Opinion
No. 31775
Decided November 9, 1949.
Appeal — Insufficient record for review by Supreme Court — No bill of exceptions prepared in Court of Appeals — Or stipulation for trial de novo on Common Pleas Court transcript — Original action for injunction and accounting.
APPEAL from the Court of Appeals for Summit county.
ON MOTION to dismiss or affirm.
An action for injunction and accounting was instituted in the Court of Common Pleas and a decree was entered generally for plaintiff.
The defendants filed a notice of appeal on questions of law and fact to the Court of Appeals and an appeal bond was executed. The court entered a decree finding for the plaintiff in part and for the defendants in part, the journal entry reciting that the cause was submitted upon the pleadings, the evidence and the oral arguments and written briefs of counsel for the parties. A motion for new trial was filed and overruled.
A motion to certify the record was allowed by this court. Twenty-two days thereafter, there were filed in the Court of Appeals an official court reporter's certificated transcript of the testimony and the exhibits in the Court of Common Pleas. Within the ten-day limitation prescribed by Section 11571, General Code, the adverse party filed objections to the allowance of the "bill of exceptions" and filed a motion to strike such "bill" from the files. The Court of Appeals sustained the motion to strike "the alleged and so-called bill of exceptions" from the files.
Messrs. Gottwald, Hershey Hatch and Mr. E.D. Fritch, for appellee.
Messrs. Meade, Weygandt, Leonard Meade, for appellants.
The cause is before this court on a motion to dismiss the appeal or to affirm the decree for the reasons that no bill of exceptions was prepared and filed in the Court of Appeals pursuant to Section 11564, General Code, and that the errors assigned and legal questions thereby raised are not sufficiently or adequately presented for review by the record filed in this court.
The present record does not contain either a bill of exceptions prepared in the Court of Appeals, a finding of facts by that court or a stipulation by counsel to try the case de novo in the Court of Appeals upon a bill of exceptions prepared in the Court of Common Pleas.
The case being in this court after the allowance of a motion to certify the record and there being an insufficient record to review the errors assigned, the decree of the Court of Appeals is affirmed on authority of DeMoss v. Conart Motor Sales, Inc., 149 Ohio St. 299, 78 N.E.2d 675.
Decree affirmed.
MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.
WEYGANDT, C.J., not participating.