Opinion
No. 5703
Decided September 13, 1957.
Appeal — No bill of exceptions — Claimed error in trial court's construction of contract — Motion to strike assignment of error, overruled — Trial court's journal entry contains copy of contract.
A motion to strike an assignment of error based on the failure of the trial court to apply, as a matter of law, the proper rule of construction in interpreting a contract will be overruled even though no bill of exceptions has been filed, where the journal entry of the trial court sets forth in full the exact language of the contract.
APPEAL: Court of Appeals for Franklin County.
Messrs. Herbert, Tuttle, Applegate Britt, and Mr. C. Richard O'Neill, for appellee.
Mr. W. Robinson Watters, for appellant.
This matter came on for consideration on a motion of plaintiff, appellee herein, to strike the assignments of error and brief of defendant, appellant herein, from the files, or in the alternative to strike the second assignment of error and all matters in support thereof in the brief of appellant.
In support of this motion, appellee says appellant has failed to file a bill of exceptions and is relying solely on facts in the journal entry of the court below, which, it is claimed, does not contain anything regarding appellant's second assignment of error. Counsel for appellee cite no authority in support of their position.
Appellant says the second assignment of error is based upon the alleged failure of the trial court to apply, as a matter of law, the proper rule of construction in interpreting a contract, that the journal entry of the trial court sets forth in full the exact language of the contract, and, hence, that a bill of exceptions is not needed.
No reason whatever is advanced for striking the entire brief and both assignments of error from the files. Nor do we believe that sufficient showing has been made for striking one assignment of error and the supporting material in the brief relating thereto from the files at this time.
For the reasons above set forth, the motion of appellee should be, and hereby is, overruled with appropriate exceptions noted.
Motion overruled.
PETREE, P. J., and MILLER, J., concur.