Opinion
No. 31876
Decided December 21, 1949.
Appeal — Bill of exceptions — Bill need contain only portion of proceedings showing claimed error — Duty of trial court to sign bill, when.
Where a party to an action claims that he has been prejudiced by a ruling or decision of the court on a question arising on the trial, and such party perfects an appeal, the bill of exceptions which he presents to the trial judge for correction and signature need contain only so much of the proceedings as purports to show the claimed error, and if the material embodied in such tendered bill is correct in substance and form and is not of such a nature as to deceive or lead astray the reviewing court, it is the duty of the trial judge to sign the same, with the privilege accorded him of making such notations or comments in the certificate as may be appropriate.
APPEAL from the Court of Appeals for Cuyahoga county.
This action in mandamus was commenced in the Court of Appeals for Cuyahoga county with Turner Printing Machinery, Inc., as relator and Lillian M. Westropp, judge of the Municipal Court of Cleveland, as respondent. Relator sought a writ directing respondent to allow, correct if necessary and sign the "partial bill of exceptions" presented to her by relator, which bill purported to represent a part of the proceedings on the trial of the case of Barco Machine Products Company v. Turner Printing Machinery, Inc., which case was instituted in the Municipal Court of Cleveland, was heard before respondent and resulted in a judgment for the defendant on the petition and in the dismissal of the cross-petition.
In her answer filed in the present mandamus action, respondent based her refusal to sign the tendered bill of exceptions on the ground that "said bill did not constitute a true and correct bill of exceptions" because it "contains none of the evidence by way of testimony or documentary evidence upon which this respondent based her said decision in said cause," namely, the case of Barco Machine Products Company v. Turner Printing Machinery, Inc.
The judgment entry in the Court of Appeals allowing the writ reads, in part:
"* * * said respondent is commanded forthwith to correct, if necessary, and then allow and sign the said partial bill of exceptions although the same does not contain or purport to contain any of the testimony and exhibits adduced at the trial of said cause and respondent may certify to the fact that said partial bill of exceptions does not contain any of the testimony and exhibits and upon the allowing and signing of said partial bill of exceptions as aforesaid, the same shall be caused to be delivered to the clerk of the Municipal Court of Cleveland for transmittal in the usual course to this court in accordance with said appeal."
An appeal as of right brings the cause to this court for review and determination.
Mr. P. Jerome Pasch, for appellee.
Mr. Lee C. Howley, director of law, and Mr. Robert J. Selzer, for appellant.
The "partial bill of exceptions" referred to above is contained in the record as an exhibit and consists for the most part of colloquies between the respondent and opposing counsel in that case. It shows that under an arrangement, approved by the court, evidence supporting the petition was to be presented first, followed by evidence in support of the cross-petition.
It shows further that after the examination and cross-examination of a witness called by plaintiff, the plaintiff rested on its petition. Thereupon the court ruled that a complete accord and satisfaction had been established between the parties by the accepting and cashing of a check, the transmission of which check was accompanied by a letter containing the language:
"If you don't accept it in full, you can sue for the balance.
"* * *
"If under the circumstances you wish to go to court for the difference of $67.30, you are welcome to do so."
The profferred bill of exceptions then shows the following:
"Mr. Pasch: I want the record to show that the court, as I understand it, is ruling that respecting the claim of $462.50 on the part of the plaintiff here, by virtue of the testimony, that an accord and satisfaction has been shown; and the court is ruling further that that ruling of an accord and satisfaction, precludes the defendant from going forward on its cross-petition, and that the ruling on the accord and satisfaction covers the whole case.
"The Court: My ruling is that this is an accord and satisfaction, and a complete settlement of the claim.
"Mr. Pasch: What claim? On the petition or cross-petition?
"The Court: The claim and anything that arises out of it.
"Mr. Pasch: Is it both the petition and the cross-petition?
"The Court: It is the petition and cross-petition.
"Mr. Pasch: That is all I want to know.
"The Court: The record will show, Mr. Fishel, that you join in that motion.
"Mr. Pasch: Exception to the ruling of the court in dismissing defendant's cross-petition."
Although this "partial bill of exceptions" submitted to the respondent for examination, correction and signature contains little information as to the nature of the cause and the issues involved, it does disclose that the cross-petition was dismissed, after the original understanding that evidence in support of the petition would first be introduced and that a similar course would be followed with respect to the cross-petition. The single claimed error which the relator herein wished to present to the Court of Appeals on its appeal related to the dismissal of the cross-petition by the respondent.
"The office of a bill of exceptions is to put the decision objected to upon the record in such a way that the reviewing court may be advised of the point decided." Sherer v. Piper Yenney, 26 Ohio St. 476, 478. And the sufficiency of a bill of exceptions is dependent upon the nature of the question or questions sought to be raised.
If, for example, an aggrieved party desires a review on the weight of the evidence, all the evidence must be set out. But where he claims an error of law has occurred, it is sufficient if he includes enough in the bill to show the manner in which the point arose and the decision thereon. Scheinesohn v. Lemonek, 84 Ohio St. 424, 429, 95 N.E. 913, Ann. Cas., 1912C, 737.
In the per curiam opinion in the case of State, ex rel. Eges, v. Corlett, Judge, 137 Ohio St. 19, 20, 27 N.E.2d 930, this court said:
"The appellant may omit from his bill of exceptions testimony, exhibits or other matters which are not regarded as prejudicial to him and involve no action of the court upon which claimed error is predicated. The absence of such evidence would not be grounds for a refusal of the trial judge to sign the bill of exceptions unless such omission would result in misleading the reviewing court." Compare Beebe, Judge, v. State, ex rel. Starr Piano Co., 106 Ohio St. 75, 139 N.E. 156.
In other words, if the material embodied in a tendered bill of exceptions is correct in substance and form and is not of such a nature as to deceive or lead astray the reviewing court, it is the duty of the trial judge to sign such bill, with the privilege accorded him of making such notation or comment in the certificate as might be appropriate.
We are of the opinion that the Court of Appeals correctly decided the instant controversy.
On receipt of the bill it will be the province of the reviewing court — the Court of Appeals — to determine whether the bill is complete and comprehensive enough to enable such court to pass on the error claimed.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, STEWART, TURNER and TAFT, JJ., concur.