Opinion
No. 36680
Decided February 15, 1961.
Appeal — From Municipal Court to Common Pleas Court — Deposit of security for costs — Requirement not invalid — Section 2323.31, Revised Code.
APPEAL from the Court of Appeals for Cuyahoga County.
The relator, appellant herein, timely filed a notice of appeal from a judgment rendered against her in the East Cleveland Municipal Court to the Common Pleas Court of Cuyahoga County. She presented to the Clerk of the Common Pleas Court, appellee herein, a transcript of the proceeding in the Municipal Court for filing and docketing. The clerk refused to docket the appeal or take any further steps in connection therewith until he had received from appellant a deposit of $16 as security for court costs, in accordance with Rule 7 of the Common Pleas Court.
Appellant refused to make such deposit and instituted the instant action in mandamus in the Court of Appeals seeking a writ directing the clerk to docket her appeal, assign a number thereto and take such other steps in connection with the appeal as are required of him by law. The case was submitted on the petition, the answer and the argument of counsel, the sole question presented being the validity of Rule 7 of the Common Pleas Court of Cuyahoga County.
The Court of Appeals denied the writ.
An appeal as of right brings the cause to this court for review.
Messrs. Woodle Wachtel, for appellant.
Mr. John T. Corrigan, prosecuting attorney, and Mr. John F. Smolka, for appellee.
It is the contention of appellant that rule 7, so far as it requires a deposit as security for costs before an appeal may be docketed, imposes an additional condition not provided by statute, interferes with the operation of the statutory law relating to appeals, and is invalid.
Section 2323.31, Revised Code, provides in part: "The Court of Common Pleas by rule may require an advance deposit for the filing of any civil action or proceeding."
Rule 7 of the court provides: "No civil action or proceeding shall be accepted by the clerk for filing unless the party * * * shall have first deposited a sum to secure the payment of the costs that may accrue in such action or proceeding * * *." Then follows a schedule of costs, including "appeal from other tribunals _____ $16.00."
Section 2323.31, Revised Code, is a procedural statute. The provisions in both the statute and in rule 7 requiring security for costs prescribe a rule of procedure, in no wise affecting the substantive right of appeal. An appeal from a judgment of the Municipal Court to the Court of Common Pleas is a "proceeding" within the meaning of that term as used both in the statute and in the rule above quoted. The rule is reasonable and the amount of deposit required is not excessive. If an appellant is unable to prepay costs or furnish security therefor, his right to appeal is not denied. Section 2323.31, supra, also gives to a party the right to make an affidavit of inability either to prepay or give security for costs, in which case the clerk of the court shall receive and file the document tendered.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.