
    MANHATTAN TERRAZZO BRASS STRIP CO. INC. v A. BENZING & SONS
    Ohio Appeals, 2nd Dist, Franklin Co.
    No 3430.
    Decided Jan. 8, 1942
    E. D. Howard, Columbus, for plaintiffappellees.
    L. C. Barker, Columbus, for defendant-appellants.
   OPINION

BY THE COURT:

Submitted on motion of appellants for permission to file assignments of error and briefs, instanter, and upon motion of appellees to dismiss the appeal for failure of appellants to file their briefs and assignments of error in this Court within 50 days after the filing of their notice of intention to appeal as required by Rule VII of the rules of this Court. The exception to the enforcement of Rule VII is “for good cause shown”.

Stipporting the motion of appellants is the statement of their counsel, together with the affidavit of Harry E. Myers, M.D., to the effect that since October 1. 1941, counsel for appellant has been physically incapacitated to a degree that seriously interferes with the performance of his duties as an attorney at law. Counsel states that since the first day of October, 1941, he has been confined to his home through, illness, and Dr. Myers states that his illness began on August 1, 1941.

Examination of the pleadings, briefs,, etc., in the case discloses that there is but one counsel for appellants. The facts thus appearing are sufficient, in our judgment, to establish good cause for failure to file briefs and assignments of error under Rule VII of this Court.

We are cited to a number of cases and particularly to State ex McClelland v Edie, 33 Abs 141. In the cited case it did not appear that counsel was ill during the time when his briefs were due under the rule. In the instant case a notice of appeal was filed on the 30th of September, 1941, and the serious illness cf appellants’ counsel occurred on the succeeding day, October 1, and was continuous at all times during the period within which under the rule he was required to file his brief.

The motion of appellants will be sustained.

The motion of appellees will be overruled.

BARNES & HORNBECK, JJ., concur. GEIGER, PJ., not participating,  