#### Booher, Appellee, *v.*Lowe et al., Appellants.

(No. 1925

Decided February 20, 1947.)

*Mr. Jerome T. Miller,*for appellee.

*Mr. Chester J. Graham,*for appellants.

By the Court.

This cause is submitted on motion *491•of the plaintiff, appellee herein, to dismiss the appeal •and remand the case to the Court of Common Pleas, on the ground that the defendants,- appellants herein, have not complied with the order of the Court of Common Pleas fixing the appeal bond.

The action was one in forcible entry and detainer filed in the Municipal Court of Dayton, wherein judgment was rendered for the plaintiff. An appeal on questions of law was taken to the Court of Common Pleas, which court affirmed the judgment of the trial -court.

The appeal to this court is “ on questions of law, and ■on questions of law and fact..” Without determining the question whether this appeal can stand as an appeal •on questions .of “law and fact,” the court proceeds to •determine the motion on the state of the record. The pertinent part of the entry of the Court of Common Pleas fixing the appeal bond is as follows:

“It being further made to appear to the court that •said defendants-appellants are desirous of appealing from the action of this court to the Court of Appeals of Montgomery county, Ohio, and upon motion of said •defendants-appellants to fix an appeal bond, the court upon consideration finds that a bond in the sum of $150 is sufficient as an appeal bond. ’ ’

The court further makes an order as follows:

“It is further ordered by the court that defendants-•appellants post bond in the sum of $150 with good and sufficient surety and that upon compliance with this •order all further proceedings are stayed in the court until further order. ’ ’

In the same i entry the court makes'a further order ■as follows:

“The court further orders defendants-appellants to pay monthly, the sum of $18 on or about the 25th day •of each month beginning with the month of December, *4921946, said sum into the office of clerk of courts to be applied on the monthly installments of rent for the premises in question until further order of court.”

The plaintiff contends that the defendants have not paid $18 each month to the clerk of courts as provided by the court order. It is urged that the order requiring-the defendants to pay the $18 per month to the clerk of courts was a condition of the appeal bond; that since that order has not been complied with the appeal should be dismissed. It is true that under the provisions of Sections 12223-6,' 12223-9 and 12223-14, General Code, the court fixing the bond may also stipulate the conditions thereof. However, the record in this case does not disclose that the Court of Common Pleas, in fixing the appeal bond, made the payment of $18 per month a condition of the bond. It will be observed the court' found that a bond in the sum of $150 was ‘ ‘ sufficient as an appeal bond.” The court further ordered the posting of an appeal bond in the sum of $150 and ordered that “upon compliance with this order all further proceedings are stayed in the court until further order.”

It not' appearing that the payment of $18 per month was a condition of the appeal bond, the failure of the defendants to make the payment as ordered does not operate as a breach of the conditions of the appeal bond.

The motion to dismiss will be overruled.

*Motion overruled.*

Wiseman, P. J., Miller and Hornbeoic, JJ., concur.