
    BORNTRAGER v RICHARDS
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3593.
    Decided March 10, 1930
    Wm. Thorndyke, Cincinnati, for Borntrager.
    Edw. H. Moeller, Jr., Cincinnati, for Richards.
   HAMILTON, J.

Borntrager prosecutes error to this court, claiming'that the granting of the motion to dismiss the appeal was premature, in that by virtue of 10388 GC, such judgment could not be entered until the succeeding term after the expiration of the 30 day limitation. This requires a consideration of 10388 GC, which provides:

The first part of this section gives the appellee the right to have the case docketed at the term' of court next after the expiration of the thirty days. This right is secured to him in order to hold the sureties on the appeal bond, and by so doing he could have judgment on the appeal, thereby holding the sureties on the appeal bond.

Under the latter part of the section, namely, “or, with, the consent of the appellee it (the court) may dismiss the appeal at the cost of the appellant, and remand the cause to the justice to be proceeded in as if no appeal had been taken”, an additional proceeding is provided. If this proceeding is invoked and the appeal is dismissed, the sureties would be released. It is therefore optional with the appellee to have the case docketed and the cause heard at a subsequent term in order to hold the sureties on the appeal bond; or, he may give his consent, as provided in the latter part of the section above quoted, and have the cause dismissed and remanded to the justice as if no appeal had been taken. Whereupon, he would be entitled to have execution ' issue against the judgment debtor.

In the case under consideration, the appellee, by motion to dismiss, consented to the dismissal of the appeal, on which the court acted and dismissed the appeal, remanding the cause to the justice, to be proceeded in as if no appeal had been taken.

There is no error in this proceeding, and the judgment is affirmed.

Cushing, fPJ, and Ross, J, concur  