Crow v. Brite Metal Treating, Inc.

223 N.E.2d 595, 9 Ohio St. 2d 63, 38 Ohio Op. 2d 161, 1967 Ohio LEXIS 414

Opinions

Per Curiam.

No bill of exceptions was filed to disclose wbat evidence the Municipal Court had before it when it passed upon the motion for summary judgment. Also, the docket and journal entries of that court do not disclose what evidence was before it at that time.

Certified copies of the pleadings and the docket and journal entries in the Common Pleas Court case above referred to were marked as exhibits and attached to defendant’s brief in support of its motion for summary judgment. However, the docket entries of the Municipal Court recite that affidavits were filed in support of and in opposition to the motion for summary judgment. These affidavits were not identified nor was their number disclosed.

Without a bill of exceptions, the Court of Appeals could not determine what evidence the Municipal Court had before it when it passed upon the motion for summary judgment; and thus the Court of Appeals could not determine that the Municipal Court erred in granting that motion for summary judgment. See for example Schultz v. State, 32 Ohio St. 276; Goldsmith v. State, 30 Ohio St. 208; Sleet v. Williams, 21 Ohio St. 82. It follows that the Court of Appeals should have dismissed the appeal or affirmed the judgment. Ford v. Ideal Aluminum, Inc., 7 Ohio St. 2d 9.

The motion to certify the record is, therefore, allowed, and the judgment of the Court of Appeals is reversed.

Judgment reversed.

Taft, C. J., Zimmeemax, Matthias, O’Neill, Schneidee and Beown, JJ., concur.