Reisz v. St. Paul Fire & Marine Ins.

90 N.E.2d 449, 86 Ohio App. 228, 41 Ohio Op. 96, 1949 Ohio App. LEXIS 684

• Court: Ohio Court of Appeals
• Decided: May 23, 1949
• Docket: 7091
• Status: Published

Opinion

By the Court.

The judgment under review on this appeal is upon a policy on an automobile insuring against loss by fire.

In its answer the defendant pleaded affirmatively that one of the provisions in the policy was that it should not apply “while the automobile is subject to any * * * mortgage or other incumbrance not specifically declared or described in the policy. And on or about January 14, 1948, plaintiff encumbered said property by executing a mortgage thereon to the Aetna Finance Company, which encumbrance was not specifically declared and described in the policy of insurance. ’ ’

It will be observed that the allegation was that the insurance should not apply while the encumbrance was on the property, and it will' also be observed that there was no allegation that the encumbrance was on the property at the time of the loss.

The journal entry recites that a hearing was had upon the pleadings, “the evidence,” etc., and that a judgment was rendered upon the finding at that hearing. The record contains a bill of exceptions in which it is recited that a policy of insurance and a letter were introduced in evidence, but neither was incorporated in the bill in any way. The certificate of the trial judge does not recite that it contains all the evidence.

In this state of the record, it is impossible for this court to pass upon the assigned error, or to find that prejudicial error affirmatively appears on the record.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Boss, P. J., Hildebrant and Matthews, JJ., concur.