Miller v. Douglass

13 Ohio C.C. 439

• Court: Ohio Circuit Courts
• Decided: January 15, 1897
• Status: Published

Opinion

Smith, J.

The defendant in error has filed his motion to strike the petition in error from the files on the ground'that the court has no jurisdiction of the subject matter or of the parties, and that no motion for a new trial was made and no bill of exceptions was allowed.

The case in the court of common pleas was one involving the right of the parties to the distribution of a fund of which the court clearly had jurisdiction, and all of the parties were before the court. By the final decree the court found the facts in the case and its conclusions of law on such facts, and decreed the fund to some of the parties to the exclusion of the others. The losing parties excepted to the conclusions of law and the judgment rendered; but, being satisfied with the findings of fact, made no motion for a new trial, but filed their petition in error, alleging that the court erred in its conclusions of law on the facts found.

jReuben Tyler, Willis M. Kemper, Frank H. Kemper, David Davis and Bur eh & Johnson, for Plaintiffs in Error. Howard Douglass and George W. Harding, contra,

There is no reason whatever for striking the petition in error from the files. The plaintiffs in error were authorized to file it, alleging error in the record as it stands, and it was filed in due time. When there has been a finding of facts separately from the conclusions of law under the provisions of section 5205, Revised Statutes, a motion for a new trial is not necessary in order to entitle the reviewing court to determine whether the conclusions of law on the facts found are correct. 34 Ohio St., 1. All that is necessary in such cases is to except to such judgment. But if it is desired to have the reviewing court decide whether the facts so found by the court are supported by the evidence, it is essential to properly present this question that a motion for a new trial on this ground be filed and overruled, and a bill of exceptions containing all of the evidence containing all of the evidence be allowed.

In this case the judgment does not show that the court, at the request of either of the parties, stated in writing the conclusions of fact found separately from the conclusions of law. But the entry shows that the findings of fact and conclusions of law were therein stated separately. But it is held in 35 Ohio St., 113, that a judgment rendered on a special finding of facts made by the court may be reviewed on error, although such finding was not made at the request of either party.

The motion will be overruled.