
    LUCHTENBERG v COOPER INVESTMENT CO
    Ohio Appeals, 2nd Dist, Franklin Co
    No 2715.
    Decided Nov 4, 1936
    Coyle & Coyle, Columbus, Herbert S. and T. J. Duffy, Columbus, for appellant.
    Arnold, Wright, Purpus & Harlor, Columbus, and Earl Morris, for appellee.
   OPINION

By THE COURT

Submitted on three motions which are considered in logical instead of chronological order.

The first motion of date October 14, 1936, by the appellant for an order granting leave to amend his notice of appeal to read “The said appeal is on questions of law and fact.”

The notice of appeal as filed reads “The said appeal is on the question of law.”

The action was for money, viz.: damages for personal injuries and, therefore, clearly at law.

Sec 13223-5, GC, provides that the notice of appeal shall state “whether the appeal shall be on questions of law or questions of law and fact,” but, further, that 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 furtherance of justice for good cause shown.

We do not conceive that the situation here presented calls for the granting of leave to amend. The notice clearly designates the proper form of appeal and the only appeal upon which the judgment could be reviewed. Thus if the notice did not state any type of appeal or designated it as upon questions of law and fact eventually the appeal would be resolved as upon law. It would not be in furtherance of justice to permit the amendment to the notice of appeal.

The second motion filed by the appellee October 6, 1936, is to strike the bill of exceptions from the files because it was not filed in the Court of Common Pleas until more than forty days after the overruling of the motion for a new trial and entry of judgment in that court.

The motion will be sustained upon the authority of Kennedy v Mancino, No. 2685, this court, Franklin County, of date September 29, 1936, wherein we have considered and discussed the sections cited and questions presented in the brief of counsel for appellant.

The third motion filed by the appellee October 6, 1936, is for a judgment of affirmance of the judgment of the trial court, for the reason that no errors are assigned which could be considered without the bill of exceptions.

We have examined the appellant’s eight assignments of error and find that none can be exemplified without recourse to the testimony. This motion must. therefore, be sustained.

BARNES, PJ, HORNBECK and BODEY, JJ, concur.  