Cooney v. Cooney

18 Ohio C.C. 874

• Court: Ohio Circuit Courts
• Decided: January 15, 1898
• Status: Published

Opinion

Smith, J.

We regret that we are compelled to reverse the judgment or order of the court of common pleas appointing a receiver in this case. The allegations of the petition of the plaintiff below, Edward Cooney, make a clear case, if true, for the appointment of such a receiver, but the answer filed by the defendant below, denies each and every allegation of the petition; the burden therefore was upon the plaintiff to show that the allegations of his petition were true. We are satisfied from what was said by oounsel before us at the hearing of the oase, that at the hearing of the application for a reoeiver before the court of common pleas, the material allegations, of the petition were conceded tc be true, and on the part of the defendant the only evidence produced was a number of affidavits, which constituted no defense to the claim of the plaintiff, and consisted principally of a course and scurrilous attack on the character of the plaintiffs.

Issue R. Matson and Alfred B. Benedict, for Plaintiff in Error. S. A. Miller, centra.

A bill cf exceptions, however, was allowed by the trial judge without the knowledge of counsel for plaintiff below, as is claimed, doubtless by inadvertance, which purports to contain all of the evidence, but which does not contain any evidence offered by plaintiff or any admission made in court at the hearing by defendant’s counsel, and only contains th© affidavits of the defendant referred to. Of course, on the record there is no evidence to support the averments of the petition and the order appointing the receiver must be reversed.