and journal entries and the. bill of exceptions in this case discloses that the judgment entry was noted, of date November 28,-1939; notice of appeal filed within time, of date December 8, 1939, and the notice of appeal given as upon questions of law and fact and a supersedeas bond filed in the cause. The action in the Common Pleas Court was for money only, clearly one at law, submitted to a jury, verdict returned upon direction of the trial judge, and judgment on the verdict. Notwithstanding the appeal given on questions of law and fact, which was clearly erroneous because it could properly proceed as upon questions of law only, plaintiffs treated their proceedings as at law only, and had a bill of exceptions prepared, allowed and settled by the trial judge within time. This bill ■of exceptions was filed in this Court of date January 23, 1940.

On March 29, 1940, an entry was tendered in this Court, approved by counsel for all parties, granting appellants additional time of thirty days for filing appellants’ brief, which was also approved by the presiding judge of this Court. Since that time nothing has been filed in this Court except the motion to dismiss, which we have heretofore set forth.

The question is, should the motion be sustained. If this motion to dismiss had been filed before any steps had been taken to properly present a-bill of exceptions in this Court, we' would have overruled the motion and fixed a time under the statute within which the bill of exceptions could be filed. But inasmuch as all steps which appellants have taken clearly disclose their purpose to proceed in this Court as on questions of law, it is only appropriate that they be made amenable to the rules in error proceedings. Having failed to file the briefs within Rule VII-, or to file them in accordance with the entry extending the time, and no-briefs fior assignment of errors having been filed in this Court at this time, the motion should be sustained. It may be so ordered.

HORNBECK, PJ., GEIGER & BARNES, JJ., concur.  