Bogantz v. Mansfield General Hospital

204 N.E.2d 252, 1 Ohio App. 2d 253, 30 Ohio Op. 2d 271, 1965 Ohio App. LEXIS 623

• Court: Ohio Court of Appeals
• Decided: February 2, 1965
• Docket: 874
• Status: Published

Opinions

Bryant, J.

This is an appeal on questions of law in which the trial court sustained a motion for summary judgment, apparently on the basis of a series of affidavits and counter-affidavits, also a number of exhibits and evidence disclosed in deposition taken by the defendant of the plaintiffs, as on cross-examination.

Although a so-called bill of exceptions was filed and allowed by the trial court, neither the deposition, the affidavits nor any of the exhibits was attached, and the bill of exceptions appears merely to be a stenographic report of the arguments of the lawyers for and against the motion for summary judgment, with an occasional question or admonition by the trial court. . .

Under such circumstances, the reviewing court lacks the power to do other than affirm the court below. In the case of Smith v. Diamond Milk Products, Inc. (1964), 176 Ohio St. 143, the syllabus reads as follows:

“In a personal injury case, where the trial court grants summary judgment for the defendant upon the pleadings, affidavit and deposition upon the ground of assumption of risk, and the plaintiff appeals and no bill of exceptions is filed, the reviewing court must affirm the judgment of the trial court, for the reason that the reviewing court cannot be certain that it has before it on the record all the documents, papers, depositions, affidavits and admissions which the trial court had before it and considered in reaching a decision.”

In course of the opinion by O’Neill, J., at page 145, there appears the following:

“In the ordinary civil case, depositions or affidavits relating to the facts in the case do not become a part of the record on appeal simply because they are filed in the court below. Depositions must be incorporated into a bill of exceptions to be brought on the record before the reviewing court. Knowlson v. Bellman, 160 Ohio St. 359, in the fifth paragraph of the syllabus, holds:

“ ‘Where a decree of the Court of Common Pleas is appealed from to the Court of Appeals on questions of law and fact and the Court of Appeals hears and determines the controversy de novo, the latter court becomes the trial court, and where its decree is brought before the Supreme Court for review and there is no bill of exceptions in the Supreme Court prepared and filed in conformity with statutory requirements, which bill is necessary to disclose the errors complained of, the Supreme Court will either dismiss the appeal or affirm the decree of the Court of Appeals. ’

“This rule should be applied in summary-judgment proceedings.

“It is only in this way that a reviewing court can know what the trial court considered in reaching its conclusions upon the questions of law which it decided. Only where there is an authenticated bill of exceptions signed by the trial court and certified, can a reviewing court be certain that it has before it on the record all the documents, papers, depositions, affidavits and admissions which the trial court had before it and considered in reaching a decision.”

See, also, Albrecht v. Estate of Noie (1964), 177 Ohio St. 167, and Wickham v. First Federal Savings & Loan Co. (1964), 177 Ohio St. 170.

The single assignment of error of the plaintiffs, that the court below erred in sustaining the motion for summary judgment and awarding final judgment in favor of defendant, is, therefore, not well taken and must be overruled, the judgment of the court below must be affirmed, and the cause remanded.

Judgment affirmed.

McLaughlin, J., concurring.