
    APPEAL FROM A MAGISTRATE.
    Common Pleas Court of Montgomery County.
    E. W. Cushing, doing Business as The Eastern Electric Co. v. Charles P. Guyton, doing Business under the Name of The C. Guyton Electric Co.
    Decided, July 6, 1910.
    
      Appeal — Computation of Time for Giving Bond in Magistrate’s Court— Where Sunday Falls on the Tenth Bay — Section 10883 and 10216.
    
    Section 10216, General Code, applies to cases on appeal from a magistrate, and when the ten days for executing a bond for appeal expires on Sunday, a bond executed on the day following is in time to perfect an appeal.
    
      Van Deman, Burkhardt & Smith, for plaintiff.
    
      Rowe, Matthews ■& James, contra.
   Snediker, J.

This case is before the court on a motion to dismiss the appeal and remand the case to the magistrate for execution, for the reason that the appeal bond was not signed within the time required by law.

It appears from the . transcript of the magistrate that the judgment was rendered on April 14, 1910, and that the appeal undertaking was given, executed and approved on April' 25, 1910. A fact of which'the court takes judicial notice "is that the 24th day of April, 1910, fell upon Sunday. Section 10383 of the General Code, relating to appeals from a magistrate’s court, provides:

“Within ten days from the time a justice renders judgment, the party appealing therefrom must give a bond to the adverse party, though he need not sign it, with at least one sufficient surety to be approved by such justice, in a sum not less than fifty dollars in any' case, nor less 'than double the amount of the judgment and costs.” * * '*

The “General Code of Ohio” became the law on approval of the Governor February 15, 1910. This action was commenced before the magistrate on April 9,- 19Í0. The General Code therefore controlled the procedure in the case.

Part Third of the General Code covers the “Remedial” legislation of the state. This “part” is divided into-nine subdivi sions or titles. Title I, “Preliminary” contains general provisions applicable to all the courts. Title IV contains the provisions governing- courts of common pleas. Section 10490 of the General Code covers only the provisions of Title IV, Part Third. The present form and order of the Code makes any reference to Title I, Part Third, wholly unnecessary in Section 10490.

The old code or what was known as the Revised Statutes preceding the General Code, was divided into “parts.” Title I, of Part Third was “Procedure in the ..Common Pleas Courts, and in the Circuit Courts on Appeal.” Division I of Title I, Part Third, was “General and Preliminary Provisions,” which related to procedure in the courts provided by Title I.

Section 6705 made the provisions of the entire Title I of Part Third of the Revised Statutes, which are in their nature applicable to proceedings before justices and in respect of which no special provision is made under this title, applicable to proceedings before justices of the peace. The decisions referred to by counsel for plaintiff are with respect to another section of the Revised Statutes and do not construe Section 6705, which, in our opinion, made Section 4951 applicable to proceedings before a magistrate.

The particular section of the General Code here in question (Section 10216) must be construed to extend to acts in all the courts. There is no good reason why it should not apply to cases on appeal before a magistrate, and our holding is that it does. This being true, a bond must be given under its requirements, -which are:

“Unless otherwise specifically provided, -the time within which an act is required by law to be done shall be computed by excluding the first day and including the last except that the last shall be excluded if it be Sunday. ’ ’  