In Re Estate of Anders , 110 Ohio App. 258 ( 1959 )

On November 5, 1958, J. Harvey Crow of Urbana, Ohio, made application in the Probate Court of Franklin County, Ohio, for appointment of himself as administrator of the estate of Loren Eugene Anders.

The application was approved, bond was set at $4,000, which was furnished by the United States Fidelity Guaranty Company by Jack McKeevar, agent, and letters of authority were then and there issued to Crow. Under date of January 8, 1959, the Probate Court approved a journal entry which recites the appointment and furnishing of a bond by Crow, and states

Errata: Section 2505.02, as it appears in the above headnote and syllabus, should be 2501.02.

that the bond was signed by an agent not authorized to sign bonds in that court and that more than 60 days have elapsed without the bond being lawfully executed.

The entry then sets aside the previous entry of November 5, 1958, thereby removing Crow as administrator. It further names Lawrence J. Burns of Columbus, Ohio, as successor-administrator.

Under date of January 26, 1959, Crow filed a notice of appeal from the order of January 8, 1959, removing him as administrator, stating that the appeal is on questions of law and fact.

Under date of May 5, 1958, Burns filed a motion to dismiss the appeal on questions of law and fact for the reason that the court lacks jurisdiction to hear this appeal as a law and fact case. Crow has filed a brief in opposition and has moved to strike the motion to dismiss of Burns from the files on two grounds — first, the alleged lack of a final order removing Crow, and, second, that Burns is not a party to the action.

Burns relies upon the case of Bernhard v. Irwin, 50 Ohio Law Abs., 288, 79 N.E.2d 787, decided by the Second District Court of Appeals in 1947, the headnote to which is as follows:

"1. An action to remove an administrator is not a chancery case and therefore an appeal on questions of law and fact will not lie from the judgment of the trial court."

Section 2501.02 of the Revised Code, as amended, effective October 4, 1955 (126 Ohio Laws, 56), contains an enumeration of ten classes of actions in which an appeal on questions of law and fact is permitted. It is then provided that in all other cases this court is authorized to proceed as in an appeal on questions of law only, said section reading in part as follows:

"In all cases not falling within the classes designated above the Court of Appeals shall have jurisdiction to proceed as in an appeal on questions of law only."

It appears therefore that the motion to dismiss as an appeal on questions of law and fact must be sustained. The appeal on questions of law and fact will be dismissed, but the case will be retained as an appeal on questions of law only. It is, therefore, the order of the court that, in the event a bill of exceptions is required, it be presented and filed pursuant to Rule V D of the Rules of the Courts of Appeals in not more than 30 days from the date of the announcement of this opinion and that compliance be had with the provisions of the Rule V D and Rule VII A (2) of the Rules of the Courts of Appeals.

The motion to strike filed on behalf of Crow is hereby overruled.

Motion overruled.

DUFFY, J., concurs.

MILLER, J., not participating.