Opinion
No. 34734
Decided December 19, 1956.
Appeal — Dismissal — No bill of exceptions — Mandamus to require issuance of building permit — Zoning regulations.
APPEAL from the Court of Appeals for Cuyahoga County.
ON MOTION to dismiss or affirm.
By this action in mandamus, instituted in the Court of Appeals, relator seeks a writ requiring the respondents, the Commissioner and Inspector of Buildings of the City of Cleveland Heights and the members of the Board of Zoning Appeals of that city, to issue to relator a building permit authorizing the construction of a funeral home on certain described property.
The amended answer admits certain allegations of the amended and supplemental petition, denies other allegations, specifically avers that relator has not exhausted its remedies under the zoning ordinance of the city, and prays that the amended and supplemental petition be dismissed.
The Court of Appeals heard the matter on the amended and supplemental petition, amended answer, stipulations, exhibits and stenographic transcript of the evidence adduced before a commissioner. The court rendered a judgment in favor of relator.
An appeal as of right brings the cause to this court for review.
Messrs. Halle, Haber, Berick McNulty and Mr. Robert E. Jaffe, for appellee.
Mr. King A. Wilmot, director of law, for appellants.
The principal error assigned is that the Court of Appeals was in error in determining that relator, under the facts and circumstances as evidenced by the pleadings, testimony and other evidentiary matters, was entitled to the relief prayed for. The relator has filed a motion for an order dismissing the appeal or affirming the judgment, on the ground that respondents did not file a bill of exceptions or have it allowed and signed by the Court of Appeals, the trial court in this case, as required by Section 2321.05, Revised Code.
There being no bill of exceptions before this court exemplifying the facts necessary in determining the issues presented, the appeal is dismissed. State, ex rel. Heights Jewish Center, v. Haake, 165 Ohio St. 547.
Appeal dismissed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.