OPINION

Submitted on motion of counsel for William E. Jacobs for an order dismissing this appeal without prejudice to the right of the appellant to prosecute an appeal now pending in the Common. Pleas Court of Franklin County, Ohio, and upon motion of appellee to affirm the judgment of the Probate Court of Franklin County, Ohio, for the reason that appellant has failed to file bill of exceptions in accordance with the order of this Court of March 2, 1938, and within the time limited by law.

The motion of appellant will be sustained; the motion of appellee will oe overruled.

This cause was considered by this Court only as affected procedure. There has been no submission upon the merits. It is our opinion that the appellant has the right to dismiss his appeal without prejudice as set forth in his motion.