¶1 Dissenting:
¶2 I am unable to agree with my associates in their judgment as to the second, fourth and fifth branches of the motion. I concur as to the other branches.
¶3 This matter has been under such recent discussion by other courts in the State and is so well presented in the majority opinion, that it is not necessary to go over it in any detail.
¶4 My view is so well expresed in the dissenting opinion in the case of Graham v Green, Ohio Law Reporter, March 1, 1937, page 477, that there is little that I can add to his opinion save to say that it appears to me to present the question in a logical way and to announce a correct solution.
¶5 . The majority opinion in the Graham case does not discuss the matter at length but states that in several matters of similar nature the court had reached the conclusion therein announced and the court ■therefore adheres to the view there expressed. The Supreme Court has refused to certify in that case without giving any reasons; simply stating “motion to certify overruled.”
¶6 Under the former statutes, then §§12223 to 13223-26 GC, the appellant in the old equity cases was required to give bond as provided by statute and his failure so to do was a good ground, for dismissing -his appeal and I see no. reason why any other position should be taken under the present statute. My associates are of the opinion that inasmuch as the section quoted by them provides the appeal shall be deemed perfected when written notice is filed in the lower court and that no step required to be taken subsequent to the perfection of the appeal shall be deemed jurisdictional, there is a declaration of legislative intent to the effect that all that is necessary is the filing of the notice and that thereby the case is safely lodg,ed in the Court of Appeals. I am of the opinion that the provision of §12223-6 GC, -which provides that no appeal shall be effective as an appeal on questions of law and fact until the judgment appealéd from is superseded by a bond makes it essential that the appellant shall file such a bond before his case comes within the jurisdiction of the Court of Appeals and that his failure to file such a bond is a failure to do all the things that the statute requires shall be done before the case can be reviewed by the Court of Appeals. I feel that this view is strengthened by the phraseology of the two sections 12223-22 and 11564.
¶7 The first section provides that “whenever the appeal is taken in a case in which it is determined by the Appellate Court that the appellant is not permitted to retry the facts”, etc., and the second provides that “whenever an appeal is taken on questions of law and fact and the Court of Appeals determines that the case can not be heard”, etc., certain things shall be done.
¶8 It will be observed that both sections provide when the Court of Appeals determines that the case can not b'e heard upon the facts, certain things shall be done. In my judgment what the amendment sought to correct was a condition which so frequently occurred under the old statute, when a litigant appealed his case and gave bond and was then confronted with the “determination” of the Court that his was not a chancery case and not subject to appeal and thereupon he lost his review in the Court of Appeals both on appeal and error simply because he had misjudged the character of his action below. Very often the question was so close that the careful counsel brought his case forward both on appeal and error. This was the evil sought to be corrected.
¶9 It is unfair to litigants to permit one seeking the review of his case merely to give notice of an appeal on law and fact and then sit by without giving a bond and, when the question is presented to the Court of Appeals, claim the privilege of an extension of 30 days time for the preparation and settlement of a Bill of Exceptions.
¶10 One may foresee that this may result in serious delay in the review of cases in the Court of Appeals.
¶11 Counsel may be fully aware that his case is an appeal on law and not an appeal on law and fact, yet the safe thing for him to do will be to file the motion for the latter because he thereby reasonably assures himself of an extension of time beyond forty days within which time under §11562 GC he is obliged to file his bill of exceptions.
¶12 My associates are of the opinion that the spirit of the Appellate Act is to assure a litigant a review. The trouble with this view is that the assurance is all given to the one who seeks a review on law and fact. There is no favor granted to the *523 one who must have his case reviewed on the question of law alone, or on what corresponds to the old proceeding in error. Such a litigant must within a rigid date, forty days, have a bill of exceptions settled and filed, whereas the one who chooses to go into the Court of Appeals through the doorway of appeal on law and fact may have 30 days after the court has “determined” that he may not hear his case de novo. It is said the Court need not grant this thirty days, as the statute says “not more than”, but we may be reasonably sure in most cases the full thirty days will be allowed.
¶13 I am conscious of the fact that the Supreme Court has overruled a motion to certify the Graham case but I have hopes that some Court of Appeals will take the opposite view from that held by the majority in the Graham case and in this case, and so be able to certify a constitutional conflict of judgment and secure a judgment of the Supreme Court and possibly check a practice that will certainly tend to delay determination of cases in the Court of Appeals.