Finley v. Whitley

• Decision Date: 29 October 1889
• Citation: 22 N.E. 640,46 Ohio St. 524
• Parties: FINLEY et al. v. WHITLEY.
• Court: Ohio Supreme Court

22 N.E. 640

46 Ohio St. 524

FINLEY et al. v. WHITLEY.

Supreme Court of Ohio.

October 29, 1889

Error to circuit court, Union county.

Syllabus by the Court

1. A bill of exceptions that is not taken at the trial term or within 30 days thereafter, but taken on overruling a motion for a new trial that has been continued to a term of the court subsequent to the trial, cannot be regarded as a part of the record, for the review of alleged errors of law occurring at the trial, in the admission or rejection of evidence, or in the charge of the court or refusal to charge as requested.

2. Where, on overruling such motion for a new trial, the bill of exceptions so taken embodies the charge of the court as well as all the evidence, this court will not weigh the evidence for the purpose of determining whether the verdict was sustained by sufficient evidence, or was contrary to law, or whether substantial justice has been done, or a new trial ought to have been granted.

P. R. Kerr , and Cameron Woodburn , for plaintiffs in error.

S. S Gardiner, W. T. Hoopes , and D. W. Ayers , for defendant in error.

DICKMAN, J.

The original action was commenced in the court of common pleas of Union county by William Whitley, the defendant in error against J. J. Finley and P. R. Kerr, the plaintiffs in error. Whitley in his petition alleged that on the 30th day of July A. D. 1885, the defendants imprisoned him, and deprived him of his liberty, for the space of one hour, unlawfully and with force, on a pretended charge of assault; that while he was so imprisoned the defendants took and hauled away of his property one large load of unthreshed wheat, of the value of $18, and, after obtaining such property, released him, and thereafter refused to prosecute the charge of assault. He asked judgment against the defendants for damages in the sum of $2,000. Finley, for his separate answer to the petition, denied each and every allegation in the petition contained. Kerr, for answer, denied each and every allegation contained in the petition, and further said that on the 30th day of July, 1885, he filed with one F. M. MCADAMS, a justice of the peace, an affidavit charging Whitley with an unlawful assault upon him; that the justice issued a warrant for the arrest of Whitley, and deputed J. J. Finley to serve the same; that he went with Finley to the home of Whitley, and pointed out Whitley to Finley, who then and there arrested Whitley; and that he (Kerr) took no further part in the arrest, and did not further prosecute the plaintiff on the charge. The case was tried to a jury, at the February term, 1886, and a verdict was returned in favor of the plaintiff for $370.62. A motion for a new trial was made, and continued to the next term. No bill of exceptions was allowing and signed at the trial term, nor within 30 days thereafter. At the next or May term, 1886, the motion for a new trial was overruled, and judgment was rendered on the verdict for $200, upon the plaintiff's consenting to a remittitur of all above that sum. On the overruling of the motion for a new trial a bill of exceptions was taken by the defendants, containing all the testimony given on the trial by either party, together with the charge of the court to the jury. The bill of exceptions also set forth that during the progress of the trial the defendants excepted to certain rulings of the court, whereby testimony offered by the plaintiff was allowed to go to the jury, and testimony offered by the defendants was excluded; and that the defendants excepted to a portion of the charge of the court to the jury, and to the refusal of the court to charge the jury as by them requested. But no exception, taken by the defendants during the trial, was reduced to writing and presented to the court for allowance during the trial term, or within the statutory period after such term. On petition in error to the circuit court, the judgment of the court of common pleas was affirmed, and this proceeding is instituted to reverse the judgment of the circuit court.

Whether the trial court erred in the admission or rejection of evidence, or in misdirection to the jury, or in a refusal to...