Opinion
Decided February 27, 1928.
Error proceedings — New trial for misconduct of trial court — Bill of exceptions stricken from files and affidavit supporting motion not considered — Review limited to assignment of errors appearing in record.
1. Where there is no bill of exceptions, and alleged error, consisting mainly of misconduct of court, does not appear in the pleadings, or otherwise in the case, there is nothing from which appellate court can take judicial cognizance, and it is without jurisdiction in premises.
2. A reviewing court is bound by the rules of legal procedure, and cannot go outside the record.
3. An affidavit cannot be considered by reviewing court, even if there is a bill of exceptions, unless such affidavit was made a part of bill of exceptions, with intent to support motion for new trial, so that reviewing court could decide whether lower court was wrong in refusing to sustain motion.
ERROR: Court of Appeals for Cuyahoga county.
Messrs. McConnell, Blackmore Cory, for plaintiff in error.
Mr. A.W. Bell, for defendant in error.
This cause is here on error from the common pleas court, and upon examination we find there is no bill of exceptions, and that the error claimed against the court below does not appear in the pleadings, or otherwise in the case. Therefore, as to the assignment of error, to wit, mainly the misconduct of the court, we find nothing from which we can take judicial cognizance, and therefore it is manifest that we have no jurisdiction in the premises.
A reviewing court is bound by the rules of legal procedure, and cannot go outside of the record. It is claimed in the brief that, inasmuch as an affidavit has been filed setting forth the action of the lower court in the presence of the jury, we have power to review the question raised; but this affidavit is no part of a bill of exceptions. In other words, it is not legal procedure, such as is contemplated by law, with respect to a record before a reviewing court. For a reason considered adequate by the court, the bill of exceptions has been stricken from the files. Thus we cannot use the bill of exceptions. Had there been a bill of exceptions, we might have considered the affidavit, had it been made a part of the bill of exceptions in some manner, such as upon a motion for a new trial, the overruling of the same, and the taking of exceptions and incorporation of the same into a bill of exceptions. But this was not done. An affidavit becomes a part of the bill of exceptions upon a motion for a new trial, if made for the purpose of supporting the motion, providing it is made a part and parcel of the bill of exceptions. Even if there is a bill of exceptions, the affidavit cannot be considered, unless it was made a part of the bill of exceptions, with intent to support the motion, so that a reviewing court could decide whether the court below was wrong in refusing to sustain the motion.
Thus by an analysis of these proceedings it is plain that the court is without jurisdiction in the premises.
The case called to our attention in the brief, Bender v. Buehrer, 4 C.D., 507, 8 C.C., 244, has no application, because of the lack of foundation as heretofore noted. Thus the conclusion is inevitable that the court cannot take cognizance of this case, and hence the judgment of the lower court must be, as a matter of law, and hereby is, affirmed.
Judgment affirmed.
VICKERY and LEVINE, JJ., concur.