
    CORWIN v AUTOMATIC GAS & STOKER CO., et
    Ohio Appeals, 2nd District Montgomery County.
    No. 1726.
    Decided May 15, 1942.
    John- P. Naas, Dayton, for John M. Sprigg, Receiver.
    George E. Nicholas, Dayton, for The Peoples Gas Service Co. of Lima, Ohio.
   OPINION

BY THE COURT:

The above entitled cause is now being determined on application of receiver to dismiss the appeal of The Peoples Gas Service Company of Lima, Ohio, for the stated reason that said appeal was taken on questions of law and fact, and the court is without jurisdiction to entertain the same.

Upon an examination of the transcript of docket and journal entries and the original papers it is ascertainable that Harold E. Corwin, as plaintiff and a stockholder of The Automatic Gas and. Stoker Company, had commenced an action in the Common Pleas Court of Montgomery County,. Ohio, asking for the appointment of a receiver for the defendant company.

Later, upon hearing, John M. Sprigg was appointed such receiver. At a still later date, the receiver' filed before the Common Pleas Court an application for instructions in the matter of the allowance or rejection of certain claims-which had been presented to the receiver. One of the claims presented was that of The Peoples Fuel and Supply Company, of Lima, Ohio. Upon hearing it was. the order of the court that the receiver allow said claim in part and reject it in part. From this order The Peoples Gas Service Company of Lima, Ohio, gave notice of appeal on questions of law and fact.

It must be understood that notice of appeal on questions of law and fact is an equity appeal. Appeals to our court for hearing de novo can only be made in chancery cases. This is a provision of the Constitution of the State of Ohio.

We have no difficulty in determining that the proceeding in the Common Pleas Court was not equitable in character. It therefore follows that we can not hear the case de novo. However, following our precedent of long standing, we will not dismiss the appeal but will hold it for hearing as an appeal on law.

We also fix thirty days after the filing of entry for preparing and having allowed bill of exceptions.

Entry may be prepared accordingly.

GEIGER, PJ., BARNES & HORN-BECK, JJ., concur.  