Bridgeport Bank Co. v. Shadyside Coal Co.

• Decision Date: 12 February 1930
• Docket Number: 21521,21976
• Citation: 121 Ohio St. 544,170 N.E. 358
• Parties: The Bridgeport Bank Co. Et Al. v. The Shadyside Coal Co.
• Court: Ohio Supreme Court

170 N.E. 358

121 Ohio St. 544

The Bridgeport Bank Co. Et Al. v. The Shadyside Coal Co.

Nos. 21521 , 21976

Supreme Court of Ohio

February 12, 1930

Error proceedings - Court of Appeals - Weight of evidence - Evidence reviewable to determine whether new trial motion erroneously overruled, when - Court cannot determine preponderance of evidence and render final judgment, when - Remand necessary where facts not agreed upon or specifically found.

1.

Where issues of fact are determined in the trial court, and one of the grounds for new trial relates to the weight of the evidence and one of the assignments of error in the Court of Appeals also relates to the weight of the evidence, it brings the evidence in review in the Court of Appeals only to determine whether the trial court erred in overruling the motion for a new trial based on that ground.

2.

In such case, if the Court of Appeals determines that the verdict or judgment is not sustained by sufficient evidence, its only province is to correct the error of the trial court in overruling the motion for a new trial, and it may not employ that assignment of error for the purpose of determining the preponderance of the evidence and rendering final judgment in favor of the plaintiff in error.

3.

Where the facts have not been agreed upon by parties in the trial court, or have not been found by the trial court, and a reversal is entered in the Court of Appeals on the weight of the evidence, the defendant in error is entitled to a remand to afford an opportunity for an amendment of the pleadings, or the production of additional evidence, if any, to cure the defects in the record of the former trial.

The facts are stated in the opinion.

Mr. Gilbert Bettman, attorney general, Mr. L.F. Laylin, Mr. J.A. Godown, and Mr. David R. James, for plaintiffs in error, in case No. 21821.

Mr. Gordon D. Kinder and Mr. George A. Blackford, for defendant in error.

Mr. G.H. Birrell, prosecuting attorney, Mr. George W. Secrest, and Messrs. Piers & Hecklinger, for plaintiffs in error, in case No. 21976.

Messrs. Kennedy, Manchester, Ford, Bennett & Powers, and Mr. William T. Swanton, for defendants in error.

MARSHALL C.J.

These two causes are disposed of together. The same legal question is involved in each. The two controversies have no relation with each ether.

Cause No. 21821 comes to this court on error from the Court of Appeals of Belmont county. It originated in the court of common pleas of Belmont county, where issues were joined upon both fact and law. It was heard by the court of common pleas without the intervention of a jury, and upon submission the trial court dismissed the petition at plaintiff's costs. There was no agreed statement of facts and no finding of fact. Error was prosecuted to the Court of Appeals, and that court reversed the judgment of the common pleas court, on the ground that "said judgment is manifestly against the evidence and against the law and is contrary to law." The Court of Appeals then proceeded to render the judgment which the court of common pleas should have rendered and found in favor of the plaintiff in error, and entered judgment accordingly.

In No. 21976, the cause originated in the court of common pleas of Trumbull county, where issues were joined upon both fact and law. The cause was tried to the court without the intervention of a jury, and the trial court dismissed the petition at plaintiffs' costs. There was no agreed statement of facts and no finding of fact. Thereon error was prosecuted to the Court of Appeals, and that court likewise reversed the trial court upon the weight of the evidence and entered final judgment in favor of the plaintiffs in error.

The sole question for determination in each of these cases relates to the power and the jurisdiction of the Court of Appeals, in an error proceeding prosecuted from the court of common pleas, where no findings of fact have been made in the trial court and there is a conflict in the evidence upon the issues of fact, to reverse the judgment of the trial court, and in the same proceeding enter final judgment in favor of the plaintiff in error.

In each of these cases we have examined the pleadings, and find that neither party was entitled to a judgment on the pleadings, and we have likewise examined the bill of exceptions in each case and find that material facts necessary to sustain the judgment were in issue between the parties. Ordinarily this court does not weigh the evidence in error proceedings, and this rule is universal in error proceedings where the issues are such as are to be determined in the court of common pleas by a preponderance of the evidence. In accordance with Rule XIX of this court, where a judgment of the common pleas court is reversed by the Court of Appeals on the ground that the judgment is not sustained by sufficient evidence, and a petition in error is filed in this court, a motion to affirm such judgment forthwith will be entertained.

In each of these cases the issues were determined in the common pleas court by a preponderance of the evidence. If the Courts of Appeals had reversed on the ground that they were not sustained by sufficient evidence, and had remanded the causes to the respective courts of common pleas for further proceedings, instead of entering final judgment in favor of the plaintiffs in error, the error proceedings would not have been entertained...