Sandusky Elks Home Ass'n v. Szendery

Ohio Court of Appeals

Sandusky Elks Home Ass'n v. Szendery

116 N.E.2d 739, 94 Ohio App. 552, 52 Ohio Op. 317, 1953 Ohio App. LEXIS 784

CourtOhio Court of Appeals

DecidedApril 13, 1953

Docket659

StatusPublished

This text of 116 N.E.2d 739 (Sandusky Elks Home Ass'n v. Szendery) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sandusky Elks Home Ass'n v. Szendery, 116 N.E.2d 739, 94 Ohio App. 552, 52 Ohio Op. 317, 1953 Ohio App. LEXIS 784 (Ohio Ct. App. 1953).

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Opinions

Fess, J.

This cause came on for hearing on an appeal on questions of law and fact, and the plaintiff offered as evidence on its behalf the transcript of the testimony taken in the Common Pleas Court. Defendants, appellants herein, object to the introduction of the transcript as evidence. This court has not adopted the rules of procedure which were adopted by the judges of the Courts of Appeals at their annual meeting on September 21, 1948.

Rule XIII of this court provides as follows:

“On trial of actions originally commenced in the Court of Appeals and of cases appealed thereto on questions of law and fact, no oral testimony will be received. If testimony other than that preserved in the lower court is required by either party, it may be taken in manner and form as the parties agree, or by a referee or master appointed by the court, or by depositions according to law.

“Either party may offer any written agreed statement and such parts or the whole of any transcript of testimony taken in the lower court or as aforesaid, and of any deposition or other written documentary or record evidence or other exhibit as he may desire, reserving all questions of competency to the court. The costs of any such transcript of testimony shall be paid, in the first instance by the party procuring the same, subject to any final order or judgment of the court.

“Unless testimony of witnesses to be presented on the trial of actions originally commenced in this court, and in cases appealed thereto on questions of law and fact, be reduced to writing as aforesaid and filed in the court before such case is assigned for trial, the *554 cause will be referred for trial or the taking of sucb testimony according to law. ’ ’

Under the provisions of this rule, the plaintiff is entitled to offer on its behalf such parts of the transcript of the testimony taken below as it may see fit. But the Supreme Court has held that, although the procedure contemplated by a similar rule is commendable, under the plenary grant of the Constitution permitting the parties in chancery cases to be heard de novo on appeal, litigants have the right to submit their evidence to the appellate court under the same legal rules applicable in trial courts. Union Trust Co. v. Lessovitz, 122 Ohio St., 406, 171 N. E., 849; Dehmer v. Campbell, 124 Ohio St., 634, 180 N. E., 267. The objection is, therefore, sustained.

This court possesses inherent power to adopt such reasonable rules as it may deem necessary to govern its proceedings and to facilitate the administration of its business, provided such rules do not conflict with the Constitution or a valid statute. Meyer v. Brinsky, 129 Ohio St., 371, 195 N. E., 702; Brown v. Mossop, Admr., 139 Ohio St., 24, 37 N. E. (2d), 598. That portion of the rule which permits a party to offer the transcript has been declared to be in conflict with the Constitution, but the provision that no oral testimony shall be received and that the testimony shall be taken by a referee or master appointed by the court, or by deposition according to law, is a valid exercise of the rule-making power in the interest of facilitating the business of the court. The demand that oral testimony be taken is, therefore, denied, and the case will be referred to a master for further proceedings.

Judgment accordingly.

Deeds, J., concurs.

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Fess, J.

This cause came on for hearing on an appeal on questions of law and fact, and the plaintiff offered as evidence on its behalf the transcript of the testimony taken in the Common Pleas Court. Defendants, appellants herein, object to the introduction of the transcript as evidence. This court has not adopted the rules of procedure which were adopted by the judges of the Courts of Appeals at their annual meeting on September 21, 1948.

Rule XIII of this court provides as follows:

“On trial of actions originally commenced in the Court of Appeals and of cases appealed thereto on questions of law and fact, no oral testimony will be received. If testimony other than that preserved in the lower court is required by either party, it may be taken in manner and form as the parties agree, or by a referee or master appointed by the court, or by depositions according to law.

“Either party may offer any written agreed statement and such parts or the whole of any transcript of testimony taken in the lower court or as aforesaid, and of any deposition or other written documentary or record evidence or other exhibit as he may desire, reserving all questions of competency to the court. The costs of any such transcript of testimony shall be paid, in the first instance by the party procuring the same, subject to any final order or judgment of the court.

“Unless testimony of witnesses to be presented on the trial of actions originally commenced in this court, and in cases appealed thereto on questions of law and fact, be reduced to writing as aforesaid and filed in the court before such case is assigned for trial, the *554 cause will be referred for trial or the taking of sucb testimony according to law. ’ ’

Under the provisions of this rule, the plaintiff is entitled to offer on its behalf such parts of the transcript of the testimony taken below as it may see fit. But the Supreme Court has held that, although the procedure contemplated by a similar rule is commendable, under the plenary grant of the Constitution permitting the parties in chancery cases to be heard de novo on appeal, litigants have the right to submit their evidence to the appellate court under the same legal rules applicable in trial courts. Union Trust Co. v. Lessovitz, 122 Ohio St., 406, 171 N. E., 849; Dehmer v. Campbell, 124 Ohio St., 634, 180 N. E., 267. The objection is, therefore, sustained.

This court possesses inherent power to adopt such reasonable rules as it may deem necessary to govern its proceedings and to facilitate the administration of its business, provided such rules do not conflict with the Constitution or a valid statute. Meyer v. Brinsky, 129 Ohio St., 371, 195 N. E., 702; Brown v. Mossop, Admr., 139 Ohio St., 24, 37 N. E. (2d), 598. That portion of the rule which permits a party to offer the transcript has been declared to be in conflict with the Constitution, but the provision that no oral testimony shall be received and that the testimony shall be taken by a referee or master appointed by the court, or by deposition according to law, is a valid exercise of the rule-making power in the interest of facilitating the business of the court. The demand that oral testimony be taken is, therefore, denied, and the case will be referred to a master for further proceedings.

Judgment accordingly.

Deeds, J., concurs.

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116 N.E.2d 739, 94 Ohio App. 552, 52 Ohio Op. 317, 1953 Ohio App. LEXIS 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sandusky-elks-home-assn-v-szendery-ohioctapp-1953.

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