Opinion
No. 30518
Decided May 29, 1946.
Supreme Court — Affirmance — No bill of exceptions — Appeal to Court of Appeals on questions of law and fact — Cause heard on pleadings, evidence and stipulation of facts.
APPEAL from the Court of Appeals of Cuyahoga county.
Plaintiff, appellant herein, filed a petition in the Court of Common Pleas of Cuyahoga county to enjoin the city of South Euclid and the county of Cuyahoga from certifying to the county auditor any instalments of certain reassessments against five parcels of land owned by the plaintiff and registered under the Torrens Act of Ohio; to enjoin the county treasurer from attempting to collect any of certain special assessments or the reassessments; to direct the county auditor to remove from the tax duplicate any such special assessments or reassessments, and interest and penalties thereon, and to abate the same; to direct the county treasurer to accept the payment of general taxes from and after the tax collection period of April 1940, in full of all tax obligations due upon the property of plaintiff; and for such further relief as plaintiff might be entitled to in law and equity.
Issues were made by answers and a reply.
After the cause was heard on the pleadings and the evidence, the Court of Common Pleas found that the plaintiff was not entitled to the relief prayed for, dismissed the petition and overruled a motion for new trial.
Plaintiff gave notice of appeal to the Court of Appeals on questions of law and fact, executed an appeal bond and duly filed a bill of exceptions consisting of a transcript of plaintiff's testimony, three stipulations of fact and numerous exhibits.
By leave of the Court of Appeals, the plaintiff filed his amended reply to the answer of the city of South Euclid. Counsel filed two stipulations, subject to objection as to admissibility. One stipulation related to plaintiff's testimony as to his knowledge of special assessments against the five parcels, and the other stipulation related to testimony of a witness as to the value of the parcels of real estate.
The journal entry of the Court of Appeals, dismissing the petition of the plaintiff, recites that the cause was "heard on the pleadings, evidence and stipulation of fact." (Emphasis added.)
Thereafter, appellant gave notice of appeal as of right on the ground that a constitutional question is involved and filed a motion to certify the record to this court, which motion was allowed.
The city of South Euclid interposed a motion to dismiss the appeal because no bill of exceptions was presented to and allowed by the Court of Appeals as required by Section 11564, General Code.
The record before us does not show that a bill of exceptions was allowed and signed by the Court of Appeals.
Messrs. Davies Eshner, for appellant.
Mr. Roland A. Baskin, city solicitor, for appellee city of South Euclid. Mr. Frank T. Cullitan, prosecuting attorney, and Miss Margaret R. Lawrence, for appellees John A. Zangerle, auditor, John J. Boyle, treasurer, and Cuyahoga county.
Counsel for appellant contend that, under Section 11571, General Code, a bill of exceptions is not necessary in a case in which the entry of judgment shows that the case was tried on an agreed statement of facts which was filed with the papers in the case.
The journal entry of the Court of Appeals in the instant case recites that the cause was "heard on the pleadings, evidence and stipulation of fact." (Emphasis supplied.) Section 11571, General Code, does not apply to a case which was heard on the evidence and an agreed statement or stipulation of facts.
There being no bill of exceptions in the instant case, the record is insufficient for review and the judgment of the Court of Appeals is therefore affirmed. Townsend v. Harrison, 58 Ohio St. 398, 50 N.E. 985; Tenesy v. City of Cleveland, 133 Ohio St. 251, 13 N.E.2d 122.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.