In re Estate of Long

Full title: IN RE ESTATE OF LONG

Court: Court of Appeals of Ohio

Date published: Apr 9, 1945

64 N.E.2d 261 (Ohio Ct. App. 1945)

64 N.E.2d 261

Opinion

No. 296

Decided April 9, 1945.

Appeal — From Probate Court on questions of law and fact — Section 10501-56, General Code — Common Pleas Court without jurisdiction, when.

When a record has been taken on a hearing in Probate Court, under Section 10501-56, General Code, an appeal on questions of law and fact to the Court of Common Pleas does not give that court jurisdiction of the cause and the appeal must be dismissed.

APPEAL: Court of Appeals for Williams county.

Mr. C.L. Newcomer, for appellant.

Mr. W. Kent Fenton and Mr. Charles T. Stahl, for appellee.

CARPENTER, J.

In the Probate Court William Kent Fenton, under authority of Section 10509-193, General Code, as amended in 1941, filed an application for an allowance for legal services alleged to have been rendered to the administratrix. After a hearing, the application was granted in part, and motion for a new trial was filed by the administratrix and overruled, all on June 20, 1944. On June 22nd, the administratrix filed a notice of appeal on questions of law and fact to the Court of Common Pleas. On July 19th, the administratrix filed a bill of exceptions in the Probate Court which bill was duly certified by the judge of that court on August 10th.

On October 5th, William Kent Fenton filed a motion in the Common Pleas Court to dismiss that appeal "for the reason that the court was without jurisdiction to hear and determine same" and on November 15th that motion was granted, from which order this appeal on questions of law was filed on November 16th.

Appeals from the Probate Court to the Court of Common Pleas are now provided for in Section 10501-56, General Code. Under it, appeal to that court on questions of law and fact can be had only when "a record has not been taken at the hearing of any matter before the Probate Court so that a bill of exceptions or a complete record may be prepared." That law is constitutional. In re Estate of Bates, 142 Ohio St. 622, 53 N.E.2d 787.

In this case, a record was taken and a complete bill of exceptions was filed in the Probate Court by the administratrix. Such being the record, the court did not err when it dismissed the appeal, and its judgment is affirmed.

Judgment affirmed.

STUART and CONN, JJ., concur.