Columbus, H.V. & T.Ry. Co. v. Thurstin
| Decision Date | 07 December 1886 |
| Citation | 9 N.E. 232,44 Ohio St. 525 |
| Court | Ohio Supreme Court |
| Parties | COLUMBUS, H. V. & T. RY. CO. v. THURSTIN. |
Motion to dismiss petition in error to circuit court, Lucas county.
The defendant in error received a judgment against the plaintiff in error in the court of common pleas of Lucas county. To reverse this judgment the latter filed its petition in error in the district court. After the lapse of two years the defendant in error moved the circuit court to strike the petition in error from the files, and the case from the docket, for the reason that no service of summons had been made nor appearance entered within two years from the rendition of the judgment. The motion was heard by the circuit court on affidavits and oral testimony. The court granted the motion. The petition in error in the court is to reverse the judgment of the circuit court rendered upon this motion. Certain facts which the court found from the evidence are recited in the record, and the contention of the plaintiff in error is that these facts did not warrant the action of the court upon the motion to dismiss. No bill of exceptions was taken showing the evidence upon which the court made its findings of facts. The circuit court did not pass upon the merits of the case as exhibited by the record of the court of common pleas, and no part of that record is in this court. The questions now before this court for consideration arise upon the motion of the defendant in error to dismiss the proceeding in error for the alleged reason that the court has no jurisdiction of the subject-matter. The foregoing statement embraces as much as is necessary to present the question considered and disposed of by this court.
Syllabus by the Court
A motion to dismiss a petition in error, upon the alleged ground that summons in error was not served nor appearance entered within two years after the rendition of the judgment below, was heard in the circuit court upon evidence, and sustained. No bill of exceptions was taken, but the court stated upon the record the facts found from the evidence, and upon which the dismissal was ordered. Upon this record the plaintiff in error seeks a reversal in this court of the order of dismissal. Held , (1) section 6710, Rev St., does not authorize a finding of facts in such a proceeding; (2) the order of dismissal is not reviewable upon such record, and a motion to dismiss the petition in error is well taken.
James A. Wilcox and Doyle & Scott , for plaintiff in error.
Joshua R. Seney , for defendant in error.
The solution of the question at bar rests upon the construction of section 6710, Rev. St., as amended May 4, 1885, (82 Ohio L. 230,) which provides, among other things, that ‘ * * * the supreme court shall not, in any civil cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of the evidence; and on application of any party excepting to a ruling or decision of the circuit court during the trial, or on motion for a new trial, such court shall find from the evidence, and state on the record, the facts upon which the alleged error arises, or which may be material in determining whether error has intervened or not.’ It is maintained by the defendant in error that this court has no power to entertain this proceeding in error upon the finding of facts set forth in the record, in the absence of a bill of exceptions containing all the evidence upon which the circuit court disposed of the motion to dismiss. On the other hand, the plaintiff in error maintains that a bill of exceptions would have been an idle form, as the weight of evidence cannot be reviewed by this court upon such bill, and that the only means of bringing such question before this court for review is by a finding of facts under section 6710, Rev. St.
Conceding that a bill of exceptions would not require this court to review a judgment or order below upon the weight of the evidence, the fact remains that, if such judgment or order be against the facts established by the uncontradicted evidence presented by the bill of exceptions, there would be power to review and reverse such judgment as a question of law.
The question before us must turn upon the construction of so much of section 6710 as provides that, ‘ on application of any party excepting to a ruling or decision of the circuit court during the trial , * * * such court shall find from the evidence, and state on the record the facts upon which the...
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