State ex rel. Kaiser v. Buckeye State Building & Loan Co.

Ohio Court of Appeals

State ex rel. Kaiser v. Buckeye State Building & Loan Co.

31 Ohio Law. Abs. 599, 1940 Ohio App. LEXIS 1229

CourtOhio Court of Appeals

DecidedMarch 29, 1940

DocketNo. 3147

StatusPublished

Cited by1 cases

This text of 31 Ohio Law. Abs. 599 (State ex rel. Kaiser v. Buckeye State Building & Loan Co.) 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.

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State ex rel. Kaiser v. Buckeye State Building & Loan Co., 31 Ohio Law. Abs. 599, 1940 Ohio App. LEXIS 1229 (Ohio Ct. App. 1940).

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Opinion

OPINION

BY THE COURT:

Submitted on motion of appellee to affirm the judgment for the reason that as the appeal is on questions of law it is necessary to consider the evidence taken in the trial court to determine the errors assigned and no Bill of Exceptions has been taken, filed or allowed.

The notice of appeal is directed to the order and judgment entered by the Court of Common Pleas on December 16, 1939, dismissing said cause upon the ground that “the relator, William L. Kaiser, was not qualified as a tax payer.” “Said appeal is on questions of law.” The judgment entry to which the appeal is directed recites “that the cause came on to be heard upon the motion of the defendant to dismiss the second amended petition of the plaintiff and was submitted to the court upon the evidence and the argument of counsel.” (Emphasis ours).

An examination of the transcript of docket and journal entries discloses that a deposition was offered on the motion on behalf of the defendant and an affidavit on behalf of the plaintiff. It thus becomes apparent that the motion was determined upon evidence directed to the one question, namely, whether or not the plaintiff was a tax payer.

The affidavit appears in the transcript of docket and journal entries. The deposition is filed as a separate document with the papers in the case.

No Bill of Exceptions has been prepared or settled in the trial court notified in this court. It is obvious that the error complained of can only be exemplified by an examination of the evidence which was before the trial court on the motion. Depositions and affidavits can only be properly brought to the attention of the court by a Bill of Exceptions duly authenticated. 2 O. Jur. 470-471.

The motion will be sustained and the judgment affirmed.

HORNBECK, PJ., GEIGER & BARNES, JJ., concur.

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OPINION

BY THE COURT:

Submitted on motion of appellee to affirm the judgment for the reason that as the appeal is on questions of law it is necessary to consider the evidence taken in the trial court to determine the errors assigned and no Bill of Exceptions has been taken, filed or allowed.

The notice of appeal is directed to the order and judgment entered by the Court of Common Pleas on December 16, 1939, dismissing said cause upon the ground that “the relator, William L. Kaiser, was not qualified as a tax payer.” “Said appeal is on questions of law.” The judgment entry to which the appeal is directed recites “that the cause came on to be heard upon the motion of the defendant to dismiss the second amended petition of the plaintiff and was submitted to the court upon the evidence and the argument of counsel.” (Emphasis ours).

An examination of the transcript of docket and journal entries discloses that a deposition was offered on the motion on behalf of the defendant and an affidavit on behalf of the plaintiff. It thus becomes apparent that the motion was determined upon evidence directed to the one question, namely, whether or not the plaintiff was a tax payer.

The affidavit appears in the transcript of docket and journal entries. The deposition is filed as a separate document with the papers in the case.

No Bill of Exceptions has been prepared or settled in the trial court notified in this court. It is obvious that the error complained of can only be exemplified by an examination of the evidence which was before the trial court on the motion. Depositions and affidavits can only be properly brought to the attention of the court by a Bill of Exceptions duly authenticated. 2 O. Jur. 470-471.

The motion will be sustained and the judgment affirmed.

HORNBECK, PJ., GEIGER & BARNES, JJ., concur.

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31 Ohio Law. Abs. 599, 1940 Ohio App. LEXIS 1229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-kaiser-v-buckeye-state-building-loan-co-ohioctapp-1940.

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