Marriott v. Hawk

145 N.E. 287, 111 Ohio St. 285, 111 Ohio St. (N.S.) 285, 2 Ohio Law. Abs. 212, 1924 Ohio LEXIS 269

Opinion

By the Court.

We shall first inquire whether the court has any evidence before' it to review. The defendants in error claim that there was no bill of exceptions taken in the Court of Appeals and none filed in this court. If such is the case, the court can consider no errors predicated on the alleged bill of exceptions. Section 11564, General Code; Townsend v. Harrison, 58 Ohio St., 398, 50 N. E., 985.

The contention of defendants in error upon this point is borne out by the printed record. The bill of exceptions, so called, is the transcript of the evidence taken in the court of common pleas and used by consent of the parties in the Court of Appeals. No bill was prepared in the Court of Appeals. The Court of Appeals did not sign or allow the transcript of the evidence; hence issues raised by the petition in error and not raised by the pleadings and judgment, which require the bill of exceptions, so called, to present them to this court, are not before us.

There being no evidence in the record, the case of Hoffmaster v. Black, 78 Ohio St., 1, 84 N. E., 423, 21 L. R. A., (N. S,), 52, 125 Am. St. Rep., 679, 14 Ann. Cas., 877, is decisive of the question.

The facts pleaded in this case and found by the Court of Appeals are identical with those which appear in the Hoffmastér case, and hence we are compelled to render judgment for the defendants in error.

Judgment of the Court of Appeals affirmed.

Marshall, C. J., Robinson, Jones, Matthias, Day, Allen, and Conn, JJ., concur.