
    In re Estate of Arrasmith.
    (Decided October 31, 1936.)
    
      Mr. E. 8. Young, for appellant.
    
      Mr, Charles E, Wilson, for appellee.
   Blosser, J.

Exceptions were filed by Virginia Daniel to tbe first and final account of H. M. McCreigbt, administrator of tbe estate of J. H. Arrasmith, deceased, in the Probate Division of the Court of Common Pleas of Adams county. The exceptions were overruled in part and sustained in part by a judgment entered in that court on January 30, 1936. The administrator thereupon filed his notice of appeal on questions of law and fact.

The jurisdiction of the Courts of Appeals is fixed by Section 6 of Article IV, of the Constitution of Ohio, and such courts have “appellate jurisdiction in the trial of chancery cases,” and in no other class of cases. The Legislature has the right to provide by law for the exercise of the jurisdiction of such courts. Daily, Admr., v. Dowty, 52 Ohio App., 84, 3 N. E. (2d), 430.

It is said in 2 Ohio Jurisprudence, 114:

“An appeal to the Court of Common Pleas of the settlement of an account of an executor in the Probate Court is purely statutory, and does not constitute a chancery case, and the judgment of the Court of Common Pleas upon such an appeal from the Probate Court is not appealable to the Court of Appeals under Section 6, Article IV, of the Constitution. ’ ’

The appeal in this case- should have been on questions of law, and not on questions of law and fact, to meet the requirements of Sections 12223-1 and 12223-5, General Code. After'setting forth that the notice of appeal shall designate the order appealed from the latter section provides:

“The failure to designate the type of hearing upon appeal shall not be jurisdictional and the notice of appeal may be amended by the appellate court in the furtherance of justice for good cause shown.”

Section 11564 of the new Appellate Procedure Act provides that a bill of exceptions must be filed in the trial court, when an appeal is taken on a question of law, “* * * not later than forty (40) days after the overruling of the motion for a new trial, or the decision of the court, when the motion for a new trial is not filed. Provided, whenever an appeal is taken on questions of law and fact and the court of appeals determines that the case cannot be heard upon the facts and no bill of exceptions has been filed in the cause, that the court of appeals shall fix the time, not to exceed thirty days, for the preparation and settlement of a bill of exceptions'. * * *”

It thus follows that where an appeal is taken on questions of law and fact, and the Court of Appeals determines the case should have been appealed on questions of law, it is within the discretion of the court to permit an amertdment of the notice of appeal, and that when such amendment is permitted the court shall fix the time for the preparation and settlement, of a bill of exceptions in civil cases.

A different situation arises where the party to an appeal from a' judgment rendered in a criminal case erroneously designates in the notice that the appeal is upon questions of law and fact. A criminal case is not one in chancery and an appeal in a criminal case should be upon questions of law. Under such circumstances the court may permit the notice to be amended, but it has no authority to fix a time for the preparation and settlement of a bill of exceptions. This is so for the reason that Section 13445-1, General Code, enacted and in force prior to the adoption of the new Appellate Procedure Act, and requiring that a bill of exceptions in criminal cases be filed in thirty days, was not amended or repealed either expressly or by implication by the new Appellate Procedure Act. Bell v. State, 52 Ohio App., 11, 2 N. E. (2d), 786.

The provisions of Section 11564, governing the filing of bills of exceptions in civil actions prior to the adoption of the new Appellate Procedure Act, were amended by the act establishing that procedure, and the old section is therefore in force except as amended. Bell v. State, supra. The amendment consisted of two apparently unimportant changes of the word “exception” to “objection” in the new section, and the addition of the provision quoted and the procedure for filing bills of exceptions in the Supreme Court. The Court of Appeals has no authority to fix a time for the preparation and settlement of a bill of exceptions in a civil case except under the express conditions s'et forth in Section 11564 as amended. Consequently when an appeal is taken on questions of law in a proper case (that is, one that is not a chancery case) and a bill of exceptions is necessary to show the errors complained of, and such bill of exceptions has not been filed within the time provided by Section 13445-1 or Section 11564 —depending on whether the case is a criminal or a civil case as to which section is applicable — the Court of Appeals has no authority to fix a time for the preparation and settlement of a bill of exceptions. By Section 12223-4, jurisdiction is conferred upon the Court of Appeals in such a case by the filing of the notice of appeal. Under such circumstances the appeal should not be dismissed for the failure to file a 'bill of exceptions, but the case can be presented to and reviewed by the court upon the record presented, without a bill of exceptions, and the judgment modified, reversed or affirmed.

Attention is called to the recent case of Sommers v. DeRan, 53 Ohio App., 87.

The court is not inclined at this time to require a showing of good cause as a condition in permitting an amendment of a notice of appeal where a mistake is made in designating the nature of the proper appeal through the misapprehension of counsel. However, this statement, and the action of the court in permitting such amendment in the instant case, are not to be considered as controlling in all cases.

The administrator will be given leave to amend the notice of appeal from an appeal on questions of law and fact to an appeal on questions of law, and will be given not to exceed thirty days from the filing- of an entry hereon for the preparation and settlement of a bill of exceptions. An assignment of errors and briefs should be filed in accordance with the rules of the court, which counsel will also follow in the preparation of the necessary entry in connection herewith.

Decree accordingly.

Middleton, P. J., and Mo Curdy, J., concur.  