#### City of Cincinnati, Appellee, *v.*Hawkins, Appellant. City of Cincinnati, Appellee, *v.*Levine, Appellant.

(Nos. 6790 and 6792

Decided May 26, 1947.)

*Mr. R. J. Paul,*for appellee in cause No. 6790.

*Mr. Harry S. Williams, Jr.,*for appellant in cause No. 6790.

*Mr. R. J. Paul*and *Mr. Don Burkholder,*for appellee in cause No. 6792.

*Mr. Benjamin S. Schwartz*and *Mr. Harry M. Washerman,*for appellant in cause No. 6792.

*460Ross, J.

These two cases, although not consolidated, involve identical questions. In each case, the Common Pleas Court of Hamilton county affirmed a final judgment of the Municipal Court of Cincinnati. In each case, a motion to dismiss the appeal on questions-of law was filed in this court by appellee, on the ground that the brief of appellant was not filed with the transcript from the Common Pleas Court, as required by Section 13459-3, General Code.

That section provides in part: “The brief of the appellant shall be filed with the transcript and shall contain the assignments of error' relied on in such-, appeal. ’ ’

Is that provision jurisdictional in character or does it repose in the Court of Appeals a right to exercise-a sound discretion in the interests of justice?.

It is the conclusion of this court that the latter alternative presents a proper construction of the statute.

Referring again to Section 13459-3, General Code,, it will be noted that the first sentence of this section provides: “the proceedings to review such judgment or final order, shall be by appeal whjfch *shall be instituted*by filing notice of appeal with'the court rendering such judgment or order and .with filing a copy thereof in the appellate court where leave to appeal must be obtained.” (Emphasis added.)

Now, it will be noticed that the appeal is, therefore, *instituted*when the notice of appeal is filed as required by the statute.

According to Webster’s New International Dictionary, the word, “institute,” is derived from a Latin word meaning “to place in.” It is defined as meaning ‘ ‘ to set up; to originate and establish; to cause to he; to found.”

In the Shorter Oxford English Dictionary (1933), the word is defined, “to set up, establish, found, or-*461(lain, to introduce, bring into use or practice, to set on foot, initiate, start.”

The words, “shall be instituted,” indicate that when the notice of appeal is filed “such appeal” is an accomplished fact. The later provisions in the section applicable to further action in connection with the appeal are ancillary to and subsequent in point of time to the appeal which has been effected, *i. e.,*“instituted. ’ ’ /

This court held in *State*v. *Ahlbrandt,*79 Ohio App., 199, 69 N. E. (2d), 658, that an act (116 Ohio Laws, 104), designated as “an act to establish a simplified method of appellate review,” applied not’ only to appellate procedure in civil eases but also to'appellate procedure in criminal cases, as in such act noted, and, unless specific provisions of the Code applicable to appellate procedure in criminal cases provided otherwise, Section 13459-3, General Code, was amended by such act (116 Ohio Laws, 104) changing the old procedure for review by petition in error to procedure by appeal. In the *Ahlbrandt case,*this court applied the provisions of Section 12223-21, General Code, found in the Code under Title V, “Procedure On Appeal,” and Chapter I, “Appeals,” to a criminal case, upon the basis that there was in the provisions of the Code applicable only to criminal procedure no provision covering the matter contained in Section 12223-21, General Code, and reversed the judgment of the Common Pleas Court of Hamilton county for failure to comply with the provisions of Section 12223-21, General Code, and to state its grounds of reversal of the judgment of the Municipal Court of Cincinnati. As further noted in the *Ahlbrandt case,*Section 12223-1, General Code,, unquestionably applies to criminal procedure, so far as it does not Conflict with provisions in the Code of Criminal Procedure.

*462It will also appear from an examination of the provisions of the Code applicable to appeals in criminal cases that nowhere is it provided what a notice of appeal shall contain. Can it be doubted that Section 12223-5, General Code, would be applicable?

On the other hand, where a provision of the Code •applicable to appeals in criminal cases is definite and specific, that provision controls as against general provisions applicable to all appeals. *State*v. *Ahlbrandt,*78 Ohio App., 123, 69 N. E. (2d), 95.

Our attention has been directed to a number of decisions of the Courts of Appeals, which consider Section 13459-3, General Code.

In *State v. Jarcho,*65 Ohio App., 417, 30 N. E. (2d), 444, the Second District Court of Appeals held that the provisions of that section were mandatory. It will be noticed, however, that that court stated in its opinion that it considered Rule VII of the Court of Appeals as mandatory and always enforced it as such. Other Courts of Appeals consider that Rule VII reposes in the court a sound discretion to relax the enforcement of the same in the interests of justice. *Gusweiler*v. *Riverview Apartments, Inc.,*54 Ohio App., 132, 6 N. E. (2d), 587; *Leashley*v. *Rezac,*132 Ohio St., 304, 7 N. E. (2d), 229.

It would seem, therefore, that the *Jarcho case*and others of similar import may be sustained upon the principle that those appellate courts consider that both provisions of Section 13459-3, General Code, applicable to briefs, and Rule VII of the-Court of Appeals are binding upon them, rather than that either of such provisions is jurisdictional in character.

The same Court of Appeals (Second District) followed the *Jarcho case*in *State*v. *Smith,*33 Ohio Law Abs., 612, 35 N. E. (2d), 968.

*463In *State v. Bell,*52 Ohio App., 11, 2 N. E. (2d), 786, the Court of Appeals of the Fifth District held that the provisions of Section 13459-3, General Code, were mandatory, but at pages 12 and 13 of the opinion, the court stated:

“As heretofore stated, only forty-two days had elapsed between the filing of the notice of appeal and the submission of the cause. Counsel might have withheld, until the fiftieth day, the filing in this court of his brief and bill of exceptions, but under Section 13459-3, General Code, they are to be filed at the same time. We could with propriety sustain the motion to dismiss for failure to file brief, but we are not doing so, since the procedure is new to counsel and the court,, and because we deem it important to pass upon the other branch of the state’s motion. The motion to dismiss for failure to file brief is overruled for the reasons indicated.”

It is evident that the Court of Appeals of the Fifth District did not consider the provisions .applicable to briefs jurisdictional.

In *State*v. *Parnell,*56 Ohio App., 77, 10 N. E. (2d), 18, the Court of Appeals of the Sixth District followed *State*v. *Bell, supra.*It is apparent, however, from the reasoning of the opinion that the provisions of Section 13459-3; General Code, while considered as mandatory in reference to briefs, as are the provisions of Rule VII of the Court of Appeals, are not considered jurisdictional.

It is true that the sections of the Code applicable to appeals in criminal cases contain no such specific provision as is found in Section 12223-4, General Code. That section provides “* * * and no step required to. be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional.”

The Supreme Court has repeatedly held that the *464only jurisdictional step now necessary to perfect an appeal on questions of law is the filing of a notice of appeal. *Loos*v. *Wheeling & Lake Erie Ry. Co.,*134 Ohio St., 321, 16 *N.*E. (2d), 467; *Damar Realty Co. v. City of Cleveland,*140 Ohio St., 432, 45 N. E. (2d), 209; *Bauer*v. *Grinstead,*142 Ohio St., 56, 50 N. E. (2d), 334; *State, ex rel. Curran,*v. *Brookes, Jr.,*142 Ohio St., 107, 50 N. E. (2d), 995.

There appears no reason why the provisions of Section 12223-4, General Code, should be limited to civil cases.

In any event, the language of Section 13459-3, General Code, is such as to require a conclusion that the filing of the notice of appeal is the only jurisdictional requirement to permit the Court of Appeals to entertain the appeal. The appeal as therein provided is *1*‘ instituted, ” that is perfected, when the notice is properly filed.

Valid reasons appear for the exercise of this court’s sound discretion in permitting the filing of briefs. To hold otherwise, would require a strict -and limited construction of the appellate procedure act, and result in a decision by this court otherwise than upon the merits and interfere with the due administration of justice.

Briefs may be filed, if not already filed, in the cases here involved and the cases will be set down for hearing upon the trial docket.

The motion to dismiss in each case is overruled.

*Motions overruled.*

Matthews, P. J., Ross and Hilbebrant, JJ., concur in the syllabus, opinion and judgment.