Opinion
No. 29283
Decided July 7, 1943.
Court of Appeals — Appeal on questions of law — Jurisdiction to review, affirm, modify or reverse judgment — Section 6, Article IV, Constitution — Court may not retry issues of fact — And substitute its judgment as to amount of unliquidated claim.
1. Under the provisions of Section 6, Article IV of the Constitution of Ohio a Court of Appeals in an appeal on questions of law alone is vested with jurisdiction to review, affirm, modify or reverse a judgment of a trial court.
2. In such an appeal a Court of Appeals is without jurisdiction to retry the issues of fact and substitute its judgment for that of the trial court as to the amount of an unliquidated claim.
APPEAL from the Court of Appeals of Cuyahoga county.
In this case the Court of Probate allowed the sums of $22,325 and $166.23 respectively for counsel fees and expenses incident to the successful prosecution of exceptions to the six accounts of a former trustee of the estate of Thompson H. Johnson, deceased.
An appeal was perfected to the Court of Appeals on questions of law and fact. However, that court dismissed the appeal on questions of law and fact and retained the appeal as one on questions of law alone. The judgment of the Court of Probate was reversed as to the allowance for counsel fees, and a judgment therefor in the sum of $17,000 was rendered by the Court of Appeals.
The case is in this court for review by reason of the allowance of a motion to certify the record.
Messrs. Baker, Hostetler Patterson, Mr. Howard F. Burns and Mr. John Adams, for appellants.
Messrs. Snyder, Seagrave, Roudebush Adrion, Messrs. Jones, Day, Cockley Reavis and Messrs Howell, Roberts Duncan, for appellees.
Inasmuch as a court of record in rendering a judgment speaks through its journal alone, it should be observed the Court of Appeals based its reversal on the single finding "that in its opinion substantial justice has not been done the party complaining."
The sole question requiring consideration by this court is the jurisdiction of the Court of Appeals on an appeal on questions of law to substitute its judgment for that of the trial court as to the amount of an allowance for an unliquidated claim for counsel fees.
It is the contention of the appellant that under these circumstances the jurisdiction of the Court of Appeals was limited to the alternatives of requiring a remittitur or reversing the judgment and remanding the cause for a retrial. Reliance is placed upon the decision of this court in the case of Chester Park Co. v. Schulte, Admr., 120 Ohio St. 273, 166 N.E. 186, in which the following rule was stated:
"In an action for unliquidated damages neither the trial court nor any reviewing court has the power to reduce the verdict of a jury or to render judgment for a lesser amount without the consent of the party in whose favor the verdict was rendered to such reduction."
The appellees seek to distinguish that case from the instant one by pointing out that in that case there was a trial by jury but in this one there was not. However, the fundamental and decisive principle here involved is that under the provisions of Section 6, Article IV of the Constitution of Ohio a Court of Appeals does not have jurisdiction to retry a cause on an appeal on questions of law alone. From the journal it is apparent that the reviewing court's view of the evidence was different from that of the trial court. An optional remittitur could have been imposed, or the judgment could have been reversed and the case remanded for retrial. However, neither of these courses was followed. Instead, the Court of Appeals re-examined the evidence, retried the issues of fact and substituted its judgment with reference thereto. If it possessed jurisdiction to reduce the amount of the allowance, there would seem to be equal authority to increase the sum. The appellees agree that the latter could not be done.
The Court of Appeals was in error, and its judgment must be reversed and that of the Court of Probate affirmed.
Judgment reversed.
MATTHIAS, HART, ZIMMERMAN, BELL and TURNER, JJ., concur.
WILLIAMS, J., not participating.