Mounts v. E. Motor Lines, Inc.

Full title: MOUNTS, APPELLANT v. ECLIPSE MOTOR LINES, INC., ET AL., APPELLEES

Court: Court of Appeals of Ohio

Date published: Oct 13, 1949

91 N.E.2d 530 (Ohio Ct. App. 1949)

91 N.E.2d 530

Opinion

No. 4273

Decided October 13, 1949.

Appeal — No bill of exceptions — Affidavits in trial court, supporting motion to quash, not considered — Although attached to transcript of docket and journal entries — Regularity and validity of judgment presumed where factual issue presented.

1. Exhibits in the form of affidavits presented to the trial court in support of a motion to quash cannot be considered by a reviewing court where there is no bill of exceptions.

2. It is not sufficient that affidavits filed in support of a motion to quash be attached to the transcript of the docket and journal entries and original papers; the affidavits used in proof of an issue of fact cannot be considered by the reviewing court, although filed with the clerk, unless brought upon the record in the form of a bill of exceptions.

3. Where a factual issue is presented, in the absence of a bill of exceptions, the regularity and the validity of a judgment will be presumed.

APPEAL: Court of Appeals for Franklin county.

Mr. John P. Moloney and Mr. Russ Bothwell, for appellant.

Messrs. Hamilton Kramer, for appellees.

WISEMAN, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, sustaining a motion to quash service of summons and dismissing the action against the Eclipse Motor Lines, Inc.

The exhibits in the form of affidavits presented to the trial court in support of the motion to quash cannot be considered by this court, as there is no bill of exceptions. The affidavits are attached to the transcript of the docket and journal entries and original papers. The affidavits being used in proof of an issue of fact are not a part of the record, even though filed with the clerk. Such affidavits should have been brought upon the record in the form of a bill of exceptions. Langan v. Kessinger, 23 Ohio Law Abs., 392; Simes v. Dayton-Xenia Ry. Co., 24 Ohio Law Abs., 595, 36 N.E.2d 517; Willett, Admr., v. New York Central Rd. Co., 73 Ohio App. 59, 54 N.E.2d 317; 2 Ohio Jurisprudence, 593, 641, Sections 300, 344.

A factual issue being presented, in the absence of the bill of exceptions, the regularity and the validity of the judgment will be presumed. We regret that the record is not properly prepared to present the more important question raised in the briefs.

The judgment is affirmed.

Judgment affirmed.

MILLER, P. J., and HORNBECK, J., concur.